[Senate Hearing 112-863] [From the U.S. Government Publishing Office] S. Hrg. 112-863 TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITED AND THE RISE OF SUPER PACS ======================================================================= HEARING before the SUBCOMMITTEE ON CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION __________ JULY 24, 2012 __________ Serial No. J-112-89 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 86-915 WASHINGTON : 2012 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected]. COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah CHUCK SCHUMER, New York JON KYL, Arizona DICK DURBIN, Illinois JEFF SESSIONS, Alabama SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas AL FRANKEN, Minnesota MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma RICHARD BLUMENTHAL, Connecticut Bruce A. Cohen, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director ------ SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS DICK DURBIN, Illinois, Chairman PATRICK J. LEAHY, Vermont LINDSEY O. GRAHAM, South Carolina SHELDON WHITEHOUSE, Rhode Island JON KYL, Arizona AL FRANKEN, Minnesota JOHN CORNYN, Texas CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah RICHARD BLUMENTHAL, Connecticut TOM COBURN, Oklahoma Joseph Zogby, Democratic Chief Counsel and Staff Director Walt Kuhn, Republican Chief Counsel C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1 prepared statement........................................... 40 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 6 prepared statement........................................... 43 WITNESSES Witness List..................................................... 39 Baucus, Hon. Max, a U.S. Senator from the State of Montana....... 4 prepared statement........................................... 46 Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont.. 7 prepared statement........................................... 50 Udall, Hon. Tom, a U.S. Senator from the New Mexico.............. 9 prepared statement........................................... 57 Edwards, Hon. Donna, a Representative in Congress from the State of Maryland.................................................... 11 Roemer, Hon. Charles ``Buddy'', former Congressman and former Governor, State of Louisiana, Baton Rouge, Louisiana........... 14 prepared statement........................................... 61 Shapiro, Ilya, Senior Fellow in Constitutional Studies, Cato Institute, Washington, DC...................................... 15 prepared statement........................................... 66 Lessig, Lawrence, Roy L. Furman Professor of Law and Leadership, Harvard Law School, Cambridge, Massachusetts................... 18 prepared statement........................................... 70 SUBMISSIONS FOR THE RECORD American Civil Liberties Union (ACLU), Laura W. Murphy, Director, Washington Legislative Office, Michael W. Macleod-Ball, Chief of Staff/First Amendment Counsel, and Gabriel Rottman, Legislative Counsel/Policy Advisor, July 24, 2012, joint letter 111 American Sustainable Business Council, David Levine, Chief Executive Office and Co-Founder, Washington, DC, July 23, 2012, letter......................................................... 120 Americans for Campaign Reform, Concord, New Hampshire, statement. 123 Ben & Jerry's Homemade, Inc, Jostein Solheim, Chief Executive Officer, South Burlington, Vermont, July 11, 2012, letter...... 126 Center for Competitive Politics, Alexandria, Virginia, statement. 129 Center for Media and Democracy, Lisa Graves, Executive Director, and Brendan Fischer, Staff Counsel, Madison, Wisconsin; article ``Super PACs and Beyond.''..................................... 138 Beyond Super PACs, article....................................... 145 Common Cause, Bob Edgar, President and Chief Executive Office, Washington, DC, statement...................................... 152 Demos Ideas & Action, Adam Lioz, Counsel, New York, New York, statement...................................................... 160 Free Speech for People, Jeffrey D. Clements, Co-Founder and President, Amherst, Massachusetts, statement................... 170 Heagarty, Chris, former North Carolina State Representative, Law Offices of Chris Heagarty, PLLC, Raleigh, North Carolina, statement...................................................... 187 Hubbard, Rick, MBA, JC, South Burlington, Vermont, July 13, 2012, letter......................................................... 194 Lessig, Lawrence, Roy L. Furman Professor of Law and Leadership, Harvard Law School, Cambridge, Massachusetts, attachment....... 198 Move to Amend, Salt Lake City, Utah, July 18, 2012, letter....... 202 People for the American Way, Michael B. Keegan, President, Washington, DC, July 24, 2012, letter.......................... 222 Public Campaign's, Washington, DC, statement..................... 241 Washington Public Campaigns, John E. King, President, Seattle, Washington, statement.......................................... 245 ADDITIONAL SUBMISSIONS FOR THE RECORD Submissions for the record not printed due to voluminous nature, preiously printed by an agency of the Federal government or other criteria determined by the Committee:.................... 247 Torres-Spelliscy, Ciara, Assistant Professor of Law, Stetson Law, Tampa, Florida, Part 1, see link: http://papers.ssrn.com/sol3/ papers.cfm?abstract--id=2046832................................ 247 TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITED AND THE RISE OF SUPER PACS ---------- TUESDAY, JULY 24, 2012 U.S. Senate, Subcommittee on the Constitution, Civil Rights, and Human Rights, Committee on the Judiciary, Washington, DC. The Subcommittee met, pursuant to notice, at 2:34 p.m., in Room SH-216, Hart Senate Office Building, Hon. Richard J. Durbin, Chairman of the Subcommittee, presiding. Present: Senators Durbin, Leahy, Whitehouse, Klobuchar, Coons, and Blumenthal. OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS Chairman Durbin. This hearing of the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights will come to order. It is entitled, ``Taking Back our Democracy: Responding to Citizens United and the Rise of Super PACs.'' I welcome those who have joined us in the hearing room, those watching live online, and those following the hearing on social media using the hashtag Citizens United. Someday I will understand what I just said. [Laughter.] Chairman Durbin. This is the second hearing that this Committee has held on the impact of Citizens United, and after my opening statement, I am going to recognize Senator Graham, the Ranking Member, and Senator Leahy, Chairman of the Full Committee. Today we will examine the dramatic rise in spending by Super PACs that are largely funded by corporations and wealthy individuals. We will also consider proposed legislation and constitutional amendments to stem this tide. Since the Supreme Court's decisions in Citizens United and SpeechNow, a later decision by the D.C. Court of Appeals, we have witnessed the rapid rise of Super PACs and the unprecedented influence by corporations and wealthy individuals seeking to advance their political agenda. In 2006, outside groups spent $70 million to influence the Federal midterm election. Four years later, it was up to $294 million, more than four times the amount. That is four times the amount since 2006, and by all accounts they are going to break all records this Presidential election year. Ordinary Americans often have no idea who is bankrolling the omnipresent political advertising. In 2006, secret donors made up one percent of all outside spending--one percent. Four years later, after Citizens United and the rise of Super PACs, secret donors rocketed to 44 percent of outside spending. Studies show that as the amount of money floating campaigns increases, disclosure and transparency decline. In a democracy that values openness and voter participation, the voters ought to know who is paying for the ads. We should call them not ``Super PACs'' but ``Super Secret PACs'' because the reality is the public has shockingly little information about them. The little that we have been able to learn has identified some major donors. Half of all Super PAC money being spent in the Presidential election is coming from 22 people: millionaires and billionaires who are buying their way in. To be clear, I do not begrudge them any business success. They have a right to be heard. However, they do not have a right to be the only voice heard. Just because wealthy donors that are behind the Super PACs have achieved economic success does not mean they have earned the right to buy or control our political agenda. Sadly, it appears that is happening. According to a recent report on campaign elections, Super PACs threatened to purchase every last minute of available television advertising space for the fall election, exponentially driving up the cost of these ads, especially in battleground