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86–915 PDF 2012

S. HRG. 112–863 

TAKING BACK OUR DEMOCRACY: RESPONDING 

TO CITIZENS UNITED AND THE RISE OF SUPER 

PACS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CONSTITUTION, 

CIVIL RIGHTS AND HUMAN RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JULY 24, 2012 

Serial No. J–112–89 

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 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN 

RIGHTS 

DICK DURBIN, Illinois, Chairman 

PATRICK J. LEAHY, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

LINDSEY O. GRAHAM, South Carolina 

JON KYL, Arizona 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

JOSEPH ZOGBY, Democratic Chief Counsel and Staff Director 

WALT KUHN, Republican Chief Counsel 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois .............................. 1 

prepared statement .......................................................................................... 40 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 6 

prepared statement .......................................................................................... 43 

WITNESSES 

Witness List ............................................................................................................. 39 

Baucus, Hon. Max, a U.S. Senator from the State of Montana ........................... 4 

prepared statement .......................................................................................... 46 

Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont ................... 7 

prepared statement .......................................................................................... 50 

Udall, Hon. Tom, a U.S. Senator from the New Mexico ....................................... 9 

prepared statement .......................................................................................... 57 

Edwards, Hon. Donna, a Representative in Congress from the State of Maryland ........................................................................................................................ 11

Roemer, Hon. Charles ‘‘Buddy’’, former Congressman and former Governor, 

State of Louisiana, Baton Rouge, Louisiana ...................................................... 14 

prepared statement .......................................................................................... 61 

Shapiro, Ilya, Senior Fellow in Constitutional Studies, Cato Institute, Washington, DC ............................................................................................................. 15 

prepared statement .......................................................................................... 66 

Lessig, Lawrence, Roy L. Furman Professor of Law and Leadership, Harvard 

Law School, Cambridge, Massachusetts ............................................................ 18 

prepared statement .......................................................................................... 70 

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union (ACLU), Laura W. Murphy, Director, Washington Legislative Office, Michael W. Macleod-Ball, Chief of Staff/First 

Amendment Counsel, and Gabriel Rottman, Legislative Counsel/Policy Advisor, July 24, 2012, joint letter .......................................................................... 111 

American Sustainable Business Council, David Levine, Chief Executive Office 

and Co-Founder, Washington, DC, July 23, 2012, letter .................................. 120 

Americans for Campaign Reform, Concord, New Hampshire, statement ........... 123 

Ben & Jerry’s Homemade, Inc, Jostein Solheim, Chief Executive Officer, 

South Burlington, Vermont, July 11, 2012, letter ............................................. 126 

Center for Competitive Politics, Alexandria, Virginia, statement ....................... 129 

Center for Media and Democracy, Lisa Graves, Executive Director, and 

Brendan Fischer, Staff Counsel, Madison, Wisconsin; article ‘‘Super PACs 

and Beyond.’’ ......................................................................................................... 138 

Beyond Super PACs, article .................................................................................... 145 

Common Cause, Bob Edgar, President and Chief Executive Office, Washington, DC, statement .......................................................................................... 152 

Demos Ideas & Action, Adam Lioz, Counsel, New York, New York, statement 160 

Free Speech for People, Jeffrey D. Clements, Co-Founder and President, 

Amherst, Massachusetts, statement ................................................................... 170 

Heagarty, Chris, former North Carolina State Representative, Law Offices 

of Chris Heagarty, PLLC, Raleigh, North Carolina, statement ....................... 187 

Hubbard, Rick, MBA, JC, South Burlington, Vermont, July 13, 2012, letter .... 194 

Lessig, Lawrence, Roy L. Furman Professor of Law and Leadership, Harvard 

Law School, Cambridge, Massachusetts, attachment ....................................... 198 
Page

IV 

Move to Amend, Salt Lake City, Utah, July 18, 2012, letter ............................... 202 

People for the American Way, Michael B. Keegan, President, Washington, 

DC, July 24, 2012, letter ..................................................................................... 222 

Public Campaign’s, Washington, DC, statement .................................................. 241 

Washington Public Campaigns, John E. King, President, Seattle, Washington, 

statement .............................................................................................................. 245 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, preiously 

printed by an agency of the Federal government or other criteria determined by the Committee: .................................................................................... 247 

Torres-Spelliscy, Ciara, Assistant Professor of Law, Stetson Law, Tampa, 

Florida, Part 1, see link: http://papers.ssrn.com/sol3/papers.cfm?abstract— 

id=2046832. .......................................................................................................... 247 
(1) 

TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITED AND THE RISE OF 

SUPER PACS 

TUESDAY, JULY 24, 2012 

U.S. SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND HUMAN RIGHTS, 

Committee on the Judiciary, 

WASHINGTON, DC. 

The Subcommittee met, pursuant to notice, at 2:34 p.m., in Room 

SH–216, Hart Senate Office Building, Hon. Richard J. Durbin, 

Chairman of the Subcommittee, presiding. 

Present: Senators Durbin, Leahy, Whitehouse, Klobuchar, Coons, 

and Blumenthal. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Chairman DURBIN. This hearing of the U.S. Senate Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

will come to order. It is entitled, ‘‘Taking Back our Democracy: Responding to Citizens United and the Rise of Super PACs.’’ I welcome those who have joined us in the hearing room, those watching 

live online, and those following the hearing on social media using 

the hashtag Citizens United. Someday I will understand what I 

just said. 

[Laughter.] 

Chairman DURBIN. This is the second hearing that this Committee has held on the impact of Citizens United, and after my 

opening statement, I am going to recognize Senator Graham, the 

Ranking Member, and Senator Leahy, Chairman of the Full Committee. 

Today we will examine the dramatic rise in spending by Super 

PACs that are largely funded by corporations and wealthy individuals. We will also consider proposed legislation and constitutional 

amendments to stem this tide. 

Since the Supreme Court’s decisions in Citizens United and 

SpeechNow, a later decision by the D.C. Court of Appeals, we have 

witnessed the rapid rise of Super PACs and the unprecedented influence by corporations and wealthy individuals seeking to advance 

their political agenda. 

In 2006, outside groups spent $70 million to influence the Federal midterm election. Four years later, it was up to $294 million, 

more than four times the amount. That is four times the amount 
2 

since 2006, and by all accounts they are going to break all records 

this Presidential election year. 

Ordinary Americans often have no idea who is bankrolling the 

omnipresent political advertising. In 2006, secret donors made up 

one percent of all outside spending—one percent. Four years later, 

after Citizens United and the rise of Super PACs, secret donors 

rocketed to 44 percent of outside spending. Studies show that as 

the amount of money floating campaigns increases, disclosure and 

transparency decline. In a democracy that values openness and 

voter participation, the voters ought to know who is paying for the 

ads. We should call them not ‘‘Super PACs’’ but ‘‘Super Secret 

PACs’’ because the reality is the public has shockingly little information about them. 

The little that we have been able to learn has identified some 

major donors. Half of all Super PAC money being spent in the 

Presidential election is coming from 22 people: millionaires and billionaires who are buying their way in. 

To be clear, I do not begrudge them any business success. They 

have a right to be heard. However, they do not have a right to be 

the only voice heard. Just because wealthy donors that are behind 

the Super PACs have achieved economic success does not mean 

they have earned the right to buy or control our political agenda. 

Sadly, it appears that is happening. 

According to a recent report on campaign elections, Super PACs 

threatened to purchase every last minute of available television advertising space for the fall election, exponentially driving up the 

cost of these ads, especially in battleground States. As a result, a 

voter may never hear directly from State and local candidates. I 

thought Citizens United was about giving the voters more information. These candidates can be kept off the air entirely due to the 

rising cost and fact that they are not entitled to reasonable access 

to the air waves like Federal candidates. 

There are 314 million people in this country whose lives, jobs, 

safety, and health are impacted by decisions made by elected officials. Can we still proclaim to be the world’s model for free elections with open debate when we allow 22 wealthy people to control 

the terms of that debate and silence the voices of others? The public may not know the agendas of those who are buying these ads, 

but I can assure you that the politicians they have supported will 

once they begin calling after the election. 

There is a series of legislative proposals that would stem this 

dangerous tide of secret special interest money that is flowing into 

our elections. I have introduced Fair Elections Now. It would create 

a public financing system that will free candidates from the dangerous reliance on Super PACs once and for all. Under Fair Elections, viable candidates who qualify for the program would raise a 

maximum of $100 from any single donor. The candidates would 

then receive matching funds and grants sufficient to run a competitive campaign. It is a totally different approach. It really means 

that we would have campaigns more substantive, maybe shorter, 

maybe some real debates. Sound interesting? 

Fair Elections would fundamentally reform our broken system 

and put the average citizen back in control. Last week, the Senate 

voted on the DISCLOSE Act, a simple proposition. Who is paying 
3 

for these ads? A majority of the Senate, including every Democratic 

Member of this Committee, voted to support the measure. I want 

to thank Senator Whitehouse, who is a Member of the Committee, 

for his leadership. The bill is simple. It requires Super PACs and 

other big spenders to disclose all donors who give $10,000 or more. 

In other words, it would write into law the same basic concept of 

disclosure that the Supreme Court says it endorsed in Citizens 

United. Congress could pass these two bills right now and make a world 

of difference. But with a Supreme Court that has not been shy 

about overturning precedent and disregarding congressional intent, 

passing these pieces of legislation may not be enough. After much 

deliberation, I have, with some hesitation, reached the conclusion 

that a constitutional amendment is necessary to clean up our campaign finance system once and for all. I have been reluctant to 

sponsor constitutional amendments. Some of my colleagues sponsor 

a lot of them. I think you ought to be careful not to take a roller 

to a Rembrandt, and I have tried to wait for those moments in history where I thought it was necessary. I think this is one of those 

moments. 

Slavery and the denial of basic freedom of Americans was the 

law of the land before and after Dred Scott, but many fought, bled, 

and died so that the 14th, 15th, and 16th Amendments would ensure that America lived up to its promise of equality. Those who 

fought for women’s suffrage for decades were discouraged by the 

Supreme Court’s ruling in Minor v. Happersett, but years of activism were rewarded when the 19th Amendment was passed. 

The Supreme Court’s decision in Breedlove v. Suttles affirmed the 

imposition of poll taxes that prevented many African Americans 

and poor from voting. Those fighting for equal ballot access rallied 

to pass the 24th Amendment, and their victory was completed 

when State poll taxes were invalidated by Harper v. Board of Elections. So it is an uphill battle, and it may take years, but the passage 

of these five amendments remind us that grassroots movement can 

put our country back on the right course after a Supreme Court decision like Citizens United gets it dead wrong. That grassroots 

movement is well underway. Stacked over there in the corner are 

1,959,063 petition signatures from Americans across the Nation 

representing every State in the Union in support of a constitutional 

amendment to stop the negative influence of secret money from 

special interest groups and individuals. 

Today we are going to hear testimony from some of my colleagues who have responded to this call by coming up with their 

own approaches, constitutional amendments. I am looking forward 

to their testimony. I am going to yield the floor when Senator 

Graham arrives so that he can speak, and the same for Senator 

Leahy. 

The first panel is seated. There have been 13 constitutional 

amendments introduced in the House and Senate, and my colleagues have taken many different approaches, but are all united 

in the belief that Citizens United and its progeny are bad for America. I am pleased to be joined today by some of the Members who 

have taken a leadership role. 
4 

First, Senator Max Baucus, senior Senator from the State of 

Montana, Chairman of the Senate Finance Committee. In January 

of this year, Senator Baucus introduced his constitutional amendment, Senate Joint Resolution 35. His presence here today is particularly timely since just a few weeks ago, the Supreme Court 

struck down Montana’s century-old ban on corporate political contributions in State elections. 

Senator Baucus, the floor is yours. 

STATEMENT OF THE HONORABLE MAX BAUCUS, A UNITED 

STATES SENATOR FROM THE STATE OF MONTANA 

Senator BAUCUS. Thank you, Mr. Chairman. 

President Franklin Delano Roosevelt once said, ‘‘The ultimate 

rulers of our democracy are not a President and Senators and Congressmen and government officials, but the voters of this country.’’ 

People in charge, we are just hired hands. We have got lots of 

great players back in our home States. We are the employees, and 

it is the people in our States that decide who they are going to 

elect, unelect, and give us direction as to what they think we 

should do. 

I sit before you today on behalf of those voters—in my State, 

nearly one million Montanans, those are the folks that I work for, 

as well as over 1.7 million Americans we all serve who have signed 

those petitions over there that you referred to. They have signed 

that petition calling for a constitutional amendment, some kind of 

amendment that this Committee is now considering at this moment. 

That is 1.7 million signatures. Those are mothers, fathers, employers, veterans, school teachers. They are Americans that we 

were sent here to serve. 

I must say, as a Montanan, this issue is deeply personal to me, 

and let me tell you why. 

At the top of our State Capitol building in Helena, Montana, sits 

a beautiful copper dome. Nearly a century ago, this copper dome 

was not just for decoration. It was a symbol of what we call in 

Montana and other parts of the country, the symbol of the ‘‘copper 

barons.’’ Now, who are they? They are the three major folks, extremely wealthy, who fought for and controlled the production of 

copper in Butte, Montana. Butte, Montana, is known as the richest 

hill on earth. One of them was a fellow named William Clark. William Clark is the largest benefactor to the Corcoran Gallery here 

in Washington, D.C. In today’s dollars, he would rival Warren 

Buffett or Bill Gates. He was that wealthy. 

While miners were working underground, what was William 

Clark doing? William Clark was buying elections with his money. 

In fact, it was common for corporations in our State, and probably 

other States, to buy elections with their money. 

Remember, back then we were elected by State legislatures, not 

by the people. Legislatures decided who was going to serve in the 

U.S. Senate. 

In 1899, William Clark bribed the Montana State Legislature 

into appointing him to serve here in the U.S. Senate. Well, the 

Rules Committee had the goods on him because he actually 

threw—or his people did—bundles of dollars over the transom in 
5 

hotels where the State legislators were staying, passing laws in the 

State of Montana. In fact, he is quoted as saying, ‘‘I never bought 

a man who was not for sale.’’ 

The Rules Committee sat down and met. What would they do 

with this guy, William Clark, who had clearly bribed his way to the 

U.S. Senate? 

Well, William Clark was no dummy. While the Rules Committee 

was meeting, and they had the goods on him—this is back around 

1900—what did he do? He used his money to do something pretty 

clever. He arranged to have the Governor of the State of Montana 

leave Montana and go to San Francisco. He bought him off. And 

then he, William Clark, resigned. He resigned his position in the 

U.S. Senate and arranged to have the Lieutenant Governor, then 

Acting Governor, appoint him to the U.S. Senate, and that is how 

William Clark became a Senator. He bought his way into the U.S. 

Senate. 

That led to the 17th Amendment. That incident and the scandal 

in Montana led to the passage of the 17th Amendment. And Montana also responded by passing laws prohibiting corporations from 

contributing to elections. We were so outraged with what William 

Clark and his people did in the State of Montana. And as you said, 

Citizens United overturned that and made it impossible for Montana to enforce this law that was deeply embedded in our culture, 

and the recent decision by the Court in the aftermath of Citizens 

United made that very clear. We in Montana cannot proceed. 

So I believe, as you believe, that the solution here is a constitutional amendment. That is about the only way we can solve this, 

to restore power and put power back in the hands of the people, 

not in the hands of the corporations like William Clark exercised 

back then. 

There was a 2012 poll which says that 63 percent of Americans 

believe that corporations and unions should not be able to spend 

unlimited amounts of dollars in elections. And the people we work 

for, at least in my State, and I think across the country, agree. 

Again, the surest way to get at the heart of the matter, I think, 

is a constitutional amendment. 

In the Federalist Papers, James Madison noted that there would 

be circumstances when ‘‘useful alterations [to the Constitution] will 

be suggested by experience.’’ 

Still this is a process that requires significant deliberation. It 

should. As you have said, Mr. Chairman, you do not just amend the 

constitution lightly. And I do not take a proposal to amend the 

Constitution lightly at all. And I agree with James Madison that 

we should amend the Constitution only on ‘‘great and extraordinary occasions.’’ 

This is one of those occasions, as you said just a few minutes ago. 

And Congress, I think, owes it to the American people to fully 

study, discuss, and debate the merits of an amendment. 

My proposal—and there are many here—would right the wrong 

of Citizens United, simply overturn it. It would restore Congress’ 

and States’ ability to regulate political spending by corporations 

and labor in elections and then give people in States like Montana 

and other States the power to once again say, ‘‘We are not for sale.’’ 
6 

It is clear to me that action is needed to restore Americans’ faith 

in our political and electoral process, and I urge my colleagues to 

join me in supporting this amendment. 

[The prepared statement of Senator Baucus appears as a submission for the record.] 

Chairman DURBIN. Thanks a lot, Senator Baucus. I appreciate 

your testimony, and we would love to have you stay, but if you 

have other things calling you in the Senate Finance Committee and 

other places, you are welcome to leave. 

Senator BAUCUS. Thank you. 

Chairman DURBIN. Ordinarily I would then recognize Senator 

Sanders, but it turns out the senior Senator from Vermont showed 

up, and he is Chairman of the Committee, and I hope, Senator 

Sanders, that you will give us a chance here for Senator Leahy to 

say a word or two in opening, and then I will recognize you next. 

Senator Leahy. 

STATEMENT OF THE HONORABLE PATRICK J. LEAHY, A 

UNITED STATES SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you, Chairman Durbin. 

Listening to our friend Senator Baucus and watching what has 

happened on television or watching elections the last two and a 

half years, we have seen the corrosive effects of the Supreme 

Court’s decision in Citizens United. It is really hard to think of any 

Supreme Court decision that has had such a negative impact on 

our political process. 

Nobody who has heard the barrage of negative ads from always 

undisclosed and, even worse, unaccountable sources can deny the 

impact of Citizens United. Nobody who has strained to hear the 

voices of the voters lost among the noise from Super PACs can 

deny that by extending First Amendment ‘‘rights’’ in the political 

process to corporations, five Justices put at risk the rights of individual Americans to speak to each other and, crucially, to be heard. 

The idea that a corporation is a person is as crazy as saying, ‘‘We 

elected General Eisenhower President, then why can’t we elect 

General Motors President? ’’ It makes no sense. 

But those same five Justices doubled down, as Senator Baucus 

would agree, when they summarily struck down the 100-year-old 

Montana law. 

These Supreme Court decisions go against all kinds of longstanding laws and legal precedents, but also against common sense 

and against the people. Corporations are not people. Corporations 

do not have the same rights, the same morals, or the same interests. Corporations cannot vote in our democracy. They are artificial 

legal constructs meant to facilitate business. Now, the Founders of 

this country knew that. Vermonters and Americans across our 

country have long understood this. Five members of the Supreme 

Court apparently do not. 

Like most Vermonters, I believe that this is a harmful decision 

that needs to be fixed. I have sought legislative remedies, of course, 

because that would be quicker, although I believe constitutional 

remedies have to be considered. That is why I held the very first 

congressional hearing on that terrible decision after it was issued. 

I worked with Senator Whitehouse, Senator Schumer, and others 
7 

to amend the DISCLOSE Act, bring forth the DISCLOSE Act that 

could at least cut out some of the worst parts of Citizens United. 

I have worked with Senator Durbin, the Chairman of this Subcommittee, to schedule today’s hearing. And, Senator Durbin, I do 

thank you for holding this hearing. It is extremely important. He 

has been not only a leader on this, but he has been a leader in 

shedding light on the effort in so many States to deny millions of 

Americans access to the ballot box through voter purges and voter 

ID laws. It is amazing to find people trying to cut out the right to 

vote for individual Americans. They are saying we are going to cut 

out the right for individual Americans to vote, but we are going to 

give unlimited power for corporations to involve themselves in secret spending to change the outcome of our elections. We have to 

work to restore the right balance in our democracy to protect the 

form of government Americans have fought and died for, what 

President Lincoln called our government of, by, and for the people. 

The last 236 years have been one toward greater inclusion and 

participation by all Americans. That is not what is happening here. 

I will put my full statement, Mr. Chairman, in the record, but 

I look at a little State like mine, a tiny fraction of the corporate 

money being spent could overwhelm us in our State. That is why 

more than 60 Vermont towns passed resolutions on Town Meeting 

Day calling for action to address Citizens United. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman LEAHY. Also, Mr. Chairman, I would ask consent that 

a statement by a Vermonter, Rick Hubbard of South Burlington, be 

included in the record. 

Chairman DURBIN. Without objection. 

[The prepared statement of Mr. Hubbard appears as a submission for the record.] 

Chairman DURBIN. Thank you very much, Senator Leahy. 

Let me now recognize Senator Sanders, the junior Senator from 

Vermont. He has introduced Senate Joint Resolution 33 in an effort 

to respond to Citizens United and related cases. Senator Sanders 

enjoys a larger grassroots following than probably any other Senator, and we know that he is frequently in touch with people who 

are following this issue very carefully. 

Senator Sanders, please proceed. 

STATEMENT OF THE HONORABLE BERNARD SANDERS, A 

UNITED STATES SENATOR FROM THE STATE OF VERMONT 

Senator SANDERS. Thank you very much for convening this enormously important hearing, and thank you for your very strong 

opening remarks. And I thank Senator Leahy as well for his strong 

statement. 

Mr. Chairman, as you have indicated a moment ago, the history 

of our country has been to drive toward a more and more inclusive 

democracy—a democracy which would fulfill Abraham Lincoln’s 

beautiful phraseology at Gettysburg when he talked about ‘‘a Nation of the people, by the people, and for the people.’’ 

We all know that American democracy has not always lived up 

to this ideal. When this country was founded, only white male 
8 

property owners over age 21 could vote, but people fought to 

change that, and we became a more inclusive democracy. 

After the Civil War, we amended the Constitution to allow nonwhite men to vote. We became a more inclusive democracy. 

In 1920, after years of struggle and against enormous opposition, 

we finally ratified the 19th Amendment guaranteeing women the 

right to vote. We became a more inclusive democracy. 

In 1965, under the leadership of Martin Luther King, Jr., and 

other great heroes, the civil rights movement finally succeeded in 

outlawing racism at the ballot box, and LBJ signed the Voting 

Rights Act. We became a more inclusive democracy. 

One year after that, the Supreme Court ruled that the poll tax 

was unconstitutional, that people could not be denied the right to 

vote because they were low income. We became a more inclusive 

democracy. 

In 1971, young people throughout the country were saying, ‘‘We 

are being drafted to go to Vietnam and get killed, but we are 18 

and we do not have the right to vote.’’ We passed a constitutional 

amendment. The voting age was lowered to 18. We became a more 

inclusive democracy. 

Mr. Chairman, the democratic foundations of our country and 

this movement toward a more inclusive democracy are now facing 

the most severe attacks, both economically and politically, that we 

have seen in the modern history of the United States. Tragically— 

and I say these words advisedly—we are well on our way to seeing 

our great country move toward an oligarchic form of government 

where virtually all economic and political power rests with a handful of very wealthy families. Citizens United is a part of that process, and that is a trend we must reverse. 

Economically, the United States today has by far the most unequal distribution of wealth and income of any major country on 

earth, and that inequality is worse today than it was at any time 

since the late 1920s. One family, the Walton family of Wal-Mart 

fame, owns more wealth than the bottom 40 percent of the American people. The bottom 60 percent own less than two percent of 

the wealth. The top one percent owns 40 percent of the wealth. 

Now, that is what is going on economically in this country. A 

handful of billionaires own a significant part of the wealth of America and have enormous control over our economy. 

What the Supreme Court did in Citizens United is say to these 

same billionaires, ‘‘You own and control the economy. You own 

Wall Street, you own the coal companies, you own the oil companies. Now for a very small percentage of your wealth, we are going 

to give you the opportunity to own the U.S. Government.’’ That is 

the essence of what Citizens United is all about, and that is why 

it must be overturned. 

Let us be clear. Why should we be surprised that one family 

worth $50 billion is prepared to spend $400 million in this election 

to protect their interests? That is a small investment for them and 

a good investment. But it is not just the Koch brothers. 

Mr. Chairman, there are at least 23 billionaire families who have 

contributed a minimum of $250,000 each into the political process 

up to now during this campaign, and my guess is that number is 

really much greater because many of these contributions are made 
9 

in secret. In other words, not content to own our economy, the one 

percent want to own our government as well. 

The constitutional amendment that Congressman Ted Deutch 

and I have introduced states the following: ‘‘For-profit corporations 

are not people and are not entitled to any rights under the Constitution. For-profit corporations are entities of the States and are 

subject to regulation by the legislatures of the States so long as the 

regulations do not limit the freedom of the press. For-profit corporations are prohibited from making contributions or expenditures 

into political campaigns. Congress and the States have the right to 

regulate and limit all political expenditures and contributions, including those made by a candidate.’’ 

I am proud to say that the American people are making their 

voices heard on this issue. You have close to two million signatures 

right there on a petition. In my State of Vermont, we have seen 

dozens and dozens of towns go on record as saying they support a 

constitutional amendment, and we have six States having done the 

same. 

You have some very good amendments here with Senator Baucus, Senator Udall, and Congresswoman Edwards. I hope we move 

on this issue because the future of American democracy is at stake. 

Thank you very much. 

[The prepared statement of Senator Sanders appears as a submission for the record.] 

Chairman DURBIN. Thanks, Senator Sanders. 

Senator Tom Udall is the junior Senator from New Mexico and 

offered one of the first amendments in the Senate on this subject. 

We are glad you are here today, and the floor is yours. 

STATEMENT OF THE HONORABLE TOM UDALL, A UNITED 

STATES SENATOR FROM THE STATE OF NEW MEXICO 

Senator UDALL. Thank you, and good afternoon, Chairman Durbin, Chairman Leahy, and Senator Coons. 

In January 2010, the Supreme Court issued its opinion in Citizens United v. FEC. Two months later, the D.C. Circuit Court of 

Appeals decided SpeechNow v. FEC. These two cases opened the 

door to Super PACs. Millions of dollars now pour into negative and 

misleading campaign ads. This is poisoning our democracy, and 

often we do not even know who is doing the poisoning. 

Our campaign finance system was in trouble before these opinions. We have been on this dangerous path for a long time. The 

Citizens United and SpeechNow decisions just picked up the pace, 

but the Court laid the groundwork many years ago. 

We can go all the way back to 1976. That year, the Court held 

in Buckley v. Valeo that restricting independent campaign expenditures violates the First Amendment right to free speech. In effect, 

money and speech are the same thing. 

This is tortured logic. It is divorced from the reality of political 

campaigns, and it is the basis for the Court’s ruling in Citizens 

United. The outcome is hardly surprising. Americans’ right to free 

speech is now determined by their net worth. For average Americans, they get one vote. They go to the polls and cast their ballot 

with millions of others. But for the wealthy and the super wealthy, 

Buckley says they get so much more, says that they can spend un-
10 

limited amounts of money to influence our elections. And now with 

Citizens United that right has been extended to corporations and 

other special interests. 

The damage is clear. Elections become more about the quantity 

of cash and less about the quality of ideas; more about special interests, and less about public service. 

We have a broken system based on a deeply flawed premise. 

There are only two ways to change this: the Court could overturn 

Buckley and Citizens United, which is unlikely with its current ideological makeup; or we amend the Constitution, we overturn the 

previous bad Court decisions and prevent future ones. Until then, 

we will fall short of real reform. Until then, the flood of special interest cash will continue. 

That is why I, along with several Members of this Subcommittee, 

introduced S.J. Res. 29 last November. We are up now to 23 cosponsors, with several other Senators expressing support for a constitutional amendment in floor speeches and press interviews. 

This amendment is similar to bipartisan proposals in previous 

Congresses. It would restore the authority of Congress—stripped by 

the Court—to regulate the raising and spending of money for Federal political campaigns. This would include independent expenditures, and it would allow States to do so at their level. It would 

not dictate any specific policies or regulations. But it would allow 

Congress to pass sensible campaign finance reform legislation that 

withstands constitutional challenges. 

In Federalist No. 49, James Madison argued that the U.S. Constitution should be amended only on ‘‘great and extraordinary occasions.’’ I believe we have reached one of those occasions. Free and 

fair elections are a founding principle of our democracy. They 

should not be for sale to the highest bidder. 

I know amending the Constitution is difficult. And it should be. 

Last week, during the debate on the DISCLOSE Act, Chairman 

Leahy said that we must pass that bill now because of the ‘‘years 

and years that a constitutional amendment might take.’’ The 

Chairman makes a fair point. 

But those ‘‘years and years’’ started decades ago. There is a 

long—and, I might add, bipartisan—history here. Many of our 

predecessors from both parties understood the corrosive effect 

money has on our political system. They spent years championing 

the cause. 

In 1983—the 98th Congress—Senator Ted Stevens introduced an 

amendment to overturn Buckley. And in every Congress from the 

99th to the 108th, Senator Fritz Hollings introduced bipartisan 

constitutional amendments similar to the one I have introduced. 

After he retired, Senators Schumer and Cochran continued the effort in the 109th Congress. 

And that was before Citizens United, before things went from 

bad to worse. The out-of-control spending since that decision has 

further poisoned our elections. But it has also ignited a broad 

movement to amend the Constitution. 

Across the country, more than 275 local resolutions have passed 

calling for a constitutional amendment to overturn Citizens United. 

Legislatures in six States—California, Maryland, Hawaii, Vermont, 

Rhode Island, and my home State of New Mexico—have called on 
11 

Congress to send an amendment to the States for ratification. 

Many more States have similar resolutions pending. And as has 

been mentioned here, 1.9 million citizens have signed petitions in 

support of an amendment. More than a hundred organizations, 

under the banner of United for the People, are calling for constitutional remedies. 

But an amendment can only succeed if Republicans join us in 

this effort. They have in the past. I know the political climate of 

an election year makes things even more difficult, but I am hopeful 

that we can work together and that we can reach consensus on a 

bipartisan constitutional amendment that can be introduced early 

in the next Congress. 

We must do something. The voice of the people is clear, and so 

is their disgust. 

And with that, Senator Durbin, thank you for your courtesies on 

going a little bit over time. I would ask that I put my full statement into the record and once again thank you for this very important and timely hearing. 

[The prepared statement of Senator Udall appears as a submission for the record.] 

Chairman DURBIN. Thank you, Senator Udall. Of course, your 

statement will be in the record. 

It is my pleasure now to introduce Congresswoman Donna F. Edwards, representing Maryland’s Fourth Congressional District, 15 

years of experience on campaign finance reform, voting rights, and 

government ethics issues. She was the first Member of the House 

to introduce a constitutional amendment responding to Citizens 

United. She has been actively engaged in educating the public 

about this effort, and we are glad to have you on this side of the 

Rotunda. Please proceed. 

STATEMENT OF THE HONORABLE DONNA EDWARDS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND 

Ms. EDWARDS. Thank you, Mr. Chairman, and to all the Members of the Committee and the Ranking Member, I really do appreciate the opportunity to be here today to testify. I think this is an 

important hearing to examine the pending responses to the Supreme Court’s decision in Citizens United and related cases. 

We do not have any doubt that we have entered into an unprecedented era in our political system and one in which Super PACs 

seem to rule. ‘‘One person, one vote’’ seems more appropriate for a 

history lesson than a description of our current elections process. 

The danger of Citizens United was heralded by Justice Stevens 

in his dissenting opinion. He could not have been more prescient 

when he warned that it would ‘‘undermine the integrity of elected 

institutions around the Nation.’’ Justice Stevens’ warning materialized initially during the 2010 election cycle, but that was just the 

opening salvo. We have seen at the start of the 2012 Republican 

Presidential primaries the true scope and danger of Citizens 

United. 

Restore Our Future, a Super PAC supporting former Governor 

Mitt Romney and run by his former staffers, poured nearly $8 million into Florida. 
12 

Winning Our Future, a Super PAC supporting former Speaker 

Newt Gingrich, made a $6 million ad buy there. 

After being targeted by Restore Our Future, Speaker Gingrich 

concluded, ‘‘I think it debilitates politics. I think it strengthens millionaires and it weakens middle-class candidates.’’ I could not agree 

more. 

This is an equal opportunity corrosion. Democratic-leaning 

groups are preparing to play, too, even while doing a little catchup with Republican-leaning groups. Sadly, the landscape continues 

to darken as we march toward the 2012 general election. 

According to the Center for Responsive Politics, 678 groups who 

organized as Super PACs reported receipts of over $280 million and 

independent expenditures of more than $145 million already in this 

election cycle. 

Putting an end to the influence of secret money on our elections 

I think requires a three-legged stool approach: 

First, require increased disclosure of money in political campaigns; 

Second, allow public financing of candidates for Congress. If we 

do not own our elections, who will? 

Then, third, amend the Constitution to give Congress the authority that it needs to regulate political expenditures. 

I am an original cosponsor of measures that do just that, and, 

Mr. Chairman, I want to thank you for your sponsorship and leadership on the Fair Elections Now Act. And I particularly want to 

applaud Senator Whitehouse for his leadership on the DISCLOSE 

Act. While these interim reforms should be enacted into law to 

mitigate the influx of unregulated money in our elections, the Citizens United decision leaves Congress, I think, with really only one 

true option, and that is, to amend the Constitution. 

As a lawyer and someone who has dedicated nearly 15 years to 

working on campaign finance reform, I do not take amending our 

Nation’s guiding document lightly either. Indeed, as an advocate 

and a donor, I spent the better part of my career shunning attempts by reform groups to support constitutional amendments. 

That all changed with Citizens United. I believe firmly that such 

bold action is warranted as we face the threat that Citizens United 

poses to the health of the democracy. In its majority opinion, the 

Court was clear: Congress does not have the authority to regulate 

these expenditures. I do not agree, but the Court did double down 

in its conclusion in SpeechNow and in Bullock. Only an amendment 

to the Constitution can provide Congress with the authority it 

needs. 

Fewer than two weeks after Citizens United was released, I 

joined with House Judiciary Chairman John Conyers to introduce 

the first constitutional amendment to reverse the decision. Our 

amendment would have given specific authority to Congress and 

the States to regulate corporate expenditures on political activity 

by imposing content-neutral regulations and restrictions on expenditures of funds for political activity by any corporate entity excluding the media. It is very similar to Senator Baucus’ approach. 

Ranking Member Conyers and I reintroduced our amendment in 

this Congress. 
13 

But we are not alone in the fight. You have already indicated 

that 14 amendments—three in the Senate and 11 in the House— 

have been introduced during the current Congress. We all agree 

that corporate money and individual wealth cannot dominate our 

politics any longer. But as usual, the public is way ahead of us. We 

can see that. Two hundred and seventy-five cities and towns from 

Albany to Pittsburgh to Kansas City to Missoula have passed antiCitizens United resolutions, including my home State of Maryland. 

The sponsors of a constitutional amendment all came together, 

and we agreed to what is called a ‘‘Declaration for Democracy,’’ to 

declare our support for amending the Constitution. And today 

1,854 public officials, including 92 Members of the House and 28 

Senators, over 2,000 business leaders, and thousands of ordinary 

citizens have signed their name to this declaration. And now some 

are questioning the need for an amendment, but the Supreme 

Court has answered that question pretty unequivocally when it 

overturned Montana’s century old limits on corporate spending. 

The Supreme Court closed the door on reasonable laws to regulate campaign finance, and except for disclosure, the constitutional 

door is the only one that really remains open. And we owe it to the 

American people—and, Mr. Chairman, I know that you agree—to 

find the consensus that we need and to walk through the door. 

And so I want to thank you for this opportunity and thank you 

for your work, and I appreciate the chance to be here today. 

Chairman DURBIN. Congresswoman Edwards, thank you for coming. Senator Udall and Senator Sanders, thank you as well. 

Unless my colleagues have a comment or question, I will thank 

you once again and invite the second panel to come forward. 

Chairman DURBIN. Before you take your seats, I will administer 

the oath, which is the custom of this Subcommittee. If you will 

please raise your right hand. Do you affirm the testimony you are 

about to give before the Committee will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. ROEMER. I do. 

Mr. SHAPIRO. I do. 

Mr. LESSIG. I do. 

Chairman DURBIN. Thank you. Let the record reflect that all 

three witnesses have answered in the affirmative. 

Charles (Buddy) Elson Roemer III, former Governor of Louisiana. 

Prior to becoming Governor of Louisiana in 1988, Roemer served 

four terms in the U.S. Congress from 1981 to 1988. I was honored 

to serve with him. As Governor, Buddy Roemer worked with the 

State legislature to enact sweeping campaign finance reform. Most 

recently, Governor Roemer was a candidate in the 2012 Republican 

Presidential primary. During his Presidential campaign, Governor 

Roemer limited all campaign contributions to $100, practiced full 

and immediate disclosure, and refused to accept contributions from 

PACs, Super PACs, and corporations. 

Governor Roemer, thank you for joining us today. The floor is 

yours. 
14 

STATEMENT OF THE HONORABLE CHARLES ‘‘BUDDY’’ ROEMER, FORMER CONGRESSMAN AND FORMER GOVERNOR, 

STATE OF LOUISIANA, BATON ROUGE, LOUISIANA 

Mr. ROEMER. Thank you, Mr. Chairman. Thanks for inviting me. 

Washington, D.C., appears to be broken, with gridlock, an 

unreadable tax code that exports American jobs; dumb trade rather 

than smart, non-existent budget discipline; too big to fail in perpetuity. Broken? Yes. But it is bought first. And it will not be repaired by those who profit from its impairment. 

Political campaigns have always required funding, but citizens do 

not now fund campaigns. The special interests do, because they 

gain a disproportionate say-so in public policy as a result. This dependence between special interest funding and political advancement is a form of institutional corruption in a representative democracy. It is corrupt when the size of your contribution determines your place in line. It is institutional when everyone does it, 

when the invitees to your fundraisers are from the industries you 

regulate. 

The public’s perception is not only that Congress is a do-nothing, 

gridlocked institution, more interested in themselves than in us, 

but that in order to fund that priority, they go to where the money 

is, the special interests, who have never profited more than now 

while America hurts. 

Four years ago, it became obvious when the two Presidential 

nominees received more PAC and other special interest funding 

from Washington, DC, and its environs than they did from the individual contributions of 32 States combined. That is four years ago. 

It is now worse. With less than one percent giving more than 99 

percent of all campaign funding, it cannot be called a Republic for 

long. 

Being on the campaign trail for the past 20 months with a $100 

limit, full disclosure, and refusal of all PAC money, I saw the skewing of the current system toward the power of the unlimited givers. 

I saw multiple candidates pretend non-coordination with their 

Super PACs while personally addressing their Super PAC fundraisers. Uncoordinated? Are we stupid? 

I saw qualified candidates excluded from the national televised 

debates because they had not raised $500,000 in the prior 90-day 

period. How do you do that without taking special interest money? 

Raise it from the people, you say. Well, how do you do that if excluded from the debates? 

Free to lead is the qualification of every great President, yet our 

institutional corruption places our futures in the hands of the mega 

contributors. Who elects them? 

When I came to Congress 31 years ago, the debate was between 

full disclosure on the part of the conservatives and caps on giving 

by liberals. Now we have neither. A constitutional amendment 

might be required to address this imbalance, but it will and should 

require careful debate. Statutory solutions can rectify much now. 

Consider seven quick points. 

One, full disclosure of all contributions and expenditures used 

politically. Full disclosure does not solve all our problems, but sunlight is a powerful disinfectant. 
15 

Two, 48-hour reporting for all transactions in the political marketplace. Actionable, timely disclosure yields the greatest, most valuable information for the voting public. 

Three, no financial contributions or assistance should be allowed 

from registered lobbyists. 

Four, the limits on PAC contributions should be the same as 

exist on individual contributions, whatever they are. 

Five, independent, non-coordinated efforts should be defined by 

Congress with boundaries set at relatively low levels of connections 

to candidate or campaign, disqualifying an entity. 

Six, lobbying of Congress by retiring members should be disallowed for a period of at least five years post-retirement. 

Seven, Congress should enact criminal penalties for the willful 

violation of these six points. 

Finally, I have come to support the use of public funds for candidates for Federal office who meet reasonable fundraising thresholds of small contributions from within their district. The cost is 

minimal. The benefits to the anticorruption effort are powerful. 

‘‘We, the people’’ is the phrase that guides us, not ‘‘we, the strongest,’’ not ‘‘we, the best and brightest,’’ not ‘‘we, the biggest.’’ ‘‘We, 

the people.’’ 

The system is not broken, Mr. Chairman. It is bought. Action is 

necessary for a nation at risk. We need a speed limit on the highway to prevent and protect against corruption and the appearance 

of corruption. Just a speed limit, not a ban. Broad limits, bright 

sunshine—a Republic. 

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

for the record.] 

Chairman DURBIN. Thank you, Governor Roemer. 

Next is Ilya Shapiro. He is a senior fellow in constitutional studies at the Cato Institute. Mr. Shapiro is an editor in chief of the 

Cato Supreme Court Review. He frequently provides commentary 

on political and legal issues for major news outlets. Mr. Shapiro 

lectures regularly on behalf of the Federalist Society. He was an 

Inaugural Washington Fellow at the National Review Institute. He 

has worked as an adjunct professor at George Washington University Law School. Prior to joining Cato, Mr. Shapiro was a litigator 

in private practice, earned his law degree from the highly regarded 

University of Chicago and, after graduating, clerked for Judge 

Grady Jolly on the U.S. Court of Appeals for the Fifth Circuit. 

Mr. Shapiro, please proceed. 

STATEMENT OF ILYA SHAPIRO, SENIOR FELLOW IN CONSTITUTIONAL STUDIES, CATO INSTITUTE, WASHINGTON, DC 

Mr. SHAPIRO. Mr. Chairman and distinguished Members of the 

Subcommittee, thank you for this opportunity to discuss campaign 

finance law. 

Let me first note that Citizens United is one of the most misunderstood, high-profile cases ever, so I will review what the case 

actually said before discussing possible responses. 

Citizens United is both more important than you might think— 

because it revealed the instability of our system—and less important, because it does not stand for what many people say it does. 

Take, for example, President Obama’s famous statement that the 
16 

decision ‘‘reversed a century of law that I believe will open the 

floodgates of special interests—including foreign corporations—to 

spend without limit in our elections.’’ In one sentence, the former 

law professor made four errors of law. 

First, Citizens United did not reverse a century of law. The President was referring to the Tillman Act of 1907, which prohibited 

corporate donations to candidates and parties. Citizens United did 

not touch that. Instead, the overturned precedent was a 1990 case 

that, for the first and only time, allowed a restriction on political 

speech based on something other than corruption or the appearance thereof. 

Second, the ‘‘floodgates’’ point depends on how you define those 

terms. As you may have just read in the New York Times magazine, there is no significant change in corporate spending this election cycle. There are certainly people running Super PACs who 

would otherwise be supporting candidates directly, but Citizens 

United did not cause Super PACs, as I will get to shortly. And the 

rules affecting the wealthy individuals who are spending more—be 

they Sheldon Adelson or George Soros or the Waltons—have not 

changed at all. It is unclear that any floodgates have been opened 

or which special interests did not exist before. 

Third, the rights of foreigners—corporate or otherwise—is another issue about which Citizens United said nothing. Indeed, just 

this year the Supreme Court summarily upheld the restrictions on 

foreign spending in political campaigns. 

Fourth and finally, while independent spending on elections now 

has few limits, candidates and parties are not so lucky, and neither 

are their donors. Again, Citizens United did not affect laws regarding individual or corporate contributions to candidates. 

More important than Citizens United was SpeechNow.org, decided two months later in the D.C. Circuit. That case removed the 

limits on donations from political action committees, thus making 

these PACs ‘‘super’’ and freeing people to pool money the same way 

one rich person can alone. 

And so if you are concerned about the money spent on elections— 

though Americans spend more on chewing gum and Easter candy— 

the problem is not with the big corporate players. This is another 

misapprehension: Exxon, Halliburton, and all these ‘‘evil’’ companies—or even the ‘‘good’’ ones—are not suddenly dominating the 

political conversation. They spend little money on political advertising, partly because it is more effective to lobby, but even more, 

why would they want to alienate half of their customers? As Michael Jordan famously said, ‘‘Republicans buy sneakers too.’’ 

On the other hand, groups composed of individuals and smaller 

players now get to speak: your National Federations of Independent Business and Sierra Clubs, your ACLUs and Planned Parenthoods. So even if we accept ‘‘leveling the playing field’’ as a 

proper basis for regulation, the freeing up of associational speech 

levels that field. 

Moreover, people do not lose rights when they get together, be 

it in unions, advocacy groups, clubs, for-profit companies, or any 

other way. 
17 

Now, I have reviewed the various proposals introduced to remedy 

some of Citizens United’s perceived ills. The gist is that if only we 

can eliminate private money, elections will be cleaner. 

The underlying problem, however, is not the underregulation of 

independent spending, but the attempt to manage political speech 

in the first place. Political money, is like water: It will flow somewhere, because what the government does matters, and people 

want to speak about their concerns. To the extent that ‘‘money in 

politics’’ is a problem, the solution is to reduce the political scope 

that the money can influence. Shrink government and you will 

shrink the amount people spend trying to get their piece of the pie. 

While we await that shrinkage—and my Cato colleagues have 

suggestions if you are interested—we do have to address the core 

flaw in campaign finance. That original sin was committed by the 

Supreme Court, not in Citizens United but in the 1976 case of 

Buckley v. Valeo. By rewriting the Federal Election Campaign Act 

to remove spending limits but not contribution caps, Buckley upset 

Congress’ balanced reform. That is why politicians spend all their 

time fundraising. Moreover, the regulations pushed money away 

from candidates and toward advocacy groups—undermining the 

worthy goal of government accountability. 

The solution is obvious: Liberalize rather than restrict the system. Get rid of limits on individual contributions and then have 

disclosures for those who donate amounts big enough for the interest in preventing corruption to outweigh the potential for harassment. Then the big boys will have to put their reputations on the 

line, but not the average person. Let the voters weigh what a donation source means to them rather than—with all due respect—allowing politicians to write rules benefiting themselves. 

In sum, we now have a system that is unbalanced and unworkable. At some point, enough incumbents will feel that they are losing message control so that they will allow fairer political markets. 

Earlier this month, for example, the Democratic Governor of Illinois signed a law allowing unlimited contributions where there was 

significant independent spending. This is political self-preservation, 

but that is fine. Once more politicians realize that they cannot prevent communities from organizing, they will want to capture more 

of their dollars. Stephen Colbert would then have to focus on other 

laws to lampoon, but I am confident that he can do that, and we 

will be better off. 

Ultimately—and I will conclude with this, Mr. Chairman—the 

way to ‘‘take back our democracy’’—to invoke this hearing’s name— 

is not to give government more power to decide who should speak 

and how much. 

Thank you again for having me. I welcome your questions. 

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

for the record.] 

Chairman DURBIN. Thank you very much, Mr. Shapiro. 

Lawrence Lessig is a professor of law at Harvard Law School and 

director of the Edmond J. Safra Center for Ethics at Harvard University, a nationally recognized scholar, author, speaker. Professor 

Lessig is one of our Nation’s leading authorities on constitutional 

law and campaign finance reform. Prior to teaching at Harvard, 

Professor Lessig clerked for Judge Richard Posner on the Seventh 
18 

Circuit Court of Appeals in Chicago and subsequently for Justice 

Antonin Scalia on the U.S. Supreme Court. In addition to serving 

on the boards of other nonprofit organizations, Professor Lessig is 

on the Advisory Board of the Sunlight Foundation, an organization 

dedicated to using the Internet and technology to foster a more 

open and transparent government. Many of our witnesses make 

many sacrifices to appear before us, but none makes a greater sacrifice than your son, who interrupted his family vacation to accompany his father to this hearing, so we thank him for joining us. 

[Laughter.] 

Chairman DURBIN. Professor Lessig, the floor is yours. 

STATEMENT OF LAWRENCE LESSIG, ROY L. FURMAN PROFESSOR OF LAW AND LEADERSHIP, HARVARD LAW SCHOOL, 

CAMBRIDGE, MASSACHUSETTS 

Mr. LESSIG. Thank you, Mr. Chairman, and I commend this 

Committee for holding this hearing, which is really a celebration of 

the extraordinary grassroots movement led by new organizations, 

such as Free Speech for People and Move to Amend, and more established organizations, such as People for the American Way and 

Common Cause, that has developed to demand the reversal of Citizens United and an end to the system for funding elections that 

leads most Americans to believe that this government is corrupt. 

Yet this hearing could only be the beginning of the serious work 

that will be required to address the problem in America’s democracy that Citizens United has come to represent, and that problem 

can be stated quite simply: The people have lost faith in their government. They have lost the faith that their government is responsive to them because they have become convinced that their government is more responsive to those who fund your campaigns. As 

all of you—Democrats, Republicans, and Independents alike—find 

yourselves forced into a cycle of perpetual fundraising, you become, 

or at least most Americans believe you become, responsive to the 

will of the funders. Yet the funders are not the people; 0.26 percent 

of Americans give more than $200 in a congressional campaign, 

0.05 percent give the maximum amount to any congressional candidate, 0.01 percent, the one percent of the one percent, give more 

than $10,000 in an election cycle. And in the current Presidential 

election cycle, 0.000063 percent—that is 196 citizens—have funded 

80 percent of the indivdual Super PAC contributions so far. 

There are two elections in America today—not the primary and 

general election, but the money election and the voting election. 

And to win the voting election, you must first compete in the 

money election. But unlike the voting election, not every citizen can 

participate equally in the money election. Instead, it is only the 

very few who can compete at all. And it is because of this money 

election that we have evolved a system in which the elected are dependent upon the tiniest slice of America. Yet that tiny slice is in 

no way representative of the rest of America. 

This, Senators, is corruption. It is not corruption in the criminal 

sense. I am not talking about bribery or quid pro quo influence 

peddling. It is instead corruption in a sense that our Framers 

would certainly and easily have recognized. They architected a government that in this branch, at least, as Federalist 52 puts it, 
19 

would be ‘‘dependent upon the people alone,’’ but you have evolved 

a government that is dependent upon the people and dependent 

upon the funders. And that different and conflicting dependence is 

a corruption of our Framers’ design, now made radically worse by 

the errors of Citizens United. But in responding to those errors, please, do not lose sight of one 

critical fact: On January 20, 2010, the day before Citizens United 

was decided, our democracy was already broken. Citizens United 

may have shot the body, but the body was already cold. And any 

response to Citizens United must also respond to that more fundamental corruption. 

Now, how you do that—how you do that—will be as important 

as what you do. For America’s cynicism about this government, 

whether fair or not, is too profound to imagine that this Congress 

alone can craft a response that would earn the confidence of the 

American people. Instead, this Congress needs to find a process 

that could discover the right reforms that itself could earn the trust 

of the American people. That process should not be dominated by 

politicians or law professors, indeed, by any of the professional institutions of American Government. It should be dominated instead 

by the people. 

I have submitted today to this Committee the outline of one such 

plan, what I called a series of ‘‘citizen conventions,’’ constituted as 

a kind of civic jury and convened to advice Congress about the best 

means for reform. But whether it is this process or another, your 

challenge is to find a process that could convince America that a 

corrupted institution can fix itself. 

The confidence of the American people in this government, in 

you, is at a historic low. That is not because of the number of 

Democrats sitting in Congress. It is not because of the number of 

Republicans. And it will not change simply by changing the number of Democrats or Republicans sitting in Congress. Instead, confidence is at a historic low because of the dependence that all of 

you and all of us have allowed to evolve in this government that 

draws you away from a dependence upon the people alone. 

I thank you for the beginning this hearing represents, and more 

importantly, I thank the extraordinary citizens who have united to 

get you to focus upon this issue. But I urge you now to act in a 

way that has a real chance to restore that confidence of the people 

in their government. 

Thank you very much. 

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

for the record.] 

Chairman DURBIN. Thank you, Professor Lessig. 

Let me just note for the record here that at 3:40, in just a few 

moments here, we are going to suspend the hearing for a moment 

of silence. It is the 14th-year anniversary of the death of two of our 

Capitol Hill policemen, and across Capitol Hill that moment of silence will be acknowledged. So I will let you know when that arrives. But until then, we will continue to pursue the questioning 

here. 

Professor Lessig, one of the things I found interesting in your 

testimony—you did not mention it, but as written—is this notion 

of a citizens convention. Most of the constitutional amendments 
20 

that are being proposed talk about actually changing the Constitution. You have taken it a step beyond that, have you not, in terms 

of opening it up to a much different process to bring in a lot of new 

voices. 

How do you guarantee that a citizens convention is not overwhelmed by these same oligarchs? 

Mr. LESSIG. So the process that I have described of the citizen 

conventions would be conducted in the way that, for example, Professor Fishkin of Stanford has conducted, what he calls ‘‘deliberative polls.’’ So in this procedure, we take a random selection of, let 

us say, 300 citizens. Imagine we run four of these conventions 

around the country, one in each region, four regions in the country. 

And these 300 citizens would act as a jury—as a jury that would 

listen to the submissions of people about what these issues are and 

what the solutions are and they would deliberate. And they would 

deliberate—in my view, they should be sequestered, they should be 

compensated, they should be protected so that they can do their 

work like any jury can do its work with the confidence and protection necessary. But in that process, we would involve a cross-section, a representative random cross-section of the American public. 

And my view is this process is necessary because, as Americans 

look to this institution and, frankly, to people like me, law professors or lawyers who talk about this issue, their eyes glaze over because they cannot believe that the institution has the capacity to 

change itself to deal with what is the core problem. 

So that is the way that bringing in another voice into this process could aid this Congress, I believe, in thinking about what response might actually earn the trust of the American people. 

Chairman DURBIN. Governor Roemer, when you served in the 

House of Representatives, I do not know if you raised money in the 

same fashion as you did during your Presidential campaign. But 

you certainly got to see a contrast to your approach in the Republican Presidential primary when one Las Vegas casino magnate, as 

he is generally referred to, decided to bankroll one of your opponents, Newt Gingrich, and put $20 or $30 million in and promised 

more if needed. 

Tell me how the dynamics of the campaign were affected by that 

decision. 

Mr. ROEMER. To your first point, when I was a Member of the 

House of Representatives, I chose not to accept PAC money. I think 

I was the only Member who made that choice. I came from a State 

that had a culture, a history of tolerance of political corruption, if 

I could say that gently. I love Louisiana. Let me say that clearly. 

I ran for Governor in that State as the only candidate not to take 

PAC money. I had no chance. I was sixth in a five-man race. But 

I won in the end with less money but making money the issue. So 

I know this can be done. 

When I ran for President this time, after being out of politics for 

20 years—and very happy, Senator, let me just say the best 20 

years of my life. Building community banks is what I do. No Federal bailout money, just lean and clean and profitable. 

When I ran for President thinking that maybe we could connect 

with the American people on the issue of money, I found a couple 

interesting dynamics that surprised me. One is the whole public 
21 

out there depends on the debates as to their impressions of people, 

and every Republican in that race kind of had their moment in the 

sun. They would rise and fall with those debates. 

Well, interestingly enough, I was the only candidate running who 

had been elected Governor and a Congressman and was a successful businessman, and I was not invited to a single debate—not one 

of the 23 nationally televised debates. And you have known me for 

a long time. I love the debates. I mean, that is where I am alive. 

And I think I made a mistake, Mr. Chairman. I gave a speech in 

Iowa early in February 2011, and it was Romney, Santorum, and 

several others were there, Newt Gingrich. And I got the only standing ovation, and I had talked about eliminating the ethanol subsidy 

and the oil subsidy. 

I mean, the 1,200 people in that room were like stunned about 

the sacrifices that we have to make to get this government strong 

again. And I talked about their sacrifice and mine, and I got a 

standing ovation. I was not invited to another debate after that. I 

just could not raise the money. 

So I have found, much to my surprise, after 20 years gone, that 

politics had changed. And it is like Larry Lessig, a friend—I trust 

Larry completely. It is like Larry Lessig just said. There are two 

races that you run: the race for money and then the race for votes. 

And what I tried to do running for President was to run the race 

for money so that I would be free after elected to do the right thing. 

And I would not have to call Wall Street for bank reform. I would 

not have to. I would listen to them, but I would not have to call 

them. I would not have to have a fundraiser there. I would not 

have to go to the top of the money pile to get my answers. And I 

found that it affected everything I do. 

I raised about three-quarters of a million dollars, the average gift $45. I was the only candidate that got Federal matching funds at 

the end. I qualified. I had it from all 50 States. I paid my bills, and 

I returned a substantial amount of money back to the Federal 

match. It can be done. But you have got to get on the debate, and 

it is all about the money. 

Chairman DURBIN. Thank you. 

Mr. Shapiro, if this were a trial and you were a witness, the first 

question I would ask you is the following: Is it true that you are 

here representing the Cato Institute, which is, in fact, financed 

largely by the Koch brothers, whom you are defending in terms of 

their contributions to Super PACs? Should you have recused yourself under those circumstances? 

Mr. SHAPIRO. No. 

Chairman DURBIN. Do you want to turn your microphone on, 

please? 

Mr. SHAPIRO. The answer to that question as a whole and the 

various subparts is no. I am here representing myself. Whenever 

we speak as Cato scholars, we use our institutional affiliation for 

identification purposes. Some of my colleagues might disagree with 

something that I said today. I do not know. And I guess if they disagree too much, or at least if the management does, I might get 

fired. I do not know. But the Koch brothers have not financed Cato 

in the last several years. As you may know, they sued Cato recently. Thankfully, it seems that that lawsuit is working toward a 
22 

settlement now. The Kochs represented less than two percent of 

Cato’s donations in the last decade. 

I have received funding through Koch sources over the course of 

my career and when I was a student to attend seminars and things 

like this. I do not generally have a problem with the sorts of things 

that the Kochs are doing, but I am certainly not bought or paid for 

by any more than I am bought or paid for any other number of 

Cato donors. We are hired because we believe in libertarian ideas, 

and some people want to fund those ideas, and I am grateful for 

that, because if they did not, then I guess I would have to go and 

be a litigator again. 

So there you go. 

Chairman DURBIN. Thank you. My time is up. 

Senator WHITEHOUSE. And I remind you that at 3:40 we will 

take a moment. 

Senator WHITEHOUSE. Go ahead. 

Chairman DURBIN. Senator Coons, would you like to go first? 

Senator COONS. I want to thank Senator Durbin for chairing and 

convening this hearing, and I would like to particularly thank Senator Udall for his testimony before and for his leadership in sponsoring a constitutional amendment, which I was pleased to join. 

And I do think this amendment, although it does not include express limits on campaign spending, makes an important step forward in restoring the power of this body to regulate campaign finance as well as the States. So I wanted to, if I could, address a 

series of questions to you while being mindful of the impending moment of silence. 

First, if you would, Mr. Shapiro, I was struck at your passion at 

advocacy for disclosure, something that was long shared by a broad 

range of Members of this body, Republican and Democrat. How do 

you account for the complete abandonment of disclosure as a principle by Members of the other party? We recently took a floor vote 

on the DISCLOSE Act, which I thought would have been an important step forward toward dealing with some of the challenges of our 

current campaign financing system. How do you account for the 

complete absence of any support for broader disclosure in the current campaign financing environment? 

Mr. SHAPIRO. Well, I do not speak for the Republican Party, of 

course. I can tell you what I think about the DISCLOSE Act, which 

may or may not parallel the thinking of some of your colleagues on 

the other side of the aisle, and that is that the DISCLOSE Act is 

more about deterring speech than about disclosure, and it is certainly different from the type of regime that I would have in mind 

that I was passionately advocating, as you say. 

I think the George Soroses and Sheldon Adelsons and Kochs of 

the world should have to disclose if they are making major multimillion donations, but under the current regime, you know, the 

maximum donation is $2,500. I think that is too low. I do not think 

any politician—I think more highly of you, Senator Coons, than to 

think that you can be bought by a $2,500 donation, for example. 

And so I am for certain types of disclosure, but there are a lot of 

problems with the DISCLOSE Act, both in the numbers and exemptions for unions and other things like that. 
23 

So with another type of disclosure regime, I think you might see 

other types of votes. 

Senator COONS. Professor Lessig, your colleague to your left 

there suggested that Citizens United did not really overturn settled 

law. Any difference of opinion on that point? 

Mr. LESSIG. Very strong difference of opinion. In particular, I 

guess I take some—well, I would not say ‘‘offense,’’ but I want to 

say it is a little bit harsh to say that the President, a former constitutional law professor from your law school, was in error in his 

characterization of Citizens United. I do not think he was in error 

at all. What he said was that it overturned a century’s law, and 

what he was referring to was the very clear indication in the Supreme Court, explicitly articulated by Justice Scalia, that they 

would not treat the First Amendment as making any distinction 

based on speaker. And the assumption that you could regulate on 

the basis of the difference of speaker was fundamental from the 

Tillman Act on. So that is why the Tillman Act has a very specific 

regulation of corporations, and there was in Taft-Hartley a different set of regulations around unions than around corporations. 

And, quite frankly, that principle the Supreme Court itself has now 

abandoned, as Justice Stevens recently commented in a speech 

when the Supreme Court upheld limitations on legal immigrants 

participating in the political process while striking down limitations on corporations participating in the political process. 

So, quite frankly, it is the Supreme Court that I would criticize 

as confused in this particular area, not the President. 

Senator COONS. Thank you, Professor. If I might, I will note we 

have reached the moment. 

Chairman DURBIN. Excuse me, Professor Lessig and Senator 

Coons. 

I might note for those who were not aware that, 14 years ago, 

Capitol Hill Police Officer Jacob Chestnut and Detective John Gibson of the U.S. Capitol Police were killed in the line of duty defending the Capitol, the people who work here, and its visitors against 

an armed intruder. And for those who are physically able, I would 

ask you to please rise for a moment of silence. 

[Moment of silence.] 

Chairman DURBIN. Thank you very much. 

Senator Coons, please proceed. 

Senator COONS. Thank you, Mr. Chairman. 

I will, just in closing, remark on our gratitude for the men and 

women of the Capitol Police who protect us each and every day and 

protect the many folks who work here and the many citizens who 

come here to offer their testimony and their witness. 

Professor Lessig, if I might just in closing, you offered a tantalizing vision of how we might mobilize broadly the citizens of this 

country to become, in effect, real Citizens United to galvanize action by the Senate. If you could just explain in a little more detail 

how you think an effective citizen convention might move us toward effective action in campaign finance reform. 

Mr. LESSIG. Well, I think the most difficult problem here is that 

this is a difficult problem to solve. Unlike the 17th Amendment, 

which when it changed the Senate from being appointed by State 

legislatures to be elected by the people, that solution was a simple 
24 

one to craft. Everybody understood how to do it. The words were 

not in contest. 

What we have seen in the range of proposals here is that it is 

a really complicated question, and it should be carefully deliberated 

upon in a way that could bring people into the conversation much 

more effectively than, frankly, any hearing process could inside of 

the U.S. Congress. 

So my suggestion is if we had a process that was open and observed by people, where ordinary people participated—and I have 

run mock conventions of ordinary people talking about constitutional matters—I think to the surprise of many people, you would 

see that ordinary people deliberating about what the Constitution 

needs and how the reforms should go forward would far surpass 98 

percent of what is commonly discussed in this particular context. 

And that is because, frankly, politics is the one sport where the 

amateur is better for the Nation than the professional, because the 

professional is very good at figuring out what the particular interests that he or she represents needs, but the amateur can be 

brought to a point where he or she thinks about what the Nation 

needs. And I think we need at least that part in this process. 

So if this Congress convened a series of citizen conventions that 

could advise Congress—it would have no legal authority, of course, 

but if run in the right way, it could advise Congress in a way that 

could make people look at it and say, OK, if four of these conventions have said the following amendments make sense and Congress then proposes those amendments, we have a reason to have 

some confidence that this might actually be a way to solve the 

problem. 

Senator COONS. Professor Lessig—I see I am out of time—that 

is a very, I think, compelling proposal. It is sort of harkening to 

what is at the heart of our jury system, our grand jury system, and 

how average citizens are empowered in our system, or should be, 

to make fundamental decisions both about the substance and the 

process of governing. 

Governor Roemer, I just want to say thank you for your very 

strong example. 

Mr. ROEMER. Thanks. 

Senator COONS. It is a striking example that you were not engaged in the debate so that your voice was really not a part of the 

Presidential campaign. 

Mr. ROEMER. Well, as the only non-lawyer around these parts— 

you know, and I never admit to going to Harvard undergraduate 

and the Harvard Business School when I am in Louisiana, but I 

think I am far enough away now to go ahead and admit that. 

[Laughter.] 

Mr. ROEMER. But as a former Senator would always say when he 

fought civil rights legislation, talking about the distinction that 

Larry made between the professional politician—us—and the average citizen, as Russell of Georgia would say, ‘‘It is not about the 

poll tax. It is about States’ rights.’’ Of course, we knew what it was 

about. And citizens meeting to focus on what is needed to make our 

Constitution real would be powerful. I think it is a great idea. 

Chairman DURBIN. Senator Whitehouse. 
25 

Senator WHITEHOUSE. Governor Roemer, you will be pleased to 

know that States’ rights has declined a bit in its stature around 

here once it became a potential place for credit card customers to 

get out from under the rules that are set in South Dakota or people 

were trying to avoid the gay marriage licenses of other States. I 

think that was a doctrine of convenience then, and interesting that 

you should bring it up. 

Professor Lessig, the Supreme Court in Citizens United said, and 

I quote: ‘‘Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.’’ 

What was it doing when it said that? Is that a judicial determination? Is that a conclusion of law? Is that an act of taking judicial notice? What were they doing? 

Mr. LESSIG. I think they were blundering when they said that. 

Senator WHITEHOUSE. We know that, because we know that they 

were wrong. 

[Laughter.] 

Mr. LESSIG. And as I have written, I think they were blundering 

in a way that harkens back to the mistake of the Supreme Court 

in the Lochner era, where in a similar way, the Court, sitting high 

above the legislative process, looked down and reviewed what the 

legislature had said about whether health legislation was actually 

affecting the health of workers, and said, ‘‘We do not buy it. We 

do not think it affects the health of workers. We think it is really 

about taking money from the capitalist and giving it to the workers, so we are going to strike it down.’’ 

A judicial finding of fact based not upon evidence—there was no 

submission to suggest this—— 

Senator WHITEHOUSE. In fact, they went well out of their way to 

make sure that there was no record that might give contrary evidence to the finding of fact that they made. 

Mr. LESSIG. Absolutely. And, actually, in the Montana case, the 

most striking thing, I think, about the Montana case was the 

Court’s decision to summarily reverse the Montana case when the 

Montana Supreme Court’s appeal was chock full with all the arguments necessary to see why this is a kind of corruption, this current system is a kind of corruption. But the current Court is dominated by Justices who believe the only corruption that is relevant 

is quid pro quo corruption. 

Senator WHITEHOUSE. Criminal corruption was your testimony. 

Mr. LESSIG. That is right. But from the Framers’ perspective, 

that is outrageous. The Framers of our Constitution were more concerned with the systemic, what Buddy called the ‘‘institutional corruption,’’ than they were worrying about whether there would be 

the Randy Duke Cunninghams or William Jeffersons inside of Government. They were worried about setting up a system that would 

create the right incentives, the right dependencies. And what we 

have seen now is a corruption of that—— 

Senator WHITEHOUSE. They talked about that in the debates that 

led to the Constitution, and they used the very word ‘‘corruption’’ 

in those discussions, and it was sort of the opposite side of the coin 

of integrity of government. 

