U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

57–949 2010

H.R. 5175, THE DISCLOSE ACT, DEMOCRACY IS 

STRENGTHENED BY CASTING LIGHT ON SPENDING IN ELECTIONS 

HEARING 

BEFORE THE

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

Held in Washington, DC, May 6, 2010 

Printed for the use of the Committee on House Administration 

( 

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/administration/index.html 

srobinson on DSKHWCL6B1PROD with HEARING

(II) 

COMMITTEE ON HOUSE ADMINISTRATION 

ROBERT A. BRADY, Pennsylvania, Chairman 

ZOE LOFGREN, California, 

Vice-Chairwoman 

MICHAEL E. CAPUANO, Massachusetts 

CHARLES A. GONZALEZ, Texas 

SUSAN A. DAVIS, California 

ARTUR DAVIS, Alabama 

DANIEL E. LUNGREN, California, 

Ranking Minority Member 

KEVIN MCCARTHY, California 

GREGG HARPER, Mississippi 

JAMIE FLEET, Staff Director 

VICTOR ARNOLD-BIK, Minority Staff Director 

srobinson on DSKHWCL6B1PROD with HEARING

(1) 

H.R. 5175, THE DISCLOSE ACT, DEMOCRACY IS 

STRENGTHENED BY CASTING LIGHT ON 

SPENDING IN ELECTIONS 

THURSDAY, MAY 6, 2010 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON HOUSE ADMINISTRATION, 

Washington, DC. 

The committee met, pursuant to call, at 11:03 a.m., in room 

1310, Longworth House Office Building, Hon. Robert A. Brady 

(chairman of the committee) presiding. 

Present: Representatives Brady, Lofgren, Capuano, Gonzalez, 

Davis of California, Lungren, McCarthy, and Harper. 

Staff Present: Khalil Abboud, Professional Staff; Darrell O’Connor, Professional Staff; Victor Arnold-Bik, Minority Staff Director; 

and Katie Ryan, Minority Professional Staff. 

The CHAIRMAN. The hearing of the Committee on House Administration will come to order. Today we will hear testimony on H.R. 

5175, Democracy Is Strengthened By Casting Light on Spending in 

Elections Act. This bipartisan legislation was introduced on April 

29th and a nearly identical version was introduced in the Senate 

by Rules and Administration Committee chairman, Chuck Schumer, of New York. 

This is the second time that the committee has held hearings to 

address the Supreme Court decision in Citizens United. During the 

first hearing, we heard from campaign finance experts on how the 

decision will open the flood gates of unregulated money into the political system. While there may be many disagreements on the 

Court’s decision, I am confident that we all agree that the American people deserve to know who is attempting to influence American elections. 

That is why I am pleased that H.R. 5175 focuses on increasing 

transparency and strengthening our disclosure of political spending 

by all groups. The Watergate scandal of 1970 taught us a lot about 

secret campaign cash. Anonymous donations permitted corporations to funnel large sums in cash to candidates despite an existing 

ban on corporate contributions. 

Instead, our Federal disclosure laws have been strengthened to 

prevent Federal election officials from taking advantage of unreported donations and political spending. Campaign disclosure laws 

are effective, have bipartisan appeal, and by an 8 to 1 vote were 

upheld by the Supreme Court in Citizens United as constitutional. 

The DISCLOSE Act recognized that the American voters are at 

a minimum entitled to full and accurate reporting of campaign 

srobinson on DSKHWCL6B1PROD with HEARING

2 

spending so that voters may know who is attempting to influence 

their vote. Disclosure laws expose corruption, alert voters to who 

is behind the candidate on valid measures, and help to ensure that 

other campaign finance laws are being followed. 

In addition, H.R. 5175 will improve transparency by requiring 

the CEOs, union presidents, and top donors to stand by their ad 

instead of funneling money through sham organizations. 

Americans deserve honesty from those seeking to influence elections and legislation. They deserve to know that the drill here, drill 

now ad is funded by BP, not citizens concerned about Gulf Coast 

wetlands. 

I am also pleased that the DISCLOSE Act will close some glaring 

loopholes left open by the Citizens United decision, loopholes that 

threaten to corrupt our democracy. These loopholes must be closed 

so that well-funded special interests are not elevated over the 

American people. 

H.R. 5175 will prevent government contracts and entities receiving TARP funds from spending money on elections. Corporations 

should not be using taxpayers’ money dollars to influence the election of those in a position to distribute those resources. And a ban 

on election spending will protect those government contractors who 

simply do not want to get involved in the pay-to-play politics. 

H.R. 5175 will also close the loophole that would allow foreign 

corporations from influencing American elections through foreign 

controlled U.S. subsidies. Foreign countries should not be able to 

elect our leaders or decide our policy. Our national security depends upon it. 

I am also pleased that this bill has bipartisan and popular support. Since I have been chairman on this committee, the committee 

has never heard from so many concerned citizens since the Citizens 

United decision came down. According to numerous polls, 8 out of 

10 Americans are concerned about the decision’s impact on our democracy. The American people expect us to act and act we will. 

Our democracy should be and by for the people, not special interests. 

And I thank our panel for being here today. I look forward to 

your testimony. 

I would now like to recognize the ranking member, Mr. Lungren, 

for any statement that he may have. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I thank you 

for this and I know we are going to have another hearing on this 

matter. I might say, Mr. Chairman, I have appreciated the bipartisan spirit with which you have conducted this committee and the 

work that has been done with both of our staffs on most issues. Unfortunately, this is not one of them. 

It is more than irony that the title of the bill before us is Democracy is Strengthened By Casting Light on Spending in Elections, 

because I believe democracy is strengthened by casting light on the 

legislative process. Despite my request to have a cooperative spirit 

on this and despite my earnest desire to work on a bipartisan basis 

on this, our two letters to the leadership on the Democratic side 

asking for cooperation on this and asking if we could work on a bill 

to respond to any legitimate concerns was met by silence for more 

than a month. 

srobinson on DSKHWCL6B1PROD with HEARING

3 

I love the word ‘‘bipartisan’’ in reference to this bill when in fact 

a couple of members on my side of the aisle, not on this committee, 

were contacted by the authors of this bill and were instructed not 

to give copies of the bill to anybody on the Republican side on this 

committee. And being men of their word, they did not. And so the 

idea that we are here in a real effort to shine the light on the political process is overwhelmed by the fact that there was a refusal to 

shine light on the legislative process. Why did we have months of 

work behind closed doors with the refusal to even acknowledge letters that we had sent out and in fact instructions that anybody on 

our side of the aisle who might have seen it were not to show any 

part of the suggested legislation to members of this committee on 

the Republican side. This is, however, the authorizing committee or 

the committee of jurisdiction in this matter. So it is disappointing. 

I didn’t also realize I was going to hear an opening statement 

that was going to refer to things as wide ranging as offshore oil 

drilling and Watergate. I guess we ought to be ready for everything 

here today. 

Mr. Chairman, this legislation is troubling. It is troubling because we are dealing with a crucial part of the Constitution, the 

First Amendment and the essence of the First Amendment free 

speech protection, which is political speech. 

Mr. Chairman, I have not had as much experience as Mr. Olson 

has presenting cases before the U.S. Supreme Court. But for 8 

years of my life, I spent a good deal of time preparing briefs, editing briefs, overseeing presentations to the U.S. Supreme Court. The 

California Department of Justice appears before the U.S. Supreme 

Court perhaps more than any other entity other than the Solicitor 

General’s Office. I had the opportunity to argue a case before the 

Supreme Court. I understand how important words are, phrases 

are in context, particularly when you are dealing with an essential 

part of our Constitution. And I would argue, Mr. Chairman, that 

the First Amendment dealing with free speech, particularly as it 

affects political speech, is as important as any other part of our 

Constitution. And it seems to me it ought to have the highest degree of discernment, the highest degree of light, and the highest degree of consideration by this panel and the Congress at large. 

So I do thank you for having the hearings, but I must register 

my disappointment in the manner in which this has been presented. Senator Schumer and Mr. Van Hollen are outstanding representatives of your side of the aisle. They have led your political 

operation on your side of the aisle, one of whom continues to do 

that, and it is more than ironic that they would be the ones to take 

the lead on this bill. 

In an April 29th political article, Senator Schumer stated that 

unions should be treated the same as corporations, no more, no 

less. If you are going to do these ads, you shouldn’t be exempt no 

matter who you are. Well, if we are going to try and find some substantial way of restricting political speech—and I say if we are 

going to—I would agree with that statement. But this legislation 

does not follow that standard whatsoever. It does not even come 

close. 

The sections of the bill dealing with government contractors and 

TARP recipients exclude unions. I believe also media corporations. 

srobinson on DSKHWCL6B1PROD with HEARING

4 

So they are making a distinction in the bill before us between 

media corporations and other corporations, which the Supreme 

Court directly dealt with in their opinion. They said you can’t do 

that. And yet we are bringing a bill here before us that does exactly what the Supreme Court told us we could not do. 

This legislation punishes businesses with more onerous mandates at a time when we need a thriving marketplace and business 

environment to help people find meaningful work. If you happen to 

have a government contract for a good or service, you will now 

need to make sure it is not over an arbitrarily set limit. This legislation would punish American subsidiaries of companies that may 

have a percentage of foreign ownership. The voices of American 

citizens working for those U.S. subsidiaries would now be eliminated. 

As Nancy McLernon, President of the Organization for International Investment, an organization which represents U.S. Subsidiaries, stated, the legislation chips away at the political rights 

of 5 million American workers who collect over $400 billion in paychecks from the U.S. subsidiaries of companies based abroad or insourcing companies. 

I have got to ask this question. If we do this, what precedent 

does this set for foreign governments? We do have American companies working in foreign countries. Are those governments now 

going to have the opportunity to bring criminal sanctions against 

American companies who complain about laws that are directed 

against them by these foreign countries? 

I mean, we ought to understand what we are doing and how we 

may be advancing along a road which is going to harm American 

businesses doing international work, and that directly affects 

American jobs at a time when small businesses across this country 

are being forced to lay off employees. I have an employer in my district that laid off 75 employees immediately after the health care 

bill was passed as a direct result of the health care bill. They have 

hundreds of employees that are now at risk. But yet we go blithely 

on our way passing legislation and not being concerned on the impact of employees. And now we are going to have our employees 

worried about the threat of perjury and litigious requirements. 

As one former FEC Chairman has stated, the First Amendment 

says Congress shall make no law abridging the freedom of speech. 

Not Congress should protect some speech, but feel free to 

hyperregulate the political speech of businesses and nonprofits. 

Mr. Chairman, in all my years in Congress, I have yet to ascertain what the full definition of campaign finance reform really 

means. The goalposts frequently change. We are now frequently 

here for voting about the corporate takeover of our elections. I 

would like the help of this committee to be able to identify the people who ran suppression—voter suppression ads against my district 

in the last election. But we don’t do that sort of thing here. 

I find these ominous warnings intriguing. Are corporations the 

real enemy? Which ones, the big corporation, the small corporation, 

the medium corporation, the one you agree with or I agree with or 

I disagree with? The ones that happen to be in disfavor with the 

government today but may be in favor of the government tomorsrobinson on DSKHWCL6B1PROD with HEARING

5 

row? Is money the real enemy since many reformers support taxpayer funded campaigns? 

Mr. Chairman, our Republic has always had free, open, and robust debate. We have had a robust political culture. We all have 

had our complaints about the media, I guess, but the media and 

mediums change, the right of political speech does not and should 

not. 

As Justice Kennedy wrote in his majority opinion, rapid changes 

in technology and the creative dynamic inherent in the concept of 

free expression counsel against upholding a law that restricts political speech in certain media or by certain speakers. 

Today, 30-second television ads may be the most effective way to 

convey a political message. Soon, however, it may be that Internet 

sources such as blogs and social networking websites will provide 

citizens with significant information about political candidates and 

issues. 

The First Amendment does not permit Congress to make these 

categorical distinctions based on the corporate identity of the 

speaker and the content of the political speech. 

Mr. Chairman, the bill before us is 84 pages long. That is 27 

pages longer than the decision it seeks to change. It adds to the 

lengthy restrictions already in place. There are now apparently 33 

specific types of political speech needing regulation, 71 different 

types of speakers and statutory and regulatory edicts totaling more 

than 800 pages. The FEC has issued more than 1,700 advisory 

opinions since its creation in 1976. I don’t believe campaigns and 

elections should be this complicated. 

Mr. Chairman, with all due respect, this bill should really be 

called the Distract Act. It is a distraction. It is a distraction from 

what we should be doing. What we should not be doing is regulating what can be spent on disseminating political speech. We 

should not be trying to control the quantity, the content, or the 

timing of political speech. The government has no right deciding 

what the proper quantity of political speech is meant to be. 

This bill requires by its new disclosure in some cases for a 30- 

second ad where 14 seconds will have to be the disclosure. Is that 

chilling speech? I think it is. You take up over half, over half of 

the time of the commercial with a disclosure. 

As one Justice wrote, the amendment—speaking of the First 

Amendment—is written in terms of speech, not speakers. Its text 

offers no foothold for excluding any category of speaker, from single 

individuals to partnerships of individuals to unincorporated associations of individuals to incorporated associations of individuals. 

Mr. Chairman, I would just say we need a vibrant and healthy 

campaign in our political process. We need civility in the way we 

conduct ourselves. We need transparency in the way we conduct 

our campaigns. We do not, however, need to stifle speech, and we 

surely don’t need any more indecipherable regulations attempting 

to do so. 

The last thing I would say is this, as someone who has practiced 

law for nearly 40 years, this system is set up such that people who 

otherwise would be positively affected by the decision of the Supreme Court will have their free speech rights chilled. Why? Because we have let in this bill as it stands, a litigation process which 

srobinson on DSKHWCL6B1PROD with HEARING

6 

is going to be more extended than that which is allowed under current law for campaign rules, And it will mean that, much like Mr. 