States. As a result, a voter may never hear directly from State and local candidates. I thought Citizens United was about giving the voters more information. These candidates can be kept off the air entirely due to the rising cost and fact that they are not entitled to reasonable access to the air waves like Federal candidates. There are 314 million people in this country whose lives, jobs, safety, and health are impacted by decisions made by elected officials. Can we still proclaim to be the world's model for free elections with open debate when we allow 22 wealthy people to control the terms of that debate and silence the voices of others? The public may not know the agendas of those who are buying these ads, but I can assure you that the politicians they have supported will once they begin calling after the election. There is a series of legislative proposals that would stem this dangerous tide of secret special interest money that is flowing into our elections. I have introduced Fair Elections Now. It would create a public financing system that will free candidates from the dangerous reliance on Super PACs once and for all. Under Fair Elections, viable candidates who qualify for the program would raise a maximum of $100 from any single donor. The candidates would then receive matching funds and grants sufficient to run a competitive campaign. It is a totally different approach. It really means that we would have campaigns more substantive, maybe shorter, maybe some real debates. Sound interesting? Fair Elections would fundamentally reform our broken system and put the average citizen back in control. Last week, the Senate voted on the DISCLOSE Act, a simple proposition. Who is paying for these ads? A majority of the Senate, including every Democratic Member of this Committee, voted to support the measure. I want to thank Senator Whitehouse, who is a Member of the Committee, for his leadership. The bill is simple. It requires Super PACs and other big spenders to disclose all donors who give $10,000 or more. In other words, it would write into law the same basic concept of disclosure that the Supreme Court says it endorsed in Citizens United. Congress could pass these two bills right now and make a world of difference. But with a Supreme Court that has not been shy about overturning precedent and disregarding congressional intent, passing these pieces of legislation may not be enough. After much deliberation, I have, with some hesitation, reached the conclusion that a constitutional amendment is necessary to clean up our campaign finance system once and for all. I have been reluctant to sponsor constitutional amendments. Some of my colleagues sponsor a lot of them. I think you ought to be careful not to take a roller to a Rembrandt, and I have tried to wait for those moments in history where I thought it was necessary. I think this is one of those moments. Slavery and the denial of basic freedom of Americans was the law of the land before and after Dred Scott, but many fought, bled, and died so that the 14th, 15th, and 16th Amendments would ensure that America lived up to its promise of equality. Those who fought for women's suffrage for decades were discouraged by the Supreme Court's ruling in Minor v. Happersett, but years of activism were rewarded when the 19th Amendment was passed. The Supreme Court's decision in Breedlove v. Suttles affirmed the imposition of poll taxes that prevented many African Americans and poor from voting. Those fighting for equal ballot access rallied to pass the 24th Amendment, and their victory was completed when State poll taxes were invalidated by Harper v. Board of Elections. So it is an uphill battle, and it may take years, but the passage of these five amendments remind us that grassroots movement can put our country back on the right course after a Supreme Court decision like Citizens United gets it dead wrong. That grassroots movement is well underway. Stacked over there in the corner are 1,959,063 petition signatures from Americans across the Nation representing every State in the Union in support of a constitutional amendment to stop the negative influence of secret money from special interest groups and individuals. Today we are going to hear testimony from some of my colleagues who have responded to this call by coming up with their own approaches, constitutional amendments. I am looking forward to their testimony. I am going to yield the floor when Senator Graham arrives so that he can speak, and the same for Senator Leahy. The first panel is seated. There have been 13 constitutional amendments introduced in the House and Senate, and my colleagues have taken many different approaches, but are all united in the belief that Citizens United and its progeny are bad for America. I am pleased to be joined today by some of the Members who have taken a leadership role. First, Senator Max Baucus, senior Senator from the State of Montana, Chairman of the Senate Finance Committee. In January of this year, Senator Baucus introduced his constitutional amendment, Senate Joint Resolution 35. His presence here today is particularly timely since just a few weeks ago, the Supreme Court struck down Montana's century-old ban on corporate political contributions in State elections. Senator Baucus, the floor is yours. STATEMENT OF THE HONORABLE MAX BAUCUS, A UNITED STATES SENATOR FROM THE STATE OF MONTANA Senator Baucus. Thank you, Mr. Chairman. President Franklin Delano Roosevelt once said, ``The ultimate rulers of our democracy are not a President and Senators and Congressmen and government officials, but the voters of this country.'' People in charge, we are just hired hands. We have got lots of great players back in our home States. We are the employees, and it is the people in our States that decide who they are going to elect, unelect, and give us direction as to what they think we should do. I sit before you today on behalf of those voters--in my State, nearly one million Montanans, those are the folks that I work for, as well as over 1.7 million Americans we all serve who have signed those petitions over there that you referred to. They have signed that petition calling for a constitutional amendment, some kind of amendment that this Committee is now considering at this moment. That is 1.7 million signatures. Those are mothers, fathers, employers, veterans, school teachers. They are Americans that we were sent here to serve. I must say, as a Montanan, this issue is deeply personal to me, and let me tell you why. At the top of our State Capitol building in Helena, Montana, sits a beautiful copper dome. Nearly a century ago, this copper dome was not just for decoration. It was a symbol of what we call in Montana and other parts of the country, the symbol of the ``copper barons.'' Now, who are they? They are the three major folks, extremely wealthy, who fought for and controlled the production of copper in Butte, Montana. Butte, Montana, is known as the richest hill on earth. One of them was a fellow named William Clark. William Clark is the largest benefactor to the Corcoran Gallery here in Washington, D.C. In today's dollars, he would rival Warren Buffett or Bill Gates. He was that wealthy. While miners were working underground, what was William Clark doing? William Clark was buying elections with his money. In fact, it was common for corporations in our State, and probably other States, to buy elections with their money. Remember, back then we were elected by State legislatures, not by the people. Legislatures decided who was going to serve in the U.S. Senate. In 1899, William Clark bribed the Montana State Legislature into appointing him to serve here in the U.S. Senate. Well, the Rules Committee had the goods on him because he actually threw--or his people did--bundles of dollars over the transom in hotels where the State legislators were staying, passing laws in the State of Montana. In fact, he is quoted as saying, ``I never bought a man who was not for sale.'' The Rules Committee sat down and met. What would they do with this guy, William Clark, who had clearly bribed his way to the U.S. Senate? Well, William Clark was no dummy. While the Rules Committee was meeting, and they had the goods on him--this is back around 1900--what did he do? He used his money to do something pretty clever. He arranged to have the Governor of the State of Montana leave Montana and go to San Francisco. He bought him off. And then he, William Clark, resigned. He resigned his position in the U.S. Senate and arranged to have the Lieutenant Governor, then Acting Governor, appoint him to the U.S. Senate, and that is how William Clark became a Senator. He bought his way into the U.S. Senate. That led to the 17th Amendment. That incident and the scandal in Montana led to the passage of the 17th Amendment. And Montana also responded by passing laws prohibiting corporations from contributing to elections. We were so outraged with what