Mr. LESSIG. Absolutely. That is exactly right. 
26 

Senator WHITEHOUSE. Now, you used to clerk for Judge Posner, 

did you not? 

Mr. LESSIG. I did. 

Senator WHITEHOUSE. Recently, Judge Posner critiqued the Citizens United decision. He is a very conservative judge, so it was interesting coming from him. He said, and I quote, ‘‘Our political system is pervasively corrupt due to our Supreme Court taking away 

campaign contribution restrictions on the basis of the First Amendment.’’ 

Do you have a sense of what he meant using the phrase ‘‘pervasively corrupt’’ ? 

Mr. LESSIG. I think that he is referring to the kind of corruption 

that I am talking about, and in this sense, this is the way in 

which—I want to take more distance from Mr. Shapiro’s testimony. 

When Mr. Shapiro and libertarian organizations say the solution to 

this problem is just to remove all limits so that we do not have any 

caps on the amount that people can give directly to campaigns or 

indirectly to campaigns, let us just have disclosure but no limits, 

that does not in any way respond to the kind of corruption that I 

am talking about, because what we have seen—and Montana, 

again, submitted evidence about this—is that when you remove 

limits, overwhelmingly the pattern is for campaign contributions to 

go up dramatically so that we concentrate even more fundraising 

in the tiniest slice of the one percent in a world where there is no 

limits. So we would go to a world where maybe 1,000 families 

would be funding all the campaigns in a world where there are no 

limits on campaigns, and that would be more corruption relative to 

the current system in the framework that I think the Framers gave 

us for thinking about how to keep this institution non-corrupt. 

Senator WHITEHOUSE. And if you go behind the—I agree with 

you. It is a judicial finding of fact. You are an expert in appellate 

law as well. Let me start with: What is the role of ab initio judicial 

findings of fact at the Supreme Court level? 

Mr. LESSIG. Well, the Supreme Court has learned again and 

again the high costs that it suffers when it engages in exactly that 

kind of behavior. It is striking that it forgets it again and again, 

but it learns it again and again after—— 

Senator WHITEHOUSE. Because it seemed a little convenient in 

this case, but I will—— 

Mr. LESSIG. That is right. And I think that the Court’s opinion, 

to the extent that it says that the people cannot perceive this as 

corruption, just cannot stand, because, of course, the people are 

pretty good at perceiving this as corruption. And there is all the 

reason in the world for them to perceive it as corruption, not necessarily the corruption that says that anybody is being bought—so, 

again, it is not the question of whether $2,500 buys a Senator or 

not—but from the perspective that what it does is guarantee that 

you are constantly focused on what the 0.05 percent of America 

cares about so that you can win in the money race so that you have 

a shot in the voter election. 

Senator WHITEHOUSE. And as a matter of traditional appellate 

practice, judicial findings of fact are supposed to be made at the 

trial court level or by a jury. 

Mr. LESSIG. That is true. 
27 

Senator WHITEHOUSE. And not by either intermediate or ultimate 

appellate courts, correct? 

Mr. LESSIG. That is right, although in constitutional context, the 

Court has a significant role in making what is thought of as constitutional findings of fact like this. But what is so striking 

about—— 

Senator WHITEHOUSE. This is not constitutional finding of fact. 

This has to do with the behavior of human beings in a political environment. 

Mr. LESSIG. It does. 

Senator WHITEHOUSE. And whether or not somebody will be corrupted by, say, a secret, multimillion-dollar expenditure made on 

their behalf by a special interest. The notion that that cannot happen seems to me to be absurd. 

Mr. LESSIG. OK. You can—you should say that. As a law professor, I should avoid that word because my students will have less 

respect for what I say. But it is something that I think is deeply 

troubling in that decision. It is one of the core mistakes of that decision—a decision, though, that—let me say that the kernel of that 

decision, the idea that Congress should not be able to silence or effectively silence anybody, you could agree with, without agreeing 

with the implication that the Court made from that decision, that 

basically Congress has no power to intervene to try to limit the corrupting influence on this democracy. 

Senator WHITEHOUSE. And I would conclude by asking you, I 

hope, a very short question. What we I think both agree is an inaccurate finding of fact that they made stood on two subordinate 

findings that they also made. One is that—or presumptions that 

they made. One is that these expenditures would, in fact, be independent, and the second is that they would be disclosed. Are either 

of those legs borne out by the facts in Citizens United? 

Mr. LESSIG. They are certainly not disclosed. The Court was mistaken in its understanding of the extent of disclosure obligations. 

But even if we assume that they are independent in the sense that 

nobody is behind the doors agreeing on ways to coordinate, what 

we have understood from antitrust law since the beginning of antitrust law is that there are ways to coordinate without explicit 

agreement. And when you are looking at the same polling data, the 

Super PAC and the campaign, and you understand the same data 

supports the same response, you do not have to actually pick up 

the telephone and make any agreement—— 

Senator WHITEHOUSE. Well, throw in former staffers, family 

members running it, the same consultants on both sides of the 

equation, the Super PACs using actual footage from the candidates’ 

campaigns, and, frankly, I think your competitor, Mr. Santorum, 

actually won in Minnesota only through his Super PAC. So it does 

not seem to be holding up very well. 

I should yield. I have gone over my time. 

Mr. ROEMER. And the lead benefactor, Senator, was standing behind Rick when he gave his victory speech in the central part of 

America—I think it was Missouri that night—and there was no coordination. He just was four feet away from him. 

[Laughter.] 

Senator WHITEHOUSE. Thank you, Governor Roemer. I yield. 
28 

Chairman DURBIN. Senator Klobuchar. 

Senator KLOBUCHAR. Well, thank you very much, Mr. Chairman. 

Thank you for holding this hearing. Since we are mentioning the 

Midwest, it is a good time for me to talk. 

I am someone who is up for office now and have seen firsthand 

what is going on here, and I truly believe that unless we fix this, 

we are going to literally undermine our elections and our democracy. And my first question is really just about how this has rolled 

out, and I guess for you, Governor Roemer, having been in the middle of it, I think most people anticipated that corporations would 

give a lot of money, and I think that they are, through 501(c)(4)s, 

which is really hard to track down, which is part of the DISCLOSE 

Act. But I am not sure anyone anticipated that individuals would give to this extent, that one billionaire would write a $10 million 

or a $15 million check, and how the influence that that one person 

can wield over an individual, I think, was something that was not 

at first anticipated when this came out. And I wondered if you 

could comment on that, Governor Roemer? 

Mr. ROEMER. I think you are absolutely correct, Senator. I read 

nor spoke with anyone—I read anything that anybody wrote or 

spoke to anyone who a year and a half ago predicted this onslaught 

of individual wealth and large checks. But the pattern has been 

coming for a number of years, and one of the interesting things to 

me, as kind of a populist at heart, you know, being from that cotton 

farm in north Louisiana and I cannot get away from it, the lessons 

learned, is how distant the average person has become from the 

process, which includes the money. And it is not healthy. And they 

are angry about it. If you get the meeting room to express their 

fear and their anxiety, it is like it will bring the room to a stop. 

So I am here to—I am not a constitutional lawyer. I get my advice from Larry. I apologize, and I admit that. The first person I 

went to see when I decided in December 2010 to run for President, 

the first person I went to see the first week in January 2011 was 

Larry Lessig. We had never met. We had a mutual friend, a guy 

named Mark McKinnon, who is a political strategist who helped me 

run my campaign for Governor. And Mark and I were close, and 

I gave Mark the speech at my family meeting—Mark is like part 

of my family—that I was running for President, $100 limit, no 

PACs, no Super PACs, full disclosure, and let us get it on. I remember the speech. I will not go through it now. 

Senator KLOBUCHAR. Thank you. I only have seven minutes. 

Mr. ROEMER. I know. Mark says, ‘‘Well, you have got to call 

Larry Lessig,’’ and he gave me the number. And that is when Larry 

and I met, and we have worked together. We do not always agree 

but work together. But one of the surprising things to, I think, both 

of us is the lack of credibility and feasibility of a candidacy if you 

do not embrace the big checks, because you cannot win. Wow. 

Senator KLOBUCHAR. Yes. You know, one of the things that I 

think is just so ironic here is anyone that is running, if you are a 

candidate, you disclose everything that is over $200, and it is out 

there, everyone can see it. And that is one of the beauties of our 

laws right now. And you can disagree with people who are giving, 

but at least you know who it is. And this has completely decimated 

that. 
29 

And I also was wondering, Professor Lessig, if you could talk a 

little bit about what effect you think this could have legally on 

some of the down-ballot races, not just the congressional races but 

State and local and what could happen there. I know in my State 

we have campaign finance laws that allow for matching funds, 

which has evened the playing field somewhere, where there is public funding for half the money basically for legislative races, and 

what you could see happening here. 

Mr. LESSIG. Well, it is certainly the case that this business model 

of the Super PAC, which because of changes in the last has become 

an extremely effective vehicle for large donors to channel their influence, is spreading not just at the Federal level but at the State 

level, even the local level. In my testimony, I pointed out a Denver 

school board race which is in the hundreds of thousands of dollars 

in contributions and expenditures for a school board position that 

was facilitated by exactly this kind of dynamic. 

And so you are going to see this happen across the board because, as campaign managers begin to think about what is the 

most effective device for channeling money into a political election, 

these Super PACs will serve it. 

There have been three very important counter examples to this— 

Arizona, Maine, and Connecticut most recently—which have tried 

to facilitate small-dollar-funded elections. I do not like to call it 

‘‘public funding’’ because it evokes a different idea—small-dollarfunded elections where people need to raise a certain amount of 

money in small-dollar contributions and those then get to be 

matched—this was the model, of course, the Fair Elections Now 

Act proposed—has dramatically changed the way those State legislature elections work. 

In Connecticut, in the very first year of that system, 78 percent 

of the elected representatives ran with this small-dollar-funded system on both the Republican and Democratic sides of the aisle, 78 

percent of the elected representatives used that. So this convinces 

me that if we just get the numbers right and have a kind of smalldollar system inside of Congress, you just change the business 

model. This is just incentives. Change the business—— 

Senator KLOBUCHAR. Especially with the Internet, I mean, this 

was the hope, that you are able to reach out, as Governor Roemer 

knows, to more people on the Internet. But it completely gets overwhelmed by these $10, $15 million checks. 

My last question would be, obviously—I am a cosponsor of the 

DISCLOSE Act. I think it is important to disclose, but we all know 

that is not going to fix it. When you talk about your idea of citizens 

gathering for these basically constitutional conventions on the local 

level, how do you see this working with actually getting the amendment passed that it appears that we are going to have to pass to 

fix this? 

Mr. LESSIG. I think that these conventions should come up with 

their view of what the right answer looks like, and that should 

come back to this Congress, and this Congress should be required 

to then answer the view of these conventions: Here is what we 

think is should be, here is how Congress responds to that. And 

then hopefully the process comes to some convergence on what the 
30 

right answer looks like, which Congress could then introduce as an 

amendment that gets sent down to the States. 

This is a short circuit around the way the Framers thought we 

would bring the States and the people into this process, which is 

a constitutional convention or an Article V convention that the 

States call up on. A lot of people have problems with that. I have 

more faith in that system than most. But I think this system would 

at least bring citizens into the process at a time when the technology enables people to participate in a way that would be quite 

effective, but could product something valuable and useful for Congress to use in figuring out what the right answer looks like. 

Senator KLOBUCHAR. Thank you very much. 

Chairman DURBIN. Senator Blumenthal of Connecticut. 

Senator BLUMENTHAL. Thank you. Thank you, Senator Durbin. 

Thank you for convening this hearing, which I think is profoundly 

important for all the reasons that you have stated very eloquently 

as members of this panel and also the panel before. And the Congress has sought to wrestle with these issues, most recently in the 

DISCLOSE Act, which I have been proud to cosponsor. Obviously 

it would not impose any restrictions on the size of funding, only require that there be some greater measure of transparency and literally disclosure, which seems like a fairly modest and limited, 

very simple and straightforward way of remedying some—in a very 

limited way—some of the issues that have been raised. And, you 

know, your reference to the Connecticut system of public financing—which has been upheld by the courts—it was challenged while 

I was still Attorney General, and it has been upheld now. But I 

think that the combination of the 501(c)(4)s and the Super PACs 

threatens to make a mockery, literally to make a mockery, of any 

similar systems because the amounts of potential so-called independent financing will overwhelm the amounts available to candidates, and the test will really be not so much in this cycle as the 

next one, when there will be statewide campaigns for all the statewide offices, and we will see whether, in fact, these systems can 

survive that onslaught and deluge of money anonymously and in 

magnitudes that have not been seen in campaigns before. 

And so I think that, you know, the first question I would have, 

Professor Lessig, is whether, in fact, you can think of ways to 

change a Connecticut-type system to constrain or to overcome that 

threatened deluge. 

Mr. LESSIG. Well, I agree with Congresswoman Edwards’ comment earlier that this is a solution that requires—this is a problem 

that requires a three-legged solution. So disclosure is important 

and critical. That is leg one. 

I have been, every chance I can, saying a critical second leg has 

got to be the kind of citizen-funded elections that the Fair Elections 

Now Act would represent, or we have been talking about a voucher 

system. Congressman Sarbanes is considering introducing legislation that would start a pilot for a voucher system where individuals 

would have a democracy voucher that they could use to contribute. 

But a third thing has got to be a response to this constitutional 

problem the Supreme Court has created. So I do not think that 

there is a way, given the Supreme Court’s authority right now, to 

use the citizen-funded component to directly limit the opportunity 
31 

for independent expenditures But I do think if there is enough 

money in the citizen-funded component, you could overwhelm 

them. 

In the democracy voucher program that I have described, $50 a voter is $7 billion just for congressional elections. That is three 

times the total amount raised and spent in 2010. So that would be 

real money, and the critical thing is it would be coming from voters 

across the income spectrum, it would not be coming just from the 

tiniest slice of the one percent, which would be a significant way 

to make the funders the same as the people and so, therefore, 

eliminate the kind of corruption that I have been talking about. 

Senator BLUMENTHAL. And, you know, the problem is not so 

much raising the money that candidates need to qualify for the 

public support. It is what happens when the anonymous groups 

come forward and raise the ante and thereby overwhelm them. And 

what I hear you saying is, given the current constitutional jurisprudence from this Supreme Court, it would be very difficult to 

counter it. 

Mr. LESSIG. That is right, although there have been clever—or at 

least one very clever strategic response. So Congressman Sarbanes, 

again, finding himself drawn, because it is natural and more efficient, to only raise large-dollar contributions, did what I think has 

never happened in the history of the U.S. Congress where he bound 

himself through a legal document. He raised three-quarters of a 

million dollars and then said that he could not touch the threequarters of a million dollars until he raised 1,000 small contributions. And then on June 30th, he achieved his 1,000 small contributions. And the reason he did that was that if a Super PAC came 

in and attacked him, he would have 1,000 small contributors to 

turn to to say, ‘‘We need your help to respond to the Super PAC.’’ 

So that is a dynamic, to use small-dollar contributions, just many 

of them, to create a large army of potential supporters who could 

respond to that big money. But there is no way legally to restrict 

that big money so long as the Supreme Court’s doctrine remains. 

Senator BLUMENTHAL. I want to, in the time I have remaining, 

turn to a related issue, which is the damage done not only to democracy by Citizens United and some would say the only tangentially related social welfare organizations, because Citizens United 

itself is not the sole cause of the problems we face, but also the 

damage done to the Court itself by these decisions. And I worry 

about the credibility and even legitimacy of the Court. I know you 

have been a scholar, you have been a law clerk. I wonder if you 

could talk a little bit about that area and about possibly also the 

related area of a code of ethics that would be applied to the Supreme Court. We have talked about it here. Senator Durbin and 

others have raised it, and I have as well. So let me ask you that 

very general question. 

Mr. LESSIG. I frankly have been surprised in the last five to eight 

years with the carelessness the Court has displayed about the need 

to nurture and preserve the public’s confidence in that institution 

as being above the political fray. I think there is a willfulness that 

historically, not just in this Court but across other courts across 

the world, has led to the weakening of that kind of institution within a political system. So, you know, I think in the recent 
32 

Obamacare decision, it was an extraordinary act of political statesmanship, I think, that the Chief Justice did what the Chief Justice 

did, and I think it mirrors what Chief Justice John Marshall did 

in the decision of Marbury v. Madison, in a way to decide the case, 

actually, I think scholars will say, in a way that really helped the 

cause of limiting the scope of the Government’s power, but in a way 

that did not open up the institution to the charge that it was just 

behaving politically, deciding a case favoring Republicans at a time 

when Republicans controlled the Court. And the same thing, of 

course, has happened the other way around. 

So I am concerned that not all Justices are demonstrating that 

kind of, I think, sensitivity and awareness, and I hope that this decision begins to remind other Justices on the Court of how important it is not just to decide the cases rightly, but to decide the cases 

in a way that continues to earn the respect and confidence of the 

American people in that extraordinarily important institution. 

Senator BLUMENTHAL. And speaking extra—when Justices speak 

outside the courtroom, outside their opinions, or take positions or 

decline to conform to certain rules, all of it can affect the public 

perception of the Court. 

Mr. LESSIG. That is right. And, you know, one of the great—one 

of the things I agree with Justice Scalia about is his desire not to 

have cameras inside the courtroom, and one of the reasons I think 

that is a great thing is that it minimizes the extent to which people 

want to play to the public. And I think they should not want to 

play to the public. There should be people who are happy, like Justice Souter was, to be completely unrecognized and to be able to 

walk around Washington without anybody coming up and saying, 

‘‘Justice, let me shake your hand.’’ They should be focused on the 

job of deciding the cases in a way that is conforming to the law. 

And I worry that as they spend their whole lives on these courts 

and they live in this city where being well recognized and popular 

is so important, that some of that corrupts the way that institution 

begins to function as well. 

Senator BLUMENTHAL. Well, I thank you and all the members of 

this panel very much for your answers and your very helpful testimony today. I might just respectfully suggest that having cameras 

in the courtroom would not necessarily make them instantly recognizable as they walk around the streets of Washington, which is 

a good thing. 

Mr. SHAPIRO. I have no problem with cameras in the courtroom. 

[Laughter.] 

Senator BLUMENTHAL. Thank you. 

Chairman DURBIN. Thanks, Senator Blumenthal. This panel has 

been very accommodating, and we will probably have a very brief 

second round here, not as long as the first. I thank you for waiting. 

Mr. Shapiro, I am trying to put this in the perspective of my life 

as a public official, representing a State of close to 13 million people, about 500 miles long and an hour-and-a-half- to two-hour 

plane ride to head back to it, spending three or four days a week 

in Washington, going home to try to serve 102 counties in the 

State, and considering the next political campaign, which may in 

a State my size run in the neighborhood of $20 million. So at the 

time you would announce for re-election, you are faced with raising 
33 

$1 million a month, basically, to be competitive under the old rules, 

before the arrival of the Super PACs. 

Most Americans, I think, would be maybe a little embarrassed 

but certainly surprised at how much time Members of Congress 

spend talking about raising money and actually raising money. It 

is an enormous commitment of time—time away from Washington, 

time away from your State, time away from your family, generally 

spent with very nice people who, by and large, are not looking for 

much but generally are in higher-income categories, trying to raise 

enough money to be sure that at the end of the day your message 

gets out in the campaign. 

Now, air-drop in Super PACs, and you do not know what is going 

to happen in the closing days. So far a couple of our colleagues 

have faced $10 and $12 million of Super PAC negative advertising 

unanswered in their election campaigns. That is the new world 

that we live in. 

And so when you make the suggestion, as you have, that removing all limitations on the amount of money that can be donated to 

a campaign will lead to more people getting involved in the process 

and more donations, I have to look at the record that was presented to the Supreme Court by Montana. The Montana Supreme 

Court found that ‘‘the percentage of campaign contributions from 

individual voters drops sharply from 48 percent in States with restrictions on corporate spending to 23 percent in States without [restrictions].’’ 

Why? I think because unlimited contributions drive the fundraising business model away from small contributors to large contributions. And, second, small donors know their contributions will 

have a substantially diminished impact when there are no limits. 

So how do you respond, Mr. Shapiro, to others who say that the 

opposite true when the facts say that it does not help to increase 

voter participation and voter contributions? 

Mr. SHAPIRO. Mr. Chairman, I sympathize with your plight, and 

I offer you a solution. Remove contribution caps, and you will 

spend less time fundraising, as will all your colleagues. 

Chairman DURBIN. If I get to know Sheldon Adelson. 

Mr. SHAPIRO. There are plenty of billionaires on both sides. 

Chairman DURBIN. Is that really—— 

Mr. SHAPIRO. George Clooney and—— 

Chairman DURBIN. Is that our goal, to find the richest people in 

America and cozy up to them to finance our campaigns? That 

makes us a better democracy? 

Mr. SHAPIRO. Let voters decide based on knowing who is contributing. In 1968, the reason Gene McCarthy was able to stage his 

challenge to LBJ was because he had three donors who gave seven 

figures each. Without that, there would not be anything like that, 

or third-party—— 

Chairman DURBIN. I am not going to condone that, but when we 

have Sheldon Whitehouse’s DISCLOSE bill up so that the voters 

can decide based on who gives the money, we cannot get a single 

vote—well, I guess we got a few, a handful of votes from the other 

side of the aisle, but not enough. 

Senator WHITEHOUSE. Not one. 

Chairman DURBIN. Not one? All right. 
34 

Mr. SHAPIRO. Make the disclosure for really significant amounts 

and not small businesses that donate and then have the IRS sicced 

on them. 

Chairman DURBIN. Well, I certainly do not think that is the case. 

I think when you look at the statements made by leaders of the 

other party, consistently made, that disclosure is the best disinfectant and so forth, sunlight is the best disinfectant, clearly we have 

a very infected model right now because there is not much sunlight 

nor much disclosure, and we cannot get any bipartisan cooperation 

to move us in that direction. So if ultimately the decision is to be 

made by the voters, should they not at least have the information 

about who is playing in this game? 

Mr. SHAPIRO. I agree. That is why I propose raising or eliminating contribution limits along with setting the proper disclosure, 

and you can negotiate what that amount should be. 

Senator WHITEHOUSE. What should it be? What should it be? 

Mr. SHAPIRO. That would take a very difficult econometric analysis to perform. I am a simple constitutional lawyer . . . but on the 

order of half a million or something like that. It is not $10,000, it 

is not $2,500. It is where the interest in preventing the appearance 

of corruption overwhelms the interest in preventing harassment of 

various kinds. 

Senator WHITEHOUSE. Do you know how much, say, a general 

treasurer’s race in the State of Rhode Island costs to run? 

Mr. SHAPIRO. I do not. 

Senator WHITEHOUSE. But you are willing to say that 

$500,000—— 

Mr. SHAPIRO. It would depend on the race. I was talking about 

a—— 

Senator WHITEHOUSE. Presidential race? 

Mr. SHAPIRO. No, not a Presidential for that amount. I do not 

know. Like I said, I can pick numbers off the top of my head and 

I can pick on the fly right now, but—— 

Senator WHITEHOUSE. A congressional race, most congressional 

races come in for well less than $1 million. You are saying that you 

should not have to disclose a $499,000 contribution to a Member 

of Congress? 

Mr. SHAPIRO. I am saying you set the amount for—maybe it differs on the State, maybe it differs on the race. I have not come here 

with a set of—with a roster, with a schedule of what that would 

be. It would have to be tailored—— 

Senator WHITEHOUSE. You have come here with a criticism of the 

DISCLOSE Act that it sets the number in the wrong place. How 

do you know that it sets it in the wrong place if you do not know 

where that place is? 

Mr. SHAPIRO. Just like the Supreme Court often says when it 

rules in various directions, we do not know where the line is, but 

this is clearly past it—— 

Senator WHITEHOUSE. And $10,000 is clearly an amount that 

would not influence an election? 

Mr. SHAPIRO. Correct. When you are talking—when you are comparing it to the Sheldon Adelsons and the George Soroses of the 

world, or the Koch brothers or whoever else, that is not a—— 
35 

Senator WHITEHOUSE. Even a congressional election, because it 

applies to congressional races. 

Mr. SHAPIRO. Maybe for city dog catcher. Maybe $10,000 should 

be disclosable for a city dog catcher. But, again, you have to balance the interests, and that is—that is not a bright line you can 

draw. It is something that you have to measure and that has to be 

debated about where that interest in knowing where that potential 

appearance of corruption is strong enough to overwhelm otherwise 

private individuals’ rights to speak their mind without fearing harassment from their neighbors. 

Senator WHITEHOUSE. Well, we have—— 

Mr. SHAPIRO. Let alone from the Government. 

Senator WHITEHOUSE. We have had a country where—let me just 

tell you that when I went into the DISCLOSE Act vote, as I came 

out of the basement lobby, I passed a young man, a marine from 

Pennsylvania, who was sitting in the lobby in a wheelchair with a 

number of escorts around him to greet the Senators who were 

going by. We had asked that young man to go to Afghanistan, and 

we had sent him down a road that had an improvised explosive device under it that blew both of his legs off. If we can ask that young 

man to do that, we can darn well ask the Koch brothers to put up 

with some impolite blogging. 

Mr. SHAPIRO. I agree. The Koch brothers, yes. 

[Applause.] 

Mr. SHAPIRO. And George Clooney and George Soros and anybody that, as I said, is far above any line that I would draw. 

Senator WHITEHOUSE. One other thing you said earlier, I want 

to correct the record here. You said there was—I believe I wrote 

it down accurately. You said there was an ‘‘exemption for unions’’ 

in the bill. I want to make sure that the record is clear there was 

no exemption for unions in the bill. Unions, corporations, 501(c)s, 

billionaires, everybody is treated exactly the same in the bill. I 

know that canard has kind of crept its way into the public debate, 

but every time I have asked a colleague of mine to say where is 

it, they cannot find it. And the reason they cannot find it is because in a 19-page-long bill written in very big letters, it just is not 

there to be found. And I want to make sure that that is clear for 

the record. We did not put an exemption for unions into the bill. 

Every organization is treated absolutely identically. 

Chairman DURBIN. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. I just have a 

couple of follow-up questions, and I passed the same marine on my 

way to vote, and certainly if you compare the sacrifices that are 

made by the men and women who are fighting to uphold democracy 

and serving and sacrificing for our freedoms, I would compare them 

not only to the relatively minor inconvenience of disclosure, but 

also to the choice they have as to whether to contribute in the first 

place. And part of the reason why we are such a great democracy 

is that we do shine that light of disclosure in a lot of areas, not 

just in this one but in many corporate areas as well. When a company is a public company and making these contributions to a public process and a public institution I think well merits this kind of 

disclosure. 
36 

But the question that I have for all the members of the panel is: 

Put aside the laws that have been proposed to improve the system. 

I am not satisfied that existing laws are being enforced sufficiently, 

aggressively, and faithfully, whether the provisions of the Tax 

Code, for example, or the current provisions that draw distinctions 

between political activities and non-political activities are being 

sufficiently well enforced. What is your view on that, Mr. Shapiro? 

Mr. SHAPIRO. I have not studied the enforcement mechanisms. If 

they are not being enforced, they should be. I am all for the rule 

of law. 

I will say that you cannot just brush aside the threat of harassment and vigilante action and the Government going after people 

who have disclosed. Frank VanderSloot, for example, an Ohio businessman, was disclosed as having contributed against President 

Obama, and all of a sudden has a raft of regulatory agencies going 

after him, even though he has never had any trouble, never committed a business crime. And that is not the only example of that. 

Whether you are talking about the $100 donor to a campaign for 

Prop. 8 in California—I happen to be against Prop. 8, but I do not 

think that someone who donates $100 should lose their job for it. 

Again, there are competing interests but we should be for maximizing speech rather than having government control. And do not 

mistake this. What all of these programs are saying is that the government should control independent political speech and people 

getting together at some point is too much speech. 

Senator BLUMENTHAL. But disclosure is not control, is it? 

Mr. SHAPIRO. Disclosure is not control. That is a different problem. You are right. 

Senator BLUMENTHAL. So if you cannot draw the line at a particular amount, why not just require disclosure of everything? 

Mr. SHAPIRO. Because there is no right, absolute right, to know 

what all your neighbors are donating. It is a prudential concern 

rather than a constitutional one at that point. It is possible to draw 

a line. I am just saying I have not analyzed all of the different possible races and seen where that line should be drawn. But, you 

know, after a study of this—and that can be negotiated and should 

be negotiated politically—that line should be drawn where indeed 

it only is the big boys that are putting their reputation on the line 

rather than people donating $100 or $2,500. 

Senator BLUMENTHAL. Thank you. 

Chairman DURBIN. Thank you very much, Senator Blumenthal. 

I thank the witnesses on this panel. For the record, the way the 

witness panels are constructed, there are witnesses that are suggested by the majority side and by the minority side, and so there 

is some balance in the testimony here. Mr. Shapiro, thank you for 

being here at the invitation of Senator Graham. I thank Professor 

Lessig and Governor Roemer for being here to give us their input 

on this important topic. 

I want to note that there are over 400 people who have been attending this hearing, both in this room and in the overflow room, 

as an indication of the level of interest. 

There is also another indication. We have had a number of organizations and individuals submitting statements for the record, including Americans for Campaign Reform, Common Cause, Demos, 
37 

Free Speech for People, Move to Amend, People for the American 

Way, Public Campaign, Public Citizen, Ben & Jerry’s, American 

Sustainable Business Council, Center for Media and Democracy, 

Washington Public Campaigns, Professor Jamie Raskin, Professor 

Sierra Torres Bellisi, former North Carolina State Representative 

Chris Haggerty, and Attorney Rick Hubbard of South Burlington, 

Vermont. Without objection, I will add their statements to the 

record, thanking the individuals and organizations for their important work. 

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

Chairman DURBIN. There may be some follow-up questions to the 

witnesses—it happens—and I hope if you receive them that you 

can, even on vacation, respond in a timely fashion. I want to especially thank your son for being a dutiful observer of this constitutional process. And if there are no further comments from my panel 

or colleagues, I thank all the witnesses for participating and everyone in attendance on this important issue. 

This hearing stands adjourned. 

[Whereupon, at 4:30 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.] 

(39) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

WITNESS LIST
40 

PREPARED STATEMENTS OF HON. RICHARD J. DURBIN AND HON. PATRICK LEAHY

United States Senate Judiciary Committee 

Subcommittee on the Constitution, Civil Rights and Human Rights 

Senator Richard J. Durbin, Chairman 

"Taking Back Our Democracy: 

Responding to Citizens United and the Rise of Super PACs" 

Tuesday, July 24,2012 

Opening Statement 

Today we will examine the dramatic rise of spending by Super PACs that are largely funded by 

corporations and wealthy individuals with special interests. We will also consider proposed 

legislation and constitutional amendments designed to stem this dangerous tide. 

Since the Supreme Court's decision in Citizens United and Speech Now, a later decision by the 

DC Court of Appeals, we have witnessed the rapid rise of Super PACs and unprecedented 

influence buying by corporations and wealthy individuals seeking to advance their agendas. 

The Rise of Super PACs and Wealthy Donor Spending 

In 2006, outside groups spent $70 million to influence federal midterm elections. Four years 

later, outside groups spent $294 million to influence the federal midterm elections. That's four 

times the amount they spent in 2006. By all accounts, these outside groups are prepared to break 

that record during this presidential election year. 

Secret Money 

Ordinary Americans often have no idea who is secretly bankrolling the omnipresent political 

advertisements designed to influence their vote. In 2006, secret donors made up I % of all outside 

spending. Four years later, after Citizens United and the rise of Super PACS, secret donors 

rocketed to 44% of outside spending. And studies show that as the amount of money flooding 

into campaigns increases, disclosure and transparency dramatically decreases. 

In a democracy that values open debate and participation, voters should know who has paid for 

the political ads designed to persuade them. We should call them "Super Secret PACs" because 

the reality is that the public has shockingly little information about where they get their 

resources. 

American Oligarchs 

The little that we have been able to learn about the major donors to these Super PACs is very 

disturbing. Half of all Super PAC money being spent in this presidential election is coming from 

just 22 millionaires and billionaires. To be clear, I don't begrudge their business success. And 

their voices and opinions should be heard. Theirs, however, are not the only voices and opinions 

that should be heard. 
41 

Just because the wealthy donors behind Super PACs have achieved economic success doesn't 

mean they have earned the right to buy control ofthe political agenda by drowning out all 

opposing voices. Unfortunately, that is exactly what's happening. 

According to a recent report in the journal of Campaigns & Elections, Super PACs threaten to 

purchase every last minute of available television advertising space for the fall election, 

exponentially driving up the cost of these ads, especially in battleground states. As a result, 

voters may never hear directly from some state and local candidates, who could be kept off the 

air entirely due to rising costs and the fact that they are not entitled to "reasonable access" to the 

airwaves like federal candidates. 

There are 314 million people in this country whose lives, jobs, safety, and health are impacted by 

the decisions of the people they elect. Can we still proclaim to be the world's model for free 

elections with open debate when we allow 22 wealthy people to control the terms ofthat debate 

and silence the voices of millions of others? 

The public may not know the agendas ofthe secret, wealthy donors behind these Super PACs, 

but I can assure you that the politicians they've supported will- once they begin calling after the 

election. Imagine hearing the following phrase from a Las Vegas casino magnate [Sheldon 

Adelson], billionaire brothers and oil tycoons [Charles and David Koch], or the multimillionaire 

head of a southern retail empire [Art Pope]: 

"I spent millions to get you elected and there's plenty more where that came from ... But, 

if you don't vote my way, I'll spend it against you the next time." 

At that point, an elected official might very well just decide to forget about facts and figures, 

constituent letters, and town hall meetings. 

Reform Is Urgently Needed: Fair Elections Now Act and DISCLOSE 

There are a series oflegislative proposals that would stem this dangerous tide of secret, special 

interest money that's flowing into our elections. 

The Fair Elections Now Act 

I introduced the Fair Elections Now Act, which would create a public financing system that will 

free candidates from the dangerous reliance on Super PACs once and for all. Under Fair 

Elections, viable candidates who qualify for the Fair Elections program would raise a maximum 

of $100 from any donor. These candidates would then receive matching funds and grants 

sufficient to run a competitive campaign. Fair Elections would fundamentally reform our broken 

system and put average citizens back in control of their elections and their country. 
42 

The DISCLOSE Act 

Last week, the Senate voted on the DISCLOSE Act. A majority of the Senate, including every 

member of this committee, voted to support the measure. I want to thank Senator Whitehouse 

for his leadership on this legislation. 

The bill is simple. It would require Super PACs and other big spenders in elections to disclose 

all donors who give $10,000 or more in any two year campaign period. In other words, it would 

write into law the same basic concept of disclosure that the Supreme Court actually endorsed in 

Citizens United. 

Congress could pass these two bills right now and make a world of difference. 

Need for Constitutional Amendments 

But with a Supreme Court that has not been shy about overturning precedent and disregarding 

Congressional intent, passing these very good pieces of legislation may not be enough. After 

much deliberation, I have reached the conclusion that a constitutional amendment is necessary to 

clean up our campaign finance system once for all. I know there are some who say it will be next 

to impossible to pass a constitutional amendment on this issue. But I also know the history of our 

country. 

Slavery and the denial of basic freedoms for African Americans was the law ofthe land before 

and after the Supreme Court's decision in Dred Scott. But many fought, bled, and died so that the 

14th, 15th, and 16th Amendments would insure that America lived up to its promise of equality for 

all. 

Those fighting for women's suffrage were discouraged by the Supreme Court's ruling in Minor 

v. Happersett, but years of activism were rewarded when the 19th Amendment was ratified. The 

Supreme Court's decision in Breedlove v. Suttles affirmed the imposition of poll taxes that 

prevented many African Americans and other poor citizens from voting in federal elections. 

Those fighting for equal ballot access rallied to pass the 24th Amendment and their victory was 

completed when state poll taxes were invalidated by Harper v. Board of Elections. 

It may be an uphill battle. It may take years of organizing and advocacy. But the passage of the 

these five Amendments remind us that grassroots movements can put our country back on the 

right course after a Supreme Court decision -- like Citizens United -- gets it dead wrong. 

That grassroots movement is well underway. This Subcommittee has received 1,959,063 petition 

signatures from Americans representing every state in the Union in support of a constitutional 

amendment to stop the pernicious influence of secret money from corporations and wealthy 

special interests. 
43 

STATEMENT OF SENATOR PATRICK LEAHY (D-VT.) 

HEARING ON "TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITED 

AND THE RISE OF SUPER P ACs" 

JULY 24, 2012 

Every American who has watched our elections or even tried to watch television over the last 

two and half years has seen the corrosive effects ofthe Supreme Court's decision in Citizens 

United. Few Supreme Court decisions in American history have had such a negative impact on 

our political process. That decision by five justices in Citizens United to overturn a century of 

law designed to protect our elections from the corruption of corporate spending turned on its 

head the idea of govemment of, by and for the people. 

Nobody who has heard the barrage of negative advertisements from undisclosed and 

Unaccountable sources can deny the impact of Citizens United. Nobody who has strained to hear 

the voices of the voters lost among the noise from SuperPACs can deny that by extending First 

Amendment "rights" in the political process to corporations, five justices put at risk the rights of 

individual Americans to speak to each other and, crucially, to be heard. 

Last month, those same five justices doubled down on Citizens United when they summarily 

struck down a 100-year-old Montana state law barring corporate contributions. In doing so, they 

broke down the last public safeguards preventing corporate megaphones from drowning out the 

voices of American voters. 

These Supreme Court decisions not only go against longstanding laws and legal precedents, but 

also against common sense. Corporations, quite simply, are not people. Corporations do not 

have the same rights, the same morals or the same interests. Corporations cannot vote in our 

democracy. They are artificial legal constructs meant to facilitate business. The Founders 

understood this. Vermonters and Americans across the country have long under-stood this. A 

narrow majority on the Supreme Court apparently does not. 

Like most Vermonters, I strongly believe that this was a harmful decision that needs to be fixed. 

I have pressed to make fixing it a high priority of this Congress. and I will continue to work for 

remedies. I have sought legislative remedies, and the harm of this decision is so threatening to 

our system that I also believe constitutional remedies should be evaluated. That is why I held the 

first congressional hearing on that terrible decision after it was issued. That is why I have 

worked with Senator Whitehouse, Senator Schumer and others to craft legislation like the 

DISCLOSE Act that could immediately address some of the worst effects of Citizens United. 

And that is why I have worked with Senator Durbin, the Chairman of this subcommittee, to 

schedule today's hearing to look at proposals for fixing the damage done by Citizens United. 

I thank Senator Durbin for holding this important hearing. He has been a leader not only on this 

issue, but also in shedding light on the renewed effort in many states to deny millions of 

Americans access to the ballot box through voter purges and voter ID laws. It is astonishing and 

troubling for our democracy to see efforts underway to restrict the right to vote for individuals 

Americans, while corporations are empowered through secret spending to control the outcome of 

our elections. We need to work to restore the right balance in our democracy to protect the form 
44 

of government Americans have fought and died for, what President Lincoln called our 

government of, by and for the people. 

The path of American democracy over the last 236 years has been one toward greater inclusion 

and participation by all Americans. Yet a report released last week by the non-partisan Brennan 

center concluded that newly-enacted voter ID laws alone will burden up to 10 millions voters. 

Pennsylvania's voter ID law, for example, could disenfranchise over 750,000 voters even though 

the state has told a court they have no evidence of in person voter fraud or even evidence it is 

likely to occur without their voter ID law. This Committee has received expert testimony that 

voter ID laws will disenfranchise African-Americans, Hispanics, military veterans, college 

students, the poor, and senior citizens. Many Americans associate barriers to voting with a dark 

time in our nation's history, when courageous and disenfranchised, yet resilient, citizens attacked 

by dogs, blasted with water hoses, and beaten by mobs simply for attempting to register to vote. 

1 am not alone in noting the disturbing irony of the contrast between the concerted partisan push 

for voter ID in many states, and a fact which is in focus in this hearing: It is becoming increasingly 

difficult for ordinary, hardworking Americans to cast their votes, while billionaires suddenly are able to 

contribute at will to shape election results, without having to 'show any 10' at all. 

We cannot return to a time when discriminatory devices were used to exclude American citizens 

from their democracy. 

We also cannot back down from our efforts to ensure that the ability of Vermonters and all 

Americans to participate in our elections is not undercut by wealthy corporations dominating all 

mediums of advertising. The interests of the voters should control the outcomes in our elections, 

not the race for secret money and who can collect the largest amount of unaccountable, secret 

donations. 

Addressing the effects of Citizens United should not be a partisan issue. It should be an issue for 

anybody who cares about our democracy. Regrettably that has not been the case and our efforts 

have been stymied so far. Just last week, Republicans denied the American people an open, 

public, and meaningful debate on the DISCLOSE Act, legislation that would restore 

transparency and accountability to campaign finance laws by ensuring that all Americans know 

who is paying for campaign ads. Despite a majority of support for this common sense 

legislation, Republicans continued their years-long filibuster of the DISCLOSE Act, refusing to 

even proceed to debate the bill in the Senate. 

There is no reason a clear-cut reform like the DISCLOSE Act should not draw overwhelming 

bipartisan support. From the depths of the Watergate scandal forward, until only recently, the 

principle of disclosure was a bipartisan value. Despite the clear impact of unaccountable 

corporate campaign spending, a minority in the Senate consisting exclusively of Republicans 

continues to prevent passage of this important law. 

Why have they worked so hard against this bill? Why, when so many Senators of both parties 

used to champion disclosure laws and supported knowing who is paying for campaign ads have 

they continued to prevent us from considering this remedial legislation -legislation that the 

conservative justices on the Supreme Court themselves endorsed and thought would follow after 

their disastrous opinion on Citizens Unitetfl Why, when the conservative Supreme Court justices 
45 

made clear even in their Citizens United decision that disclosure laws are constitutional does the 

Senate Republican leadership insist on blocking this reform? Disclosure of who is paying for 

election ads should not be kept secret from the public. In a democracy, our ballots should be 

secret - not massive corporate campaign contributions. 

When an individual donates money directly to a political candidate, our donation is not hidden. 

It is publicly disclosed. Yet those who oppose the DISCLOSE Act are supporting special rights 

for corporations and wealthy donors to use SuperPACs to funnel secret, massive, non-disclosed 

donations to political campaigns. They are creating a special right to launder money through the 

use of loopholes opened up by Citizens United. Nobody has answered why those funding these 

SuperPAC's should not be bound by the same disclosure rules for giving directly to campaigns. 

Public disclosure of donations to candidates has never chilled campaign funding, and has never 

prevented millions of Americans from participating freely and openly in our elections. 

Vermont is a small state. It would not take more than a tiny fraction of the corporate money 

being spent in other states to outspend all of our local candidates combined. I know that the 

people of Vermont, like all Americans, take seriously their civic duty to choose wisely on 

Election Day. That is why more than 60 Vermont towns passed resolutions on Town Meeting 

Day calling for action to address Citizens United. Like all Vermonters, I cherish the voters' role 

in the democratic process and am a staunch believer in the First Amendment. The rights of 

Vermonters and all Americans to speak to each other and to be heard should not be undercut by 

massive anonymous and corporate spending. 

I look forward to hearing testimony from our witnesses today looking at how we can undo the 

damage caused by the Citizens United decision. I remain open to any remedy including 

constitutional remedies - that can help us restore the right balance to our democracy and protect 

the right of every American to participate meaningfully in free and fair elections. 

##### 
46 

PREPARED STATEMENTS OF WITNESSES

July 24, 2012 

Contact: Iennifer_Donohue@baucus.senate.gov 

Testimony of U.S. Senator Max Baucus, Montana 

Senate Judiciary Committee 

Subcommittee on the Constitution, Civil Rights and Human Rights 

Hearing on Taking Back Our Democracy: Responding to Citizens United and the Rise of 

SuperPACs 

President Franklin Delano Roosevelt once said, "The ultimate rulers of our democracy 

are not a President and Senators and Congressmen and government officials, but the voters of 

this country." 

I sit before you today on behalf of those voters - the nearly I million Montanans I work 

for, and over 1.7 million Americans we all serve who have signed a petition calling for a 

constitutional amendment this committee is considering today. 

That's right, 1.7 million signatures. And each one is a mother, a father, an employer, a 

veteran, a school teacher, an American we were sent here to serve. 

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

At the top of our state capital building in Helena sits a beautiful copper dome. Nearly a 

century ago, that copper dome wasn't just for decoration. It was a symbol of the copper barons 

and th~ir ultimate power to decide who represented the people of Montana. 

Page 1 of4 
47 

While miners risked their lives working thousands offeet below the earth, the copper 

kings lived high on the hog. 

Corporations were literally buying elections. 

In 1899 Copper Baron William Andrews Clark, bribed the state legislature into 

appointing him to serve here in the U.S Senate. The scandal led to the passage of the 17tf1 

Amendment to our constitution - the amendment that gave each one ofus the honor of being 

elected to serve by the popular vote of the people of our states. 

In his own defense, Clark is famously purported to have said, "I never bought a man who 

wasn't for sale." 

So, the people of Montana responded with one voice loud and clear: 'we are not for sale.' 

Montanans took democracy into their own hands and passed laws to keep their elections 

off the market and in the rumds of the people. 

But today, in the latest aftermath of Citizens United, the Supreme Court has stuck down 

those very laws. 

Once again, the essence of our democracy is being threatened. And once again a 

constitutional amendment is needed to restore balance and put the ultimate power back in the 

hands of the people. 

Page 2of4 
48 

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

be able to spend unlimited amounts of money in elections. The people we work for believe that 

state and local governments should be able to respond to corruptive behavior. 

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

amendment. 

In the Federalist Papers, James Madison noted that there would be circumstances when 

"useful alterations [to the Constitution] will be suggested by experience." 

Still this is a process that requires significant deliberation. It should. I do not take a 

proposal to amend the constitution lightly. I agree with James Madison that amending the 

Constitution should be done only on "great and extraordinary occaSions." 

But I believe this is one of those occasions. And Congress owes it to the American people 

to fully study, discuss and debate the merits of a constitutional amendment. 

My proposal for a Constitutional amendment will right the wrong of Citizens United. My 

amendment will restore Congress' and States' ability to regulate political spending by 

corporations and labor in elections. It will give states like Montana the power to once again say: 

'we are not for sale.' 

Page 3 of4 
49 

It's clear that action is needed to restore Americans' faith. in our political and electoral 

process. I urge my colleagues to join me in supporting this amendment. 

Page 4of4 
50 

Testimony of Senator Bernard Sanders 

Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights and Human Rights 

Hearing on "Taking Back Our Democracy: 

Responding to Citizens United and the Rise of Super PACs" 

July 24, 2012 

Mr. Chairman, thank you for convening a hearing on the enormously important issue of "Taking 

Back Our Democracy." Unfortunately, that title exactly describes the challenge facing us today. 

The history of this country has been the drive towards a more and more inclusive democracy-a 

democracy which would fulfill Abraham Lincoln's beautiful phraseology at Gettysburg in which 

he described America as a nation "of the people by the people for the people." Lincoln's vision 

has endured throughout the ages, and many courageous Americans put their lives on the line 

defending that vision: "Of the people, by the people, for the people." 

We all know American democracy has not always lived up to this ideal. When this country was 

founded, only white male property owners over age 21 could vote. But people fought to change 

that and we became a more inclusive democracy. After the Civil War, we amended the 

Constitution to allow non-white men to vote. We became a more inclusive democracy. In 1920, 

after years of struggle and against enormous opposition, we finally ratified the Nineteenth 

Amendment, guaranteeing women the right to vote. We became a more inclusive democracy. 

In 1965, under the leadership of Martin Luther King, Jr. and others, the great civil rights 

movement finally succeeded in outlawing racism at the ballot box and LBJ signed the Voting 

Rights Act. Black people in our country could not be denied the right to vote. We became a 

more inclusive democracy. One year after that, the Supreme Court ruled that the poll tax was 

unconstitutional, that people could not be denied the right to vote because they were low-income. 

We became a more inclusive democracy. In 1971, young people throughout the country said; 

"we are being drafted to go to Vietnam and get killed, but we don't even have the right to vote." 

The voting age was lowered to 18. We became a more inclusive democracy. 

Mr. Chairman, the democratic foundations of our country are now facing the most severe attack, 

both economically and politically, that we have seen in the modern history of our country. 

Tragically, we are well on our way where America is moving toward an oligarchic form of 

government - where virtually all economic and political power rest with a handful of very 

wealthy families. This is a trend we must reverse. 

Economically, the United States today has, by far, the most unequal distribution of wealth and 

income of any major country on earth and that inequality is worse today in America than at any 

time since the late 1920s. 

Today, the wealthiest 400 individuals own more wealth than the bottom half of America - 150 

million people. 
51 

Today, one family, the Walton family of Wal-Mart fame, with $89 billion, own more wealth 

than the bottom 40 percent of America. One family owns more wealth than the bottom 40 

percent. 

Today, the top one percent own 40 percent of all wealth, while the bottom sixty percent owns 

less than 2 percent. Incredibly, the bottom 40 percent of all Americans own just 3/10 of one 

percent of the wealth of the country. 

Between 1980 and 2005, 80 percent of all new income created in this country went to the top 1 

percent. In 20 10 alone, 93 percent of all new income went to the top 1 percent. This is not 

American democracy. This is American oligarchy. 

That is what is going on economically in this country. A handful of billionaires own a significant 

part of the wealth of America and have enormous control over our economy. What the Supreme 

Court did in Citizens United said to these very same billionaires: "You own and control the 

economy, you own Wall Street, you own the coal companies, you own the oil companies. Now, 

for a very small percentage of your wealth, we're going to give you the opportunity to own the 

United States government." That is the essence of what Citizens United is all about. 

Let's be clear. Why should we be surprised that one family, worth $50 billion, is prepared to 

spend $400 million in this election to protect their interests? That's a small investment for them 

and a good investment. But it is not only the Koch brothers. 

Mr. Chairman, there are at least twenty-three billionaire families who have contributed at least 

$250,000 each into the political process up to now;! my guess is that number is really much 

greater because many of these contributions are made in secret. 

The constitutional amendment that Congressman Deutch and I have introduced, S. J. Res. 33, 

states the following: 

1 See Appendix 1. 

For-profit corporations are not people, and are not entitled to any rights under the 

Constitution. 

For-profit corporations are entities of the states, and are subject to regulation by 

the legislatures of the states, so long as the regulations do not limit the freedom of 

the press. 

F or-profit corporations are prohibited from making contributions or expenditures 

in political campaigns. 

Congress and the states have the right to regulate and limit all political 

expenditures and contributions, including those made by a candidate. 
52 

I'm proud to say the American people are making their voices heard on this issue-they are 

telling us loud and clear it is time to reverse the trend. Six states, including my home state of 

Vermont, have passed resolutions asking us to pass a constitutional amendment to overturn 

Citizens United. More than 200 local governments have done the same, including many in 

Vermont. I'm proud to sponsor one such amendment. My colleagues here, Sen. Baucus, Sen. 

Udall, and Congresswoman Edwards, all have good amendments, and I thank them for their hard 

work on this issue. 
53 

APPENDIX I 

America for Sale: 

A Report on Billionaires Buying the 

2012 Election 

U.S. Senator Bernie Sanders (I-Vt.) 

Washington, DC 
54 

Billionaires buying the 2012 elections have a combined $146 billion in wealth, more 

than the bottom 42.5% of American households - nearly 50 million families. 

• So far this year, 26 billionaires have donated more than $61 million to super PACs, 

according to the Center for Responsive Politics. And, that's only what has been 

publica\ly disclosed. 

• This $61 million does not include about $100 million that Sheldon Adelson has said 

that he is willing to spend to defeat President Obama; or the $400 million that the 

Koch brothers have pledged to spend during the 2012 election season. 

• These 26 billionaires have a combined net worth of$146 billion, which is more than 

the bottom 42.5 percent of American households (equal to nearly 50 million families 

in the United States). 

(Sources: Federal Reserve's Survey of Consumer Finances published in June 2012; 

and the Forbes billionaire list of April 2012. Sylvia A. Allegretto, an economist at 

the University of California, Berkeley helped us gather the data from the Federal 

Reserve study to come up with these statistics.) 

Here is a list ofthe billionaires: 

1. Sheldon Adelson, owner of the Las Vegas Sands Casino, is worth nearly $25 billion, 

making him the 14th wealthiest person in the world and the 7th richest person in 

America. 

While median family income plummeted by nearly 40% from 2007-2010, Mr. 

Adelson has experienced a nearly eightfold increase in his wealth over the past three 

years (from $3.4 billion to $24.9 billion). 

Forbes recently reported that Adelson is willing to spend a "limitless" amount of 

money or more than $100 million to help defeat President Obama in November. 

While $100 million sounds like a lot, it equals the same percentage of Adelson's 

wealth that $300 to $400 does for the typical middle class family (with a net worth of 

about $77,000). 

Sheldon Adelson owns more wealth than the bottom 40.2% of American households 

or 47.2 million American families. 

2. The Kochs (David, Charles, and William) are worth a combined $54 billion, 

according to Forbes. They have pledged to spend about $400 million during the 

2012 election season. 

3. Jim Walton is worth $23.7 billion. He has donated $300,000 to super PACs in 

2012. 
55 

4. Harold Simmons is worth $9 billion. He has donated $15.2 million to super PACs 

this year. 

5. Peter Thiel is worth $1.5 billion. He has donated $6.7 million to Super PACs this 

year. 

6. Jerrold Perenchio is worth $2.3 billion. He has donated $2.6 million to super PACs 

this year. 

7. Kenneth Griffin is worth $3 billion and he has given $2.08 million to super PACs in 

2012. 

8. James Simons is worth $10.7 billion and he has given $1.5 million to super Pacs this 

year. 

9. Julian Robertson is worth $2.5 billion and he has given $1.25 million to super PACs 

this year. 

10. Robert Rowling is worth $4.8 billion and he has given $1.1 million to super PACs. 

11. John Paulson, the hedge fund manager who made his fortune betting that the subprime mortgage market would collapse, is worth $12.5 billion. He has donated $1 

million to super P ACs. 

12. Richard and J.W. Marriott are worth a combined $3.1 billion and they have donated 

$2 million to super PACs this year. 

13. James Davis is worth $1.9 billion and he has given $1 million to super PACs this 

year. 

14. Harold Hamm is worth $11 billion and he has given $985,000 to super PACs this 

year. 

15. Kenny Trout is worth more than $1.2 billion and he has given $900,000 to super 

P ACs this year. 

16. Louis Bacon is worth $1.4 billion and he has given $500,000 to super PACs this 

year. 

17. Bruce Kovner is worth $4.5 billion and he has given $500,000 to super PACs this 

year. 

18. Warren Stephens is worth $2.7 billion and he has given $500,000 to super PACs this 

year. 
56 

19. David Tepper is worth $5.1 billion and he has given $375,000 to super PACs this 

year. 

20. Samuel Zell is worth $4.9 billion and he has given $270,000 to super PACs this 

year. 

21. Leslie Wexner is worth $4.3 billion and he has given $250,000 to super PACs this 

year. 

22. Charles Schwab is worth $3.5 billion and he has given $250,000 to super PACs this 

year. 

23. KeIcy Warren is worth $2.3 billion and he has given $250,000 to super PACs this 

year. 
57 

Testimony of Senator Tom Udall 

Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights 

Hearing on "Taking Back Our Democracy: 

Responding to Citizens United and the Rise of Super PACs" 

July 24, 2012 

Good afternoon Chainnan Durbin, Ranking Member Graham, and members of the 

Subcommittee. 

Thank you for holding this important hearing. 

Today's hearing comes at an ideal time, as the 2012 election cycle provides a perfect example of 

just how broken our national campaign finance system really is. The integrity of our elections, 

and ultimately our governance, depends on a vigorous debate in which American citizens truly 

have a voice. Unfortunately, our elections no longer focus on the needs and interests of 

individual voters, but are instead shaped by multi-million dollar ad campaigns funded by special 

interest groups with seemingly limitless resources. 

In January 201 0, the Supreme Court issued its opinion in Citizens United v. FEC. Two months 

later, the DC Circuit Court of Appeals decided the SpeechNow v. FEC case. These two cases 

opened the door to Super PACs. Millions of dollars now pour into negative and misleading 

campaign ads, often without disclosing the true source of the donations. 

But our campaign finance system was hardly a model of democracy before these opinions. We 

have been on this dangerous path for a long time. The Citizens United and SpeechNow decisions 

may have picked up the pace, but the Court laid the groundwork many years ago. 

We can go all the way back to 1976. That year, the Court held in Buckley v. Valeo that 

restricting campaign spending, as well as limiting independent expenditures, violates the First 

Amendment right to free speech. In effect, the Court said that money and speech are the same 

thing. 

This is a flawed premise, but the Court has continued to rely on it to issue more disastrous 

opinions, such as Citizens United and Speech Now. Unfortunately, the outcome is hardly 

surprising - Americans' right to free speech is now detennined by their net worth. 

But the founding principle of this nation is that all Americans deserve the same constitutionally 

guaranteed rights. We don't tell the wealthy they can choose any religion, but the poor can only 

pick from a few. But that's exactly what the Court said about the freedom of speech. For 

average Americans, they get one vote. They go to the polls and cast their ballot with millions of 

others. But for the wealthy, and the super wealthy. Buckley says that they can spend unlimited 

amounts of money to influence the outcome of our elections. And now, with Citizens United, 

that right has been extended to corporations and other special interests. 

The damage is clear. Elections become more about the quantity of cash, and less about the 

quality of ideas. More about special interests. and less about public service. 

1 
58 

We cannot truly fix this broken system until we undo the flawed, inherently undemocratic 

premise that spending money on elections is the same thing as exercising free speech. That can 

only be achieved in two ways. The Court could overturn Buckley and the subsequent decisions 

based on it - which seems highly unlikely given its current ideological makeup. Or we amend 

the Constitution. To not only overturn the previous bad Court decisions, but to also prevent 

future ones. Until then, we will fall short of the real reform that is needed. 

That is why Senator Bennet and I, along with several members of this subcommittee, introduced 

S.J. Res. 29 last November. We're up to 23 cosponsors, with several other senators expressing 

support for a constitutional amendment in floor speeches and press interviews. 

This amendment is similar to bipartisan proposals in previous Congresses. It would restore the 

authority of Congress stripped by the Court - to regulate the raising and spending of money for 

federal political campaigns, including independent expenditures, and it would allow states to do 

so at their level. It would not dictate any specific policies or regulations. But, it would allow 

Congress to pass sensible campaign finance reform legislation that withstands constitutional 

challenges. 

In The Federalist No. 49, James Madison argued that the Constitution should be amended only 

on "great and extraordinary occasions." I believe we have reached one of those occasions. In 

today's political campaigns, our free and fair elections - a founding principle of our great 

democracy - are for sale to the highest bidder. 

I know amending the Constitution is difficult. And it should be. Last week during the debate on 

the DISCLOSE Act, Chairman Leahy commented that we must pass that bill now because of the 

"years and years that a constitutional amendment might take." 

But those "years and years" started decades ago. There is a long - and bipartisan - history here. 

Many of our predecessors from both parties understood the corrosive effect money has on our 

political system. They spent years championing the cause. 

In 1983 - the 98th Congress Senator Ted Stevens introduced an amendment aimed at 

overturning Buckley. And in every Congress from the 99th to the I08th, Senator Fritz Hollings 

introduced bipartisan constitutional amendments similar to mine. After he retired, Senators 

Schumer and Cochran continued the effort in the I09th Congress. 

And that was before the Citizens United decision. Before things went from bad to worse. The 

out of control spending since that decision has further poisoned our elections. Fortunately, it has 

also ignited a broad movement to amend the Constitution. 

I participated in a panel discussion in January with several activists in this movement. One of 

the panelists, Maryland State Senator Jamie Raskin, was asked about overcoming the difficulty 

of amending the Constitution. Jamie said that "a constitutional amendment always seems 

impossible until it becomes inevitable." 1 think we are finally reaching the point of inevitability. 

2 
59 

Across the country, more than 275 local resolutions have passed calling for a constitutional 

amendment to overturn Citizens United. Legislatures in six states - California, Maryland, 

Hawaii, Vermont, Rhode Island, and my home state of New Mexico - have called on Congress 

to send an amendment to the states for ratification. Many more states have similar resolutions 

pending. 

Over 1.9 million citizens have signed petitions in support of an amendment. More than a 

hundred organizations, under the banner of United For the People, are advocating for 

constitutional remedies. 

This grassroots movement is yielding progress. In addition to our Senate amendments, several 

other campaign finance related amendments have been introduced in the House. 

But an amendment can only succeed if Republicans join us in this effort, as they have in the past. 

I know the political climate of an election year makes things even more difficult, but I'm hopeful 

that we can work together and reach consensus on a bipartisan constitutional amendment that can 

be introduced early in the next Congress. 

We must do something. The voice of the people is clear, and so is their disgust. A recent 

Washington Post-ABC News poll found that nearly 70% of registered voters would like Super 

PACs to be illegal. Among independent voters, that figure rose to 78%. 

Since his retirement, Senator Hollings has continued to call for passage of an amendment. After 

the Citizens United decision, he wrote on The Huffington Post that, "Like a dog chasing its tail, 

Congress has tried for thirty-five years to control spending in federal elections, only to be 

thwarted by the Supreme Court intent on equating speech with money. To return to Madison's 

freedom of speech, Congress needs to pass a Joint Resolution amending the Constitution to 

authorize Congress to limit or control spending in federal elections." 

Senator Hollings also recognized the deterioration of our legislative branch due to the increasing 

influence of money on our elections. In another Huffington Post piece, Senator Hollings wrote: 

"Money has not only destroyed bi-partisanship but corrupted the Senate. Not the 

senators, but the system. In 1966 when I came to the Senate, Mike Mansfield, the 

Leader, had a roll call every Monday morning at 9:00 o'clock in order to be 

assured ofa quorum to do business. And he kept us in until5:00 o'clock Friday 

so that we got a week's work in ... Today, there's no real work on Mondays and 

Fridays, but we fly out to California early Friday morning for a luncheon 

fundraiser, a Friday evening fundraiser, making individual money appointments 

on Saturday and a fundraising breakfast on Monday morning, flying back for 

perhaps a roll call Monday evening." 

I agree with his assessment, and also remember when fundraising wasn't the priority it is 

today. My father was elected to Congress in 1954. I was in first grade. And the 

legislative branch was a Citizens' Congress. Members were in Washington for six 

3 
60 

months, and then they went home for six months and worked at their profession. But 

during those six months in session, Congress focused on legislating. 

And unlike today, where it's a weekly race to get out of town every Thursday, everyone 

socialized. I remember there were Saturday night potlucks with many members of Congress and 

their families. My mom told me she didn't even know who was a Republican and who was a 

Democrat. When you socialize like this on the weekend, it makes it much harder to attack each 

other the following week on the House or Senate floor. Unlike the political climate we're in 

today, there was a willingness to put partisanship aside for the common good. 

Unfortunately, our current campaign finance system has locked members of Congress into an 

endless campaign cycle. Elected officials spend far too much time raising money for campaigns, 

and not enough time carefully considering legislation or listening to constituents. The drive to 

raise money is constant, and allowing vast new amounts of special interest money into the 

system will only increase the pressure. This causes a deterioration of Congress's ability to 

function, including its ability to adequately represent and respond to its constituents. 

As the money raised and spent on campaigns by special interests continues to climb, members of 

Congress will have to devote more time trying to keep up in the fundraising race. It is no wonder 

that, as the pursuit of campaign money has come to dominate politics, the American people have 

become increasingly dissatisfied with Congress' performance. 

The pressure to raise money also discourages many qualified Americans from running for office. 

After the 2010 elections, former U.S. Senators Warren Rudman (R-NH) and Tim Wirth (D-CO) 

published a joint op-ed in which they state: 

"Ifthere's one reason for leaving [the Senate] that both Senators [George] 

Voinovich [R-OH] and [Evan] Bayh [D-IN]- and ourselves in our time - share in 

common, it's money. [They] are just the latest in a stream of moderate Senators 

who are too fed up to seek another term. Congress is stuck in the mud of strident 

partisanship, excessive ideology, never-ending campaigns, and - at the heart of it 

all- a corrosive system of private campaign funding and the constant fundraising 

it demands." 

Money has poisoned our political system. And the Supreme Court has incorrectly equated that 

money with speech, leaving us with one option for real reform. We must work towards a 

constitutional amendment that will restore integrity to our elections and legislative process. We, 

as Americans, believe in government "of the people, by the people, for the people." Generations 

of Americans before us have spoken out, worked tirelessly, and even given up their lives so that 

we might have the chance to have such a government. We cannot sit by as that ideal is lost. 

Thank you again for holding this hearing. 

4 
61 

TESTIMONY OF 

CHARLES "BUDDY" ROEMER 

FORMER CONGRESSMAN AND GOVERNOR OF LOUISIANA 

AND PRESIDENTIAL CANDIDATE 

SENATE JUDICIARY COMMITTEE, 

SUBCOMMITTEE ON 

THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS 

HEARING 

"TAKING BACK OUR DEMOCRACY: 

RESPONDING TO CITIZENS UNITED AND THERISE OF SUPER PACS." 

JULY 24, 2012 

During this primary season in which I was a candidate for the Republican nomination for 

President and, failing that, a candidate for the Americans Elect nomination, much was made by 

the want-to-be presidents about how Washington DC was broken. 

Broken? An unreadable tax code apparently written by and for special interests; the exporting of 

American manufacturing jobs overseas and subsidizing corporations to facilitate that 

outsourcing; an inability to exhibit budget discipline or prioritization over the next ten years in 

the Administration's own pro forma budget proposals with a growth of debt faster than economic 

growth ofthe nation; the downgrading of the national credit rating; bank "reform" that failed to 

rein in the so-called "too big to fail" that allowed the top banks to have a larger percentage of 

deposits after "reform" than before; a supposed bank reform that failed to restore the protections 

ofthe Glass-Steagall Act and refused to require capital ratios to rise with asset growth; health 

care reform that retained pharmaceutical and insurance monopolies entrenched in law; addiction 

to oil from the M;ddle East with no appare.nt energy strategy: 42 consecutive yc;.[; of a trade 

imbalance as we monetized our debt; and devaiuing our currency. I cuuld go on. 

Broken? Of course. 

A nation in trouble? Of course. 

A cry for leadership? Of course. 

A time for unity and cooperation? Of course. 
62 

But I take a different approach to this "it's broken, let's fix it" path. There is a biggcr, tougher, 

more pervasive issue than being broken: institutional corruption, or put another way, "being 

bought" by someone other than "the people". When the special interests have nevcr done better 

and are in command of funding those who would repair the system, how much rcpair will get 

done? As the only person running for President who was elected both as Congressman and as 

Governor, it is my belief that Washington DC is not just broken. It is bought, rented, leascd, 

owned by the money givers. Special interests, the bundlers, PACs, Super PACs, lobbyists, the 

Wall Strect bankcrs, the pharmaceuticals, the corporate giants, the insurance companies, 

organized labor, the GSE's like Fannie and Freddie, energy companies, on and on and on and on. 

And this is not about one party vcrsus the other, or about one person or anothcr. It is about 

systemic and institutional corruption where thc size of your check rather than the strength of 

your need or idea determinc your place in line. 