Bossie’s organization, who presented to the FEC in 2008 a request 

and got their decision by the Supreme Court nearly 2 years later, 

it will basically mean that people will be put under the threat of 

civil and criminal penalty if they make the wrong decision with respect to a subsequent judgment by the Court. 

That is not the essence of the First Amendment. The essence of 

the First Amendment is to allow as much speech as possible. Some 

I don’t like. I don’t like some Supreme Court decisions that have 

allowed what I consider to be pornography out in the public square, 

yet that is what they have decided with respect to the First 

Amendment. 

Political speech ought not have less protection than obscenity, 

and I am afraid that what we have done in this bill in an effort 

to try and alter a Supreme Court decision without the cooperation 

of our side of the aisle, without looking at the constitutional questions inherent here, without being concerned about the underlying 

protection of free and fair and open speech, that we have gone 

down the wrong path. 

Thank God the writers of the Federalist papers didn’t have to 

worry about this kind of legislation or the great pamphleteers during the period of time of our Revolution. They would have found 

themselves subject to King George. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. Anybody else care to 

make an opening statement? 

Ms. Lofgren. 

Ms. LOFGREN. Mr. Chairman, thank you all. I will be brief because I want to hear our witnesses. I do want to thank you for 

holding this hearing today. 

When I read Justice Kennedy’s opinion, I will be honest, I didn’t 

agree with it. But so what? It is the Supreme Court. It is the decision. We have got to deal with it and I very much accept that, the 

rule of law. So as I read through the decision, I was actually heartened to see the reliance on the opportunity for disclosure to remedy 

some of the concerns I had in reading the decision, and I think the 

bill before us goes a long way in that regard. Obviously we are having a hearing to see if improvements can be made. But I think disclosure was really what the Court looked at, and it is really what 

this bill does. 

I would like to just note—I mean, you can never legislate on the 

basis obviously of a poll, but I will say that the public is with us 

on this one. Recently there was a poll on what people thought 

about Citizens United and the ability of corporations to have unlimited expenditures in the political arena. 85 percent of Democrats 

oppose the ruling, 76 percent of Republicans oppose the ruling, 81 

percent of Independents oppose the ruling. And I think the reason 

is this: We have a history that goes back—I am from California. 

I remember one time as an undergraduate there was a move that 

the trustees vetoed to make our school mascot at Stanford the Robber Barons. Certainly we are familiar 100 years ago with the kind 

of role that money played in politics, and it is not something that 

people want to go back to. 

srobinson on DSKHWCL6B1PROD with HEARING

7 

I have a number of questions. I had some other ideas on how to 

approach some of these issues. I have not yet introduced a bill, but 

I am looking forward to getting some thoughts really of a very distinguished panel on some other possibilities. And, Mr. Chairman, 

I believe you think that this hearing is very important. And I 

thank you and I yield back. 

The CHAIRMAN. I thank the lady. Mr. McCarthy. 

Mr. MCCARTHY. Thank you, Mr. Chairman, and thank you for 

calling this important hearing. This bill’s supporters have been 

using the phrase ‘‘sunlight is the best disinfectant.’’ I think this bill 

can benefit from a little sunlight itself, and this hearing is a first 

step. 

While both Senator Schumer and Representative Van Hollen 

commented that this bill will cover unions as well as corporations 

and trade associations, it seems they were conveniently left out of 

a key portion of the legislation. 

For example, union members’ annual dues don’t generally meet the $600 threshold required for reporting. Unions representing government employees have the same conflict concerns as government 

contractors, but those unions are left out of the bill. There are 

many international unions who raise the same concerns over foreign influence that the bill claims to address, but those unions are 

not affected by the bill. The author of this legislation would want 

to say that this bill treats everyone equally, but they have cherrypicked what provisions they want to apply to their supporters and 

which provisions it would just be more convenient for their campaigns if they ignore it. 

Plain and simple, this legislation is an incumbent protection bill 

that is intended to stop speech. Why else would independent expenditures and electioneering communications be held to higher 

standards than even candidate ads are for the disclaimer and 

stand-by-your-ad portion of the bill? 

The Democrats who introduced this legislation do not want individuals or groups to have the same opportunity to speak that Members of Congress do or, for that matter, unions do. For all practical 

purposes, unions have been carved out of this legislation. 

Mr. Chairman, we had an opportunity to work bipartisanly here 

in a way that brought about meaningful reform that still protects 

the First Amendment rights of the American people. Instead, we 

reached out repeatedly to our colleagues on the other side of the 

aisle in hopes of crafting a solution that would be able to garner 

wide bipartisan support but shut out the process of drafting this 

bill, and looking at this legislation, it shows. 

I look forward to hearing the testimony of our witnesses today 

and hope that they can shed some more light on the legislation we 

have before us. Again, I thank the chairman. And as my colleague 

from California said, maybe she was drafting a bill of her own. 

Once again, the minority on this side of the aisle will reach out and 

look to draft legislation not based upon campaign committees but 

based upon real policy that protects the American people. And I 

yield back. 

Ms. LOFGREN. Would the gentleman yield? I would look forward 

to working with you. I have not yet decided whether to introduce 

a bill, but I would look forward to working with you. 

srobinson on DSKHWCL6B1PROD with HEARING

8 

Mr. MCCARTHY. Well, I appreciate that and I would gladly introduce a bill. 

The CHAIRMAN. I thank the gentleman. Any other opening statements? 

Mr. HARPER. Mr. Chairman. 

The CHAIRMAN. Mr. Harper. 

Mr. HARPER. Thank you, Mr. Chairman. As Mr. Lungren pointed 

out earlier, I have to begin by noting that the bill at 84 pages is 

actually longer than the 57-page court opinion it seeks to overturn, 

but this bill is about much more than disclosure. And I certainly 

think well enough of my colleagues on the Democratic side to believe that this bill cannot really be what they intended. And I 

would like to offer a few examples if I may. 

As a result of section 102, American-based companies apparently 

now are going to be prevented from creating PACs, limiting the 

voices of their American employees and shareholders. And any time 

any corporation makes a donation, the CEO of that company is 

going to have to file certification with the FEC, even if it appears 

that that donation is to a charity and has nothing to do with an 

election. 

Under the coordination rules proposed by the majority in sections 

103 and 104, a candidate could be found to have coordinated and 

campaign-related spending based solely on the content of the communication without ever having had any interaction or knowledge 

or contact with the group making the expenditure. 

Now, if union dues are going to be treated under this bill as donations and payments subject to the reporting and disclosure requirements in sections 211 and 212, union members who don’t 

agree with their leadership may have to affirmatively refuse to 

allow their union dues to be used for campaign purposes every time 

they get a paycheck. That would also mean that union leaders 

would have to send certification letters every paycheck to those 

members assuring them that their dues will not be used for political activity. 

Furthermore, the required disclaimer language for television 

commercials in section 214 is so long that it could easily take up 

a group’s entire ad time. It even appears that some ads will require 

two separate stand-by-your-ad disclaimers from different people. 

This confusion and ambiguity would be bad enough in any bill, but 

it is especially bad here. 

This bill has implementing language that makes it take effect 30 

days after enactment, regardless of whether the FEC has published 

its regulations. That means there will be no guidance to clear up 

this ambiguity, no instructions for how to comply and no way to 

participate in the political process with confidence that your speech 

will not land you in jail. 

Those who seek to challenge this bill’s ambiguity and potentially 

unconstitutional provisions in court are going to be faced with a judicial review process that will be designed for delay and frustration. The procedure in this bill conflicts with the processes created 

in both the Federal Election Campaign Act and the Bipartisan 

Campaign Reform Act, opening the door to collateral litigation to 

decide what court to be in before this case is even heard. 

srobinson on DSKHWCL6B1PROD with HEARING

9 

It appears that section 401 is congressional forum shopping. The 

only conclusion one can draw from the immediate implementation 

without regulatory guidance and the protracted court process is 

that this bill was designed to affect the outcome of the 2010 elections and protect the majority’s incumbencies. 

Mr. Chairman, I echo the sentiments of my colleagues, Mr. Lungren and Mr. McCarthy, when I say that I had hoped that we could 

work together on this bill. There is common ground on a number 

of these issues, but this bill does not even attempt to reach it. 

I hope that our panel here today will be able to speak to some 

of these concerns that I have raised, and I look forward to their testimony. Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. I thank the gentleman. We have to take a walk 

for about an hour. We have got three votes on the floor. Rather 

than introduce the panel and make you stop, I would rather introduce you and let you continue to speak. You look pretty comfortable. I hope that you are. We should be back in about 45 minutes. 

We have three votes on the floor. Again, we have to recess this 

hearing until approximately 45 minutes. My colleague reminds me 

to remind you there is a cafeteria in the basement. We wouldn’t 

mind your patronage, And you can bring me back a decaf if anyone 

chooses to. 

Thank you. 

[Recess.] 

The CHAIRMAN. I would like to call our hearing back to order. 

And again, thank you for your patience. And I would like to introduce our panel. 

First we have Donald Simon. Mr. Simon represents a number of 

campaign finance reform organizations and is an expert on campaign finance and election law issues. Prior to his work on his current firm, he spent 5 years as Executive Vice President and General Counsel of Common Cause, directing the organization’s legislative and legal programs. 

Nick Nyhart is Co-Founder and President of Public Citizen, a 

nonprofit organization dedicated to campaign finance reform. Prior 

to serving as President of Public Citizen, Mr. Nyhart was national 

field director and deputy director for the organization. 

Theodore B. Olson. Mr. Olson is a partner at Gibson, Dunn & 

Crutcher. Mr. Olson was also lead counsel for Citizens United during the Citizens United v. FEC case before the Supreme Court. 

Prior to his work with the firm, he was Solicitor General of the 

United States, as well as Assistant Attorney General in charge of 

the Office of Legal Counsel in the United States Department of 

Justice. 

Ms. LOFGREN. Mr. Chairman, would you yield for just one moment for Mr. Olson? 

The CHAIRMAN. Yes, I will. 

Ms. LOFGREN. I have a meeting with the Speaker at 12:30. I may 

not get the chance to thank him for his pro bono effort on gay marriage in California. It really is something I appreciate, and I wanted to take this opportunity to thank him for that. 

Mr. OLSON. Thank you very much. 

Ms. LOFGREN. I thank you, Mr. Chairman. 

srobinson on DSKHWCL6B1PROD with HEARING

10 

The CHAIRMAN. You are welcome. 

David Bossie. David Bossie is the President of Citizens United. 

Prior to working at Citizens United, Mr. Bossie served as chief investigator for the United States House of Representatives Committee on Government Reform and Oversight, as well as investigator for Senator Faircloth’s special Senate campaign to investigate 

Whitewater Development Corporation. 

Lisa Gilbert, the rose amongst the thorns. Lisa Gilbert is a Democracy Advocate with U.S. PIRG, the federation of State public 

interest research groups. Ms. Gilbert works on measures to make 

government more transparent and elections more fair, as well as 

accessible. Prior to joining U.S. PIRG, Ms. Gilbert worked with the 

Fund for the Public Interest, where she ran large citizen outreach 

campaigns. 

Dr. Craig Holman. Mr. Holman is a Legislative Representative 

for Public Citizen. Mr. Holman assists in drafting campaign finance 

reform legislation and conducts numerous research projects on the 

impact of money in politics. In addition, he has been called upon 

to assist as a researcher and/or expert witness defending in court 

the bipartisan Campaign Reform Act of 2002 as well as the campaign finance reform laws of various States. Previous, Mr. Holman 

was Senior Policy Analyst at the Brennan Center for Justice. 

I thank you all for being here and I would ask you if you would 

just push your button and pull that mic a little closer to you, and 

we would hope that you would have your statements reach 5 minutes because I am sure we have questions, you may have to elaborate something you may have missed, and we will also accept any 

statements for the record. 

Mr. Simon. 

STATEMENTS OF DONALD J. SIMON, GENERAL COUNSEL, DEMOCRACY 21; NICK NYHART, PRESIDENT AND CEO, PUBLIC 

CAMPAIGN; THEODORE B. OLSON, PARTNER, GIBSON, DUNN 

& CRUTCHER, LLP; DAVID N. BOSSIE, PRESIDENT, CITIZENS 

UNITED; LISA GILBERT, DEMOCRACY ADVOCATE; AND 

CRAIG HOLMAN, GOVERNMENT AFFAIRS LOBBYIST, PUBLIC 

CITIZEN 

STATEMENT OF DONALD J. SIMON 

Mr. SIMON. Thank you, Mr. Chairman. I appreciate the opportunity to testify this morning on behalf of Democracy 21 on the 

DISCLOSE Act that was introduced last week in response to the 

Citizens United decision. The legislation provides Congress with 

the opportunity to mitigate some of the destructive impact of Citizens United, which has opened the door for corporations, labor 

unions and other organizations to flood Federal elections with special interest money and thereby to buy influence over government 

decisions with potentially massive campaign expenditures. 

The DISCLOSE legislation is fair and equitable and not partisan 

in its impact. The bill applies alike to corporations, labor unions, 

trade associations, and nonprofit advocacy organizations across the 

political spectrum. At the heart of the legislation are comprehensive new disclosure requirements that will provide for prompt pubsrobinson on DSKHWCL6B1PROD with HEARING

11 

lic disclosure of campaign-related spending by corporations and 

other covered organizations. 

Importantly, these reporting organizations are required to identify the sources of the funds they use for campaign spending. This 

essential provision is necessary in order to ensure that public disclosure of campaign-related spending is effective, that the money 

used to influence Federal campaigns cannot be hidden behind conduits, intermediaries or front groups used to mask the true source 

of funds. 