William Clark and his people did in the State of Montana. And as you said, Citizens United overturned that and made it impossible for Montana to enforce this law that was deeply embedded in our culture, and the recent decision by the Court in the aftermath of Citizens United made that very clear. We in Montana cannot proceed. So I believe, as you believe, that the solution here is a constitutional amendment. That is about the only way we can solve this, to restore power and put power back in the hands of the people, not in the hands of the corporations like William Clark exercised back then. There was a 2012 poll which says that 63 percent of Americans believe that corporations and unions should not be able to spend unlimited amounts of dollars in elections. And the people we work for, at least in my State, and I think across the country, agree. Again, the surest way to get at the heart of the matter, I think, is a constitutional amendment. In the Federalist Papers, James Madison noted that there would be circumstances when ``useful alterations [to the Constitution] will be suggested by experience.'' Still this is a process that requires significant deliberation. It should. As you have said, Mr. Chairman, you do not just amend the constitution lightly. And I do not take a proposal to amend the Constitution lightly at all. And I agree with James Madison that we should amend the Constitution only on ``great and extraordinary occasions.'' This is one of those occasions, as you said just a few minutes ago. And Congress, I think, owes it to the American people to fully study, discuss, and debate the merits of an amendment. My proposal--and there are many here--would right the wrong of Citizens United, simply overturn it. It would restore Congress' and States' ability to regulate political spending by corporations and labor in elections and then give people in States like Montana and other States the power to once again say, ``We are not for sale.'' It is clear to me that action is needed to restore Americans' faith in our political and electoral process, and I urge my colleagues to join me in supporting this amendment. [The prepared statement of Senator Baucus appears as a submission for the record.] Chairman Durbin. Thanks a lot, Senator Baucus. I appreciate your testimony, and we would love to have you stay, but if you have other things calling you in the Senate Finance Committee and other places, you are welcome to leave. Senator Baucus. Thank you. Chairman Durbin. Ordinarily I would then recognize Senator Sanders, but it turns out the senior Senator from Vermont showed up, and he is Chairman of the Committee, and I hope, Senator Sanders, that you will give us a chance here for Senator Leahy to say a word or two in opening, and then I will recognize you next. Senator Leahy. STATEMENT OF THE HONORABLE PATRICK J. LEAHY, A UNITED STATES SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Thank you, Chairman Durbin. Listening to our friend Senator Baucus and watching what has happened on television or watching elections the last two and a half years, we have seen the corrosive effects of the Supreme Court's decision in Citizens United. It is really hard to think of any Supreme Court decision that has had such a negative impact on our political process. Nobody who has heard the barrage of negative ads from always undisclosed and, even worse, unaccountable sources can deny the impact of Citizens United. Nobody who has strained to hear the voices of the voters lost among the noise from Super PACs can deny that by extending First Amendment ``rights'' in the political process to corporations, five Justices put at risk the rights of individual Americans to speak to each other and, crucially, to be heard. The idea that a corporation is a person is as crazy as saying, ``We elected General Eisenhower President, then why can't we elect General Motors President? '' It makes no sense. But those same five Justices doubled down, as Senator Baucus would agree, when they summarily struck down the 100- year-old Montana law. These Supreme Court decisions go against all kinds of longstanding laws and legal precedents, but also against common sense and against the people. Corporations are not people. Corporations do not have the same rights, the same morals, or the same interests. Corporations cannot vote in our democracy. They are artificial legal constructs meant to facilitate business. Now, the Founders of this country knew that. Vermonters and Americans across our country have long understood this. Five members of the Supreme Court apparently do not. Like most Vermonters, I believe that this is a harmful decision that needs to be fixed. I have sought legislative remedies, of course, because that would be quicker, although I believe constitutional remedies have to be considered. That is why I held the very first congressional hearing on that terrible decision after it was issued. I worked with Senator Whitehouse, Senator Schumer, and others to amend the DISCLOSE Act, bring forth the DISCLOSE Act that could at least cut out some of the worst parts of Citizens United. I have worked with Senator Durbin, the Chairman of this Subcommittee, to schedule today's hearing. And, Senator Durbin, I do thank you for holding this hearing. It is extremely important. He has been not only a leader on this, but he has been a leader in shedding light on the effort in so many States to deny millions of Americans access to the ballot box through voter purges and voter ID laws. It is amazing to find people trying to cut out the right to vote for individual Americans. They are saying we are going to cut out the right for individual Americans to vote, but we are going to give unlimited power for corporations to involve themselves in secret spending to change the outcome of our elections. We have to work to restore the right balance in our democracy to protect the form of government Americans have fought and died for, what President Lincoln called our government of, by, and for the people. The last 236 years have been one toward greater inclusion and participation by all Americans. That is not what is happening here. I will put my full statement, Mr. Chairman, in the record, but I look at a little State like mine, a tiny fraction of the corporate money being spent could overwhelm us in our State. That is why more than 60 Vermont towns passed resolutions on Town Meeting Day calling for action to address Citizens United. [The prepared statement of Chairman Leahy appears as a submission for the record.] Chairman Leahy. Also, Mr. Chairman, I would ask consent that a statement by a Vermonter, Rick Hubbard of South Burlington, be included in the record. Chairman Durbin. Without objection. [The prepared statement of Mr. Hubbard appears as a submission for the record.] Chairman Durbin. Thank you very much, Senator Leahy. Let me now recognize Senator Sanders, the junior Senator from Vermont. He has introduced Senate Joint Resolution 33 in an effort to respond to Citizens United and related cases. Senator Sanders enjoys a larger grassroots following than probably any other Senator, and we know that he is frequently in touch with people who are following this issue very carefully. Senator Sanders, please proceed. STATEMENT OF THE HONORABLE BERNARD SANDERS, A UNITED STATES SENATOR FROM THE STATE OF VERMONT Senator Sanders. Thank you very much for convening this enormously important hearing, and thank you for your very strong opening remarks. And I thank Senator Leahy as well for his strong statement. Mr. Chairman, as you have indicated a moment ago, the history of our country has been to drive toward a more and more inclusive democracy--a democracy which would fulfill Abraham Lincoln's beautiful phraseology at Gettysburg when he talked about ``a Nation of the people, by the people, and for the people.'' We all know that American democracy has not always lived up to this ideal. When this country was founded, only white male property owners over age 21 could vote, but people fought to change that, and we became a more inclusive democracy. After the Civil War, we amended the Constitution to allow non-white men to vote. We became a more inclusive democracy. In 1920, after years of struggle and against enormous opposition, we finally ratified the 19th Amendment guaranteeing women the right to vote. We became a more inclusive democracy. In 1965, under the leadership of Martin Luther King, Jr., and other great heroes, the civil rights movement finally succeeded in outlawing racism at the ballot box, and LBJ signed the Voting Rights Act. We became a more inclusive democracy. One year after that, the Supreme Court ruled that the poll tax was unconstitutional, that people could not be denied the right to vote because they were low income. We became a more inclusive democracy. In 1971, young people throughout the country were saying, ``We are being drafted to go to Vietnam and get killed, but we are 18 and we