Corruption becomes institutional when those involved can pretend that it docsn't exist or that it 

doesn't affect them or that it has always becn this way, or even that it yields a good outcome for 

the nation. Has it? Institutional corruption is when a committee membership means that your 

fundraisers cater to a select list of invitees - all regulated by your committee. Institutional 

corruption mcans that one of your primc options for life after public service is to represent as a 

lobbyist in Congress the very companies, organizations, and interests you regulated as an elected 

official and to do so when your contacts and relationships are fresh and strong. It is institutional 

corruption when those who raisc questions are shunned or ignored by the body. 

Outsidc these walls, the public's pcrccption is that not only is Congress a do-nothing institution, 

but that it is bought and paid for as welL And, in politics, perception is reality, and the 

perception is that it is getting worse, not better. The numbers are not yet in for thc 2012 election 

cycle, but let's look at 4 years ago where we do have at least partial numbers. 

When Senator McCain opposed then Senator Obama, both candidates received more campaign 

contributions from P ACs and lobbyists from Washington DC and its environs than from the 

contributions of all sources in 32 states combined. The largest corporate giver to candidates 

including the Presidential candidatcs four years ago was General Electric. How did that work for 

their shareholders? $5.2 Billion of domestic profit beforc taxes year before last and General 

Electric paid not one penny in Federal Incomc tax. And the largest contributor among banks and 

financ;al institttion~? A little firm called Goldman Sachs. Maybe thaI's hew you get "bank 

rcform" that fails to eliminate "too big to fail", that bails out the biggest banks in America, 

refuses to rc-instate Glass-Steagall, and allows the Department of Justice to spend more time on 

Barry Bonds and Roger Clemens than on the veracity of the testimony of major bank CEOs. 

With the advent of Super P ACs and tax -exempt organizations of "indcpendent" status, the 

amount and percentage of big corporate, special intercst money fueling the debate has increased 

exponentially. The Supreme Court has ruled that these third-party, independent-expenditures, if 

not coordinatcd with a candidate, cannot be regulated as they give no appearance of corruption as 

2 
63 

direct contributions can and do. Is it coordination when Mitt Romney addresses the fundraiser 

for his own Super PACs? What bout when Rick Santorum wins a Midwest primary and has the 

largest contributor of his Super PACc appear on the victory stage election night directly behind 

the speaking candidate? When the President allows his team members helping him run his 

administration's programs to solicit funds for his Super PAC? Cooperation, utilizing the same 

playbook, managing content and timing either directly or indirectly are all components of 

coordination it seems to me. 

I've managed more than forty campaigns for others in my younger life - Congress, Governor, 

US Senate races, and I've personally run for office successfully in seven, separate elections. For 

more than 40 years, I have been involved in the debate about money and politics. I have never 

tried to get money out of politics and am not trying to do so now. Money is a commodity that can 

be used to foster debate and the enlightenment that comes there from. I have promoted and voted 

for and practiced full disclosure as the essential, most important step in revealing the power of 

money in the political debate. I still believe that. Others with a less conservative persuasion in 

this matter have promoted broad limits in the amount and source of political financial 

contributions. 

The bad news is that now, we have neither limits nor disclosure nor truly independent 

expenditures. This dependence on the special interest money has helped paralyze our nation. We 

need action for the benefit of our neighbors, yet we have become a Republic representing only 

those with big checks, maintaining a status-quo, a gridlock if you will, that rewards the victors 

and turns a deaf ear to the victims. 

The people know what's happening and it is why they don't give any more. They feel that their 

small checks aren't needed and won't make a difference. Being out of office for 20 years and 

happily and successfully engaged in community banking far away from Washington, I too began 

to see the corruption of special interest money grow and its negative impact on meaningful 

refonn: banking, tax, budget, housing, medical, trade. 

It's why I ran for president. We wanted to get campaign refonn as the first priority for a new 

Administration. Without refonn, gridlock and status quo win, and we lose. So we deliberately 

adopted a financial platfonn of both full disclosure and tight limits on giving, hoping to attract 

the average person. We had a $100 maximum on an" individual's contribution. We ac(;cpt~d no 

PAC contributions, just as I had done as Congressman and as Governor. We fully disclosed all 

contributions regardless of size. We accepted no corporate contributions. We hoped to attract the 

small, clean contributions of plain and average Americans, maybe 3 million at $100 each for a 

total of $300 million which would beat the candidates of either Party, we believed. Weak 

President, weak opposition is the way we saw it in December of 20 I O. And there was no one 

fighting for campaign refonn. 

3 
64 

The internet phenomenon would get us started, and the debates would put wind into our sails, we 

planned. As it turned out, we didn't get invited to a single one of the 23 nationally televised 

debates. We did achieve matching funds, raised $800,000 with contributors from all 50-states 

averaging nearly $50 per contribution and had 7% in a national poll the wcek bcforc the failure 

of Americans Elect when we had to drop out. 

During the campaign, I said that my first bill before Congress would be Campaign Refonn; that 

the necessary actions rcquired to start this economic cngine (Tax, Budgct, Mcdical, Banking, 

Trade, Energy, and Regulatory Refonn) would not be possible with the special interests owning 

the Congress or the White House, so we had to lead with refonn. The list of content for this 

Refonn Bill would include (I) full disclosure, (2) 48-hour reporting, (3) no financial 

contributions or financial assistance from rcgistered lobbyists, (4) PAC contributions be limited 

to that of individuals, (5) Establish a low threshold definition for "coordination" of third Party 

expenditures and have the same full disclosure and reporting requirements as those for dircct 

contributions, (6) disallow lobbying by fonner members for a period of 5-years after retiremcnt, 

and (7) criminal penaltics for thc willful violations of these conditions. 

Additionally, I have grown to like the use of public funds for candidates for Federal office who 

meet a standard of fundraising of $100 contributions. These seven measures put meat on the 

bones ofrefonn and give an opportunity for "wc the people" to fund campaigns. 

I recommend that we work simultancously on statutory and constitutional efforts to increasc thc 

public discourse while revealing the special interests without limiting the right to free speech. 

An appropriate Constitutional Amendment could be required as we work through this complex 

problem, but much can be done without a Constitutional Amendment. The time required for a 

constitutional approach is uncertain and appropriate content needs full scrutiny so I see the need 

to follow a two-initiativc approach at the same time: statutorily and constitutionally. We cannot 

wait as a nation, so we must have a two-pronged effort from the beginning: an immediate 

correction maximizing the chance for real people to get re-involved and re-move the gridlock 

addiction fostered by the special interests who dominate fundraising (my seven point plan for 

example), while constitutional efforts are coordinated. 

We have not picked on events or parties or personalities who are corrupt or who have been 

bought by the special interest checks. That's not the problem. The problem is a system that is 

corrupt and the corruption of an honored in~titution of which you are a member. It will not stand. 

More and more of us are leaving our day jobs and our homes and fighting for the restoration of 

our Republic. A group of us have started The Refonn Project, a not for profit organization 

designed to be engaged in the debate, to foster action and refonn, and to stand with those 

attacked by the special interest, status quo gridlockers. 

Neither party has embraced needed refonn. Both major parties are addicted to the special interest 

money. President Truman, a Democrat, and Teddy Roosevelt, a Rcpublican, would have 

4 
65 

surveyed this landscape of special interest money and hidden contributions and gridlock within 

America in trouble and wondered what has happened to our nation. 

Let me answer their question. Nothing is wrong with America that we cannot correct, strengthen 

and re-build. We must do it together. We constitutionally must allow money to fuel debate and 

discourse it is a part of our precious liberty --, but the funds must comc from the people, not 

solely or primarily from the special interests if we are to can ourselves a "Republic". At a 

minimum, we must reveal the pervasive presence of special interest money, because it falls in 

love with itself, requires attention and feeding and, as a result, negatively impacts our neighbors 

in times of real need. 

We can do this. Let us begin. 

5 
66 

Testimony before the U.S. Senate Judiciary Committee's Subcommittee on the 

Constitution, Civil Rights, and Human Rights 

lIya Shapiro 

Senior Fellow in Constitutional Studies, Cato Institute 

July 24, 2012 

Chainnen Durbin and Leahy, Ranking Member Graham, and distinguished 

members of the Subcommittee, thank you for this opportunity to discuss the regulation of 

political campaigns. 

By way of overview, let me note that Citizens United is one of the most 

misunderstood high-profile cases ever, and so my testimony will review what the case 

actually said, briefly opine on the constitutional amendments and legislation proposed in 

response, and outline a better solution to our unworkable campaign finance regime. 

Now, Citizens United is both more and less important than you might think. It's 

more important because, beyond whatever effect it has on the amount of corporate or 

union money in politics, it has revealed the instability of our current system. It's less 

important because it doesn't stand for half of what many people say it does. 

Take for example President Obama's famous statement that the decision 

"reversed a century of law that I believe will open the floodgates of special interestsincluding foreign corporations-to spend without limit in our elections."! In that 

sentence, the fonner constitutional law professor stated four errors of constitutional law. 

First, Citizens United didn't reverse a century of law, but 20 years at most. The 

president was referring to the Tillman Act of 1907, which prohibited corporate donations 

to candidates and parties. Citizens United didn't touch that issue. Instead, the overturned 

precedent was a 1990 case that, for the first and only time, allowed a restriction on 

political speech based on something other than corruption or the appearance thereof.2 

Second, as far as opening the floodgates to special interests goes, it depends on 

how you define those tenns. As you may have read in the New York Times magazine this 

weekend, there's no indication that there's a significant change in corporate spending this 

election cycle.3 There are certainly people running Super PACs who would otherwise be 

supporting candidates in other ways-as bundlers or directors of regular PACs-but 

Super PACs aren't a function of Citizen/1 United (as I'll get to shortly). And the rules 

affecting the wealthy individuals who do seem to be spending more-be they Sheldon 

Adelson on the Republican side or George Soros on the Democratic side-haven't 

changed at all. It's just unclear that any "floodgates" have been opened or what these 

special interests are that didn't exist before. 

1 State of the Union 2010 (Jan. 27, 2010), available at http://www.whitehouse.gov!the-pressoffice/remarks-president-state-union-address. 

2 Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990). For a further critique of such 

assertions, see Ilya Shapiro & Nicholas Mosvick, Stare Decisis After Citizens United: When Can Courts 

Overturn Precedent, 16 NEXUS: CHAPMAN'S JOURNAL OF LAW & POLICY 121,125-26 (2011). 

3 Matt Bai, How Much Has Citizens United Changed the Political Game?, N.Y. TIMES MAGAZINE, July 22, 

2012, available at http://www.nytimes.coml20 12/07 122/magazinelhow-much-has-citizens-united-changedthe-political-game.html. 
67 

Third, the rights of foreigners--{;orporate or natural persons-is another issue 

about which Citizens United said nothing. Indeed, just this year the Supreme Court 

summarily upheld the restrictions on foreign spending in U.S. political campaigns.4 

Fourth and finally, there's the charge that spending on elections now has no 

limits. That's close to the truth in the context of independent political speech, but it's 

certainly not for candidates and parties, nor for their donors. Again, Citizens United did 

not rule on either individual or corporate contributions to candidates. All Citizens United 

did was remove the limits on independent associational expenditures. 

More important than Citizens United was SpeechNow.org v. FEC, decided two 

months later in the D.C. Circuit.s That decision removed the limits on individual 

donations to independent expenditure groups, which led to the creation of the so-called 

Super PACs. Previously, we had plain-old PACs-political action committees--defined 

as any group receiving or spending $1,000 or more for influencing elections, to which 

individuals could only donate $5,000 per year. Now you still have to register these 

groups but there's no limit on how much people can donate to them. Citizens United 

merely allowed the use of general treasury funds for speech, while SpeechNow.org freed 

people to pool their money to speak in the same way one very rich person could already. 

And so, if you're concerned about the amount of money spent on electionsthough Americans spend more annually on chewing gum and Easter candy6-the 

problem is not with the big corporate players. This is another misapprehension of those 

who criticize Citizens United: Exxon, Halliburton, and all these "evil" companies (or 

. even so-called good ones, like Apple and Google) aren't suddenly dominating the 

political conversation. They actually spend very little money on political advertising, 

partly because it's more effective to spend money on lobbying but more importantly, why 

would they want to alienate half of their customers? As Michael Jordan famously said 

when he was criticized for not speaking about politics, "Republicans buy sneakers toO.,,7 

Fortune 500 companies are very cautious; they won't risk the kind of consumer 

reaction that Target faced after supporting a candidate who opposed gay marriage. All 

they want is a legal regime their phalanx of lawyers and accountants can manage, gladly 

accepting regulations that are disproportionately onerous to their more entrepreneurial 

competitors. Many corporations liked the pre-Citizens United restrictions because then 

they didn't have to decide whether to spend money on political ads! 

4 Bluman v. FEC, 132 S. Ct. 1087 (2012). 

5 SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). 

6 George Will, How States Are Restricting Political Speech, WASH. POST, Feb. 3, 2012 (presidential 

campaigns spend roughly the same as what Americans do on Easter candy), 

http://www.washingtonpost.com/opinions/states-are-cracking-down-on-political-speech-with-burdensomelaws!2012!Olf31!gIQAPe6ziQ_story.html; George Will, A Campaign-Finance Bill That Doesn't Pass 

Muster, WASHINGTON POST, Apr. 27, 2011, (Obarna may raise $1 billion in private contributions for the 

2012 race, half of what Americans spend on Easter candy), http://www.washingtonpost.comlopinionslacampaign-finance-bill-that-doesnt-pass-muster!2011l04!26!AFXpSqOE_story.html; George Will, The 

Democratic Vision of Big Brother, WASH. POST, Oct. 17,2010 (election spending for every U.S. office 

during two-year cycle is less than Americans spend on candy in two Halloween seasons) 

http://www.washingtonpost.com/wp-dynfcontentlarticle/20101l0115/AR2010101504201.htm!. 

7 Jordan made the statement in response to questions about why he wouldn't endorse the black Democratic 

candidate, Harvey Gantt, in the 1990 North Carolina Senate race against Republican Jesse Helms. See, e.g., 

Kurt Badenhausen, The Business of Michael Jordan Is Booming, FORBES, Sept. 22, 2011, 

http://www.forbes.comlsiteslkurtbadenhausenf20 II !09!22!the-business-of-michael-jordan-is-booming!. 

2 
68 

On the other hand, groups composed of individuals and smaller players now get to 

speak: your National Federations of Independent Business and Sierra Clubs, your NRAs 

and Planned Parenthoods. They can't lobby as much as the big boys on K Street, but 

they definitely enrich the public discourse and keep government honest. So even if we 

accept "leveling the playing field" as a proper basis for campaign regulation, Citizens 

United's freeing up of associational speech levels that playing field in many ways. As Ira 

Glasser, the ACLU's former executive director, put it, "if regulating unevenness of 

speech by regulating the unevenness of wealth is the goal, then why include small 

business corporations ... but not Warren Buffett?"s 

Moreover, it's a good thing that the First Amendment protects political speech 

regardless of the nature of the speaker: People don't lose their rights when they get 

together and associate, whether it be in unions, non-profit advocacy groups, private clubs, 

for-profit corporations, or any other form. 9 But the ruling does create the odd situation 

whereby independent ROlitical speech is mostly unbridled while candidates and parties 

are heavily regulated. 0 That's not necessarily a bad thing-parties aren't privileged 

under the Constitution-but it does create a weird dynamic. 

Now, I've reviewed the various proposals introduced in this Congress to remedy 

this scenario, as well as some of Citizen United's other perceived ills. They're too 

numerous to detail here, but they have certain commonalities: limiting spending or 

donations, prohibiting political speech through the corporate form, removing First 

Amendment protections from all but natural American persons, expanding public 

financing of campaigns, etc. The idea is that if we could only get private money out of 

politics, elections will be cleaner and the government more accountable to the people. 

The underlying problem, however, is not the under-regulation of independent 

speech but the attempt to manage political speech in the first place. Political money is a 

moving target that, like water, will flow somewhere. If it's not to candidates, it's to 

parties, and if not there, then to independent groups or unincorporated individuals acting 

together. Because what the government does matters and people want to speak about the 

issues that concern them. To the extent that "money in politics" is a problem, the 

solution isn't to try to reduce the money-that's a utopian goal-but to reduce the scope 

of political activity the money tries to influence. Shrink the size of government and its 

intrusions in people's lives and you'll shrink the amount people will spend trying to get 

their piece of the pie or, more likely, trying to avert ruinous public policies. 

While we await that shrinkage--my Cato colleagues have some suggestions if 

you're interested-we do have to address the core flaw in our modern campaign finance 

regime. That flaw is not a stubborn First Amendment that grants more protection to 

political speech here than anywhere in the world. Instead, the original sin, if you will, 

was committed b~ the Supreme Court, not in Citizens United but in the 1976 case of 

Buckley v. Va/eo. I By rewriting the Watergate-era Federal Election Campaign Actl2 to 

8 Ira Glasser, Understanding the Citizens United Ruling, HUFFINGTON POST, Feb. 3, 2010, 

http://www.huffingtonpost.com/ira-glasser/understanding-the-emcitiz.-b _44734 2.html. 

9 See, e.g., IJya Shapiro & Caitlyn W: McCarthy, So What If Corporations Aren't People?, 44 I. MARSHALL 

L. REv. 701, 707-08 (2011). 

10 See discussion of Comedy Central's satire of the present system in Ilya Shapiro, Stephen Colbert Is Right 

to Lampoon Our Campaign Finance System (And So Can You!), 6 ST. THOMAS I.L. & PUB. POL'y _, _ 

(forthcoming 2012), a\lailable at http://papers.ssm.com!so13/papers.cfm?abstracUd=210274 7. 

11 Buckley v. Valeo, 424 U.S. 1(1976). 

3 
69 

eliminate limits on campaign spending while keeping caps on contributions to candidates, 

Buckley upset Congress's finely balanced global reform. 

By refusing to strike down FECA altogether, just excising its expenditure limits, 

the Court produced a system where candidates face an unlimited demand for campaign 

funds but a tapered supply. That's why legislators spend all their time fundraising. Some 

would say that's a feature not a bug-because, of course, the government that governs 

least, governs best-but nevertheless these rules have inflated the priority of fundraising 

efforts. Moreover, the regulations have pushed money away from candidates and toward 

advocacy groups-undermining the worthy goal of accountable government. 

The solution is rather obvious: Liberalize rather than further restrict the campaign 

finance regime. Get rid of limits on contributions to candidates-by individuals, not 

corporations-and then have disclosures for those who donate some amount big enough 

for the interest in preventing the appearance of quid pro quo corruption to outweigh the 

potential for harassment. Then the big boys who want to be real players in the political 

market will have to put their reputations on the line, but not the average person donating 

a few hundred bucks---or even the lawyer donating $2,500-and being exposed to 

boycotts and vigilantes. Let the voters weigh what a donation from this or that plutocrat 

means to them, rather than-and I say this with all due respect-allowing incumbent 

politicians to write the rules to benefit themselves. 

In sum, we now have a system that's unbalanced, unstable, and unworkable-and 

we haven't seen the last of campaign finance cases before the Supreme Court or attempts 

at legislative reforms. At some point, however, there will be enough incumbents who 

feel that they're losing message control to such an extent that they'll allow fairer political 

markets. It's already happening: Earlier this month, the Democratic governor of Illinois 

signed a law that allows state candidates to receive unlimited campaign contributions if 

their race includes significant independent spending. 13 This deregulation is a mere act of 

political self-preservation, but that's fine. Once more incumbents realize that they can't 

prevent communities of people from organizing to express their views, they'll want to 

capture more of those dollars. Stephen Colbert would then have to focus on other laws to 

lampoon, but I'm confident that he can do that and we'll be better off on all counts. 

Ultimately, the way to "take back our democracy"-to invoke the name of this 

hearing-is not to further restrict political speech but to rethink the basic premise of 

existing regulations. 

Thank you again for having me. I welcome your questions. 14 

12 As amended by the Federal Election Campaign Act Amendments of 1974, P.L. No. 93-443. 

13 See, e.g., Free(er) Speech for ll/inois, WALL ST. J., July 12, 2012, available at 

http://professional. wsj .com/article/SB I 000 142405270230374070457752276070264006 8.html?mod =djemE 

ditorialPage _ h&mg=reno64-wsj. 

14 In addition to these prepared remarks, I've submitted to the hearing record the three law review articles 

I've written regarding post-Citizens United campaign finance, which were the basis for my presentation. 

Ilya Shapiro & Caitlyn W. McCarthy, So What IjCorporations Aren't People?, 44 J. MARsHALL L. REv. 

701 (2011), also available at http://papers.ssrn.com!so13/papers.cfm?abstracUd=1873158; I1ya Shapiro & 

Nicholas Mosvick, Stare Decisis After Citizens United: When Can Courts Overturn Precedent, 16 NEXUS: 

CHAPMAN'S JOURNAL OF LAW & POLICY 121 (2011), also available at 

http://papers.ssrn.com/so13/papers.cfin?abstracUd=1760127; Ilya Shapiro, Stephen Colbert Is Right to 

Lampoon Our Campaign Finance System (And So Can You!), 6 ST. THOMAS J.L. & PUB. POL'y _ 

(forthcoming 2012), available at http://papers.ssrn.com/so13/papers.cfin?abstracUd=210274 7. 

4 
70 

TESTIMONY OF 

LAWRENCE LESSIG 

ROY 1. fuRMAN PROFESSOR 

OF LAW AND LEADERSHIP 

HARVARD LAw SCHOOL 

SENATE JUDICIARY COMMITTEE, 

SUBCOMMITTEE ON 

THE CONSTITUTION, CIVIL RIGHTS AND HUMAN 

RIGHTS 

HEARlNGON 

"TAKING BACK OUR DEMOCRACY: 

RESPONDING TO CITIZENS UMTED 

AND THE 

RISE OF SUPERPACs." 

JULY 24,2012 

INTRODUCTION 

Mr. Chairman, and Members of the Committee, my name is 

Lawrence Lessig, and I am the Roy L. Furman Professor of Law 

and Leadership at Harvard Law School. I also direct the University's Edmond J. Sma Center for Ethics. I have been a professor at 

Stanford and the University of Chicago. Before teaching, I clerked 

for Judge Richard Posner of the Seventh Circuit Court of Appeals, 

and Justice Antonin Scalia. 

I commend this Committee, and its Chairman, for holding this 

hearing, a celebration of the extraordinary grassroots movement 

that has developed to demand the reversal of Citizens United, and 

"" ,,"J to a system for funding el....:.tions thalleads most America"" 

to belIeve that this government is corrupt. Hundreds 01 thousands 

of citizens have gotten hundreds of cities, and now a half a dozen 

states, to pass resolutions calling on Congress to correct the Supreme Court's mistake. It has been a century since we have seen 

such anti-corruption activism, and it is a testament to the leadership of the many new grassroots organizations, such as Free Speech 
71 

for People, and Move to Amend, that in just two years, they have 

achieved so much. 

Yet this hearing is just the beginning of the serious work that 

will be required to address the problem in America's democracy 

that Citizens United has come to represent. That problem can be 

simply stated: 

The People have lost faith in their government. 

They have lost the faith that their government is responsive to 

them, because they have become convinced that their government 

is more responsive to those who fund your campaigns. As all of 

you, Democrats, Republicans, and Independents alike, find yourselves forced into a cycle of perpetual fundraising - spending, according to the estimates in the academic literature, anywhere between 300Al and 70% of your time raising money to get back into 

office or to get your party back into power - you become, or at 

least most Americans believe you become, responsive to the will of 

"the Funders." But "the Funders" are not "the People": .26% of 

Americans give more than S200 in a congressional campaign; .05% 

give the maximum amount to any congressional candidate; and 

.01% - the 1% of the 1% - give more than $10,000 in an election cycle.1 We have up-sourced the funding of your campaigns to 

the tiniest fraction of the 1%; America has grown cynical in response. 

Citizem Unitedhas only made this problem worse, as it has further and predictably concentrated funding in an even smaller slice 

of America. In the current presidential election cycle, .000063% of 

America - that's 196 citizens have funded 80% of Super PAC 

spending.2 22 Americans - that's 7 one-millionths of 1 % - account for 50% of that funding. Citizens United has thus further 

shifted the sources of campaign funding toward an ever shrinking 

few. 

This, Senators, is corruption. Not "corruption in the criminal 

sense. I am not talking about bribery or quid pro quo influence 

1 See Lee Drutman, The Political One Percent of the One Percent, Sunlight Foundation Blog, http://bit.ly/LHoAfr. 

2 Ari Bennan, The .000063% Election, The Nation, http://bit.lyILHoOmE. 

2 
72 

peddling. It is instead "corruption" in a sense that our Framers 

would certainly and easily have recognized: They architected a government that in this branch at least was to be, as Federalist 52 puts 

it, "dependent upon the People alone." You have evolved a government that is not dependent upon the People alone, but that is also 

dependent upon the Funders. That different and conflicting dependence is a corruption of our Framers' design, now made radically worse by the errors of Citizens United. 

As the Supreme Court has now doubled down on its deeply 

flawed decision, it is both appropriate and necessary for this Congress to consider how best to respond. 

But in considering that response, you should not lose sight of 

this one critical fact: On January 20, 2010, the day before Citizens 

United was decided, our democracy was already broken. Citizens 

United may have shot the body, but the body was already cold. And 

any response to Citizens United must also respond to that more 

fundamental corruption. We must find a way to restore a government "dependent upon the People alone," so that we give "the People" a reason again to have confidence in their government. 

How you do that will be as important as what you do. America's cynicism about this government - whether fair or not - is 

too profound to imagine that this Congress alone could craft a response that would earn the confidence of the People. The eyes of 

Americans glaze over when they hear you speak of "campaign finance reform," because they don't believe you would ever do anything that would truly end the institutional corruption that too 

many within this beltway depend upon. 

Instead, this Congress needs to find a process to discover the 

right reforms that could itself earn the trust of the American people. That process should not be dominated by politicians, or law 

professors, or indeed any of the professional institutions of American government. It should be dominate,l :;l,tead by thk! People. 

I have today submitted to this committee the outline of one 

such plan - a series of "citizen conventions," constituted as a kind 

of citizen jury, and convened to advise Congress about the best 

means of reform. But whether it is this process or another, your 

challenge is to find a process that could convince America that a 

3 
73 

corrupted institution can fIx itself That is not an easy task, though 

it is crucial if you are to stop the spiraling cynicism that marks 

America's attitude towards its government. 

The confIdence of the American people in this government -

in you - is at an historic low. That is not because of the number of 

Democrats sitting in Congress. It is not because of the number of 

Republicans. It is because of a dependence that all of you, and all 

of us, have allowed to evolve in this government, that we all see 

draws you away from a dependence upon "the People alone." I 

commend you for the beginning this hearing represents, but I urge 

you to act now in a way that has a real chance to restore that confidence. 

CITIZENS UNITED AND ITS EFFECT 

There have been but few decisions in the history of the Supreme Court that have excited as much outrage and sustained fury 

from citizens across the political spectrum as has Citizens United 

Whether or not the decision is the "worst ... this century," as 

Senator McCain has described it, it is, in my view, one of the most 

clumsy. One could easily agree with the principle at the core of the 

Court's reasoning - that Congress hasn't the power to effectively 

ban for any sustained period of time the speech of any entity engaging in political activity - without accepting the principle that 

the case has come to stand for: that Congress has no power to limit 

the corrupting influence of unlimited independent expenditures. 

That second principle does not follow from the fIrst: One could 

easily insist that the government does not have the power to effectively silence the political speech of anyone or any group -

whether immigrants, corporations, the French or dolphins for that 

matter - without concluding that the government has no power 

to limit the corruption of its democracy. 

Yet it is this broader principle that has led courts and the Federal Election Commission to truly revolutionize the actual practice 

of campaign funding, and not just at the federal level. Courts have 

taken the hint from the Supreme Court's recent cases, and remade 

the nature of campaign fundraising. 

This is not to say that before Citizens United, large contributions or expenditures did not matter. Of course they did. But Citi4 
74 

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

contributions.3 

Before Citizens United, individuals could make large contributions to qualified nonprofit corporations ("c(4)s"). But c(4)s were not 

permitted by the IRS to make "political influence" their primary 

purpose. Thus c(4)s had to spend 50% or more of their funds on 

activities other than "political influence." In this way, the influence 

of c(4) contributions was effectively taxed at a 50% rate. 

Likewise, before Citizens United, individuals and corporations 

could contribute to independent political committees organized 

under section 527 of the Internal Revenue Code ("527s"). All 527s 

can spend 1000Al of their money for purposes of "political influence." If they acted independently of any political campaign, 527s 

could also accept unlimited contributions - but only so long as 

they avoided express advocacy for or against any candidate. Thus, 

money contributed to these 527s wasn't taxed with the burdens of a 

c(4). But it was burdened by the risk that its indirect advocacy 

would be deemed express advocacy, and thus subject to penalties 

from the F.E.C. 

Citizens United and its progeny have radically changed these 

two limits. Relying upon Citizens United, the D.C. Circuit lifted 

the contribution limits on independent 527s that engage in express 

advocacy. The F.E.C. then formalized the rules governing these 

committees, creating what has been dubbed, by Eliza Newlin Carney, the "Super PAC." 

Super PACs are thus a classic story of American innovation: 

deliver more bang for the buck, and radically change the market. 

Because Super PACs aggregate contributions, they spend their 

money more efficiently than contributors could on their own. Because they are freed of the effective 50% ~ax on c(4)s, the aggTe3 Throughout this testimony, by "contributions" I mean both direct contributions 

to a campaign, and indirect contributions to "independent" political action 

committees. This aggregation is not meant to deny that the independent committees act independendy. Whether they do or not, the beneficiary (the candidate) certainly can recognize what he or she must do in order to induce more 

such contribu tions. 

5 
75 

gated contributions will have more effect. And because they are 

freed of the rule against express advocacy, the contributions can be 

more effective. As the iPhone taught the cellphone, or the Internet 

taught the mainframe, or the PC taught the calculator: do more 

more efficiently, and demand will take off. 

And so has the demand for Super PAC spending soared: As 

the Sunlight Foundation reports, in the 2011-12 cycle so far, more 

than a quarter of a billion dollars has been raised by Super PACs. 

Of the $142 million spent so far, negative spending has outstripped 

positive spending 2 to 1.4 OpenSecrets.org reports that through 

April, "outside spending in all its forms has doubled since 2008, 

but independent expenditures have more than tripled."5 And while 

there are questions about whether that growth was truly caused by 

Citizens United,6 there can be no question that changes in the concentration of funding have been driven by changes caused by Citizens United. Whether there was a comparable amount of money in 

2008 or not, the number of large funders has grown. In my view, it 

is this concentration that defines the corruption, for it is this concentration that creates the corrupting dependence.? 

The full effect of Citizens United, however, is not captured in 

numbers. Indeed, there are three points beyond the numbers that 

this committee should keep in view. 

1. Citizens United has radically changed the business model of political fundraising. 

The most important effect of Citizens United is a change in the 

business model of campaign funding. When contributions (either 

directly to a campaign or indirectly to an "independent" commit4 See Follow the Unlimited Money, http://bit.lyILIJ77Y. 

5 See Bob Biersack, Outside Spending: The Big Picture (So Far), OpenSecretsBIng, hrtj>:/fbit.lyII Ill:> 7R 

6 See, e.g., Matt Bai, How Much Has Citizens United Changed the Political 

Game?, New York Times, July 17, 2012. See also Rick Hasen's succinct response 

to Bai's piece. Election Law Blog, http://bit.lyILIJe3w. 

7 It is for this reason that proposals to "remedy" the problem caused by Citium 

United by simply lifting all contribution limits simply misses the point If the 

corruption is caused by the gap between "the Funders" and "the People," lifting 

contribution limits will simply increase that corruption, by increasing that gap. 

6 
76 

tee) are limited, candidates must appeal to a large number of potential contributors to fund their campaigns. But when such contributions are unlimited, the most efficient way to fund a campaign 

is to appeal to large contributors alone. Candidates' time is short. It 

makes much more sense to spend that time trying to secure large 

contributions rather than small. And this fact in tum radically expands the influence of large contributors over others within the 

electoral system.8 

This is precisely the point that the Montana Supreme Court 

made when upholding its regulation of corporate speech in political elections, but which the United States Supreme Court reversed 

(without even granting Montana the courtesy of a fully briefed 

opinion). As the Montana Court wrote, "allowing unlimited independent expenditures of corporate money into the Montana political process would drastically change campaigning by shifting the 

emphasis to raising funds."9 Instead, by limiting contributions and 

the source of those contributions, campaigns in Montana are 

"marked by person-to-person contact and a low cost of advertising 

compared to other states."lO 

By structuring an election system in which candidates must rely 

upon small contributions from citizens only, the system assures that 

candidates pay attention to the needs of those contributors and 

hence the needs of these citizens. But when contributions are concentrated in the very few, those few have a corrupting influence, 

S Congressman John Sarbanes (D-MD) has reacted to this dynamic by creating 

a formal structure to create pressure on him, and his campaign, to raise small 

contributions to support his election. Through a legal trust, his campaign raised 

funds that could only be accessed once 1,000 small contributors had been secured. See Paul Blumenthal,John Sarbanes Experiments With His Own Campaign 

To Promote Public Financing, http://huff.tolPzpkVm.Tomyknowledge,this is 

only time such a device has been used in the history of the Naiton, and it reflects 

the strong pressure on a congressional campaign that would otherwise exist to 

raise funds in large contributions only. On June 30, Sarbanes met his initial target of 1',000 contributors. 

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

10 The Montana Court also credited the work by Edwin Bender of the National 

Institute on Money in State Politics, who found that the "percentage of campaign contributions from individual voters drops sharply from 48% in states with 

restrictions on corporate spending to 23% in states wi thout." ld. This finding is 

consistent with the theory that unlimited contributions drive the business model 

of fundraising away from small contributions to large. Id. 

7 
77 

because the government's dependence upon them conflicts with a 

dependence upon the people "alone." 

Yet concentrated influence is exactly what the current system of 

campaign funding induces. As many have recognized, it is as if 

America runs two elections each election cycle - one a money 

election, and one a voting election. To succeed in the latter, you 

must succeed in the former fIrst. But while in the voting election, 

all citizens can participate, in the money election - at least when 

contributions are unlimited only a tiny slice of America can participate meaningfully. Those tiny few have extraordinary influence 

relative to the rest of us. And so long as effective contributions are 

unlimited, candidates will continue to be dependent upon those 

tiny few, and hence not "dependent upon the People alone." 

2. Citizens United has affected local as well as national elections. 

The principles that the Court announced in Citizens United 

derive from the First Amendment. Yet because of incorporation, 

they apply to every political entity subordinate to the federal government as well. Thus the rules of unlimited expenditures that are 

changing the nature of presidential and congressional elections are 

changing the nature of state and local elections too - including 

judicial elections.ll Norms favoring campaigns funded primarily by 

large contributions are displacing the practice of small, citizen 

funded elections. David Sirota, for example, writes in Salon about 

the extraordinary story of a school board race in Denver dominated 

by $25,000 contributions.12 Total contributions in that race approached $1 million. Sirota's story is an increasing norm.13 

11 Perhaps strangely, when it comes to judicial elections, the Supreme Court is 

quite sensitive to the corrupting influence of unlimited independent expenditures. In Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), for example, 

the Court crafted 2. new ('''''~t\tutiona.l mle to forrp "judge to recuse him~el("in 

the face of large independent campaign expenditures, for fear that the taint of 

corruption would taint the judicial process. Why independent expenditures 

could taint judicial elections but not legislative or presidential election was not 

explained well by the Court. 

12 See http://bit.lyIIlJiAa. 

13 See Ben Tribbett, Citizens United Goes Local, Huffington Post, 

http://huff. toILHeU4 E. 

8 
78 

No doubt real differences are at the core of these races, and 

drive these contributions. And in a democracy, in my view, we need 

more, not less, attention to political and policy differences. That 

attention, in turn, will cost more real money. 

But the problem with the post-Citizens United campaigns is 

not the amount of money. It is the source. Again, to qua1if)r as a 

viable candidate in elections from school board to president, you 

increasingly need the effective approval of the tiniest slice of the 

1 %. Without that approval- expressed in contributions, not votes 

- the vast majority of candidates have no chance in the voting 

election. For most, winning the (tiny fraction of the) 1% election is 

thus a necessary condition for winning in the 9<JOr6 election. 

We ridiculed Soviet "democracy" when it effectively did the 

same thing, by requiring every candidate be cleared by the Politburo before being allowed on the ballot. Yet most in America today 

don't even recognize the parallel that we have produced here. 

3. More ejfictive disclosure alone could not reveal the influence 

that Citizens United has ejficted. 

There are some who believe that any problem that Citizens 

United created could be remedied simply by more effective disclosure. It is critical that this Committee recognize that however important disclosure is, disclosure alone could not reveal the actual influence of unlimited independent expenditures. 

This point is clear from both academic work and practical political experience. 

Marcos Chamon and Ethan Kaplan, for example, in their work 

describing the "Iceberg Theory of Campaign Contributions," point 

out that the incentive produced by a $10,000 contribution to a 

candidate is the same as the incentive produced by a $2,000 contribution to that candidate, plu.; a credible threat of an $8,000 contribution to that candidate's credible opponent. 14 Given that equivalence, it's not surprising the contributor would opt for the smaller 

contribution. But obviously, the influence of that $8,000 would be 

completely missed even by the most effective disclosure statute. No 

14 See http://bit.lyILHojZN. The $10,000 assumes PAC contributions ($5,000 

per cycle). 

9 
79 

rule requires that implicit threats be disclosed. Nor could any such 

rule be enforced. 

The same point has been recognized by at least former Members of this body, relying less on formal modeling and more on the 

practical reality of post-Citizens United politics. I had the privilege, 

for example, of participating on a panel with Senator Evan Bayh, 

conducted by Senator Arlen Specter, discussing Citizens United. 

Senator Bayh explained quite clearly the dynamic that Citizens 

United has produced: As he put it, the biggest fear an incumbent 

has now is that 30 days before an election, some Super PAC will 

drop a $1 million in attack ads on the other side. If that happens, 

the incumbent can't simply tum to his or her largest contributors, 

for by definition, they have already maxed out in the campaign. So 

instead, the incumbent must, in effect, buy (what we could call) 

"Super PAC insurance": the assurance that if a Super PAC attacks, 

there will be another Super PAC on the incumbent's side to defend. But as with any insurance, premiums must be paid in advance - which in this case means the incumbent must behave in a 

way that gives Super PACs on his or her side a reason to defend 

the incumbent. ("We'd like to support you Senator, but we have a 

rule that forbids us from supporting anyone with less than a 90% 

grade on our report card ... "). The Senator thus has a target. And 

long before even a dollar is spent by anyone, that threat has the potential to change the incumbent's behavior. 

This is the economy of a protection racket. And once again, the 

influence of that protection racket could not be captured by any disclosure scheme. Thus disclosure may be essential, but disclosure is 

not enough. 

Let me emphasize this point to be clear: I serve proudly on the 

advisory board of the Sunlight Foundation, and I am a strong supporter of disclosure legislation. Effective disclosure makes it possibit: for the public to identify the influences that might influence 

their candidates. It makes it harder tor illicit influence to find Its 

effect within a political system. 

But as valuable and as necessary as disclosure is, we must recognize that it could not be a sufficient response to the corruption 

that now defines this government. Only a system of "citizen funded 

elections" - where dependence upon "the Funders" is the same as 

10 
80 

dependence upon "the People" - could reform that corruption. I 

don't need to explain this point to this Chairman, who has championed one version of "citizen funded elections" in the form of the 

Fair Elections Now Act. But I do find that in the frenzy to reverse 

Citizens United, too many have forgotten that even if we succeeded, a more fundamental problem would remain. That problem 

too requires your attention. 

THE POUTICAL RESPONSE TO CITIZENS UNITED 

On the day that Citizens United was decided, the political response to the Supreme Court's mistake was born. But interestingly, 

and importantly, that response came not just from traditional, existing, inside the beltway organizations. It came as well from a slew 

of new organizations, formed by outraged citizens from across the 

country. Groups such as FreeSpeechForPeople.org and MoveToAmendorg, launched almost simultaneously and joined many other 

more established organizations, such as Common Cause, Public Citizen, MoveOn.org, and People for the American Way, to push for a 

constitutional response to the Supreme Court's ruling. 

These grassroots movements have in turn inspired scores of 

local city councils to adopt resolutions calling on Congress to initiate an amendment to overturn Citizens United. IS Half a dozen state 

legislatures have now passed similar resolutions. 16 And literally 

thousands of citizens have been joining meet-ups and public fora 

15 Using the compilation provided by Pe~ple for theAmerican Way, Harvard Law 

student Alan Rozenshtein has calculated that more than 270 cities and towns 

have now passed resolutions. Of these, 38% call for an amendment declaring 

that "corporations are not people"; 10.2% that "money is not speech"; and 8.5% 

that corporations be denied full First Amendment rights. These cities and towns 

come from more than half the states (27). 

16 California, Hawaii, Maryland, New Mexico, Rhode Island, Vermont. 

11 
81 

to discuss what should be done to respond to the corruption of this 

system. 17 

I have had the privilege of witnessing this extraordinary energy 

first hand. Since January, 2010, I have given more than a hundred 

talks across the country to literally tens of thousands of citizens. 

These events, organized by a wide range of groups, have been 

packed with frustrated and angry citizens - and packed not just 

because of my stunning good looks. Instead, ordinary citizens on 

both the Right and the Left have come to see that something fundamental is rotten on this Hill, and that they have a crucial role in 

fixing it. 

The cities and states that have passed these resolutions are not 

aliens within our culture. Indeed, as my colleague Paul Jorgensen 

has calculated, they look very much like the rest of America. If we 

created a Nation comprised of the states that have passed resolutions against Citizens United, it would have the same basic demographics as the rest of America: the same percentage of women 

(50.5% vs 50.8%), fewer African Americans (8.6% vs. 12.6%), 

more Latinos (32.6% vs. 16.3%). And if we created a Nation comprised of the cities and townships that have passed resolutions 

against Citizens United, it would look even more like the rest of 

America: women, 50.7% vs. 50.8%; African Americans, 12.9% vs. 

12.6%; Latinos, 26.8% vs. 16.3%. The only significant difference 

between these two "anti-Citizen United nations" and the rest of 

America is the per capita political contributions: Anti-Citizen 

United America gives, per capita, much more in political contributions than the rest of America: $12.10 (States) vs. $8.80 (Nation); 

$18.90 (CitiesITowns) vs. $8.80 (Nation). 

Many in Congress have now responded in turn to this energy, 

and taken the lead to propose amendments to overturn Citizens 

United. While these amendments are different, they are all born of 

17 People for the American Way has the most complete list of passed and pending 

resolutions, which I have attached as an Appendix to this testimony. 

MoveToAmendorg has a similar list of resolutions opposing corporate personhood, as well as others that the organization believes "don't fully address corporate constitutional rights" (http;llbit.lyILHou7z). Finally, United4ThePeople.org, 

a site maintained by People for the American Way, has a list of public officials endorsing constitutional remedies, as well as a collection of the amendments that 

have been introduced so far. 

12 
82 

the common view that our democracy has been corrupted. Some 

believe the best way to attack that corruption is to deny the status 

of "personhood" to corporations. Some believe that the First 

Amendment should be amended to reverse Buckley v. Valeo, and 

declare that "money is not speech." And some believe the best way 

to respond is simply to affirm that Congress has the power to enact 

content-neutral laws regulating campaign contributions and expenditures. 

While we all have our own convictions about which of these 

various solutions would work best, what has been most striking to 

me in this process has been the open willingness of even proponents of various amendments to recognize that they are not yet 

certain about which response is best. In this way at least, this period is unlike the Progressive Era of a hundred years ago, when a 

primary source of federal corruption was thought to be, whether 

rightly or not, the structure of the United States Senate. In that 

context, the task of crafting a constitutional response was simple, 

and the 17th Amendment achieved it. 

But today, as everyone with even an ounce of humility recognizes, the challenge of crafting an appropriate constitutional response to Citizens United is incredibly difficult. The First Amendment has become the heart of America's democracy. As with open 

heart surgery, one must be extraordinarily careful before tinkering 

with the freedoms that amendment secures, even if the cause is as 

significant as the struggle to restore faith in this democracy. 

Yet in one way, the challenge facing this Congress is simpler 

than at other times in our history when constitutional reform has 

been needed. 

When the Radical Republicans proposed the Civil War 

Amendments, no one doubted that they were proposing to change 

critical principles of the original constitution. No one today questions the wisdom of lh<l.l change. But ch"hge it was. 

Likewise with the 17th Amendment: Everyone recognized that 

the decision to displace the power of state legislatures to appoint 

United States Senators was a decision to modifY the constitutional 

commitment to federalism. 

13 
83 

And likewise with the 19th Amendment: Everyone, women 

especially, understood that amendment to be a change in the Constitution's responsibility to guarantee equality to women. 

Almost everyone today agrees with each of these changes. But I 

appreciate how difficult each of them must have been, at least for 

constitutionalists of the day. The temptation to conservatism is 

strong. And against the genius of the Framers' (flawed but) brilliant design, it is always difficult to muster the courage or confidence to commit to changing it. 

But the reform that this Congress needs to effect is not any 

change of the Framers' design. It is a restoration of that design. We 

don't need to decide whether to add a new principle to their constitution. We need simply to figure out how best to respect the principles that already guided them. 

The Framers gave us a "Republic." But by a Republic, they 

meant a "representative democracy." And by a "representative democracy," they meant a government with a branch that would be 

"dependent upon the people alone." 

This Congress, however, is plainly not "dependent upon the 

people alone." It is dependent as well upon "the Funders." And in 

my view, the .simplest and most important objective of any 

amendment must be to restore that critical constitutional principle, 

by removing a dependence on anything save "the People alone." 

For the reasons that I sketched in my introduction, simply reversing Citizens United would not achieve this end. Indeed, returning America to the democracy that existed before Citizens United 

would still leave us with a democracy in which Congress was dependent upon the tiniest slice of the 1% to fund its elections. That 

dependency is corrupting - by drawing your attention away from 

the attention the Framers intended,- in exacdy the way that Citizens United is cOfrTting. And any consti.~,tional reform must con--

sider that corruption alongside the immediate and pressing need to 

reverse Citizens United. 

The ideals of the Framers' Republic could, and should, guide 

your reform. For in my view, here at least, the Framers were clearly 

right: We need a Republic, a representative democracy, with a leg14 
84 

islature "dependent upon the People alone." Reversing Citizens 

United alone won't get us that Republic. It may be an essential step. 

But it is not the last. 

NEXT STEPS 

The task this Congress faces is not just to determine the best 

amendment to restore trust in this government. It is also to do that 

in a way that itself earns the confidence of the people in that 

amendment. No constitutional reform can ever pass without broad 

and cross-partisan support. But in this political climate, no such 

support is possible unless the process you adopt for identifYing the 

necessary reform itself convinces America of its own integrity. 

This is a concern that the Framers themselves were focused 

upon. When the drafters of the constitution first architected Article V, the amending procedure, they vested in Congress exclusive 

control over the amendments that could be proposed. But an obvious question was then raised: What if Congress itself was the 

problem? That concern led the Framers to open a second path to 

amendment - securing to state legislatures the power to demand 

that Congress call an Article V convention, that itself could propose amendments. Those amendments must be ratified in the same 

way as amendments proposed by Congress. But by creating the 

possibility that they could be proposed by a body other than Congress, the Framers guaranteed a path to reform that was not controlled exclusively by the body that needed reform. 

There are many who are skeptical about an Article V convention today. In my view, much of that concern is misguided. But independently of the power of the states to demand that Congress 

convene a convention, Congress plainly has the power to constitute 

its own independent procedure for advising it about the best means 

for reform. 

In a separat_ ~uLll~>;i,iun, I have outlined one ~uch procedur..: 

that in my view could both identifY the correct reforms and do so 

in a way that would earn the confidence of the American people. 

Through a series of "citizen conventions," constituted by a random 

selection of 300 citizens within each, and conducted as deliberative 

polls, Congress could empower a body that could both deliberate 

carefully about the question of reform, and itself earn the confi15 
85 

dence of the American people in its work. That body would be removed from the influences thought to corrupt this Congress, but 

secured in its work through a series of protections that Congress 

would by law enact. Its product would represent a mature and considered judgment of a statistically fair snapshot of America. And if 

conftrmed through a series of deliberations, could well earn the 

trust sufficient to support the broad movement for reform that this 

government needs. 

I recognize that this sounds like a radical proposal - though 

how odd is it, that in a Republic, the idea of returning to the People for guidance sounds "radical.» I know there are many who are 

skeptical about the ability of ordinary citizens to deliberate seriously and effectively about an issue as important as the Constitution. 

But as a law professor who has taught in the most elite of 

America's law schools for more than 20 years, I am not at all skeptical of the work of ordinary citizens properly convened within a 

convention. Indeed, in the few examples that I've seen, I have only 

been inspired by that work.18 

Yet to the skeptics I would say this: the worst that this proposal 

could produce is ideas that may fail to inspire Congress. By contrast, the best that would happen from a process controlled exclusively by this Congress is a series of proposals that will certainly fail 

to earn the confidence of a signiftcant proportion of the American 

people. 

-whether it is "citizen conventions" or some other procedure, 

however, my point is simply this: ordinary process will not work 

here. America won't trust the work of Congress alone. Neither will 

it trust the work of any "blue ribbon commission" comprised of experts with strong ties to this Congress. Instead, this Congress must 

IS I was first convinced after a "mock" Constitutional Convention that I cochaired with Mark McKinnon, conducted at a CoffeePartyUSA.com convention 

in Kentucky. See http://bit.lyILHpusd. More than hundred attendees at that 

convention deliberated for just a day about the problems they had identified, and 

crafted a set of innovative and valuable responses. Those responses were not "liberal." They were not "conservative." To one who has studied the Constitution 

carefully, they were simply restorative. 

16 
86 

find a process that gives America a reason to listen. America has 

grown bored with elites and insiders. 

CONCLUSION 

Every one here recognizes that the work of a Member of Congress is not easy. Nor is it often fun. As your families know, you 

spend endless hours serving this Republic. You have almost no 

time to focus on even the most fundamental questions. 

In such a context, it is easy to lose perspective. And surrounded 

by those offering their support, and seeking your help, it is easier 

still to focus simply upon your good intentions. 

There is no doubt that the intentions of Members from both 

sides of the aisle are good. This is not the Congress of the Gilded 

Age. Corruption in its criminal sense is almost extinct. 

But good intentions are not enough. And with respect for this 

Committee, and love for this institution, I would urge you to step 

back and recognize something that is as clear to most Americans as 

anything could be: Our confidence in this institution is collapsing. 

This body, the crown jewel of the Framers' Republic, created in the 

first article of their Constitution, has lost our trust. Poll after poll 

finds confidence ratings at or below 109-6. Ten percent. It is certainly 

the case that a higher proportion of Americans had faith in the 

British Crown at the time of the Revolution than have faith in this 

body today. 

It is critically necessary that you act swifdy - not as Democrats or as Republicans, but as trustees to the most important 

democratic body crafted within our tradition - to give America a 

reason to trust you again. You will do that only if you make yourselves again "dependent upon the People alone" - through both 

the votes that elect you, and the funding that makes your elections 

possible. 

17 
87 

Appendix: 

People For the American Way 

List oflocal and state resolutions 

Updated 7/1712012 

This list is regularly updated at: http://www.pJaw.org/inue;/govemment-the-people/citizem-united-vjec-constitutional-remedies-list-if-Iocal-state-and-f 

Alaska 

State Resolutions 

HfR 33, introduced by Representatives Gara, Tuck, Holmes, Miller, Gardner, Kawaski, 

Kerttula, and Petersen on February 2, 2012, proposes that Congress and the President 

work to pass a constitutional amendment that would limit the ability of corporations, 

unions and wealthy individuals from making limidess independent expenditures to 

influence the outcome of elections. Currendy awaiting passage in Alaska's House of 

Representatives. 

SIR 13, introduced by Senator Dyson, passed in the Senate on March 21, 2012 in a 

12-7-1 vote and is currendy awaiting passage in the House. It proposes that Congress 

and the President work to pass a constitutional amendment that would limit the ability of 

corporations, unions and wealthy individuals from making limidess independent 

expenditures to influence the outcome of elections. 

Local Resolutions 

On July 10,2012 The City of Sitka passed a resolution supporting an amendment to the 

constitution to restore the peoples power to limit corporate influence in elections and 

policy making 

Arizona 

State Resolutions 

HCR 2049, introduced by State Representative McCune Davis on February 1,2012, 

provides support for the introduction of a 2012 ballot initiative that would call upon 

Congress to pass a constitutional amendment to overturn the Citizens United decision 

and related cases. 

SCR 1040, introduced by State Senator Steve Gallardo on January 31, 2012, provides 

support for the introduction of a 2012 ballot initiative that would call upon Congress to 

pass a constitutional amendment to overturn the Citizens United decision and related 

cases. 

Local Resolutions Passed 

On May 4, 2012 the Flagstaff City Council passed a resolution calling fur a 

constitutional amendment, organized by a new citizens' group called Flagstaff for 

Democracy planned. The resolution calls on Congress to approve a 28th amendment to 

the United States Constitution that would overturn Citizens United by stating that 

rorporations are not natural ["{Son'; entit1erl to can<titutional protections of IT.". ,pepel. 

that money is not speech for the purpose of influencing elections, and that local, state and 

federal government shall have the right to regulate, limit or prohibit contributions and 

expenditures, including a candidate's own contributions and expenditures for the purpose 

of influencing in any way the election of any candidate for public office or any ballot 

measure, and that any permissible contributions and expenditures be publicly disclosed. 

On June 12,2012, The Tuscon City Council voted 7-0 in favor of abolishing corporate 

personhood and supporting a Constitutional amendment. 

Arkansas 

Local Resolutions Passed 

Appendix-l 
88 

OnJune 5,2012, the Fayetteville City Council passed a resolution to defend democracy 

by ensuring only human beings, not corporations, have constitutionally protected frce 

spr,pch. 

California 

State Resolutions 

AJR 3, introduced on January 23, 2010 by Assemblyman Pedro Nava (D-35), expresses 

disagreement with the Citizens United ruling, and calls upon Congress to pass a 

constitutional amendment to address the issue. 

AIR 22, introduced on March 20, 2012 by Assemblyman Weikowski, passed in the 

California State Assembly and passed in the California State Senate. Thus, California 

became the 6'" state to call upon Congress to propose an amendment. It proposes that 

Congress pass a constitutional amendment to overturn the Citizens United decision. 

Local Resolutions Passed 

On April 25th, 2000, the municipality of Point Arena passed a resolution rejecting 

corporate personhood, which declared, "Interference in the democratic process by 

corporations frequently usurps the rights of citizens to govern." 

On May 19,2004, the city of Arcata passed Resolution No. 034-51, the Corporate 

Personhood Resolution, declaring corporate personhood illegitimate and undemocratic. It 

attempts to prevent corporations from challenging Arcata town laws that restrict 

corporations. 

On February 10,2010, the Humboldt County Democratic Central Committee passed 

the Resolution to Legalize Democracy and Abolish Corporate Personhood in response to 

the Citizens United v. FEC ruling. The resolution calls for an amendment to the US 

Constitution to abolish corporate personhood. 

On March 1,2010, Richmond City Council votes unanimously to support a resolution 

calling for a constitutional amendment to abolish corporate personhood. 

On April 1, 2010, the Berkeley City Council passed a resolution calling for "amending 

the United States and California Constitutions to declare that corporations are not 

entitled to the protections or "rights" of human beings and to declare that the expenditure 

of corporate money is not a form of constitutionally protected speech." 

On December 1, 2010, students at UC Santa Barbara passed a resolution against 

corporate personhood through their student government. 

On March 28, 2011, the Fort Bragg (CA) City Council passed a resolution calling for a 

constitutional amendment to ban corporate personhood. All of the council members 

present voted for it; one member was absent. 

On April 1, 2011, AFSCME Local 1684 in Eureka passed a resolution condemning the 

Supreme Court's ruling on Citizens United and proposing a constitutional amendment to 

reverse the decision. 

On April 12, 2011, the Central Labor Council of Humboldt and Del Norte adopted the 

Move to Amend Model Resolution. 

On April 22, 2011, the Associated Students of HSU passed a resolution supporting the 

Move to Amend campaign anrl calling for a constitutional amendment te ~oolish . 

corporate personhooJ. '1 he resolution was propose.! by a group of students working with 

Democracy Unlimited. 

On July 21, 2011, the South Robertson Neighborhood Council (SORONC) passed a 

non-binding resolution to amend the Constitution to state clearly and unequivocally that 

human beings, not corporations, are entitled to constitutional rights and that money 

should not be equated with speech. 

On August 15,2011, the Ojai Valley Democratic Club endorsed a resolution supporting 

a Constitutional amendment ending corporate personhood. 

On August 24, 2011, the Marin County Board Supervisors voted unanimously in favor of 

a resolution supporting a Constitutional amendment to overturn the Citizens United 

decision and limit corporate constitutional rights. 

Appendix-2 
89 

On Tuesday October 18,2011, the Marina City Council passed a resolution calling for a 

constitutional amendment in response to the Citizens United vs Federal Election 

r '''Y'.mission case, 

On December 1,2011, the Wellstone Progressive Democrats of Sacramento passed a 

resolution that calls for a constitutional amendment that abolishes corporate personhood. 

They also agreed to send a letter with the endorsed resolution to the California State 

Democratic Central Committee asking the California Democratic Party to endorse the 

resolution. 

On December 6, 2011, Los Angeles City unanimously endorsed a resolution to end 

personhood rights of corporations and allows Federal, State, and Local governments to 

regulate campaign finance. 

On December 20m, 2011, the city council of Oakland, California unanimously passed a 

resolution in support of a constitutional amendment to reverse the Citizens United 

decision. 

On January 11 m, 2012, the town council of Fairfax California approved a resolution in 

favor of abolishing corporate personhood with the intent of restoring the democratic 

process to the people. 

OnJanuary 17,2012, West Hollywood passed a resolution condemning the Supreme 

Court's decision on Citizens United and supporting a constitutional amendment to 

overturn the ruling. 

On January 24, 2012, the city of Santa Cruz approved a resolution that calls for a 

constitutional amendment to overturn the Supreme Court's decision on Citizens United. 

On January 25, 2012, the city of Petaluma passed a resolution in a 6-1 decision that called 

for a reversal of the Citizens United decision. 

On January 31, 2012, the city of San Francisco passed a resolution condemning the 

Supreme Court's ruling on Citizens United and supporting a constitutional amendment 

to reverse the decision. 

On February 6, 2012, the Albany City Council has passed a municipal government 

resolution that calls for a constitutional amendment to overturn the Supreme Court's 

decision on Citizens United and clarifies that corporations are not people. 

On February 21, 2012, the city council of Davis voted unanimously on a resolution in 

support of Assembly Joint Resolution 22, a bill in the California legislature that calls on 

Congress to pass an amendment to overturn the Citizens United decision. 

On Feb. 21, 2012, the City of Sebastopol passed a resolution urging Congress to propose 

a constitutional amendment to remove corporate personhood and oudaw political 

spending by corporations. 

On March of2012, the city of Point Arena unanimously passed a resolution supporting 

their previous resolution in 2000, which called for the abolition of corporate personhood. 

On March 1,2012, the Democratic Central Committee of Marin passed a resolution 

calling for a constitutional amendment to overturn the Supreme Court's ruling on 

Citizens United. 

On March 6,2012, the Berkeley City Council unanimously passed their second 

resolution calling upon Congress to amend the Constitution to overturn Citizens United 

in support of Assernl,ly Bill AJR 22 and tc '.t~~rl wid. conununities across the country' 

who are engaged in the movement. 

On March 13, 2012, the Ojai City Council passed a resolution that supports a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On March 14,2012, Nevada City's City Council passed a resolution supporting a 

constitutional amendment stating that corporations should not receive the same 

constitutional rights as natural persons and that money is not speech. 

On March 19,2012, the Los Altos Hills City Council approved a resolution that 

condemns the Supreme Court's ruling on Citizens United and calls for a constitutional 

amendment to reverse the decision. 

On March 20th, 2012, the city council of Mountain View passed a resolution in favor of 

abolishing corporate personhood, and encouraging Congress to pass a constitutional 

amendment that would overturn the Citizens United decision. 

Appendix-3 
90 

On March 23, 2012, rhe Sonoma County Board of Supervisors voted urging Congress to 

pass an amendment to rhe U.S. Constitution rhat would overturn rhe Citizens United 

decision. 

On April 9, 2012, rhe Malibu City Council, At rhe request ofCouncilmember Conley 

Ulich, adopted Resolution No. 12-10, supporting a Constitutional Amendment and 

legislative actions restricting corporate spending in rhe electoral process and ensuring rhat 

only human beings, not corporations, have constitutionally-protected free speech. 

On April 17th, 2012, rhe city council of Chico passed a resolution calling on Congress to 

pass a constitutional amendment to overturn rhe Citizens United decision. The resolution 

provides rhat corporations should not have rhe constitutional right to spend money in 

elections, and rhat money should not be equated to speech. 

On April 24, 2012, City Council of the City of Thousand Oaks passed a resolution 

declaring its support for an amendment to rhe United States Constitution to end 

Corporate Personhood. 

On May 5th, 2012, rhe Redlands City Council passed a resolution calling for a 

constitutional amendment based upon rhe principles rhat corporate rights should be 

limited and money is not speech. 

On May 15,2012, rhe Plumas County Board of Supervisors in Quincy, California passed 

a resolution to call for a constitutional amendment to abolish corporate personhood. 

On June 12,2012, rhe Ventura County Board of Supervisors passed a resolution rhat 

supports a Constitutional amendment ending corporate personhood and rhe doctrine rhat 

money is not free speech. 

On June 26, 2012, the Oxnard city council voted 4-0 to support a constitutional 

amendment ending corporate personhood, a concept rhat has generated controversy 

fOllowing a 2010 U.S. Supreme Court ruling rhat allowed corporations certain unlimited 

political spending under free speech rules. 

On July 12, 2012 rhe Claremont City Council voted to pass a resolution calling on 

Congress to overturn rhe Supreme Court's decision in Citizens United v. FEC by 

constitutional amendment. 

Colomdo 

Local Resolutions Passed 

On AprilS, 2011, rhe Arapahoe County Democratic Central committee approved a 

resolution in support of rhe Move to Amend constitutional amendment campaign. 

On April 13, 2011, rhe Boulder Democratic Party passed rhe Urging Support of a 

Constitutional Amendment Abolishing Corporate Personhood resolution supporting an 

anti-corporate personhood amendment. 

On September 12,2011, rhe Jamestown Board of Trustees unanimously passed a 

resolution calling for an amendment to the U.S. Constitution to establish rhat only 

human beings, not corporations, are entitled to constitutional rights and that the First 

Amendment does not protect unlimited political spending as free speech. 

On November 1,2011, voters in Boulder, CO passed a ballot measure calling for an 

amendment to rhe US Constitution rhat would state rhat corporations are not people and 

reject the legal ~tatus of money as free speech. 

On January 3, 2012, rhe Conlnussioners 01 Pueulo County, Colorado unanimously passed 

a resolution in favor of overturning rhe Citizens United decision, and calling for rhe end 

of corporate personhood. 

On Feb. 7,2012 the Archuleta County Republican convention approved resolutions 

calling for a constitutional amendment overturning rhe Supreme Court's Citizens United 

decision. 

On March 17,2012 the Archuleta County Democratic convention approved resolutions 

calling for a constitutional amendment overturning rhe Supreme Court's Citizens United 

decision. 

On March 23,2012 borh the Archuleta County Democratic convention and Republican 

Convention issued a joint resolution against rhe use of outside expenditures from 

corporations and unions in elections 

Appendix-4 
91 

On April 17, 2012, Archuleta County Colorado Board of County Commissioners passed 

a resolution condemning corporation and union money in politics. 

em l'vl2.y 17, 2012 ~ .'!; ::lWl1 '-:"U!lCil "'~ I ;! .. ~i.m"1 ~,!·T('Hu'l"i;:k passed :t resnhlt!(:·"":: 

declaring its support to ending corpotate personhood. 

Connecticut 

Florida 

Local Resolutions Passed 

On May 15th, 2012, the city council of Hartford unanimously passed a resolution in 

support of an amendment to the Constitution that would overturn Buckley v. Valeo and 

the Citizens United v. FEC. The public support for the amendment was strong, with 

standing-room-only at the public hearing and over 60 Hartford residents in support. 

On June 4,2012, the City Council of New London approved a resolution in support of a 

constitutional amendment abolishing corpotate personhood. 

On June 4,2012, the Common Council of Middletown passed a resolution condemning 

the Citizens United decision and calling for electoral form. 

On June 4,2012, the New Haven Board of Aldermen passed a resolution that calls for an 

amendment to the Constitution abolishing corpotate personhood. 

OnJune 11,2012 The Ashford Board of Selectmen passed a resolution calling for a 

constitutional amendment to overturn Citizens United v FEC. 

On June 11,2012, the West Haven City Council passed a resolution calling for a 

constitutional amendment to overturn Citizens United. 

State Resolutions 

SM 1576 - the People's Rights Amendment - introduced by Sen. Braynon on January 

5th 2012, proposes that Congress pass a constitutional amendment that would overturn 

the Citizens United decision. 

HM 1275 - the People's Rights Amendment - introduced by Rep. Williams on January 

5th 2012, proposes that Congress pass a constitutional amendment that would overturn 

the Citizens United decision. 

Local Resolutions Passed 

On September 15,2011, the Sarasota Alliance for Fair Elections (SAFE) has passed a 

resolution stating that SAFE stands with the Move to Amend campaign and 

communities across the country to defend democracy from the corrupting effects of 

undue corporate power by amending the United States Constitution. 

On October 1, 2011, the Coalition of Concerned Patriots of Bradenton passed a 

resolution standing with the Move to Amend campaign, and calling for constitutional 

remedies to counter corporate influence. 

On October 4, 2011, the South Miami City Commission passed a resolution calling for a 

constitutional amendment to end corporate personhood. 

On October 14,2011, the Fruitland Park ch'rtrr "'Pax Christi passed a resolution in 

supPort of a constitu;;. >ttt~~ z:nendtnent and tht: ~,:!~ :e to A1w.:nd campaign. 

On October 20, 2011, the Social Justice Committee of the Universalist Unitarian Church 

in Venice approved a resolution that condemns the Supreme Coutt's decision on Citizens 

United and supports a constitutional amendment to reverse the ruling. 

On October 27, 2011, the Palm Beach County of Progressive Democrats passed a 

resolution calling for an amendment to end corporate personhood and reject the notion 

that money is speech. 

On November 14, 2011, citizens in Orlando passed a resolution calling for a 

constitutional amendment to overturn the decision in the Citizens United case. 

Furthermore, the resolution rejected the notion that 'money is speech.' 

In November of2011, the Cutler Bay City Council passed a resolution calling for an 

amendment to the Constitution to overturn the Citizens United decision. 

Appendix-5 
92 

On December 1,2011, the Southwest Florida Coalition for Peace and Justice passed a 

resolution supporting a constitutional amendment to reverse the Supreme Court's 

a .... rislon on Citizen" fT ... t 

On March 15,2012, the Tampa Bay City council unanimously passed a resolution calling 

for Congress to amend the Constitution to rectifY the Supreme Court's interpretation of 

corporate rights and corporate engagement in the electoral process. 

On March 19,2012, the Key West City Commission passed a resolution condemning the 

Citizens United decision, stating that corpomtions should not have the same rights as 

people. 

On June 4,2012, the City Commission of DeLand Florida passed a resolution 

instructing our State and Federal delegations to work to get money out of politics. 