But the legislation is also fair to donors. Under the legislation, 

any donor to any organization can restrict the donated funds from 

being used for campaign spending. And if so, the donor will not be 

subject to any disclosure requirement. Thus, whether the donor’s 

identity is disclosed or not is fully within the donor’s control. 

Now, there was discussion earlier from Mr. Lungren and others 

about the constitutionality of these provisions, and I want to address that. 

Dating back to the Buckley decision more than 30 years ago, the 

Supreme Court has consistently endorsed the principle that the 

public has an important interest of constitutional significance in 

knowing about expenditures being made to influence election campaigns and about the sources that are providing the funds used for 

such expenditures. In upholding similar disclosure laws in the 

McConnell case, the Supreme Court by an 8 to 1 majority took note 

of spending done by generically named front groups such as Americans Working for Real Change or Citizens for Better Medicare. And 

with reference to those challenging the constitutionality of new disclosure rules that would unmask the sources behind what the 

Court called these dubious and misleading names, the Court said, 

‘‘plaintiffs never satisfactorily answer the question of how uninhibited, robust and wide open speech can occur when organizations 

hide themselves from scrutiny of the voting public.’’ 

Indeed, the Citizens United decision itself, after it first opened 

the door to corporate spending, then strongly reaffirmed the constitutionality of laws which require the disclosure of money spent 

by corporations to influence Federal elections. 

The Court in Citizens United, again by an 8 to 1 majority that 

included 4 of the 5 conservative justices, the Court rejected the argument that disclosure requirements chill the exercise of First 

Amendment rights. Disclosure requirements, the Court said, ‘‘impose no ceiling on campaign-related activities’’ and ‘‘do not prevent 

anyone from speaking.’’ The Court held that disclosure of campaign-related spending serves an important governmental interest 

‘‘in providing the electorate with information about the sources of 

election-related spending.’’ 

The Court recognized that disclosure ‘‘permits citizens and shareholders to react to the speech of corporate entities in a proper 

way.’’ This transparency ‘‘enables the electorate to make informed 

decisions and give proper weight to different speakers and messages.’’ 

The Court also squarely rejected the argument that only expenditures containing the expressed advocacy or its functional equivalent can be subject to disclosure requirements. 

srobinson on DSKHWCL6B1PROD with HEARING

12 

Finally, I want to note that there has always been strong and 

broad bipartisan support on Capitol Hill for full and timely disclosure of campaign spending. Even the most vocal congressional opponents of other campaign finance measures have argued that disclosure is the one reform that makes sense. 

For instance, as we quote in our written testimony, Senator 

McConnell, who was second to none in his opposition to campaign 

finance reform, said on national TV a few years ago that Republicans are in favor of disclosure and disclosure, he said, needs to 

be ‘‘meaningful’’ and ‘‘real.’’ With regard to a bill that at the time 

addressed spending by 527 groups, Senator McConnell said, ‘‘and 

so what we ought to do is broaden the disclosure to include at least 

labor unions and tax-exempt business associations and trial lawyers so that you include the major political players in America. 

Why would a little disclosure be better than a lot of disclosure?’’ 

On that at least Senator McConnell was right, a little disclosure 

is not better than a lot of disclosure. And what this legislation provides is comprehensive disclosure, disclosure that includes corporations and labor unions and trade associations and other groups now 

empowered by the Citizens United decision to spend their Treasury 

funds on Federal campaigns. And disclosure by them that—to use 

Senator McConnell’s terms—would be meaningful and real. Republicans who have supported disclosure in the past should support 

the disclosure rules in this legislation. 

In his radio address last Saturday, President Obama strongly endorsed this legislation. The President said that in the wake of Citizens United, ‘‘what we are facing is no less than a potential corporate takeover of our elections and what is at stake is no less than 

the integrity of our democracy. This shouldn’t be a Democratic or 

Republican issue. This is an issue that goes to whether or not we 

will have a government that works for ordinary Americans, a government of, by, and for the people. That is why these reforms are 

so important.’’ 

We agree. The public is entitled to know whose money is behind 

campaign-related spending and, ensuring there will be an effective 

answer to this question, this legislation serves as an important protection to safeguard the integrity of the democratic process. 

We urge you to act quickly to enact the DISCLOSE Act so it can 

be effective in time for this year’s elections. Thank you very much. 

[The statement of Mr. Simon follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

13 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 29 here 57949A.001
14 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 30 here 57949A.002
15 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 31 here 57949A.003
16 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 32 here 57949A.004
17 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 33 here 57949A.005
18 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 34 here 57949A.006
19 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 35 here 57949A.007
20 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 36 here 57949A.008
21 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 37 here 57949A.009
22 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 38 here 57949A.010
23 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 39 here 57949A.011
24 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 40 here 57949A.012
25 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 41 here 57949A.013
26 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 42 here 57949A.014
27 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 43 here 57949A.015
28 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 44 here 57949A.016
29 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 45 here 57949A.017
30 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 46 here 57949A.018
31 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 47 here 57949A.019
32 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 48 here 57949A.020
33 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 49 here 57949A.021
34 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 50 here 57949A.022
35 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 51 here 57949A.023
36 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 52 here 57949A.024
37 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 53 here 57949A.025
38 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 54 here 57949A.026
39 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 55 here 57949A.027
40 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 56 here 57949A.028
41 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 57 here 57949A.029
42 

The CHAIRMAN. I thank the gentleman. 

Mr. Nyhart. 

STATEMENT OF NICK NYHART 

Mr. NYHART. Thank you very much, Chairman Brady. Ranking 

Member Lungren and distinguished members of the committee, I 

am appreciative of the opportunity to give testimony today. 

I am Nick Nyhart, the President and CEO of Public Campaign 

actually, not Public Citizen, although my colleague, Craig, may invite me over to his side. We are a nonpartisan organization dedicated to changing the role of money in elections in a way that expands democracy in a public campaign. Our major Federal policy 

focus has been on the Fair Elections Now Act, which is Representative Larson’s bipartisan legislation that offers candidates an alternative way to fund their campaigns, relying on small donations and 

limited public funds. 

But I am here today to support a different piece of important legislation, the DISCLOSE Act. The DISCLOSE Act is a critical response to the Supreme Court’s recent decision in Citizens United 

that throughout decades of common sense practice limiting the influence of corporate and using Treasury funds in our elections. 

That decision, coupled with the skyrocketing cost of running for office, has made a bad situation worse. 

In my written testimony, I have provided my reasons for supporting the bill and suggestions that I believe will strengthen it. 

As I sit here today in front of you, I cannot help but use another 

example that is unfolding on our TV screens nightly, mentioned by 

Chairman Brady, that illustrates why this bill is so important. 

Over the last few weeks, Americans have watched a human ecological and economic tragedy unfold in the Gulf with tens of thousands 

of gallons of oil pouring into the ocean off our Gulf Coast. We have 

all come to understand that the cleanup of this disaster will take 

years. As children, we are all taught that we are responsible to 

clean up our own messes. 

Right now, oil companies like BP have their liability on a mess 

like this one capped at $75 million. Experts say this is a drop in 

the ocean, so to speak, compared to the actual cost of lost jobs, 

damage to the environment, increases in energy prices, and 

changes in the way of life throughout the Gulf Coast. 

Legislation called the Big Oil Bailout Prevention Act has been introduced in both Chambers to increase oil company liability from 

$75 million to $10 billion, and I know Mr. Davis on the committee 

is a leading cosponsor of the House measure. 

Our political system, given the Supreme Court’s recent decision, 

allows companies like BP to spend their Treasury money to influence elections. What would stop BP, a foreign-owned corporation, 

facing the projected penalty of a $10 billion cleanup bill from 

spending $10 million or $50 million or even $100 million or more 

to elect candidates who—it is simple math to see that their financial interest is in spending maybe $100 million to save as much as 

$10 billion. The DISCLOSE Act prevents foreign-owned corporations from doing that, and that is one reason it should pass. 

But the oil industry as a whole would certainly think that there 

for the grace of God go I. Executives at Exxon Mobil and others 

srobinson on DSKHWCL6B1PROD with HEARING

43 

like Citizens United will have the chance to spend political money 

from their treasuries also and do it in secret unless this passes. 

DISCLOSE will make the identities of those behind the acts public, 

in some cases requiring that companies’ executives take personal 

responsibility for the ad. 

Public disclosure is an important principle here that will give 

voters more information as they make decisions knowing that an 

attack ad is paid for by a big oil company with a vested interest 

in who wins an election and certainly provides an essential perspective on the, quote-unquote, facts by a group that might officially be called something like Americans for Jobs, Health, and Security. 

Transparency will help stop further erosion of our public trust in 

corporations and in our government. And even when DISCLOSE 

passes, oil companies will remain political actors, funding campaigns of Members of Congress. The oil and gas industry as a 

whole has given nearly a quarter of a billion dollars, and that is 

why we also need a fair election system, so candidates don’t need 

to chase oil industry checks to pay for their campaigns. 

In this past month, we have seen plenty of stories about campaign fund-raising alongside the Senate debate on financial regulation. Wall Street is spending money to shape policy. The full list 

of other big money issues on the table is a long one. 

In conclusion, neither DISCLOSE with its many provisions nor 

the Fair Elections Now Act alone address the entirety of these 

problems. But together they can make a big difference. That is why 

today I urge your support of DISCLOSE that will improve our political system for American voters. 

Thank you. 

[The statement of Mr. Nyhart follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

44 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 62 here 57949A.030
45 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 63 here 57949A.031
46 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 64 here 57949A.032
47 

The CHAIRMAN. Thank you. 

Mr. Olson. 

STATEMENT OF THEODORE B. OLSON 

Mr. OLSON. Mr. Chairman, Ranking Member Lungren, and members of this committee, I appreciate also the opportunity to speak 

today in connection with H.R. 5175, the DISCLOSE Act. I should 

say and I think your introduction—thank you, Mr. Chairman—suggested this. I have studied and litigated constitutional issues 

throughout my 45-year legal career both in private practice and in 

government. This has included nearly 8 years of service in the Office of Legal Counsel and the Solicitor General’s Office in the Department of Justice, the two divisions of the Department of Justice 

most responsible for constitutional questions, and I have argued 56 

cases in the United States Supreme Court, many of which had to 

do with constitutional questions, including seven cases involving 

the First Amendment, the right to free speech. I now represent and 

advise the United States Chamber of Commerce with respect to 

constitutional questions, including this act. 

The First Amendment declares that Congress shall make no law 

abridging the freedom of speech. Justice Thurgood Marshall explained for a unanimous Supreme Court that this constitutional 

protection has its fullest and most urgent application to speech uttered during a campaign for political office. The reason is simple, 

the right to self-government is unattainable without vigorous and 

uninhibited public debate about the qualifications and positions of 

persons seeking elective office. 

An essential component of the right to free speech is that government may not discriminate against speakers on the basis of their 

identity, their ideas, or their ability to speak. Political speech may 

not be stripped of its First Amendment protection on the basis of 

a speaker’s wealth, point of view or special interest or because the 

Speaker’s interests are represented by a trade association, an affinity group, a union or a corporation. 

The Supreme Court’s decision in Citizens United did not effect 

a revolution in First Amendment jurisprudence. In fact, it reaffirmed the central principle of the First Amendment, that free 

and unfettered political speech, whether we like it or not, whether 

it is popular or not, and whether it is supported by polls or not, 

is at the very core of our system of government. 

I respectfully submit that the DISCLOSE Act shares many of the 

same unconstitutional characteristics as the legislation invalidated 

in Citizens United. 

I will focus today during these oral remarks on only three: One, 

its far-reaching restrictions on the speech of companies offering 

services to our government; that is to say, government contractors; 

two, its discriminatory prohibitions on the speech of persons based 

upon their national origin or citizenship; and, number three, its onerous and discriminatory disclosure requirements for corporations 

or unions that wish to speak out on behalf of the interests of their 

members, their shareholders or their employees. 

First, the bill would prohibit speech on matters of vital interest 

to those who invest in or work for tens of thousands of government 

contract corporations. This type of wholesale criminalization of 

srobinson on DSKHWCL6B1PROD with HEARING

48 

speech can only be tolerable in the narrowest possible context if 

there were documented evidence that speaking out about candidates for high public office was a serious source of quid pro quo 

corruption of Federal office holders. 

There is no evidence before this body that this is or would be the 

case with government contractors’ independent, uncoordinated commentary on office holders or candidates for election. Indeed, more 

than half of the States, including California, Florida, Maryland, Oregon, Virginia and Washington and many more impose no restrictions at all on corporations’ independent expenditures. Yet there 

has been no showing that these States’ political systems are awash 

in corporate corruption. 

The constitutional flaws in making it a felony for government 

contractors to express opinions on who shall run our government 

are compounded by the provision’s discriminatory application. The 

application operation of this prohibition exempts labor unions and 

media corporations. The First Amendment will not tolerate selective bans on public speech based upon the identity of the speaker. 

That is a certain path to tyranny. There is no limiting principle to 

such discrimination. Who are we to pick out to say who can speak 

and who cannot speak? Would we prohibit speech by those who accept Federal housing assistance or public benefits or other benefits 

that the Federal Government offers? 

Second, this bill’s restrictions on persons on the basis of their nationality or citizenship are prohibited by the Constitution and intention with scores of Federal statutes that explicitly prohibit such 

national origin discrimination. 

It seems to me ironic that at the very time that so many political 

commentators are denouncing as discriminatory the effort by Arizona to enforce Federal prohibitions on illegal immigration, Congress might simultaneously adopt a measure that would abridge 

the freedom of speech of selected persons to express views on elections based solely on their national origin. 

Third, the disclaimer and disclosure provisions of this proposed 

legislation have serious constitutional flaws. It is important to recall that speakers who are concerned about disclosure wrote many 

of the pamphlets and books such as the Federalist Papers that 

played an important role in our Nation’s founding. 