do not have the right to vote.'' We passed a constitutional amendment. The voting age was lowered to 18. We became a more inclusive democracy. Mr. Chairman, the democratic foundations of our country and this movement toward a more inclusive democracy are now facing the most severe attacks, both economically and politically, that we have seen in the modern history of the United States. Tragically--and I say these words advisedly--we are well on our way to seeing our great country move toward an oligarchic form of government where virtually all economic and political power rests with a handful of very wealthy families. Citizens United is a part of that process, and that is a trend we must reverse. Economically, the United States today has by far the most unequal distribution of wealth and income of any major country on earth, and that inequality is worse today than it was at any time since the late 1920s. One family, the Walton family of Wal-Mart fame, owns more wealth than the bottom 40 percent of the American people. The bottom 60 percent own less than two percent of the wealth. The top one percent owns 40 percent of the wealth. Now, that is what is going on economically in this country. A handful of billionaires own a significant part of the wealth of America and have enormous control over our economy. What the Supreme Court did in Citizens United is say to these same billionaires, ``You own and control the economy. You own Wall Street, you own the coal companies, you own the oil companies. Now for a very small percentage of your wealth, we are going to give you the opportunity to own the U.S. Government.'' That is the essence of what Citizens United is all about, and that is why it must be overturned. Let us be clear. Why should we be surprised that one family worth $50 billion is prepared to spend $400 million in this election to protect their interests? That is a small investment for them and a good investment. But it is not just the Koch brothers. Mr. Chairman, there are at least 23 billionaire families who have contributed a minimum of $250,000 each into the political process up to now during this campaign, and my guess is that number is really much greater because many of these contributions are made in secret. In other words, not content to own our economy, the one percent want to own our government as well. The constitutional amendment that Congressman Ted Deutch and I have introduced states the following: ``For-profit corporations are not people and are not entitled to any rights under the Constitution. For-profit corporations are entities of the States and are subject to regulation by the legislatures of the States so long as the regulations do not limit the freedom of the press. For-profit corporations are prohibited from making contributions or expenditures into political campaigns. Congress and the States have the right to regulate and limit all political expenditures and contributions, including those made by a candidate.'' I am proud to say that the American people are making their voices heard on this issue. You have close to two million signatures right there on a petition. In my State of Vermont, we have seen dozens and dozens of towns go on record as saying they support a constitutional amendment, and we have six States having done the same. You have some very good amendments here with Senator Baucus, Senator Udall, and Congresswoman Edwards. I hope we move on this issue because the future of American democracy is at stake. Thank you very much. [The prepared statement of Senator Sanders appears as a submission for the record.] Chairman Durbin. Thanks, Senator Sanders. Senator Tom Udall is the junior Senator from New Mexico and offered one of the first amendments in the Senate on this subject. We are glad you are here today, and the floor is yours. STATEMENT OF THE HONORABLE TOM UDALL, A UNITED STATES SENATOR FROM THE STATE OF NEW MEXICO Senator Udall. Thank you, and good afternoon, Chairman Durbin, Chairman Leahy, and Senator Coons. In January 2010, the Supreme Court issued its opinion in Citizens United v. FEC. Two months later, the D.C. Circuit Court of Appeals decided SpeechNow v. FEC. These two cases opened the door to Super PACs. Millions of dollars now pour into negative and misleading campaign ads. This is poisoning our democracy, and often we do not even know who is doing the poisoning. Our campaign finance system was in trouble before these opinions. We have been on this dangerous path for a long time. The Citizens United and SpeechNow decisions just picked up the pace, but the Court laid the groundwork many years ago. We can go all the way back to 1976. That year, the Court held in Buckley v. Valeo that restricting independent campaign expenditures violates the First Amendment right to free speech. In effect, money and speech are the same thing. This is tortured logic. It is divorced from the reality of political campaigns, and it is the basis for the Court's ruling in Citizens United. The outcome is hardly surprising. Americans' right to free speech is now determined by their net worth. For average Americans, they get one vote. They go to the polls and cast their ballot with millions of others. But for the wealthy and the super wealthy, Buckley says they get so much more, says that they can spend unlimited amounts of money to influence our elections. And now with Citizens United that right has been extended to corporations and other special interests. The damage is clear. Elections become more about the quantity of cash and less about the quality of ideas; more about special interests, and less about public service. We have a broken system based on a deeply flawed premise. There are only two ways to change this: the Court could overturn Buckley and Citizens United, which is unlikely with its current ideological makeup; or we amend the Constitution, we overturn the previous bad Court decisions and prevent future ones. Until then, we will fall short of real reform. Until then, the flood of special interest cash will continue. That is why I, along with several Members of this Subcommittee, introduced S.J. Res. 29 last November. We are up now to 23 cosponsors, with several other Senators expressing support for a constitutional amendment in floor speeches and press interviews. This amendment is similar to bipartisan proposals in previous Congresses. It would restore the authority of Congress--stripped by the Court--to regulate the raising and spending of money for Federal political campaigns. This would include independent expenditures, and it would allow States to do so at their level. It would not dictate any specific policies or regulations. But it would allow Congress to pass sensible campaign finance reform legislation that withstands constitutional challenges. In Federalist No. 49, James Madison argued that the U.S. Constitution should be amended only on ``great and extraordinary occasions.'' I believe we have reached one of those occasions. Free and fair elections are a founding principle of our democracy. They should not be for sale to the highest bidder. I know amending the Constitution is difficult. And it should be. Last week, during the debate on the DISCLOSE Act, Chairman Leahy said that we must pass that bill now because of the ``years and years that a constitutional amendment might take.'' The Chairman makes a fair point. But those ``years and years'' started decades ago. There is a long--and, I might add, bipartisan--history here. Many of our predecessors from both parties understood the corrosive effect money has on our political system. They spent years championing the cause. In 1983--the 98th Congress--Senator Ted Stevens introduced an amendment to overturn Buckley. And in every Congress from the 99th to the 108th, Senator Fritz Hollings introduced bipartisan constitutional amendments similar to the one I have introduced. After he retired, Senators Schumer and Cochran continued the effort in the 109th Congress. And that was before Citizens United, before things went from bad to worse. The out-of-control spending since that decision has further poisoned our elections. But it has also ignited a broad movement to amend the Constitution. Across the country, more than 275 local resolutions have passed calling for a constitutional amendment to overturn Citizens United. Legislatures in six States--California, Maryland, Hawaii, Vermont, Rhode Island, and my home State of New Mexico--have called on Congress to send an amendment to the States for ratification. Many more States have similar resolutions pending. And as has been mentioned here, 1.9 million citizens have signed petitions in support of an amendment. More than a hundred organizations, under the banner of United for the People, are calling for constitutional remedies. But an amendment can only succeed if Republicans join us in this effort. They have in the past. I know the political climate of an election year makes things even more difficult, but