Georgia 

Hawaii 

Idaho 

Illinois 

State Resolutions 

HR 1377, introduced on February 15, 2012 by State Representative Stephanie Benfield, 

opposing the United States Supreme Court's ruling in Citizens United v. Federal 

Election Commission and requesting a constitutional amendment "to restore republican 

democmcy to the people of the United States." 

State Resolutions 

SCR22S, introduced on March 10,2010 by Senator Gary L. Hooser (D-7), expresses 

disagreement with the Citizens United ruling and calls on the US Congress to pass a 

constitutional amendment barring the use of "person" when defIning "corpomte entity." 

SRl16, introduced on March 10, 2010 by Senator Gary L. Hooser (D-7), expresses 

disagreement with the Citizem United ruling and calls on the US Congress to pass a 

constitutional amendment barring the use of "person" when defIning "corpomte entity." 

HCR282 HD1, introduced on March 10,2010 by Rep. Bob Herkes (D-5) - passed both 

the House and Senate and was adopted on April 28rh, 2010, expresses disagreement with 

the Citizens United ruling and calls on the US Congress to propose an amendment to the 

Constitution of the United States to permit Congress and States to regulate expenditure 

of funds by corpomtions engaging in political speech. 

HR204, introduced on March 10,2010, also by Rep. Bob Herkes (D-5), expresses 

disagreement with the Citizens United ruling and calls on the US Congress to pass a 

constitutional amendment barring the use of "person" when defming "corpomte entity." 

HB36, introduced on January 20, 2011 by Rep. Karl Rhoads (D-28), proposes a state 

constitutional amendment to provide that freedom of speech applies only to natural 

persons. 

HeR 51 - a joint measure - was introduced on February 11,2011 by Rep. RoyTakumi 

(D-36), proposing that the United States Congress pass a constitutional amendment that 

provides that corpomtions are not persons under the laws of the U.S. or any of its 

jurisdicticilal subdivisions. . 

HR44-a house measure - passed in the Ho~ on April 14, 2011. The bill was 

introduced by Rep. Roy Takumi (D-36). Proposes that the United States Congress pass a 

constitutional amendment that provides that corpomtions are not persons under the laws 

of the U.S. or any of its jurisdictional subdivisions. 

State Resolutions 

HIM012, introduced on February 24, 2010 in the House State AfFairs Committee, 

expresses disagreement with the Citizens United ruling and calls on the US Congress to 

take action through legislation or a constitutional amendment. 

Local Resolutions Passed 

Appendix-6 
93 

On May 5, 2012, the town of Warren passed a resolution calling for an end to corporate 

personhood. 

( ,on. "/~ay 14. 2012. ~;;"" "~":~:;'.:I{~~l l ,H)' \~ ~';":::l'" ':~,'animously pt!ssea. ~ rescll~t;r;.n 

supporting a constitutional amendment ,0 overturn the Citizens United rulmg. The city's 

resolution explicidy states its support for all such constitutional amendments introduced 

in Congress, including the one co-sponsored by U.S. Senator Dick Durbin (D-Ill.). 

On June 4, 2012, Galesburg became the second city in Illinois to pass a City Council 

resolution calling for Congress to overturn the Supreme Court's decision in Citizen's 

United v. FEC byway of Constitutional Amendment. 

Indiana 

Iowa 

Kansas 

State Resolutions 

On June 20,2012 the Bloomington City Council passed a resolution calling to overturn 

Citizens United. 

State Resolutions 

SR 113, introduced by State Senator Jeff Danielson, passed in the Senate by a 7-4 vote 

on March 12,2012. The resolution expresses disagreement with the current 

interpretation of corporate rights and the Citizens United decision, and calls for 

Congress to enact appropriate legislation to regulate and restrict corporate spending in 

elections. 

State Resolutions 

SCR 1617, introduced on March 18,2012 by State Senators Holland, Faust-Goudeau, 

Francisco, Haley, Hensley and Steineger, opposing the United States Supreme Court's 

ruling in Citizens United v. Federal Election Commission, and requesting a 

constitutional amendment to repeal corporate personhood. 

Kentucky 

Maine 

State Resolutions 

HR 14, introduced by Representative Rollins on the January 4, 2011 General Assembly 

regular session, calls upon Congress to amend the Constitution to prevent corporate 

control of elections. 

Local Resolutions Passed 

On June 14,2010, the town of Monroe passed a resolution denouncing the Citizens 

United decision. 

On January 18,2012, the city council of Portland, Maine, passed a resolution in support 

of a constitutional amendment that would provide that corporations are not people. 

On February 21, 2012, the city council of Waterville passed a resolution in support of a 

constitutional a:.nep'~mppt ~het would overturn the CitiLCIl: United decision. 

On February 26, 2012, the town of Great Pond passed a resolution in support of a 

constitutional amendment that would overturn the Citizens United decision. 

On March 11,2012, Selectmen of the tOwn of Freedom unanimously agreed to allow 

citizens to vote on a resolution calling for a constitutional amendment to cla.ri.fY that 

corporations are not people. The Town Meeting was held on March 11 and a majority of 

the 65 meeting participants were in favor of a non-binding vote to abolish corporate 

personhood 

On March 26, 2012, the Bangor City Council passed in a 5-3 vote a resolution calling for 

a constitutional amendment to overturn the Citizens United decision and stating that 

corporations are not entided to the same rights of natural persons. 

On April 11, 2012, the Fairfield City Council unanimously passed a resolution calling for 

a constitutional amendment to overturn the Citizens United decision and stating that 

corporations are not entided to the same rights of natural persons. 

Appendix-7 
94 

On May 14,2012, the city council of Winslow passed a resolution supporting an 

amendment to the U.S. Constitution that would clarifY that money is not speech and 

r:omoratjons are not- nprC"nn~ .' . On May 15,2012, the Bar Harbor City Council unanimously passed a resolution calling 

for a constitutional amendment to overturn the Citiuns United decision and stating that 

corporations are not entided to the same rights of natural persons. 

On June 2,2012, the attendees of the Town Meeting of Leeds passed a Town Warrant to 

call for a constitutional amendment to overturn Citizens United. 

On June 4, 2012 the town of Mount Desert, ME passed an article denouncing the 

Citizens United decision 

On June 13, 2012, the town Arrowsic approved an article denouncing the Citizens 

United decision. 

On June, 18,2012 the Newcasde Board of Selectmen passed a resolution denouncing 

Citizens United and calling for an end to corporate personhood 

On June 26, 2012 Southwest Harbor Board of Selectmen passed a resolution denouncing 

the Citizens United ruling. 

In June of 2012, the city of Shapliegh has passed a resolution denouncing the Citizens 

United decision. 

In June of2012 the Bethel Board ofSclectmen passed a resolution denouncing the 

Citizens United decision. 

In June of2012 the town of Liberty, ME has passed a resolution denouncing the Citizens 

United decision. 

In June of 2012, the town of Vassalboro, have passed a resolution denouncing the 

Citizens United decision. 

Maryland 

State Resolutions 

On January 19,2012, State Senator Jamie Raskin introduced a letter to the Maryland 

General Assembly. It sharply disagrees with the Supreme Court's decision on Citizens 

United and calls for a constitutional amendment to be sent to each state for ratification to 

overturn the ruling. The majority ofmemhers in the House ofDe1egates and State 

Senate have signed this letter in agreement. 

Local Resolu tions Passed 

On January 23, 2012, the Greenbelt City Council passed a resolution that supported a 

Maryland General Assembly Letter to Congress calling for a constitutional amendment 

to overturn Citizens United. 

On January 24, 2012, the College Park City Council passed a resolution that supported a 

National General Assembly Letter to Congress calling for a constitutional amendment to 

overturn Citizens United and clarifY that corporations are not people protected by the 

First Amendment. 

On February 21, 2012, the Prince George's County Council passed a resolution 

expressing support for a Maryland General Assembly Letter to Congress calling for a 

reversal of the Citi""li> Tjnited decision and to restore fair dections and democratic 

sovereignty to the peuple. 

On March 6,2012, the Mt. Rainier City Council unanimously passed a resolution 

supporting a Maryland General Assembly Letter to Congress that calls for campaign 

financing and spending by corporations should be limited and not protected under the 

First Amendment. It seeks to create a constitutional amendment to overturn the Citizens 

United decision. 

On May 21, 2012, the city council of Baltimore passed a resolution in support of a 

constitutional amendment abolishing corporate personhood. 

Massachusetts 

State Resolutions 

SD 772, introduced by State Senator Jamie Eldridge on January 21, 2011, the Free 

Speech for People resolution calling for the United States Congress to pass and send the 

states for ratification a constitutional amendment to restore the First Amendment and 

Appendix-8 
95 

fair elections for the people. Currently being heard by the Joint Committee on the 

Judiciary. 

;:}j~~2 intr0duced b~,· ~,~"'e .,~n~~ror, EldnllS~" \"~::: ieg-ishtion.is reh:1ve to aC(Y""d .. ltah-t'tv 

for corporate political spending. 

H.1985 By State Representative WaIz of Boston, a petition of Wolf and others fur 

legislation to strengthen certain provisions of the campaign finance laws Joint Committee 

on Election Laws. 

CitylLocal Resolutions 

In April of20ll, the town ofYarrnouth passed a resolution in a town hall meeting 

demanding a constitutional amendment to dismantle corporate personhood. 

On April 4, 2011, Provincetown passed resolution calling on the United States Congress 

to pass and send to the states for ratification a constitutional amendment to restore the 

First Amendment and fair elections to the people, and calling on the Massachusetts 

General Court to pass resolutions requesting those actions. 

On April 24, 2011, the town of Leverett passed Move to Amend's model resolution at a 

townhall meeting. 

On April 26, 2011, the town of Truro passed a resolution calling on the United States 

Congress to pass and send to the states for ratification a constitutional amendment to 

restore the First Amendment and fuir elections to the people. 

On April 26, 2011, the town of Wellfleet passed a resolution calling on the United States 

Congress to pass and send to the states for ratification a constitutional amendment to 

restore the First Amendment and fuir elections to the people. 

In May of20ll, Lanesborough citizens passed a resolution that supports the overturning 

of the Citizens United decision, stating that the Supreme Court's findings were wrong 

and clarifYing that corporations are not people. 

On May 2, 2011, the town of Great Barrington passed a resolution calling upon the 

United States Congress to pass and send to the states for ratification a constitutional 

amendment that Congress and the states will regulate the use of funds for political speech 

by any corporate entity. 

On May 3, 2011, the town of Brewster passed a resolution calling for the Congress to 

pass and send to the states for ratification a constitutional amendment to restore the First 

Amendment and fuir elections to the people. 

On May 3, 2011, the town of Dennis passed a resolution calling on the United States 

Congress to pass and send to the states for ratification a constitutional amendment to 

restore the First Amendment and fuir elections to the people. 

On May 8,2011, the town of Orleans passed a resolution calling On the United States 

Congress to pass and send to the states for ratification a constitutional amendment to 

restore the First Amendment and fair elections to the people. 

On May 9, 2011, the town of Chatham passed a resolution calling on the United States 

Congress to pass and send to the states for ratification a constitutional amendment to 

restore the First Amendment and fair elections to the people. 

On May 12,2011, Williamstown passed a resolution calling on the United States 

Congress to pass an~ $o!ld to the state~ for ratification a constitutional amendment to 

restore the First Ani!.. . .!.:.. ~lii~UI ~hJ tair ekctions tc ~ he ·people. 

On October 13,2011, the town of Somerville passed a resolution condemning the 

Supreme Court's decision on Citizens United and supports a constitutional amendment 

to overturn the ruling. 

On October 24, 2011, the Cambridge City Council passed a resolution that supports a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On December ·1, 2011, Psychologists for Social Responsibility in Brookline approved a 

resolution that condemns the Supreme Court's decision on Citizens United and calls for 

a constitutional amendment to reverse the ruling. 

January 5, 2012, the town of Westport passed a resolution condemning the Supreme 

Court's decision on Citizens United and supports a constitutional amendment to 

overturn the ruling. 

Appendix-9 
96 

On January 30, 2012, Cambridge passed a second resolution that supports a 

constitutional amendment to overturn the Supreme Court's decision on Citizens United. 

.• \)n "FebruaI,),-14,. '<',J; " ;.3· .... ri 1y ':oun6': .'~ !....~ .,;' ~ns$ed 2. re'O"}!Jt10n that conu':.".mns the 

Supreme Court's ruling on Citizens United and supports a constitutional amendment to 

reverse the decision. 

On February 29, 2012, the city of Boston passed a resolution condemning the Supreme 

Court's ruling on Citizens United and calling for a constitutional amendment to overturn 

the decision. 

On March 20, 2012, the members of the Falmouth Town Meeting declared their support 

for abolishing corporate personhood, affirming their belief that the First Amendment 

only protects people. 

On March 24,2012, a town hall meeting in Lincoln passed a resolution that supports a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On March 27,2012, the Newburyport Town Council passed a resolution that supports a 

constitutional amendment to overturn the Supreme Court's decision on Citizens United. 

On April 4, 2012, the town of Provincetown passed a resolution condemning the 

Supreme Court's ruling on Citizens United and supporting a constitutional amendment 

to overturn the decision. 

On AprilS, 2012, the town of Falmouth passed a resolution condemning the Supreme 

Court's ruling on Citizens United and supporting a constitutional amendment to 

overturn the decision. 

On April 10, 2012, the town of Oak Bluffs passed a resolution that supports a 

constitutional amendment to overturn the Supreme Court's decision on Citizens United. 

On April 10,2012, the town of Edgartown passed a resolution that condemns the 

Supreme Court's decision on Citizens United and calls for a constitutional amendment to 

overturn the ruling. 

On April 10, 2012, the town of West Tisbury passed a resolution supporting a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On April 10, 2012, the town of Tisbury passed a resolution condemning the Supreme 

Court's decision on Citizens United and supporting a constitutional amendment to 

overturn the ruling. 

On April 12, 2012, the town of Natick voted in favor of a resolution that calls for a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On April 19, 2012, the Northampton City Council unanimously passed a resolution 

calling for a Constitutional amendment that would reverse a Supreme Court decision 

giving corporations the same rights as people. 

On April 23, 2012, the town of ChiLnark passed a local resolution condemning the 

Supreme Court's ruling on Citizens United and supporting a constitutional amendment 

to reverse the decision. 

On April 24, 2012, the town ofFrammgham passed a resolution that supports a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On April 27 ,2012, the ",wn "f::ontord vote,] to rass a resolution that CDnde~ns the 

Supreme Court's decision on Citizens United and calls for a constitutional amendment to 

overturn the ruling. 

On April 28, 2012, the town of Leverett passed a second resolution condemning the 

Supreme Court's ruling on Citizens United and calling for a constitutional amendment to 

reverse the decision. 

On April 28, 2012, the town of Nahant voted to pass a resolution that supports a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On April 30, 2012, the town of West Newbury voted to pass a resolution that supports a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On May 1,2012, the town of Reading passed a resolution condemning the Supreme 

Court's Citizens United decision and calling for a constitutional amendment to overturn 

the ruling. 

Appendix-l0 
97 

On May 1,2012, the town of Shelburne passed a resolution condemning the Supreme 

Court's Citizens United decision and calling for a constitutional amendment to overturn 

.. t...-erulin .. ~. 

On May 1, 2012, the town of Deerfield passed a resolution condemning the Supreme 

Court's Citizens United decision and calling for a constitutional amendment to overturn 

the ruling. 

On May 1, 2012, the town of Shutesbury passed a resolution condemning the Supreme 

Court's Citizens United decision and calling for a constitutional amendment to overturn 

the ruling. 

On May 3, 2011, the town of Dennis, MA introduced, voted and passed article 51 calling 

on the United States Congress to pass and send to the states for ratification a 

constitutional amendment to restore the First Amendment and fair elections to the 

people. 

On May 5,,2012, the town ofCumrnington passed a resolution calling for an amendment 

to Constitution to overturn the Citizens United decision. 

On May 5, 2012, the town of Pelham passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 5, 2012, the town of Warren passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 5, 2012, the town of Ashfield voted in favor (with only two dissenting votes out 

of 65) to support a resolution in favor of amending the Constitution to overturn the 

Citizens United decision. 

On May 7, 2012, the Amherst City Council unanimously passed a resolution calling for a 

constitutional amendment to overturn the Citizens United decision. 

On May 7, 2012, the town of Sheffield passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 7, 2012, the town of Warwick passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 7, 2012, the town of Swampscott passed a resolution calling for an amendment 

to Constitution to overturn the Citizens United decision. 

On May 8, 2012, the town of Colrain passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 8, 2012, The town of Aquinnah passed a local resolution supporting S. 772 State 

resolution to overturn Citizens United and restore first amendment rights. 

On May 9, 2012, the town of Orleans passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 9, 2012, the town of West Tisbury passed a resolution calling for an amendment 

to Constitution to overturn the Citizens United decision. 

On May 9, 2012, the town ofBuck1and passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 10, 2012, the city council of Salem passed a resolution that condemns the 

Supreme Court's ruling on I'iti'ens United and 2'-'Pp0tts aconstituti""al amendment to 

reverse the decision. 

On May 14,2012, the town of Conway passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 14,2012, the town of Needham passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 14, 2012, the town of Rowe passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

On May 14,2012, the town of Medway passed a resolution approving Article 49 and 

urged support for the Senate Bill 772: A Resolution Restoring Free Speech, sponsored by 

state Sen. Jamie Eldridge. 

On May 15, 2012, the town of Boxborough passed a resolution calling for an amendment 

to Constitution to overturn the Citizens United decision. 

Appendix-II 
98 

On May 15,2012, the town of Otis passed a resolution calling for an amendment to 

Constitution to overturn the Citizens United decision. 

•. dn.IVlay j j, 2012~ tn·:: (;jry ((H1HC·t o~\'\Tf)!'(:'e~!":' .. ~ssed ? l:esoh,ti:J.r:.·.~h~t (,o!'Fk'~'Jnr the 

Supreme Court's ruling on Citizens United and supports the People Rights amendment. 

On May 16,2012, the town of Arlington passed a resolution condemning the Supreme 

Court's Citizens United decision and calling for a constitutional amendment to overturn 

the ruling. 

On May 21, 2012, the town of Somerset passed a resolution abolishing corporate 

personhood. 

On May 22, 2012 the town of Brookline passed a resolution calling for a constitutional 

amendment to overturn the Supreme Court's decision in Citizens United vs. FEe. 

On May 23, 2012, the town of Richmond passed a resolution to abolish corporate 

personhood. 

On May 25, 2012, the town of Stockbridge passed a resolution in opposition to the 

Citizens United decision. 

On May 25, 2012, the town of Charlemont passed a resolution in support of abolishing 

corporate personhood. 

On May 29, 2012, the town of Newbury passed a resolution in support of abolishing 

corporate personhood. 

On June 4, 2012, the City Council of QlIincy passed a resolution ealling for a 

constitutional amendment to overturn the Supreme Court's decision in Citizens United 

vs. FEe. 

On June 4,2012, the Town of Wendell passed a resolution to show their support for an 

amendment to the US Constitution that would proclaim that the rights listed in the bill 

of rights are for people, rather than corporations. 

On June 7,2012, the town of Bernardston passed a resolution advocating for the reversal 

of the Supreme Court's decision in Citizens United v. FEC by way of a constitutional 

amendment. 

On June 20, 2012 the Lenox Board of Selectmen passed a resolution calling to overturn 

the Citizens United decision. 

On July 9,2012 The Newton Board of Alderman passed a resolution calling for a 

Constitutional amendment to overturn Citizens United last night by a near unanimous 

vote (23-1). 

Michigan 

Local Resolutions Passed 

On December 1, 2011, the Dickinson County Democratic Party passed a resolution that 

condemns the Supreme Court's ruling on Citizens United and calls for a constitutional 

amendment to overturn the decision. 

On February 2, 2012, the Emmet County Democratic Committee Executive Board 

declared support for the Move to Amend resolution, which calls upon Congress to 

propose an amendment to the Constitution that would abolish corporate personhood and 

the judicial interpretation that moaey '0 >l'eech. 

On February 9, 2012, the 15th Congressional District Democratic Organization of 

Michigan passed a resolution that calls upon Congress to propose an amendment to the 

Constitution that would abolish corporate personhood and the judicial interpretation that 

money is speech. 

On March 28, 2012, Gogebic County Democratic Party passed a resolution, affirming its 

belief that corporate personhood must be abolished by amending the Constitution. 

Minnesota 

State Resolutions 

HF0914, introduced on March 7, 2011 to the Minnesota State Legislature, provides that 

corporations are not natural persons and proposes a constitutional amendment to 

overturn the Supreme Court's ruling on Citizens United. 

Appendix-12 
99 

SF683, introduced on March 9,2011 to the Minnesota State Senate, condemns the 

Supreme Court's decision on Citizens United and calls for a constitutional amendment to 

H .... ..:rs~ thl!. tulints. 

Local Resolutions Passed 

On March 1,2011, the Minnesota Democrats passed a resolution calling for a 

constitutional amendment to define an individual as a "natural person" in hopes to abolish 

corporate personhood. 

On August 9,2011, the Minnesota Coalition of Peacemakers passed a resolution seeking 

to abolish corporate personhood by an amendment to the U.S. Constitution. 

In October of 2011, the Minnesota Retiree Council of the AFL-CIO passed a resolution 

to support Move to Amend. 

On December 13th, 2011, the city council of Duluth, Minnesota passed a resolution in 

opposition to the Citizens United decision and the legal definition of corporate 

personhood. 

OnJune 11,2012, the St. Paul City Council passed a resolution supporting an 

Amendment to the United States Constitution that only human beings, not 

corporations, are protected by democratic rights. 

On June 15,2012, the Minneapolis City Council unanimously passed a resolution calling 

for the end to corporate personhood. 

Mississippi 

State Resolutions 

HC 108, introduced on AprilS, 2012 by Representative James Evans, provides for a 

constitutional convention with the sole purpose of proposing an amendment to the 

United States Constitution that would abolish the concept of corporate personhood. 

Local Resolutions Passed 

On December 13, 2011, citizens inJackson passed a resolution supporting a 

constitutional amendment to overturn the Citizens United decision and clarifYing that 

corporations are not people protected by the First Amendment. 

On June 2, 2012, the Mississippi Democratic Party declared its support for an 

Amendment to the Constitution to abolish corporate personhood and the doctrine that 

money is speech. 

Missouri 

State Resolutions 

HCR 38, introduced by Rep Tracy McCreery, calls for a constitutional amendment that 

clearly states that corporations are not human beings and do not have the same rights as 

the citizens of the United States. 

Local Resolutions Passed 

On June 14,2012 Kansas City, MO C()llDcil unanimously approved a resolutir.~ 

'flwrSday suppor'ting a c(,!l~tivjtion~ iii1.f;!l(in.: .. H 0ve!'turning the Supreme Crmrt~:; 

"Citizens United" ruling of2010. 

Montana 

State Resolutions 

HI 10, introduced by Representative Hill on February 2, 2011, proposes that Congress 

pass a constitutional amendment to overturn the Citizens United decision. 

Local Resolutions Passed 

On August 23, 2011, the Missoula City Council voted to place a referendum on the 2011 

ballot that urges federal and state lawmakers to amend the U.S. Constitution to clearly 

state "that corporations are not human beings and do not have the same rights as 

citizens." On November 8, 2011, Missoula voters approved a local ballot referendum 

urging Congress to propose a constitutional amendment that clearly states that 

Appendix-13 
100 

corporations are not people and do not have the same rights as citizens by a three to one 

margin. 

@o, (Jrl,M:.!y ..• L 2012r rllC: CJ'), {·(',',.·.ncil Ol,r;,.;~ ..... ~'-.' ;. -<: un2..nir~~()Usj;, ~~;:;5sed.3 rC""f)t'\l';D!1.!n 

support of an amendment to overturn the Citizens United decision, and providing that 

corporations are not people. 

New Hampshire 

State Resolutions 

In May 2004, the Democratic Party of New Hampshire, passed a resolurion declaring 

that ·Corporations shall not be considered "persons" protected by the Constitution of the 

United States or by the Constitutions of the states that so declare; and the rights of 

individual, natural persons shall be privileged over any and all rights that have been 

extended to artificial entities." 

HCR 1, introduced by Rep. Weed and Rep. Car on January 5th, 2011, proposes that 

Congress pass a constitutional amendment that provides that constitutional rights such as 

free speech apply to living persons, and not to corporations, for the purpose of 

electioneering, among others. 

HR 8, introduced by Rep. Pierce and Rep. Richardson on January 6th, 2011, proposes 

that Congress pass a constitutional amendment that would limit corporate spending in 

elections, and thus overturn the Citizens United ruling. 

Local Resolutions Passed 

On March 14,2012, citizens in a Bradford Town Hall Meeting voted to pass a resolution 

condemning the Citizens United decision and calling for a constitutional amendment to 

overturn the Supreme Court's ruling. 

New}eJ:Sey 

State Resolutions 

AR 64, introduced on March 4, 2010, by State Representative Herb Conway, calls on 

Congress to propose an amendment to the United States Constitution to provide that 

with regard to corporation campaign spending, a person means only a natural person for 

First Amendment protection of free speech. 

SR 47 introduced on Feb 16,2012 by State Senator JefrVan Drew, calls on Congress to 

propose an amendment to the United States Constitution to provide that with regard to 

corporation campaign spending, a person means only a natural person for First 

Amendment protection of free speech. 

Local Resolutions Passed 

On April 10, 2012, the Franklin Township Council (Somerset County, NJ) passed a 

Resolution (#12-167) in support of a constitutional amendment to overturn the Citizens 

United decision. 

New Mexico 

State Resolutions 

foint ,Memorial 36, introduced on February 11,2011 by Rep. Mimi Stewart (D-21), 

failed by one vote on the House floor. It expresses strong opposition to the Supreme 

Court's decision in Citizens United v. Fed:",,; " ""ction Commission and call upon the 

United States congress to propose and send tv"," states for ratification an amendment to 

the United States constitution to restore free speech and fair elections to the people of the 

United States. 

HM 4, introduced by Representative Stewart, passed in a 38-29 vote in the House on 

January 30, 2012. SM 3, introduced by Senator Fischmann, passed in a 20-9 vote in the 

Senate on February 7, 2012. On February 11, 2012, the New Mexico joint legislature 

passed a resolution calling for Congress to propose a constitutional amendment to 

overturn the Citizens United decision, becoming the second state in the union to do so. 

Local Resolutions Passed 

On January 11, 2012, citizens in Santa Fe passed a resolution calling for a constitutional 

amendment to overturn the Citizens United decision and clarifY that corporations are not 

people. 

Appendix-l 4 
101 

On February 25, 2012, the Taos City Council passed a resolution condemning the 

Supreme Court's decision on Citizens United and supporting a constitutional 

amendment tf) OV~ .. · .. l.,p ."Iin,g 

On April 17, 2012, the Taos --:ounty Commission unanimously approved a resolution 

requesting Congress to propose an amendment to the Constitution to counter the effects 

of the Citizens United ruling. 

New York 

State Resolutions 

K01016, introduced by Assemblyman James Brennan on March 7,2012, passed the New 

York State Assembly's Law Election Committee, awaiting a floor vote, provides that 

the US Congress to send the states a constitutional amendment to overturn the Citizens 

United case, which would enable corporate spending in elections. 

Local Resolutions Passed 

In February of2011, the Essex County Democratic Committee voted to approve a 

constitutional amendment that would establish money is not speech and that people, not 

corporations, are people with constitutional rights. 

In March of2011, the Progressive Coalition of Northern New York approved the Move 

to Amend resolution. 

On December 6, 2011, the Albany Common Council passed a resolution stating that 

"Corporations are not People". 

On December 28, 2011, the Brighton Town Council voted to pass a resolution in support 

of abolishing corporate personhood. 

On January 4'h, 2012, the city council of New York City passed a resolution "supporting 

an amendment to the Constitution to provide that corporations are not entitled to the 

entirety of protections or 'rights' of natural persons." 

OnJanuary 11,2012, citizens in Buffulo passed a local resolution calling for a 

constitutional amendment to overturn the Citizens United decision and clarifY that 

corporations are not natural persons. 

On February 1,2012, the Common Council ofIthaca, NY voted 8-1 in favor of a 

resolution calling on Congress to pass an amendment to end corporate personhood. 

On February 13,2012, the town board of Danby voted unanimously for a resolution 

calling on Congress to pass an amendment to end corporate personhood. 

On March 1,2012, the city ofTroy passed a resolution calling for a constitutional 

amendment to overturn the Citizens United decision and clarifYing that corporations are 

not people. 

On March 26, 2012, the Yonkers City Council passed a resolution calling for a 

constitutional amendment providing that corporations are not entitled to the entirety of 

protections or "rights" of natural persons, specifically so that the expenditure of corporate 

money to influence the electoral process is no longer a form of constitutionally protected 

speech. 

On May 2, 2012, the Allegheny County Council approved a resolution in support of an 

amend),nent that would overturn the Citizen& ~;u;ted decision. 

On May 8,2012, the Mt Kisco Village Board of Trustees unanimously passed a 

resolution calling for a constitutional amendment that declares corporations are not given 

the same legal status as people and that corporate spending for influencing elections is 

not deemed to be a form of speech. 

On June 6 and 19,2012, the Tompkins County legislature passed three resolutions on 6/6 

and 6/19 calling for campaign fInance reform, abolition corporate personhood, and a 

constitutional amendment to overturn Citizens United. 

OnJune 13, the Mount Vernon City Council adopted a resolution calling for a 

constitutional amendment to overturn the Citizens United decision. 

North Carolina 

Local Resolutions Passed 

Appendix-15 
102 

Ohio 

On April 1, 2011, The Alamance County Democrats passed a resolution at their 

democratic convention, calling for a Constitutional amendment to abolish corporate 

.~s~n~o~??,., .," "'~" On December 10, 2011, the Progrcs;ive Democrats of North Carolina passed the Move 

to Amend model resolution. 

On January 9,2012, the Chapel HillTown Council passed the Move to Amend 

Resolution stating that corporations are not people and that money is not speech. 

On January 17, 2012, the Carrboro Board of Alderman unanimously passed a resolution 

in to clarifY that "corporations are not people and money is not speech." 

On February 14,2012, citizens in Asheville passed a local resolution calling for the 

reversal of the Citizens United decision, stating that corporations are not people 

protected by the First Amendment. 

On February 21, 2012, the board of commission of Orange County passed a resolution 

supporting an amendment to Constitution that would provide that corporations are not 

people. 

On April 2, 2012, the Franklin Board of Alderman passed a resolution calling upon the 

North Carolina General Assembly to petition Congress for a constitutional amendment 

that would overturn the Supreme Court's ruling on Citizens United. 

On April 4, 2012, the Board of Aldermen of Bryson City, NC passed a resolution to 

support a constitutional amendment to abolish the doctrine that money is speech and 

that human beings, rather than corporations, are protected by democratic rights. 

On April 17, 2012, the Highlands Town Council passed a resolution supporting an 

amendment to the Constitution that would provide that corporations are not people, and 

that money is not speech. 

On May 2, 2012, the Allegheny County Council approved a resolution in support of an 

amendment that would overturn the Citizens United decision. 

On May 24, 2012, the City Council of Durham supported a constitutional amendment 

that would "defend democracy from the corrupting effects of corporate power." 

On July 3rd 2012, Raleigh N.C passed a resolution condemning Citizens United and 

calling for a constitutional amendment to overturn the decision by a 6-3 vote. 

Local Resolutions Passed 

On February 6, 2012, the city council of Athens unanimously passed a resolution 

rejecting the Citizens United decision and calling for an amendment to redefine 

corporate constitutional rights. 

On February 23, 2012, the Oberlin City Council unanimously approved a resolution 

calling upon the US Congress and Ohio legislature to create a constitutional amendment 

that would reverse the Citizens United decision and reinstates that free speech is a right 

of persons, not corporations. 

On June 18,2012, Cleveland Heights City Council passed a resolution calling to abolish 

corporate personhood and overturn the Supreme Court's decision in Citizens United. 

Oklahoma' 

State Resolutions 

On May 17,2003, the Oklahoma Democratic Party, at their state convention, approved a 

resolution opposing corporate personhood. 

Oregon 

State Resolutions 

HIM 9, introduced by Representative Phil Barnhart onJanuary 10, 2011, provides that 

Congress to pass a constitutional amendment that would "restore the First Amendment 

and fair elections to the people." 

Local Resolutions Passed 

Appendix-16 
103 

On June 23,2011, the Democratic Party of Douglas County, Oregon voted to pass a 

resolution opposing Corporate Personhood and in support of the Move to Amend 

or~?~i~~t.i~<?~. 

On January, 12,2012, the Pordand lAty Councll voted unanimously in favor of a 

resolution put for by Mayor Sam Adams, which declared that money is not speech and 

corporations are not people. 

On February 7, 2012, the Klamath County Democratic Central Committee passed a 

resolution that supports a constitutional amendment to overturn the Supreme Court's 

decision on Citizens United and clarifies that corporations are not people protected by 

the First Amendment. 

On February 15th, 2012, the city council of Eugene, Oregon passed a resolution 

encouraging Congress to pass an amendment to the Constitution that would overturn the 

Citizens United decision. 

On March 7,2012 The Coos Bay City Council passed a local resolution calling for state 

and federal legislators to support and pursue a constitutional amendment to end 

corporate personhood. 

On April 12, 2012, the City Council of Yachats rejected the Citizens United ruling, 

passing a resolution in afftrmation of the belief that money is not speech and that the 

Constitution protects the rights of human beings. 

On April 23, 2012, the City Council of the City of West Lin voted to pass a resolution in 

opposition to corporate personhood. 

On May 15,2012, the City Council of Newport passed a resolution in support of a 

constitutional amendment abolishing corporate personhood and the doctrine that money 

is not speech. 

On June 19,2012 Ashland City Council passed a resolution supporting U.S. Senator 

Merkley's effort to amend the Constitution to make clear Congress has authority to 

regulate campaign finances and expenditures. 

Pennsylvania 

State Resolutions 

HR 653 introduced on March 9,2010 by Rep. Steve Santarsiero (D-31), expresses 

disagreement with the Citizens United ruling and calls on the US Congress to call a 

constitutional convention. 

Senate Resolution 264, will be introduced shortly by Senator Jim Ferlo, who announced 

his intention to do so on March 9,2012. The bill calls to support the nationwide effort to 

amend the US Constitution to overturn the Citizens United ruling. 

Local Resolutions Passed 

On January 1, 2010, the Lehman City Council passed a resolution condemning the 

Supreme Court's decision on Citizens United and supporting a constitutional 

amendment to reverse the ruling. 

On December 30, 2011, the Pittsburgh City Council passed a resolution calling for a 

constitutional amendment to abolish corpor;-,te personhood and return our elections back 

to the American people. 

On February 14,2012, the town of Lancaster passed a resolution calling for a 

constitutional amendment to overturn the Citizens United decision. 

On May 2, 2012 Allegheny County, PA passed a resolution calling for a constitutional 

amendment to overturn the Citizens United decision. 

On May 24, 2012 the Wilkes-Barre City Council voted 4-1 in favor of calling for to 

overturn the Supreme Court's Citizens United ruling. 

On June 21, 2012 the Philadelphia City Council passed a resolution calling for a 

constitutional amendment to overturn the Supreme Court's Citizens United decision. 

(nothing on United4 map) 

On June 25, 2012 the Reading City Council approved a resolution urging lawmakers to 

amend the U.S. Constitution to abolish so-called corporate personhood. 

Rhode Island 

Appendix-I 7 
104 

State Resolutions 

H 61.;;6. introduced on Mav 18,2010 bv Rep. Thomas Winfield, proposes that Coo!,:ress 

:)<ii;t::.a l~'m!< > ~")ti(.m"8: ;-n-·,r. "';r;{:;>t·tn O'!T! .. ···~\· : :iti:tf'Tl'i V!'!:c:J rlccis~m!.. 

H 8186, introduced on May 27, 2010 by Rep. David Segel (D-2), applies to the 

Congress of the United States to call a constitutional convention. 

H7899 was introduced by Speaker of the House Gordon Fox and passed on May 8th• 

S2656 was introduced by State Senate President Teresa Paiva-Weed and passed on April 

25"',2012. These companion resolutions call for Congress to pass an amendment to 

overturn the Citizens United decision and its subsequent, related cases. 

Local Resolutions Passed 

On June 7,2012, the Providence City Council unanimously passed a resolution calling 

for a constitutional amendment to overturn the U.S. Supreme Court decision lifting the 

federal ban on corporate campaign spending. 

South Dakota 

State Resolutions 

HCR 1018 introduced on March 2010, by Rep. Ed Iron Cloud (D-27) and Sen. Jim 

Bradford (R-27), failed on a 24-43 vote on the day after it was introduced. The resolution 

urged the Congress and the States to propose a constitutional amendment that would 

reverse Citizen's United V. FEC decision. 

Vermont 

State Resolutions 

IRS11 , introduced January 21, 2011 by Senator Virginia Lyons (D-Chittendon), and 

passed in the Senate on April 12, 2012 urges the United States Congress to propose an 

amendment to the United States Constitution, which provides that corporations are not 

persons under the laws of the United States or any of its jurisdictional subdivisions. The 

bill passed the House on April 19"', 2012, with a 92-40 vote, which made Vennontthe 

third state in the country - following Hawaii then New Mexico - to ratifY a Citizens 

United-related resolution. 

Local Resolutions Passed 

On February 28, 2011, the town of Lincoln approved a resolution to end corporate 

personhood in their community. 

On March 6,2012, in Albany, citizens voted in favor of a ballot that supports a 

constitutional amendment to overturn the Citizens United decision and clarifY that 

corporations are not people. 

On March 6, 2012, at a town hall meeting in Barnet, citizens passed a resolution 

condemning the Supreme Court's ruling on Citizens United and called for a 

constitutional amendment to reverse the decision. 

On March 6; 20]2~ :.1' R .... !t,·~~ ::itjzen~ [If'jlrly "<;"1.nimousl} ¥<:~~:~ !o pass a rc~ob..tion 

calling for a constitutional amendment to overturn the Citizeru; United decision and 

clarifY that corporations are not people. 

On March 6,2012, citizens at a town hall meeting in Brattleboro passed a resolution that 

condemns the Citizens United decision and supports a constitutional amendment to 

reverse the Supreme Court ruling. 

On March 6,2012, in Brandon, citizens voted to pass a resolution calling for campaign 

finance reform and urging both the Vermont and US Congresses to support the same 

resolution. It supports a constitutional amendment to overturn the Citizens United 

decision. 

On March 6, 2012, a town hall meeting in Bristol voted to support a resolution that calls 

for a constitutional amendment to reverse the Supreme Court's decision on Citizens 

United and dariJY that corporations are not people protected by the First Amendment. 

Appendix-IS 
105 

On March 6,2012, citizens in Burlington passed a resolution that calls for a 

constitutional amendment to overturn the Citizens United decision and clarifY that 

('('I'7~ra~o.ns g,re np" ;,pn!",l 

On March 6,2012, in Calais, citizens at a town hall meeting voted to pass a resolution 

that condemns the Supreme Court's decision on Citizens United and supports a 

constitutional amendment to reverse the ruling. 

On March 6,2012, a town hall meeting in Charlotte voted in favor of a resolution that 

calls for a constitutional amendment to overturn the Citizens United decision and clarifY 

that corporations are not people. 

On March 6, 2012, citizens in Chester passed a resolution that supports a constitutional 

amendment to reverse the Supreme Court's decision on Citizens United. 

On March 6, 2012, in Chittenden, citizens at a town hall meeting voted in favor of a 

resolution that condemns the Supreme Court's decision on Citizens United and supports 

a constitutional amendment to overturn the ruling. 

On March 6, 2Q12, a town hall meeting in Craftsbury voted to pass a resolution 

supporting a constitutional amendment that would overturn the Citizens United decision 

and clarifY that corporations are not people. 

On March 6,2012, citizens in a town hall meeting in East Montpelier passed a resolution 

that condemns the Supreme Court's rulings on Citizens United and calls for a 

constitutional amendment to reverse the ruling. 

On March 6,2012, in Fayston, citizens passed a resolution that favors a constitutional 

amendment to overturn the Citizens United decision and clarifY that corporations are not 

people protected by the First Amendment. 

On March 6, 2012, a town hall meeting in Fletcher voted in favor of a resolution that 

supports a constitutional amendment to reverse the Supreme Court's decision on Citizens 

United. 

On March 6, 2012, citizens at a town hall meeting in Granville voted to pass a resolution 

that condemns the Supreme Court's rulings on Citizens United and supports a 

constitutional amendment to reverse the decision. 

On March 6,2012, in Greensboro, citizens passed a resolution calling for a constitutional 

amendment to overturn the Citizens United decision and clarifY that corporations are not 

people protected by the First Amendment. 

On March 6, 2012, citizens in Hardwick unanimously voted in favor of a resolution that 

calls for a constitutional amendment to reverse the Supreme Court's decision on Citizens 

United. 

On March 6,2012, a town hall meeting in Hartford voted to pass a resolution that 

condemns the Supreme Court's decision on Citizens United and supports a constitutional 

amendment to reverse the ruling. 

On March 6, 2012, in Hartland, citizens passed a resolution calling for a constitutional 

amendment to overturn the Citizens United decision and clarifY that corporations are not 

people. 

On March 6, 2012, citizens at a town hall meeting in Hinesburg voted in favor of a 

resolution that condeIT'ns the Supreme Court', ruling on Citizens United and supports a 

cono;;titutional amend~.r":'llt . '. ovet"fUp1 th.e" rl .... f';~~ ........ 

On March 6, 2012, a town hall meeting in Jericho voted to pass a resolution supporting a 

constitutional amendment to overturn the Citizens United decision and clarifY that 

corporations are not people protected by the First Amendment. 

On March 6, 2012, citizens at a town hall meeting in Marlboro voted in favor of a 

resolution that supports a constitutional amendment to reverse the Citizens United 

decision and clarifies that corporations are not people. 

On March 6,2012, in Marshfield, citizens passed a resolution that condemns the 

Supreme Court's decision on Citizens United and supports a constitutional amendment 

that reverses the ruling. 

On March 6,2012, a town hall meeting in Middletown Springs voted in favor of a 

resolution that supports a constitutional amendment to reverse the Supreme Court's 

decision on Citizens United and clarifies that corporations are not people protected by 

the First Amendment. 

Appendix-19 
106 

On March 6, 2012, citizens at a town hall meeting in Monkton voted to pass a resolution 

calling for a reversal of the Supreme Court's decision on Citizens United . 

• >~ On lYIarc.r. 6~ 20].1., ~'l· !r!:)rJ:go.mrl}', a !:r;v,rp n~l! meering,ra<;~ed., a res0h.t~fnn th:.:: 

condemns the Supreme Court's decision on Citizens United and favors a constitutional 

amendment to reverse the ruling. 

On March 6,2012, a town hall meeting in Montpelier voted in favor of a resolution that 

supports a constitutional amendment to overturn the Citizens United decision and 

clarifies that corporations are not people. 

On March 6,2012, citizens in Moretown voted to pass a resolution that favors a 

constitutional amendment to reverse the Supreme Court's ruling on Citizens United. 

On March 6, 2012, in Mt. Holly, citizens at a town hall meeting passed a resolution that 

condemns the Supreme Court's decision on Citizens United and supports a constitutional 

amendment to reverse the ruling. 

On March 6, 2012, a town hall meeting in Newbury voted in favor of a resolution that 

calls for a constitutional amendment to overturn the Citizens United decision and claruy 

that corporations are not people protected by the First Amendment. 

On March 6,2012, citizens at a town hall meeting in Newfane voted to pass a resolution 

that condemns the Supreme Court's ruling on Citizens United and favors a constitutional 

amendment to reverse the decision. 

On March 6, 2012, in Norwich, citizens passed a resolution that suppons a constitutional 

amendment to reverse the Citizens United decision and claruy that corporations are not 

people. 

On March 6,2012, a town hall meeting in Peru voted to pass a resolution that condemns 

the Supreme Court's decision on Citizens United and favors a constitutional amendment 

that would overturn the ruling. 

On March 6,2012, citizens in Plainfield voted in favor of a resolution that calls for a 

constitutional amendment to reverse the Supreme Court's ruling on Citizens United and 

clarifies that corporations are not people protected by the First Amendment. 

On March 6, 2012, at a town hall meeting in Putney, on two ballots, citizens 

unanimously passed a resolution that condemns the Supreme Court's decision on 

Citizens United and favors a constitutional amendment to overturn the ruling. 

On March 6, 2012, in Randolph, citizens at a town hall meeting voted to pass a 

resolution that supports a constitutional amendment to overturn the Citizens United 

decision. 

On March 6,2012, a town hall meeting in Richmond voted in favor of a resolution that 

condemns the Citizens United decision and calls for a constitutional amendment to 

reverse the Supreme Court's ruling. 

On March 6,2012, at a town hall meeting in Ripton, citizens unanimously passed a 

resolution that supports a constitutional amendment to overrum the Supreme Coures 

ruling on Citizens United and clarifies that corporations are not people. 

On March 6, 2012, in Rochester, citizens voted to pass a resolution that condemns the 

Supreme Court's ruling on Citizens United and favors a constitutional amendment to 

reverse the decision. 

On March 6, 2612, -..~u ....... ,,'t ~i. "': w\\n ita..... 1'11-, \.tu~ in Roxbury voted in ~avor vf a 

resolution that supports a constitutional amendment to reverse the Supreme Court's 

decision on Citizens United. 

On March 6, 2012, a town hall meeting in Rutland City passed a resolution that favors a 

constitutional amendment to overturn the Citizens United decision and clarifies that 

corporations are not people protected by the First Amendment. 

On March 6, 2012, in Rutland Town, citizens voted to pass a resolution condemning the 

Supreme Court's ruling on Citizens United and support a constitutional amendment to 

reverse the decision. 

On March 6, 2012, citizens in Sharon voted in favor of a resolution that suppons a 

constitutional amendment to reverse the Supreme Court's decision on Citizens United. 

Appendix-20 
107 

On March 6,2012, a town hall meeting in Shelburne passed a resolution that favors a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United 

1f1d clarH1:,:!' that C(\1"nor~ti('","<;: "rf" Pf)t Of"" i ..' ... On March 6, 2012, citizens at a town hall meeting in Shrewsbury voted to pass a 

resolution that condemns the Supreme Court's decision on Citizens United and favors a 

constitutional amendment to overturn the ruling. 

On March 6,2012, in South Burlington, citizens voted in favor of a resolution that 

supports a constitutional amendment to reverse the Supreme Court's ruling on Citizens 

United. 

On March 6,2012, a town hall meeting in Starksboro passed a resolution that favors a 

constitutional amendment to overturn the Citizens United decision and clarifies that 

corporations are not people protected by the First Amendment. 

On March 6, 2012, citizens in Sudbury unanimously voted in favor of a resolution that 

condemns the Supreme Court's ruling on Citizens United and supports a constitutional 

amendment to reverse the decision. 

On March 6,2012, in Thetford Center, citizens at a town hall meeting voted to pass a 

resolution that favors a constitutional amendment to overturn the Citizens United 

decision and clarify that corporations are not people. 

On March 6,2012, a town hall meeting in Tunbridge passed a resolution that condemns 

the Supreme Court's decision on Citizens United and supports a constitutional 

amendment to reverse the ruling. 

On March 6,2012, citizens at a town hall meeting in Underhill voted in favor of a 

resolution that supports a constitutional amendment to overturn the Citizens United 

decision. 

On March 6, 2012, in Waitsfield, citizens passed a resolution that favors a constitutional 

amendment to reverse the Supreme Court's ruling on Citizens United and clarifies that 

corporations are not people protected by the First Amendment. 

On March 6, 2012, at a town hall meeting in Walden, citizens voted to pass a resolution 

that condemns the Supreme Court's decision on Citizens United and favors a 

constitutional ameodment to overturn the ruling. 

On March 6,2012, citizens in Waltham voted in favor of a resolution that supports a 

constitutional amendment to overturn the Supreme Court's ruling on Citizens United. 

On March 6, 2012, a town hall meeting in Warren passed a resolution that condemns the 

Supreme Court's ruling on Citizens united and favors a constitutional amendment to 

reverse the decision. 

On March 6, 2012, in West Haven, citizens voted to pass a resolution supporting a 

constitutional amendment to reverse the Citizens United decision and clarifying that 

corporations are not people. 

On March 6, 2012, at a town hall meeting in Williamstown, citizens voted in favor of a 

resolution that supports a constitutional amendment to overturn the Supreme Court's 

decision on Citizens United. 

On March 6,2012, citizens in Williston passed a resolution that condemns the Supreme 

Court's ruling on Citizens United and favo,," a constitutional amendment to reverse the 

decision. 

On March 6,2012, in Windsor, citizens at a town hall meeting voted to pass a resolution 

that supports a constitutional amendment to reverse the Citizens United decision and 

clarifies that corporations are not people protected by the First Amendment. 

On March 6, 2012, a town hall meeting in Winooski voted in favor of a resolution that 

supports a constitutional amendment to overturn the Supreme Court's decision on 

Citizens United. 

On March 6,2012, citizens in Woodbury passed a resolution that condemns the Supreme 

Court's ruling on Citizens United and favors a constitutional amendment to reverse the 

decision. 

On March 6, 2012, at a town hall meeting in Woodstock, citizens supported a resolution 

that calls for a constitutional amendment to reverse the Supreme Court's decision on 

Citizens United and clarifies that corporations are not people. 

Appendix-21 
108 

On March 6, 2012, in Worcester, citizens voted to pass a resolution that supports a 

constitutional amendment to overturn the Supreme Court's mling on Citizens United. 

Virgbj-, 

State Resolutions 

On December 11 rh, 2011, the Democratic Party of Virginia ratified a resolution against 

the Citizens United ruling, which provides "that corporations are not entided to the same 

rights in our elections as people" and that "the Supreme Court's ruling in Citizens United 

was incorrecdy decided." 

On June 2,2012, the Democratic Party of Virginia State Convention declared support 

for a constitutional amendment to overturn the Citizens United decision. 

Local Resolutions 

On June 4,2012, the City Council of Charlottesville passed a resolution in support of a 

constitutional amendment overturning the Citizens United ruling. 

Washington 

State Resolutions 

SJ]V18027, introduced on February 4, 2010 by Senator Ken Jacobsen (D-46), expresses 

disagreement with the Citizens United ruling and calls on the US Congress to pass a constitutional amendment. 

S1M 8007, introduced on February 16, 2011 by State Senator Adam Kline, requests a 

constitutional amendment declaring that corporations are not persons under U.S. law. 

On Apri130, 2011, the Washington State Democratic Party passed a resolution entided 

"Amending the U.S. Constitution to Reserve Constitutional Rights for People, not 

Corporations." The resolution calls on the state legislature to pass a joint resolution 

urging Congress "to pass and send to the states for ratifIcation a constitutional 

amendment to establish that a corporation shall not be considered a person eligible for 

rights accorded to human beings under the U.S. Constitution."The resolution goes on to 

say that the amendment should stipulate that "the use of money to influence elections or 

the acts of public officials shall not be considered a protected form of speech." 

Local Resolutions Passed 

On December 1,2011, the Jefferson County Democratic Party passed a resolution 

supporting a constitutional amendment to reverse the Supreme Court's ruling on 

CItizens United. 

On March 5,2012, the Port Townsend City Council unanimously passed a Municipal 

Government resolution that condemns the Supreme Court's ruling on Citizens United 

and supports a constitutional amendment to overturn the ruling. 

On April 23, 2012, the Jefferson ('')11Oty Board of Commissioners passed. reooWtion in 

suppor:t of an anlend~hL.i[L to t:l"; Unite': Stall! L J ... ~3-titution to abolish COrf(}rn.~',: 

personhood. 

On May 14,2012, the Searde City Council unanimously passed a resolution condemning 

the Citizens United decision and calling upon Congress to pass a constitutional 

amendment to overturn it. 

On June 4, 2012, the City Council of the City of Bellingham passed a resolution in 

support of amending the US Constitution to declare "that corporations are not entided to 

the constitutional rights of natural persons, and further to ensure that the expenditure of 

corporate money to influence the electoral process is no longer a form on constitutionally 

protected speech." 

OnJune 4, 2012, the City Council of Langley, WA passed a resolution calling for 

Congress to adopt a Constitutional amendment that would overturn Citizens United. 

The amendment would declare that money is not speech and that corporations are not 

people. 

Appendix-22 
109 

West Virginia 

Local Resolution~ 

, O'l;aimary12, 2C112, t:':' l\lartinsbtirg \.-"1 Cou •• .:il adopted a resolutlon ~allingfor a 

constitutional amendment to reverse the Supreme Court's ruling on Citizens United and 

clarifYing that corporations are not people. 

On January 26, 2012, the Jefferson County Commission passed a resolution that 

condemns the Supreme Court's decision on Citizens United and supports a constitutional 

amendment to reverse the ruling. 

On March 5,2012, Charles Town passed a resolution calling on the US Congress to 

amend the constitution to state that only living persons are endowed with constitutional 

rights and that money is not the same as free speech. 

On April 3, 2012, the Saint Albans City Council unanimously passed a resolution that 

condemns the Supreme Court's decision on Citizens United and presses for a 

constitutional amendment to overturn the ruling. 

Wisconsin 

State Resolutions 

On March 6, 2011, the Democratic Party of Wisconsin adopted a resolution in support 

of a constitutional amendment overturning the Citizens United V:FEC case. 

On February 9th, 2012, Representatives Mark Pocan and Chris Taylor introduced 

legislation (yet to be numbered) that provides that Congress amend the Constitution to 

overturn the Citizens United decision and related cases. 

Local Resolutions Passed 

On March 28,2011, the Milwaukee County Democrats passed a resolution that calls for 

amending the U.S. Constitution to make clear that corporations are not persons and that 

money is not speech. 

In April of 2011, 84% of voters in Madison, WI approved a resolution containing the 

following: 

"Shall the City of Madison adopt the following resolution: RESOLVED, the City of 

Madison, Wisconsin, calls for reclaiming democracy from the corrupting effects of undue 

corporate influence by amending the United States Constitution to establish that 

1. Only human beings, not corporations, are entided to constitutional rights, and 

2. Money is not speech, and therefore regulating political contributions and 

spending is not equivalent to limiting political speech." 

3. On April 1, 2011, American Federation of State, County, and Municipal 

Employees (AFSCME) 40 passed a resolution advocating for a constitutional 

amendment to oppose corp'"'1":1'e ":;rsonhoo<L and to declare that Hloney is not 

speech. 

On April 3, 2012, voters in West Allis passed a ballot resolution that rejects the Supreme 

Court's decision On Citizens United and calls for a constitutional amendment to reverse 

the ruling. 

On April 5, 2011, Dane County voters approved the following resolution by 78%: 

"Should the US Constitution be amended to establish that regulating political 

contributions and spending is not equivalent to limiting freedom of speech, by stating 

that only human beings, not corporations, are entitled to constitutional rights?" 

Appendix-23 
110 

On June 4, 2012, the common council of Wisconsin passed the Move to Amend model 

resolution, providing that corporations are not people and money is not speech. 

On June 4,2012, the lvlonona City Council passed a resolution calling on Congress to 

pass a constitutional amendment to overturn the Citizens United decision. 

Wyoming 

Local Resolutions Passed 

On May 15,2012, the Sheridan County Democrats passed a resolution providing that 

corporations are not people and money is not speech. 

SOURCES: 

http://movetoamcnd.orgl 

http://frcespecchforpeople.orgl 

http://democracyisforpcoplc.org/ 

http://www. rcsolutionswcck.orgl 

http://www. thealliancefordemocrac)"orgl 

http://www.duhc.org! 

Appendix-24 
111 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD

AMERICAN CIVIL 

LIBERTIES UNIQN' 

AMERICAN CIVllll8£RTlES UNION 

July 24, 2012 

The Honorable Richard Durbin, 

Chairman 

Subcommittee on the Constitution, 

Civil Rights and Human Rights, 

Committee on the Judiciary 

224 Dirksen Senate Office Bldg. 

Washington, DC 20510 

The Honorable Lindsey Graham, 

Ranking Member 

Subcommittee on the Constitution, 

Civil Rights and Human Rights, 

Committee on the Judiciary 

224 Dirksen Senate Office Bldg. 

Washington, DC 20510 

Re: "Taking Back Our Democracy: Responding to Citizens United 

and the Rise of Super PACs" 

Dear Chairman Durbin and Ranking Member Graham: 

On behalf of the ACLU, a non-partisan organization with over a half million 

members, countless additional supporters and activists, and 53 affiliates 

nationwide, we submit this statement for the record on today's hearing. We 

urge the subcommittee to exercise caution in responding to the Supreme 

Court's decision in Citizens Unitedv. Federal Election Commission,l and we 

strongly urge the Senate to resist any effort to amend the Constitution to 

limit the First Amendment. 

The ACLU has been involved in the public debate over campaign finance 

reform for decades, providing testimony to Congress on these issues 

regularly and challenging aspects of campaign finance laws in federal court. 

We applaud the subcommittee in its efforts toward the laudable goal of fair 

and participatory federal elections. We support numerous campaign 

disclosure and fair election measures that promote and inform the electorate. 

These include public financing, tightening regulations governing 

independent expenditures to bar coordination with campaigns and 

candidates, disclosure that preserves issue-based anonymous speech rights 

and either free or discounted broadcast advertising rates for political 

advertisements. We address these non-controversial proposals below. 

We have serious concerns on several other fronts. Perhaps most serious are 

the various proposals for constitutional amendments that would either limit 

corporate First Amendment protection or directly limit the First Amendment 

558 U.S. 50 (2010). 
112 

itself. We also oppose the various iterations of the DISCLOSE Act,2 which would require nonpartisan "issue advocacy" groups like the ACLU, the National Rifle Association and the Sierra 

Club to disclose the identity of certain members. Finally, we note common misconceptions 

about the decision in Citizens United, a decision which has very little to do with the "problem" of 

independent expenditure-only committees (colloquially, and inaccurately, known as "Super 

PACs"). 

The election of public officials is an essential aspect of a free society, and campaigns for public 

office raise a wide range of competing civil liberties concerns. Any regulation of the electoral 

and campaign processes must be fair and evenhanded, understandable, and not unduly 

burdensome. It must assure integrity and inclusivity, encourage participation, and protect 

privacy and rights of association while allowing for robust, full and free discussion and debate by 

and about candidates and issues of the day. Measures intended to root out corruption should not 

interfere with freedom of expression by those wishing to make their voices heard, and disclosure 

requirements should not have a chilling effect on the exercise of rights of expression and 

association, especially in the case of controversial political groups. 

Further to these core principles, we offer comments in four areas. 

1. Do Not Amend the Constitution. 

There are at least 14 separate constitutional amendments pending in Congress to address the 

decision in Citizens United. 3 Although they differ in the particulars, all take one of two general 

approaches. Several would limit constitutional rights to "natural persons." The rest provide for 

either Congressional regulation of contributions and expenditures, or directly limit contributions 

and expenditures by corporations, including for-profit and non-profit entities. Both approaches 

would effectively "amend" the First Amendment to limit speech rights, and would be the first 

time in history that the Constitution has been amended to restrict, rather than expand, individual, 

constitutionally guaranteed rights. 4 

The amendatory process for the Constitution is as burdensome as it is to prevent precisely these 

types of amendments. While the ACLU is concerned about the impact of aggregated wealth, 

including that of corporations and unions, on the political process, taking the radical step of 

amending the Constitution to restrict speech rights cannot be the answer. 

Furthermore, we fear an amendment to "fix" Citizens United would serve as precedent for other 

restrictive constitutional amendments. The ACLU has long fought numerous constitutional 

amendment proposals designed to restrict constitutional rights and liberties, including 

S. 3369, S. 2219, H.R. 4010, 112th Congo (2012). S. 3369 is identical to S. 2219, the previously introduced 

version of the DISCLOSE Act, but removes the disclaimer requirements of 2219 and moves the effective date of the 

legislation beyond the 2012 elections. H.R. 4010 resembles in significant part S. 2219. 

See League of Women Voters, Review of Constitutional Amendments Propcsed in Response to Citizens 

United, http://www .1 wv ,org/contentJreview-constitutional-amendments-proposed-response-citizens-united# finl. 

Even Prohibition was not as extreme a restriction on individual liberties as these proposals. The right to 

consume alcohol is not constitutionally enumerated. 

2 
113 

amendments prohibiting or pennitting the prohibition of flag "desecration," the so-called 

Victims' Rights Amendment, and birthright citizenship amendments (that would repeal the 14th 

Amendment's guarantee of citizenship to individuals born in the United States). These Citizens 

United amendments are just as misguided (and unnecessary), and we urge all members of 

Congress to oppose them if they are ever fonnally considered. 

Finally, those amendments targeting corporate personhood would have serious civil liberties 

implications in that they could inadvertently strip away, for example, Fourth and 14th 

Amendment rights that derivatively protect the "natural person" constitutional rights of 

shareholders and other stakeholders. Great care should be taken when legislating in this area. 

Any constitutional amendment restricting corporate speech would pose a danger that simply 

cannot be overstated for other rights and civil liberties. 

2. Set the Record Straight on Citizens United 

As recently reported by Matt Bai, chief political correspondent for the New York Times, 

assigning total blame for "money in politics" to Citizens United is, at best, "overly simplistic."s 

Citizens United is a relatively narrow decision. It held that unions and corporations (including 

non-profit corporations like the ACLU) can spend general treasury funds on communications 

that are not coordinated with a candidate or campaign. That is, they no longer need to fonn a 

political action committee, or PAC, in order to engage in direct political speech (direct 

contributions to candidates remain totally forbidden). 

The simple fact is, unless corporations and/or unions are doing so through disclosure-exempt 

501 (c)(4) organizations,6 they have not spent a sizeable amount of money on independent 

expenditure-only committees. To date, only about 13 percent of "Super PAC" donations have 

come from corporations, and less than one percent from publicly traded corporations.7 It bears 

repeating: virtually all of the relatively small amount of corporate spending is coming from 

private and most likely closely held corporations, which are often affiliated with a particularly 

influential individual. For example, five donor companies share an address in The Villages, 

Florida, affiliated with developers H. Gary and Renee Morse.s 

Additionally, all indications are that the current state of campaign finance is not a historical 

anomaly. There has been a consistent upward trend in campaign expenditures for decades as 

television advertising becomes more expensive (because a growing audience and more 

competitive races means more spots need to be purchased cycle after cycle). As Bai noted, the 

Man Bai, How Much Has Citizens United Changed the Political Game?, N.Y. Times, July 17,2012. 

In which case, there should be disclosure to shareholders or members. 

Bai, supra note 5. And a Bloomberg Government study has an even lower number-7.6 percent-for the 

period of December 2011 and March 2012. Mark Silva, Super-PACs: Little from Corporations, Bloomberg, July 

12, 2012, hnp:llgo.bloomberg.com/political-capitaV20 12-07 -12Isuper-pacs-linle-from-corporations/. 

Corporate Shells Ramp Up Super PAC Giving, Wash. Times, July 21, 2012, 

http://www.washingtontimes.comlblogiinside~po1iticsl2012!iuU21/corporate-shells~ramp~super-pac·giving/. 

3 
114 

percentage increase in outside expenditures (i.e., not direct contributions) has remained relatively 

static even after Citizens United (rising 164% from 2004 through 2008 and 135% from 2008 

through 2012). 

Finally, despite the deserved media attention surrounding the significant expenditures by Super 

PACs favoring Republican candidates and policies, there is no indication thus far that the 

increase in political spending has disproportionately benefitted anyone party or candidate. The 

Romney campaign is likely to "outspend" the Obama campaign in this year's presidential 

election. Further, for the first time in history, the GOP-affiliated Super PACs are spending at a 

level such that "outside" independent expenditures could outstrip direct contributions. 

That said, President Obama was, in 2008, the first major-party candidate to decline public 

financing due to the remarkable number of relatively small direct contributions he received 

(which is testament, further, to the resiliency of popular democracy in America).9 Additionally. 

even the Super PAC race is far from one-sided. Of the top individual contributors, threeincluding comedian Bill Maher, actor Morgan Freeman and CEO of Dreamworks, Jeffrey 

Katzenberg-are supporting Priorities USA, the "Obama" Super PAC. And, Priorities USA is 

aggressively running precisely the type of negative advertising against Mr. Romney that has been 

so derided in the current debate, which Professor Thomas Edsall at Columbia University 

suggests is a tactic to dissuade white men without college degrees--Obama's least favorable 

constituency-from going to the polls. 10 

For all the oxygen consumed on Citizens United, the decision in SpeechNow.org v. Federal 

Election Commission is of more salience for the Super PAC phenomenon.!! That said, even 

before SpeechNow, individuals were free to spend significant amounts of money on political 

speech and sometimes anonymously. For instance, during the 2004 presidential election, groups 

like Moveon.org, America Coming Together, and Swift Boat Veterans for Truth spent significant 

amounts of money on political speech. 

There should be a public discussion of the problems arising from the influence of aggregated 

wealth, be it corporate or individual. Nevertheless, the country must not act with undue haste in 

changing our elections laws-and especially should not do so based on faulty information. We 

urge the subcommittee and all members of Congress to act on facts, and not hyperbole. 

See Shailagh Murray & Perry Bacon Jr., Obama to Reject Public Fundsfor Election, Wash. Post, June 20, 

2008, http://www.washingtonpost.com/wp-dynlcontentlarticle/2008/061l9/ AR2008061 9009 l4.html. 

JO Thomas B. Edsall, The Politics of Anything Goes, N.Y. Times, July 23, 2012, http://campaignstops.blogs. 

nytimes.coml2012/07/23/the-politics-of-anything-goes/. 

11 599 F.3d 686 (D.C. Cir. 2010). There, the D.C. Circuit held that individual contribution limits to 

unincorporated "527" committees, named after the section of the tax code, were unconstitutional in light of the 

holding in Citizens United that uncoordinated expenditures do not give rise to the type of quid pro quo corruption or 

the appearance thereof that would justify limiting the First Amendment. 

4 
115 

3. Disclosure and Protecting Anonymous Political Speech Not Mutually Exclusive 

Transparency drives democracy. The American electorate has a legitimate interest in knowing 

the source of significant support for a candidate. Accordingly, relatively large contributions 

and/or expenditures are subject to legitimate disclosure (as they already are). What disclosure 

rules cannot do is act to chill constitutionally protected associational and expressive rights. 12 

Unfortunately, the current disclosure legislation pending in Congress would do exactly that. 13 

First, all of the DISCLOSE Acts currently pending would dramatically expand the period of time 

during which issue advocates-those taking no position in support of or in opposition to a 

political candidate--must disclose their donors if they wish to publish issue ads. 14 The Act 

would expand the "electioneering communications" period-{;urrently the 30 days before a 

primary and the 60 days before a general election--quite significantly. For communications that 

refer to a candidate for the House or Senate, the period would begin on January I of the election 

year and end on the election, and would encompass the entire period following the 

announcement of a special election up to the special election. For communications mentioning a 

presidential or vice presidential candidate, the period would extend from 120 days before the 

primary or caucus in an individual state, which would radically extend the heightened disclosure 

period in numerous jurisdictions. 