This is not to say, Mr. Chairman, that disclosure requirements 

are invariably impermissible, merely that they must be rigorously 

scrutinized to ensure that they are not being used to place onerous, 

disproportionate, or burdensome restrictions on speech or impose 

discriminatorily to chill disfavored speech or speech by disfavored 

speakers. 

These concerns are undeniably present here. Statements by supporters of this legislation have already led many to infer that they 

will suffer adverse consequences for speaking out for or against office holders or office seekers. Indeed, some very public statements 

have openly acknowledged that this measure is targeted at specific 

corporate speakers. It has even been mentioned that it is targeted 

at the United States Chamber of Commerce. 

These disclosure requirements are onerous, confusing, burdensome, costly, and discriminatorily written. They quite obviously 

have less to do with informing the electorate and more to do with 

srobinson on DSKHWCL6B1PROD with HEARING

49 

silencing speech that might be critical of office seekers or, most of 

all, incumbents. It is indisputable that the more we restrict speech, 

the more we help out those already in office and handicap those 

who wish to throw the rascals out. If we make it illegal, complicated, expensive or burdensome to speak, we favor entrenched 

positions and stifle unpopular views. 

That is precisely why we have a First Amendment, and that is 

why all measures that make it a crime to speak or that impose a 

bureaucratic regulatory regime on public debate must be resisted 

and rejected. 

Thank you, Mr. Chairman. 

[The statement of Mr. Olson follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

50 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 071 57949A.033
51 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 072 57949A.034
52 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 073 57949A.035
53 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 074 57949A.036
54 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 075 57949A.037
55 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 076 57949A.038
56 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 077 57949A.039
57 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 078 57949A.040
58 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 079 57949A.041
59 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 080 57949A.042
60 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 081 57949A.043
61 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 082 57949A.044
62 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 083 57949A.045
63 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 084 57949A.046
64 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 085 57949A.047
65 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 086 57949A.048
66 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 087 57949A.049
67 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 088 57949A.050
68 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 089 57949A.051
69 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 090 57949A.052
70 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 091 57949A.053
71 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 092 57949A.054
72 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 093 57949A.055
73 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 094 57949A.056
74 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 095 57949A.057
75 

The CHAIRMAN. I thank the gentleman. 

Mr. Bossie. 

STATEMENT OF DAVID BOSSIE 

Mr. BOSSIE. Mr. Chairman, Ranking Member Lungren, members 

of the committee, I also appreciate the opportunity to be here. I am 

honored to be on the panel today. 

My name is David Bossie, and I am President of Citizens United, 

a 501(c)(4) membership organization that among other things 

makes movies. We produced and marketed 14 popular and timely 

documentaries over the past several years with three more scheduled to be released in 2010. 

Our 2008 film, Hillary The Movie, led to the recent Supreme 

Court decision in Citizens United v. Federal Elections Commission. 

The decision, the reason for this hearing and proposed legislation 

today, specifically recognized the importance of our First Amendment freedom of speech and, more importantly, political speech as 

a means to hold elected officials accountable to the people. Citizens 

should be free to question their government and its leaders. And 

indeed, that right is explicit in the words of the First Amendment. 

Measures like McCain-Feingold and the proposed DISCLOSE Act 

restrict that freedom either by design or unintended consequence. 

Restrictions on that exercise of the First Amendment right to political speech by design or oversight set very dangerous precedents. 

McCain-Feingold criminalized political speech. The Supreme 

Court justices correctly recognized that if Congress could criminalize political speech in film and advertising, they were heading 

down a dangerous path. 

As I sat in the Supreme Court watching the oral arguments in 

our case, I was appalled to hear the government lawyer argue that 

the government had the ability to ban books. I would ask the members of this committee on both sides of the aisle to stop for a moment and consider that statement. The government of the United 

States admitted that the logical conclusion of the Federal election 

law was that government had the constitutional authority to ban 

books. 

The First Amendment should be thoughtfully considered before 

rushing to enact this legislation. Despite the rhetoric from many on 

the left about corporations, this debate is about one thing and one 

thing only: The right of all Americans to speak out for or against 

their elected officials. 

Senator Schumer at a press conference just last week stated he 

hoped this legislation would result in fewer people participating in 

the political process. Again, I would ask members of the committee 

to take another moment to think about that more a moment. One 

of the authors of this bill explicitly stated that the purpose of the 

legislation was to discourage Americans from becoming involved in 

the political process. If that is not the definition of chilling free 

speech, I don’t know what is. 

In the 3 months since our victory corporations have paid for exactly one ad that was run in a small town Texas newspaper. Moreover, at least 26 States have longstanding laws that permit the 

same corporate activity in State elections as are now permitted in 

Federal elections after our decision. 

srobinson on DSKHWCL6B1PROD with HEARING

76 

My point is that this legislation is a solution in search of a problem. Unfortunately the solution burdens small businesses and nonprofit organizations, silencing the voices of average Americans 

rather than the big businesses it says it is targeting. While the proponents of this bill claim that they are acting so the people will not 

be drowned out, this bill would have precisely the opposite effect. 

The bill would require groups like Citizens United to file an extensive report within 24 hours of making a regulated expenditure, 

including not only an itemized list of the amounts paid to produce 

and air an ad, but also an itemized list of each person who has donated only $600 or more to Citizens United from the beginning of 

the calendar year up to the day in which the ad runs. As anyone 

who has filed reports with the FEC or the IRS can verify, this is 

an extremely burdensome task to accomplish within 24 hours. 

Already almost a quarter of my staff are comprised of attorneys 

and accountants. This legislation would force my group and others 

like it to spend a small fortune in order to exercise our constitutionally guaranteed right to speak. Of course, considering the rhetoric, the irony is that for-profit corporations, which is what everybody is talking about, would not be affected by this provision at all 

because it applies only to donors of which, so far as I am aware, 

Goldman Sachs has none. 

In today’s media environment, it is easy to demonize corporations 

to score cheap political victories. I would encourage the members 

of the committee to look beyond the rhetoric and think about the 

essential First Amendment rights that are implicated by this bill. 

Thank you. 

The CHAIRMAN. Thank you. 

[The statement of Mr. Bossie follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

77 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 101 57949A.058
78 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 102 57949A.059
79 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 103 57949A.060
80 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 104 57949A.061
81 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 105 57949A.062
82 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 106 57949A.063
83 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 107 57949A.064
84 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 108 57949A.065
85 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 109 57949A.066
86 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 110 57949A.067
87 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 111 57949A.068
88 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 112 57949A.069
89 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 113 57949A.070
90 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 114 57949A.071
91 

srobinson on DSKHWCL6B1PROD with HEARING


Insert graphic folio 115 57949A.072
92 

The CHAIRMAN. Ms. Gilbert. 

STATEMENT OF LISA GILBERT 

Ms. GILBERT. Chairman Brady, Ranking Member Lungren, committee members and distinguished panelists, good afternoon. My 

name is Lisa Gilbert, and I am the Democracy Advocate for the 

U.S. Public Interest Research Group. 

U.S. PIRG is a federation of State PIRGs which are nonprofit, 

nonpartisan, public interest advocacy organizations. And we are 

pleased to be part of this critical conversation today. 

I would like to take this time to make three points: first on the 

necessity for a legislative response to address the Supreme Court’s 

dangerous Citizens United decision; second, on several important 

components in the DISCLOSE Act newly introduced by Representatives Brady, Jones, Castle and Van Hollen; and then, third, to 

briefly discuss why Representative Capuano’s Shareholder Protection Act should move in tandem with the DISCLOSE Act. 

The decision in the Citizens United case raises concerns that the 

newly enabled flood of corporate spending could skew participation 

and drown out the voices of independent voters. This decision has 

elevated the role of corporations in politics at the very moment 

when regular Americans already have a marked distrust for corporations and especially for Wall Street. This one-two punch has 

increased the unpopularity of this decision, and, as Ms. Lofgren 

stated earlier, there was a poll conducted recently by ABC and the 

Washington Post in which 8 of 10 Americans outright disagreed 

with this opinion. 

In addition to being unpopular, it is also destructive. No matter 

what the final tally of election spending is in the 2010 elections, 

it will only take one or two races where industry giants like Exxon 

Mobil or Goldman Sachs bring their now unlimited dollars to bear 

and successfully influence an outcome to forever change the dynamic of American elections. 

Every officeholder in the land will be keenly aware that their 

race could, in fact, be next. 

There are several components which I would like to highlight in 

the DISCLOSE Act that we think are vital to mitigate the worst 

impacts of this decision: those that are designed specifically to increase transparency disclosure and disclaimer; those that are in 

place to limit the influence of foreign entities in American elections; and those that are in place to ensure that corporations with 

substantial government moneys are not intervening in politics. 

After Citizens United, the voting public urgently needs enhanced 

disclosure. This is an incredibly basic step. Where the money comes 

from is one of the most important ways that voters can test the accuracy of campaign statements and is essential if the free and open 

marketplace of ideas is to function properly. 

The DISCLOSE Act would begin to get behind the money shell 

games and would help voters find the sources of election funding 

by requiring corporations to disclose in numerous places, both 

when moving and spending their money for political purposes, as 

well as inform the public through disclaimers by their CEOs. 

This bill has begun to receive the bipartisan support that it deserves, and the transparency and disclosure provisions specifically 

srobinson on DSKHWCL6B1PROD with HEARING

93 

should strike a cord with anyone who cares about open and accountable government. 

The Court’s decision in Citizens United also likely opens the door 

for independent expenditures by foreign corporations in American 

elections. Under existing law, foreign nationals cannot spend 

money in elections. However, the definition of foreign nationals 

does not currently include domestic U.S. corporations that are 

owned or controlled by foreign interests, and the Citizens United 

case has opened a sizable loophole for those corporations to participate. 

The DISCLOSE Act expands the definition of a foreign national 

to include these types of foreign companies and appropriately ensure that they cannot make independent expenditures. 

Corporations that receive substantial government funds should 

be barred from making independent election expenditures. Under 

current law, government contractors cannot make direct contributions to candidates, and the DISCLOSE Act simply applies similar 

pay-to-play restrictions to independent expenditures for companies 

who have over $50,000 in government contracts or have received 

TARP funds and not yet repaid the money. This lessens the potential for direct corruption. 

Finally, I will speak quickly on the importance of Representative 

Mike Capuano’s bill, the Shareholder Protection Act. The bill requires an affirmative majority of shareholders to authorize future 

corporate political expenditures and requires disclosure of that 

spending. Currently, nearly one in two American households owns 

stocks. However, American shareholders lack both the ability to object or consent to political spending and the right to be told about 

it. It is particularly antithetical to the ideals of a participatory democracy to envision a company using shareholder profits to support 

a candidate that the shareholders might actually choose to oppose. 

We urge Congress to move the Shareholder Protection Act in tandem with the DISCLOSE Act. To conclude, for those who cherish 

an active democracy, the Court’s decision in the Citizens United 

case was fundamentally wrong and also just a tragic mistake. Congress needs to act now within the boundaries left by the Court and 

move and strengthen the DISCLOSE Act and the Shareholder Protection Act to protect the integrity of upcoming American elections. 

Only by first passing these types of responses can we hope to pass 

further legislation designed to tackle the underlying problem which 

is corrosive special interest money in American politics. 

Thank you and I look forward to your questions. 

The CHAIRMAN. I thank the lady. 

[The statement of Ms. Gilbert follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

94 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 121 here 57949A.073
95 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 122 here 57949A.074
96 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 123 here 57949A.075
97 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 124 here 57949A.076
98 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 125 here 57949A.077
99 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 126 here 57949A.078
100 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 127 here 57949A.079
101 

The CHAIRMAN. Mr. Holman. 

STATEMENT OF CRAIG HOLMAN 

Mr. HOLMAN. Chairman Brady, Ranking Member Lungren, committee, thank you for letting me testify on this issue. 

The DISCLOSE Act has been criticized here for criminalizing 

speech or in some some way chilling free speech. This act does 

nothing of the sort. This act is largely a disclosure measure which 

has gained—the type of concepts that have gained support across 

both parties in previous years, with some important measures to 

help preserve the integrity of the legislative process. 

What is often overlooked in this whole debate is the impact of 

the Citizens United decision on the legislative process. The ranking 

member, in his introductory remarks, emphasized that we should 

be talking about the legislative process, so let’s do that. 

What we find that the DISCLOSE Act can do is, it is not just 

an impact on the campaign finance arena, it will have a dramatic 

impact on you and on this committee. The House Administration 

Committee helped lead the way a couple years ago in drafting and 

promoting the Honest Leadership and Open Government Act that 

tried reining in some of the worst abuses we have seen of lobbying 

here on Capitol Hill, and it was a sweeping, sweeping improvement 

in the whole legislative process. 

Citizens United has the danger of reversing much of those 

achievements in allowing corporate lobbyists to walk into meetings 

with you and your staff, carrying this big club of a potential campaign expenditure for Members who are friendly and punishing 

those Members who may not be as friendly to the corporate interests that are being pursued. 

This is something that should be discussed more. When we are 

talking about Citizens United, we are not just talking about money 

and politics. We are talking about the lobbyists who are going to 

represent these corporations. 

What we need and what is achieved—what could be achieved in 

the DISCLOSE Act is critical disclosure provisions that allow you 

and other Members of Congress and the public realize that if any 

of these corporate lobbyists or corporations decide that they are 

going to use that big club, that the public is going to be aware of 

who is financing various campaign ads, who is behind the campaign ads, and what interest it is that they are attempting to 

achieve behind those campaign ads. That is an important means to 

fill in a huge loophole that currently exists in our regulatory regime. 

Under the current transparency regime, contributions from major 

corporations to such groups as Americans for Job Security or the 

Chamber of Commerce do not get disclosed. As a result, we don’t 

really know what corporations or what labor unions or what other 

entities are really seeking to do behind financing certain campaign 

ads. 