I am hopeful that we can work together and that we can reach consensus on a bipartisan constitutional amendment that can be introduced early in the next Congress. We must do something. The voice of the people is clear, and so is their disgust. And with that, Senator Durbin, thank you for your courtesies on going a little bit over time. I would ask that I put my full statement into the record and once again thank you for this very important and timely hearing. [The prepared statement of Senator Udall appears as a submission for the record.] Chairman Durbin. Thank you, Senator Udall. Of course, your statement will be in the record. It is my pleasure now to introduce Congresswoman Donna F. Edwards, representing Maryland's Fourth Congressional District, 15 years of experience on campaign finance reform, voting rights, and government ethics issues. She was the first Member of the House to introduce a constitutional amendment responding to Citizens United. She has been actively engaged in educating the public about this effort, and we are glad to have you on this side of the Rotunda. Please proceed. STATEMENT OF THE HONORABLE DONNA EDWARDS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND Ms. Edwards. Thank you, Mr. Chairman, and to all the Members of the Committee and the Ranking Member, I really do appreciate the opportunity to be here today to testify. I think this is an important hearing to examine the pending responses to the Supreme Court's decision in Citizens United and related cases. We do not have any doubt that we have entered into an unprecedented era in our political system and one in which Super PACs seem to rule. ``One person, one vote'' seems more appropriate for a history lesson than a description of our current elections process. The danger of Citizens United was heralded by Justice Stevens in his dissenting opinion. He could not have been more prescient when he warned that it would ``undermine the integrity of elected institutions around the Nation.'' Justice Stevens' warning materialized initially during the 2010 election cycle, but that was just the opening salvo. We have seen at the start of the 2012 Republican Presidential primaries the true scope and danger of Citizens United. Restore Our Future, a Super PAC supporting former Governor Mitt Romney and run by his former staffers, poured nearly $8 million into Florida. Winning Our Future, a Super PAC supporting former Speaker Newt Gingrich, made a $6 million ad buy there. After being targeted by Restore Our Future, Speaker Gingrich concluded, ``I think it debilitates politics. I think it strengthens millionaires and it weakens middle-class candidates.'' I could not agree more. This is an equal opportunity corrosion. Democratic-leaning groups are preparing to play, too, even while doing a little catch-up with Republican-leaning groups. Sadly, the landscape continues to darken as we march toward the 2012 general election. According to the Center for Responsive Politics, 678 groups who organized as Super PACs reported receipts of over $280 million and independent expenditures of more than $145 million already in this election cycle. Putting an end to the influence of secret money on our elections I think requires a three-legged stool approach: First, require increased disclosure of money in political campaigns; Second, allow public financing of candidates for Congress. If we do not own our elections, who will? Then, third, amend the Constitution to give Congress the authority that it needs to regulate political expenditures. I am an original cosponsor of measures that do just that, and, Mr. Chairman, I want to thank you for your sponsorship and leadership on the Fair Elections Now Act. And I particularly want to applaud Senator Whitehouse for his leadership on the DISCLOSE Act. While these interim reforms should be enacted into law to mitigate the influx of unregulated money in our elections, the Citizens United decision leaves Congress, I think, with really only one true option, and that is, to amend the Constitution. As a lawyer and someone who has dedicated nearly 15 years to working on campaign finance reform, I do not take amending our Nation's guiding document lightly either. Indeed, as an advocate and a donor, I spent the better part of my career shunning attempts by reform groups to support constitutional amendments. That all changed with Citizens United. I believe firmly that such bold action is warranted as we face the threat that Citizens United poses to the health of the democracy. In its majority opinion, the Court was clear: Congress does not have the authority to regulate these expenditures. I do not agree, but the Court did double down in its conclusion in SpeechNow and in Bullock. Only an amendment to the Constitution can provide Congress with the authority it needs. Fewer than two weeks after Citizens United was released, I joined with House Judiciary Chairman John Conyers to introduce the first constitutional amendment to reverse the decision. Our amendment would have given specific authority to Congress and the States to regulate corporate expenditures on political activity by imposing content-neutral regulations and restrictions on expenditures of funds for political activity by any corporate entity excluding the media. It is very similar to Senator Baucus' approach. Ranking Member Conyers and I reintroduced our amendment in this Congress. But we are not alone in the fight. You have already indicated that 14 amendments--three in the Senate and 11 in the House--have been introduced during the current Congress. We all agree that corporate money and individual wealth cannot dominate our politics any longer. But as usual, the public is way ahead of us. We can see that. Two hundred and seventy-five cities and towns from Albany to Pittsburgh to Kansas City to Missoula have passed anti-Citizens United resolutions, including my home State of Maryland. The sponsors of a constitutional amendment all came together, and we agreed to what is called a ``Declaration for Democracy,'' to declare our support for amending the Constitution. And today 1,854 public officials, including 92 Members of the House and 28 Senators, over 2,000 business leaders, and thousands of ordinary citizens have signed their name to this declaration. And now some are questioning the need for an amendment, but the Supreme Court has answered that question pretty unequivocally when it overturned Montana's century old limits on corporate spending. The Supreme Court closed the door on reasonable laws to regulate campaign finance, and except for disclosure, the constitutional door is the only one that really remains open. And we owe it to the American people--and, Mr. Chairman, I know that you agree--to find the consensus that we need and to walk through the door. And so I want to thank you for this opportunity and thank you for your work, and I appreciate the chance to be here today. Chairman Durbin. Congresswoman Edwards, thank you for coming. Senator Udall and Senator Sanders, thank you as well. Unless my colleagues have a comment or question, I will thank you once again and invite the second panel to come forward. Chairman Durbin. Before you take your seats, I will administer the oath, which is the custom of this Subcommittee. If you will please raise your right hand. Do you affirm the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. Roemer. I do. Mr. Shapiro. I do. Mr. Lessig. I do. Chairman Durbin. Thank you. Let the record reflect that all three witnesses have answered in the affirmative. Charles (Buddy) Elson Roemer III, former Governor of Louisiana. Prior to becoming Governor of Louisiana in 1988, Roemer served four terms in the U.S. Congress from 1981 to 1988. I was honored to serve with him. As Governor, Buddy Roemer worked with the State legislature to enact sweeping campaign finance reform. Most recently, Governor Roemer was a candidate in the 2012 Republican Presidential primary. During his Presidential campaign, Governor Roemer limited all campaign contributions to $100, practiced full and immediate disclosure, and refused to accept contributions from PACs, Super PACs, and corporations. Governor Roemer, thank you for joining us today. The floor is yours. STATEMENT OF THE HONORABLE CHARLES ``BUDDY'' ROEMER, FORMER CONGRESSMAN AND FORMER GOVERNOR, STATE OF LOUISIANA, BATON ROUGE, LOUISIANA Mr. Roemer. Thank you, Mr. Chairman. Thanks for inviting me. Washington, D.C., appears to be broken, with gridlock, an unreadable tax code that exports American jobs; dumb trade rather than smart, non-existent budget discipline; too big to fail in perpetuity. Broken? Yes. But it is bought first. And it will not be repaired by those who profit from its impairment. Political campaigns have always required funding, but citizens do not now fund campaigns. The special interests do, because they gain a disproportionate say-so in public policy as a result. This dependence between special interest funding