Additionally, the legislation would expand the definition of independent expenditure, which is 

currently limited strictly to communications that expressly endorse or oppose a candidate, to 

those that are the "functional equivalent" of express advocacy. The functional equivalency test, 

such as it is, invariably drags in speech that is and should be protected from limitation under the 

First Amendment. This, in fact, was the case in Citizens United, where the communication at 

issue was an independent documentary critical of then-presidential candidate Senator Hillary 

Clinton. Similar communications (assuming they are outside the electioneering communications 

window) would trigger disclosure as independent expenditures. And, as the government 

conceded in the Citizens United oral arguments, the same logic would extend to a book or other 

non-broadcast medium like a pamphlet or sign that could be construed as critical of a candidate, 

which is an obvious First Amendment violation. 15 

12 The constitutional interest in anonymous speech was most obvious during the civil rights era, when 

segregationist state governments sought to chill associational activity in civil rights groups. See, e.g., Nat'[ Assoc. 

for the Advancement of Colored People v. Alabama, 357 U.S, 449 (1958) (holding NAACP membership lists off 

limits to state government seeking to prevent organization's operation in-state). 

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

14 S. 3369 § (2)(a)(2). 

" Transcript of Oral Argument at 65:2-15, Citizens United v. Fed. Election Comm'n, 558 U.S. 50 (2010) (No. 

08-205). Then-Solicitor General Elena Kagan explained that to the extent that a book would be construed as express 

advocacy, 2 U.S.C. § 441b would cover that book, but further explained that there would be a good "as-applied" 

challenge to any enforcement. She further noted that there had never been an FEC action covering a book. 

Nevertheless, the government clearly admitted that a book would be covered by the ban in 441b. To the extent the 

definition of independent expenditure is amended to include the functional equivalency test, even a book that does 

not expressly say "vote for candidate X," but is highly critical of said candidate, would be covered. 

5 
116 

Finally, and to be very clear, the DISCLOSE Act would require non-partisan issue advocates like 

the ACLU, Planned Parenthood or the National Rifle Association to disclose the identity of some 

donors. To the extent that donors contribute more than $10,000 that is spent on electioneering 

communications, independent expenditures or "covered transfers," their identities must be 

disclosed. While the legislation provides for disclosure only with regard to a segregated account, 

assuming these organizations take the time and trouble to set it up, this legislation will require 

membership disclosure for those issue advocates who must rely on larger donations to fund 

political communications simply because of the economics of their operations (some small 

organizations have, for instance, a limited base of larger donors). 

Further, and even with a $10,000 trigger, the present exceptions in the DISCLOSE Act may still 

leave the door open to disclosure when a donor had no intention that a gift be used for political 

purposes. 16 It is both impractical and unfair to hold contributors responsible for every 

advertisement that an organization publishes, which would be required were the entity to spend 

more than $10,000 in a cycle on covered communications from general treasury funds, and even 

donors who give more than $10,000 may be small relative to the size of the covered 

organization's donor base as a whole. 

The DISCLOSE Act is likely to do one of two things, particularly when an organization is 

engaged in advocacy on controversial issues with which typical donors or members might not 

want to be associated publicly. First, the organization might refrain from engaging in public 

communications that would subject its donors to disclosure, in which case the organization's 

speech will have been curtailed. Alternatively, donors sensitive to public disclosure may refrain 

from giving to the organization (or may cap disclosure just below the trigger threshold), in which 

case the organization's ability to engage in speech will also have been curtailed. In both cases, 

those whose names are disclosed would be subject to personal, political or commercial impacts, 

and the national political conversation will itself have been chilled. 

4. There Are Numerous Productive Alternatives to Constitutional Amendments, 

Further Limitations on Speech and Onerous Disclosure Rules. 

a. Tighten Coordination Rules to Prevent Sham Independent Expenditures 

First, Congress and the Federal Election Commission ("FEC") should turn their attention to 

ensuring that independent expenditures are truly independent. As a matter of economics (not to 

mention common sense), truly independent expenditures cannot be corrupting or produce the 

appearance of corruption because there is no promise-tacit or explicit-that the candidate will 

provide something of value, including access, in exchange for the expenditure. The individual or 

group spending the money will have to hope that the candidate is listening and receptive. 

Additionally, truly independent expenditures are also frequently used to promote salutary policy 

debate (e.g., "support candidate X, a true friend of the Second Amendment"). 

16 S. 3369 § (2)(b)(I)(a)(3)(B). The donor would have to specifically prohibit, in writing, use of the funds for 

any covered payment. and the covered organization would have to agree aod then segregate the funds. 

6 
117 

During the recently concluded primary season, Super PACs spent millions supporting particular 

candidates or-more frequently---{)pposing rivals. That practice has now turned to the general 

election, with Super PACs for and against President Obama and former Governor Romney 

taking turns attempting to sway voters. Because these organizations carefully avoid the 

regulatory definition of coordinating' with a candidate, they are allowed to spend unlimited 

sums. In truth, connections between most of these organizations and the candidates they support 

run deep. 17 

When Newt Gingrich was still a viable candidate, he announced to the world how much he 

would benefit from an upcoming independent ad campaign. IS His public comments clearly gave 

a clue to his benefactors that he approved. The Super PAC supporting Mitt Romney-Restore 

Our Future-is led by a group of people deeply involved in the 2008 Romney campaign. As 

noted, Priorities USA is President Obama's Super PAC and it was founded by a former key 

staffer to Rahm Emmanuel and a former campaign press secretary. 19 The candidates are allowed 

to help the Super PACs raise money and, despite rules to the contrary, the campaigns and the 

Super PACs share consultants and communicate routinely across the public airwaves and 

otherwise. 

Regulations that define 'coordination' do not necessarily ensure complete separation between 

organizations making independent expenditures and the candidates they support. An ad is 

considered to be coordinated with a candidate-and thus restricted-if it meets certain 'content' 

and 'conduct' standards. Most ads do NOT avoid the content standard because they all advocate 

the election or defeat of a candidate. To avoid the conduct standard, a Super PAC must, among 

other things, avoid employing or contracting with someone who worked for the candidate in the 

past four months or must make sure the ads are based on publicly available information. In fact, 

most Super PACs supporting major candidates employ plenty of people closely aligned with the 

candidates-but they simply make sure they haven't worked for the candidates for over four 

months. Such a restriction is easy to overcome and it is naive to think that a candidate staffer 

who has been intimately involved in the strategic thinking of a campaign will somehow be 

uninformed about the strategic and tactical needs of the campaign only four months after leaving. 

Congress and the FEC should tighten the definitions so that independent expenditures are truly 

independent of the campaigns they are intended to benefit. 

J7 See Nicholas Confessore, At 40, Steering a Vast Machine olGOP Money, N.Y. Times, July 22, 2012, 

available at http://wwwnytimes.coml2012/07122/us/politics/steering-the-rights-vast-moneymachine.html? r=:2&ref-poIitics~ Mike McIntire & Michael Luo. Fine Line Between 'Super PACs' and Campaigns, 

N.Y. Times, Feb. 25, 2012, http://www.nylimes.com!2012/02l26/us/politicsl!oose-border-of-super-pac-and-romneycampaign.hlm!? pagewanted-all. 

18 See Quin Hillyer. Did Gingrich Break the Law?, The American Spectator, Spectator Blog, Jan. 9, 2012, 

http://spectator.orglblogI2012l01/09/did-gingrich-break-the-law. 

19 Dan Eggen & Chris Cillizza, Romney Backers Launch 'Super PAC' to Raise and Spend Unlimited 

Amounts, Wash. Post, June 23,2011, http://www.washinglonpost.com!politics/romney-backers-!aunch-super-pacl 

20l1l06122/AGTkGchH slory.hlml. 

7 
118 

b. Support Effective Public Financing 

Contrary to the perceived wisdom, public financing of elections can be highly effective. As 

noted above, President Obama was the first to turn down the sizeable pool of public financing 

dollars for presidential elections, suggesting that the preceding presidential races benefitted 

greatly from the financing program. There is no constitutional reason not to enact similar 

policy for other federal elections. We applaud Chairman Durbin for his efforts in this area, and 

the Fair Elections Now Act is a promising step in this direction. Much of it follows the key 

principles of an effective public financing system: funds are available to all-comers who meet 

certain local support criteria; it provides a floor for campaign expenditures sufficient to allow 

candidates to run a competitive campaign; and it would not be unduly burdensome. 

Note, however, that the adjustment mechanism should not be allowed to unfairly disadvantage 

the non-cooperating candidate, nor interfere with the voluntary nature of the candidate's choice 

to participate in the public finance system. 

c. Speed Tax-Exempt Status Determinations 

A relatively easy improvement in campaign finance would be to ensure that the Internal Revenue 

Service has the resources and expertise to expeditiously approve or deny tax-exempt status 

proceedings. One complaint heard over and over is that organizations are able to shield donors 

under tax exemption laws without any oversight or enforcement until well after the relevant 

election period has ended.2o At the very least, federal agencies with enforcement authority 

should be given the tools to prevent abuses of the system and not rely solely on punishing those 

intent on committing such abuses. 

d. Mandate Lowest Cost Political Advertising 

The ACLU supports cost reduction mechanisms, which may be the best option for limiting the 

influence of aggregations of money in politics. For instance, we support government-sponsored 

communications platforms that permit all candidates to state their views. Additionally, we 

support extending the franking privilege to challengers in federal campaigns, and we support 

providing for free or lowest-cost broadcast television airtime to candidates. Such measures must, 

of course, be administered in a nondiscriminatory manner and under circumstances that expand 

candidates' access to media. But they would, quite literally, end the problem in one fell swoop. 

5. Conclusion 

The current debate over campaign finance is a worthy one. We share the legitimate concerns of 

many Americans about the influence of "money in politics." Campaigns for federal office are 

expensive, and are becoming more so by the day and the cycle. Nevertheless, many of the recent 

calls for reform are unnecessary and counterproductive. In the case of proposed constitutional 

20 Ionathan Weisman, Democrats to Askfor Curbs on Donor-Shielding Groups, N.Y. Times, July 8, 2012, 

http://www.nytimes.coml2QI2/Q7/09fus/politicsfdemocrats-want-fec-to-restrict·donor-shielding-groups.html ("The 

F.E.C. is usually slow to respond to such complaints, and any action is unlikely to affect the 2012 election."). 

8 
119 

amendments and legislation that would require actual social welfare organizations to disclose the 

identity of their members, these proposals present civil liberties perils of the highest order. 

Despite the influence of money in politics, evidence does not yet exist of a threat that large 

donors are monopolizing channels of communication to the exclusion of candidates, parties, or 

those organizations funded by aggregations of smaller donors. We strongly urge the 

subcommittee, and indeed the whole Congress, to tread lightly in any effort implicating the right 

to speak freely on issues of political and public moment. 

Please do not hesitate to contact Legislative Counsel Gabe Rottman if you have any questions or 

comments at 202-675-2325 or grottman@dcaclu.org. 

Sincerely, 

Laura W. Murphy 

Director, Washington Legislative Office 

Michael W. Macleod-Ball 

Chief of StaffIFirst Amendment Counsel 

Gabriel Rottman 

Legislative CounselfPolicy Advisor 

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

Rights 

9 
120 

July 23, 2012 

The Honorable Dick Durbin 

Chair, Subcommittee on the Constitution, Civil Rights and Human Rights 

U.S. Senate Committee on the Judiciary 

224 Dirksen Senate Office Building 

Washington, DC 20510 

The American Sustainable Business Council (ASBC) is pleased to offer this testimony in support of a 

Constitutional amendment to reverse the Citizens United decision which has had an adverse effect on 

many businesses, especially small- and medium-sized businesses. We would like to express our gratitude 

to you for holding this important hearing and your work to find solutions to the problem of unlimited and 

unaccountable money in our political system. 

The American Sustainable Business Council (ASBC) is a growing national coalition of businesses and 

business organizations committed to advancing policies that support a vibrant and sustainable economy. 

ASBC, through its partner organizations, represents over 150,000 businesses including industry 

associations, local and state chambers of commerce, microenterprise, social enterprise, green and 

sustainable business, advocates for community-rooted business, women and minority business leaders, 

and investor networks and more than 300,000 business professionals. 

In his dissenting opinion to the United States Supreme Court's Citizens United decision, now-retired 

Justice John Paul Stevens stated, "a democracy cannot function effectively when its constituent members 

believe laws are being bought and sold." 

This simple statement cuts to the core of the corruption of the democratic process that has occurred 

following the unleashing of unrestricted, secretive and unaccountable spending to influence U.S. public 

policy. It is critical for Congress to act on legislation like the DISCLOSE Act and support a 

constitutional amendment to limit the influence of money in politics and restore the democratic system of 

governance to preserve a fair and free society for all. 

By allowing for unrestricted political spending by corporations, Super-PACs and wealthy individuals, the 

free speech of the average person and most business owners is severely marginalized. This leads many to 

become either disenfranchised or disillusioned by the system. 

The Citizens United decision substantially increases the influence of large corporations and the ultrawealthy in politics-both in detennining who gets elected and how they make decisions once in office. 

The ruling asserts that the legal construct of the corporation, created at the state level, should have the 

same Constitutional rights as people to "speak" through expenditures in elections. 

Executives, owners, investors, and business professionals understand that money can influence political 
121 

decision making and is harmful to our businesses and to the economy. Business confidence in the 

fairness and equity of the policy making system is the lifeblood of our economy and the democratic 

process. As any economist will tell you, rules and institutions do matter, and the Citizens United decision 

severely distorts the public debate through which these rules operate and institutions function. 

In recent independent polling released by the American Sustainable Business Council, 9 in 10 small 

business owners stated they had a negative view of the role money plays in politics. In addition, 66% 

polled voiced their opinion that the Citizens United decision was bad for small business with only 9% 

saying it was good. 

The basis for their concern is that as small businesses, they would rather invest in their business and 

create jobs than invest in the electoral process. They are also firm believers in a level playing field that 

allows for fair competition. They know they cannot compete with the mountains of cash thrown at 

politicians by large corporations to influence policy. This fact greatly distorts the economic system for 

small businesses and alters the landscape of the efficiency and transparency of markets within which all 

businesses compete. 

Companies ought to be competing in the marketplace, not in our elections. And citizens ought to be in 

charge of the government, not corporations. Every company in America should be willing to say that. 

That's what nearly 2000 business leaders endorsed when they signed the American Sustainable Business 

Council's Business for Democracy (www.businessfordemocracy.com) petitions calling for a 

constitutional amendment to reverse the Citizens United decision. ASBC's ally Free Speech For People 

(www.freespeechforpeople.org).joined in helping to enlist business leaders to sign this call. 

Large established industries that spend heavily in campaigns are more likely to defend the interests of the 

past, rather than advocate for the industries innovating for the future. They are more likely to be 

committed to old energy sources rather than making America a leader in clean and renewable energy. 

They are more likely to be companies that are utilizing overseas tax havens and not contributing their fair 

share of taxes to the economy, while often receiving the largest government subsidies. 

It is small- and mid-sized businesses, entrepreneurs and consumers that create the foundation that drives 

economic growth and job creation. The current campaign finance system puts such companies at a distinct 

disadvantage to big corporations. This does not lead to good economic policy 

As elections become more expensive, the voices of those who can't make contributions or only make 

smaller contributions will be drowned out. These disadvantages are exacerbated by the emergence of 

Super-PACs in the aftermath of the Citizens United decision. Recent data from OpenSecrets.org, a 

campaign finance watchdog group, shows that the top 5 Super-PACs account for almost $144 million of 

the $282 million in 2012 election cycle independent expenditures to date. 

How can individuals make informed decisions about elected officials and about policies to help create a 

sustainable economy of the future when such a disproportionate amount ofthe information easily 

accessible to the public comes from such a concentrated group of voices advocating for the maintenance 

of an unsustainable status quo. 

Businesses should support a politics oftransparency and fairness, where citizens are the players in our 
122 

democracy. Our businesses thrive because they are competitive and well managed not because certain 

businesses favored the winning candidate in the last election. 

ASBC and its members hold strong democratic values. We do not want a government in which elected 

officials must raise ever increasing funds from business. Nor where a few businesses define the debate on 

policy issues or where the majority of business people and citizens alike are silenced in the din of 

negative ads. 

The core of democracy lies in the active participation of the constituent members of a society in voicing 

their views on how a society and economy should function. The idea of freedom and liberty envisioned 

by the framers of the constitution was not a concept for corporations and oligarchs. It is a concept for the 

people and citizens ofthis nation, and it is time for the people to once again have a fair and equal voice in 

their democracy. 

Respectfully submitted, 

David Levine 

CEO and Co-Founder 
123 

AMERICANS FOR ", 

CAMPAIGN REFORM 

Our future depends on it. 

Statement For The Record 

Submitted by Americans for Campaign Reform 

July 18, 2012 

Since the beginning of the current election cycle, extremely wealthy individuals, 

corporations and trade unions - all of them determined to influence who is in the 

White House next year - have spent more than $160 million, excluding party 

expenditures. 

To put this in some historical context, at this point in 2008, about $36 million had 

been spent on independent expenditures (independent meaning independent of a 

candidate's campaign). In all of 2008, in fact, only $156 million was spent this way. 

In other words, we've already surpassed 2008, and it's July. 

And so far in this election cycle, the top three contributors, via independent 

expenditures, have already spent about $42 million - more than was spent on 

independent expenditures by all donors at this point 2008. And at the extreme, one 

wealthy individual, Sheldon Adelson, has already spent $20 million in a brazen 

attempt to impact the outcome of this year's Presidential election. 

As further evidence of the concentration of this spending among the very wealthy, 

the top donors to Super PACs represent only 3% of all Super PAC donors but have 

contributed almost 80% of the money. 

No matter how you slice it, and from what perspective you look at the data, two 

things are very clear: There is a lot more money being spent to influence the 

Presidential election outcome than ever before. And the money is being spent by a 

very, very small percentage of the population. 

It is also clear that the anonymity and detachment of these independent 

organizations--Super PACs, 501(c)3s and 527s--is facilitating a dramatic increase 

in the use of negative advertising. And, it appears that much of the negative 

advertising we've seen to date is unencumbered by the truth, making it much more 

difficult for voters to make informed, educated decisions about who should lead our 

country. 

This massive influx of special interest money, the anonymity allowed by current law 

and the preponderance of negative messages is having a detrimental impact on our 

elections and may over time have a more profound and troubling impact on the 

long-term ability of our government to meet our most difficult challenges. 
124 

A close look at a recent race provides a compelling window into the situation. 

Paul Hodes was a two-term Democratic Congressman representing the Second 

District of New Hampshire who decided, in 2010, to relinquish his seat and run for 

the open Senate being vacated by Judd Gregg. Hodes had adequate name recognition 

and a reputation as a left-of-center moderate willing to reach out to Republicans and 

compromise in the interest of his constituents. 

In the general election, Hodes faced Republican Kelly Ayotte, a former NH Attorney 

General who had served under both a Republican and a Democratic governor. 

Although Ayotte had never run for public office, she was well known and well 

respected, particularly in conservative circles. While serving as Attorney General 

she had successfully prosecuted two high-profile murder cases, winning convictions 

in both and getting a death penalty sentence in one. 

As Hodes said recently, "She had a lot going for her that made her an attractive 

candidate in New Hampshire. She had a tough-as-nails trial record, some bipartisan 

credibility, and her husband ran a snow plow business!" 

From the beginning, Hodes knew this race was going to be different than his 

previous campaigns for Congress. While Hodes set a record for the amount of instate contributions he raised, Ayotte was able to attract millions of dollars from outof-state interests determined to keep the open seat in Republican hands. Ayotte also 

benefitted from major financial support from the Republican Party. 

According to Hodes, when it was all said and done, Ayotte and her supporters had 

spent some $25 million. Hodes had spent about $5 million with no significant 

financial support from the Democratic Party and virtually no expenditures from any 

outside group. Despite Hodes own admission that he spent an astounding 80% of 

his time fundraising during the campaign, he was outspent five to one. 

In November 2010, Ayotte won the election by about 20%. 

Interestingly, Hodes doesn't blame his loss solely on the huge disparity of campaign 

spending. He credits Ayotte with running a good, tough campaign and acknowledges 

that there were a lot of factors that contributed to her victory. 

But Hodes has a lot to say about how the massive amounts of money from outside 

New Hampshire changed the race in profound and troubling ways. 

He is still frustrated by the anonymity of much of the forces opposing him. "I was 

subjected to a barrage of negative advertising in a small state by anonymous out-ofstate interests. As best as I could tell, these were people who had no interest in New 

Hampshire. They were only interested in controlling a seat in the US Senate and the 
125 

US Senate itself. The game is on steroids now. Campaigns have become a playground 

for people with huge amounts of money." 

He adds, "It is sobering to understand the extent to which the modern campaign 

depersonaIizes politics. Your ideas don't count. Your record doesn't count. All of the 

decisions made are about money, and the decisions are made by people with no 

interest in New Hampshire." 

When talking with Hodes about his experience, it is impossible not to sense his 

bitterness and concern. 

We believe that this is a critically important and threatening outcome of the Citizens 

United and Speech Now decisions. We've already seen many of our most talented 

leaders and most capable statespersons leave the House and Senate because the 

partisanship and the tone of the debate has become stifling and toxic. 

If Hodes' experience is shared by others seeking public office, and campaigning 

continues to be so heavily affected by anonymous out-of-district influences running 

negative advertising, we fear even more incumbents will decline to run for 

reelection and many of our most capable potential leaders will not consider running 

for elective office. 

In America we elect only 536 people to lead our country: 435 House Members, 100 

Senators and the President. It is vital that we elect the finest and most capable 

leaders we have. But, unfortunately, this is unlikely unless we enact sweeping 

campaign reform laws. Today, candidates must have access to incredible wealth to 

run for office and are then exposed to the increasing likelihood of an onslaught of 

largely anonymous negative advertising like that seen in the Hodes' Senate race. 

If we are to overcome the daunting challenges that our country faces, we must do 

everything in our power to conduct political campaigns that elicit bold ideas in the 

most positive atmosphere possible. We must encourage, rather than discourage, 

talented people from seeking public office. 

Full transparency of political spending, a Constitutional Amendment to overturn 

Citizens United, and, most importantly, voluntary public funding offederal elections 

should all be openly debated and embraced. However, given the length of time it 

would likely take to pass an Amendment, it is important to note that voluntary 

public funding--at appropriate levels--wiII still be effective even as Citizens United 

remains the law of the land. 

We believe that, in the long term, there is nothing more important for our country. 
126 

Tne Honorable Dick Durbin 

Chair, Subcommittee on the Constitution, Civil Rights and Human Rights 

U.S. Senate Committee on the Judiciary 

224 Dirksen Senate Office Building 

Washington, DC 20510 

July 11, 2012 

On behalf of Ben & Jerry's Homemade, Inc., I write to express our Company's strong support for a 

Constitutional amendment that would overturn the Citizens United v FEe decision and create a more 

democratic system of campaign finance in the United States. I thank the Chairperson and the 

subcommittee for calling this hearing and receiving this testimony. 

Ben & Jerry's is a Vermont corporation and a wholly-owned subsidiary of Unilever, a multinational 

consumer products company. Ben & Jerry's manufactures and markets packaged ice cream and frozen 

yogurt products in the United States and more than 30 other countries around the world. In addition, 

Ben & Jerry's has franchised scoop shops in more than 400 IDeations in the United States and .round the 

world. 

Ben & Jerry's is guided by a mission statement with three parts: Product, Economic, and Sodal. Our 

Social Mission in particular calls us to use our Company to improve the quality of life In the !ocal, 

national. and global communities in whkh we operate. In addition, our Company has a long history of 

supporting grassroots efforts to promote social and economic justlee, sustainable environmental 

practices, and strong communities. I submit this ~1atement today gUided by our Company's Social 

Mission and in a sincere effort to add our voice in support ofthe growing movement of citizens across 

the country who are working to reclaim the original spirit of democracy as envisioned by our country's 

founders. This spirit of democracy, as We understand it, is that the elected representatives who govern 

our country are accountable to the people alone. 

In the interest of full disclosure, as a matter of long-standing Company policy, neither Ben & Jerry's nor 

our parent company, UnHever, contributes Company funds to political candidates, political parties! Of 

organizations established to support camjldates or parties. We do not have a Political Action Committee 

and we do flot contribute to Super PACs. 

Since we are not experts on the subject of campaign finance, we wi!! leave it to others to document the 

specific harms caused by the current system of campaign finance. We certainly share the concerns of 

many citizen s, public interest groups, and advocates of good government in the United States that the 

existing system of campaign finance is broken. It is dear that, through Political Action Committees, 

SuperPACs, political parties, nonprofit 501 c{4l groups, and other vehicles, many camp.igns are now 

fueled primarily by large contributions and independent expenditures from a very small number of 

donors who essentially operate Without meaningful campaign finance limits or disclosure requirements. 

This has created a svstem in which many of our elected le.ders are dependent upon financial support 

from the wealthiest interests; are eager to support policies that benefit these interests; .re loathe to 
127 

support any policy that challenges these interests; a'e no longer fully accessible to or accountable to the 

citizens they represent; and are therefore impaired in their ability to formulate policV that is eXclusively 

focused on the common good. While wealthy donors and corporate interests have frequent access to 

elected leaders, the general public does not even know who is financing the political messages they see 

and hear. In short, the system of campaign finance has become profoundly undemocratic; and 

democracy itself is now in danger. 

Ben & Jerry's believes it is not the proper role of any for-profit company to interfere in any way in 

elections for public office. These elections belong to the people" They exist only to allow citizens to 

choose their representatives in government. Corporate spending in elections, including direct 

contributions to candidates and political parties, independent expenditures, or contributions to 

nonprofit 501 c(4) groups, are in our view, inconsistent with the spirit and intent of candidate elettions. 

Therefore, we would support an amendment to the Constitution that would restrict or ban corporate 

spending in elections, or that would allow Congress and state legislatures to restrict Df ban corporate 

spending in elections. 

There are many for-profit corporations that share our view. Ben & Jerry's is a signatory to a campaign 

cailed Business for Democracy, which inclUdes more than 2,000 businesses and business leaders who 

have endorsed the following statement 

We believe the American democratic ide-al of "government of the people, by the pc-ople, for the 

people"" 

Vv'e believe the U.s. Supreme: Court~s Citi:::ens UnNe-d l; FEe decisiOil. which allows corpomtioos 

to spend unHmitt.'"d money influencing the outcome of public eiectjons.., is inconsistent with 

long;<>tanding An1t..-rican democratic principlcs and practice. 

We believe it is not the proper role of any for-profit corporation to support or oppose political 

partie.", or c.;:mdjdates for public office. 

Despite the Citl::ens Unit(?d decision~ ilte call on aU companies doing business in the United States 

to rr:frain from spending money for the purpose ofinflucncmg the outcome of pub He elections, 

\Vt: support citizen eflbrts to ovcrtum Citizens United through .a COll~iitutionaJ amendment We 

believe this Constitutional amendment should not limit commercial fn.-'C speech 

';Qrporatious from publicly expn::;sing a point ofvkw on existing or proPQ~ 

regulation, referenda Of other matters of publk policy. 

We recognize that corporate spending in elections is only part of the campaign finance problem. 

Additional reforms should also be considered to minimize the influence of wealthy interests in public 

elections. In our view, ALL entities and individuals should be subject to reasonable limits on 

contributions to candidates for public office; All entitieS and individuals should be subject to reasonable 

limits on independent election expenditures; and All entities and individuals should be required to fully 

disclose all spending in elections. This approach would be most closely in keeping with the spirit of 

democratic elections, as we understand them" Ben & lerry's would support passage of an amendment or 

amendments to the U.S. Constitution that create and/or allow for these reforms. 
128 

In summary, we support citizen efforts to restore true democratic government in the United States 

through meaningful and comprehensive campaign finance reform, We support passage of a 

Constitutional amendment or amendments to enable this reform, We want the subcommittee to 

understand that there are many businesses, including ours, that are fully aligned with citilen efforts in 

this direction, 

Thank you for your consideration of our point of view, 
129 

, CENTERjor ~ COMPETITIVE ~ POLITICS 

f! "'YN.I,! .III~l'l'ta6 /'l"'. d~." 

Center for Competitive Politics' Comments on 

Senate Judiciary Committee 

Subcommittee on the Constitution, Civil Rights and Human Rights 

"Taking Back Our Democracy: Responding to Citizens United and the 

Rise of Super PACs" 

Tuesday, July 24,2012 

2:30 pm 

Center for Competitive Politics 

124 S. West St., Suite 201 

Alexandria, Va. 22314 

www.campaignfreedom.org 
130 

Introduction: 

The Center for Competitive Politics (CCP), a non- profit education 

organization based in Alexandria, Va. is dedicated to promoting and 

defending the First Amendment rights of speech, assembly, and petition. 

Our mission is to inform the public of the actual effects of money in 

politics and the results of a more free and competitive electoral process. 

We are the only organization dedicated solely to protecting First 

Amendment political rights. As such, and given our involvement as 

amici filers in support of Citizens United in the original Citizens United v 

FEC, we submit these comments into the official record of to day's Senate 

hearing titled "Taking Back Our Democracy: Responding to Citizens 

United and the Rise of Super PACs." 

Last month, the United State Supreme Court summarily reversed a 

decision by the Montana Supreme Court that would have upheld a 

Montana law prohibiting corpor~te expenditures in political races, 

despite the clear holding to the contrary in Citizens United v. Federal 

Election Commission. 558 U.S. 50 (2010). This has given renewed vigor 

to efforts to overturn Citizens United via a constitutional amendment, 

including one recently proposed by Senator Baucus. 

Although there are many reasons to support the Supreme Court's 

decision in Citizens United as a correct understanding of the First 

Amendment, CCP wishes to raise here three points in particular which 

have been widely overlooked in the post-Citizens United discussion. 

1. First, while there is no doubt that opinion polls show that the 

public disagrees with "Citizens United," at least as that decision is 

described in most polls, such polls fail to account for the nuances 

of public opinion, ongoing support for the First Amendment, and, 

in fact, substantial majority support for the actual result in 

Citizens United. 

2. Second, prior to Citizens United, a majority of states already 

allowed unlimited corporate spending in state elections, without 

suffering the negative consequences it is claimed will result from 

the Supreme Court's ruling. 

3. Many proposed constitutional amendments would not only 

invalidate Citizens United, they would also repeal a host of other 
131 

important First Amendment precedents going back decades. 

The Public is not clamoring for a Constitutional Amendment 

Numerous public opinion polls have indicated that the public opposes 

the Supreme Court's decision in Citizens United. Of this there is no 

doubt. This may lead members to believe that a constitutional 

amendment to overturn the decision would meet with wide public 

approval. A fuller reading of polling data, however, casts serious doubt 

that this is true. 

For example, a widely cited 2010 poll for the Washington Post/ABC 

News asked, "do you support or oppose the recent ruling by the 

Supreme Court that says corporations and unions can spend as much 

money as they want to help political candidates win elections?" 

http://abcnews.go.com !images IPollingUnitlll 02a6 Trend.pdf. 

A 2012 poll by Greenberg Quinlan Rosner Research for Public Campaign 

asked a series of wildly biased questions to prime the pump against 

Citizens United. For example, respondents were asked if they agreed 

with the statements, "I am fed up with the big donors and secret money 

that control which candidates we hear about. It undermines 

democracy;" "There is too much big money spent on political campaigns 

and elections today and reasonable limits should be placed on campaign 

contributions and spending;" and "The middle class won't catch a break 

unless we start by reducing the influence of big banks, big donors and 

corporate lobbyists," Even with such pump priming, however, just 62% 

voiced opposition to Citizens United, 

http://campaignmoney.org/files/DemCorpPCAFmemoFINAL.pdf. 

In contrast, in 2010, in the immediate aftermath ofthe CU decision, CCP 

authorized a poll on public attitudes towards Citizens United and 

campaign finance.1 Rather than ask people if they agreed with "Citizens 

United," or describing the case in the terms routinely used in other polls, 

we asked respondents about the actual issues in the case. The results 

were quite different. For example, when we asked, liDo you believe that 

I The poll was conducted by Victory Enterprises, an Iowa polling firm, of 600 likely voters on March 

1-2,2010. The poll's margin of error is +-4%. 
132 

the government should have been able to prevent Citizens United, an 

incorporated nonprofit advocacy group, from airing ads promoting its 

movie?," respondents agreed with the ruling in the case by nearly a 

three to one margin (51.2 percent to 17.5 percent, with 27 percent 

undecided and 4 percent refusing to answer). We then asked about the 

second issue in the case: "Do you believe that the government should 

have been able to prevent Citizens United, an incorporated nonprofit 

advocacy group, from making its movie available through video-ondemand technology?," with a nearly identical result (51.2 percent said 

no, the government should not; 19.0 percent said yes). 

We asked likely voters, "00 you support or oppose giving the federal 

government the ability to censor the production and distribution of 

political books and movies that are produced and distributed by 

corporations, including publishers like HarperCollins and movie studios 

like Warner Brothers?" Fifty six percent opposed giving government 

that power, while only 25 percent were in favor. And when we asked, 

"do you support or oppose allowing the federal government to impose 

criminal or civil penalties against individual citizens or corporations for 

spending money to engage in political speech?," only 28 percent 

supported such power for the government, versus 50 percent opposed. 

Finally, we asked voters directly about the core philosophy guiding the 

Supreme Court's decision in Citizens United: "Do you think that the 

government should have the power to limit how much some people 

speak about politics in order to enhance the voices of others?" By a 

nearly four to one margin, respondents said no. 

http://www.campaignfreedom.org/doclib/20100304 CCPpoll0304201 

O.pdf. 

These findings are actually consistent with deep public support for the 

First Amendment and for the Supreme Court's longstanding holding 

that campaign contributions and expenditures are a form of free speech 

protected by the First Amendment. For example, a Gallup poll taken on 

the eve of the Citizens United decision, in October 2009, found that by a 

twenty point margin, adults agreed that "money given to political 

candidates [is] a form of free speech protected by the First Amendment 

to the Constitution." Over sixty percent of both Repu blicans and 

Democrats agreed. http://www.gallup.com/poll/125333/publicagrees-court-campaign-money-free-speech.aspx. 
133 

Of course, public opinion on the issue is complex. For example, the same 

Gallup poll just cited found that majorities favored limits to candidate 

campaigns. Polling data on campaign finance is extremely sensitive to 

wording, and the public is inconsistent in its preferences. In a detailed 

study of polling data over many years, political scientist David Primo of 

the University of Rochester concludes that on any close examination, the 

public's views on the subject are "wishy-washy," and that "Reflected in 

these views may be a tension between freedom of expression and a 

desire to prevent corruption." But either way, notes Primo, the issue is 

relatively unimportant to the public at large: "although campaign 

finance arouses great passion among governing elites, the general 

public does not much care about the issue." David M. Primo, Public 

Opinion and Campaign Finance, 12 Indep. Rev. 207 (2002). 

Further, in looking at public opinion, it is important to note that the 

public knows very little about the campaign finance laws. For example, a 

1997 survey for the Center for Responsive Politics found that only four 

percent of the public knew that corporations were barred by law from 

contributing to campaigns. Further, only one percent of respondents 

could answer correctly five questions about campaign finance law. 

Princeton Survey Research Associates, Money And Politics Survey (Apr. 

1-24,1997). We would imagine that this number on corporate 

contributions might be even lower in light of the barrage of news 

articles talking about corporate spending after Citizens United, many of 

which have mistakenly stated that the ruling allows corporate 

contributions to campaigns. Another example: Last year, in another poll 

taken for CCP, this time by Pulse Opinion Research, we found that in the 

midst of heavy reporting about "super PACs," 76 percent of respondents 

still did not know that "super PACs" must disclose their donors. 

Similarly, the aforementioned and oft-cited Washington Post/ABC News 

poll did not ask respondents what, or even if, they actually knew 

anything about the Citizens United case, before asking their opinion on it 

(in terms that we consider less than neutral). Our poll, taken 

approximately five weeks after the decision and just three weeks after 

the Post/ABC Poll, did ask that question. Specifically, respondents were 

asked, "Are you aware of or have you followed the recent Citizens United 

case, related to corporate and union spending in elections, decided by 

the Supreme Court last month?" Only 22 percent answered yes, while 60 

percent said no and 18 percent were unsure or refused to answer. This 
134 

helps to further explain why, when asked specifically about the issues in 

the case, support for the result vastly outweighed opposition, even as 

other polls show strong opposition to something called "Citizens United" 

and to large campaign expenditures. 

As Columbia University law professor Nathaniel Persily, one of the few 

professors who has attempted to learn what Americans really mean 

when they answer polls on campaign finance, concludes, "The low 

salience that campaign finance reform has in most Americans' political 

calculations and most Americans' lack of understanding about this 

complicated topic necessarily create challenges in tapping opinions on 

these issues." Nathaniel Persily and Kelli Lammie, Perceptions of 

Corruption and Campaign Finance: When Public Opinion Determines 

Constitutional Law, 153 U. Penn. L. Rev. 119, 132 (2004). 

To summarize, the assumption that Americans would welcome a 

constitutional amendment to amend the First Amendment to overturn 

Citizens United is likely misplaced. A poll taken by the left-leaning Public 

Policy Polling in November 2010, for the pro-constitutional Amendment 

Progressive Change Campaign Committee, found that only 46 percent of 

respondents thought that Congress should even consider - let alone 

pass - a constitutional amendment to overturn Citizens United. 

http://www.huffingtonpost.com/201 0 111 123/voters-strongly-backamen n 787526.html. In probing deep into public opinion on campaign 

finance, Professor Primo found that the lopsided polls favoring "reform" 

were, on close inspection, not so clear: "those carrying the mantle of 

reform," he summarized, "often claim a groundswell of public support 

for their positions, which flies in the face of the evidence." Primo, supra. 

Unlmited corporate spending was legal in a majority of states 

before Citizens United, without the problems predicted by critics of 

Citizens United. 

Although it is frequently said that Citizens United overturned 100 years 

of precedent (this statement is itself untrue - Citizens United found 

unconstitutional part of the Taft-Hartley law, at the time a 62 year old 

statute, and overturned two precedents, the six year old McConnell v. 

Federal Election Commission and the 19 year old Austin v. Michigan 
135 

Chamber of Commerce), in fact on the eve of Citizens United, twenty-eight 

states allowed corporate spending in elections, and twenty-six states 

allowed unlimited corporate spending in elections. One member of this 

Committee described the threat Citizens United allegedly posed to his 

state by saying, "Vermont is a small state. It would not take more than a 

tiny fraction of the corporate money being spent in other states to 

outspend all of our local candidates combined." (Statement of the Hon. 

Senator Leahy.) Yet prior to Citizens United, Vermont already allowed 

corporate spending in elections. See National Conference of State 

Legislators, State Laws Affected by Citizens United, at 

http://www.ncsl.orgllegislatures-elections/elections/citizens-unitedand-the-states.aspx. 

There is no sign that these states were uniquely poorly governed. In 

fact, in a rating of state governments by the Pew Charitable Trust and 

Governing Magazine, the six best graded states all allowed unlimited 

corporate spending in state elections prior to Citizens United. Katherine 

Barrett & Richard Green, Governing: Measuring Performance (2008).2 

Research shows that there is no meaningful linkage between campaign 

finance laws and public trust and confidence in government. See Primo, 

supra; Persily & Lammie, supra. 

In fact, the public is highly skeptical that more regulation will improve 

government.ld. See also CCP Poll, asking, "In 2002 Congress passed the 

Bipartisan Campaign Reform Act, also known as 'McCain-Feingold: The 

law placed new restrictions on corporate and union political spending 

and contributions to political parties, with the goal of reducing special 

interest influence. Do you believe that McCain-Feingold has been 

successful in reducing special interest influence?" Only fourteen percent 

said yes; forty four percent said no and the remainder were uncertain or 

declined to answer. All of this is a further reason to believe that the 

public would not be supportive of a constitutional amendment, but also 

that an amendment would not have the desirable effects claimed for it. 

Despite much loose language to the contrary, in the 2010 and now 2012 

elections, the vast majority of campaign money continues to come from 

individuals; the elections have been highly competitive; and voter 

2 Those states were Utah, Virginia, Delaware, Missouri, Georgia, and Washington. 
136 

turnout has been up, not down, 

The Proposed Baucus Amendment would overturn far more than 

Citizens United 

The proposed amendment to the First Amendment would do much 

more than overturn Citizens United. In its present form, it would 

invalidate Buckley v. Valeo, 424 U.S. 1 (1976), a landmark of First 

Amendment jurisprudence. While we will not review all ofthese cases 

here, this committee needs to consider that the Amendment would 

appear to overturn numerous free speech precedents, including but not 

limited to United States v. c.I.O., 335 U.S. 106 (1948); First National Bank 

o/Boston v. Bellotti, 435 U.S. 765 (1978); Citizens Against Rent Control v. 

City o/Berkeley, 454 U.S. 290 (1981); Federal Election Commission v. 

Massachusetts Citizens/or Life, 479 U.S. 238 (1986); Wisconsin Right to 

Life v. Federal Election Commission 551 U.S. 449 (2007); FEC v. AFL-CIO, 

628 F.2d 97 (D.C. Cir.), cert denied, 449 U.S. 982 (1980); Emily's List v. 

Federal Election Commission, 531 F. 3d 1 (D.C. Cir. 2010); Federal 

Election Commission v. Christian Action Network 110 F. 3d 249 (4th Cir. 

1997); FEC v. American Federation o/State, County and Municipal 

Employees, 471 F. Supp. 315 (0.0.C.1979), and FECv. Machinists NonPartisan Political Action Committee, 655 F.2d 380 (D.C. Cir. 1981), cert 

denied, 454 U.S. 897 (1981) .. 

In addition to overturning cases protecting the rights of politically 

active groups from across the political spectrum, its broad language 

would give the government power to regulate the public discussion of 

issues, and limit or ban speech that might be uncomfortable for 

incumbents or particular political actors. At its core, the proposed 

amendment creates an exception to the First Amendment, and does so 

in the area of political speech, where the courts have consistently noted 

that the First Amendment is most vital. Congress should move 

extremely cautiously in this realm, lest core and treasured rights to 

political participation be affected in unanticipated ways. 

CONCLUSION: 
137 

As noted, many of our nation's best governed states, and a majority of 

all states, allowed unlimited corporate contributions in state elections 

even before Citizens United. These states did not suffer from the ill 

consequences advocates of a constitutional amendment have said will 

occur under Citizens United. The nation has yet to conduct a single 

presidential election since the decision in Citizens United; however, in 

the congressional elections of 2010 turnout was up and there were 

more competitive races than at any time since the Federal Election 

Campaign Act was passed prior to the 1976 election. It is far too early to 

begin talking about amending the First Amendment, and a careful 

reading of public opinion shows that such efforts will not likely be 

popular once the public actually sees the likely consequences of such an 

amendment. 
138 

Super PACs and Beyond: 

How Shadowy Front Groups 

Are Influencing Elections and Distorting Our Democracy 

Statement of the Center for Media and Democracy* 

Lisa Graves and Brendan Fischer** 

Before the United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 21,2012 

Thank you for holding this hearing on the accelerating crisis of how extraordinary sums of 

money are being raised and spent by CEOs and corporations to affect who wins political office 

and thus who wields power over people and policy. Our democracy is increasingly for sale. 

These elections will by far be the most expensive elections in the history ofthe United States 

and, indeed, in the history of the world. And, that's based only on the spending that's disclosed. 

Millions and millions of dollars will be raised and spent without any meaningful disclosure to the 

American people of the true identity of wealthy interests bankrolling int1uential ads and other 

activities. We may never know if they are individuals or corporations -- domestic or foreign. 

• The Center for Media and Democracy (CMD) is a non-profit investigative reporting group founded in Madison, 

Wisconsin. We publish PRWatch.org, ALECexposed.org, SourceWatch,org, BanksterUSA,org, and the 

FoodRightsNetwork,org. Our national reporting and analysis focus on exposing corporate influence on democracy 

and media. Recent awards include an Izzy (from the Park Center for Independent Media, named for investigative 

journalist I.F. Stone), a Sidney (from the Sidney Hillman Foundation, for investigative reporting), and an award for 

Excel1ence in Wisconsin Journalism (for a report written by CMD~s executive director: "'Group Caned 'Citizens for 

a Strong America' Operates out of a UPS Mail Drop but Runs Expensive Ads in Supreme Court Race?"). We share 

our work on F.cebook noder "Center for Media and Democracy" and "tweet" via PRWatch and #ALECexposed . 

•• Lisa Graves is the Executive Director of CMD and Editor-in-Chief of CMD pUblications. She previously served 

as the Chief Nominations Counsel for the U.S. Senate Judiciary Committee for Chainnan/Ranking Member Patrick 

Leahy, Deputy Assistant Attorney General in the Office of Legal Policy/Policy Development of the U.S. 

Department of Justice, Deputy Chief orthe Article III Judges Division ofthe Administrative Office of the U.S. 

Courts, Senior Legislative Strategist on national security issues for the American Civil Liberties Union, Deputy 

Director of the Center for National Security Studies, and adjunct professor at the George Washington University 

College of Law. She graduated with honors from Cornell Law School, where she was Managing Editor of the 

Cornell Law Review. She has testified before Congress and her expertise has been cited in numerous television 

news programs, newspapers, magazines, and radio shows. Her short commentary is on Twitter via @thelisagr3yes. 

Brendan Fischer is the Stair Counsel for the Center for Media and Democracy and a Reporter for its publications. 

He graduated with honors from the University of Wisconsin Law School, was a Peace Corp volunteer, and he 

clerked for the Inter-American Foundation and the Texas Civil Rights Project. He tweets via @pnvatch_brendan. 
139 

Background. To understand what has changed, here is a thumbnail sketch of federal law in 2010 

prior to the infamous Supreme Court decision known as Citizens United and the follow-on case 

named SpeechNow. If you had the money to spare, you could give a maximum of $2,500 to each 

candidate, $5,000 per PAC (which theoretically makes independent expenditures not coordinated 

with the candidate), and $30,800 to a political party, for a combined total limit of $117,000 per 

cycle. Donations to, and spending by, these entities would be disclosed for anyone to examine. 

But, since 2010, there are no limits on how much money you can give to a PAC -- although the 

donors and spending will be disclosed. These "Super PACs," which are often run by friends of 

the candidates, are raising enormous sums via $500,000 or $1,000,000 checks. Most Americans 

couldn't afford to "max-out" under the previous campaign contribution limits, which well exceed 

the income of most voters. However, now a super-minority of people are limited only by their 

bank accounts in how much they can give to a PAC to try to alter the course of American history. 

A,s a result, one recent analysis found that 80% of the tens of millions raised by SuperPACs, so 

far, came from only 196 individuals. They "represent" .0000006 of the country's population, and 

they will have an exponentially disproportionate impact on who wins and who loses this election. 

The other 99.9999994% of the popUlation is basically out of the equation, except for the effort to 

manipUlate the vote through attack ads or pro-candidate marketing pitches in feel-good TV ads. 

Although substantial majorities of Americans (Democratic, Republican, Green, or Independent) 

believe the Citizens United decision was wrong, that corporations are not entitled to all the same 

rights as people, and that corporations already have too much power in our democracy, the PAC 

donations so far show that it is primarily people, not corporations, fueling these SuperP ACs. 

The reality is that some CEOs and their families have amassed such a massive "treasury" of 

money from their corporate investments that their personal capacity to put money into elections 

exceeds the treasuries of most companies -- and even some countries. The staggering amounts of 

their political donations may advance the corporate agenda and profits of these individuals (and 

their investments), but most of the SuperPAC donations so far are not directly from corporations. 

(That is one of the reasons why requiring shareholder approval of corporate election spending is 

the right thing to do in a democracy, but it is not sufficient; additionally, such rules will have not 

affect very powerful privately-controlled companies, like Koch Industries and Peabody Coal.) 

But that's only the part of the spending to influence voters (mainly through ads) that is disclosed. 

Special interest groups that do not register as PACs have been emboldened -- by a number of 

judicial rulings, by the political deadlock at the Federal Election Commission, and by IRS rules 

that have not kept pace with the times. Some activities are advocacy and public education well 

within the rules, while others walk, talk, and spend like a PAC to influence elections. 

Some act under the rubric of "issue ads" or partisan movies that purport to fall under the taxexempt missions of non-profit groups. But it is no coincidence the ads or movies happen to be 

aired mainly before elections and are targeted mainly to battleground states and districts. That is 

precisely what the non-profit corporation calculatingly named "Citizens United" does. With the 

way the laws have been distorted, if a group does not "primarily" spend on ads with the magic 

words of "express advocacy" (vote for, vote against, or elect) and spends 51% annually on 

thinly-disguised "issue" ads under loosely-interpreted IRS rules, it can spend millions 

influencing voters or attacking candidates while insulating their donors from the public scrutiny 

that is now focused on SuperPAC donors. That is one of their perverse selling points. 
140 

Sunshine versus the Lure of Dark Money. Today's hearing shines a light on some of the big 

names who are openly spending money on Super PACs to help the candidate and agenda they 

want to win. Some of these billionaires or millionaires have long been public supporters of a 

particular political party or candidate. Notably, at least part of their spending in elections occurs 

in the light of day, although many people are rightly distressed by the influence of this money. 

Though they may be vilified for trying to buy this election, some may be motivated to try to 

prevent the "other side" from buying the election and so attempting to fight fire with fire, as 

comedians Bill Maher and Stephen Colbert have suggested. Some may be quiet philanthropists 

who want to help make the world a better place. Others want to remake it in their own image and 

greedily grab more wealth through controlling the levers of power to privatize (profit-ize) and 

kill programs they ideologically hate, like Social Security or Medicare that they will never need. 

Some "Super Donors" may relish the aura and reality of power that making such big political 

donations brings them among friends, colleagues, campaign workers, and others. The brands 

their wealth is associated with may be sufficiently enormous or popular or long gone that there is 

little risk of significant consumer reaction to their political agenda and much to gain ifthe horse 

they are betting on in the election wins the race. (Or they may believe they have much to lose if 

for example a candidate wins who believes that regulating their industry is in the public interest.) 

Long before there were Super PACs, many were already politically influential or were big-time 

"bundlers" whose connections or glamorous parties could generate many checks for campaigns. 

In addition to the desire to shape public policy, such contributions can have socially competitive 

elements, a keeping-up-with-the-Jones' or an arms-race approach. Yet, there may still be some 

upper limit or outlier amount where such donations would provoke widespread public revulsion. 

"Fortunately" for Super Donors and corporations that want to spend money secretly, nonprofit 

groups like Karl Rove's Crossroads GPS come to the rescue. Although their financial gifts to 

such groups are hidden from the rest of us, they need not fear their political beneficiaries won't 

know who's who. Informally, they can make sure everyone "who counts" will know them. 

Efforts to address this have been thwarted. In sum, under provisions of Bipartisan Campaign 

Reform Act (BCRA, known as McCain-Feingold) that were not struck down in the Citizens 

United case, Congress sought to shed light on sham issue ads that were really "electioneering 

communications" by requiring that "all contributors who contributed" to the group running the 

ads be disclosed - ifthe donor gives $1,000 or more and the group spends more than $10,000. 

But a group called "Wisconsin Right to Life" -- an instrument of James Bopp's agenda -- got the 

U.S. Supreme Court to strike BCRA's bar on corporations and unions spending from their 

general treasuries on electioneering communications if the ads did not contain the magic words 

of express advocacy or their "virtual equivalent," whatever that is. The FEC then decided donors 

only had to be disclosed if they intended the money be used in that way, although Congress 

avoided such a loophole. Rep. Chris Van Hol1en chal1enged the FEC and won in district court. 

Requiring disclosure only of those donors who say they are giving "for the purpose of furthering 

an independent expenditure" has resulted in more money being spent by nonprofit groups and a 

diminishing percent of donors disclosed. The rules operate like a "Don't Ask/Don't Tel1" policy 

to keep the public in the dark. Meanwhile Senator McConnell is trying to use the First 

Amendment like a sword to prevent any disclosure, claiming disclosure chills speech (money). 
141 

Nonprofits Are Now the "Swiss Bank Accounts" of Spending on Ads to Influence Elections. 

Perhaps one of the grand ironies of the current partisan divide is that the same party that is 

demanding in many states that voters prove their identity to vote is fighting tooth and nail to 

prevent the disclosure of the identity of donors to special interest groups running ads to influence 

voters. The proponents of new restrictive laws to make it harder for Americans to vote have 

filled the airwaves with baseless claims of "voter fraud" to impose new identification restrictions 

-- that track the model bill of the American Legislative Exchange Council that has been outed by 

ALECexposed.org -- but they (like ALEC) simultaneously seek to keep the identity of donors to 

special interest groups influencing the elections and thereby public policy hidden from view. 

Unlike for direct contributions to candidates, there are no bars on foreign national or foreign 

corporations contributing to nonprofit groups that are not PACs. There are also no limits on how 

much money can be given, as with Super PACs but without disclosure of donors, big or small. 

N onprofits really are becoming the Swiss bank accounts of spending to influence elections. 

With nonprofit spending on ads, the donors are kept secret from the American people, basically 

forever. And, the spending is not counted in mandatory reports to the FEC that were designed to 

keep the press and public more aware of who is behind such advertising. Instead, nonprofit 

groups file an annual form with the IRS, usually months after an election is over, that 

summarizes their revenue and spending (often described as "educational" activities). The forms 

provide no details about what kind of ads were purchased, where they ran, or what they said. 

The Federal Communications Commission, with three commissioners and a current Democratic 

majority, recently required TV stations -- in the 50 biggest media markets affiliated with the four 

major commercial broadcast networks (NBC, ABC, CBS, and FOX) -- to post information about 

political ads that are purchased. The rule - more than a decade in the making -- leaves out many 

cities (for example, all of Wisconsin except Milwaukee) and some whole states (such as Maine, 

Vermont, and New Hampshire) as well as major broadcast outlets like Univision. But it is a step 

in the right direction and an important interim measure while comprehensive reforms are pushed. 

Meanwhile, Politico recently reported that Karl Rove's Crossroads operations (the PAC called 

"American Crossroads" and the nonprofit called "Crossroads GPS") plan to spend about 

$300,000,000 in the 2012 elections -- in combination with about $400,000,000 from entities 

connected with the Koch Brothers and another couple hundred million, for a grand total of one 

billion dollars. Only small part of Rove' s part of this spending and donors will be disclosed, 

through the American Crossroads PAC, whose funders have been almost exclusively billionaires 

and corporations. Crossroads GPS is not registered as a PAC and is instead a 501 (c)(4) nonprofit. 

Just doing the math, Rove's PAC received nearly $6 million in funds last month and had $31.5 

million in the bank. That leaves a couple hundred million of his $300 million spending pledge 

unaccounted for. Under current law, the public will not know the revenue of his nonprofit, 

Crossroads GPS, until mid-2013, and even then the American people will not know the identities 

of the corporations or individuals that bankrolled it, unless something dramatically changes. 

Rove's public PAC and his dark money operations are enormously powerful and troubling. The 

IRS has reportedly begun scrutinizing such nonprofits and the New York Attorney General has 

opened an investigation about how much of his nonprofit's work is genuinely for the benefit of 

the general public as required by its tax exemption, versus for narrow or partisan gain. With only 

about 100 days before the election, neither of these will be resolved before that money is spent. 
142 

Conclusion. As case studies of nonprofit spending detailed in the appendix show, there are 

many types of groups besides candidates and SuperP ACs whose spending influences elections. 

Some such groups fully comply with weak existing laws; some appear to exploit the lack of 

disclosure required about the corporations or individuals that are bankrolling their operations or 

their spending on ads. Some obscure even basic address information about who or what the 

group really is. In this Wild West environment, and with the impediments to enforcement of the 

current rules, it appears to be extremely easy for a nonprofit group to basically launder money to 

influence elections that a corporation or individual does not want connected to themselves. 

There is no limit on the receipt of money from foreign corporations or individuals that is spent 

on such ads by 501 (c)(3), (4), and (6) organizations. Despite misleading assertions that the Court 

has leveled the playing field between corporations and unions, the most closely regulated entities 

appear to be the (c)(5) unions, which constitute the only one of these major 501(c) categories that 

definitively represents an association of individual Americans and that is not a corporate-funded 

front group or fronting for some other hidden interests. They are also required to report their 

overall political spending to the Department of Labor in a way no other nonprofit category is. 

That's why we know so much more about their spending in elections than other entities, which 

leads to many distortions in reporting on election spending since groups like Americans for 

Prosperity and Crossroads GPS are not counted. The other groups involved in elections, whether 

their listed name is "Citizens" or "Americans" "Coalition" "League" or some other such 

identifier, unlike unions, might have very few donors or members and their financial backers 

could be a mere handful of extremely wealthy individuals or closely held corporations. 

In the current environment, this information is hidden from public view unless the group files as 

a PAC or independent expenditure group. Moreover, the definitions of an "independent 

expenditure" and the amount of political activity that would disqualify a 501(c) from taxexemption need real clarification to drive as much fundraising and spending that influences 

elections into the sunshine and out of the darkness. 

But, to be quite blunt, increased disclosure -- although very important -- is simply not enough. 

As an organization that investigates front groups and the activities of shadowy nonprofits, the 

Center for Media and Democracy can attest that even full disclosure to the government of the 

real identities of the top few funders may not alert the audience to the financial or other interests 

behind such ads. And, as the CAVA example in the index shows, the funder disclosed may just 

be another unknown or secretive entity. 

And, then you have the situation demonstrated by the SuperP ACs themselves. People can learn 

who funds them but depending on the effectiveness of the ad, an audience provided with the 

names of the main funders may not know who they are or have time or capacity to look further. 

In some, the activist judges, abetted by partisan politicians, who have changed the law to turn our 

elections into a "marketplace of ideas" have actually transformed it into just a marketplace. In 

that marketplace, voters are sold goods they cannot return (un-elect) for years at a time by groups 

whose financial interests or ideological agenda is secret and with no accountability for whether 

the ads are truthful or deeply misleading. A candidate's "independent" allies can run attack ads 

they can disavow if the ads go too far and they usually do know who the major group donors are. 
143 

Meanwhile, elected officials can be threatened by corporations or their front groups with the 

potential that they will be subject to potentially overwhelming (and indeed unlimited) spending if 

they vote the wrong way. That has certainly been one of the ways the NRA has wielded its 

financial heft even before Citizens United. The NRA does not always have to spend in each 

election to win its results; through its financial reserves it has Cold War-style deterrence powers. 

And beyond all this, there is simply no rational denying that extraordinarily wealthy corporations 

and individuals now have more potential power over who wins elections than at almost any time 

in a century, since dating back to the era of the "robber barons." The system really is broken. 

Given the short-time before the election and the political reality in Congress, there appears to be 

no time or power to do anything legislatively in response to the coming tsunami of ads. In some 

ways, the question is what happens next, after the first post-Citizens United presidential election. 

Numerous public interest groups - such as Public Citizen, People for the American Way, Move 

to Amend, Free Speech for People, Common Cause, and the Center for Media and Democracy, 

several major labor unions, and other organizations, plus socially responsible businesses and 

several state officials - are on record calling for Citizens United and related decisions to be 

overturned.2 We know the laws must be changed to restore the proper role f Citizens (not 

unelectedjudges) in setting rules for our elections and the role of corporations in our democracy. 

The movement that is being built in cities, counties, and states across the country to reject what 

Citizens United has come to symbolize grows stronger by the day. It will grow stronger still as 

Rove and his allies unleash their funds in this election, come what may on election day. The 

people know something's got to give. They know the laws must change because too many 

politicians are already too captured by the status quo of how they themselves must raise money 

to fund their elections and retention in office. We know that many laws must be changed to 

restore the proper place of We the People in our democracy: the Constitution and election, 

communications, corporation, and tax laws. It may seem daunting, but what is the alternative? 

Z Here is the full list of endorsers of the statement of principles of the united4thepeople.org constellation of groups: 350.org. The 

Berkshire Environmental Action Team, California Church Impact, Campaign for America's Future, Campus Progress, Center for 

Biological Diversity, Center for Corporate Policy, Center for Environmental Health, Center for Health, Environment Justice, 

Center for Media and Democracy, Center for Science in the Public Interest, CivicSponsor, Clean Water Action, Clean Water 

Network, Coalition ofImmokalee Workers, Code Pink, Coffee Party USA, Common Cause. Communications Workers of 

America, Consumer Action. Consumer Watchdog, CREDO Action, Corporate Accountability International, Democrats.com, 

Democracy Unlimited, Demos, Drinking Liberally. Des Moines Chapter, Eanhworks, Earth Day Network1 EnviroJustice, 

Ethical Markets, Food and Water Watch, Food Empowerment Project, Franciscan Action, Free Speech for People, Friends of the 

Earth, Generation Waking Up, Get the Dough Out, Global Alliance for Incinerator Alternatives (GAIA), Global Community 

Monitor, Grassroots Recycling Network, Greenpeace, Hip Hop Caucus, Indiana Alliance for Democracy. Institute for Agriculture 

and Trade Policy. Institute for Policy Studies Global Economy Project, International Forum on Globalization, International Labor 

Rights Forum, Liberty Tree Foundation for the Democratic Revolution, Main Street Alliance. Maryknoll Office for Global 

Concerns, Money Out of Politics, MoveOn,org. Move to Amend, National Alliance of Latin American and Caribbean 

Communities, National Congress of Black Women, National Council of Jewish Women, National Council of Women's 

Organizations, National Education Association, National Women's Health Network, The New Bottom Line. New Progressive 

Alliance, Oil Change International, OMB Watch. The Other 98%, Panchamama Alliance, Pax Christi USA, People for the 

American Way, Pesticide Action Network North America, Physicians For A National Health Program, Program on Corporations 

Law & Democracy, Progressive Democrats of America, Public Campaign, Public Citizen, Rainbow-PUSH Coalition, 

Rainforest Action Network, Rebuild the Dream, Renew Democracy, Responsible Wealth Project, RootsAction, Sacramento for 

Democracy, Sea Turtle Restoration Project, Service Employees International Union, Sierra Club, SisterSong Women of Color 

Reproductive Justice Collective, Story of Stuff, Sum of Us, The American Institute for Progressive Democracy, The New Bottom 

Line, The Other 98%, The Pachamama Alliance, UAW, Unitarian Universalist Association of Congregations, United for a Fair 

Economy, United Republic, U.S. PIRG, U.S, Youth for Sustainable Development, Veterans for Peace, VPIRG, We the People 

Campaign, Where's Our Money, Wisconsin Democracy Campaign, Wisconsin Wave, A project of the Libeny Tree Foundation, 

W01f-PAC. Working Families Party, Working Families Win. and the World Constitution and Parliament Association. 
144 

As this conversation moves forward in the months ahead, we must be clear about what proposed 

solutions might fix which identified problems, such as those identified by in our case studies and 

other investigative reporting. We must be mindful of both intended and unintended 

consequences of constitutional amendments to solve the vexing problems that are undermining 

the integrity of our elections and even what it means to be represented in this democracy. 

To help work through these issues, Greg Colvin, who is a partner at the law firm of Adler & 

Colvin, who has studied and counseled on nonprofit political tax law issues for many years, has 

devised twelve questions he recommends that drafters and reformers answer, in addition to 

ensuring that the language of any amendment is as brief and clear as it can be: 

Twelve Questions for Drafting a Constitutional Amendment on Citizens United & Beyond: 

1. What is the main purpose? Is it to drive the big money, from all sources, out of elections? 

Or is it to abolish corporate personhood? 

2. If none of the rights extended to corporations are still protected by the Constitution, what 

would the consequences be -- outside of the realm of elections? 

3. What would happen the day after the amendment was adopted? Would corporate and 

business spending in elections stop or would legislation and litigation be required? 

4. What kinds of legal entities does the amendment apply to? 

a. business corporations 

b. nonprofit corporations 

c. labor unions 

d. other forms of organization (associations, trusts, LLCs, partnerships) 

e. all of the above 

5. How should the campaign spending of individuals (including candidates) be regulated? 

a. no limits on personal spending 

b. authorize Congress and the states to set limits 

c. set dollar limits in the Constitution 

d. prohibit completely 

6. Should all campaign contributions and expenditures be publicly disclosed? Or should 

Congress and the states allow small donations to be anonymous? In view of all that secret 

money that flows through nonprofit groups for political "issue ads," how do we force 

them to disclose their sources? 

7. Should public financing of campaigns be required, permitted, or prohibited? 

8. Does the amendment cover both candidate elections and public votes on ballot measures? 

9. Are all levels ofgovemment covered: federal, state, city, town, and county? 

10. Is any special wording needed to protect freedom of the press? 

11. Should other subj ects be covered in the amendment, such as making election day a 

holiday, shortening the campaign season, simplifying voter registration, requiring paper 

ballots, addressing voter disenfranchisement? 

12. Should there be two or more amendments on different issues, or one unified proposal? 

We believe these important questions need to answered as part of any amendment strategy. In 

the view of the Center for Media and Democracy, the Supreme Court decision in Citizens United 

must be overturned because it allows the voices of real people to be drowned out by 

ventriloquists who throw their "voices" through money. The Court claims our democratic charter 

commands that we allow untrammelled amplification of those who have the money to fund the 

purchase of commercial TV ads over the rest of us who don't. We the People know it does not. 
145 

Beyond Super PACs 

Appendix to the Testimony of the Center for Media and Democracy 

July 22, 2012 

Case Studies ofNonprojit Spending that Influellces Electiolls. The Center for Media and Democracy 

has been working to expose corporate front groups for almost twenty years. Although Congress has 

previously passed measures to address some of the most egregious ways money and virtually anonymous 

attack ads are undermining the integrity of American elections (as with the 527 rules adopted in the 

middle of the 200 campaign and BCRA in 2002), some Senators have thwarted much needed disclosure. 

[n this climate, it should come as no surprise that groups that do not report their donors or their ad 

spending have flourished. Some of the groups, like the U.S. Chamber of Commerce and its Institute for 

Legal Reform, have been around for years and have been increasingly involved in activities that ordinary 

citizens perceive as political or electoral. Other groups have popped more recently, with little information 

about who they really represent, let alone who funds them. 

Many groups running ads to inl1uenee elections are operating outside of the PAC rules as 501(e)(3), (4), 

(5), and (6) organizations. Concerns about them need to be part ofthe discussion of the problem and the 

search for solutions. The case studies below focus first on the most recent major post-Citizens United 

election (in Wisconsin) and on the dark money spent in the Iowa presidential primary. 

Desplt~ what AFP matertdh 

it claim:; thn. )Sl1't about 

David Koch's Americans for Prosperity (AFP) reportedly spent $10 million on 

Wisconsin's election that was held last month in which a million citizens 

petitioned to recall controversial Governor Scott Walker but fell short on election 

day. It spent more than Walker's opponent, Tom Barrett, raised or spent, but it 

did not register with the state elections board, did not disclose who besides Koch 

was funding its operations, and did not report how it spent the $10 million it 

bragged about spending. 

AFP's activities provide a snapshot of the group's likely operations in the 

presidential race and other elections as part of the $400 million David Koch and 

his brother Charles have reportedly pledged as part of the billion dollar club Rove 

is helping in order win the White House and Congress. 

In the weeks before the election, the director of AFP's Wisconsin arm, Luke 

Hilgemann, told reporters AFP's ads, bus tours, rallies, and mobile phone banks 

had nothing to do with the elections: "We're not dealing with any candidates, 

political parties or ongoing races." One the thousands of door hangers distributed 

by AFP is photographed above and plainly contradicts AFP's claims. Hilgemann also said "We're just 

educating folks on the importance of the reforms" of Walker -- which AFP previously backed with a 

"Stand with Walker" ad and sign blitz in 2011 when protests ofthe governor's reforms rocked the state. 