The Bipartisan Campaign Reform Act tried to regulate that. It 

required disclosure of electioneering communications. In 2004 all 

electioneering communications revealed most of their donors, but 

quickly in 2008, many of these third-party groups, especially, realized that they did not have to disclose individual corporate donors 

srobinson on DSKHWCL6B1PROD with HEARING

102 

as long as those moneys were not specifically earmarked for that 

advertising campaign. That has become the norm at this point. 

We just saw in the 2008 Massachusetts Senate election, Ameri- cans for Job Security reported spending about $1 million in the 

campaign, but did not disclose any donors. Same with the Chamber 

of Commerce. This measure is primarily and importantly a disclosure measure that is going to close those loopholes so the public 

and lawmakers can know who is financing these types of campaign 

ads. 

I also want to emphasize one important regulatory measure that 

is included in this, and that is the pay-to-play provision to government contractors. This is not a revolutionary idea, nor is this a 

campaign finance reform measure. When it comes to regulating 

campaign contributions or expenditures by government contractors, 

that legislation is not designed to curtail money flowing into politics; it is designed to enhance the integrity of the government contracting process, to make sure that government contracts are 

awarded to companies based upon merit and not based upon campaign contributions or company expenditures. 

This measure helps extend the current pay-to-play law to include 

independent expenditures and electioneering communications that 

are financed by these government contractors, a narrow class of 

corporations. 

It should be improved to make sure it captures also any corporate contributions to groups like Americans for Job Security that 

are used for political expenditures, and then we would have a full, 

strong disclosure regime, along with some important improvements 

in making sure that the integrity of government is preserved. 

Thank you. 

The CHAIRMAN. I thank the gentleman. 

[The statement of Mr. Holman follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

103 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 132 here 57949A.080
104 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 133 here 57949A.081
105 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 134 here 57949A.082
106 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 135 here 57949A.083
107 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 136 here 57949A.084
108 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 137 here 57949A.085
109 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 138 here 57949A.086
110 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 139 here 57949A.087
111 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 140 here 57949A.088
112 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 141 here 57949A.089
113 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 142 here 57949A.090
114 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 143 here 57949A.091
115 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 144 here 57949A.092
116 

The CHAIRMAN. And I thank the panel. We will open it up with 

questions. I have just a couple. 

I guess, Mr. Holman, because you touched on this, if Congress 

does not pass this act, where can shareholders and where can investors of a corporation find that information of the corporate 

spending with their—how would they find out—I am a shareholder, 

how do I find out where my corporation—I am a shareholder, how 

do I find out where they are spending their money on political ads? 

Mr. HOLMAN. There is no built-in system in the United States for 

that type of information to be given to shareholders. There is a system in the United Kingdom in which corporations are, in fact, required to inform shareholders of any political expenditures, but we 

don’t have that system here in the U.S. 

Now, corporations will include general categories in their annual 

reports to shareholders, but not to the public. And even in those 

types of annual reports, it is not detailed to the point in which a 

specific political expenditure would be identified. There is no such 

disclosure here in the U.S. 

The CHAIRMAN. So if I am not an investor or shareholder, I am 

just a citizen, and I like Deer Park, and I buy Deer Park water, 

and if this bill doesn’t pass and if Deer Park puts out a whole lot 

of commercials against me, I won’t know that, and I will continue 

to buy Deer Park and I will continue to contribute financially to an 

organization or corporation that is putting commercials or putting—spending money against me. 

Mr. HOLMAN. That is correct. You won’t know that, the shareholders won’t know that, and the public won’t know how these political spending decisions are being made, how much is being spent, 

or who is being promoted or attacked. 

The CHAIRMAN. One other thing, and this is a comment. I am a 

member of two unions, still carry a card for both unions. And my 

unions and other unions that I know of, before they make a political expenditure, it has to be ratified, it has to be agreed by the 

executive board and then ratified by its full membership. So that 

is pretty much the disclosure that they do, existing right now, that 

corporations don’t do. I want to be clear in the difference between 

unions and corporations. 

Now I will turn to my ranking member, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Mr. Holman, can you tell me the five largest donors to your organization? 

Mr. HOLMAN. We don’t have any government sponsors to Public 

Citizen. 

Mr. LUNGREN. No, no, no, no, no. The five largest donors. 

Mr. HOLMAN. Oh, the five largest donors. I don’t deal with the 

financial arrangements. 

Mr. LUNGREN. Are you required to do that by law? 

Mr. HOLMAN. We report on our IRS Form 990s the amounts of 

money that we get. All our money comes from individuals and 

foundations. But I am not involved in the fundraising activity. 

Mr. LUNGREN. Ms. Gilbert. 

Ms. GILBERT. I don’t know the top five donors off the top of my 

head. But, similarly, all our funding comes in small amounts from 

individual citizens. 

srobinson on DSKHWCL6B1PROD with HEARING

117 

Mr. LUNGREN. So it is reported publicly? 

Ms. GILBERT. But it could be publicly accessed. 

Mr. NYHART. We comply with all the reporting requirements. We 

report to the IRS our 990s. 

Mr. LUNGREN. I don’t know what the reporting requirements are. 

Mr. NYHART. We have to report to the IRS. Our largest contributor is a nonprofit. 

Mr. LUNGREN. Let me ask you this. Mr. Nyhart, you mentioned 

BP, and you talked about the Big Oil and so forth, and you talked 

about the corrosive influence. According to Politico’s article, during 

the time in the Senate while running for President, President 

Obama received a total of over $77,000 from BP and is the top recipient of their PAC and individual money over the past 20 years, 

according to financial disclosure records. 

Are you suggesting that the reason why his administration didn’t 

support legislation to extend the liability for BP and other people 

similarly situated was because he got those moneys? 

Mr. NYHART. I am suggesting it raises the questions of conflict 

of interest when large amounts of money are given to politicians. 

And I think it raises that even more—— 

Mr. LUNGREN. So my question is, are you—I just want to know— 

you brought up BP and you brought up this oil spill. 

Mr. NYHART. That is right, and I think their contributions raised 

that question every time. 

Mr. LUNGREN. With the President? 

Mr. NYHART. I would include the President and Members of Congress, yes. 

Mr. LUNGREN. The major question I have got here is the difference, Mr. Olson, between direct political contributions to a candidate and the use of funds to express a political point of view. 

Here it almost sounds like we are confusing the two or we are overlapping the two as if there is no distinction. 

Let me try and put it this way. There seems to be some confusion 

as to whether the Citizens United decision allows foreigners to be 

directly involved in our campaigns. 

And so I would posit this question, as I understand Random 

House now, one of the most important publishers of books in this 

country, is no longer owned by a U.S. entity. I think it is German 

or something. I am not sure what it is. 

Under this bill, if a professor at Harvard or Stanford or some 

university were to publish a book, were to write a book, it was published by Random House, in this fall or during this fall, before the 

election, and let’s say it is 950 pages, but three of those pages in 

there specifically were critical of a Senator up for election—specifically, it made very clear that anybody reading it would say this is 

critical of this Senator who is up for election—if I had this information before me, I would be less likely to vote for that person. Would 

Random House, because it is owned more than 20 percent by foreign interest, run afoul of this law? 

Mr. OLSON. I think it would, Congressman Lungren. That very 

question was asked during the arguments in the Supreme Court 

under the previous law in the Citizens United case, and the government said this—Mr. Bossie mentioned this—that the theory 

srobinson on DSKHWCL6B1PROD with HEARING

118 

that the government was advancing to support the constitutionality 

of what that law did would support the suppression of books. 

Now, you raise a separate question because that was addressed 

to the question about corporations. 

Mr. LUNGREN. Right. 

Mr. OLSON. And the Supreme Court, contrary to what the President said in the State of the Union address, did not in any way address the foreign corporation or foreign citizen involvement in elections issue. In fact, the Supreme Court said we are not addressing 

that question. 

Mr. LUNGREN. That is a distinction between a direct contribution 

of a candidate versus political speech. 

Mr. OLSON. That is an additional distinction the Court made for 

the first time in Buckley v. Valeo in 1976. The Supreme Court said 

that contributions raised potentially a concern about corruption, actual corruption. The Supreme Court said that actual corruption, 

quid pro quo corruption, is the only justification for inhibiting political speech. 

The Supreme Court said that limits on contribution might be acceptable because the money is going right from the donor to a 

Member of Congress or a candidate; whereas independent, uncoordinated expenditures, where the entity spending the money to express a point of view, does not raise the concern of corruption that 

a contribution would. So there is a distinction there. 

And then the final point is that this legislation, in a very ambiguous way, selects out people who are foreign nationals or foreign 

corporations. And corporate structure these days is a very, very 

complicated situation for particular discrimination, and to impose 

particular burdens and I think that that—oh, one more point. Random House is a so-called media corporation. And the proposed legislation would make a distinction for a media corporation. And the 

Supreme Court said there isn’t any justification in the Constitution 

for selecting out someone because they are in the business of a 

media, or as opposed to a different type of business, or if they own 

a television station or a book publisher. So that also raises constitutional questions because it discriminates on the basis of the 

identity of the speaker. 

Mr. LUNGREN. Thank you. 

The CHAIRMAN. Mr. Capuano. 

Mr. CAPUANO. Thank you, Mr. Chairman. 

Ladies and gentlemen, I want to be very clear. I am for public 

financing of campaigns, because I just went through a campaign 

that raised $3 million in 2 months, and I hated every minute of 

that. I don’t like the perception it leaves with people. I don’t like 

it, period. Can’t get it, so we are stuck with the situation we have. 

I am for shareholder empowerment and shareholder protection. 

My guess is if I want to donate to somebody, I should be the one 

who makes that decision. If it is my money, you shouldn’t make 

that decision for me. I feel that shareholders own corporations. 

They should be the ones making that decision. 

At the same time, I really don’t have too much of a problem with 

this general decision. And some of the detailed aspects of this proposal concern me as well. And I think those are fair questions. Is 

20 percent a right number? I don’t know. Those are fair questions. 

srobinson on DSKHWCL6B1PROD with HEARING

119 

The concept, however, of simply letting voters know who is saying what is unassailable to me. And the concept of a chilling effect? 

Well, one of the people I just ran against was the attorney general 

of the Commonwealth of Massachusetts, a fine person. You don’t 

think the people who donated to me might have been a little concerned that the attorney general might abuse that power? 

Now, in Massachusetts, and this particular candidate, there is no 

concern with that. But others may not feel that way; or district attorneys or judges that are not elected. They are not elected in Massachusetts, but they are elected other places. So the chilling effect 

is there. Yet no one, to my knowledge, has yet publicly suggested 

that we should have secret donations to candidates for office. 

Does anybody here think we should have secret donations for 

campaigns, candidates? 

Mr. OLSON. That goes back to the distinction that Congressman 

Lungren made: contributions versus expenditure. 

Mr. CAPUANO. I understand that. But does anybody here think 

that we should have secret donations to candidates? 

Mr. OLSON. Well, we haven’t; and the Supreme Court has upheld 

the constitutionality. 

Mr. CAPUANO. I understand that. I am asking does anyone here 

think so? I didn’t think so, but I wanted to hear it. 

Mrs. DAVIS of California. I was curious to hear are you against 

that or for it? 

Mr. OLSON. I am neither against it or for it, but the legislation 

that was upheld in Buckley v. Valeo, and legislation for a long time 

has prohibited anonymous contributions or contributions—— 

Mr. CAPUANO. Excuse me, this is my time. And I will tell you 

that this is not the Supreme Court of the United States. And I am 

a lawyer, too, and I understand that is why we have courts, so lawyers can go make arguments and judges make their decisions. And 

to my knowledge, there is no lawyer that I have ever met that has 

not lost a case in a court. Now maybe there is one, but I haven’t 

met that person yet. That is what we do. 

That being the case, a chilling effect in and of itself is a concern, 

and a legitimate one, and the Court will make that decision whether a specific law does that. 

At the same time, the whole concept of making something public 

can’t, in and of itself, be a chilling effect. The very fact that Mr. 

Lungren knew that President Obama took X amount of dollars 

from BP is a good thing. I am glad you know that. I am glad anybody here can go find out who my top five donors are and draw any 

conclusions you want from it. 

All I want is when people go on TV or take out an ad and say 

Mike Capuano is a good guy or a bad guy, people know who is saying it. That is all, in the final analysis. 

Now the details. There are questions, some points, I am happy 

to work with people on some of these details. But the concept of 

it—and by the way, when it comes to foreign corporations, I understand the definition of one is a fair question. 

Does anybody here think that ADIA Corporation should be able 

to donate and be involved in American politics? 

ADIA Corporation is the largest sovereign wealth fund in the 

world, worth almost $1 trillion, run by the United Arab Emirates. 

srobinson on DSKHWCL6B1PROD with HEARING

120 

Does anybody here think that they should participate in our election process? 

Mr. OLSON. I think that a point was made at the beginning by 

Congressman Lungren, is are we going to say that it is against the 

law—— 

Mr. CAPUANO. I am asking a very simple question. 

Do you think that ADIA Corporation should be able to participate in our election process? And it is okay if you do. 

Mr. OLSON. I think what you are saying is that we should make 

it a felony—— 

Mr. CAPUANO. I am not saying that. I am asking a question. 

Mr. OLSON. I am trying to answer your question. 

Mr. CAPUANO. The answer is yes or no. 

Mr. OLSON. The answer is no if it means you are going to make 

it a crime by Congress to pass a law that says someone can’t speak. 

Mr. CAPUANO. I agree with you. They should not be allowed. 

Now, the question of what is a foreign corporation is a fair question. This is a wholly owned subsidiary of a foreign government. It 

is a corporation. And I happen to agree with you. Now we are in 

the definition of what is a foreign-owned corporation. Fair question, 

always gray areas no matter where we come up, and I am happy 

to work with trying to redistinguish the lines. 

