Mr. President, I want to thank the Senator from Arizona for all the work he has done over many years to improve our campaign finance system. We have been partners in this effort for over a decade, and there is no one in this body whom I admire more than John McCain.
In early September, Senator McCain and I had the opportunity to walk across the street to the Supreme Court and hear the oral argument in the Citizens United case. It was a morning of firsts: The first case that Justice Sonia Sotomayor has heard since the Senate confirmed her nomination to become only the third woman to sit on our nation’s highest court. And the first oral argument that Solicitor General Elena Kagan has done since becoming the first woman to hold that important position in our government.
And it was the first time since the Tillman Act was passed in 1907 prohibiting spending by corporations on elections, and the Taft-Hartley Act in 1947 clarified and strengthened that prohibition, that a majority of the Court has suggested it is prepared to hold that Congress and the many state legislatures that have passed similar laws have violated the Constitution. Such a decision could have a truly calamitous impact on our democracy.
Until a few months ago, no one had any idea that the Citizens United case would potentially become the vehicle for such a wholesale uprooting of the principles that have governed the financing of our elections for so long. The case started out as a simple challenge to the application of Title II of the law that Senator McCain and I sponsored, the Bipartisan Campaign Reform Act of 2002. The issue was whether the provisions of BCRA relating to so-called issue ads could constitutionally be applied to a full length feature film about then-presidential candidate Hillary Clinton. The movie was to be distributed solely as video on demand.
Yet at the end of its last term, instead of deciding the case on the basis of the briefs and arguments submitted by the parties early this year, the Court reached out and asked for supplemental briefing on whether it should overturn its decisions in McConnell v. FEC, the case that upheld BCRA in 2003, and Austin v. Michigan Chamber of Commerce, a 1991 decision that upheld a state statute prohibiting corporate funding of campaign ads expressly advocating the election or defeat of a candidate. That set the stage for the recent special session to hear reargument in the case. And now we await the Court’s verdict on whether these longstanding laws will be in jeopardy.
I certainly hope the Court steps back from the brink. A decision to overturn the Austin decision would open the door to corporate spending on elections the likes of which this nation truly has never seen. Our elections would become like NASCAR races – underwritten by companies. Only in this case, the corporate underwriters wouldn’t just be seeking publicity, they would be seeking laws and policies that the candidates have the power to provide.
We were headed well down that road in the soft money system that BCRA stopped. It may seem like a long time ago, but hundreds of millions of dollars were contributed by corporations and unions to the political parties between 1988 and 2002. The system led to scandals like the White House coffees and the sale of overnight stays in the Lincoln Bedroom. The appearance of corruption was well documented in congressional hearings and fully justified the step that Congress took in 2002 – prohibiting the political parties from accepting soft money contributions.
Before BCRA was passed, corporations were making huge soft money donations. They were also spending money on phony issue ads. That’s what Title II was aimed at. But what they were not doing was running election ads that expressly advocated the election or defeat of a candidate. That has been prohibited in this country for at least 60 years, though it is arguable that the Tillman Act in 1907 prohibited it forty years before that. So it is possible that the Court’s decision will not just take us back to a pre-McCain-Feingold era, but back to the era of the robber baron in the 19th century. That result should frighten every citizen of this country. The Court seems poised to ignite a revolution in campaign financing with a stroke of its collective pen that no one contemplated even six months ago.
Mr. President, while I have disagreed with many Supreme Court decisions, I have great respect for that institution and for the men and women who serve on the Court. But this step would be so damaging to our democracy and is so unwarranted and unnecessary that I must speak out. That is why Senator McCain and I have come to the floor today.
To overrule the Austin decision in this case, the Court would have to ignore several time-honored principles that have served for the past two centuries to preserve the public’s respect for and acceptance of its decisions. First, it is a basic tenet of constitutional law that the Court will not decide a case on constitutional grounds unless absolutely necessary, and that it if there is no choice but to reach a constitutional issue, the Court will decide the case as narrowly as possible.
This is the essence of what some have called “judicial restraint.” What seems to be happening here though is the antithesis of judicial restraint. The Court seems ready to decide the broadest possible constitutional question – the constitutionality of all restrictions on corporate spending in connection with elections in an obscure case in which many far more narrow rulings are possible.
The second principle is known as stare decisis, meaning that the Court respects its precedents and overrules them only in the most unusual of cases. Chief Justice John Roberts, whom many believe to be the swing justice in this case, made grand promises of what he called “judicial modesty,” when he came before the Senate Judiciary Committee in 2005. Respect for precedent was a key component of the approach that he asked us to believe he possessed. Here’s what he said:
I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough -- and the court has emphasized this on several occasions -- it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question, it just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.
Talk about a jolt to the legal system. It’s hard to imagine a bigger jolt than to strike down laws in over 20 states and a federal law that has been the cornerstone of the nation’s campaign finance system for 100 years. The settled expectations that would be upset by this decision are enormous. And subsequent developments surely have not shown that the Austin decision is unworkable. Indeed, the Court relied on it as recently as 2003 in the McConnell case and even cited it in the Wisconsin Right to Life decision just two years ago, written by none other than Chief Justice Roberts. To be sure, there are justices on the Court who dissented from the Austin decision when it came down and continue to do so today. But if stare decisis means anything, a precedent on which so many state legislatures and the American people have relied should not be cast aside simply because a few new justices have arrived on the Court.