and political advancement is a form of institutional corruption in a representative democracy. It is corrupt when the size of your contribution determines your place in line. It is institutional when everyone does it, when the invitees to your fundraisers are from the industries you regulate. The public's perception is not only that Congress is a do- nothing, gridlocked institution, more interested in themselves than in us, but that in order to fund that priority, they go to where the money is, the special interests, who have never profited more than now while America hurts. Four years ago, it became obvious when the two Presidential nominees received more PAC and other special interest funding from Washington, DC, and its environs than they did from the individual contributions of 32 States combined. That is four years ago. It is now worse. With less than one percent giving more than 99 percent of all campaign funding, it cannot be called a Republic for long. Being on the campaign trail for the past 20 months with a $100 limit, full disclosure, and refusal of all PAC money, I saw the skewing of the current system toward the power of the unlimited givers. I saw multiple candidates pretend non- coordination with their Super PACs while personally addressing their Super PAC fundraisers. Uncoordinated? Are we stupid? I saw qualified candidates excluded from the national televised debates because they had not raised $500,000 in the prior 90-day period. How do you do that without taking special interest money? Raise it from the people, you say. Well, how do you do that if excluded from the debates? Free to lead is the qualification of every great President, yet our institutional corruption places our futures in the hands of the mega contributors. Who elects them? When I came to Congress 31 years ago, the debate was between full disclosure on the part of the conservatives and caps on giving by liberals. Now we have neither. A constitutional amendment might be required to address this imbalance, but it will and should require careful debate. Statutory solutions can rectify much now. Consider seven quick points. One, full disclosure of all contributions and expenditures used politically. Full disclosure does not solve all our problems, but sunlight is a powerful disinfectant. Two, 48-hour reporting for all transactions in the political marketplace. Actionable, timely disclosure yields the greatest, most valuable information for the voting public. Three, no financial contributions or assistance should be allowed from registered lobbyists. Four, the limits on PAC contributions should be the same as exist on individual contributions, whatever they are. Five, independent, non-coordinated efforts should be defined by Congress with boundaries set at relatively low levels of connections to candidate or campaign, disqualifying an entity. Six, lobbying of Congress by retiring members should be disallowed for a period of at least five years post-retirement. Seven, Congress should enact criminal penalties for the willful violation of these six points. Finally, I have come to support the use of public funds for candidates for Federal office who meet reasonable fundraising thresholds of small contributions from within their district. The cost is minimal. The benefits to the anticorruption effort are powerful. ``We, the people'' is the phrase that guides us, not ``we, the strongest,'' not ``we, the best and brightest,'' not ``we, the biggest.'' ``We, the people.'' The system is not broken, Mr. Chairman. It is bought. Action is necessary for a nation at risk. We need a speed limit on the highway to prevent and protect against corruption and the appearance of corruption. Just a speed limit, not a ban. Broad limits, bright sunshine--a Republic. [The prepared statement of Mr. Roemer appears as a submission for the record.] Chairman Durbin. Thank you, Governor Roemer. Next is Ilya Shapiro. He is a senior fellow in constitutional studies at the Cato Institute. Mr. Shapiro is an editor in chief of the Cato Supreme Court Review. He frequently provides commentary on political and legal issues for major news outlets. Mr. Shapiro lectures regularly on behalf of the Federalist Society. He was an Inaugural Washington Fellow at the National Review Institute. He has worked as an adjunct professor at George Washington University Law School. Prior to joining Cato, Mr. Shapiro was a litigator in private practice, earned his law degree from the highly regarded University of Chicago and, after graduating, clerked for Judge Grady Jolly on the U.S. Court of Appeals for the Fifth Circuit. Mr. Shapiro, please proceed. STATEMENT OF ILYA SHAPIRO, SENIOR FELLOW IN CONSTITUTIONAL STUDIES, CATO INSTITUTE, WASHINGTON, DC Mr. Shapiro. Mr. Chairman and distinguished Members of the Subcommittee, thank you for this opportunity to discuss campaign finance law. Let me first note that Citizens United is one of the most misunderstood, high-profile cases ever, so I will review what the case actually said before discussing possible responses. Citizens United is both more important than you might think--because it revealed the instability of our system--and less important, because it does not stand for what many people say it does. Take, for example, President Obama's famous statement that the decision ``reversed a century of law that I believe will open the floodgates of special interests-- including foreign corporations--to spend without limit in our elections.'' In one sentence, the former law professor made four errors of law. First, Citizens United did not reverse a century of law. The President was referring to the Tillman Act of 1907, which prohibited corporate donations to candidates and parties. Citizens United did not touch that. Instead, the overturned precedent was a 1990 case that, for the first and only time, allowed a restriction on political speech based on something other than corruption or the appearance thereof. Second, the ``floodgates'' point depends on how you define those terms. As you may have just read in the New York Times magazine, there is no significant change in corporate spending this election cycle. There are certainly people running Super PACs who would otherwise be supporting candidates directly, but Citizens United did not cause Super PACs, as I will get to shortly. And the rules affecting the wealthy individuals who are spending more--be they Sheldon Adelson or George Soros or the Waltons--have not changed at all. It is unclear that any floodgates have been opened or which special interests did not exist before. Third, the rights of foreigners--corporate or otherwise--is another issue about which Citizens United said nothing. Indeed, just this year the Supreme Court summarily upheld the restrictions on foreign spending in political campaigns. Fourth and finally, while independent spending on elections now has few limits, candidates and parties are not so lucky, and neither are their donors. Again, Citizens United did not affect laws regarding individual or corporate contributions to candidates. More important than Citizens United was SpeechNow.org, decided two months later in the D.C. Circuit. That case removed the limits on donations from political action committees, thus making these PACs ``super'' and freeing people to pool money the same way one rich person can alone. And so if you are concerned about the money spent on elections--though Americans spend more on chewing gum and Easter candy--the problem is not with the big corporate players. This is another misapprehension: Exxon, Halliburton, and all these ``evil'' companies--or even the ``good'' ones-- are not suddenly dominating the political conversation. They spend little money on political advertising, partly because it is more effective to lobby, but even more, why would they want to alienate half of their customers? As Michael Jordan famously said, ``Republicans buy sneakers too.'' On the other hand, groups composed of individuals and smaller players now get to speak: your National Federations of Independent Business and Sierra Clubs, your ACLUs and Planned Parenthoods. So even if we accept ``leveling the playing field'' as a proper basis for regulation, the freeing up of associational speech levels that field. Moreover, people do not lose rights when they get together, be it in unions, advocacy groups, clubs, for-profit companies, or any other way. Now, I have reviewed the various proposals introduced to remedy some of Citizens United's perceived ills. The gist is that if only we can eliminate private money, elections will be cleaner. The underlying problem, however, is not the underregulation of independent spending, but the attempt to manage political speech in the first place. Political money, is like water: It will flow somewhere, because what the government does matters, and people want to speak about their concerns. To the extent that ``money in politics'' is a problem, the solution is to reduce the