I have concerns about 20 percent. I am not so sure I have any 

concerns whatsoever about 100 percent. And by the way, foreign individuals are already prohibited from participating in our elections. 

So we have a history of doing that. 

Some of the issues that have been raised, the broad issues, are 

all specious. The specific comments, fair point. But first of all, we 

are happy, I am happy to work with making this law better. There 

are some things here I don’t like. And when we are finally done, 

I have no doubt, no matter what we come up with, Mr. Bossie, you 

will be in court. God bless you. And I also suspect you will win 

some points. God bless you. That is what we are here for. 

But the prospect of one or two or ten or 100 people telling me 

this is what I feel is constitutional and unconstitutional should not 

stop us if we feel that it is constitutional. That is what the Court 

is for. And they will decide and whatever they decide—depends 

who is on the Court when you get there—you will probably win a 

few, and when you do, we will come back and we will try to amend 

it then. 

But the concept of simply publicizing who is participating in our 

electoral process cannot be assailed in any rational, reasonable 

way, in my district, or, I think, in this country. The lines—we will 

have debate, and we will have, hopefully, some agreements. But 

not the concept. 

Thank you. Mr. Chairman, I think I yield back the time I have 

already gone over. 

The CHAIRMAN. Mr. Harper. 

Mr. HARPER. Thank you Mr. Chairman. I think that a lot of 

things are circling here as we discuss this. And of course I am one 

of those who is strongly opposed to the Fair Elections Now Act and 

having taxpayer-funded elections. I was certainly one who doesn’t 

like to raise money. It is no fun for any of us, but I think it is part 

of the process. 

srobinson on DSKHWCL6B1PROD with HEARING

121 

And you know, it is interesting that there was a study done in 

the last—the 2008 elections; 41 out of 50 self-funders lost. So I 

think that it is important for people to be involved in the process, 

and if that means, like in my election, having a police officer who 

gave me $25 a month for 4 months as a contribution, more power 

to him and God bless him for being involved as a citizen. And those 

things matter, and I think we need to maintain that. 

And one of the great things about being a freshman, besides the 

fact that we don’t get blamed for a lot yet—— 

Mr. CAPUANO. Yet. 

Mr. HARPER. Yet. The emphasis on the word ‘‘yet,’’—is that you 

are kind of a—it is humorous the way we name things here, a bill. 

We can call it the Disclosure Act. I think I see this more as a restrict act. And certainly we have heard—I think three people so far 

have referred to polling. And of course, as you know, 67 percent of 

all statistics are made up on the spot, or is that—maybe it is 58 

percent. It is all how you ask the question and what you do. 

But, look, here is another poll that was done on this very issue. 

And it is how you phrase the question that will determine what 

your results are. Victory Enterprises polled on March 1 and 2 of 

2010. The question was: Do you believe that the government should 

have been able to prevent Citizens United, an incorporated nonprofit advocacy group, from airing ads promoting its movie? Only 

18 percent said yes; 51 said no; and 27 percent said not sure. 

The next question was: Do you think the government should 

have the power to limit how much some people speak about politics 

in order to enhance the voices of others? Only 18 percent said yes; 

63 percent said no. 

Another question in that poll: And 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 

that; 50 percent were opposed to the government imposing criminal 

or civil penalties in that situation. 

And so you can find a lot of different approaches to these. 

But since we are here about disclosure, I would be interested to 

know if any of the witnesses here today, if you played any role in 

drafting or providing any input in the writing of this bill. 

Mr. SIMON. Congressman, I did work with the staffs of Representative Van Hollen and Senator Schumer. 

Mr. HARPER. Thank you, sir. Anybody else? 

Mr. HOLMAN. I kept trying to influence it to include Capuano’s 

Shareholder Protection Act in it, but I was not successful. 

Mr. HARPER. Well then I would ask—if I could ask any of the 

other witnesses if you saw the bill before it was filed? 

Mr. BOSSIE. No, sir. 

Mr. HARPER. And if I could ask you, since you did have some 

input in it—did you get to see the final version before it was filed? 

Mr. SIMON. I don’t believe so, no. 

Mr. HARPER. Were you instructed by anybody to not discuss what 

you were talking to them about? 

Mr. SIMON. No. 

Mr. HARPER. One of the questions I have for you, Mr. Olson, if 

I could, and if I am wrong on my understanding here, please corsrobinson on DSKHWCL6B1PROD with HEARING

122 

rect me. But it appears that our Democratic leadership has said 

that it has to act quickly on this legislation so it can influence the 

fall elections. 

And the way it wants to influence those elections seems to be by 

silencing certain speakers. So they are saying we have to silence 

this political speech so that we are not criticized too much and can 

hold on to our seats perhaps in Congress this fall. 

Based upon your expertise and experience with constitutional 

issues, how does this bill square with your understanding of the 

First Amendment? And then, do you recall legislation ever being 

proposed for this reason in the past? 

Mr. OLSON. Well, I mentioned in my statement that I think that 

there are several deficiencies in this legislation under the Constitution. One, it assumes that all corporations—that speech by all corporations is suspect, not just big corporations, but little corporations, the owner of the neighborhood hardware store. Incidentally, 

I checked; every single spokesperson here today represents a corporation. 

But this legislation assumes that all speech by corporations is 

suspect, all speech by government contractors is suspect, all speech 

by someone who might be of a different nationality than us is suspect; whereas the First Amendment says Congress may make no 

lawabridging the freedom of speech. 

There is an inconsistency there. There is an inconsistency because the legislation discriminates on the basis of types of speakers—contractors, corporations, labor unions, media corporations. 

And one might be very much in favor of the concept generally of 

disclosure, but if the disclosure is so burdensome, so oppressive, 

that it discourages speech, as some of the sponsors of this legislation say we want the Chamber of Commerce to butt out of having 

a point of view on behalf of its members with respect to who will 

get elected and who will run this country, that is a violation of the 

Constitution. And I am not aware of other laws that have selected 

types of speakers based upon this basis. 

We come from a culture in our constitutional culture that more 

speech is better. And I hear testimony here today that certain 

speech is dangerous. Lobbyists are dangerous. By the way, the 

First Amendment protects what? The right to petition one’s government. That is what a lobbyist helps one to do. The concept here is 

that the people get to decide. And they get to decide based upon 

as much information as possible. 

And for those various reasons, and several more, I think that 

this is a very dangerous piece of legislation. 

Mr. HARPER. I would like to thank each of the witnesses Mr. 

Chair. 

The CHAIRMAN. Mrs. Davis. Thank you. 

Mrs. DAVIS of California. Thank you Mr. Chairman. I want to 

apologize to my colleague. I just got a little excited because I 

thought I was hearing something different and I just wanted to be 

certain that the witnesses were being upfront about that if they 

had some concerns. 

I wanted to ask you, Mr. Bossie, could you please describe the 

context in which the quote that you gave of Senator Schumer occurred? 

srobinson on DSKHWCL6B1PROD with HEARING

123 

Mr. BOSSIE. He was standing on the steps of the Supreme Court 

announcing this legislation. 

Mrs. DAVIS of California. What was the context? What was he 

saying? What led you to—you quoted him. And you quoted him, 

and I am just wondering if you could describe the context—— 

Mr. BOSSIE. Somebody asked him what the purpose of the legislation was, and he gave a very candid and frank answer. 

Mrs. DAVIS of California. Do you know anything more about 

that? 

Mr. BOSSIE. Congresswoman, I am happy to get that transcript 

from the steps of the Supreme Court that he gave, and I will be 

happy to send it to you. 

Mrs. DAVIS of California. It is my understanding and just in the 

quick time that we have had here, that part of what he was saying 

is that he thought that CEOs now having to—if they had to disclose any information about the ads in which they were participating, that they would actually choose to participate less, because 

they didn’t want to disclose. 

So when he was saying that he thought there might be less involvement, he was actually saying a supposition of what he 

thought, how companies might respond. Which is a little different 

I think, if you know that context, to what you said. 

I think it occurred to me as you were speaking that perhaps it 

was that citizens would want to be less involved, and that that was 

the role of the Senator. 

Mr. BOSSIE. But I think that the onerous and burdensome regulations that are included in this legislation could have that same 

effect on people as well. 

Mrs. DAVIS of California. That may be a supposition, but I think 

that is not the supposition that was being referred to directly. And 

I just wanted to see if you had any idea about that. 

Could we talk just a little bit about coordination? And if you 

could just share with me, and perhaps Mr. Simon, what do you 

think is likely to happen? If you are looking out a few years from 

now, and others might want to respond, what do you think the impact is going to be really on voters, number one? 

And secondly, when we talk about coordination with campaigns, 

the fact that an actual discussion occurs is one thing, but there is 

also something if it doesn’t occur. And what does that mean in the 

political context of the feeling that somebody might have about 

something that was going to happen? 

Mr. SIMON. Well, there is a lot of debate and speculation about 

what the impact of the Citizens United decision is going to be. And 

the speculation ranges from it will have minimal effect to, on the 

other side of the spectrum, that it will have quite significant effect; 

that there will be major infusion of corporate wealth brought directly to bear on Federal campaigns. 

In terms of coordination, that is a very important point because 

coordination is the line between the spending, which, under the 

Citizens United case, is permitted and the spending which is not 

permitted. Corporations, unions, other spenders, although they can 

make expenditures out of the treasury funds now, those expenditures have to be independent of a candidate or a party. There cansrobinson on DSKHWCL6B1PROD with HEARING

124 

not be coordination. If there is coordination, then those coordinated 

expenditures are treated like contributions and remain prohibited. 

So the definition of coordination is the line between permissible 

and impermissible corporate and union spending. And it is in the 

reasoning of the Court, it is also the key hedge against corrupt 

quid pro quo arrangements. Where there is coordination on an expenditure, that raises the threat and the danger of corrupt arrangements. 

So that definition, what constitutes coordination, is a very, very 

important issue. The Federal Election Commission has been struggling for years with that issue. We have been in court with the 

Commission on that issue, and it is still unresolved. 

The legislation addresses that question in a relatively modest 

way by codifying some existing FEC regulations and in a modest 

way extending existing FEC rules. But it still remains an important issue, and it really is fundamental to how damaging Citizens 

United is; because if, in fact, although technically and as a legal 

matter, expenditures by corporations are considered independent 

and therefore permissible, but as a practical matter they are coordinated, the impact of Citizens United on the legislative process 

will even be more damaging. 

Mrs. DAVIS of California. Does anybody disagree with that statement? I just want to give you an opportunity to respond. Sure. 

Mr. OLSON. I would like to make just one point. 

Mr. Simon said that the Federal Election Commission has been 

struggling for years with respect to where the line is drawn. If you 

miss it, and you don’t know, and the Federal agency that regulates 

elections doesn’t know what the line is, if you miss it, it is a felony. 

So we are saying that you have to guess what the law is because 

the government can’t even tell you what the law is. And if you 

guess wrong, you may be sent to jail or you may be prosecuted. 

When someone is told that, they will say, I am not going to 

speak. So if we don’t make laws that are clear, we discourage people from speaking. And the Supreme Court said in the Citizens 

United case, if we burden speech with the threat of litigation or the 

threat of prosecution, or you make it too hard to find out what the 

law is, people won’t speak. That is not what the First Amendment 

was intended to accomplish. 

Mr. HOLMAN. Could I briefly add to this? With the Citizens 

United decision, we now have this huge, huge new source of revenues for lawmakers, for campaigns, for politicians. And that huge 

new source of money is going to be very tempting both ways. If corporations can work closely and intimately with a campaign, what 

better way to endear themselves with the lawmakers in a close, coordinated fashion? 

Also, conversely, there are many lawmakers who can be so powerful as committee chairmen, or even heads of political parties, that 

they can basically shake down some of these corporations that have 

this huge new source of wealth to work in coordinated campaigns. 

That is why it is so important that this legislation clearly define 

what is coordinated activity versus independent activity. 

Mrs. DAVIS of California. Thank you. 

srobinson on DSKHWCL6B1PROD with HEARING

125 

And, Mr. Chairman, I am certainly concerned about the absence 

of not running an ad as much as running an ad in terms of that 

coordination. Thank you. 

The CHAIRMAN. Thank you. 

First, I would like to ask unanimous consent that the following 

materials be made a part of the official hearing record: Letter of 

support from Common Cause; three articles related to members of 

corporations objecting to trade associations of political spending. 

Without objection, so ordered. 

[The information follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

126 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 168 here 57949A.093
127 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 169 here 57949A.094
128 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 170 here 57949A.095
129 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 171 here 57949A.096
130 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 172 here 57949A.097
131 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 173 here 57949A.098
132 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 174 here 57949A.099
133 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 175 here 57949A.100
134 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 176 here 57949A.101
135 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 177 here 57949A.102
136 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 178 here 57949A.103
137 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 179 here 57949A.104
138 

The CHAIRMAN. We are going to go another round, I understand. 

We are going to go another round. 

I just have one thing. I am not an attorney, thank God. But I 

keep hearing Congress shall make no law limiting free speech. I 

don’t think we are doing that with this bill. All we want to know 

is who is saying it and who is paying for it. In my mind, that is 

what I think we are doing here. 

And again, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I don’t have 

the transcript of what Senator Schumer said on the steps of the 

United States Supreme Court. I, do however, have a reference to 

a statement he made in February of this year, as reported by the 

Wall Street Journal, where he said he hoped the proposed legislation will discourage companies and unions from spending freely on 

political advertisements. The disclosure requirements ‘‘will make 

them think twice’’ before attempting to influence election outcomes. 

He then added this: The deterrent effect should not be underestimated. 

Mr. Olson, if you were arguing this case before the Supreme 

Court, would that be relevant? 