The APP Foundation is a "charity" registered under Section 501(e)(3) of the Internal Revenue Code. It 

spent at least $3 million on television ads that looked like clear appeals to re-elect Governor Walker. The 
146 

ads touted the alleged benefits of Walker's controversial changes to state law and reinforced similar 

themes of ads by the candidate. The AFP Foundation also organized a series of meetings across the state 

to "educate" voters on the importance of Walker's reforms. The ads and meetings were produced in 

collaboration with the Wisconsin-based MacIver Institute, whieh is also organized under Section 

501(c)(3) of the Code. 

As 50l(c)(3)s, both the AFP Foundation and MacIver Institute are prohibited fTOm intervening in political 

campaigns. This absolute prohibition on 50l(c)(3) electoral activity has been justified because corporate 

or individual donations to groups like these can bc written-off as tax-deductible charitable deductions. 

The policy and legal judgment is that Amcrican taxpayers should not forego tax revenue so a corporation 

or individual can influence elections in other words, taxpayers should not be forced to subsidize a 

cOlporation's or person's political activity. 

AFP organized rallies, canvassing, phone banks, and bus tours to promote Walker's reelection. Starting a 

week beforc the election, the group kicked-off the "A Better Wisconsin Bus Tour" and visited ten 

Wisconsin cities before concluding the tour three days before the election in Racine, where Walker's race 

and that of a state senator were particularly close. AFP's Illinois arm bused-in out-of-state residents to 

meet up with the rally and canvass Racine neighborhoods to "make our voices heard in support of the 

Wisconsin refomls." Attendees were charged only $5 for a round-trip bus ticket with lunch and dinner 

provided. (By comparison, a round-trip commercial bus ticket from Racine to Chicago would cost $47, 

lunch, dinner, and politics not included.) 

AFP also hoasted that it flew-in 70 paid staff members for the effort, and recruited students and others to 

call voters on AFP-provided cell phones (dubbed "Freedom Phones") and to canvass neighborhoods. 

Other AFP arms across the country organized "phone banks for patriots" to make phone calls to tell 

Wisconsin residents to "support the Wisconsin reforms" before the clcetion. All these supposedly nonelectoral activities stopped once Walker won the race. 

AFP does have a (c)(4) wing which can engage in a limited amount of "independent expenditures," in the 

aftermath ohhe Citizens United decision, but based on Hilgemann's repeated denials that AFP was doing 

so, it is not clear if AFP aetnally classified the expenses fbr the canvassers, bus tours, and phone banks 

under the 501(c)(3), which gives a tax write-offto donors, or its 501(e)(4). What is clear is that it 

disclosed no independent or electioneering expenditures to the state, even though David Koch's righthand man who manages AFP's daily activities, Tim Phillips, told CNN the group spent a total of$10 

million supporting Walker in Wisconsin. A FP refused to disclose its donors or report expenditures. 

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

for Media and Democracy also identitled another group spending to 

influence an election in the state that was linked to AFP staff. 

That group, called "Citizens for a Strong America" (CSA), spent 

over $200,000 on ads in Wisconsin's Supreme Court race, but as the 

Center for Media and Democracy documented, its address of"834 Park Avenue #306" in Beaver Dam, 

Wisconsin, was nothing more than a drop box at a UPS Store. CSA ran attack ads about Jomme 

Kloppenburg in her race against David Prosscr, ajudge and former Republican state legislator. 

When the ads were run, CSA listed no information about its leaders, employees, or funders on its website, 

citizensforastrongamerica.net. Its contact infonnation was a free Googlemail account: 

eitizensforastrollgamerica@gmaiLcom. Its website name was purchased by John W. Connors of 

Milwaukee, whose job at Koch's Americans for Prosperity was described as grassroots campaigns and 

marketing (his work email address routed to @afphq.org). CSA's website's domain registratiolliisted 

Connors's own gmail account as the contact and the business address for the domain was 1126 S 70th 

Streel, Suite S420, in Milwaukee, which is in the same building as AFP's Wisconsin arm, but a different 
147 

room number. There is no evidence that AFP orchestrated the group's operations. Connors, whose fulltime job is with AFP, is the part-time "president" of CSA, operating in the same building. 

But the plot thickens. CSA's address was the same as for another group named "Campaign Now." That 

group's web address was also registered to Connors. And Campaign Now used the same telephone 

number that AFP's Wisconsin arm used to register people for buses to support Walker. And yet another 

group, Watchdog.org, which is associated with the "Franklin Center for Government and Public Integrity" 

was also registered by Connors, who previously worked for Walker and also was listed as AFP's 

"Students for Prosperity Director." The Franklin Center is funding state-based "news" outlets that echo 

the Koch agenda and ideology. Its funders are not disclosed. 

Connors has helped coordinate AFP's tea party summits in the state and also helped launch AFP's new 

"home headquarters kit," an update on AFP's "pyramid-type campaign" that was used by operative Mark 

Block and then-candidate George W. Bush in Wisconsin to identify voters and get them out to vote for his 

run for president in 2000. 

At the time the ads were run in the Kloppenburg-Prosser race, it was very difficult for the press and 

citizens to find out who was behind hundreds of thousands reportedly being spent in ads during the 

election, although they were traced back to UPS mailbox and a staffer for AFP. 

Several months after Prosser won the election, CSA filed its annual 990 as a 501(c)(4) organization for 

the year before these ads were purchased. Although CSA's expensive attack ads about Kloppenburg 

focused on a farming case it criticized her for and also falsely claimed she had attacked her opponent for 

not prosecuting a child molesting priest, CSA told the IRS its charitable mission was "to promote and 

conduct research on public policies that reduce tax burdens on families, increase public safety, and protect 

the rights of parents to make decisions about their children's medical, psychological, and educational 

well-being." In 2010, CSA did give over $179,000 of its $378,000 in revenue to the group "Wisconsin 

Right to Life" (which has been litigating against federal and state election disclosure rules) and it gave 

over $50,000 to a group called "Wisconsin Family Action." 

To date, there is no public information about who funded CSA in 2011 and who underwrote its ads in the 

state Supreme Court election. Due to the gap in time between CSA's activities last year and IRS filing 

deadlines, even the general revenue and expenses of the group for that year are not known. Since CSA 

ran ads in the Supreme Court race, its website has had no changes for over a year. 

In the current regulatory environment, there is almost nothing to prevent a nonprofit group like this from 

being created and used to hide the identity of donors funding ads to influence elections. What little 

disclosure there is comes long after the election results are in, and unless watchdog groups are keeping a 

close eye on such groups, the IRS may never discover the dissonance between the stated mission for 

which the group received its nonprofit status and its actual activities. 

Moreover, under the disarray caused by Citizens United in creating a permissive environment for all sorts 

of shadowy nonprofit groups to run such attack ads, CSA is merely one example of groups operating out 

of mail drop boxes. CSA does not disclose its donors or ad expenditures. 

Coalition for American Values 

The UPS Store more info 

0050 West Slate SIn!et 

WsuwalDaa, Wl5J21 J 

(414) 251H9570 

tt'leupssto"l3!ccal.com 

Wrlea rev1£lW 

Another group that ran ads before the Wisconsin recall earlier this year 

was the "Coalition for American Values Action" (CAVA). Last year, 

CAVA registered as a corporation in Wisconsin under new rules 

requiring the registration of corporations making independent 

expenditures here. CA VA's state registration lists its address as 6650 

W. State Street, Suite 271, in Wauwatosa on the edge of Milwaukee. It 

is the address of a UPS Store with mailboxes. CAVA disclosed one other business address to the state. 
148 

The name of CAVA's treasurer -- whose address is also listed at the UPS Store -- is Brent Downs. He is 

also listed as the treasurer a federal PAC linked to CAVA. (He was previously the contact person for the 

Marquette Chapter of Students for Prosperity, which is the student arm of Koch's Americans for 

Prosperity, and its address then was listed as the home of AFP's John W. Connors, mentioned above.) 

In the PAC's Federal Election Commission filings from June for the prior month, it reported having spent 

only $78.63, raising only $4,265, and having $16,588 on hand at the end of May. 

However, in Wisconsin, CAVA reported spending $400,080 on ads supporting Scott Walker's reelection 

during that same period. CAVA reported that all the funds for these ads came from itself in two 

donations, and made expenditures in the same amounts and on the same days: CAVA reported receiving 

$385,300 on May 24 and spending $385,300 on May 24 (on "Media-Videos"), and receiving and 

spending $14,780 on May 30 (on "Media-TV"). 

The real source of these funds, though, remains secret. The individuals or organizations that gave money 

to CAVA was not disclosed to any state or federal authority, and the people of Wisconsin are left in the 

dark about who is really behind these ads. 

CAVA told the FEC its address is 119 S Emerson St #231 in Mt Prospect, IL. This is also the address 

given for CAVA's attorney, James Skyles, in its Wisconsin registration. Skyles is the Director of 

Operations for the Franklin Center for Government and Public Integrity (which John W. Connors helped 

in the launch of its Watchdog.org site.) During the recall election, the Franklin Center's Wisconsin 

operation, the "Wisconsin Reporter," advanced a pro-Walker, anti-union message in its reports. 

Further investigation revealed that although CAVA told Wisconsin's elections board that it was also 

located in Illinois, it is apparently incorporated in Virginia. It incorporated on November 21, 2011,just as 

circulators in Wisconsin began collecting signatures to trigger the recall of Governor Walker. In Virginia, 

its registered agent is Matthew Muggerridge, who is also a staff attorney at the anti-union National Right 

to Work Foundation. 

CAVA's ads flooded the airwaves in the fmal weeks before the election and attracted significant attention 

by making a unique appeal -- instead of promoting Walker or attacking his opponent, the ads attacked the 

premise of the recall itself. The ads depict individuals saying they didn't vote for Walker in 2010, yet will 

vote for him in 2012 because they oppose the recall. 

Spending $400,000 in the Wisconsin media market, over a period of just two weeks, amounted to a lot of 

ads. These ads, coupled with similar messaging from Governor Walker, proved effective. Exit polls on 

June 5 showed that sixty percent of voters thought recalls were only appropriate for cases of official 

misconduct and ten percent thought recall elections should never be held. In contrast, a St. Norbert 

CollegetWisconsin Public Radio poll of voters conducted in November 2011,just as the recall was 

launched and CAV was created, asked if voters supported using the recall to remove Walker from office. 

Fifty-eight percent of those surveyed said "yes" and 38 percent rejected the use of the recall to remove the 

governor. The secretly funded ads appear to have made a difference in the outcome ofthe election. 

Wisconsin voters never knew who was really behind the ads, or that the ads, which talked about recall not 

being "the Wisconsin way," was funded by secretive out-of-state group. Without knowing who is really 

behind these ads, voters cannot know whether future legislative or governmental activity favors the 

funders. Whoever donated over $400,000 to CAVA to influence the recall election may have viewed their 

contributions as an investment, and accordingly, could communicate their identity to the politician who 

benefitted from that investment. If the public does not know who is funding these ads, it cannot hold 

elected officials accountable if they provide their benefactors a return on their investment that is 

untraceable. CAVA's income sources are secret. 

The Iowa Presidential Primary Spending bv Nonprofit Groups 
149 

In the Iowa presidential primary, an array of nonprofit groups organized under Section SOl (c) of the tax 

code spent millions influencing the outcome of that state's primary and influencing the issues discussed in 

the primary. None of these groups disclosed their funding or spending. 

Although none of the groups active in the Iowa primaries were very transparent about their funding and 

spending, some information about their activities was available through a review of television ad buys in 

the Des Moines and Cedar Rapids media markets. Compiling that data involved a site named 

"IowaPolitics" actually going to the four network TV stations in those markets and physically picking up 

the records, which helped provide some data for this snapshot ofSOI(c) activity in this crucial primary. 

Crossroads GPS 

Karl Rove's Crossroads GPS (CGPS) is a SOI(c)(4) that spent $310,000 on ads in Des Moines and Cedar 

Rapids between June 28 and December 27,20 II. CGPS ran three so-called "issue" ads in summer of 

20 II attacking President Obama, and two ads starting in October 20 II attacking both Obama and 

conservative Democrat Rep. Leonard Boswell for supposedly being too supportive of Obama. CGPS ran 

another ad in December attacking Obama about Solyndra. 

Although this is a drop in the bucket compared with CGPS' anticipated spending in the general election, 

it spent more than any other non-candidate group. And, as noted earlier, its donors are not disclosed. So, 

for example, it is not known whether the ads attacking the President on solar energy are funded in part by 

corporations or CEOs with a financial interest in competition with solar energy, such as oil and gas 

companies that have long opposed federal investments in solar energy while zealously defending their 

own tax subsidies. CGPS does not disclose its donors and did not disclose these expenditures. 

Citizens United 

"Citizens United" is a SOl (c)(4) that spent hundreds of thousands in Iowa in the run-up to the primary. Its 

president David Bossie is reportedly a friend of then-candidate Newt Gingrich. 

According to ad buy records, Citizens United spent $29,600 in Des Moines and Cedar Rapids on ads that 

ran between July 2S and July 30. The group reportedly had spent a total of$75,000 on anti-Obama TV 

ads, as of December 2. The group also ran :30 ads in late December featuring Newt Gingrich and 

promoting a 2009 Ronald Reagan documentary Gingrich had produced. The ad does not mention the 

election or Gingrich's candidacy. In the ad, Gingrich says, "[Reagan's] rendezvous with destiny is a 

reminder that we all have a similar rendezvous, and that together, we can create a better future for 

America." According to Politico, the ad reportedly cost $2S0,000. 

It also promoted its latest movie, "The Gift of Life," which reportedly spurred then-candidate Rick Perry 

to announce that he was changing his position to oppose the option of abortion if a woman becomes 

pregnant from rape or incest. (Citizens United's prior election·time movies focused on candidates. like 

Hilary Clinton.) Citizens United's donors and its total expenditures in Iowa are secret. 

Strong America Now 

"Strong America Now" (SAN) is a 501 (c)(4) organization that claims not to support any particular 

candidate and is focused on advocating that government adopt a particular approach to cutting waste. 

However, in November 2011 the group's founder created a Super PAC with the same name to support 

Gingrich's candidacy. 

During the Ames straw poll in August, SAN bussed people to the straw polls and held parties, spending 

$60,000 to buy tent space and the names of previous caucus-goers and straw poll voters. The group dien 

sent 75,000 candidate "report cards" in December 2011 rating candidates and mailed caucus videos to 

likely caucus-goers. SAN also spent around $73,400 in the Des Moines and Cedar Rapids markets for 190 

ads it ran between February and June 2011. These ads did not name President Obama or any of the 

Republican candidates were called "Our Debt & Our Future and promoted its cutting government waste. 

The SAN (c)(4) does not disclose its donors and did not report its spending to influence the primary. 
150 

American Petroleum Institute 

The American Petroleum Institute (API) is a 50l(c)(6) trade association funded by oil and gas interests. 

Like nonprofit groups organized under Section 501 (c)(3) and (c)(4) of the tax code, it is not required to 

disclose its funding or spending. Unlike a (c)(3), however, donations to it are not tax-deductible. 

API did not endorse any candidate in the Iowa primary or any other primary state, but it did invest 

significant amounts of money to influence opinion about oil and gas interests, which is a precursor to 

what is likely to be heavy advertising in the general election for the White House. For example, API 

commissioned a poll in November purporting to show Iowa voters want domestic energy development. It 

commissioned another poll in March claiming Iowa voters oppose new oil and natural gas taxes. 

API also formed the "Iowa Energy Forum," a corporate front group, some time before June, which 

according to Think Progress and the Des Moines Register, planted people in Iowa forums and candidate 

events to ask questions to candidates about domestic energy production. The IEF sponsored lectures at 

Iowa State University with API chief economist John Felty, who claimed that gas companies don't get oil 

subsidies (which was rebutted by the Iowa Renewable Fuels Association). Their lecture in May was 

attended by Gov. Terry Branstad. API/IEF also sponsored a lecture in November with API's John Felty 

called "Energizing America: Facts for Addressing Energy Policy." 

Another API front group "Energy Citizens," which appears to be a 501(c)(4) nonprofit, also sent staffers 

to the Ames straw poll and provided an air-conditioned tent with music, food and entertainment, and 

provided free bus rides and free tickets to the straw poll. 

According to ad data, API spent around $93,000 on ads in Des Moine and Cedar Rapids between March 

and October 2011. It is not known whether they ran more ads after October. The group also gave 

$100,000 directly to the Iowa Republican Party. Although it is possible to discover which corporations 

are affiliated with API, it does not affirmatively disclose its member corporations or the amounts 

they generally provide. 

Coalition for American Jobs 

Like API, the Coalition for American Jobs (CAJ) is a 50 I (c)(6) trade association, but it is not specific 

about what industries it represents. According to the group's website, it "represent(s) American 

businesses, industries and others concerned about the impact of potential EPA action onjob creation." 

CAJ is reportedly supported by chemical and oil lobbies. 

Like API, CAJ appeared focused on shifting the terms of the debate rather than supporting any particular 

primary candidate. For example, CAJ spent $56,650 on a :30 tv ad that ran near the Ames straw poll in 

mid-August on several stations in Des Moines, Cedar Rapids, and Waterloo. "In a rush to regulate, the 

EPA wants to impose unnecessary ozone rules - government regulations that will cost business up to $90 

billion a year and threaten manUfacturing and construction jobs in nearly every county in the country. Call 

today, and tell President Obama America needs jobs, not more government regulation," over an on-screen 

phone number. Other reports say CAJ spent around $75,000 on ads in Iowa. CAJ does not disclose its 

donors and did not disclosure its ad expenditures. 

The U.S. Chamber of Commerce 

The country's most politically active 501(c)(6) trade association, the U.S. Chamber of Commerce, spent 

$59,700 on 121 TV ads that ran between late September and late November. One ad touts Rep. Tom 

Latham's stance against President Obama's policies of "bigger government and higher taxes." Viewers are 

told to call Tom Latham and "tell him to keep fighting for Iowa jobs." It is anticipated that the 

Chamber will spend millions more in this year's general election and it does report some of its 

election spending to the FEe. 

Coalition to Protect Patient's Rights 
151 

The Coalition to Protect Patient's Rights (CPPR) is a 50 I (c)(4) nonprofit fonned in 2009 to oppose 

federal health care refonn. It is managed by the infamous astroturf lobbying finn DCI Group. Exactly 

which healthcare, insurance, or phannaceutical interests fund it are unknown. 

The group spent $10,650 on ads that ran between August 16 and August 22 in Cedar Rapids and 

Waterloo. The ads say: "After cutting $500 billion from Medicare, the president's health care law created 

a new board of IS unelected bureaucrats. Unaccountable --like a Medicare IRS, with the power to cut 

payments to doctors, and deny seniors care to pay for more wasteful Washington spending. Tell 

Washington: bureaucrats shouldn't have the power to deny seniors care" with a phone number on-screen. 

This was part of a reported seven-figure national ad buy. CPPR does not disclose its donors or report 

expenditures on ads like these. 

Know Your CarelProtect Your Care 

Know Your Care (KYC) is a 50J(c)(3) and Protect Your Care (PYC) is a 50J(c)(4), which are is a prohealth refonn group that was also active in Iowa. KYC ran :30 ads called "Bagel" in mid-August, around 

the time of the Ames straw poll and GOP debates, touting the benefits of President Obama's health care 

plan. Politico reported that the ad cost five-figures to run in the Des Moines market, but the IowaPolitics 

analysis of ad buys found only $16,636. The ad was reportedly accompanied by "saturation" level online 

ads in Des Moines and Ames. PYC reportedly had staffers on-the-ground in Iowa in advance of the 

Ames straw poll, and distributed a memo highlighting each ofthe GOP candidates' position on health care 

(and particularly the individual mandate). KYC/PYC do not disclose their donors or report ad 

expenditures. 

Partnership to Protect Medicare 

The 501(c)(4) Partnership to Protect Medicare (PPM) claims to fight purported cuts to Medicare, and ran 

a :30 tv ad asserting that "some in Congress want to corne between seniors and their doctor, with more 

cuts to Medicare Part B" and asking viewers to call Rep. Torn Latham (R) and "thank him for protecting 

seniors at their greatest time of need." PPM spent $42,440 on 67 ads in Iowa between Nov 5 and 

November 18. The Iowa ads were part of a multi-million dollar ad buy thanking several Members of 

Congress for opposing cuts to Medicare Part B. PPC does not disclose its donors or report its ad 

expenditures. 
152 

... ~ -c c OMMON AUSE 

Common Cause Testimony to the 

Subcommittee on The Constitution, Civil Rights and Human Rights of the 

United States Senate Committee on the judiciary Hearing 

Taking Back Our Democracy: Responding to Citizens United and the Rise of Super PA Cs 

July 24,2012 

Submitted by Bob Edgar 

President and Chief Executive Officer 

Common Cause 

Common Cause is a national nonpartisan advocacy organization founded in 1970 by John 

Gardner as a vehicle for ordinary citizens to make their voices heard in the political process. On 

behalf of our 400,000 members and supporters, we appreciate the opportunity to submit this 

testimony to this Subcommittee about the proliferation of Super P ACs and the call for an 

Amendment to the Constitution to restore the voices of average, ordinary Americans in our 

elections once and for all. 

Mr. Chairman, Super PACs have transformed our elections into the sport of kings. 

Billionaires and corporations are pooling unlimited sums of money into joint accounts, pledging 

astronomical sums in support of or opposition to candidates, and recklessly drowning out the 

voices of the American people. These corporations and mega donors are motivated by an 

expectation of influence and access, often at the expense of the public interest. We cannot afford 

to auction off our vibrant democracy to the highest bidder. 

The Problem of Super PACs 

Independent expenditure-only political committees, so-called Super PACs, are the 

byproduct of two federal court decisions. In the first case, Citizens United v. FEC, the United 

States Supreme Court ruled by fiat that corporations enjoy a constitutional right to spend an 

unlimited amount of their general treasury funds influencing our elections. I Overturning a 

century of law with the stroke of a pen, the five-Justice majority reasoned - without citing a 

shred of evidence - that "independent expenditures, including those made by corporations, do 

not give rise to corruption or the appearance of corruption.,,2 Months later, a federal appeals 

court explicitly relied on Citizens United to hold that "contributions to groups that make only 

independent expenditures also cannot corrupt or create the appearance of corruption. The 

[Supreme] Court has effectively held that there is no corrupting 'quid' for which a candidate 

might exchange for a corrupt 'quO.",3 

1 130 s. Ct. 876 (2010). 

2Id. at 909. 

J SpeechNow.org v. FEe, 599 F.3d 686, 694-95 (D.C. Cir. 2010). 
153 

These decisions tum common sense on its head. To rule that a corporation's spending on 

elections (the "quid") is not intended for an exchange of favorable policy, access and influence 

(the "quo") belies reality. 

The breathtaking indifference of the Supreme Court to well-settled precedent (and facts) 

shook democracy to its core, and unleashed a torrent of secret money over our subsequent federal 

elections. Super PACs quickly opened for business, soliciting tens of millions of dollars, 

including money funneled through sham corporate front groups that exist for no other reason 

than to hide the identity of political spenders from the electorate. 

TbeMoney 

2010 marked the first election year of Super PAC dominance in our elections. That year, 

84 Super PACs collected over $84.9 million, spending $65.3 million of that amount on political 

expenditures" Outside spenders, excluding party committees, dumped over $299 million in 

independent expenditures, electioneering communications and other communication costs.5 

Other non-disclosing groups, such as tax-exempt nonprofit organizations, spent over $132 

million influencing our elections.6 Disturbingly, 44% of outside spending in 2010 came from 

sources that failed to disclose their donors, compared to 25.2% in 2008, and just 1.3% in 2006.7 

2012 will be the most moneyed election in our history. As of this writing, the number of 

Super PACs has risen exponentially to 678, and they have already spent $144 million of the $281 

million that they have raised thus far. g By comparison, at this point in 2008 with over three 

months to go before Election Day, outside groups had spent a little over $36 million on 

independent political expenditures, even then a significant sum but paling in comparison to 

what's been spent already this year.9 Some Republican-aligned groups led by Karl Rove, the 

Koch brothers and the United States Chamber of Commerce are planning to spend approximately 

$1 billion on federal elections this cycle. to 

4 Super PACs, CENTER FOR RESPONSIVE POLITICS. http://www,opensecrets,orglpacs/superpacs,php?cycle~2010f 

(last updated July 8, 2012), 

5 Total Outside Spending by Election Cycle, CENTER FOR RESPONSIVE POLITICS, 

http://www.opensecrets.org/outsidespendinglcycle_tots. php?cycle~20 12&view=A&chart=N#viewpt (last visited 

July 17, 2012). 

'Spending by Viewpoint/or Non-Disclosing Groups, CENTER FOR RESPONSIVE POLITICS 

http://www .opensecrets.orgfoutsidespendingfsumm.php?cycle=201 O&chrF V &disp=O&type=U (last visited July 

16,2012). 

7 Outside Spending by Disclosure. Excluding Party Commillees, CENTER FOR RESPONSIVE POLITICS, 

http://www.opensecrets.org/outsidespendingldisc!osure.php (last visited July 17,2012). 

• Super PACs, CENTER FOR RESPONSIVE POLITICS http://www.opensecrets.orglpacs/superpacs.php?cycle=2012 (last 

visited July 17, 20l2). 

9 Total Outside Spending by Election Cycle. Excluding Party Committees, CENTER FOR RESPONSIVE POUTlCS, 

http://www.opensecrets.org/outsidespendinglcycle_!ots.php?cyde=2012&view=Y &charFN#viewpt (last visited 

July 11,2012), 

!O Mike Allen & Jim Vandehi, GOP Groups Plan Record $1 Billion Blitz, Poum;o, May 30, 2012, 

http://www.politico.com/newslstoriesf0512f76849.htm!. 

2 
154 

While a significant percentage of funds donated to Super PACs are directly paid out of 

for-profit corporate coffers, an even larger percentage is coming from wealthy individual donors 

- with 93% of Super PAC's itemized contributions from individuals in contributions starting at 

$10,000.1l To be c1ear- the very few are determining which candidates are viable and which 

candidates will fail. 

Although corporations shy away from negative publicity, that does not stop them from 

spending significant sums of money on our political campaigns. In 2010, the year Citizens 

United was decided, Target Corp. donated $150,000 to a political group, Minnesota Forward, 

that advocated for the election of a candidate opposed to the rights of gays and lesbians to 

marry. 12 Demonstrations quickly followed, showing that Target's shareholders and customers 

could, as Citizens United explained, "hold corporations and elected officials accountable for their 

positions.,,13 Corporations have plenty of other options to participate in elections, however. The 

New York Times reports, for example, that American Electric Power, Prudential Financial, and 

Dow Chemical have each given at least $1 million each to (c)(4) organizations and other 

nonprofit groups spending money on political campaigns.14 Insurance giant Aetna gave a 

Republican-leaning nonprofit known for attacking supporters of the Affordable Care Act over $3 

million last year.

15 Whether spent secretly or publicly, however, the damage to representative 

democracy is done. Corporate spending distorts the political process by using funds generated 

for economic purposes on public policies that its own shareholders and customers oppose. 

The Secrecy 

While we know hundreds of millions of dollars are dominating the airwaves, there is no 

streamlined process to analyze precisely where all of the funds are coming from, other than that 

they are from corporate entities and wealthy individuals. 

More than two years after Citizens United, because Congress and the Federal Election 

Commission have failed to enact an adequate system of disclosure, 16 Americans are still in the 

dark about who exactly is funding these shadow campaigns. That's because our current laws and 

regulations legalize money laundering. If corporations or wealthy individuals want to remain 

anonymous, they are free to give to shell organizations, which then give to Super PACs 

dedicated to the election or defeat of candidates. The Super PAC only discloses the name of the 

sham organization or 50 1 (c)(4) that transferred money to the Super PAC, rather than the 

underlying donors. Satirical comedian Stephen Colbert has brilliantly educated his viewers 

II BLAIR BOWIE & ADAM LIoz, AUCTIONING DEMOCRACY 1, Demos & U.S. PIRG (2012), 

http://www.demos.orglpublicationlauctioning-democracy-rise-super-pacs-and-2012-election. 

12 Brody Mullins & Ann Zimmerman, Target Discovers Downside to Political Contributions, WALL ST. J., Aug. 7, 

2010, http://online.wsj.comiarticle/SB I 000 142405274870398830457541365 0676561696.html. 

13 130 S. Ct. at 916. 

14 Mike McIntire & NichGlas CGnfessore, Tax-Exempt Groups Shield Political Gifts a/Businesses, N.Y. TIMES, July 

7, 20 12, http://www.nytimes.coml2012107108/us/politics/groups-shield-political-gifts-of-businesses.htm!. 

1l Jd. 

16 Importantly, the Supreme Court upheld the constitutionality of disclosure requirements by a vote of 8-1, reasoning 

that disclosure of expenditures allows shareholders to "determine whether their corporation's political speech 

advances the corpGration's interest in making profits, and citizens can see whether elected officials are 'in the 

pocket' of so-called moneyed interests." Citizens United, 130 S. Ct. at 916. 

3 
155 

about these mechanics with his own Super PAC, forming his Anonymous Shell Corporation (a 

50 I (c)( 4) "social welfare" organization) to accept money for political purposes that is then 

donated directly to his Super PAC. 17 

Of course, corporations and other wealthy individuals can now bypass the minimum 

disclosure requirements of Super PACs all together and simply give to 501(c)(4) organizations, 

which can then make political expenditures without any disclosure of donors whatsoever. Karl 

Rove's American Crossroads GPS, a "social welfare" (c)(4) organization, is a prime example. 

Citing "sources" (because the organization is under no legal obligation to disclose any of its 

donors), news outlets credited the anonymity ofc(4) organizations like Mr. Rove's as the 

motivating factor for a billionaire casino mogul to give generously - in the multiple millions of 

dollars - to fund the organization's political spending.ls 

The Relationships to Campaigns 

Even without disclosure, the notion that Super PACs are "independent" from political 

candidates, and therefore cannot lead to corruption or the appearance of corruption, is farcical. 

While federal law holds that "coordination" between candidates and Super PACs and other 

spenders is prohibited, its le~al definition is cramped, narrow and fails to capture conduct that is 

by no means "independent." 9 

The Federal Election Commission's advisory opinion on this matter is illustrative. It 

authorizes officeholders and candidates to "attend, speak at, or be featured guests at fundraisers 

for" Super PACs "at which unlimited individual, corporate and labor organization contributions 

will be solicited.,,20 The behavior of the two presidential candidates demonstrates the absurdity 

of the "independence" of Super P ACs. President Obama's own campaign website touts that "the 

campaign has decided to do what we can, consistent with the law, to support Priorities USA [a 

pro-Obama Super PAC] in its effort to counter the weight of the GOP Super P AC.'.21 It 

continues that "White House and Cabinet officials will attend and speak at Priorities USA 

fundraising events" but "won't be soliciting contributions for Priorities USA.,,22 Meanwhile, 

Karl Rove, the head of American Crossroads, spoke at a posh retreat for individuals that have 

hauled in six figure donations to Governor Mitt Romney's campaign.23 Rove also spoke at a 

luncheon "held just outside" the retreat hosted by Solamere Capital, a private equity firm 

17 Interview by Terry Gross with Trevor Potter, Fresh Air, NAT'L PuBLIC RADIO (Feb. 23, 2012), 

http://www .npr.org/20 12/021231 14 7294509/examining-the-superpac-with-colbeTts-trevor-potter. 

"Kenneth P. Vogel & Steve Friess, Karl Rove Hits Big: The Binh of a Mega-Donor, POLITICO, July 13, 2012, 

http://www.politico.cominews/stories/0712178466.htrnl. 

19 See 2 U.S.C. § 441a(a)(7)(B); II C.F.R. § 109.21 

20 FEC Advisory Opinion 2011-12, pg. 4, available at 

http://saos.nictusa.comisaos/searchao?SUBMIT=ao&AO=3268. 

21 Jim Messina, We Will Not Play by Two Sets of Rules, Obama for America, Feb. 6, 2012, 

http://www.barackobama.comlnews/entry/we-will-not-play-by-two-sets-of-rules. 

22 Id. 

23 Philip Rucker, Romney Plans Posh Weekend Donor Retreat Featuring Rove and VP Hopefuls, WASH. POST, June 

20, 2012, http://www.washingtonpost.comlpolitics/romney-plans-posh-weekend-donor-retreat-featuring-rove-andvp-hopefulsl2012/06/20/gJQApFYNqV _story.html; Peter H. Stone, Karl Rove Gave Secret Speech Outside Romney 

Donor Retreat, BUFFINGTON POST, July 9, 2012, http://www.huffingtonpost.coml2012/07/09lkarl-rovespeech_n_1656013.html. 

4 
156 

founded by Governor Romney's son.24 It was reported that Mr. Rove "was pushing for 

Crossroads the whole time," "promot[ing] his Super PAC and an affiliated nonprofit, Crossroads 

GPS, to campaign donors during private meetings during the retreat.,,25 

And yet, even with government officials authorized to appear at Super PAC fundraisers, 

and heads of Super PACs appearing at candidates' fundraising retreats, one is supposed to 

presume the official campaign and its shadow Super PAC are wholly independent, with zero risk 

of corruption or the appearance thereof. 

Former Speaker of the House and presidential candidate Newt Gingrich summed up his 

failed campaign starkly. A journalist asked him if running for President is "a rich man's 

game.,,26 Speaker Gingrich replied: "No. It's certainly a game which requires you to have access 

to a lot of money. We couldn't have matched Romney's Super PAC, but in the end, he had I 

think sixteen billionaires and we had one, and it made it tough.,,27 

Advertising Scarcity 

The corrupting influence of unlimited spending by wealthy individuals and corporations 

raises other questions of fairness and equality in the political process. Super P ACs and other 

wealthy donors are muffling the voices of political participants by snapping up airtime at a 

premium. Participation is becoming more expensive, because airtime is a scarce commodity, 

particularly in swing states. The National Journal explained in a recent article that demand is 

already forcing airtime prices to "skyrocket.,,2B The limited supply of remaining airtime will 

soon become a major issue as the political season heats up. With hundreds of Super PACs and 

other outside groups raising hundreds of millions of dollars, a television station sales manager in 

Pennsylvania said that 2012 "will be a record-setting year ... In the battleground states, running 

out of inventory is a possibility.,,29 

Complicating the matter is the provision of federal law that requires stations to allow 

federal candidates "reasonable access" to the airwaves even if they need to pay market rate, 

which may rise exponentially at the height of election season.30 State and local candidates have 

no such legal grounds to receive the same access as federal candidates. A campaign trade 

pUblication explained that these "[ d]own ballot candidates and issue groups ... aren't protected 

by ... most-favored-advertiser status. They can be bumped to less favorable ad times, have their 

ads dropped for other content, or told that there isn't room for them on the airwaves.")! 

24 Stone, supra note 23, 

25 !d. 

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

ABCNEWSIY AHOO! NEWS, June 19, 20 12, http://news.yahoo.comlblogs/power-players-abc-news/newt-gingrichadvice-mitt-romney-sharpen-animal-instincts-I 05728293 .html? _ esi= I. 

27 Id. 

28 Reid Wilson, Buy Early and Often, NAT'L J., May 23, 2012, http://mobile.nationaljoumal.com/columns/on-thetraillbuy-early-and-often-20 120523. 

29 Sean J. Miller, Could We Run Out of Airtime?, CAMPAIGNS & ELECTIONS, Mar. 21, 2012, 

http://www.campaignsandelections.com/magazinelus-editioni31423 2/could-we-run-out-of-airtime. thtml 

30 47 USC § 312; 47 C,F.R. § 73.1944, 

31 Miller, supra note 29. 

5 
157 

Citizens United and its progeny - premised upon a constitutional right to spend unlimited 

funds on elections - actually has the deleterious effect of squelching speech. The voices ofthe 

wealthy and the corporations are able to speak the loudest, granting a very small minority the 

right to determine who is heard and who is relegated to silence on the airwaves. Where political 

commercials are stacked on top of each other - the overwhelming majority negative - the 

bombardment of political ads will desensitize voters, and lead to many tuning out from politics 

completely and disregarding the speech of even those who can afford to buy it in modest 

amounts.32 

Amend the Constitution 

While it is "emphatically the duty of the [courts] to say what the law is,,,)3 it is We the 

People that adopt the Constitution as the law's most basic foundation. A line of Supreme Court 

cases, from Buckley v. Valeo through Citizens United, have wrongly interpreted the First 

Amendment, extending its application to artificial entities of government like corporations and 

protecting their ability to electioneer, even though their interests are, by law, radically different 

than those of living, breathing human beings. Further, the courts equate unlimited expenditures 

and sums of money as constitutionally-protected speech, when in fact it is property. The 

poisonous effects of these decisions present a grave harm to our democracy, as demonstrated by 

the rise of Super PACs and secretive nonprofit spending. It is necessary, therefore, that the 

people make permanent our core political values in a Constitutional amendment to provide that 

corporations are not entitled to the constitutional rights of real people, and that unlimited 

spending on politics is not free speech. 

It is time for the people to reclaim our democracy. 

Corporations are Not Entitled to the Constitutional Rights of Real People 

Corporations are privileged with limited liability and perpetual life for economic 

purposes. Their interests are not always - nor often - the same as those of citizens. Corporate 

spending in our elections distorts the political process far more than even large donor money, 

because corporations are using their general treasury funds to influence policy, when its 

treasury's purpose was instead to drive the engine of economic growth. The law obligates 

corporations to put profits ahead of the greater societal good, whereas real living, breathing 

people must balance their narrow interests with a broader public interest when making political 

decisions at the ballot box. 

The Constitution is intended to protect the rights of individual human beings. 

Corporations are mentioned nowhere in the Constitution -and their authority cannot exceed that 

of "We the People." While corporations make important contributions to society as engines of 

economic growth, the government grants them certain privileges that allow them to collect vast 

32 Id.; see generally Louisa Ha & Kim McCann, An Integrated Model of Advertising Cluller in Offline and Online 

Media, INT'L J. OF ADVERTISING (2010). 

33 Marbury v. Madison,S U.S. (1 Cranch) 137 (1803). 

6 
158 

sums of money, but has never considered them "real people" with rights to dictate electoral 

outcomes. In Austin v. Michigan Chamber a/Commerce, the Court recognized that "the 

corrosive and distorting effects of immense aggregations of wealth that are accumulated with the 

help of the corporate form and that have little or no correlation to the public's support for the 

corporation's political ideas" posed a serious threat to our republican form of self-government.34 

Unfortunately, Citizens United explicitly reversed Austin in its entirety.3s Lamenting the 

majority's reckless decision, Justice Stevens dissented by writing that "corporations have no 

consciences, no beliefs, no thoughts, no desires. Corporations help structure and facilitate the 

activities of human beings, to be sure, and their 'personhood' often serves as a useful legal 

fiction. But they are not themselves members of "We the People" by whom and for whom 

our Constitution was established.,,36 

Most egregiously, corporations have abused their "rights" bestowed on them by the 

courts to overturn democratically enacted laws that municipal, state and federal governments 

passed to curb corporate abuse, impairing local governments' ability to protect their citizens 

against corporate harms. 

Unlimited Spending on Politics is Not Free Speech 

It was in Buckley v. Valeo that the Supreme Court upheld limits on contributions to 

candidates because such restrictions were justified by corruption or the appearance thereof;37 but 

it wrongly rejected the compelliog ioterest ofleveling the playing field to guarantee that all 

citizens, irrespective of wealth and resources, have an opportunity to make their political views 

known.38 

For too long, the only government interest compelling enough to protect the voices of 

average, ordinary Americans in our politics has been that of corruption or the appearance thereof. 

In the wake of Citizens United, even that compelling interest is crumbling. While protection 

against corruption is exceedingly important - and continues to justify important regulations that 

protect our democracy from embracing full legalized bribery - another important government 

interest must be recognized. Equality. Americans of every stripe must have an equal opportunity 

to be heard in the election process, and not be drowned out by mega-wealthy donors who equate 

the size of their bank accounts with their right to be heard over other citizens. 

Justice Stevens put it most eloquently in his concurrence io Nixon v. Shrink Mo. Gov't 

PAC. He wrote to make "one simple point: money is property; it is not speech .... The right to 

use one's own money to hire gladiators, or to fund 'speech by proxy,' certainly merits significant 

constitutional protection. These property rights, however, are not entitled to the same protection 

as the right to say what one pleases.,,39 

34 494 U.S. 652, 660 {I 990). 

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

36 Jd. at 972 (Stevens, J., dissenting). 

37 424 U.S. 1,29 (1976). 

38 See id. at 48-49. 

39 528 U.S. 377, 398-399 (2000) (Stevens, J., concurring). 

7 
159 

Amend2012 

Citizens across the country are rising up to instruct Congress that the time has corne to 

enact a constitutional amendment that encompasses these principles. This fall in Montana, for 

example, citizens will vote on Initiative 166 the "Prohibition on Corporate Contributions and 

Expenditures in Montana Elections Act." This initiative would charge Montana's delegation in 

Congress to support an amendment to the United States Constitution to nullify the Supreme 

Court's ruling in Citizens United v. FEe. The initiative is supported by leading Montana 

Democrats and Republicans, including many small businesses. The Committee collected more 

than 40,000 signatures - far more than is required. 

Beyond the ballot box, legislatures in Hawaii, California, New Mexico, Rhode Island and 

Vermont and other towns and city councils across the country have passed resolutions calling for 

a constitutional amendment overturning the constitutional right of corporations to spend money 

on our political campaigns. 

Conclusion 

Mr. Chairman, your leadership and that of this Committee is critical to restoring the 

voices of the American people in their elections. The unchecked power of Super P ACs and 

unlimited political spending by corporations and the very wealthy, left to its own devices, 

threatens to swallow the very democracy it seeks to buy. 

Common Cause thanks you for the opportunity to submit this testimony. 

8 
160 

Demos 

IDEAS & ACTION 

Testimony of Adam Lioz, Counsel at Demos 

The United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights and Human Rights 

"Taking Back Our Democracy: Responding to Citizens United and the Rise of Super PACs." 

July 24, 2012 

Introduction 

Thank you for this opportunity to submit testimony regarding the damage that Citizens United 

and the rise of Super PACs has done to our system of democratic government. In the text 

below I will discuss why rules that govern the role of money in politics are important to our 

democracy; the impact of Citizens United and related decisions on our electoral system; and 

what Congress can and must do to promote the core American value of political equality. 

What's at Stake 

Before delving into the specific problems caused by the U.S. Supreme Court's misinterpretation 

of the First Amendment and the current Super PAC system, it is useful to take a step back and 

highlight why campaign finance laws are important in the first place. 

We live in a representative democracy with a capitalist economy. This means that we hold 

different values dear in the economic and political spheres. 

Most Americans will tolerate some economic inequality so long as it results from meritocratic 

competition, because we respect that other values such as efficiency and proper incentives 

have a role to play in structuring our economy. One's political ideology to a certain extent 

determines how much inequality one is willing to sanction in the name of other values-with, 

all else being equal, self-identified conservatives comfortable with a wider income gap than 

self-identified liberals or progressives. Few argue that everyone should receive the same 

income regardless of effort, talent, or other factors. 

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161 

Political equality, on the other hand, is a core American value. Regardless of partisan or 

ideological affiliation, the vast majority of Americans agree that it is critical that we all come to 

the political table as equals. Through multiple amendments and Supreme Court decisions, the 

concept of political equality ("one person, one vote") has become a core constitutional 

principle. 

But, we cannot maintain a democracy of equal citizens in the face of significant economic 

inequality if we allow those who are successful (or lucky) in the economic sphere to translate 

wealth directly into political power. Our democratic public sphere is where we set the terms 

for economic competition. It is where we decide-as equals-how much inequality, 

redistribution, regulation, pollution we will tolerate. These choices gain legitimacy from the 

fact that we all had the opportunity to have our say. If incumbents are able to rig the rules in 

favor of their own success it undermines the legitimacy of the economic relations in society. 

In short, democracy must write the rules for capitalism, not the other way around. And, the 

only way to ensure this happens is to have some mechanism for preventing wealthy individuals 

and institutions from translating their wealth into political power. Campaign finance rules are 

that mechanism. These common sense restrictions on the unfettered use of private wealth for 

public influence are the bulwarks or firewalls that enable us to maintain our democratic values 

and a capitalist economy simultaneously. When we remove these protections, we risk creating 

a society in which private wealth and public power are one and the same. 

The Problem: 

The core problem with our electoral system is that it gives a small number of wealthy 

individuals and institutions vastly outsized influence over who runs for office, who wins 

elections, and therefore who makes policy in the United States. 

We know that financial resources make a huge difference in election campaigns. For decades, 

candidates who have raised the most money have won the vast majority of races-often more 

than 90% in a given year.l And, for decades, candidates have raised the majority of their funds 

from a tiny minority of very wealthy Americans. 2 

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

http:Uwww,opensecrets,org!news/2012/01/big-spender·always-wins.htmL 

'Adam Lio" The Role of Money in the 2002 Congressional Elections, U.S. PIRG Education Fund (2003). 
162 

This means that Americans who can afford to give thousands of dollars to political candidates 

or outside groups that support them are more likely to see candidates who share their views on 

the key issues of the day win office and assume positions of power. This is the influence of 

money on elections, rather than on politicians. 

A second problem is the influence of money on politicians-the danger that winning candidates 

will feel more accountable to a narrow set of large donors than to the broad swath of 

constituents they are supposed to represent. This can lead to quid pro quo corruption-an 

officeholder supporting or opposing certain policies at the request of a donor. Or it can lead to 

a more subtle desire to please a political patron. A third and related problem is the appearance 

of corruption and the public's loss of confidence in the political system. 

Wealthy contributors helping their favored candidates win elections or demanding their loyalty 

afterwards would not systemically skew politics or policy outcomes ifthese well-heeled donors 

were like the rest of us, if on average they had the same life experiences, opinions about issues, 

and political views as average-earning citizens. 

But, unsurprisingly, this is not the case. We have long known that large campaign contributors 

are more likely to be wealthy, white, and male than average Americans. And recent research 

confirms that wealthy Americans have different opinions and priorities than the rest of the 

nation. 

According to a nationwide survey funded by the Joyce Foundation during the 1996 

congressional elections, 81% of those who gave contributions of at least $200 reported annual 

family incomes greater than $100,000. This stood in stark contrast to the general population at 

the time, where only 4.6% declared an income of more than $100,000 on their tax returns.3 

Ninety-five percent of contributors surveyed were white and 80% were men.' 

We also know that wealthy Americans hold different views than average-earning citizens. 

Investigators for the Joyce study cited above found that large donors are significantly more 

conservative than the general public on economic matters, tending to favor tax cuts over antipoverty spending.s 

3 John Green, Paul Hermsonr lynda Powell, and Clyde Wilcox.lndividl.lQ/ CongreSSional Campaign Contributors: Wealthy, 

Conservative and Reform-Minded (1998). 

'Id. 

sid. 
163 

A recent report by the Russell Sage Foundation confirms this finding. The authors surveyed "a 

small but representative sample of wealthy Chicago-area households.,,6 They found meaningful 

distinctions between the wealthy respondents they surveyed and the general public on 

economic issues such as the relative importance of deficits and unemployment. 

For example, wealthy respondents "often tend to think in terms of 'getting government out of 

the way' and relying on free markets or private philanthropy to produce good outcomes.,,7 

More wealthy respondents than average Americans listed deficits as the most important 

problem facing our country. Among those who did, "none at all referred only to raising 

revenue. Two thirds (65%) mentioned only cutting spending.',B In spite of majority public 

support for raising taxes on millionaires, among respondents, "[t]here was little sentiment for 

substantial tax increases on the wealthy or anyone else."g And, in spite of recent scandals on 

Wall Street, "more than two thirds of [survey] respondents said that the federal government 

'has gone too far in regulating business and the free enterprise system:"O 

Ultimately, it is harder for working and middle class families to get ahead in the U.S. because 

our political system causes our national priorities to be set by and for the wealthy minority who 

funds campaigns. 

The Rise of Super PACs and (Sometimes Secret) Outside Spending 

A long line of Supreme Court decisions have restricted Americans' ability to curb the influence 

of wealthy donors through the democratic process. Recent court decisions have made a bad 

problem worse, and introduced two new problems as well: direct business spending on 

elections and overall lack of transparency of political spending. 

Since the 1976 Supreme Court decision Buckley v. Valeo,l1 individuals have been permitted to 

spend unlimited money to support favored candidates. The 2010 decision in Citizens United v. 

6 Benjamin I. Page, Fay lomax, Cook, and Rachel Moskowitz, Wealthy Americans, Philanthropy, and the Common Good, 

September 25, 2011 at 6; available at http:Uwww.scribd.com(doc/7S022549(Wealthy-Americans·Phiianthropy·and-the· 

Common~Good. 

'Id. atll. 

'Id. at 12. 

'Id. at 13. 

10 Id. at 15. 

11 Buck/ey v. Va/eo, 424 u.S. 1 (1976). 
164 

FEC2 allowed corporations to spend general treasury funds-wealth they have aggregated 

through the benefits of the corporate form-to influence elections. This decision, along with 

D.C. Circuit Court of Appeals decision in SpeechNow.org v. Federal Election Commission13 and a 

subsequent FEC advisory opinion,14 gave rise to Super PACs and opened the floodgates to 

record levels of private money, much of which cannot be traced to an original source. 

Super PACs may raise unlimited funds from virtually any source as long as they do not 

contribute to or "coordinate" directly with a candidate or political party. They are fast 

becoming a favored tool for wealthy individuals and interests to use to drown out the voices of 

average citizens. At the end of the 2010 election cycle, there were 84 active super PACS.15 As of 

July 10, 2012, there are more than 657 registered Super PACs which have raised a combined 

$242,335,123.16 

In February 2012, Demos partnered with the U.S. PIRG Education Fund to release Auctioning 

Democracy: The Rise of Super PACs and the 2012 Election, an in-depth analysis of Super PAC 

fundraising. We found that Super PACs raised the lion's share of their funds from very wealthy 

individuals and for-profit businesses, and a small but significant portion of their funding is 

secret money, not traceable to its original source. 

Wealthy individuals account for the biggest portion of Super PAC funding. Just 37 people, giving 

at least $500,000 each, were responsible for more than half the itemized funds Super PACs 

raised from individuals between the advent of Super PACs in 2010 and the end of 2011.17 Fully 

93% of the itemized funds raised by Super PACs from individuals came in contributions of at 

least $10,000, from just twenty-three out of every 10 million people in the U.S. population. is 

Not surprisingly, recent Sunlight Foundation research shows that these ultra-elite $10,000+ 

donors-"The One Percent of the One Percent"-are quite different than average Americans. 

12 130 S.Ct. 876 (2010). 

" SpeechNow.org v. FEC, 599 F.3d 686 (2010). 

14 Federal Election Commission, Advisory Opinion 2010~11, available at http://saos.nic:tusa,com/aodocs/AO%202010-11.pdf. 

is-Super PACs & the Corporations Who Love Them, Coalition for Accountability in Political Spending (January 2012), available at 

http://polilicalspending.org/docs(CAPS-SuperPAC-report.pdf. 

16 2012 Outside Spending, by Super PACs, OpenSecrets.org at the (enter for Responsive Politics, 

http://www,opensecrets.orgJoutsidespending!summ.php?cycle=2 012&chrt=V&type=~ (last visited July 10, 2012). 

17 Adam Lioz, Demos, & Blair Bowie, U.S. PIRG, Auctioning Democracy: The Rise of Super PACs and the 2012 Election, (2012) 

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

IBId. 
165 

In the 2010 election cycle, these 26,783 individuals were responsible for nearly a quarter of all 

funds contributed to politicians, parties, PACs, and independent expenditure groups.19 Nearly 

55% of these donors were affiliated with corporations and nearly 16% were lawyers or 

lobbyists. 20 More than 32% of them lived in New York City, Los Angeles, Chicago, or San 

Francisco, or Washington, DC2! The Super PAC system has further skewed political outcomes 

by giving even more power to even fewer people-who don't live, work, or think like the rest of 

us. 

But in Citizens United the Roberts Court introduced new problems as well. More than 17% of 

the funds raised by Super PACs from their inception through the end of 2011 came from forprofit businesses.22 Businesses playa critiCal role in our society and our national economy. But, 

contrary to the Citizens United ruling, for-profit businesses should not be permitted to spend 

treasury funds to influence elections. First, most businesses are constrained to participate only 

to maximize private profit, rather than out of regard for the public good. More important, this 

spending undermines political equality by allowing those who have achieved success in the 

economic sphere to translate this success directly into the political sphere. 

In addition, our political system has become considerably less transparent as a result of Citizens 

United. In his opinion for the Court, Justice Kennedy relied on the proposition that voters 

would know who was funding campaign advertisements and thus would be able to judge the 

message accordingly.23 But current federal disclosure laws do not provide shareholders and 

citizens with the "the information needed to hold corporations and elected officials 

accountable for their positions and supporters.,,24 On the contrary, undisclosed political 

spending is on the rise, and Americans are increasingly in the dark about the money driving 

legislative and electoral outcomes. 

Non-profit groups with meaningless names such as "Americans for Freedom" can accept 

unlimited contributions from anonymous donors. Their financial backers can remain 

anonymous because FEC regulations only require the identification of donors who specify that 

their funds were to be used for a particular political ad. "Americans for Freedom" can spend 

''http://,unlightfoundation.com/blog!2011/12!13/the.political.one·percent·of·the-one-percent! 

2~ Id. 

21 1d. 

22 Adam lloz & Blair Bowie, Auctioning Democracy, supra note 8 at 6. 

" Citizens United, 130 S.Ct. at 916 (2010). 24 ,d. 
166 

this dark money itself. Or it can direct the money to independent or affiliated political 

committees. While political committees are required to disclose their funders, there is no true 

informational value for a voter to learn that "Americans Who Love Freedom" (a Super PAC) is 

funded by "Americans for Freedom" (a nonprofit). The real identity of the source of the money 

remains hidden. 

A small but significant portion of the money raised by Super PACs cannot be traced back to its 

original source. As mentioned above, Super PACs are required to report their donors, but they 

are permitted to accept contributions from organizations-such as SOl{c)(4} non profits and 

trade associations-that are not legally required to report theirs. Six point four percent of the 

funds given to Super PACs between 2010 and the end of 2011 were secret, not traceable to an 

original source. 25 Nearly 20% of active Super PACs received money from untraceable sources in 

2011.26 

The 6.4% figure cited above greatly underestimates the total amount of secret money in the 

system. "Dark money" outside groups often spending directly rather than through Super PACs. 

In the 2010 election, undisclosed political spending by outside groups was already revealing 

some troubling trends. Groups such as SOl(c)(4) and SOl(c)(6) non-profit organizations 

reported spending over $130 million that cycle, meaning that over 46 percent of the outside 

spending in the election was unaccountable. 27 Moreover, seven ofthe top ten outside spending 

groups did not disclose the identities of their funders, which accounted for almost threequarters of all of the outside spending directed to influence the 2010 election. 28 

The FEC recently projected that the total amount spent during the 2012 election cycle could top 

$11 billion-shattering previous records.29 The sources of much of this money will not be fully 

disclosed. As Norman Ornstein of the American Enterprise Institute recently observed, "We're 

back to the Nixon era, the era of undisclosed money, of big cash amounts and huge interests 

that are small in number dominating American politics.,,30 This denies voters the opportunity to 

25 Adam Lioz & Blair Bowie. Auctioning Democracy, supra note 8 at 4. 

26 1d, 

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

available at http:Uwww,citizen,org/documents!Citizens-United-20110113.pdf. 28 1d. 

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

http://www,fec.gov!pages!fecrecord/2012!januarY!messagefrom2012chair.shtml. 

" Andy Kroll, Follow the Dark Money, Mother Jones Magazine, (July/August 2012), available at 

http://www.motherjones.com/politics/2012!06!history-money-american-elections. 
167 

"follow the money" and understand the motives behind the messages that are flooding their 

airwaves during the weeks leading up to an election. 

In addition to giving the wealthy an outsized political voice and skewing policy outcomes, large 

contributions and secret spending are demonstrably eroding public confidence in our political 

system. In Citizens United, Justice Kennedy confidently predicted that "[tlhe appearance of 

influence or access, furthermore, will not cause the electorate to lose faith in democracy.,,31 

Unfortunately, Justice Kennedy's confidence was misplaced. Polling has shown time and again 

that that big money in elections reduces Americans' trust in government. From 2001 to 2011, 

the United States fell from the 16th least-corrupt country on Transparency International's 

Corruption Perceptions Index to 24th place, and "nearly three in four Americans believe that 

corruption has increased over the last three years.',32 The World Bank also reported recently 

that corruption controls in the United States had weakened since the late 1990s and that it now 

trails most developed nations.33 

Solutions 

Congress, the President, federal agencies, and state legislatures can all act to reform our 

system. Because the Supreme Court had tied its hands, the U.S. Congress cannot immediately 

ban Super PACs or limit outside spending-but there is plenty it can do. Congress should: 

Propose a constitutional amendment to clarify that Congress and the states moy regulote 

individuol and corporate political contributions ond spending. Short of a dramatic shift in 

Supreme Court jurisprudence, the only way to break the dominance of wealthy individuals and 

institutions over our elections is to amend the U.S. Constitution to clarify that the First 

Amendment was never intended as a tool for use by corporations and the wealthy to dominate 

the political arena. To truly solve the problem, an amendment must overturn Buckley, not just 

Citizens United. 

31 Citizens United, 130 S.Ct. at 910. 

32 Eduardo Porter, The Spreading Scourge of Corporate Corruption, THE NEW YORK TIMES, (July 10, 2012), available at 

http://www.nytime5.com!2012/07/11/busineS5/economY/the·spreading~5courge-of-corporate-corruption.html. 

33 Id. See olso "Worldwide Governance Indicators: Country Oata Report for United States, 1996~2010'" THE WORLD BANK, available 

at http:Uinfo,worldbank,org(governance(wgi(pdf!c228,pdf. 
168 

Amending the Constitution will require the support of two-thirds of both the House of Representatives 

and the Senate and then ratification by three-fourths of the state legislatures. This is, admittedly, a very 

high bar. But, we have reached this high bar in the past, often specifically to expand political 

participation and vindicate the core value of political equality. The Fourteenth, Fifteenth, Nineteenth, 

and Twenty-Sixth Amendments all extended the right to political participation to previously 

disempowered groups while limiting the disproportionate political influence of existing stakeholders. 

In addition, public opinion is clearly on the side of reform. Since Citizens United was handed down, large 

majorities of Americans from both parties have indicated that they opposed the ruling." Polls from 

around the time of the decision showed that 72% of Americans supported "backed congressional action 

to curb the ruling"" and nearly 80% would support a constitutional amendment." 

Propose ond confirm only judges ond justices who understand the importance of political equality and 

who will interpret the First Amendment properly. The vast majority of Americans understand that the 

First Amendment was intended to promote robust political participation by all the people, not lock in 

the privileges of wealthy individuals and institutions. We need the next generation of judges and 

justices to break from the Roberts Court's antiregulatory orthodoxy and give Congress, states, and 

localities more flexibility to promote political equality, safeguard our democracy, and strike the proper 

balance between liberty and equality. 

Encourage small political contributions by providing vouchers or tax credits. Encouraging millions of 

average-earning Americans to make small contributions can help counter-balance the influence of the 

wealthy few. Several states provide refunds or tax credits for small political contributions, and the 

federal tax code did the same between 1971 and 1986.37 Past experience suggests that a well-designed 

program can motivate more small donors to participate?' An ideal program would provide vouchers to 

citizens up front, eliminating disposable income as a factor in political giving." 

Match smoll contributions with public resources to encourage small donor participation and provide 

candidates with additional clean resources. Candidates who demonstrate their ability to mobilize 

34 Stan Greenberg and James Carville. Democracy Corps, Erica Seifert, Greenberg Quinlan Rosner, & David Donnelly, Public 

Campaign Action Fund, "Two years after Citizens United, voters fed up with money in politics," (January 19, 2012), available at 

~Ll~ampaignmon~y.org/files/DemCorpPCAfDl~'!IoFINAL.pdf; Dan Egan, Poll: Large majority opposes Supreme Court's 

decision on campaign financing, WASHINGTON POST, (February 17, 2010), available at http://www.washingtonpost.com/wp~ 

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

3S ld. 

36 Hart Research Associates poll available at htto:llfreespeechforpeople.org/ 

37 Thomas Cmar, Towards a Small Donor Democracy: The Past and Future of Incentives for Small Political Contributions, U.S. 

PIRG Education Fund (2004). 

38 1d. 

]9 See Bruce Ackerman and Ian Ayresl VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE (2002). 
169 

support in their districts should receive a public grant to kick-start their campaign, and be eligible for 

funds to match further small donor fundraising. This would both encourage average citizens to 

participate in campaigns and enable candidates without access to big-money networks to run viable 

campaigns for federal office. 

Require robust disclosure of all contributions and expenditures used to influence elections. Voters have 

the right to know who is attempting to influence our elections and to whom their elected officials may 

feel accountable once elected. 

Protect the interests of shareholders whose funds may currently be used for political expenditures 

without their knowledge or approval. Congress should require for-profit corporations to obtain the 

approval of their shareholders before making any electoral expenditures; and require any for-profit 

corporation to publicly disclose any contributions to a SOl(c)(4) organization that either makes an 

independent expenditure or contributes to a Super PAC. 

Tighten rules on coordination. Current rules prohibiting coordination between Super PACs and 

candidates are riddled with loopholes. The Federal Election Commission should issue stronger 

regulations that establish legitimate separation between candidates and Super PACs. For example, the 

Commission could prevent candidates from raising money for Super PACs; prevent a person from 

starting or working for a Super PAC supporting a particular candidate if that person has been on the 

candidates official or campaign staff within two years; and prevent candidates from appearing in Super 

PAC ads (other than through already-public footage). 

If the FEC refuses to act, Congress can pass legislation codifying these common-sense rules. 

Conclusion 

For decades wealth individuals and interests have dominated the American political landscape. The 

Citizens United case and related rulings led to the rise of Super PACs and made a bad situation worse. 

Congress can and must act to vindicate the core American value of political equality by creating a 

democracy that is truly of, by, and for the people. Congress should refer a constitutional amendment to 

the states to overturn Buckley and Citizens United, move past the Roberts Court's anti-regulatory 

orthodoxy, and restore balance and common sense to our First Amendment. And, it can move forward 

on several other critical fronts, such as providing clean resources to qualified grassroots candidates, 

while advocates work to ratify the amendment in three-quarters of the states. 
170 

FREESPEEC~ 

PEOPL.ORG 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, 

Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn the 

US Supreme Court's Citizens United Ruling 

Written Testimony of Jeffrey D. Clements 

Co-Founder and President, Free Speech For People 

Free Speech For People 

48 North Pleasant Street, Suite 304 

Amherst, Massachusetts 01002 

(413) 253-2700 

jclements@freespeechforpeople.org 

www.freespeechforpeople.org 
171 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rigbts, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony ofjeffrey D. Clements, Free Speech For People 

Page 2 of 15 

Chainnan Durbin and Members of the Senate Judiciary Committee's Subcommittee on 

the Constitution, Civil Rights, and Human Rights: 

I appreciate the opportunity to submit this written testimony on behalf of Free 

Speech For People (www.freespeechforpeople.org). You are to be commended for 

holding this hearing on one of the most important subjects now facing the American 

Republic. 

As an attorney, I have handled public interest and private litigation matters on 

behalf of global corporations, small businesses, and people for more than two decades. 

Before opening Clements Law Office, LLC in 2009, I served as Assistant Attorney 

General and Chief of the Public Protection & Advocacy Bureau in Massachusetts, as a 

partner in the law finns of Mintz Levin and Clements & Clements, LLP in Boston, and as 

a litigation attorney in Portland, Maine. 

Following the Supreme Court's announcement in June 2009 that the Court would 

hear re-argument in Citizens United v. Federal Election Commission on the question of 

overruling McConnell v. Federal Election Commission and Austin v. Michigan Chamber 

o/Commerce, I filed an amicus brief on behalf of several citizen groups. When the Court 

announced its 5-4 decision in Citizens United, I co-founded Free Speech For People, and 

serve as its president. I am also the author of the new book, Corporations Are Not People 

(with a foreword by Bill Moyers), released in February 2012 by Berrett-Koehler 

Publishers. 

Free Speech For People, launched moments after the Citizens United ruling, 

is a national, non-partisan organization that works to challenge the misuse of 

corporate power and restore republican democracy to the people. 

• We catalyze and advance the movement to amend the U.S. Constitution 

to overturn Citizens United, Buckley v. Valeo, and the fabrication of 

corporate constitutional rights. 

• We engage in legal advocacy to confront the misuse of the U.S. 

Constitution to claim corporate exemptions from our laws, which 

damage our communities and undennine freedom and selfgovernment. 

• We revive and renew corporate charter revocation laws and other tools 

to make corporations responsible and accountable to the public. 

Since our founding, we have helped to lead the growing momentum across the 

country for a constitutional amendment to reclaim our democracy. As of this writing, six 

states (California, Hawaii, Maryland, New Mexico, Rhode Island, and Vennont) have 

gone on record calling for an amendment and others will soon join that list. Hundreds of 
172 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony ofJeffrey D. Clements, Free Speech For People 

Page 3 of 15 

resolutions have passed in cities and towns throughout the nation. Millions of Americans 

have signed petitions supporting an amendment. Eleven state attorneys general have 

joined the call. More than 2000 business leaders are now on board. More than a dozen 

amendment bills are now pending in the US Congress. And, the President of the United 

States has said an amendment may be necessary. 

The extraordinary response to the Citizens United decision reflects widespread 

understanding that the Supreme Court majority's radical interpretation of the First 

Amendment to hold that the American people and our elected representatives are 

powerless to regulate corporate political expenditures is fundamentally wrong as a matter 

of constitutional law, history, and our republican principles of self-government. The 

opposition to Citizens United and determination to overturn it cuts across all partisan 

lines: 82% of Independents, 68% of Republicans, and 87% of Democrats support a 

constitutional amendment to overturn the ruling (January 20 11, Hart Research Associates 

survey conducted for Free Speech For People). 

In this testimony, I will address the consequences of the pernicious "corporate 

rights" theory that resulted in the Citizens United holding, and the far worse 

consequences to come. I will also show why these consequences are not the result of the 

limitations or implications of our First Amendment and Bill of Rights, but arise from a 

new and deeply flawed activism on the bench. And, I will discuss the pressing need for a 

constitutional amendment to overturn the Citizens United ruling, make clear that 

corporations are not people with constitutional rights, and restore the authority of 

Congress and the States to regulate campaign spending in our elections. 

Citizells United, SpeechNow, and the Impact on Our Elections 

CitizellS United involved a corporate challenge to the most recent effort to control 

the corrupting and unfair influence of corporate money in politics: the Bipartisan 

Campaign Reform Act passed in 2002, frequently called the McCain-Feingold law after 

its Republican and Democratic Senate sponsors. This law extended pre-existing statutes 

prohibiting corporations from using corporate funds to advocate voting for or against a 

candidate for federal office. 