political scope that the money can influence. Shrink government and you will shrink the amount people spend trying to get their piece of the pie. While we await that shrinkage--and my Cato colleagues have suggestions if you are interested--we do have to address the core flaw in campaign finance. That original sin was committed by the Supreme Court, not in Citizens United but in the 1976 case of Buckley v. Valeo. By rewriting the Federal Election Campaign Act to remove spending limits but not contribution caps, Buckley upset Congress' balanced reform. That is why politicians spend all their time fundraising. Moreover, the regulations pushed money away from candidates and toward advocacy groups--undermining the worthy goal of government accountability. The solution is obvious: Liberalize rather than restrict the system. Get rid of limits on individual contributions and then have disclosures for those who donate amounts big enough for the interest in preventing corruption to outweigh the potential for harassment. Then the big boys will have to put their reputations on the line, but not the average person. Let the voters weigh what a donation source means to them rather than--with all due respect--allowing politicians to write rules benefiting themselves. In sum, we now have a system that is unbalanced and unworkable. At some point, enough incumbents will feel that they are losing message control so that they will allow fairer political markets. Earlier this month, for example, the Democratic Governor of Illinois signed a law allowing unlimited contributions where there was significant independent spending. This is political self-preservation, but that is fine. Once more politicians realize that they cannot prevent communities from organizing, they will want to capture more of their dollars. Stephen Colbert would then have to focus on other laws to lampoon, but I am confident that he can do that, and we will be better off. Ultimately--and I will conclude with this, Mr. Chairman-- the way to ``take back our democracy''--to invoke this hearing's name--is not to give government more power to decide who should speak and how much. Thank you again for having me. I welcome your questions. [The prepared statement of Mr. Shapiro appears as a submission for the record.] Chairman Durbin. Thank you very much, Mr. Shapiro. Lawrence Lessig is a professor of law at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University, a nationally recognized scholar, author, speaker. Professor Lessig is one of our Nation's leading authorities on constitutional law and campaign finance reform. Prior to teaching at Harvard, Professor Lessig clerked for Judge Richard Posner on the Seventh Circuit Court of Appeals in Chicago and subsequently for Justice Antonin Scalia on the U.S. Supreme Court. In addition to serving on the boards of other nonprofit organizations, Professor Lessig is on the Advisory Board of the Sunlight Foundation, an organization dedicated to using the Internet and technology to foster a more open and transparent government. Many of our witnesses make many sacrifices to appear before us, but none makes a greater sacrifice than your son, who interrupted his family vacation to accompany his father to this hearing, so we thank him for joining us. [Laughter.] Chairman Durbin. Professor Lessig, the floor is yours. STATEMENT OF LAWRENCE LESSIG, ROY L. FURMAN PROFESSOR OF LAW AND LEADERSHIP, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS Mr. Lessig. Thank you, Mr. Chairman, and I commend this Committee for holding this hearing, which is really a celebration of the extraordinary grassroots movement led by new organizations, such as Free Speech for People and Move to Amend, and more established organizations, such as People for the American Way and Common Cause, that has developed to demand the reversal of Citizens United and an end to the system for funding elections that leads most Americans to believe that this government is corrupt. Yet this hearing could only be the beginning of the serious work that will be required to address the problem in America's democracy that Citizens United has come to represent, and that problem can be stated quite simply: The people have lost faith in their government. They have lost the faith that their government is responsive to them because they have become convinced that their government is more responsive to those who fund your campaigns. As all of you--Democrats, Republicans, and Independents alike--find yourselves forced into a cycle of perpetual fundraising, you become, or at least most Americans believe you become, responsive to the will of the funders. Yet the funders are not the people; 0.26 percent of Americans give more than $200 in a congressional campaign, 0.05 percent give the maximum amount to any congressional candidate, 0.01 percent, the one percent of the one percent, give more than $10,000 in an election cycle. And in the current Presidential election cycle, 0.000063 percent--that is 196 citizens--have funded 80 percent of the indivdual Super PAC contributions so far. There are two elections in America today--not the primary and general election, but the money election and the voting election. And to win the voting election, you must first compete in the money election. But unlike the voting election, not every citizen can participate equally in the money election. Instead, it is only the very few who can compete at all. And it is because of this money election that we have evolved a system in which the elected are dependent upon the tiniest slice of America. Yet that tiny slice is in no way representative of the rest of America. This, Senators, is corruption. It is not corruption in the criminal sense. I am not talking about bribery or quid pro quo influence peddling. It is instead corruption in a sense that our Framers would certainly and easily have recognized. They architected a government that in this branch, at least, as Federalist 52 puts it, would be ``dependent upon the people alone,'' but you have evolved a government that is dependent upon the people and dependent upon the funders. And that different and conflicting dependence is a corruption of our Framers' design, now made radically worse by the errors of Citizens United. But in responding to those errors, please, do not lose sight of one critical fact: On January 20, 2010, the day before Citizens United was decided, our democracy was already broken. Citizens United may have shot the body, but the body was already cold. And any response to Citizens United must also respond to that more fundamental corruption. Now, how you do that--how you do that--will be as important as what you do. For America's cynicism about this government, whether fair or not, is too profound to imagine that this Congress alone can craft a response that would earn the confidence of the American people. Instead, this Congress needs to find a process that could discover the right reforms that itself could earn the trust of the American people. That process should not be dominated by politicians or law professors, indeed, by any of the professional institutions of American Government. It should be dominated instead by the people. I have submitted today to this Committee the outline of one such plan, what I called a series of ``citizen conventions,'' constituted as a kind of civic jury and convened to advice Congress about the best means for reform. But whether it is this process or another, your challenge is to find a process that could convince America that a corrupted institution can fix itself. The confidence of the American people in this government, in you, is at a historic low. That is not because of the number of Democrats sitting in Congress. It is not because of the number of Republicans. And it will not change simply by changing the number of Democrats or Republicans sitting in Congress. Instead, confidence is at a historic low because of the dependence that all of you and all of us have allowed to evolve in this government that draws you away from a dependence upon the people alone. I thank you for the beginning this hearing represents, and more importantly, I thank the extraordinary citizens who have united to get you to focus upon this issue. But I urge you now to act in a way that has a real chance to restore that confidence of the people in their government. Thank you very much. [The prepared statement of Mr. Lessig appears as a submission for the record.] Chairman Durbin. Thank you, Professor Lessig. Let me just note for the record here that at 3:40, in just a few moments here, we are going to suspend the hearing for a moment of silence. It is the 14th-year anniversary of the death of two of our Capitol Hill policemen, and across Capitol Hill that moment of silence will be acknowledged. So I will let you know when that arrives. But until then, we will continue to pursue the questioning here. Professor Lessig, one of the things I found interesting in