Mr. OLSON. Yes. The Court would be very much concerned with 

what motivated this legislation, and particularly because the legislation focuses on the identity of the speaker and allows some 

speakers to disclose—requires some speakers to disclose, at great 

expense and with great burdens, if one-fourth of the staff of Citizens United is focused on compliance with regulations having to do 

with the things that they do, which are First Amendment things; 

and certain other speakers, individuals, certain media corporations, 

whatever those are, labor unions, so forth, don’t have to do that. 

That is consistent with selecting speakers and discriminating and 

wishing to discourage some kind of speech. 

Mr. LUNGREN. And if I were laying a premise for an argument 

before the Supreme Court, I would love to have my opponent on 

the other side, referencing free speech, to say the deterrent effect 

should not be underestimated. 

It appears to me it is a very direct statement of the wish of legislation to abridge free speech. At least that is the way I would look 

at it. 

Let me ask you this. Does anybody here, has anybody tested the 

amount of time that it would take to comply with the new stand 

by your ad requirements in section 214? 

Mr. SIMON. I think it was accepted by the Court in the McConnell case that the prior stand by your ad requirement took 4 seconds. That is what the Court said in the McConnell opinion, so this 

adds an additional disclaimer. It adds an additional disclaimer 

Mr. LUNGREN. Would it surprise you to know that my staff tried 

it with the names of those of you here and your organizations, just 

with the numbers that would be required, and realized it took 

about an average of 13 seconds? Would that be troubling if, in fact, 

that were true; that in a 30-second ad it would require, under the 

law, that 13 seconds be disclosure? Would that be troubling? 

Mr. SIMON. Well, I guess I am very surprised by the number. I 

also note that—— 

srobinson on DSKHWCL6B1PROD with HEARING

139 

Mr. LUNGREN. I am saying if you accept that. You may disagree 

with it. I am just saying my staff made a good-faith effort using 

your names and your organizations; with two, as required, that is 

what it took. If in fact that were the case, would that be troubling 

or would that not be troubling? 

Mr. SIMON. I don’t know. I guess it would be troubling. But the 

legislation does provide the Commission with the ability to create 

regulations that provide a hardship exemption if it is a burden on 

the speech. 

Mr. LUNGREN. That would be a hardship exemption, I would 

think. 

Mr. Simon, let me ask you this, because you talked specifically 

about a very important thing, and I do think it is important, the 

coordinated communications language, because that essentially is 

the demarcation between directly involving yourself with a campaign and this other area or category of political speech that I 

think the Supreme Court was talking about. 

As I understand it, however, current FEC regulations really use 

a two-pronged test. One is content and then you go to conduct. 

That is, is there evidence of coordination, in essence some conduct 

that would give rise to that suggestion? This bill, section 103, removes the conduct side and only confines it to content. 

Mr. SIMON. That is absolutely a misreading of the bill. 

Mr. LUNGREN. Well, it is section 103. It seems to me pretty clear. 

It makes no reference to conduct that I can find. If I am wrong, 

I would appreciate it because that bothers me a great deal. 

Mr. SIMON. Let me if see if I can find the language quickly. 

Okay, if you start on page 17 of the bill, let’s—I will walk through 

this. It says what it is doing—— 

Mr. LUNGREN. I would just ask you, because of the limited 

amount of time, if you could just point out the conduct section. 

Mr. SIMON. It is on page 18, lines 1 through 5. The covered communication which is made in cooperation, consultation, or concert 

with or at the request and suggestion of a candidate. That is the 

existing statutory conduct test which is unchanged. 

Mr. LUNGREN. But the next word says ‘‘or.’’ 

Mr. SIMON. ‘‘Or’’ a communication that republishes. If somebody 

goes out and takes the candidate’s campaign literature and republishes, that under current law—— 

Mr. LUNGREN. It says publishes, disseminates or distributes in 

whole or in part any broadcast or any written graphic or any 

form—— 

Mr. SIMON [continued]. Performed by the candidate. 

Mr. LUNGREN. Okay, I am the candidate, and I make a statement 

which I—I make a statement on the floor of the House. All right? 

But I repeat that statement in my campaign material. That is all 

I do. Can someone then not, in talking either for me or against me, 

repeat the statement? 

Mr. SIMON. No. No. This is a restatement of existing law. This 

does not change existing law at all. If somebody takes your campaign brochures—— 

Mr. LUNGREN. I understand that. 

Mr. SIMON. This is not intended and does not currently do what 

you said. 

srobinson on DSKHWCL6B1PROD with HEARING

140 

Mr. LUNGREN. But today, is the ‘‘or’’ in that regulation? I thought 

it required both conduct and content, an examination of both under 

current regulation. 

Mr. SIMON. It does. But this provision here says a covered communication which is made in cooperation with a candidate. And 

covered communication is then defined to be the content test. So 

lines 1 through 5 include both the conduct and the content standards. 

And, again, this mirrors existing law. 

Mr. LUNGREN. That is confusing to me because you have the ‘‘or’’ 

there. At least statutory language would suggest ‘‘or’’ means either 

or; that is, one or the other. You don’t have to have both. 

Mr. SIMON. Well, the second part after the ‘‘or’’ again restates existing law, which is that if an outside spender takes a candidate’s 

campaign literature and just—— 

Mr. LUNGREN. I just want to make sure your understanding 

would not be if you repeated a phrase that is in there but, rather, 

you actually would adopt the form of the public—— 

Mr. SIMON. If you went and paid for a candidate’s brochures, you 

just took the candidate’s brochure, walked to a publishing house, 

said, ‘‘Here, make 10,000 copies of this brochure.’’ 

Mr. LUNGREN. It says in part or in whole. I just want to make 

sure if—and, again, look, I would rather have us approach this by 

allowing greater coordination between parties and candidates. It 

seems to me that is one of the solutions. 

Mr. SIMON. Which the bill does. 

Mr. LUNGREN. It is very obtuse in the way it does that. I will be 

happy to work with you on that, because I don’t think it helps us 

on that. But if we could agree on that, that would be very helpful. 

My concern here is this, and I am really trying to get to a point. 

If, in fact, a candidate were to say, I support the health-care bill 

because it is the best approach to solving our problem and that is 

why I am a leader on that, could someone use that statement, republish that statement in the context of explaining why they would 

either be for me or against me, or would that run afoul of this law 

as you see it written? 

Mr. SIMON. I believe that this law, what is in this bill, is not in 

any way intended to change existing and longstanding law with regard to the republication standard. And my reading—my reading, 

if you go to the existing statute, you will find the republication 

standard and I think this just—— 

Mr. LUNGREN. So your position is that we ought to support that; 

it merely restates what the current regulations are. 

Mr. SIMON. Yes. Exactly. 

Mr. LUNGREN. Mr. Olson. 

Mr. OLSON. When I read it, I read it the way your initial questions suggested that you read it; that if you rearticulated or restated what a candidate had said, that was going to be presumed 

under this statute, as it was being proposed here, as coordination. 

That is the way I read it. Something like conscious parallelism or 

something, to adapt a concept from the antitrust laws, that that 

would be a violation if there is confusion about it, unless it is fixed. 

And if I were asked by a client what to do, I would say, Don’t do 

it, or get an advisory opinion. 

srobinson on DSKHWCL6B1PROD with HEARING

141 

If you seek an advisory opinion, you better hire some lawyers to 

get you an advisory opinion and expect to wait 6, 8, 10 months or 

a couple of years before you get a response from the Federal Election Commission, which means don’t do it. 

Mr. LUNGREN. It takes that long? 

Mr. OLSON. Well, it takes various different periods of time. We 

talked before about the fact—you mentioned that it took—well, 

there was a period of time, by the way, that the Federal Election 

Commission couldn’t do anything because it didn’t have a majority. 

So you had the regulatory agency not existing and people not 

knowing whether they could speak or not. 

As you pointed out, Citizens United, from the time they wanted 

to find out whether they could do their movie until they found out 

that the Supreme Court said that they could, it was virtually 2 

years. That started in the 2008 election. We got an answer in 2010. 

Mr. LUNGREN. Don’t you have an expedited procedure to go to 

the courts? 

Mr. BOSSIE. That is the expedited procedure. 

Mr. SIMON. Congressman, again, we need to—— 

The CHAIRMAN. We need to impose a couple of our expedited procedures. Again, as I said, lawyers will be here forever. 

Mr. BOSSIE. Mr. Chairman, could I just make one point? 

The CHAIRMAN. After Mr. Simon. Then you can make one point, 

and then we will move on. 

Mr. SIMON. Again, I just want to focus on this is talking about 

the republication of campaign material, not just a statement made 

by a candidate. 

Mr. LUNGREN. But it says in whole or in part. That is what bothers me. 

Mr. SIMON. Well, but again, it is campaign material. 

Mr. LUNGREN. Again, could you put something in there—I mean, 

we can put something in defining it, not merely—well, something 

that would suggest if you merely repeat what someone says or 

something like that. Do you know what I am trying to say? 

Mr. SIMON. I do. 

Mr. SIMON. And let me just refer you or your staff to existing 

441a(a)(7)(b)(iii), which is where this republication language is derived from. And I think you will see it is the same as existing law. 

The CHAIRMAN. Mr. Bossie. 

Mr. BOSSIE. Mr. Chairman, thank you very much. I just want to 

point out two things. 

One is, to Congressman Lungren’s point about the disclaimer 

provision, we were messing with the timing, as well, and it is about 

13 or 14 seconds. Two of the ads that we submitted to the Supreme 

Court that we produced—because it used to be 60-second ads, as 

everybody remembers, and now it is that 30-second ads is kind of 

the standard. But, for us, the 10-second ad is a standard. And so, 

if you have a 13-second disclaimer, you literally can’t send your 

message. 

And that is an important element, because you may—obviously, 

if the assumption is it is a 30-second ad, some could argue 13 seconds is overly burdensome. I would. But if it is a 10-second ad, 

even if you cut that back, even if the FEC said, ‘‘Oh, you can have 

a 6- or 7-second,’’ that still doesn’t allow you—you are still having 

srobinson on DSKHWCL6B1PROD with HEARING

142 

to pay for the 10 seconds and you are not able to send your message. 

Mr. SIMON. Could I just interject one point quickly on that? Because I don’t know the—— 

The CHAIRMAN. One more point quickly. 

Mr. SIMON [continuing]. Experiment you ran, but I just want to 

point out, the top-five-funder disclaimer is not an audio disclaimer. 

It is just a scroll, a list. So it doesn’t take any time. 

Mr. LUNGREN. So that doubles, at least, what we have to do now. 

Thank you. 

The CHAIRMAN. That is right. And that is what that word ‘‘or’’ 

did, right? 

Mr. Capuano. 

Mr. CAPUANO. Thank you, Mr. Chairman. 

First of all, I am not Senator Schumer. So whatever he may have 

said, so be it. 

Mr. LUNGREN. You are much better looking. 

Mr. CAPUANO. That is a low standard, but thank you. 

Don’t worry. Chuck would give it to me too. 

Mr. LUNGREN. We will vote on that. 

Mr. CAPUANO. Chuck is going to have the last word on that one, 

I know. 

At the same time, though that may be interesting, that is not 

what the Court is going to look to, one or two quotes of somebody 

in public life. They are going to look to the intent of the legislation. 

I, for one, have no intention, that is not my intention in this law, 

is to give anybody a chilling effect or to stop anybody’s free-speech 

rights, no matter whether I agree or disagree with the Court’s decision. I agree with Ms. Lofgren, it is. I am over it. Well, not quite, 

but I am pretty much over it. 

At the same time, what I am trying to do is carve some legislation that does disclosure. And I think that some of these questions—if it is a 13-second thing, first of all, maybe if you came from 

Boston, you might speak faster, but, you know, you don’t know 

that. 

Mr. LUNGREN. Thirty seconds in Mississippi. 

Mr. CAPUANO. If there are certain specific issues, I am happy to 

talk about them. I am not looking to take a 30-second ad and turn 

it into a 10-second ad. I agree, that wouldn’t be a fair result. There 

are ways around that. I am happy to talk about those things. 

If it is a 30-second ad, I do think that there are ways to do it. 

And we can come up with exceptions and specifics. And 30 seconds 

is usually the standard. If you come up with a 10-second ad, you 

can’t really say too much bad about me in 10 seconds. So I am not 

too worried about that. 

But, for instance, one of the new ads that is out there right now, 

it is a bank in Boston. They do, like, a 10-second clip, then they 

go to another commercial, and they come right back with another 

10. I think it is kind of neat, but, you know, it works. 

So there is all kinds of ways to do this, and I am happy to try 

to parse it out. 

If, in the final analysis, the average voter is allowed to know who 

is saying what—if Exxon Corporation wants to come up and say, 

‘‘Mike Capuano is a terrible guy,’’ fine. My voters know who Exxon 

srobinson on DSKHWCL6B1PROD with HEARING

143 

Corporation is, and they can make that decision on the basis of it. 

What I don’t think is fair is for the Citizens for Good Government 

to come up and say, ‘‘Mike Capuano is a bad guy,’’ or a good guy, 

if it is fully funded by Exxon. I don’t mean to pick on Exxon, but 

what the heck, it is oil company week. 

So all I am asking is, as opposed to simply saying, ‘‘Nothing is 

good,’’ help us—I am happy to work with anybody to try to make 

this better and to try to make it as constitutional as possible, number one. And that means clarification. If the idea is to clarify it to 

the point of killing it, fine, I have it. I am a politician, too. You 

know, you can try, and I will be nice to you, but I won’t say yes. 

I am also personally very interested in keeping foreign corporations out of the American political system. Yes, I am. Whether it 

is constitutional or not, Mr. Olson, you may well be right, and you 

may win, but that doesn’t mean I am not going to try. And I think 

there is very good reason that. And I have no idea about poll numbers. I guess I could make them up, but, you know, my expectation 

is the average American would not want a foreign corporation to 

participate in the American system. But that is beside the point. 