Sweeping aside McConnell v. FEC, decided only nine years ago, and overruling 

Austin v. Michigan Chamber o/Commerce, a 1990 case upholding state law restrictions 

on corporate political expenditures, the Court held that the restrictions on corporate 

expenditures violated First Amendment protections of free speech. In effect, the majority 

decision (Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices 

Antonin Scalia, Clarence Thomas and Samuel Alito) equates corporations with people for 

purposes offree speech and campaign expenditures. 
173 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ru ling 

Testimony of Jeffrey D. Clements, Free Speech For People 

Page 4 of 15 

The extraordinary ruling in Citizens United is unhinged from traditional American 

understandings of both the First Amendment and corporations. As Justice Stevens' 

dissent in Citizens United makes clear, Austin, McConnell and a substantial line of 

Supreme Court and lower court cases, backed by two centuries of Constitutional 

jurisprudence, correctly ruled that Congress and the States may regulate corporate 

political expenditures not because of the type of speech or political goals sought by 

corporations but because of the very nature of the comorate entity itself. In other words, 

cases challenging corporate political expenditure regulations are not really about the 

speech rights of the American people; they are about the power of the American people 

to regulate corporations and the rules that govern such entities. Justice John Paul Stevens' 

dissent rightly calls the majority opinion a "radical departure from what has been settled 

First Amendment law." 

Remarkably, in a case where the central question is the role and place of 

corporations in our democracy, Justice Kennedy's opinion does not once define or 

explain what a corporation is, nor does he even touch upon the legal definition or features 

of a corporation. Instead, in what Justice Stevens' compelling dissent calls "glittering 

generalities," the majority opinion focuses on "associations of citizens," "speakers," 

"voices," and, apparently without irony, a "disadvantaged person or class." Citizens 

United, slip op. at 24. 

It is a basic and fundamental understanding in the law that corporations are not 

"associations of citizens," but are creatures of statute, usually State statute, with 

characteristics defined by their charters and the state laws that authorize the use of 

corporate charters. "Those who feel that the essence ofthe corporation rests in the 

contract among its members rather than in the government decree ... fail to distinguish, 

as the eighteenth century did, between the corporation and the voluntary association."l 

Corporations cannot exist unless elected representatives choose to enact laws that 

enable people to organize a corporation and provide the rules ofthe road for using a 

corporation. People can start and run businesses without government involvement or 

permission; people can form advocacy groups, associations, unions, political parties and 

other groups that exist without the government's authorizing statute. But people, or even 

"associations of citizens," cannot form or operate a corporation unless the state enacts a 

law providing authority to form a corporation, and providing the rules of the road that go 

with use of the corporate form. 

Advantages ofthe corporate form are a privilege provided by government for 

sound policy reasons. We the people do that through our legislatures because we think, 

Oscar Handlin and Mary Plug Handlin, Commonwealth: A Study of the Role of Government in the 

American Economy, Massachusetts, 1774-1861 at 92 and n. 18. 
174 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ru ling 

Testimony of Jeffrey D. Clements, Free Speech For People 

Page 5 of 15 

accurately I believe, that such advantages are economically to the advantage of all of us 

and society over the long haul. Yet corporations, particularly powerful global 

corporations, - and too many judges confuse these privileges and policies with 

Constitutional rights. 

The Supreme Court used to resist this confusion. As the Court said in Austin v. 

Michigan, one of the cases overruled by Citizens United: 

State law grants corporations special advantages - such as 

limited liability, perpetual life, and favorable treatment of 

the accumulation and distribution of assets ... These 

state-created advantages not only allow corporations to 

playa dominant role in the Nation's economy, but also 

permit them to use 'resources amassed in the economic 

marketplace' to obtain 'an unfair advantage in the political 

marketplace. ,2 

Similarly, in McConnell v. FEC, the Court pointed to "the corrosive and distorting effects 

of immense aggregations of wealth that are accumulated with the help of the corporate 

form and that have little or no correlation to the public's support for the corporation's 

political ideas.,,3 

Following Citizens United, the DC Circuit Court of Appeals expanded the impact 

of the ruling through its decision in SpeechNow.org v. FEC, which removed all limits on 

contributions to independent expenditure committees and allowed for the creation of 

Super PACs. Yet, while the rise of Super PACs has gained significant attention in recent 

months, it is not the only vehicle through which big money interests have engaged in 

spending millions of dollars in our political process. The New York Times recently issued 

an extensive report on how for-profit corporations are funneling their general treasury 

funds through non-profit vehicles to influence our elections ("Tax-Exempt Groups Shield 

Political Gifts of Businesses," The New York Times, July 7, 2012). The Citizens United 

and SpeechNow rulings combined have resulted in an exponential rise of big money 

dominance of our politics, presenting a direct and serious threat to our democracy. 

Further details of the dangerous impact of these rulings on our elections can be found in 

the amicus brief Free Speech For People recently submitted before the US Supreme 

Court in American Tradition Partnership v. Bullock (available at: 

http://wv.w.freespeechforpeople.com/sites/defaultifilesIMT%2OAmicus%20Brief.pdf). 

Austin v, Michigan Chamber o/Commerce, 494 U.S. 652, 658- 59 (1990) (quotingFECv, 

Massachusetts Citizens/or Life, 479 U,S. 238, 257 (1986)). 

J McConnell, at 205 (citations omitted). 
175 

United States Senate Committee on the judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

july 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony of jeffrey D. Clements, Free Speech For People 

Page 6 of 15 

Further, the impact of Citizens United goes far beyond the federal Bipartisan 

Campaign Reform Act and federal elections. With no State even in the case before the 

Court, the Citizens United majority essentially erased the law oftwenty-four states that 

banned corporate political expenditures. Thus, with virtually no consideration of the 

federalism implications and the circumstances in the States, the Supreme Court 

transformed State elections. 

The five Justice majority in Citizens United, in fact, recently reaffirmed its refusal 

to consider these federalism implications and circumstances in the States when it 

summarily reversed the Montana Supreme Court in American Tradition Partnership v. 

Bullock and struck down the Montana Corrupt Practices Act without any hearing on the 

merits. Since 1912, the Montana Corrupt Practices Act had barred corporate money in 

elections, and the Montana Supreme Court, in upholding the law, had cited the extensive 

factual record and history justifying the statute. The US Supreme Court's refusal to 

review that factual record demonstrates further the need for a constitutional amendment 

to overrule the Court and protect our democracy. 

Citizens United also dramatically impairs the impartiality, and the perceived 

impartiality, of justice in America. Twenty-one states have elected Supreme Court 

justices, and thirty-nine states elect at least some appellate or major trial court judges. 

Even before Citizens United, as former Justice Sandra Day O'Connor has said, "In too 

many states, judicial elections are becoming political prizefights where partisans and 

special interests seek to install judges who will answer to them instead of the law and the 

Constitution." 4 Now corporations have even greater ability to bring their financial 

resources to bear on those elections, further undermining the independence of the state 

judiciaries. 

Finally, because Citizens United rests on the transformation of the expenditure of 

corporate general treasury funds into new "corporate speech" rights under the First 

Amendment, every elected official and person interested in representing their fellow 

citizens in America, from candidates for the presidency to candidates for the local school 

and water district, must now reckon with the power of corporate money to change the 

outcome of elections. 

4 See www.justiceatstake.org. State Supreme Court candidates raised $200.4 million from 1999-2008, 

compared with an estimated $85.4 million in 1989-1998. Source: National Institute on Money in State 

Politics. In Caperton v. Massey, 556 U.S. __ (2009) the Supreme Court held that the due process clause 

required the recusal of a justice who was elected with the help of$3 million in campaign expenditures from 

a West Virginia coal executive whose corporation was in the midst of appealing a $50 million jury award 

against his company. The justice, once elected, cast the deciding vote to overturn the suit. 
176 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24,2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony of Jeffrey D. Clements, Free Speech For People 

Page 70f15 

Beyond Citizens United and Campaign Finance 

The damage to democracy from the dubious "corporate rights" doctrine goes, 

unfortunately, beyond Citizens United and beyond campaign finance. The disdain shown 

by the majority in Citizens United for the policy judgments of the people's elected 

representatives in Congress and the States is striking, but it reflects a growing disdain that 

has driven corporate speech activism in the judiciary for the past two decades. 

Judicial respect for the people's choices about corporate regulation began to erode 

in the late 1970s and 1980s. The path to Citizens United follows from the fabrication 

beginning in those years of a corporate rights/commercial speech doctrine under the First 

Amendment. This new doctrine reached its zenith in Citizens United, but its damaging 

effects on democracy have already gone far beyond campaign finance laws. 

For 200 years, there was no such thing as a right to corporate speech under the 

First Amendment. And the First Amendment did not prevent legislatures from enacting 

restrictions on corporate expenditures to influence elections. During the Nixon 

Administration, however, in reaction to increasing legislative efforts to improve 

environmental, consumer, civil rights and public health laws, corporate executives began 

aggressively to push back for the creation of corporate rights. They followed a playbook 

spelled out in a memo from Lewis Powell, then a private attorney advising the Chamber 

of Commerce. 5 President Nixon then appointed Lewis Powell to the Supreme Court. 

Over the following years, a divided Supreme Court, over powerful dissents by Justice 

William Rehnquist and others, transformed the First Amendment into a powerful tool for 

corporations seeking to evade democratic control and sidestep sound public welfare 

measures. 

In 1978, several large corporations - including Gillette and Bank of Boston -

challenged a Massachusetts prohibition on corporate expenditures to influence ballot 

questions.6 In an opinion authored by the former Chamber of Commerce lawyer, the 

now-Justice Powell, a 5-4 decision agreed with the corporate First Amendment claim, 

and cast aside the people's wish to keep corporate money out of Massachusetts citizens 

referenda. With increasing aggressiveness, the judiciary has since used this new 

corporate-rights doctrine to strike down state and federal laws regulating corporate 

conduct. Even a partial list of decisions striking down public laws shows the range of 

regulations falling to the new corporate rights doctrine, from those concerning clean and 

fair elections; to environmental protection and energy; to tobacco, alcohol, 

The background ofthe 1971 Lewis Powell memorandum and the text of the memorandum itself 

are available at http://www.recIaimdemocracy.orgicorporate_accountability/powell_ memo _lewis.html. 

6 First Nat'/ Bank of Boston v. Bel/otti, 435 U.S. 765 (1978). 
177 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24,2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony of Jeffrey D. Clements, Free Speech For People 

Page 8 of 15 

phannaceuticals, and health care; to consumer protection, lotteries, and gambling; to race 

relations, and much more.7 

One example in particular illustrates how the new corporate speech doctrine 

departs from the meaning of the people's speech rights under the First Amendment. In 

the 1990s, the Monsanto corporation used recombinant DNA to develop a bovine growth 

honnone product that resulted in significant increases in milk from cows treated with the 

Monsanto drug. Most of Europe, Australia, New Zealand, and Canada banned the use of 

recombinant bovine growth honnone. The United States did not. Vennont, horne to 

many of New England's surviving local dairies and a leader in organic and local 

See Bellotti, 435 U.S. 765; FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (as applied 

to issue advocacy advertisements of non-profit corporation, BCRA held to violate First Amendment); 

Thompson v. Western States Med Or., 535 U.S. 357 (2002) (federal restriction on advertising of 

compounded drugs invalidated); Lorillard v. Reilly, 533 U.S. 525 (2001) (Massachusetts regulations of 

tobacco advertising targeting children invalidated); Greater New Orleans Broad Ass 'n, Inc. v. United 

States, 527 U.S. 173 (1999) (federal restriction on advertising of gambling and casinos held 

unconstitutional); 44 LiquorMart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (Rhode Island law restricting 

alcohol price advertising invalidated); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (federal restriction 

on advertising alcohol level in beer invalidated); City of Cincinnati v. Discovery Network Inc., 507 U.S. 

410 (1993) (municipal application of handbill restriction to ban news racks for advertising circulars on 

public property held unconstitutional); Pacific Gas & Elec. Co. v. Pub. Uti!. Comm'n of California, 475 

U.S. I (1986) (invalidating California rule that utility corporation must make bill envelopes, which are 

property of ratepayers, available for other points of view besides that of the corporation); Central Hudson 

Gas & Electric Corp. v. Pub. Servo Comm'n of New York, 447 U.S. 557 (1980) (New York rule restricting 

advertising that promotes energy consumption invalidated); Bellsouth Telecomm., Inc. V. Farris, 542 F.3d 

499 (6th Cir. 2008) (Kentucky may not prohibit corporation from stating on the customer bill that a fee that 

is to be assessed from the corporation and not passed on to consumers was a "tax" suggesting inaccurately 

that consumers paid in their bill); Allstate Ins. CO. V. Abbott, 495 F.3d 151 (5th Cir. 2007) (Texas law 

regulating advertising of auto body shops tied to auto insurers invalidated); This That & the Other Gift & 

Tobacco, Inc. V. Cobb County, Georgia, 439 F.3d 1275 (II th Cir. 2006) (Georgia ban on advertisements of 

sexual devices invalidated); Passions Video, Inc. V. Nixon, 458 F.3d 887 (8th Cir. 2006) (Missouri statute 

restricting advertisements of sexually explicit businesses invalidated); Bad Frog Brewery v. N. Y State 

Liquor Auth., 134 F.3d 87, 91 & n.1 (2d Cir. 1998) (New York regulation barring beer bottle label with 

gesture described by the Court as "acknowledged by Bad Frog to convey, among other things, the message 

'fuck you'" held unconstitutional); Int'/ Dairy Foods Assoc. V. Ames/oy, 92 F.3d 67 (2d Cir. 1996) 

(Vermont law requiring disclosure on label of dairy products containing milk from cows treated with 

bovine growth hormones invalidated); New York State Ass 'n olRealtors, Inc. V. Shaffer, 27 F.3d 834 (2d Cir. 

1994) (invalidating New York law authorizing the Secretary of State to declare "non solicitation" zones for 

real estate brokers); Sambo 's Res!., Inc. V. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981) (First 

Amendment allows corporation to break agreement with City and use name found to be deeply offensive 

and carry prejudicial meaning to African Americans); John Donnelly & Sons v. Campbell, 639 F.2d 6 (I st 

Cir. 1980) (invalidating Maine law restricting billboard pollution, even though law allowed (and paid for) 

commercial signs put up by state of uniform size at exits and visitors centers); Washington Legal Found v. 

Friedman, 13 F. Supp. 2d 51 (D.D.C. 1998) (invalidating federal law regulating drug manufacturers' use of 

journal reprints and drug corporation-sponsored educational seminars to promote off-label uses for 

prescription drugs); £quifax Services Inc. V. Cohen, 420 A. 2d. 189 (Me. 1980) (invalidating portions of 

Maine credit reporting statute as First Amendment violation). Many more such cases may be found in the 

state and federal reports. 
178 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony of Jeffrey D. Clements, Free Speech For People 

Page 9 ofl5 

agriculture, did not go so far as to ban the product but merely enacted a law requiring that 

milk products derived from cows treated with the Monsanto drug be labeled to disclose 

that information. That way, people could decide for themselves. 

The law was challenged by the industrial dairies, and was struck down as a 

violation of the First Amendment. Int'l Dairy Foods Assoc. v. Amestoy, 92 F.3d 67 (2d 

Cir. 1996). This result twisted First Amendment protections of conscience that prevent 

the government from compelling people to say what they do not believe into something 

to prevent people from knowing what corporate managers do not wish to disclose. 

Corporations, of course, do not have consciences and indeed, unlike people, do not exist 

in the absence of government action. Yet more and more corporations now misuse the 

First Amendment to advance narrow corporate interests at the expense of the public 

interest. 

The examples of corporate misuse of the First Amendment continue to increase. 

Recently, tobacco corporations have sued the United States of America and tried to use 

the corporate speech doctrine to block enforcement of the Family Smoking Prevention 

and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (Commonwealth 

Brands, Inc. et. al. v. United States of America, et. al. (W.D. Ky.»; rating agency 

corporations accused of fraud and misrepresentation in connection with the financial 

crisis have claimed immunity under the First Amendment (Abu Dhabai Commercial 

Bank v. Morgan Stanley Co. (S.D.NY»; a pharmaceutical corporation has sued the 

United States of America claiming that the federal Food, Drug, & Cosmetic Act, 21 

U.S.C. § 352(a), rules that prohibit a drug manufacturer from marketing a drug for "offlabel" uses, meaning purposes for which the FDA has not approved the drug, violate 

"corporate speech" rights (Allergan, Inc. v. United States of America, et ai, (D.D.C.); 

The Caterpillar corporation, backed by the national Chamber of Commerce, used 

"corporate speech" claims to stonewall basic information requests about the corporation's 

membership and financial dealings with the Chamber of Commerce and 33 other 

organizations, with the Chamber filing an amicus brief claiming the right to conceal that 

information based on the corporate "defendants and the Chamber's First Amendment 

Rights to freedom and privacy." (In re Asbestos Cases, 

(http://v.'Ww.uschamber.comlnclc/caselistiissues/freespeech.htm) 

Restoring Our Constitution and Republican Democracy to the People 

More than ever before, corporate money in politics corrupts and distorts our 

political and legislative process, and drowns out the voices and wishes of the American 

people. And even when a legislative victory in the people's interest occurs, armies of 

corporate lawyers go into battle to take the matter to a Supreme Court that has forgotten 

its place in the American experiment in self-government, and all too often, accedes to the 

corporate claims of immunity from regulation or control by the people. 
179 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24,2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony of Jeffrey D. Clements, Free Speech For People 

PagelOofl5 

It would be one thing if the Court's handcuffing of our ability to regulate 

corporate political money was an unfortunate but necessary price of liberty, or rooted in 

long-held Constitutional principles of free speech. We put up with views we find 

obnoxious and even repellent. We put up with rivers of crude and offensive expression in 

all media, and we tolerate every variety of dissent and opinion. That is a price we pay for 

freedom of speech. 

But the notion of comorate First Amendment rights is not about freedom of 

speech, or even about any kind of speech or expression. It is about a kind of artificial 

entity that we ourselves create and permit by legislation because we chose to do so for 

economic policy reasons. To appreciate how radical the corporate rights claim in Citizens 

United is, it helps to remember our history. 

The growing view among many people that we must restrain and control 

corporate power is not new in America and it is far from fringe. Throughout American 

history, at least until very recent times, that was the mainstream view. The American 

people have sought to keep corporate money out of elections virtually since the beginning 

of the Republic, and the root of the law struck down in Citizens United goes back to the 

1907 Tillman Act, which banned corporate political contributions in federal campaigns. 

For many years after the founding of our nation, state legislatures enacted 

corporate laws that allowed corporations, but only permitted these to be chartered for 

specific public purposes, and often limited the time period in which the corporate entity 

could operate.8 Restrictions on corporate purposes were the norm, and distrust and 

concern about the ability of corporations to grasp political power prevailed.9 

James Madison, often considered the primary author of our Constitution, viewed 

corporations as "a necessary evil" subject to "proper limitations and guards."l0 Thomas 

Jefferson hoped to "crush in its birth the aristocracy of our moneyed corporations, which 

dare already to challenge our government to a trial of strength and bid defiance to the 

laws of our country." 11 These views prevailed among Americans through the decades. 

Until recently, it was presidents and our leaders as much as those outside of politics who 

were vigilant about corporate power. 

HANDLIN & HANDLIN, supra note 15, at 106-33; Louis K. Liggett Co. v. Lee, 288 U.S. 517, 548-

60 (1933) (Brandeis, J., dissenting). Justice Brandeis's dissenting opinion comprehensively documents the 

development of the corporation in America. See Liggett, 288 U.S. at 548-67. 

9 Liggett, 288 U.S. at 549; Head & Amory v. Providence Ins. Co., 6 U.S. 127, 166-67 (1804) 

("corporation can only act in the manner prescribed by law"). 

10 WRITINGS OF JAMES MADISON, VOL. 9 (Gaillard Hunt ed., G.P. Putnam's Sons, 1900), To J.K 

Paulding, http://oll.libertyfund.orgltitleI1940/119324 (last visited July 22, 2009). 

11 University of Virginia, Favorite Jefferson Quotes, Thomas Jefferson Digital Archive, To George 

Logan, http://etext.virginia.eduljefferson/quotations/jeff5.htm (last visited July 22 2009). 
180 

United States Senate Committee on the Judiciary 

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July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony ofjeffrey D. Clements, Free Speech For People 

Page 11 of 15 

President Andrew Jackson warned of the partisan activity of the second Bank of 

the United States corporation: "[T]he question is distinctly presented whether the people 

of the United States are to govern through representatives chosen by their unbiased 

suffrages or whether the money and power of a great corporation are to be secretly 

exerted to influence their judgment and control their decisions.,,12 President Martin Van 

Buren warned of "the already overgrown influence of corporate authorities.,,13 Later, 

President Grover Cleveland in his 1888 message to Congress said, "Corporations, which 

should be the carefully restrained creatures of the law and the servants of the people, are 

fast becoming the people's masters.,,14 Theodore Roosevelt successfully called on 

Congress to enact federal restrictions on corporate political contributions, stating: "Let 

individuals contribute as they desire; but let us prohibit ... all corporations from making 

contributions for any political purpose, directly or indirectly.,,15 

Usually, the Supreme Court, with significant exceptions and deviations from time 

to time, respected this American consensus. Since the beginning of the Republic, the 

Court has affirmed that elected governments of the states and nation may regulate, in an 

even-handed manner, "the corporate structure" because governments create that structure. 

Dartmouth College described the corporate entity as "an artificial being ... existing only 

in contem~lation oflaw," and created only for such "objects as the government wishes to 

promote." 6 The Court brought this understanding of the corporation to other 

Constitutional provisions, such as diversity jurisdiction under Article III and the Judiciary 

ActS. 17 In the Founders' era and beyond, the Court considered state citizenship of 

shareholders rather than the corporation itself to determine whether people who formed 

corporations could enter the federal courts in the corporate name. 18 The Court eventually 

12 Andrew Jackson, 1833 Annual Message to Congo (Dec. 3. 1833) (transcript available at the 

University of Virginia, Miller Center of Public Affairs. 

http://millercenter.orglscripps/archive/speeches/ detail/3 640). 

13 Martin Van Buren, 1837 Annual Message to Congo (Dec. 5,1837) (transcript available at the 

University of Virginia, Miller Center of Public Affairs, 

http://millercenter.org/scripps/archive/speeches/detaiIJ3589). 

14 Grover Cleveland, 1888 Annual Message to Congo (Dec. 3, 1888) (transcript available at the 

University of Virginia, Miller Center of Public Affairs, 

http://millercenter.org/scripps/archive/speeches/detai1!3 758). 

IS Theodore Roosevelt, 1906 Annual Message to Congo (Dec. 3, 1906) (transcript available at the 

University of Virginia. Miller Center of Public Affairs, 

http://millercenter.org/scripps/archive/speeches/detaiIi3 778). 

16 17 U.S. at 636-637. 17 Article III provides "The judicial Power shall extend ... to Controversies ... between Citizens of 

different States .... " U.S. CONST. art III, § 2. 

18 Bank o/the United States v. Deveaux, 9 U.S. (5 Cranch) 61, 86 (1809) (corporation is a "mere 

legal entity ... not a citizen"); Hope Insurance CO. V. Boardman, 9 U.S. (5 Cranch) 57,58 (1809); Sullivan 

V. Fulton Steamboat Co., 19 U.S. (6 Wheat.) 450 (1821); Breithaupt v. Bank o/Georgia, 26 U.S. (1 Pet.) 

238 (\828); Commercial & Railroad Bank o/Vicksburg v. Slocomb, 39 U.S. (14 Pet.) 60 (1840). 
181 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony ofJeffrey D. Clements, Free Speech For People 

Page 12 of 15 

bowed to expediency and overruled these cases, developing a shortcut strictly limited to 

diversity jurisdiction. 19 

In Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839), and Paul v. Virginia, 

75 U.S. 168 (1868), the Court refused to extend "special treatment" for corporations to 

the protection of citizen rights under the Privileges and Immunities Clause of Article IV. 

Repeatedly, the Court has held that corporations are not citizens under that clause, nor 

under the Privileges or Immunities Clause of the Fourteenth Amendment.2o 

As the Industrial Revolution gathered pace, the Court maintained with clarity that 

"[t]he only rights [a corporation] can claim are the rights which are given to it in that 

character, and not the rights which belong to its members as citizens of a state .... ,,21 The 

Court did not examine the Constitution to determine rights "given to it in that character" 

because the Constitution does not create corporate rights. In upholding corporate 

contracts outside the place of incorporation, Bank of Augusta declined to rest on any 

Constitutional provision, instead applying the law that created the corporation, the law of 

the state where the corporation wished to enforce a contract, and "comity.,,22 

While the increasingly dominant role of corporations in the American economy 

did not go unnoticed by the Court, most Justices did not see any grounds for infusing that 

development with Constitutional significance.23 By 1868, corporations had "multiplied to 

an almost indefinite extent. There is scarcely a business pursued requiring the 

expenditure of large capital, or the union of large numbers, that is not carried on by 

19 Carden v. Arkoma Associates, 494 U.S. 185, 197 (1990) ("special treatment for corporations."). A 

thorough discussion of diversity jurisdiction corporate "citizenship" is beyond the scope ofthis testimony. 

In short, Louisville Railroad Co. v. Letson, 43 US (2 How.) 497, 557-558 (1844), decreed that a corporation 

"is to be deemed" a citizen of the state of its creation. 43 U.S at 557-8. Nine years later, the Court 

followed Letson but reiterated that "an artificial entity cannot be a citizen," and "State laws by combining 

large masses of men under a corporate name, cannot repeal the Constitution." Marshall v. Baltimore and 

Ohio Railroad Co., 57 U.S. (16 How.) 314, 327 (1853) (quotation and citation omitted). The Court soon 

began simply to treat "a suit by Or against a corporation in its corporate name, as a suit by or against 

citizens of the State which created the corporate body .... " Ohio and Mississippi Railroad Co. v. Wheeler, 

66 U.S. 286, 296 (1861). The Court confined this doctrine to diversity jurisdiction, and it has never been 

defended with enthusiasm for its soundness. See Carden, 494 U.S. 185. See also Frankfurter, Distribution 

of Judicial Power between United States and State Courts 13 CORN. L. Q. 499, 523 (1928). 

20 ld.; Pembina Can. Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 181 (1888); Asbury 

Hasp. v. Cass County, 326 U.S. 207 (1945). Note that an unrelated part of Paul was overruled by United 

States v. South-Eastern Underwriters Ass 'n, 322 U.S. 533 (1944). 

2J Bank of Augusta, 38 U.S. at 587. 

22 3 8 U.S. at 586-590. 23 But see McConnell, 540 U.S. at 257-258 (Scalia, J. dissenting); compare liggett, 288 U.S. at 548 

(Brandeis, J., dissenting) ("The prevalence ofthe corporation in America has led men ofthis generation to 

act, at times, as if the privilege of doing business in corporate fonn were inherent in the citizen; and has led 

them to accept the evils attendant upon the free and unrestricted use of the corporate mechanism as if these 

evils were the inescapable price of civilized life, and, hence, to be borne with resignation.") 
182 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony of Jeffrey D. Clements, Free Speech For People 

Page 13 of 15 

corporations. It is not too much to say that the wealth and business of the country are to a 

great extent controlled by them.,,24 Despite this recognition, the Court denied the claim of 

corporations to the privileges and immunities of citizenship, as a corporation is "a mere 

creation of local law.,,25 

The Court - with exceptions during the substantive due process era characterized 

by Lochner v. New York, 198 U.S. 45 (1905), overruled by Day-Brite Lighting Inc. v. 

Missouri, 342 U.S. 421 (1952) - continued through most of the twentieth century to 

distinguish between the rights of people and corporations. In Asbury Hospital, for 

example, the Court, citing numerous cases and without dissent, rejected a Constitutional 

challenge to a state law re~uiring corporations holding land suitable for farming to sell 

the land within ten years.

2 Five years later, the Court again emphasized the "public 

attributes" of corporations in turning aside corporate privacy claims: 

[C]orporations can claim no equality with individuals in the enjoyment of 

a right to privacy. They are endowed with public attributes. They have a 

collective impact upon society, from which they derive the privilege of 

acting as artificial entities.27 

The Court has recognized, in a limited fashion, assertions of corporate rights 

under the Fourth Amendment.28 As the Court has observed, however, a corporation has 

lesser Fourth Amendment rights because: 

Congress may exercise wide investigative power over them, analogous to the 

visitorial power of the incorporating state, when their activities take place within 

or affect interstate commerce. Correspondingly it has been settled that 

corporations are not entitled to all of the constitutional protections which private 

individuals have in these and related matters.29 

Accordingly, "it cannot be disputed that the mere creation of a corporation does not 

invest it with all the liberties enjoyed by natural persons .... ,,30 

24 

2S 

26 

27 

Paul, 75 U.S. at 181-182 

Id. at 181. 

326 U.S. 207. 

United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (citations omitted). 

28 See infra. Part II; Carl Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 

41 Hastings LJ. 577, 664-667 (1990); GM Leasing Corp. v. United States, 429 U.S. 338, 353 (1977) 

(corporations have "some Fourth Amendment rights"). 

29 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186,204-205 (1946) (footnotes omitted). 

30 First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 823 (1978) (Rehnquist, J. dissenting) citing 

United States v. White, 322 U.S. 694, 698-701 (1944). See also Northwestern Nat. Life Ins. Co. v. Riggs, 

203 U.S. 243, 255 (1906) ("The liberty referred to in that [Fourteenth] Amendment is the liberty of natural, 

not artificial, persons.") 
183 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

Testimony of Jeffrey D. Clements, Free Speech For People 

Page 14 of 15 

Justice Rehnquist closed his dissent in First Nat. Bank of Boston v. Bellotti, 435 

U.S. 765 (1978), by saying "[I] regret now to see the Court reaping the seeds that it there 

sowed [referring to the early corporate speech cases]. For in a democracy, the economic 

is subordinate to the political, a lesson that our ancestors learned long ago, and that our 

descendants will undoubtedly have to relearn many years hence." 

That day has come, and Congress and the States now are considering several 

worthwhile initiatives to address the Court's egregious error in Citizens United - public 

funding of elections, stronger disclosure requirements, and shareholder and governance 

reform, among others. As with so many previous challen£es to democratic selfgovernment, however, Citizens United also requires a 28 Constitutional Amendment to 

correct the Court, restore republican democracy to the people, and allow Congress and 

the States to regulate campaign spending. 

A Constitutional Amendment to Defend Our Democracy 

As discussed above, Citizens United presents two serious threats to our Republic: 

the threat presented by a fabricated doctrine of corporate constitutional rights and the 

threat presented by big money dominance of our elections. It is critical that we now use 

our Article V powers under the US Constitution to enact an amendment or amendments 

that will address both problems. 

Of the 13 amendment bills currently pending in Congress, Free Speech For 

People strongly endorses the following two bills: 

H. J. Res. 88, introduced in the House by Rep. Jim McGovern (D-MA), and: 

The bicameral companion pair S.1. Res. 291H.1. Res. 86, introduced in the Senate 

by Sen. Tom Udall (D-NM) and in the House by Rep. Betty Sutton (D-OH). 

H.J. Res. 88 (McGovern) is the most effective amendment bill for addressing the 

problem of the fabricated doctrine of corporate constitutional rights. First, it states 

clearly that corporations do not have constitutional rights as if they were people, fully 

refuting the claim to the contrary at the core of Citizens United. Second, it does so evenhandedly, applying equally to all corporations, be they for-profit, non-profit, or 

incorporated labor unions. Third, it already enjoys bi-partisan support, with the cosponsorship of Rep. Walter Jones (R-NC), along with dozens of Democratic co-sponsors. 

It is one of only two amendments among the 13 pending bills that have bipartisan support 

today. 
184 

United States Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights, and Human Rights 

July 24, 2012 

Hearing on Constitutional Amendment Proposals to Overturn 

the US Supreme Court's Citizens United Ruling 

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

Page 15 of 15 

S .. .1. Res. 29 (Udall)/H .• T. Res. 86 (Sutton), a companion pair, would restore the authority 

of Congress and the States to regulate campaign spending. This amendment would 

effectively overturn the US Supreme Court's 1976 ruling in Buckley v. Valeo which 

equated money with speech and struck down mandatory campaign spending limits passed 

by Congress in the wake of the Watergate scandal. The Udall/Sutton amendment bill 

would allow Congress and the States to enact campaign spending limits, including limits 

on independent expenditures, ending the corrupting influence of big money in our 

political process and ensuring that all Americans, regardless of their economic status, will 

have an equal voice in our elections. 

The attached grid provides a comparison of all of the pending amendment bills in 

Congress and highlights further our reasons for endorsing the McGovern bill and 

Udall/Sutton bill. While it would be ideal to have the elements of both of these bills 

combined into one amendment bill, it is important that, if they are to remain separate, 

they both advance forward to ensure the most comprehensive and effective response to 

the threats posed to our democracy by Citizens United and related rulings. 

Americans have amended the Constitution repeatedly to expand democratic 

participation of people in elections. Most of the seventeen amendments that followed the 

ten amendments of our Bill of Rights were adopted to eliminate barriers and strengthen 

democracy for everyone.' Seven of our amendments overruled egregious rulings of the 

Supreme Court. We can and we must do that again to preserve our Republic and to 

protect that basic American promise: government of, for, and by the people. 
A comparison of Constitutional Amendment bills responding to Citizens United in the 112'" Congress 

Free Speech For People endorses H.J. Res. 88 (McGovern) and S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton). 

Sill numher and I Has hi- i States that ! Restores Treats Restores Restores I Addresses other matters 

principal sponsor partisan 1 corporations authority of authority of authority of (specified in cells below)

I do not have Congress ated labor Congress and Congress and 

sorship. 1 constitutional and states to unions, states to limit states to limit 

rights. limit campaign non profits, campaign campaign 

(Overturns I spending by and spending in all spending in some 

Citizens United 1 corporations. profit categories. categories. 

entirely.) I (Overturns corpora- (Overturns ! (Overturns part 

part of Citizens nons Buckley on i of Buckley.' 

United., equally. spending limits 

Bills relating to the claim " 

H. J. Res. 88: Rep. ! Rep. 1m I nla IYES INO I NO I nla 

Jim McGovern (O-MA) I Walter 

Bills relating to campaign finance' 

S.l. Res. 29: Sen. NO NO NO 

I Tom Udall (D-NM)* nla YES nla nla I H. J. Res. 86: Rep. NO NO NO ........... j YES nfa nla 

Betty Sutton (O-OH)* 

S.l. Res. 35: Sen. NO NO YES I YES NO NO nla 

M.x Boucus (O-MT) 

H. J. Res. 78: Rep. I NO NO YES j YES NO NO nla 

Edward:'..(l):MI2l...L __ .• _ ._ •.•• _. 

*: Dotted lines between rows indicate companion hills across chambers. 

Table compiled by Free Speech For People, 2366 Eastlake Ave. East, Suite 311, Seattle, WA 98102, 206-723-1941, contact@Jfreespeechforpeople.org 

Page 1 of 2 
A comparison of Constitutional Amendment bills responding to Citizens United in the 112'" Congress 

Free Speech For People endorses H.J. Res. 88 (McGovern) and S,J. Res. 29 (Udall) / H,J. Res. 86 (Sutton). 

Bill number and Has bi- \5t3tes that \ Restores Treats Restores Restores [AddreSses other matters 

principal sponsor partisan I corporations I authority of incorpor- authority of authority of (specified in cells below). 

cospon- I do not have Congress ated labor Congress and Congress and , 

sorship. constitutional and states to unions, states to limit states to limit I 

rights. limit campaign nonprofits, 1 campaign campaign 1 

(Overturns spending by and for- spending in all spending in some! 

Citizens United corporations. profit categories. categories. 

entirely.) {Overturns {Overturns (Overturns part 

part of Citizens lions Buckley on of Buckley.) 

United.} j equally. spending limits 

________ "_ ___ ___

H.J. Res. 92: Rep. NO NO YES NO NO nfa 

Keith Ellison (D-MN) 'fli. Res. 97: Rep. Rep. NO NO nfa YES nfa • Clarifies Congressional a

John Yarmuth (D-KY) Walter enact mandatory public 

Jones elections; 

(R-NC) • Establishes a national ho

the purpose of voting, 

H.J. Res. 8: Rep_ NO NO NO nfa YES nfa nfa 

Marcy Kaptur (D-OH) 

H.l. Res. 72: Rep. NO NO NO nfa NO YES nfa 

Kurt Schrader (D-OR) H:J: Res. 100: Rep. NO NO NO nfa YES** nla • Establishes mandatory f

Dennis Kucinich (D-OHI I funding of federal electi

I **: Applies only to federa

silent on state authority t

spending on state election

H.J. Res. 111: Rep. NO NO NO nfa NO YES • Clarifies Congressional a

Adam Schiff (D-CA) enact full or partial pub

of elections, 

*: Dotted lines between rows indicate companion bills across chambers. 

Table compiled by Free Speech For People, 2366 Eastlake Ave. East, Suite 311, Seattle, WA 98102, 206-723-1941, contact@freespeechforpeople.org 

Page20f2 
187 

4(41 

The Law Offices of Chris Heagarty, PLLC 

13200 Strickland Road, Suite 114 # 299 Raleigh, North Carolina 27613-5212 

(919) 818-5324 

Testimony of 

Hon. Chris Heagarty 

Former N.C. State Representative 

&=$& 

Former Executive Director, N.C. Center for Voter Education 

Before the 

Senate Hearing on Citizens United / Super PACs 

July 24, 2012 

44k 

My name is Chris Heagarty and I am a former member of the N.C. House of 

Representatives and the former Executive Director of the North Carolina Center for Voter 

Education. The N.C. Center for Voter Education is a non-partisan nonprofit organization, led 

by former elected officials and civic activists, and made up of Republicans, Democrats, and 

unaffiliated voters who want to improve the quality and responsiveness of our government 

and elections system. We were one of the architects of North Carolina's public campaign 

financing program for our judges and constitutional officers, as well as our state's 

nonpartisan voting guide and numerous important pieces of legislation promoting 

transparency, disclosure, and openness in government. 

My purpose today is to share with you my experience, and those of my fellow 

legislators in North Carolina, as we found ourselves under attack by a campaign of several 

hard-hitting, coordinated, negative attacks all funded through so called "independent 

expenditures" and electioneering communications. Many established and legitimate 

organizations, of all political philosophies, engage or have announced their intent to engage, in 

independent advocacy efforts designed to promote their specific political viewpoint. To those 

groups, whether they are business groups or trade unions, advocates for second amendment 

rights or reproductive rights, or wherever they are on the political spectrum, Constitutional 

rights to political expression have long been recognized. It is not my intent to suggest any 

restraint of these rights. I am here today to warn of blatant political electioneering that occurs 

under the masquerade of legitimate issue advocacy and independent political expression. 

Specifically, I would like to address political activity created by groups that are created with 

no other purpose but to influence elections and that purposefully conceal the identity of their 

Page I of7 
188 

funders from the public, and the problems created by such anonymity. This type of activity 

has been with us since before the Citizens United decision, but that decision by the Supreme 

Court has opened a flood-gate of new money into these types of efforts and emboldened those 

who might have previously been reluctant to engage in such tactics. We are on the brink of a 

new political arms race where cash, not principles, will determine the winners. 

There are those that ask is money not just a tool to amplify speech, and is free and open 

speech not what our government is founded upon? There are those that believe unregulated 

political speech is a noble end, one that promotes rational discourse and enlightened debate. 

There are also those who believe in the tooth fairy. That is to say, we need open and honest 

debate in our political system. But the current system of how our campaigns communicate 

with voters is not open and it is becoming increasingly less honest. The side with more money 

has more speech and drowns out the other side. Thus, debate is not open. Nor is the debate 

honest, not merely as to the claims being stated but even as to who is actually making the 

claims printed or broadcast in many political advertisements. 

Many voters believe, no matter how incorrectly, that candidates and interest groups 

simply cannot say things about us that are untrue. They believe that there is some legal 

protection out there to save us from false and misleading advertising and that if these attacks 

aren't true then maligned candidates can just sue and restore justice. This is simply not true as 

our First Amendment protections on political speech create exemptions for otherwise 

defamatory language. The price we pay to protect our citizenry from a government that can 

punish you for what you say is that we must tolerate malicious, misleading, or untrue true 

political speech when it occurs and hope that voters can be filter through it to find the truth. 

While extreme legal protections have been reserved to guard against the possibility that 

legitimate political expression might be chilled, recent court rulings protect and may actually 

encourage more uncivil political discourse, defamatory communications, and voter 

disinformation by affording a level of anonymity to entities that want to influence elections. 

Let us be clear: you can lie about a candidate without any legal sanction. The only defense 

most victims of willful and malicious lying had was that the liar could be held accountable and 

judged by the voters once the lie was exposed. However, when the liar is anonymous, even 

this protection evaporates. This legally protected anonymity creates a barrier to accountability 

and transparency so that voters are not informed of the identity of political actors and are 

therefore unaware of the possible bias and motivations of those funding destructive political 

communications. Much as the shield of anonymity empowers rogue bloggers to slander and 

allows cruel teenagers to torment each other on social media sites, many of these 

"independent" political actors can launch defamatory political attacks behind the shield of 

artificial corporations and shell organizations with no purpose other than to influence 

elections, and escape any judgment or accountability for their actions. 

PageZ of7 
189 

A powerful deterrent against untrue advertising is that voters find it distasteful and 

those who engage in it may incur the wrath of voters who will not tolerate being lied to. That 

deterrent, however, is effectively neutralized when voters do not know who is responsible for 

inaccurate information, such as when political actors can act from behind a curtain of 

anonymity and not be held accountable for their claims. 

Likewise, while many of us who serve, or who have served, in public office know that 

we will have to work with those on the other side of the aisle and most of us try to follow some 

code of decorum and respect for our colleagues, no such honor or code exists when it comes to 

electioneering by many of these so-called "independent expenditure" entities, and their teams 

of hired-gun campaign consultants, who often jet in from out of state, launch their attacks, and 

disappear again and don't have to live with the consequences of their actions. Ads that would 

be abhorrent to many of those that serve, or who want to serve, in the legislature are often run 

without the knowledge or consent of those candidates. Candidates that might reject such 

tactics themselves may nevertheless find themselves the beneficiaries of independent 

expenditure efforts. Or worse, they might be held accountable and suffer political damages for 

attacks which they never would have condoned. 

The good news is that a number of states have had the foresight to enact very strong 

disclosure laws in the wake of Citizens United decision. The bad news is that the direction of 

the United States Supreme Court threatens those reasonable steps, overturning state solutions 

and even recently going so far as to tell states that what appears to be the appearance of 

impropriety and corruption in Montana according to the Montana Supreme Court, simply 

isn't. 1his leaves the states and our local government unprepared for the tens or hundreds of 

millions that may be spent influencing voters, with few options for requiring transparency or 

accountability. 

In 2010, in my state, many different interests all carne together, some of them from out 

of state, to overthrow our House and Senate, giving the Republican Party control for the first 

time since the 1800's. However, despite numerous actors ultimately involved, primary credit 

should be given to one individual, who envisioned, organized, and funded the electioneering 

infrastructure that made this all possible. Funding a campaign that fell outside most of our 

campaign finance laws, this former member of our State House, who was the heir to his 

father's wealth and fortunes, created a web of organizations, from charitable non-profits to 

501(c)4 advocacy groups, 527 electioneering organizations and corporate donors to overturn 

the legislature on the cusp of our decennial redistricting. 

Now, if you're a Republican, you likely don't see the Republican takeover of both 

legislative chambers as a bad thing. Why would you? A healthy turnover can be a good thing. 

What you should know is that, before the independent expenditure campaigns of our 2010 

Page 3 of7 
190 

elections, there was a test-run, where this same individual exploited "issue advertising" 

campaigns against his fellow Republicans. 

This same individual, just a few years before, decided that many of the state's senior 

Republican legislators were not "pure" enough, and purged them in nasty primaries filled 

with attack ads that exploited the margins of our campaign finance laws and sent home those 

Republican legislators who did not comport to the model of what he thought a Republican 

legislator should be. Who should say what that model Republican legislator is? The 

Republican voters who have loyally supported home-town civic leaders for several tenns that 

have worked hard for their districts? Or a Raleigh millionaire and fonner politician in a new 

role, as puppet-master, recruiting his own loyal cronies and politically assassinating those, 

Democrats and Republicans, who disagree with his narrow vision of North Carolina's future? 

In defense of this purge, you might be told that it was the voters in the districts of these 

ousted Republicans, not anyone person, who turned these Republican incumbents out of 

office. You might be told that it was an infonned and motivated electorate who desired a 

change and who simply expressed their preferences at the ballot box. Yet, these same voters 

held these ousted lawmakers in high regards, until the independent attacks came, distorting 

the incumbents' voting records and painting them in a defamatory light. Before the attacks, 

these were respected lawmakers. After the attacks they were seen as pariahs within their own 

party. Why did these voters tum on their fonner representatives? They were largely 

influenced by the "infonnation" sent to them by the independent expenditure groups and 

527's which, while shockingly negative, was accepted as factual by many voters because these 

same voters finnly believe that that these groups "couldn't say it if it wasn't true." 

One man may not be able to buy a legislature, but one man, if he is a millionaire and 

has the financial means of a large corporation behind him to do so, can be the catalyst that set 

in motion a huge influx of secret money, corporate money, and out of state money, that sent 

into retirement dozens of North Carolina House and Senate members. 

Let me state for the record that there is no proof of any illegal activity that occurred in 

any of this electioneering. Let me also state that the rights to contribute to candidates and to 

express one's viewpoints are clearly protected by our Constitution. Now it seems these rights 

have been extended to artificial corporate constructs and not simply the citizenry. Our United 

States Supreme Court has equated political spending with political speech and zealously 

protects the rights of individuals, and now corporations, to political expression. Though this 

may seem to create an inequality of political influence and political worth from citizen to 

citizen, it is the law. While I may not like the political choices made by millionaire Art Pope in 

how he has chosen to spend his money, and his corporation's money, and the tactics he and 

Page 4 of7 
191 

his agents have chosen to use as they spend this money, our courts recognize and uphold his 

right to spend it. 

However our courts have also recognized the compelling state interest served by the 

disclosure of political spending and transparency in attempts to influence our elections. It is 

here that I think North Carolina's voters were denied and where I believe the real wrongdoing was committed in these elections. Here is how Citizens United foils the few protections 

that were left to provide some measure of transparency in elections and some way for voters to 

hold political actors accountable for their communications. 

Let me explain how this worked: 

Art Pope, the millionaire and former state house member, could contribute to the 

campaigns of candidates he supported just like any citizen under our state law. Individuals 

are limited to donations of no more than $4,000 per election cycle per candidate. In my race, he 

gave $3,000 to my opponent, and found three other family members to also give $3,000, for a 

total of $12,000 to my opponent. 

However, his influence did not stop there. Using his family'S charitable foundation he 

was able to fund organizations he created that would conduct political research, on political 

issues and messages, and share it with candidates he supported by injecting it into the public 

domain, thereby avoiding any in-kind contribution reporting or coordination restrictions. 

Whether posting the information behind links to seemingly outdated articles or other lowtraffic areas of an organization's website is truly injecting into the public domain is a matter of 

debate but one which went unchallenged. Candidate training seminars and conferences on 

political messaging also benefitted like-minded candidates. Though valuable, this type of 

activity was of indirect aid to the candidates he supported, and is duplicated by other 

organizations. 

More significant was the creation of various 527 electioneering organizations that were 

created expressly for the purpose of influencing that year's legislative elections, but which 

were described as promoting issues of importance to voters. One of the newly created 

organizations, Real Jobs NC, Inc., spent over $45,000 against me by running negative and, in 

several cases, factually inaccurate attacks by direct maiL Another group, the Civitas Action 

organization, added another $25,000 in reported spending against me. A third group, the state 

chapter of Americans for Prosperity, spent another $21,000 in support of my opponent. The 

first of these groups was created by Pope, the second spun out of a charitable non-profit 

created and funded by Pope and was itself funded by Pope, and the third was the state chapter 

of a national organization, which received significant funding by Pope. The heavy funding 

Page 5 of7 
192 

that three organizations received carne from Variety Wholesalers, the corporation that owned 

the Pope family's chain of discount retail stores. 

Between Art Pope's personal contributions, family contributions, and the corporate 

contributions from his family business, over $92,000, that can be tracked, was spent against me 

in my election by Pope. Studies tracking his spending reveal at least $2.2 million, directly 

attributable to him and his corporation, that was spent on directly influencing our state 

elections. This does not account for any influence spent on polling, message research, and 

candidate training provided through his charitable enterprises. Nor does it include an 

extensive amount of additional private and corporate money that was solicited by Pope's 

agents and funneled through these organizations. 

The Democratic leadership never saw it corning. These millions of dollars did not 

appear in any of the candidate committees of the Republican leadership, other than Pope's 

personal contributions. Only his personal contributions appeared in the campaign disclosures 

of the state Republican Party. None of the millions appeared in the regularly disclosed 

political action committee reports of any business or industry groups. This was an off-book 

cornucopia of political funding that was purposefully raised and distributed through a 

network of shell organizations with no other purpose but to influence election outcomes. But 

because the method for influencing these elections was to link candidates to unpopular, 

sometimes inaccurate or just untrue, positions on issues, this spending escaped the disclosure 

expected of other political actors in our state. 

Couldn't these attacks be refuted? Couldn't these attempts be matched? Only if the 

attacked candidates had the resources to defend against them, and few had the financial ability 

equal to what had been aggregated behind these multiple political vehicles. What could a 

candidate do when he or she was attacked, not just by a negative claim, a distorted vote, or an 

allegation of wrong-doing but with factually untrue information? Who is accountable? Does 

the new corporate entity which now directs political action and spends millions of dollars to 

express it own political opinions, whatever opinions that corporation might have, have any 

accountability? Can it be sued? Can there be any recovery? Or is it simply a legal construct, a 

shield that protects the true funders of the speech from any liability or civil action, even in the 

few cases where negative advertising does cross the line into actual defamation? 

Attacks in direct mail used against me claimed I had voted for a billion dollars in pork 

barrel spending as part of the 2009 state budget. That could be an effective attack against me 

and my voting record, and one voters might have a legitimate need to know. Except that I 

wasn't even in the legislature during the 2009 budget session and could not have voted on the 

budget, yea or no, because I wasn't a state representative yet. How do I respond to that 

without the campaign war chest of these assembled corporations and millionaires? Voters had 

Page 6 of7 
193 

access to disclosure legends, sometimes printed upside down, that told them that these attacks 

were funded by groups with names like Real Jobs, NC. Our state law says that 527 groups 

must go a step farther and further identify significant funders of these kinds of electioneering 

attacks. Yet under Citizens United, with corporations freely spending on direct advocacy, and 

corporations being created merely for the purpose of direct advocacy, the "funders" were 

often newly created organizations with little or nothing to identify them, with names such as 

"ReaIChange.Org" or other 527 organizations, non-profits, or shell groups. The web of money 

from a funder through one organization through another and then through another became so 

complex that I was once approached shortly after my defeat by a donor to one of these groups, 

a very significant donor, who shared his regret that I had lost my race. When I asked him 

about his organization's funding of attacks against me he expressed genuine surprise and 

disbelief, claiming that his organization wasn't even active in state elections. Only when I 

produced the IRS records months after the elections did I receive an apology and a statement 

that even he did not that this is how his money was being spent. 

In closing, money has and always will be part of our elections process so long as money 

is necessary to communicate with voters. However, voters are entitled to know who is paying 

to influence their elections so that they can make their own independent and informed choices 

about whether to accept or reject the political messages that bombard them. Clearly votes 

need to be educated to learn that, yes, political organizations can, and do, often say things that 

are not true, and are allowed to get away with it. Yet, the ability of states and local 

governments to enact and enforce even the most basic disclosure laws that promote 

transparency and accountability in electioneering are threatened by recent rulings by our 

United States Supreme Court. In North Carolina we thought we had adequate protections in 

place that would give voters the information they needed to scrutinize and evaluate the 

political mailings they received. We thought we had done a good job of requiring the types of 

disclosure needed to reveal who was behind the electioneering in these types of political 

communication. As you have seen, we were wrong. As you move forward, I hope you will 

keep in mind the kinds of electioneering that took place in North Carolina and work for a 

solution that allows states to protect and preserve the transparency and accountability in their 

own election laws. 

Page 7 of7 
194 

RICK HUBBARD - MBA, JD 

July 13, 2012 

Senator Patrick J, Leahy 

Chairman, U.S. Senate Committee on the Judiciary 

437 Russell Senate Bldg 

United States Senate 

Washington, DC 20510 

Senator Dick Durbin 

US Senate Committee on the Judiciary 

Chairman, Subcommittee on the Constitution, Civil Rights and Human Rights 

224 Dirksen Senate Office Building 

Washington, DC 20510 

RE: Testimony of Rick Hubbard of South Burlington, Vermont for the record at the July 17'h, 

2012 Hearing on Citizens United Constitutional Amendment Proposals. 

Honorable Senators, 

I submit this testimony on behalf of myself, on behalf of tens of thousands of Vermonters, and on behalf 

of tens of millions of like minded U.S citizens. 

As you hold hearings on constitutional amendment proposals related to Citizens United we urge you NOT 

to look at the Citizens United issue narrowly. 

Much evidence in our recent political history documents that our entire political process today - the way 

we conduct our elections, the way we finance candidates, and the way Congress and other branches of our 

government enact law. regulation and policy - does not. on balance. serve the best mediwn and long tenn 

interests of the majority of U.S. citizens. Rather than engage here in the involved task of documenting this 

evidence, we ask you to take judicial notice of it. 

Thus we urge you to consider very broadly and in depth the root causes which underlie this result, to 

propose an amendment or amendments to our U.S. Constitution which will rectify these problems, to 

submit them for further discussion and approval by two-thirds of both houses of Congress and to then 

further submit them for ratification by the legislatures of three fourths of the several states as set forth 

in Article V of said Constitution. 

I am a seventy year old native Vermonter with an excellent graduate level education in two disciplines; 

law, and business and economics. Though now retired, the majority of my professional life has been spent 

working as an attorney, though formerly I worked as an economic consultant. I have a keen lifetime 

interest in public policy and in making our political system work effectively. 
195 

In this latter regard, this past winter I organized an effort to collect petitions in my city of South 

Burlington in support of statewide efforts which resulted in voters of 64 Vermont towns and cities passing 

resolutions urging our Vermont congressional delegation and the U.S. Congress to propose legislative or 

congressional action to address the issues raised by Citizens United. 

In my city of South Burlington alone, the consensus of the 43 petition gatherers of almost 1,000 South 

Burlington signatures is that a proportion even greater than 9 out of every 10 persons approached, wanted 

to sign. This percentage of support is huge and it crosses all ideological lines. Similar results were 

reported in practically every Vermont community that addressed this issue. All of us are affected, whether 

we are conservative, moderate, liberal or progressive. 

In my personal experience, I've never seen an issue resonate more with voters. 

In addition I organized a gathering on Thursday, Feb. 23,d of this year in which a wide variety of 

individuals and organizations from around Vermont met in South Burlington's City Hall. There, more 

than 50 of us from many Vermont organizations, leaders from many Vermont towns, concerned citizens 

and Vermont State Directors for both Senator Leahy and Rep. Welch, discussed the components of a 

complete fix of the widely perceived problem that, nationally, our democratic process fails citizens by 

tipping law, regulation and policy in ways that often benefit the interests of wealthy campaign 

contributors and members of Congress rather than the interests of most Americans. 

Discussion participants listed the following as among the major components of a complete fix, all of 

which together would likely result in a democratic process that much better reflects the overall interests of 

the American people: 

• Complete public finanCing of our federal elections, crafted in a way that allows virtually all U.S. 

citizens to have a meaningful say in who qualifies to access finances to spread their message more 

broadly. 

• Much shorter federal election periods. 

• Free and equal access to our public airways for candidates during the election period. 

• A process by which voting citizens exert the primary influence on elcction outcomes, which 

requires restraining the influence of corporations and all other outside organizations. 

Participants also concluded that reform efforts should not be side-tracked by partial, incomplete solutions 

which might result in an improvement without resolving the major underlying problems. 

The 2002 McCain-Feingold law is an example of this. As you know, it attempted to limit the influence of 

outside ~'soft money" from organizations as well as "issue advocacy ads" during e1ection periods. During 

the two-year 2000 Federal Election Cycle, this "soft money" amounted to only about 17-18% of the total 

$2.9 billion election cost. 

But before, during, and after McCain Feingold, evidence suggests that the reform offered by this law 

failed to substantially correct the underlying problems. 

The recent Citizens United decision from our U.S. Supreme Court effectively voided most of McCainFeingold, thus re-opening the floodgates for outside money to again hugely influence campaigns in even 

larger amounts. In reaching its conclusions our Supreme Court focused on the right of citizens to be able 

to hear political speech from others without distinguishing the opposite - that with enough money, a 

wealthy person may, in effect, purchase a much bigger megaphone than most of the rest of us, to amplifY 
196 

their speech and repeat it over and over in the national media, effectively overwhelming and drowning out 

our free speech, i.e. the speech of most of the rest of us. 

Across our country, millions of U.S. citizens perceive this result as wrong, unfair and extremely damaging 

to our country's democracy. 

Tellingly, of those participating at our February 23rd gathering, not a single person believed that a 

constitutional amendment simply reversing the effects of Citizens United would resolve the broader 

underlying problems. We support a solution that may include this, but to be effective in resolving the 

issues negatively affecting our current democracy and political process, any amendment or amendments 

must be much broader and more comprehensive. 

This widely perceived issue of our damaged democratic process underlies, and can connect, widely 

different groups in America today: 

• in both red states and in blue states 

• in both the Tea-Party and Occupy Wall Street 

It also can connect conservatives, moderates, liberals, progressives and independents. 

Although these disparate groups cannot yet agree on exactly what an appropriate fix for this issue is, there 

is widespread agreement that our current political process has gone terribly wrong, and that it needs to be 

broadly and systematically addressed and that effective solutions are required. 

For all of the above reasons, I and millions of Americans urge you to discuss and propose an amendment 

or amendments to resolve this issue in a broad and comprehensive manner. 

We are aware that the way we currently finance and conduct our political process makes it easier for 

incumbents to remain in office and continues to allow wealthy contributors unequal extra access resulting 

in laws, regulations and policies to often serve their interests rather than the interests of the broader 

public. 

This in turn moves, in the aggregate, many hundreds of billions of dollars out of our pockets and into their 

pockets. In comparison, the cost to prevent this result by reforming and publically financing our political 

system is but a tiny fraction of these amounts. 

We are also aware that incumbent members of Congress who benefit from this current system, as well as 

those financial contributors who receive large financial benefits from this current system, all have great 

incentive to oppose broad reform, to offer partial reforms that will not be effective in a broad sense, to 

downplay the need for broad reform, and to denigrate and discredit those who support broad reform. 

We ask you to rise above all this and to assist in reforming our democracy and its political processes in a 

manner that will serve the interests of most U.S. citizens in future generations. 

We realize that this will take time, but we will be watching to see if such broad reform actually happens in 

the months and years abead. 

Should Congress fail to act within what most citizens regard as a reasonable time, you are certainly aware, 

as we the people are, that Article V provides us with a way to circumvent Congress. 
197 

As you know, our forefathers as representatives of the thirteen united States of America, on July 4th of 

1776 chose to declare our Independence from Great Britain when they believed that the King of Great 

Britain was placing his interests and the interests of his wealthy backers ahead of the interests ofa 

majority of those inhabiting our original American colonies. 

As you also know, because of this historical awareness, in creating our U.S. Constitution as signed on 

September 17th 1787, our founding fathers realized that there might again come a day when citizens 

would widely perceive that our elected Senators and Representatives in Congress, instead of acting in the 

broad public interest, were often acting in ways that primarily benefitted themselves and their wealthy 

backers. Thus our founders included in Article V, a second way to amend our U.S. Constitution. 

Should Congress fail to act, we the people can (and we shall) appeal in accordance with Article V directly 

to the legislatures of two thirds of the several states to call for a convention for proposing amendments, 

which, shall be valid to all intents and purposes, as part of our Constitution, when ratified by the 

legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or 

the other mode of ratification may be proposed by the Congress; 

This second way to amend our Constitution has, as you are well aware, never been used to date. It would 

be terribly controversial and would undoubtedly take many years and great effort by U.S. citizens to 

effect. 

It is for this reason we urge that Congress preempt such efforts and propose broad and comprehensive 

amendments to our U.S. Constitution which will effectively achieve these needed reforms and submit 

these amendments to the states for ratification. 

In closing and on a personal note, I wish you to know that I think of myself as a rational person, inclined 

to reach opinions only after considering a wide variety of evidence and argument. If I, along with millions 

of other U.S. citizens, can reach the conclusions expressed in this testimony, I'm equally convinced that 

with time and much more discussion, effort and debate, tens of millions of additional U.S. citizens will 

join us. 

While I am prepared, should Congress fail to act, to expend considerable effort working with others to 

organize these tens of millions of U.S. citizens to appeal directly to the legislatures of two thirds of our 

states to call for a convention for proposing amendments, I'm now age seventy and would rather spend 

my retirement years focused on more mundane matters. 

Thank you Senators for convening this hearing and for considering and entering into the record this 

testimony. 

Respectfully, 

Rick Hubbard 

Rick Hubbard 
198 

A PROPOSAL TO CONVENE A 

SERIES OF "CITIZEN CONVENTIONS" 

FOR PROPOSING AMENDMENTS 

TO THE CONSTITUTION 

SUBMISSION OF 

LAWRENCE LESSIG 

ROY L. FuRMAN PROFESSOR 

OF LAW AND LEADERSHIP 

HARVARD LAW SCHOOL 

SENATE JUDICIARY COMMITTEE, 

SUBCOMMITTEE ON 

THE CONSTITUTION, CIVIL RIGHTS AND HUMAN 

RIGHTS 

HEARING ON 

"TAKING BACK OUR DEMOCRACY: 

RESPONDING TO CITIZENS UNITED 

AND THE 

RISE OF SUPER PACs." 

JULY 24, 2012 

As I have argued in my submission to this Committee today, 

the challenge for this Congress is both to identify the right reforms 

that our Constitution needs, and to do so in a manner that might 

earn the confidence of a skeptical public. Any process controlled 

exclusively by Congress, or its delegates, would not, in my view, 

earn that confidence. Too cynical are we to believe that a process 

this Congress itself controls is one that could rightly reform this 

Congress. 

Instead, I would propose that Congress build upon a procedure 

that Professor James Fishkin of Stanford has developed - "deliberative polling" - to convene a series of citizen conventions, to 

identify the amendments, if any, that this Congress should consider. These "citizen conventions" would have no legal authority. 

But if conducted well, they could provide critical persuasive 

authority to a skeptical public about what reforms are needed. 
199 

"Deliberative polling" ties the representativeness of wellconducted polls with an opportunity for participants to deliberate in 

an informed environment about the questions at issue. A representative sample of the relevant public is identified and then gathered 

in a single place to deliberate, both in small groups and as a whole. 

The participants are given carefully balanced materials that present 

the issues in a way that they understand and can deliberate about. 

And the process produces a mature and stable view about the issues 

presented. More than twenty such polls have been conducted in 

the United States and abroad, on topics ranging from the future of 

the European Union to technical questions about utility regulation 

in Texas.1 

In this context, I would propose that "citizen conventions" be 

constituted as a kind of deliberative poll. Three hundred citizens, 

perhaps from specific regions of the nation, would be randomly 

selected. They would be given materials that fairly describe the nature of the perceived problem, and then gather in a single location 

to deliberate about that problem, and a range of proposed solutions. These conventions would be advisory to Congress, or perhaps to this Committee, but they would be framed by rules to assure that they are constituted properly. 

Those rules should conform to the following principles: 

1. Delegates should be selected randomly and proportionately. For 

these conventions to earn the trust of the American people, 

they must be constituted outside of the ordinary process of 

politics. Congress should not populate these conventions, 

either itself or through its delegates. Professional politicians 

should not populate these conventions, either themselves, 

or through the people they help to elect. Instead, like a jury, 

a random and proportionate selection of citizens should be 

gathered to deliberate about the reforms that are necessary. 

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

2 
200 

2. To assure that a random selection could afford to participate, the 

law must secure to the delegates certain privileges. Delegates 

should be paid from the Treasury at a rate that equals 150% 

of their current income,2 capped at some reasonable level; 

their expenses to attend the convention, including additional home-care expenses, should be provided as well; the 

law should secure protection for the jobs those delegates 

must leave, by compensating employers to save the jobs of 

the delegates. These privileges need to be generous enough 

to make it possible for a random selection to participate. 

But like the draft to serve in the military, the excuses for 

being exempted from this service should be few and stricdy 

policed. 

3. These citizen conventions should be conducted as a "deliberative 

poll." The procedures for constituting these conventions 

should form them on the model of Fishkin's "deliberative 

polling." That system requires a careful process for selecting 

the material that the delegates will be exposed to, and to 

assure the delegates come to understand the substance of 

the materials, and given a chance to deliberate about them. 

This process can be open, and observed by the general public. But the delegates themselves should be sequestered 

from other individuals during the deliberation. The only 

source of influence that should be permitted is the influence of one delegate on another. 

4. The results of these citizen conventions should be transmitted to 

Congress, and Congress should vote on whether to adopt the 

proposals agreed upon. For the process to be meaningful, 

delegates must believe their work will have consequence. 

The rules should therefore require that Congress to debate 

the proposals that were agreed upon by the citizen conventions, and in a roll call vote, adopt them or not through a 

resolution. The process should be completed by July, 2014, 

to give the political process time to digest the results. The 

vote on the resolution should be conducted before that 

election. 

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

servlce. 

3 
201 

There is precedent both across the world and within our own 

tradition for this mode of Jortition to decide important policy 

questions.3 Our judicial system in some states gives just a dozen 

citizens the power to determine the life of a convicted murderer. 

Our tradition also secures, through the grand jury, citizens participating in the decision whether to prosecute or not. 

Likewise, Canada to this day has a process by which citizens 

are randomly selected to serve on "citizen assemblies" to advise the 

government about policy proposals. And Iceland has just completed an extraordinarily ambitious process by which citizens participated to enable the drafting ofIceland's first constitution. 

Such processes work well when citizens are given the information they need to understand the problem, and an opportunity to 

deliberate about alternative solutions. They work better than the 

ways in which we currently elicit views from citizens - through 

polling, or focus groups, or even elections - because in those 

cases, there is no guarantee the citizen knows anything. But with 

sortition properly conducted, the citizens are given a chance to understand the issue before they give their views about how best to 

respond. 

In the face of the extraordinary lack of confidence that Americans have in their government, it is critical that Congress think 

creatively about ways to rekindle participation and confidence. 

Such creativity will often generate new ideas. It will sometimes 

remind us of the value in old ideas. 

Turning to the People to resolve fundamental questions of governance is as old in our Republic as the Republic itself. Indeed, as 

Professor Akhil Amar reminds US,4 ours was the ftrst constitution 

of a nation in the history of man to be adopted by ratification by 

the people in convention. This Congress should feed that tradition, 

by giving "the People" another meaningful and informed way to 

participate in this, the most urgent problem this government faces: 

Restoring the faith of the governed in their government. 

3 See Oliver Dowlen, Sorted: Civic Lotteries and the Future 

of Public Participation (2008), http://www.masslbp.com/publications.php. 