Third, the courts decide cases only on a full evidentiary record so that all sides have a chance to put forward their best arguments and the court can be confident that it is making a decision based on the best information available. In this case, precisely because the Supreme Court reached out to pose a broad constitutional question that had not been raised below, there is no record whatsoever to which the Court can turn. None. And the question here demands a complete record because the legal standard under prevailing First Amendment law is whether the statute is designed to address a compelling state interest and is narrowly tailored to achieve that result. My colleagues may recall that when we passed the McCain-Feingold bill, a massive legislative record was developed to demonstrate the corrupting influence of soft money. And the facial constitutional challenge to that bill led to months of depositions and the building of an enormous factual record for the court. None of that occurred here. And furthermore, the over 20 states whose laws would be upended if Austin is overruled were given no opportunity to defend their legislation and show whatever legislative record had been developed when their statutes were enacted.
Instead, the Court seems to be ready to rely on its intuition, its general sense of the political process. From what I observed at oral argument, that intuition is sorely lacking. One justice blithely asserted that the 100-year-old congressional decision to bar corporate expenditures must have been motivated by the self-interest of members of Congress as incumbent candidates, ignoring the fact that the modern Congress prohibited soft money contributions even though the vast majority of those contributions were used to support incumbents. Another justice opined that it was paternalistic for Congress to be concerned about corporations using their shareholders’ money for political purposes, even though most Americans invest through mutual funds and have little or no idea what corporations their money has actually gone to.
For the Court to overrule Austin and McConnell in this case would require it to reject these three important principles of judicial modesty. It would amount to the unelected branch of government reaching out to strike down carefully considered and longstanding judgments of the most democratic branch. It would be, in my view, a completely improper exercise of judicial power.
Let me discuss for a moment the consequences of this decision. A fundamental principle of our democracy is that the people elect their representatives. Each citizen gets just one vote. Our system of financing campaigns with private money obviously gives people of means more influence than average voters, but Congress over the years has sought to provide some reasonable limits and preserve the importance of individual citizens’ votes. One of the most important and longstanding limits is that only individuals can contribute to candidates or spend money in support of or against candidates. Corporations and unions are prohibited from doing so, except through their PACs, which themselves raise money only from individuals. The Supreme Court may very well be about to change that forever.
According to a 2005 IRS estimate, the total net worth of U.S. corporations was $23.5 trillion, and after tax profits were nearly $1 trillion. During the 2008 election cycle, Fortune 100 companies alone had profits of $605 billion. That’s quite a war chest that may be soon unleashed on our political system. Just for comparison, spending by candidates, outside groups, and political parties on the last presidential election totaled just over $2 billion. Federal and state parties spent about $1.5 billion on all federal elections in 2008. PACs spent about $1.2 billion. That usually sounds like a lot of money, but it’s nothing compared to what corporations and unions have in their treasuries. So we are talking here about a system that could very easily be completely transformed by corporate spending in 2010.
Does the Supreme Court really believe that the First Amendment requires the American people to accept a system where banks and investment firms, having just taken our country into its worst economic collapse since the Great Depression, can spend millions upon millions of dollars of ads directly advocating the defeat of those candidates who didn’t vote to bail them out or want to prevent future economic disaster by imposing strict new financial services regulations? Because that is where we are headed. Is the Court really going to say that oil companies that oppose action on global warming are constitutionally entitled to spend their profits to elect candidates who will oppose legislation to address that problem?
The average winning Senate candidate in 2008 spent $8.5 million. The average House winner spent a little under $1.4 million. A single major corporation could spend three or four times those amounts without causing even a smudge on its balance sheet. Mr. President, this is not about the self-interest of legislators who will undoubtedly fear the economic might that might be brought against them if they vote the wrong way. This is about the people they represent, who live in a democracy, and who deserve a political system where their views and their interests are not drowned out by corporate spending.
At the oral argument last month, one justice seemed to suggest that it is perfectly acceptable for a tobacco company to try to defeat a candidate who wants to regulate tobacco, and to use its shareholders’ money to do so. This is the system that the Supreme Court may bequeath to this country if it doesn’t turn back. Some will say that corporate interests already have too much power, and that members of Congress listen to the wishes of corporations instead of their constituents. I won’t defend the current system, but I will say -- imagine how much worse things would be in a system where every decision by a member of Congress that contradicts the wishes of a corporation could unleash a tsunami of negative advertising in the next election. In light of the immense wealth that a corporation can bring to bear on such a project, I frankly wonder how our democracy would function under such a system. We are talking about a political system where corporate wealth rules in a way that we have never seen in our history.
Once again, I thank my friend from Arizona for his friendship and his courage. We will continue to fight for a campaign finance system that allows the American people’s voices to be heard.