Whether they do or they don’t, it is still wrong, in my estimation. 

So all I am trying to do is—I am not trying to stifle anybody, I 

am not trying to limit anybody. I am simply trying to provide reasonable, thoughtful ways of disclosure. And I do think that it is fair 

to say that if disclosure requirements are so burdensome as to 

make them—I understand that standard. Again, where you draw 

the line is a matter of judgment. If you think there is something 

specifically overly burdensome, fine. No burden—I am sorry, you 

know, everybody pays taxes; it is a pain in the neck to fill out the 

forms. I would love to see a tax system where we all put it on index 

cards. Now, don’t get me wrong, it would still be a progressive tax. 

But it could be done. 

And all I am saying is, so far we are focused on the details of 

this bill that some people don’t like, and I respect that. Reasonable 

people would disagree. What I don’t think is right is to say, because of our detailed differences, we should kill the bill, or at least 

the whole concept of the bill. 

And just as a final point, just as a point of information, because 

it is surprising to me that somehow the length of the bill is now 

an issue all the time, or whether you read the bill. I have told everybody at home, I read the House health bill, I read the Senate 

health bill, I read the conference committee health bill. I have also 

read the Bible and ‘‘Moby Dick’’ and, you know, ‘‘War and Peace’’ 

and on and on and on, and I don’t understand all of those books. 

I am not going to necessarily understand—and, therefore, the 

length of a bill, interesting, but who cares. Except, of course, if anybody wants to make a motion that the United States Congress actually uses smaller print and single spacing, I am happy to go for 

it, because the decision, though shorter, has more words in it, a lot 

more words. 

Now, I only say that because it was raised twice in the opening 

statement, and I actually did some math here. And, like, first of 

all, who cares? And, second of all, if you care about it, you better 

know what you are talking about. The decision, especially adding 

srobinson on DSKHWCL6B1PROD with HEARING

144 

the two concurring, is actually 7,400 words longer, which is almost 

60 percent. Now, I didn’t make that up, but you can figure it out. 

I ask and invite anybody who wants to to work to try to address 

the most serious concerns you might have. We may not be able to 

find common ground, but I am happy to do so, and hopefully do it 

quickly. 

Mr. LUNGREN. Would the gentleman yield? 

Mr. CAPUANO. Sure. 

Mr. LUNGREN. I would just say in response to something you said 

earlier, is there any attorney in this room who has never lost a 

case, I will tell you what I told my children: I never lost a case I 

shouldn’t have. 

Mr. CAPUANO. Good answer. 

The CHAIRMAN. Mr. Harper. 

Mr. HARPER. I guess I am going to have to give some speech lessons here, Mr. Chairman. Just remember when you come to Mississippi, it is ‘‘Miss-sippi.’’ It will make it easier for you when you 

come. And you are welcome to come. 

I really have to say, one of the greatest concerns I have—and we 

sit here and we say this doesn’t have a chilling effect or it is maybe 

not intended to impact the November elections. If you look on page 

21 on the bill, you know, it is clear what this section says, that this 

goes into effect 30 days after the enactment of the bill. And they 

add the language, ‘‘without regard to whether or not the Federal 

Election Commission has promulgated regulations to carry out such 

amendments.’’ 

Why would you put that language in there unless you know that 

there is no way on Earth that the Federal Election Commission can 

complete the regulations during that time? And if you are making 

the decision on whether or not you want to participate in any type 

of political advertising on your interpretation of those rules, you 

are probably going to opt not do it. 

So what would be the problem—and anybody who wants to respond—what would be the problem with saying, we are going to 

make this effective 30 days after the regulations have been done, 

promulgated? What is the problem? 

Mr. SIMON. Well, if I could respond to that, I think the intent of 

the sponsors is that this legislation be effective in time for this 

year’s election. It is not to chill speech, it is not to deter spending. 

It is to provide disclosure of the spending in time for this year’s 

election campaign. 

I think the FEC—the reason the language is the way it is is that 

they don’t want the FEC to, as an effective matter, mean the legislation won’t go into effect because the FEC delays regulations. But 

I think the FEC can issue regulations in 30 days. They did under 

McCain-Feingold. 

Mr. HARPER. How long would you say that it would take—and 

I will let you come back and answer. How long do you think it 

would take to write the regs? 

Mr. SIMON. I think it can be done within 30 days. And, as I said, 

there is a track record of the FEC acting that expeditiously after 

McCain-Feingold was passed. 

Mr. HARPER. I mean, the Supreme Court decision was in January. 

srobinson on DSKHWCL6B1PROD with HEARING

145 

Mr. BOSSIE. We still have no rulemaking, 31⁄2 months. 

Mr. HARPER. And here we are. So, as far as I know, the FEC has 

not done anything in regard to the Supreme Court decision. If they 

have, I apologize. I haven’t seen any publication of that. 

So, Mr. Bossie, I think you had a response. 

Mr. BOSSIE. That was exactly what I was going to say. We have 

been waiting since January 21st for the Federal Election Commission to come down with their rulemaking. And I believe now we are 

being told it is going to be sometime in June or July. But it can 

take a very, very long time. And it is not like this was—they have 

been working on our case for a year before that. So I think that 

there is a lot of validity to what you are saying. 

Mr. HARPER. What would be the problem to say that we are 

going to wait until the regulations are done or we are going to say 

this won’t be effective in this election cycle? What harm would 

there be in that, until that point was made? 

Mr. Olson, any comment that you have on it? 

Mr. OLSON. When we are going to restrict the ability of individuals in this country to speak and make it a crime if they get it 

wrong, we have a very solemn obligation to make it very, very 

clear. 

And to answer your question, if there is to be a regulatory process to explain some of these things, it is fundamental to its constitutionality that everyone, you and me and everyone else, be— 

and not including lawyers, because people need to run for office 

without having to hire a lawyer and an accountant and a bookkeeper. We need to know in this country what the law prohibits us 

from saying. 

I heard Mr. Simon refer to subsection—he said a(a)(7)(b), subsection X, of something. And I was thinking, what a nightmare 

that is if you are trying to speak about someone running for office. 

You have to figure out what that means. 

And I, in preparation for my argument in the Supreme Court on 

the Citizens United case and the other cases I have argued having 

to do with election law, I spend hours trying to figure out what the 

definitions are and how they relate. And it is a very, very big thicket. We have regulatory free speech—regulated free speech, which 

is an oxymoron if there ever was one. It is almost as complicated 

to run for office in this country as it is to go through the Internal 

Revenue Code and all those regulations. 

So it is important, if nothing else—and I agree with the sentiment that there should be working together, and the concept of disclosure is good if it is not discriminatory and it is not burdensome 

and it doesn’t pick out certain people. And people should work together for this. 

But one thing that I think we should all agree upon is that those 

of us who are running for office or supporting people running for 

office or want to speak about people running for office, we should 

know what the law permits and what it doesn’t permit. 

Mr. HARPER. Thank you, Mr. Chairman. 

Mr. HOLMAN. Could I briefly add to this, very briefly? 

The CHAIRMAN. Why not? 

Mr. HOLMAN. If this law is not passed—or this bill is not passed 

and signed into law by this summer, we are not going to know 

srobinson on DSKHWCL6B1PROD with HEARING

146 

what is happening in the 2010 elections. That is why it is so critical. This is the very first election cycle following the Citizens 

United decision. 

Right now we are already monitoring a fourfold increase in outside group spending, and we have no idea where that money is 

coming from. If this law is not passed quickly, we are going to go 

through our first election cycle and not have a clue what hit us. 

Mr. HARPER. Why hasn’t the FEC already done their updated 

regs based upon the Citizens United decision back in January? 

Then we would know what was in effect for the November elections. 

Mr. HOLMAN. The Federal Election Commission has a serious 

problem right now, and that is it is sharply divided along partisan 

lines. Their partisan deadlock votes have increased from 2 percent 

to 14 percent—2 percent all through its history, by the way—and 

then last year alone has jumped a 600 percent increase, which is 

why I would not expect the FEC to come out promptly with regulations. 

Mr. HARPER. On this bill also? 

Mr. HOLMAN. On this bill, yes. 

Mr. HARPER. Okay. So we can’t really depend on the FEC to 

come up with regs based on Citizens United or this before the November elections to where we can make these decisions that have 

to be made. Would that be a fair assessment? 

Mr. HOLMAN. I would expect the FEC would not develop regulations by the 2010 election. 

Mr. HARPER. Well, then, all the more reason that we don’t need 

to have this bill take effect until the regs have been written. 

With that, I will yield back. 

The CHAIRMAN. I thank the gentleman. 

Ms. Davis. 

Mrs. DAVIS of California. Thank you, Mr. Chairman. 

Perhaps I can try and ask a simple question. What do you think 

people should know when they are watching TV about the ad that 

they are watching? What should they know about who has contributed to that ad? Today, perhaps, I guess, and under the DISCLOSE 

Act, what should they know? How far down should it go, in terms 

of what is behind it? 

Mr. SIMON. Well, I think they should know who is sponsoring the 

ad, and they should know the real funder behind the ad, which is 

what the legislation proposes, precisely because of the problem of 

the innocuously named, the generically named front group, which 

provides the voter and the viewer with virtually no useful information about the interest behind the ad. 

Mr. NYHART. I would just ad, if a Goldman Sachs or a BP or any 

deep-pocket interest wants to have a major impact, having voters 

know that when the ad comes out is a right of the voters. 

Mr. OLSON. With respect to that statement that was just made, 

that presupposes that certain people who participate in the political process should have disclosure obligation, if it is BP or Goldman Sachs. But what about a person putting up a yard sign, what 

do they have to disclose? What if a person writes a pamphlet, what 

do they have to disclose? 

srobinson on DSKHWCL6B1PROD with HEARING

147 

My point was that it should be equal. If everybody participating 

in the political process is subjected to the same obligations and the 

same disclosure requirements, then government is not selecting 

who can speak based upon who the speaker is. And those requirements should not be burdensome or oppressive such that they inhibit people, and they should be understandable. 

Mr. BOSSIE. Congresswoman, speaking for Citizens United, from 

our standpoint, we make and we submitted, as I said, to the Supreme Court, as well as other movies we make, TV commercials for 

them. We don’t feel there should be any disclosure because we are 

saying, go to a local movie theater or buy a DVD. So we have a 

completely different type of problem when it comes to the disclosure issue, because right now the Federal Election Commission is 

saying that we need to have a disclaimer on there. And, as you 

know, we are all trying to answer the questions the best we can, 

but the problem is we have a different type of problem here. 

Mrs. DAVIS of California. A yard sign shouldn’t say that they are 

paid for by the—— 

Mr. BOSSIE. No, I was speaking from what we are trying to do 

and what our case was about. And so I agree with Mr. Olson. 

Mrs. DAVIS of California. Okay. 

Ms. GILBERT. From our perspective as a public interest organization, it is all about where the money comes from and making sure 

that citizens know that and can make educated decisions based 

upon that. So, certainly regardless of who the speaker is, people 

should know. 

Mrs. DAVIS of California. And if there is a company or a subsidiary of that company, it should be the subsidiary rather than the 

company? 

Ms. GILBERT. I mean, it should drill down. And that is exactly—— 

Mrs. DAVIS of California. Drill down all the way. 

Ms. GILBERT [continuing]. What the legislation does. 

Mrs. DAVIS of California. Okay. 

Mr. HOLMAN. And getting back to the integrity of the legislative 

process, voters need to know if there is a link between who is funding a particular campaign ad for or against a lawmaker and whether or not that funder has business pending before this chamber. 

Mrs. DAVIS of California. Okay. I appreciate that. I think that we 

probably, in some ways, have more possibly that we agree with. I 

am certainly with my colleague, I think there is enough interest 

here to try and have something that we can look to. 

But what worries, I think, all of us is that it will be very difficult 

for a voter to discern fairly quickly where those dollars are coming 

from. And some people may say that that is not that important to 

the voter, that they should be able to find that information and 

take the time to get it. But I think that that is really going to be 

a difficult thing to do. 

But I think we can get around it, frankly. I mean, I think there 

is a way, even in a short snippet, to let people know that so-andso brought you this ad. And I hope that we can do that. 

Thank you. 

The CHAIRMAN. I thank the lady. 

srobinson on DSKHWCL6B1PROD with HEARING

148 

Without objection, the record will remain open for 5 days for 

Members to submit and witnesses to respond to any additional 

questions submitted for the record. 

I thank the panel for your participation. And I am sure we will 

be hearing a whole lot more of you, you will be hearing a whole 

lot more of us. Thank you. 

And this committee will convene Tuesday, May 11th, at 5:00 p.m. 

For an additional hearing on the DISCLOSE Act. 

The hearing now stands adjourned. 

[The statement of Mr. Edgar follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

149 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 205 here 57949A.105
150 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 206 here 57949A.106
151 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 207 here 57949A.107
152 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 208 here 57949A.108
153 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 209 here 57949A.109
154 

[The information follows:] 

srobinson on DSKHWCL6B1PROD with HEARING

155 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 211 here 57949A.110
156 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 212 here 57949A.111
157 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 213 here 57949A.112
158 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 214 here 57949A.113
159 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 215 here 57949A.114
160 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 216 here 57949A.115
161 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 217 here 57949A.116
162 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 218 here 57949A.117
163 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 219 here 57949A.118
164 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 220 here 57949A.119
165 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 221 here 57949A.120
166 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 222 here 57949A.121
167 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 223 here 57949A.122
168 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 224 here 57949A.123
169 

[Whereupon, at 1:58 p.m., the committee was adjourned.] 

srobinson on DSKHWCL6B1PROD with HEARING

170 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 226 here 57949A.124
171 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 227 here 57949A.125
172 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 228 here 57949A.126
173 

srobinson on DSKHWCL6B1PROD with HEARING


Insert offset folio 229/300 here 57949A.127