4 America's Constitution (2005). 

4 
202 

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

MOVE TO AMEND 

Founding Partners 

Alliance for DemDcracy 

American Friends Service 

Committee - North East Ohio 

Block Agenda Report 

Center for Media and 

Democracy 

Democrocy Unlimited 

Independent Progressive 

Politics Network 

Uberty Tree Foundation 

National Lawyers Guild 

No MDre Stolen Elections! 

Program on Corporations Law 

and Democracy 

Progressille Democrats of 

America 

Rec/aim Democracy 

Ultimate Civics 

HA TlOHAl EXECUTIVE 

COMMIITEE 

Ashley Sanders 

ae., Manski 

David Lee 

David Cobb 

Egberto Willies 

George Friday 

Jerome Scott 

Kaitlin Sapoci~Belknap 

Laura Bonham 

Nancy Price 

Stephen Justino 

July 18.2012 

Sen. Patrick J. Leahy 

U.S. Senate Committee on the Judiciary 

224 Dirksen Senate Office Building 

Washington, DC 20510 

Sen. Dick Durbin 

U.S. Senate Committee on the Judiciary 

Subcommittee on the Constitution, Civil Rights and Human RighlS 

224 Dirksen Senate Office Building 

Washington, DC 20510 

RE: Senate judiciary Committee 

Subcommittee on the Constitution, Civil Rights and Human Rights 

Move To Amend's Written Testimony for the "Responding to Citizens 

United and the Rise of Super PACs" Subcommittee Hearing, July 24. 

2012 

Dear Senator Leahy and Senator Durbin: 

We are heartened that Senate Subcommittee on the Constitution, Civil 

Rights. and Human Rights is holding these hearings to examine pending 

constitutional proposals to remedy the Supreme Court's 2010 Citizens United 

decision. It is not possible to overstate the existential threat posed to our small 

"'d"/small "r" democratic!republican fonn of goyemment by that odious 

decision. Thank you for ha~ing the courage to take the first necessary steps 

towards overturning it. 

As you know, the Supreme Court's Citizens United v. FEe decision in 

January 2010 expanded constitutional First Amendment speech rights for 

End Corporate Rule • Legalize Democracy • MoveToAmend.org 

(707) 269-0984 • info@MoveToAmend.org 
203 

Move to Ame nd 

July 18, 2012 

p,2 

corporations and reinforced the fiction that corporations have inalienable rights under the U.S, 

Constitution. With that decision, the Supreme Court opened the tloodgates to corporate and 

secret money in our elections. Already in 2012 outside spending is double what it was in the 

record-breaking 2008 elections and nearly all oftha! money has come from groups that do not 

disclose their donors. 

In granting corporations the inalienable constitutional right to spend unlimited money to 

influence elections, the Supreme Court has given powerful special interests undue influence in 

the democratic process, and that deluge of corporate cash, when added to obscenely large 

independent expenditures from tbe extremely wealthy, is drowning out the voices of ordinary 

citizens. 

We, at Move to Amend, are concerned about what we see as a growing Wasbington 

bandwagon to address only the campaign finance loopholes created by the Citizens United 

decision, and not the problem oC'corporate personhood," which is equally destructive to our 

democracy. 

We understand that, as significant as they are, the problem posed to our "small d" 

democracy by unlimited corporate spending in our electoral process is not the "root cause" of the 

problem. The torrent of corporate spending unleashed by Citizens United is just a symptom of 

the two fatal diseases aftlicting our democracy - the specious. Supreme Court-created doctrines 

of "Corporate Personhood" and "Money as Speech." For any proposed constitutional 

amendment to be effective, it must address both of those root-causes. 

For those of you on the Subcommittee who do not know us, Move to Amend is a nationwide coalition of hundreds of organizations, and hundreds of thousands of individuals. 

connnitted to social and economic justice, and building a vibrant democracy that is genuinely 
204 

Move to Amend 

July 18, 2012 

p.3 

accountable to the people, not corporate interests. We are dedicated to promoting an amendment 

to the U.S. Constitution that says two things, clearly and unequivocally: I) that inalienable rights 

recognized under the constitution belong to human beings, only; and, 2) that money is not speech 

and tbat, thus. regUlating political contributions, and political expenditures, is not equivalent to 

regulating political speech. 

Move to Amend has drafted a proposed constitutional amendment - "the Move to Amend 

amendment" • which satisfies those requirements. It reads: 

Section 1 [A corporation is not a person and can be regulated) 

The rights protected by the Constitution of the United States are the rights of 

natural persons only. 

Artificial entities, such as corporations, limited liability companies, and other 

entities, established by the laws of any State, the United States, or any foreign 

state shall have no rights under this Constitution and are subject to regulation by 

the People, through Federal, State, or local law. 

The privileges of artificial entities shall he detennined by the People, through 

Federal, State, or local law, and shall not be construed to be inherent or 

inalienable. 

Section 2 [MoDey i. not speech and can be regulated)Federal, State and local 

govenunent shall regulate, limit, or prohibit contributions and expenditures, 

including a candidate's own contributions and expenditures, for the purpose of 

influencing in any way the election of any candidate for public office or any ballot 

measure. 

Federal, State and local government shall require that any pennissible 

contributions and e.xpenditures be publicly disclosed. 

The judiciary shall not construe the spending of money to influence ejections to 

be speech under the First Amendment. 

Section 3 

Nothing contained in this amendment shall be construed to abridge the freedom of 

the press. 
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Move to Amend 

July 18, 2012 

p.4 

Our proposed amendment is unique in that it has been forged in the crucible of nearly 20 

years of movement building. grassroots organizing. and legal research. 

As it relates to the issue of "corporate constitutional rights." the Move to Amend 

amendment is based on a simple premise - that inalienable rights guaranteed under the 

Constitution belong to human beings, only. NO exceptions. NO loopholes. We recognize the 

obvious - that human beings create artificial legal entities such as corporations, and labor 

unions, and non-profit issue advocacy groups, and that those artificial legal entities only need, 

and should only have, those "legal rights" that we, collectively, decide that they should have. 

For example, artificial legal entities. such as corporations, need legal status in order to do 

business. They need to be able to enter into binding contracts, and to sue and be sued. So, we, 

the people, acting as our government, give them those "legal rights" when states pass laws 

governing incorporation. In that regard, Move to Amend's position is not extreme. Instead, our 

position - that corporations are only entitled to those legal rights granted by statute - was a 

matter of well-settled law from the founding of this country until into the 20th Century. For 

example, in Trustees ofDartmolllh College v. Woodward, 17 U.S. 518, 636 (1819), ChiefJustice 

Marshall explained that a corporation is a "mere creature oftaw ., . [which possess] only those 

properties which the charter of its creation confers upon it. .. " Furthermore, in Bank of Augusta 

v. Earle. 38 U.S. 519 (1839), the Court rejected a claim that a corporation was protected by the 

Privileges and Immunities Clause, because "[t]he only rights [the corporation] can claim are the 

rights which are given to it [by the charter], and not the rights which belong to its members as 

citizens ofa state .... " Ed, at 587. Likewise, in Hale v. Henkel, 201 U.S. 43, 74-75 (1906). the 

Supreme Court stated. that a "corporation is a creature of the state ... incorporated for the 

benefit of the public. It receives certain special privileges and franchises, and holds them subject 
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Move to Amend 

July 18,2012 

p.5 

to the laws of the state and the limitations of its charter .... Its rights to act as a corporation are 

only preserved to it so long as it obeys the laws of its creation ... " 

And it was not just the judiciary that held a healthy skepticism about the nature of the 

relationship between corporations and their human creators. It is safe to say that there is a thread 

of anti-corporatism that runs through the fabric of our nation. It is bred into our political DNA. 

What was the "Boston Tea Party" other than an act of anti -corporate vandalism against the 

largest, most powerful. multi-national corporation of its day - the British East India Company? 

The founding generation, who knew what corporations were, and who had just fought a 

revolutionary war to throw off the power of not just the King, but also the King's cro"TI 

corporations, did not mention corporations in the documents that established our government -

the Constitution and the Bill of Rights. That should tell us everything that we need to know 

about their "original intent." It should be clear to all that the founders did not intend 

corporations to play i!!!Y meaningful role in our political system. 

Furthermore, throughout our history, presidents have warned us of the threat posed by 

unbridled corporate power. In 1816, Thomas Jefferson said "I hope we shall crush in its infancy 

the aristocracy of our moneyed corporations which dare already to challenge our government in a 

trial of strength and bid defiance of our laws." In 1817, James Madison said "The power of all 

corporations ought to be limited in this respect. The growing wealth acquired by them never fails 

to be a source of abuses." In 1910, Teddy Roosevelt said "The great corporations which we have 

gro"TI to speak of rather loosely as trusts are the creatures of the State, and the State not only has 

the right to control them, but it is duty bound to control them wherever the need of such control 

is shown." In 1936, Franklin Delano Roosevelt advised the nation that "We struggle with old 

enemies of peace - business and financial monopoly, speculation, reckless banking, class 
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Move to Amend 

July 18, 2012 

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antagonism, sectionalism, war:' And, in 1959, D\\ight D. Eisenhower warned "We must guard 

against the acquisition of unwarranted influence, whether sought or unsought, by the militaryindustrial complex." 

In light of that truly American history, it is clear to us that we, at Move to Amend, are on 

the right side of the law, and the right side of American history, when it comes to our 

unwavering belief that inalienable constitutional rights belong to hurnan beings, only. 

For this reason, we believe that any proposed constitutional amendment must go beyond 

simply overturning Citizens United, because the problems posed by "corporate personhood" go 

far beyond Citzens United. It is NOT an exaggeration to state that, with the possible exception 

of the right to a jury trial recognized under the 7th Amendment, corporations have abused every 

constitutional right recognized on their behalf. 

Corporations have decimated the I st Amendment - and not just in the Citizens United 

context. In recent years, oil, coal, and utility corporations, tobacco corporations, chemical and 

pharmaceutical corporations, alcohol corporations, and banking corporations have all 

successfully claimed corporate free speech rights to invalidate federal, state and local laws. 

Cigarette companies have been found to have the 1st Amendment to right to advertise cigarettes 

near schools and playgrounds. Lorillard Corp. v. Reilly, 533 U.S. 525 (200 I). And, when 

Vermont became the first state in the nation in 1994 to require labels on milk and dairy products 

derived from cows injected with the controversial genetically engineered Bovine Growth 

Hormone, Monsanto sued in Federal Court and won on ajudge's decision that dairy corporations 

have the First Amendment "right" to remain silent on whether or not they are injecting their cows 

\\ith rBGH - even though rBGH has been linked to severe health damage in cows and increased 
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Move to Amend 

July 18. 2012 

p.7 

cancer risk for humans. and is banned in much of the industrialized world, including Europe and 

Canada. Internationol Dairy Foods Association v. Amestoy, 92 F.3d 67 (2nd Cir. 1996). 

Corporations have also abused the 4th Amendment. People are literally stunned when 

they are told that OSHA cannot do a surprise inspection in their place of employment. But 

OSHA cannot because the Supreme Court has held that surprise OSHA inspections violate the 

business's inalienable right to be free of unreasonable search and seizure under the 4th 

Amendment. Marshall v. Barlow's Inc., 436 U.S. 307 (1978). 

And Wal-Mart has attempted to use the 14th Amendment to as a cudgel, both to insinuate 

itself into a town that passed a City Council resolution to keep out "big box" stores, Wal-Mart 

Stores. Inc., v. City of Turlock 483 F.Supp.2d 987 (2006); and, to beat back a Maryland law 

requiring employers with 10,000 or more Maryland workers to spend a percentage of their total 

payrolls on employees' health insurance costs, or pay the state the amount their spending falls 

short. Retail Industry Leaders Ass'n v. Fielder, 475 F.3d 180 (4th Cir. 2007). 

We, the People, have a moral, and an ethical, obligation to regulate the corporations, and 

other artificial legal entities, that we create. It is cleas from the examples, above, that 

corporations are using the "inalienable constitutional rights" that they were never intended to 

have to go to court to argue that our reasonable laws and regulations violate those "inalienable 

constitutional rights." We need to amend the Constitution, ending "corporate personhood," 

because NO corporation, or other artificial legal entity, should be empowered to overturn our 

democratically enacted laws and regulations. 

The notorious 1886 case of Santa Clara County v. SOllthern Pacific Railroad is just one 

in a long series of Supreme Court cases that entrenched "corporate personhood" in law. Justices 

since have struck down hundreds oflocal, state and federal laws enacted to protect people from 
209 

Move to Amend 

July 18, 2012 

p.8 

corporate harm based on this illegitimate premise, Anned with these "rights," corporations wield 

ever-increasing control over jobs, natural assets, politicians, even judges and the law. 

We believe corporations are not persons and possess only the privileges citizens and their 

elected representatives willfully grant them. Our Amendment will reverse the Court's invention 

of "corporate personhood" and limit corporations to their proper role: doing business under state 

charter. 

In our opinion, any proposed constitutional amendment must also include a provision that 

clearly and unequivocally states that "money is not speech, and can be regulated." There are 

others who support the passage of a constitutional amendment to overturn Citizens United, 

including Professor Lessig who will testifY at this hearing, today, who "[do not support] any 

amendment that purports to declare 'Money is not Speech,'" (Lessig Blog, v2, February 6, 

2012). Opponents ofa constitutional amendment that would declare that "Money is not speech" 

fear that it would allow "the government [to] constitutionally prohibit anyone to spend or 

contribute even a single dollar in the political process. In a world in which speech costs money, 

this would give a huge advantage to incumbents and effectively destroy our democracy." 

(Professor Geoffrey S. Stone, "Is Money Speech?" The Blog, posted February 5, 2012). 

With all due respect to Professors Lessig and Stone, our democracy has already been 

destroyed by the tens of millions of dollars in unaccountable donations and spending that have 

poured into the political system since National Bank of Boston 1'. Belloti (1978) and Citizens 

United v. FEe (201 0). (In that regard, Move to Amend's amendment is not about "preserving" 

our democracy, Rather. it is about establishing the conditions necessary to allow us to establish, 

for the first time in American history, a truly democratic, truly republican, fonn of government 

that represents the interests of all Americans, as opposed to the privileged few.) To borrow an 
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Move to Amend 

July 18,2012 

p.9 

analogy from Prof. Garrett Epps (Professor Garrett Epps, "Don't Blame 'Corporate 

Personhood.'" The American Prospect. April 16. 2012) money in politics today is being used like 

a privately-owned bullhorn to dro\m out all of the free speech of all political speakers who aren't 

rich enough to afford an equally large amplification system. 

Imagine that a representative of Citizens United, LLC, had been invited to give 

testimony at this hearing. but that, after that representative had spoken, she used a privatelyov.ned bullhorn to droW1l out the testimony of all of the witnesses that followed. Certainly, 

Senator Durbin, as the Chairman of the Subcommittee, would have the power to order the 

representative from Citizens United, LLC, tum down the volume on the bullhorn, or to prohibit 

the use of bullhorns in the hearing room all together, if that is what he deemed necessary to make 

sure that as many points of view as possible are heard. 

The same is true of political speech outside of this hearing room, The voices of hundreds 

of millions of ordinary Americans are being drowned out in the halls of Congress by 

corporations, and by the extremely wealthy, with their multi-million dollar bullhorns. Certainly, 

Congress should have the power to tell those corporations, and those million-dollar donors. to 

"tum dO\'n the volume on their privately-owned bullhorns" - by passing reasonable campaign 

finance regulations; or, to "tum their bullhorns off completely"' if need be. 

Although we do not have a congressional sponsor for our Amendment, yet, we do have 

broad popular support. As of yesterday, a petition in support of the amendment, which can be 

found online at ww\v.movetoamend.orgJamendment, has been signed by 218, J 24 people. 

Additionally. Move to Amend supporters have been at the forefront of the recent efforts to raise 

public awareness about this issue. 
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Move to Amend 

July 18, 2012 

p,10 

In Vennon!. the resolution introduced by State Senator Virginia Lyons was based on 

Move to Amend's language, as were the successful ballot initiatives in Madison, WI; Boulder, 

CO; and Bozeman, MT. In Los Angeles, the resolution passed by the City Council actually 

incorporated, by reference, Move to Amend's proposed constitutional amendment, and dozens of 

resolutions have passed across the country that are modeled on our language and spearheaded by 

our volunteers. 

People around the country are gravitating to this issue. They are in the streets, carrying 

signs that read "Corporations are NOT People" and "Money is NOT Speech!" Those are Move 

to Amend's core values. Nobody is carrying signs saying "SOME Corporations are NOT 

People" or "A Little LESS Money in Politics," 

We urge you, as members of the Senate to hear the voices of WE, THE PEOPLE, and to 

move forward with the passage of a Constitutional Amendment that says clearly, and 

unequivocally; that inalienable rights recognized under the Constitution belong to human 

beings, only: and, that money is not speech. 

Thank you, 

Move to Amend, National Executive Committee 

Ashley Sanders, Ben Manski, Daniel Lee, David Cobb, Egberta Willies, Jerome Scott, Kaitlin 

Sp()oky.Belknap, Laura Bonham, George Friday, Nancy Price, Stephen Justina 
212 

July 24, 2012 

Senate Judiciary Committee 

, PEOPLE 

~~FORTHE •. ~ \ AMERICAN 

r "" WAY 

Senate Subcommittee on the Constitution, Civil Rights and Human Rights 

Re: Taking Back Our Democracy: Responding to Citizens United and the Rise of Super 

PACs 

Dear Chairman Durbin and Members ofthe Subcommittee: 

People For the American Way (PFA W) commends you for holding this extremely important 

hearing. We appreciate this opportunity to address the serious problems that have arisen since 

the Supreme Court's disastrously misguided ruling in Citizens United v. Federal Elections 

Commission. 

Introduction 

The January 20 10 Citizens United decision granted corporations the right to make unlimited 

independent expenditures to support or defeat electoral candidates. The narrow 5-4 majority 

decision was based on two severely flawed foundations: (l) that corporations have the same 

First Amendment rights as people to make independent expenditures to affect elections; and (2) 

that such independent expenditures cannot possibly cause real or perceived corruption and, 

therefore, any government interest in limiting such expenditures is outweighed by the 

corporation's First Amendment right. . 

Within weeks of Citizens United, the DC Circuit relied on that case in its SpeechNow v. Federal 

Elections Commission opinion. The court ruled that since independent expenditures do not cause 

real or perceived corruption, then an individual's giving contributions to groups that make only 

independent expenditures also cannot create real or perceived corruption. Therefore, according 

to the court, the Constitution prohibits laws limiting individuals' contributions to such entities. 

And so the current phenomenon of unlimited contributions to the "super PAC" was born. 

Americans have responded to Citizens United and its progeny with remarkable agreement. A 

nation that is split down the middle on so many political issues nonetheless agrees 

overwhelmingly that the people's constitutional authority to hold elections with integrity must be 

restored. Surveys show lopsided supermajorities opposing Citizens United. For instance, polling 

from earlier this year, two years after the Court handed down the opinion, reveals that 62% of 

Americans oppose the Court's decision, and more than half say they would support a 

constitutional amendment to reverse it.! Around the nation, local and state governments are 

I Democracy Corps and Public Campaign Action Fund, Two Years After Citizens United, Voters Fed Up with Money 

in Politics, http:// campaignmoney.orgifiles/DemCorpPCAFmemoFINAL.pdf. The survey was conducted by 

Greenburg Quinlan Rosner Research. 
213 

responding to their constituents by passing more than 275 resolutions urging Congress to send a 

constitutional amendment to the states for ratification. Six state legislatures are on record in 

support of constitutional remedies: Hawaii, New Mexico, Vermont, Rhode Island, Maryland, 

and California. They have been joined by towns, cities, and counties both large and small, in red 

states and blue states, like Kansas City (Missouri), Fayettesville (Arkansas), Los Angeles and 

San Francisco (California), Alleghany County and Asheville, (North Carolina), Albany and New 

York City (New York), Missoula (Montana), Wilkes-Barre and Pittsburgh (Pennsylvania), South 

Miami (Florida), and Madison (Wisconsin). 

In distorting the Constitution, the Supreme Court has created a "movement moment," where 

Americans are joining together to fix the country we love. During today's hearing, we look 

forward to an honest examination of the damage that Citizens United and its progeny have done 

to our nation, damage that can be repaired only through a constitutional remedy. 

Corporations do not have the same First Amendment rights as people. 

Citizens United treated corporations and people the same for the purposes of a First Amendment 

analysis of campaign spending rules. In elevating the constitutional rights of a corporation to 

those of a person in the context of affecting elections to public office, the Roberts Court has 

radically transformed the fundamental premise of the Constitution: For the first time, 

corporations are, as a constitutional matter, members of the political community of the United 

States. Sovereign power no longer flows only from the people, but now must be shared by 

people and non-human corporations. 

The First Amendment was never intended to equate multibillion dollar corporations with real 

persons. Nothing in the Constitution even requires governments to allow corporations to exist. 

A corporation is an artificial creation whose basic nature is determined by the state law where it 

is incorporated. Governments allow businesses to organize as corporations in order to limit the 

financial liability of their owners and managers. A corporation, unlike an individual, does not 

retire, die, and distribute its wealth among its descendants. A corporation, unlike an individual, 

can consist of thousands of people working full time across the country, operating in several 

sectors of the economy simultaneously. The corporation can take risky actions that lead to big 

payoffs, but its owners and managers are not personally liable for those actions if they fail. In 

other words, the law grants corporations vast, superhuman abilities that are denied to 

individuals. And with those vast abilities, granted to these artificial creations at the discretion of 

the government for the purpose of advancing commerce, the corporation can amass far more 

wealth than an individual can. 

So the idea that the First Amendment requires governments to treat these corporations 

identically to people for the purposes of regulating how corporations spend that wealth to 

influence elections is bizarre. 

This recognition of the obvious differences between people and corporations - and the subsidiary 

role the latter play in our constitutional structure - was not lost on those who adopted the 

Constitution. As Chief Justice John Marshall wrote in 1818, "A corporation is an artificial being, 

invisible, intangible, and existing only in contemplation oflaw. Being the mere creature oflaw, 

2 
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it possesses only those properties which the charter of creation confers upon it, either expressly, 

or as incidental to its very existence.,,2 

The Citizens United majority went on at great length about how the campaign finance laws in 

question purportedly restricted and even punished the political speech of "associations of 

citizens" during election seasons. A gathering of Bostonians challenging George III is an 

"association of citizens," but that term can hardly be used to describe creations of the state 

licensed solely to do business and make a profit. Moreover, the laws in question did not restrict 

or punish any people. A law that restricts corporate spending does not at all affect individuals' 

ability to talk or to spend their own money, either alone or in conjunction with other people. It 

does prevent the use of funds from a corporation's general treasuries to spend money to 

influence elections. 

Before Citizens United was decided, the people who ran corporations were not having any 

difficulty making their voices heard during election campaigns, including on matters of direct 

interest to their corporations. They could have their corporation set up a PAC, then give their 

personal money directly to the PAC for electoral purposes, with the PAC either giving directly to 

a campaign or making independent expenditures. In addition, like anyone else, they could 

contribute directly to candidates running for office subject to contribution limits. 

What these businesspeople could not do before Citizens United was spend the cQrporation 's 

money to advocate for or against a federal political candidate. But in the wake of Citizens 

United, corporate officers can now tap into the potentially vast resources of the corporate 

treasury, essentially spending someone else's money. Ordinary people have no such luxury; the 

money they donate must be their own. But corporate CEOs and business owners can now give 

millions of dollars for independent expenditures without losing a dime of their own money. This 

is a stunning new inequality given constitutional legitimacy by the Supreme Court: Those with 

positions of influence have been handed even more influence. 

Massive funds from large corporations and a sliver of extremely wealthy individuals cannot 

help but have a destabilizing influence on our national political structure and effectively 

silence the majority. 

In 2008, before Citizens United, Exxon-Mobil set up a PAC that raised more than $1 million 

from corporate officials. That is a significant amount of money, but it all came from individuals. 

That same year, Exxon-Mobil earned $70 billion in profits. Had Citizens United been the law, 

the company could have devoted a mere 10% of those profits to affecting elections and dwarfed 

the PAC's spending by a factor of 7000. The $7 billion it could have easily spent would have 

been more than was spent by the campaigns of Barack Obama, John McCain, and every Senate 

and House candidate combined. 

And that is just one company. 

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

3 
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Imagine the most powerful corporations in the nation devoting these enormous sums to affect 

elections. The voices of 99% of the population would be completely drowned out, with the 

airwaves filled with corporate-sponsored ad after corporate-sponsored ad. 

All this spending would have something in common: the corporate officers who write the checks 

have a fiduciary duty to maximize shareholder returns. The goals that animate people acting on 

their own behalf - concern for their community, concern for their neighbors, concern about 

values - are irrelevant to how that corporate electoral money is spent. In fact, in some cases, 

corporate officers who allow themselves to be swayed by such human factors may be violating 

their fiduciary duty to the companies that employ them. 

Of course, to accomplish its goals, a corporation need not actually spend such sums in every race 

they are interested in. Far from it. Especially for offices or in areas where electoral races are 

generally not overwhelmingly expensive in other words, for most state and local legislative and 

judicial elections throughout the United States - the implied threat to spend large expenditures 

against elected officials could easily be enough to "persuade" them to take the "right" position. 

Conversely, the promise of an enormous windfall in supportive corporate independent 

expenditures could have an equally persuasive effect. 

Such corruption leaves no evidence: no paper trail, no recordings, no ads. But it poisons our 

nation's democracy. 

Unfortunately, limitless spending from the wealthy and powerful need not be corporate in source 

to drown out the voters and intimidate elected officials: Especially through super PACs, we are 

seeing a tiny number of phenomenally wealthy individuals exert obscenely oversized influence 

over elections. For instance, during the 2012 presidential primary campaigns in Alabama and 

Mississippi, 91 % of the television ads promoting presidential contenders were paid for by the 

candidates' super PACs.3 Certain candidates with little public support and thus minimal funding 

to their campaigns were nevertheless able to campaign for months on the "generosity" of one or 

two billionaires, whose support for single-candidate super-P ACs grossly disrupted the electoral 

process. 

Does anyone doubt the influence these mega-donors would have had in a White House run by 

the individuals whose efforts they indirectly bankrolled? 

Whether those super-PACs are funded by phenomenally wealthy individuals or phenomenally 

wealthy corporations, they are doing serious damage to our democracy. The lesson is being 

learned not just on the national stage via the presidential campaign, but in states and 

communities across America. 

In Arizona, for instance, corporate money brought into play by Citizens United may have 

decided that state's election for Attorney General in 20 I O. The race between Republican Tom 

Horne and Democrat Felecia Rotellini was expected to be the closest statewide race that year, 

and the two candidates' campaigns' spending were relatively close to each other. But during the 

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

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

4 
216 

final weeks of the campaign, a conservative organization called Business Leaders for Arizona 

[BLA] spent more than half a million dollars on independent expenditures attacking Rotellini, 

the Democrat. This happened when her campaign was low on cash, making it harder to respond. 

Horne - buoyed by BLA's election spending - ended up winning by five percentage points. 

Discussing the race earlier this year, Rotellini's campaign manager credited the independent 

expenditures with throwing the race to the Republican: "If he hadn't have had access to all that 

money, it would've been a different race -- and r think it clearly would've been a different 

outcome.,,4 

And just who were the business leaders of Business Leaders for Arizona? After the election, 

BLA's campaign finance report to the stateS revealed that only 25% of its contributions in those 

critically important final weeks came from individual contributions (and less than 15% of those 

individual contributions came from people in Arizona, despite the organization's name). BLA 

reported that 75% of its funds came from three business contributions: 

• NCP Finance Limited - $30,000 

• Texas Loan Corporation - $15,000 

• RSLC - $350,000 

RSLC, BLA's largest funder, turns out to be the Republican State Leadership Committee. 

According to the Annenberg Center's FactCheck project6

, the RSLC was a 527 political 

committee whose top donors were the U.S. Chamber of Commerce, Wal-Mart, Pfizer, Devon 

Energy, AT&T, Reynolds American (the tobacco company), and the American Justice 

Partnership, an organization seeking legislation to limit liability awards and reduce what it calls 

"abusive lawsuits." 

Arizona's state constitutional provision protecting its elections from corporate domination7 was 

just one of many state and local provisions across America upended by Citizens United.s 

The premise that independent expenditures don't cause real or perceived corruption has 

been proven to be wrong. 

Even the Roberts Court acknowledges that the American people, through our elected 

governments, have an important interest in preventing public corruption, both real and perceived. 

Where Citizens United departed from the reality-based world was its assertion that independent 

expenditures cannot possibly cause real or perceived corruption and, therefore, any government 

interest in limiting such expenditures is outweighed by the corporation's First Amendment right. 

4 http://www.azcentral.comlnews/articles/20 12/04/02120 120402attorney-general-tom-horne-underinvestigation.htm!. 

5 State of Arizona Campaign Finance Report, Amended 2010 Post-General Election Report of Business Leaders for 

Arizona, http://www.azsos.gov/cfs/PublicReports/2010/ClOF8C6B-F26E-44A8-B770-8D50F934DI6A.pdf. 

6 Annenberg Public Policy Center, FactCheck.org entry for Republican State Leadership Committee (posted August 

10, 2010), http://www . factcheck.orgl20 1 0/08/repu blican -state-leadership-committee. 

7 "It shall be unlawful for any corporation, organized or doing business in this state, to make any contribution of 

money or anything of value for the purpose of influencing any election or official action." AZ Const. Art. 14, §18. 

'National Council of State Legislatures, Life After Citizens United, http://,,,ww.ncs!.orgilegislatureselections/elections/citizens-united-and-the-states.aspx. 

5 
217 

While Citizens United involved corporate spending, the logic was that applied (and limited) to 

individuals in Buckley v. Valeo. But even that 1976 case's finding was narrow and tentative, 

with the majority concluding that "the independent advocacy restricted by the provision does not 

presently appear to pose dangers of real or afparent corruption comparable to those identified 

with large [direct] campaign contributions." Citizens United was more doctrinaire, concluding 

"that independent expenditures, including those made by corporations, do not give rise to 

corruption or the appearance of corruption."!O 

Survey data show that statement to be demonstrably false. 

• According to a Democracy Corps and Public Campaign Action Fund survey from 

January 2012, two years after the decision, two-thirds of Americans agree with a 

statement that says: "Given what I see in the presidential race, I am fed up with the big 

donors and secret money that control which candidates we hear about. It undermines 

democracy."!! 

• An April, 2012, survey by the Brennan Center12 revealed that: 

o 68% of all respondents agreed that "a company that spent $ I 00,000 to help elect a 

member of Congress could successfully pressure him or her to change a vote on a 

proposed law" 

o 77% agreed that "A member of Congress is more likely to act in the interest of a 

group that spent millions of dollars to elect him or her than to act in the public 

interest." 

o 69% believe that "the new rules that let corporations, unions and people give 

unlimited money to Super PACs will lead to corruption." 

o 26% said they are "less likely to vote because big donors to Super PACs have so 

much more influence over elected officials than average Americans." The 

withdrawal from the most basic and most important activity in democracy was 

even more pronounced among African Americans (29%), Latinos (34%), and 

people with annual incomes under $35,000 (34%). 

Unfortunately, the laissez-faire campaign finance system that Citizens United made possible has 

clearly shown that enormous independent expenditures not just can, but do, lead to the 

appearance of corruption. This key factual premise upon which Citizens United was based is 

simply not true. Earlier this year, millions of Americans were hoping that the Court, perhaps 

having made an honest error, would take advantage of the recent Montana campaign finance case 

to reexamine the assumptions underlying Citizens United. The Montana Supreme Court had 

cited that state's dark history of political corruption caused by corporate influence on elections in 

upholding a state law prohibiting corporations from making independent expenditures in state 

and local races (including judicial elections). But when the same narrow majority as Citizens 

United reversed the Montana Supreme Court without even giving the state the opportunity to 

9 Buckley v. Valeo, 424 U.S. I, at 46 (1976) (emphasis added). 

10 Citizens Unitedv. Federal Elections Commission, No. 558 U.S. -'_ (2010) (slip op. at 42). 

11 Democracy Corps and Public Campaigo Action Fund, above. 

12 Brenan Center for Justice, Super PACs. Corruption, and Democracy: A National Survey 0/ Americans' Attitudes 

about the hifluence a/Super PAC Spending on Government and the Implications/or our Democracy, 

http:ltbrennan.3cdn.netlbcb50100cOdda6d39a g3m6bc9py.pdf. (Executive Summary: 

httn:llbrennan.3cdn.netl5d2fi3bdfc12b2eb27 pym6b9cdv.pdf. 

6 
218 

present oral argurnents 13, Americans saw that Citizens United had been no honest mistake. The 

five conservatives on the Roberts Court knew exactly what they were doing. 

So now the American people perceive a significant increase in political corruption as a result of 

the spending let loose in Citizens United and its progeny. When people regularly regard their 

government as corrupt and available for sale to the highest bidder - when elections are no longer 

seen as reflecting the voice of the people - then faith in our democracy is severely undermined. 

Amending the Constitution to Overturn Citizens United Shows Respect for the 

Constitution. 

Amending the United States Constitution is not something we recommend lightly, but the danger 

caused by the Roberts Court's distortion of the First Amendment requires us to take corrective 

action. Some who are genuinely concerned about the threat to our democracy might nevertheless 

be reluctant to tamper with perhaps the greatest legal document in world history. As an 

organization that deeply respects the Constitution, we understand that reluctance, and we address 

this section of our comments to those of that view. We also extend an invitation to engage with 

the nationwide grass roots coalition united in wanting a constitutional remedy and discussing the 

various forms that such an amendment might take. 

Some may be concerned because a Citizens United amendment has been characterized as the 

first to take away aconstitutional right. This description is inaccurate for two reasons. First, 

Citizens United did not extend any new rights to individuals, to any member of the "We The 

People" who are this nation's sovereign power, with the sole exception of corporate officers who 

were given the new right to write checks from their extensive corporate treasuries to affect 

elections that are supposed to represent the people's voice. The right to spend our own money in 

politics was one already enjoyed by every citizen, and restoring the person/corporation 

distinction would restore each person's right to engage in a vigorous debate over public issues. 

Second, constitutional reform that has protected and expanded rights has always been 

characterized by the forces of reaction as "taking away rights." The Thirteenth Amendment took 

away the property rights of white southerners who dehumanized African Americans and reduced 

them to property to be bought and sold. White men's voting power was undeniably diluted by 

the Fifteenth and Nineteenth Amendments, granting the right to vote to non-whites and women. 

The 16th Amendment took away the right of plutocrats to not pay their fair share in the taxes 

needed to run the country that allowed them to make their fortunes. The 17th Amendment took 

the right of often-corrupt state legislatures to pick senators, placing that right in the hands of the 

American people. In all of these cases, the Constitution was amended to make it better reflect 

the values on which our nation was founded. A constitutional amendment to strengthen our 

elections and prevent corporate and special interest money from drowning out all other voices 

would be in that same tradition ofimprovements to the ideal and thus would protect the First 

Amendment rights of actual people. 

13 American Tradition Partnership, Inc. v. Bullock, 567 U.S. __ (2012). 

7 
219 

It is also important to note that even as the fundamental purposes ofthe First Amendment remain 

constant through the years - to protect the freedom of the individual and promote the vigorous 

exchange of ideas - the means through which the First Amendment accomplishes those functions 

evolves along with changes in technology and society. 

F or instance, at the time our nation was founded, requiring a government license in order to 

speak via popular media could not have had any purpose or effect but to limit speech. Although 

the founders could not have imagined a world where people send electronically amplified spoken 

messages over the air at the speed of light to far-away listeners, the First Amendment was able to 

adapt to this major technological change. In the early days of radio broadcasting, unregulated 

facilities interfered with each other and often prevented anyone from being heard over the 

airwaves. The traditional idea that more speech facilitates debate was turned upside down; 

additional broadcasting significantly curtailed the ability of other radio operators to be heard, 

often silencing them altogether. A content-neutral broadcast licensing system was developed to 

ensure that speakers could be heard, thereby protecting the First Amendment interests of both 

speakers and the public. J4 

The First Amendment did not change, but the world within which it operates did. 

We now live in an economic, technological, and media environment where the ability of ordinary 

people to be heard in their communities' political debates is being eviscerated. Corporate and 

special interests with wealth that would have staggered our nation's founders purchase huge 

amounts of air time, drowning out the diverse voices of the 99%. Even worse, the identity ofthe 

speakers is often deliberately concealed, ensuring that voters are denied a key fact needed to 

analyze the reliability of the message being sent. 

We can amend the Constitution to ensure our society accomplishes the fundamental purposes of 

the First Amendment. Currently, debate is in an early phase on how to accomplish that: To 

address the status of corporations under the Constitution? To address the damage to our 

elections caused by vast inequalities of access to effective means of communication? Perhaps 

some other way that has not yet been broached? An effective amendment will strengthen the 

First Amendment, not weaken it. 

Conclusion 

As an organization dedicated to defending the Constitution and, especially, the First Amendment, 

People For the American Way understands that a constitutional amendment is not an endeavor to 

be taken lightly or without great care to protect the rights and liberties of individual Americans. 

But the Supreme Court's decision to effectively silence the voice of the American people by 

invalidating restrictions on spending in elections by the nation's most powerful, wealthy, and 

elite is such that a constitutional amendment is the only appropriate and direct response. 

14 The Supreme Court discussed the early days of radio and the need for a government licensing system to ensure 

that speakers could be heard in National Broadcasting Co. v. United States, 319 U.S. 190,210-213 (l943). 

8 
220 

That a constitutional amendment is needed to protect the viability of our democracy is something 

most Americans agree on. We also agree that it must be done with great care, which is why the 

nation has launched a conversation about the exact form that such an amendment will take. By 

highlighting the current threats to our democracy, the subcommittee is providing the American 

people with the information needed to ensure a vigorous and productive debate. 

Michael B. Keegan 

President 

People For the American Way 

9 
221 

Take Back the Constitution from the Corporate Court 

Constitutional Progress over the Enemies a/Popular Democracy is the American Way. 

By Jamie Raskin 

The American people have been forced several times to amend the Constitution to 

reverse the damage caused by the Supreme Court when it acts in collusion with the enemies of 

social justice and popular democracy. 

In 1857, in the Dred Scott decision, the Supreme Court ruled that white supremacy was 

built into the Constitution as the original intent of the Framers, that African~Americans therefore 

could not be citizens entitled to bring suit in federal court, and that African-Americans had no 

rights that the white man was bound to respect. After the Civil War, the Radical Republicans 

moved to reverse that infamous decision through the 13 th, 14th and 15th Amendments, which 

abolished slavery, proclaimed equal protection and due process under the laws, and protected the 

right to vote of all citizens regardless of race. 

In 1875, in Minor v. Hapersett, the Court ruled that the Equal Protection Clause did not 

protect the right of women to vote, declaring that the domestic sphere was women's proper place. 

In response, the suffragists mobilized campaigns in the state legislatures and Congress, 

committed civil disobedience by chaining themselves to the White House fence, and 

accomplished passage in 1920 of the 19th Amendment. 

In 1937, in Breedlove v. Suttles, the Court rejected an Equal Protection attack on the 

imposition of poll taxes as a condition for voting. This decision cemented the plutocratic and 

racist practice in many Southern states but the Civil Rights Movement finally won passage of the 

24th Amendment in 1964 banning poll taxes in federal elections. Still, many states continued to 

charge poll taxes for voting in state elections, a practice that did not end until the Court read the 

24th Amendment as changing the meaning of Equal Protection and struck it down in Harper v. 

Virginia Board of Elections (1966). 

Indeed, most of the 17 constitutional amendments passed since the Bill of Rights have 

been franchise-expanding and democracy-reinforcing provisions that strengthen the progress of 

what Lincoln called "government of the people, by the people and for the people." 

Of the Corporations, By the Corporations, For the Corporations 

Now, in the bitterly divided Citizens United decision (2010), five Justices on the Roberts 

Court have held that corporations have the right to spend unlimited sums of money promoting or 
222 

A PEOPLE 

~~AL~~IT~lN , "'" WAY 

disparaging political candidates. This decision - built on the dangerous fallacy that statechartered corporations enjoy the same political free speech rights as the people - strikes another 

dangerous blow against popular democracy. It is a blueprint for government of the big 

corporations, by the big corporations and for the big corporations. 

Citizens United upended the bedrock understanding, more than a century old, that 

corporations, because of their "artificial" nature and all of the legal benefits bestowed upon them, 

have no "money speech" rights in political campaigns. The decision capsized at least four prior 

Court decisions, wiped out dozens of federal and state laws banning corporate political 

expenditures that go back more than sixty years, and undermined the rationale for the federal ban 

on corporations giving contributions directly to candidates that began with the Tilman Act in 

1907. 

The new doctrine is that, when it comes to campaign finance rights, the "identity of the 

speaker" is wholly irrelevant, and corporations have a First Amendment right to spend freely in 

politics because the speech they purvey is intrinsically valuable. Followed faithfully to its logic, 

this amazing doctrine protecting corporate political spending in the name of speech by citizens 

will end up not only toppling the ban on direct corporate contributions to candidate campaigns 

but also empowering churches, non-profit corporations, aliens, cities (municipal corporations), 

states and foreign corporations to spend their treasury money on behalf of political candidates 

too, both as campaign spenders and campaign donors. If the identity of the speaker is irrelevant, 

well, then, the identity of the speaker is irrelevant - unless, of course, this triumphantly 

proclaimed categorical doctrine is, like the decision in Bush v. Gore, actually a one-way ticket 

good only for special persons and classes favored by the ruling faction on the Court. 

Furthermore, James Bopp and the other pro-corporate lawyers driving this train are also 

now making clear that they want to do away with the campaign finance disclosure laws that we 

were originally told were the certain antidote to a full-blown corporate takeover of our politics. 

Today, corporate conservatives challenge campaign finance disclosure requirements as 

unconstitutional compelled speech, like making Jehovah's Witness school children pledge 

allegiance to the flag. They argue that corporations should not have to disclose their political 

expenditures and contributions at all because they will face intimidation and reprisal, even - God 

forbid - boycotts, from consumers who disagree with their political commitments. In other 

words, corporations have a right to speak because they are like citizens, but they should be 

completely insulated from the speech reactions of real citizens and given the power to channel 

their money not only massively but secretly to promote the corporate bottom line. This is some 

"marketplace of ideas" that the champions of corporate power have in mind for our democracy. 

Many people have read Citizens United as establishing rights of "corporate personhood" 

but that step was taken long ago by another corporate-friendly Court, acting under the Equal 

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Protection Clause, in the Santa Clara County v. Southern Pacific Railroad decision in 1886. 

The Court has essentially recognized since that time that, since the property of real people is tied 

up in artificial corporations, it cannot be taken or seized outside of the ordinary protections of the 

constitutional system. But Citizens United advances a far more radical proposition: corporations 

must be treated not just fairly as economic entities but as equal rights-bearing political citizens of 

the Republic that may use the vastly greater wealth and resources they have earned from their 

economic activity to win political power and favorable public policy. This is not corporate 

personhood, as everyone says; it is super-personhood. 

Conservative Judicial Activism Triumphant 

The parties in Citizens United had not even asked the Supreme Court to reach this radical 

result. Indeed, the five conservative jurists sympathetic to Citizens United in the case had 

available to them numerous statutory routes for finding that the group had a right under the 

Bipartisan Campaign Reform Act to release its anti-Hillary Clinton movie before the 2008 

election. As Justice Stevens suggested in dissent, an on-demand movie that people have to order 

is nothing like a ubiquitous television ad, and the vast majority of the money raised by Citizens 

United was from individual political contributions, only a de minimis amount from for-profit 

corporate sources--a situation that offered another easy way to find for Citizens United without 

overturning many decades of jurisprudence .. 

But the conservative justices obviously had much bigger game to kill. They ordered the 

parties to go back and brief and argue the big question they wanted to answer. And what do you 

know, after looking at the question they posed, the 5-justice bloc discarded the central canon of 

"constitutional avoidance" (the judicial preference for deciding cases on statutory rather than 

constitutional grounds whenever possible and interpreting statutes whenever possible so as not to 

create constitutional conflict) and came back with a decision that amounts to a declaration of 

political independence for corporations. 

This decision reflected the triumph of a conservative judicial activism that has been 

pushing hard for decades to make corporate power king in our politics. One key player in this 

drive was corporate lawyer Lewis Powell, who wrote a memorandum to the Chamber of 

Commerce in August 197 I, just two months prior to his nomination by President Richard Nixon 

to the Supreme Court, proposing a strategy for restoring corporate political dominance in the 

country. Once on the Court, Justice Powell authored the thin majority opinion in First National 

Bank of Boston v. Bellotti (1978), which gave banks and corporations the right to spend 

unlimited amounts of money in public initiative and referendum campaigns and first floated the 

radical concept that, when it comes to corporations seeking the right to be financial players in 

politics, the "identity of the speaker" is wholly irrelevant. Corporations are plain old folk, just 

like you and me. 

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The victory of the corporate mindset on the Court became complete in the first decade of 

the 21st century. Five conservative justices began the decade by shutting down the manual 

counting of more than 100,000 ballots in Florida and brazenly deciding the 2000 presidential 

election for George W. Bush, the candidate of right-wing corporate power. Since the next two 

Court vacancies were filled by Bush, the Court's conservatives engineered a dramatic procorporate makeover of the Court. As a result, five conservative justices ended the decade by 

authorizing corporations to become key money actors in every election in a way that no one had 

seen since the Watergate period when big businessmen passed bags of cash to President Richard 

Nixon's operatives and bagmen. 

Demolishing the Wall o/Separation Between Corporate Treasuries and Public Elections 

To appreciate the radicalism of Citizens United requires an understanding of what the law 

was before 2010. Corporations could lobby Congress, states and localities and spent billions of 

dollars doing so. They could spend freely on "issue ads" promoting their policy positions and 

castigating their critics. They could spend money on voter registration drives and on internal 

corporate campaigning. They created Political Action Committees (PACs) and solicited 

contributions to them from their CEOs, executives and directors; the P ACs could then contribute 

money directly to federal candidates or spend independently. Meantime, CEOs, other executives 

and directors-people whose income and wealth have soared over the last several decades in 

relation to the rest of the country - contributed directly to federal, state and local candidates as 

individuals. In other words, despite all of the ludicrous whining by Citizen United's defenders, 

the corporate perspective was never missing in American politics. 

But there was one crucial thing that CEOs could not do prior to this outburst of rightwing judicial activism: they could not reach into their corporate treasuries to spend directly to 

advocate on behalf of (or against) the election of candidates for Congress or President. This 

prohibition essentially established a wall of separation between corporate treasury wealth and 

federal public elections. This wall was first erected by the Tillman Act of 1907 banning 

corporate campaign contributions to federal candidates, a policy decision advocated by President 

Theodore Roosevelt and made after a series of scandalous raids by insurance company 

executives on what Louis Brandeis called "other people's money" to finance the campaigns of 

friendly politicians. The wall was fortified over the last century by progressively stronger bans 

on independent corporate expenditures enacted in both federal and many state laws These bans 

were affirmed by the Supreme Court in Austin v. Michigan Chamber o/Commerce (1990) and 

McConnell v. FEC (2003), decisions which recognized the necessity of maintaining sharp 

distance between corporate wealth and democratic politics to prevent what the Austin Court 

called "the corrosive and distorting effects of immense aggregations of wealth that are 

accumulated with the help of the corporate form and that have little or no correlation to the 

public's support for the corporation's political ideas." 

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The Roberts Court's demolition of this wall of separation crushed a specific 

understanding of the corporation that goes back two centuries and had been accepted not only by 

liberals but by most of the leading conservative justices in our history. A corporation has never 

been seen as a constitutional person with voting rights or even as a political membership 

organization, but rather as an "artificial entity" chartered by the states or federal government to 

serve economic purposes. Chief Justice John Marshall wrote in the Dartmouth College case 

(1818) that, "A corporation is an artificial being, invisible, intangible, and existing only in 

contemplation of law. Being the mere creature of law, it possesses only those properties which 

the charter of creation confers upon it, either expressly, or as incidental to its very existence." 

Any constitutional rights claimed by corporations are totally derivative of natural persons and if 

those rights are separately vindicated for the individuals, the corporation will have none to claim. 

In the Bellotti case, conservative Justice Byron White pointed out that we endow private 

corporations with all kinds of extraordinary legal benefits and subsidies - "limited liability, 

perpetual life and the accumulation, distribution and taxation of assets" - in order to 

"strengthen the economy generally." But, he argued, a corporation has no constitutional right to 

convert its awesome state-enabled economic resources into political power. As he so cogently 

put it: "The state need not permit its own creation to consume it." Chief Justice William 

Rehnquist agreed, arguing that business corporations, which are magnificent agents of capital 

accumulation and wealth maximization in the economic sphere, "pose special dangers in the 

political sphere." 

While champions of corporate political power pretend as if it would be impossible to 

disentangle corporations from politics, we have an easy model to follow, which is that of 

municipal corporations and states, which also have the capacity to "speak" on policy issues 

through their leaders but no constitutional right to spend money in our political campaigns. Of 

course, if the "identity of the speaker" is truly irrelevant, as the new dogma insists, then cities 

and states will inevitably come to acquire the corresponding right to spend money in politics 

influencing people's votes. Of course, this would be a bizarre inversion of democratic 

relationships-the same kind of inversion effected by Citizens United itself. Yet, if we fail to 

pull back from treating corporate wealth as a fountain of political expression, we may be forced 

to get cities and states involved as political actors as a very modcst counterweight to the 

awesome power of the private corporations. Of course state and municipal governments captured 

by corporate-backed elected officials could just as well come to promote, rather than counter, the 

already-immense political voice of private corporations. At a certain point, Big Business and 

Big Government will just merge. 

Enthroning Corporations 

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By demolishing the wall separating our campaigns from the trillions of dollars of 

corporate wealth in America, the Roberts Court has enthroned for-profit corporations in our 

politics and proved itself to be far to the right of the Rehnquist Court. 

Consider what the decision might mean in the case of Exxon-Mobil, the nation's largest 

company and a powerful political actor even before Citizens United. 

In the 2008 election cycle, Exxon-Mobil's PAC raised more than a million dollars from 

executives and directors, money that came from the pockets of real-live human beings (and could 

not be reimbursed to them by the corporation). That not insubstantial sum undoubtedly gave 

enhanced collective voice to whatever contributions the donors had made individually. Poor 

people don't have PACs to compete, but fair enough, this is how the system has worked for many 

decades. 

But imagine if Citizens United had already been the law. 

In 2008 the company made $70 billion in profits. If the CEO had taken a modest 10% of 

those annual profits and spent $7 billion promoting the corporate agenda in elections that year, it 

would have been more than the Obama campaign, the McCain campaign, and every Senate and 

House candidate combined. 

That's one company in the Fortune 500. Multiply that new power by the other Big Oil 

players, the pharmaceutical industry, and the military-industrial complex, and you get a sense of 

how the Court has replaced the "one person one vote" relationship with the madcap ethos of 

Wall Street traders playing Monopoly and Risk with other people's money. All of this money, by 

law and by the very definition of what a corporation is, must be spent advancing the company 

bottom line and increasing shareholder value. Concern for the local or national community is an 

irrelevant, and potentially wrongful and actionable, distraction from maximizing shareholder 

returns. 

Of course, Exxon-Mobil need not spend anything like billions of dollars in order to make 

its point. If the CEO drew down a mere 1 % of its annual profits to spend $ 700 million, this 

would be more than enough to propel its agenda and end the political careers of the two or three 

most difficult Members ofthe Senate and House, sending a sharp signal to all the others about 

the price of crossing its path. 

We have already seen the difference that free-flowing corporate money makes. The 20 I 0 

election should have been defined by three recent corporate catastrophes--the BP Oil spill in the 

Gulf of Mexico, which wrecked an entire eco-system and inflicted billions of dollars of damage 

on the economy; the Massey company's collapsing coal mines in West Virginia, which cost 29 

people their lives and were made possible by the corporation's aggressive lobbying and 

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corruption of government; and the sUb-primc mortgage meltdown brought to us by the 

misconduct and political machinations of AIG and Wall Street, which cost the American people 

trillions of dollars in lost home values (and lost homes), ravaged pension and retirement funds 

and destroyed stock equity. 

But the massive infusion into the 2010 election campaign of tens of millions of dollars in 

corporate and personal wealth through secretive 501(c)4 and 501(c)6 organizations and the new 

super-P ACs completely changed the subject away from these debacles. With 84 special-interest 

super-PACs in action and unknown numbers of 50lc4 and 50lc6 organizations pumping in 

secret money, the dominant theme of the election became-amazingly-the importance of 

further deregulating corporations. The Republican Party and the corporate-backed Tea Party 

captured control of the U.S. House of Representatives and brought near paralysis to national 

government. The corporate catastrophes experienced by the nation went unaddressed in the 

campaign and ignored by Congress. 

Citizens United did not accomplish this feat alone but rather had a key strategic partner in 

SpeechNow v. FEC, another carefully staged 2010 right-wing legal production. This decision 

came from the U.S. Circuit Court of Appeals for the District of Columbia, which wiped out any 

limits on what individuals can give to independent expenditure campaigns and thus made SuperPACs what they are today. While Citizens United freed the corporations, SpeechNow 

emancipated the billionaires, like Sheldon Adelson, the casino king, whose $20 million SuperPAC spending kept Newt Gingrich's 2012 presidential campaign on a system of parallel life 

support through barrages of negative advertising unleashed on Mitt Romney in the Republican 

primaries. After Romney won the nomination, Adelson put $10 million into an anti-Obama 

Super-Pac and promises to spend tens or even hundreds of millions dollars more to elect Romney 

president. 

Today there are 577 Super-PACs and experts predict that more than $1 billion will be channeled 

into the 2012 election. 

A Constitutional Amendment is Democratic Self-Defense 

Amending the Constitution today to rebuild the wall of separation between corporate 

treasury wealth and political campaigns is an act not only of essential democratic self-respect but 

urgent democratic self-defense and self-preservation. 

An Amendment gives us the chance to exorcise the plutocratic demons that have haunted 

us since the rise of industrial capitalism and were constitutionalized when the Court in Buckley v. 

Valeo ruled that wealthy individuals cannot be limited in their independent political 

expenditures. The Buckley Court dismissed as invalid a democratic interest in promoting the 

conditions for political speech equality. Ignoring the rigorously equal speech allotments we use 

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in every major political and legal institution--including the Senate, the House of Representatives, 

and the Supreme Court itself, not to mention candidate political debates and the equal access 

rules governing broadcast radio and television, the Court simply declared that the "concept that 

government may restrict the speech of some [in 1 order to enhance the relative voice of others is 

wholly foreign to the First Amendment .... " This was the moment when the Court drove a deep 

wedge between political liberty and political equality in favor of class power. 

A constitutional amendment that empowers Congress and the states to regulate campaign 

contributions and expenditures would permit revival, on a viewpoint-neutral basis, of the 

essential but invalidated prohibitions on corporate political expenditures and unlimited 

billionaire spending. Such an Amendment could also reassert the public's imperiled interest in 

campaign finance disclosure and, as Professor Laurence Tribe has pointed out, the public's 

much-eroded interest in building public campaign financing regimes that make publically 

financed candidates at least minimally competitive with privately financed candidates--an 

interest that the Supreme Court has trashed of late, in cases like Davis v. FEC (2008) and 

Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2011). In these decisions, the 

Court has, in essence, ruled that privately financed candidates backed by wealthy interests have 

not only a right to spend to the heavens to win office but a right to freeze their financial 

advantages over public ally financed candidates, whose campaigns may not be subsidized or 

aided by government in any way to enlarge their power to communicate effectively against 

candidates of massive private wealth. Here, as distorted beyond recognition by the Roberts 

Court, the First Amendment becomes not the guardian of equal democratic liberties but the 

guarantee of unequal protection of the laws. 

Many civil libertarian stalwarts, like Burt Neuborne and Professor Geoffrey Stone, have 

not fallen for this prostitution of the First Amendment and some have expressed strong support 

for a constitutional amendment to undo the damage. 

But it is a matter of some melancholy that others, like the esteemed Laura W. Murphy, 

head of the Washington office of the ACLU, have been condemning a constitutional amendment 

strategy. Murphy wrote in the Huffington Post that, "The Constitution's radical stability is its 

greatest strength." But the people have repeatedly amended the Constitution when the Supreme 

Court makes common cause with the opponents of popular democracy. As Justice Thurgood 

Marshall observed in his famous speech on the Bicentennial of the Constitution, "the true 

miracle was not the birth of the Constitution, but its life, a life nurtured through two centuries of 

our own making ... " 

Yet, Murphy argues that this proposed Amendment would be different from others 

because "this would be the first amendment in history to limit individual, constitutionally guaranteed 

rights." This claim is flawed for two reasons. The first is that the Citizens United case extended 

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, "" WAY no new rights to any individual citizens, with the singular exception of individual CEOs who 

now enjoy the "right" to write checks from their corporate treasuries to advance or disparage 

political campaigns. The right to spend our own money in politics was one already enjoyed by 

every citizen. 

The second problem is that, throughout American history, there have been loud 

complaints that progressive constitutional amendments strip certain people of preexisting rights. 

The slavemasters and their apologists were adamant that the 13th Amendment deprived them of 

their property rights - and surely it did under existing law; similarly, many white males felt as if 

the weight of their votes were diluted by the addition of black and women voters--and surely 

they were; the opposition to the 16th Amendment on income tax was organized around property 

rights and some people's aversion to taxes; and so on. It is simply false to say that kicking 

corporate money out of political campaigns would be the first time that a constitutional 

amendment would realign the balance of rights in our country or make some people feel as if 

they are losing an edge in the legal system. 

Plutocracy Distorts the Market as well as Our Politics 

We have to face the fact that the new regime being developed by the Supreme Court is 

straight-up plutocracy, rule by the wealthy, and its structural foundation is private corporate 

wealth. Defenders of the regime like to point out that there are tens of thousands of corporations 

in America, most of them small, but this is an irrelevant distraction from how the corporate 

"wealth primary" works in the real world. Major industries that have an "extractive" character 

and a parasitic relationship on government-Wall Street, Big Oil, Big Pharma, major military 

contractors like Haliburton-<:ultivate a financial dependency in politicians which permits the 

corporations to continue what economists call "rent-seeking" arrangements with the government. 

These arrangements operate on a simple investment and return basis: corporations invest 

several million dollars in campaigns and lobbying, collect an astounding return of hundreds of 

millions or billions of dollars in tax breaks, corporate welfare, corporate warfare, sweetheart 

contracts, big bailouts, deregulation, and inside deals. This squalid form of "public policy" is 

splendid for the corporations involved but dismal for everyone else, including the smaller 

businesses that do not have the finance capital to invest in the political system. A plutocratic 

state denies both political justice and a fair and competitive market economy in which businesses 

thrive by virtue of their creativity and initiative rather than the size of their campaign spending 

and their stable of lobbyists. Adam Smith would be just as appalled as Thomas Jefferson and 

John Adams at this state of affairs. 

America has a market economy, which has served us very well in many ways. But we 

cannot afford to have a total market society in which major corporate power is dominant in our 

politics, superior to the voices ofthe people, and controlling of major public policy questions. 

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We should want aU private corporations, even the larger ones, to succeed, innovate, create, thrive 

and prosper, but never to govern and thereby thwart the wi\l- and replace the essential political 

sovereignty - of the people. 

******* 

Jamie Raskin is a professor of constitutional law at American University's Washington College of 

Law and a Democratic State Senator in Maryland where he chairs the Special Committee on Ethics 

Reform and serves as Majority Whip. He is the bestselling author of several books, including 

Overruling Democracy: The Supreme Court versus the American People and We the Students: 

Supreme Court Cases/or and About Students. He is also a Senior Fellow at People for the American 

Way. He can be reached at Raskin@wcLamerican.edu. 

July 20, 2012 

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Public Campaign's Testimony for the Senate Judiciary 

Subcommittee on the Constitution, Civil Rights and Human Rights: 

"Taking Back Our Democracy: Responding to Citizens United and the 

Rise o/Super PACs" 

July 24, 2012 

Thank you for allowing Public Campaign to submit written testimony for the 

Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights 

hearing on "Taking Back Our Democracy: Responding to Citizens United and the Rise 

of Super PACs." Public Campaign is a national nonpartisan organization that works 

to raise the voices of everyday people in our democracy through advocating 

common sense campaign reforms and holding politicians accountable for actions 

they do on behalf of their donors. 

We see legislation like the Fair Elections Now Act, championed by Sen. Dick 

Durbin (0-111.) and Rep. John Larson (D-Conn.), as one ofthe best responses to the 

Supreme Court's Citizens United decision. The bill would create a voluntary public 

financing system that emphasizes small donor fundraising. At the federalleveI. such 

a system has significant support: more than one-third of the US. House and onequarter ofthe US. Senate cosponsored the Fair Elections Now Act in the last 

Congress to create a voluntary public financing system, and we commend Sen. 

Durbin for his leadership on Fair Elections. But public financing is just one part of a 

broader democracy agenda, one that must also include increased disclosure of 

political contributions and a Constitutional amendment to overturn the Citizens 

United decision. We appreciate the efforts of Sens. Tom Udall, Sanders, and Baucus 
232 

for each introducing a Constitutional amendment to address the Citizens United 

decision. 

Massive spending after Citizens United by shadowy outside groups has led to 

the need for a Constitutional amendment, and the Supreme Court's flawed ruling 

has significant consequences not only at the federal level, but also at the state level. 

The secretive money spent in the Wisconsin recall election is a sign of things to 

come, and shadow front groups will likely continue to spend huge amounts of 

hidden money in states and localities, especially smaller ones with less expensive 

media markets. 

Certain states in particular saw a dramatic rise in outside spending after 

Citizens United. In Maine, outside groups spent $5.3 million in 2010, compared to 

$1.3 million in 2006,1 an unprecedented increase for such a small state. Nearly $1.5 

million of that 2010 total was spent on legislative races, more than double what was 

spent ($629,271) on the comparable elections in 2006. Of the almost $1.5 million 

total, $400,000 was spent by just one organization-the Republican State 

Leadership Committee-targeting a handful of state Senators, including Deb 

Simpson. The RSLC spent almost $200,000 in the Senate District 15 race between 

Republican Lois Snowe-Mello and Democrat Deb Simpson, including more than 

$87,000 in negative ads against Simpson. 

1 http://www.sunjournal.com/news/state/2011/12/24/report-2010-electionshowed-big-spike-outside-camp/1132096 
233 

At the federal level, the amount of secret and special interest spending has 

increased even more dramatically. Through March 8, 2008, outside interests spent 

nearly $40 million in federal elections, versus almost $90 million by this same date 

in 2012.2 However, this doubling in outside spending doesn't mean that more 

Americans are participating in the political process. Instead, just the most 

privileged and wealthy Americans are contributing millions of dollars, which drown 

out the voices of everyday Americans. Just 0.000063%-196 Americans-have 

contributed more than 80% of the super PAC money spent in the presidential 

elections so far in this cycle. Contributions given directly to congressional 

campaigns follow a similar pattern: only 0.26% of Americans have given at least 

$200, only 0.05% have donated $2500 to any congressional candidate, and 0.01 % 

has contributed more than $10,000 in the election cycle.3 

Since the Supreme Court continues to say that corporations have the same 

first amendment rights as do individuals, how can nurses, firefighters, and teachers, 

each whose median salary is less than $70,000, have their voices heard? Of the 20 

largest super PACs, the mean donation through June 18, 2012, is $61,372.4 Nurses, 

firefighters, and teachers certainly can't be expected to donate nearly all of their 

salary to a super PAC to have their voices heard. Instead, a Constitutional 

amendment overturning Citizens United to help put citizens back in charge of 

elections should be part of the discussion. 

2 http://www.gpo.gov /fdsys/pkg/CRPT-112hrpt571/pdf/CRPT -112hrpt571.pdf 

3 http://www.theatIantic.com/politics/archive/2012/07 /big-campaign-spendinggovernment-by-the-l/259599/# 

4 http://www.demos.org/publication/auctioning-democracy-rise-super-pacs-and2012-election 
234 

This debate is not just about campaign finance reform, though; it is 

fundamentally about who should be included: the many or the money? Everyday 

Americans or just the wealthy? Five Supreme Court justices chose the money over 

the many. Too often, many congressional Republicans are protecting wealthy 

donors and their moneyed interests at the expense of hardworking Americans. 

Congress must ensure that all Americans, not just the wealthy, have the opportunity 

to participate in the political process and have their voices heard. Pursuing a 

voluntary small-dollar matching system, coupled with robust disclosure and a 

Constitutional amendment, is the most comprehensive way to put everyday citizens 

back in charge of elections. 
235 

PO Box 70452 • Seattle, WA 98127-0452 • 206-784-2522 • washclean.org 

Re: Hearing scheduled July 24, 2012, before the Constitution Subcommittee of the U.S. 

Senate Judiciary Committee on proposals to amend the U.S. Constitution to remedy the 

decision of the U.S. Supreme Court in Citizens United v. Federal Election Commission 

Honorable Senator Richard Durbin, Chairman 

U.S. Senate Subcommittee on the Constitution 

Dear Senator Durbin: 

On behalf of Washington Public Campaigns (WPC), I thank you and your colleagues on the 

Constitution Subcommittee of the Senate judiciary Committee for holding a hearing, scheduled 

for July 24, 2012, on the most important issue facing our democracy today: Can our democracy 

survive the tsunami of money being poured into our political campaigns by a small group of 

extremely wealthy individuals and corporations? 

The Supreme Court's decision in Citizens United v. FEC in January 2010, followed by the DC 

Circuit Court decision in SpeechNow.org v. FEC in March 2010, has unleashed this flood of 

money which is overpowering even the candidates' own campaign donations, which are still 

limited. 

WPC is a citizens' organization in the State of Washington with an original goal of establishing 

publicly funded political campaigns in the State of Washington and for the U.S. Senate and U.S. 

House of Representatives. WPC successfully promoted a 2008 state law, which authorizes local 

governments (cities, counties, PUDs and port districts) to establish their own publicly-funded 

political campaigns. WPC is also working for the passage in Congress of the Fair Elections Now 

Act, to provide public financing for U.S. House and U.S. Senate campaigns. 

We have now concluded that in addition to promoting publicly funded political campaigns, we 

must work for approval of the following goals, which have become necessary to preserving 

democracy itself: 

Overturning Citizens United v. F.E.C. and SpeechNow.org v. F.E.C. with a constitutional 

amendment establishing that corporations do not have the constitutional rights of human 

beings, and money is not speech and that contributions and expenditures in political 

campaigns, whether funneled through candidate campaigns or independent groups, may be 

lawfully regulated by our elected state and federal representatives, 

Enacting the DISCLOSE 2012 Act, which is currently before the Congress, calling for 

greater transparency in campaign financing. 
236 

Our members support many organizations such as Public Citizen, Common Cause, Free Speech 

for People, Move to Amend, and People for the American Way, with whom we worked to 

support the City of Seattle's recent resolution urging Congress to propose to the states a 

constitutional amendment of similar nature to that indicated above. 

We remain committed to the America we once knew, where each person's voice had equal 

weight in the marketplace of ideas, and money did not determine the outcome of elections. 

We ask that a copy of this message be made a part of the hearing record. 

For the WPC Board of Directors, 

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

President 
237 

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

FOUND BELOW: 

Torres-Spelliscy, Ciara, Assistant Professor of Law, Stetson Law, 

Tampa, Florida, Part 1, see link: http://papers.ssrn.com/sol3/papers.cfm?abstract—id=2046832py.pdf 

Æ