your testimony--you did not mention it, but as written--is this notion of a citizens convention. Most of the constitutional amendments that are being proposed talk about actually changing the Constitution. You have taken it a step beyond that, have you not, in terms of opening it up to a much different process to bring in a lot of new voices. How do you guarantee that a citizens convention is not overwhelmed by these same oligarchs? Mr. Lessig. So the process that I have described of the citizen conventions would be conducted in the way that, for example, Professor Fishkin of Stanford has conducted, what he calls ``deliberative polls.'' So in this procedure, we take a random selection of, let us say, 300 citizens. Imagine we run four of these conventions around the country, one in each region, four regions in the country. And these 300 citizens would act as a jury--as a jury that would listen to the submissions of people about what these issues are and what the solutions are and they would deliberate. And they would deliberate--in my view, they should be sequestered, they should be compensated, they should be protected so that they can do their work like any jury can do its work with the confidence and protection necessary. But in that process, we would involve a cross-section, a representative random cross-section of the American public. And my view is this process is necessary because, as Americans look to this institution and, frankly, to people like me, law professors or lawyers who talk about this issue, their eyes glaze over because they cannot believe that the institution has the capacity to change itself to deal with what is the core problem. So that is the way that bringing in another voice into this process could aid this Congress, I believe, in thinking about what response might actually earn the trust of the American people. Chairman Durbin. Governor Roemer, when you served in the House of Representatives, I do not know if you raised money in the same fashion as you did during your Presidential campaign. But you certainly got to see a contrast to your approach in the Republican Presidential primary when one Las Vegas casino magnate, as he is generally referred to, decided to bankroll one of your opponents, Newt Gingrich, and put $20 or $30 million in and promised more if needed. Tell me how the dynamics of the campaign were affected by that decision. Mr. Roemer. To your first point, when I was a Member of the House of Representatives, I chose not to accept PAC money. I think I was the only Member who made that choice. I came from a State that had a culture, a history of tolerance of political corruption, if I could say that gently. I love Louisiana. Let me say that clearly. I ran for Governor in that State as the only candidate not to take PAC money. I had no chance. I was sixth in a five-man race. But I won in the end with less money but making money the issue. So I know this can be done. When I ran for President this time, after being out of politics for 20 years--and very happy, Senator, let me just say the best 20 years of my life. Building community banks is what I do. No Federal bailout money, just lean and clean and profitable. When I ran for President thinking that maybe we could connect with the American people on the issue of money, I found a couple interesting dynamics that surprised me. One is the whole public out there depends on the debates as to their impressions of people, and every Republican in that race kind of had their moment in the sun. They would rise and fall with those debates. Well, interestingly enough, I was the only candidate running who had been elected Governor and a Congressman and was a successful businessman, and I was not invited to a single debate--not one of the 23 nationally televised debates. And you have known me for a long time. I love the debates. I mean, that is where I am alive. And I think I made a mistake, Mr. Chairman. I gave a speech in Iowa early in February 2011, and it was Romney, Santorum, and several others were there, Newt Gingrich. And I got the only standing ovation, and I had talked about eliminating the ethanol subsidy and the oil subsidy. I mean, the 1,200 people in that room were like stunned about the sacrifices that we have to make to get this government strong again. And I talked about their sacrifice and mine, and I got a standing ovation. I was not invited to another debate after that. I just could not raise the money. So I have found, much to my surprise, after 20 years gone, that politics had changed. And it is like Larry Lessig, a friend--I trust Larry completely. It is like Larry Lessig just said. There are two races that you run: the race for money and then the race for votes. And what I tried to do running for President was to run the race for money so that I would be free after elected to do the right thing. And I would not have to call Wall Street for bank reform. I would not have to. I would listen to them, but I would not have to call them. I would not have to have a fundraiser there. I would not have to go to the top of the money pile to get my answers. And I found that it affected everything I do. I raised about three-quarters of a million dollars, the average gift $45. I was the only candidate that got Federal matching funds at the end. I qualified. I had it from all 50 States. I paid my bills, and I returned a substantial amount of money back to the Federal match. It can be done. But you have got to get on the debate, and it is all about the money. Chairman Durbin. Thank you. Mr. Shapiro, if this were a trial and you were a witness, the first question I would ask you is the following: Is it true that you are here representing the Cato Institute, which is, in fact, financed largely by the Koch brothers, whom you are defending in terms of their contributions to Super PACs? Should you have recused yourself under those circumstances? Mr. Shapiro. No. Chairman Durbin. Do you want to turn your microphone on, please? Mr. Shapiro. The answer to that question as a whole and the various subparts is no. I am here representing myself. Whenever we speak as Cato scholars, we use our institutional affiliation for identification purposes. Some of my colleagues might disagree with something that I said today. I do not know. And I guess if they disagree too much, or at least if the management does, I might get fired. I do not know. But the Koch brothers have not financed Cato in the last several years. As you may know, they sued Cato recently. Thankfully, it seems that that lawsuit is working toward a settlement now. The Kochs represented less than two percent of Cato's donations in the last decade. I have received funding through Koch sources over the course of my career and when I was a student to attend seminars and things like this. I do not generally have a problem with the sorts of things that the Kochs are doing, but I am certainly not bought or paid for by any more than I am bought or paid for any other number of Cato donors. We are hired because we believe in libertarian ideas, and some people want to fund those ideas, and I am grateful for that, because if they did not, then I guess I would have to go and be a litigator again. So there you go. Chairman Durbin. Thank you. My time is up. Senator Whitehouse. And I remind you that at 3:40 we will take a moment. Senator Whitehouse. Go ahead. Chairman Durbin. Senator Coons, would you like to go first? Senator Coons. I want to thank Senator Durbin for chairing and convening this hearing, and I would like to particularly thank Senator Udall for his testimony before and for his leadership in sponsoring a constitutional amendment, which I was pleased to join. And I do think this amendment, although it does not include express limits on campaign spending, makes an important step forward in restoring the power of this body to regulate campaign finance as well as the States. So I wanted to, if I could, address a series of questions to you while being mindful of the impending moment of silence. First, if you would, Mr. Shapiro, I was struck at your passion at advocacy for disclosure, something that was long shared by a broad range of Members of this body, Republican and Democrat. How do you account for the complete abandonment of disclosure as a principle by Members of the other party? We recently took a floor vote on the DISCLOSE Act, which I thought would have been an important step forward toward dealing with some of the challenges of our current campaign financing system. How do you account for the complete absence of any support for broader disclosure in the current campaign financing environment? Mr. Shapiro. Well, I do not speak for the Republican Party, of course. I can tell you what I think about the DISCLOSE Act, which may or may not parallel the thinking of some of your colleagues on the other side of the aisle, and that is that the DISCLOSE Act is more about deterring speech than about disclosure, and it is certainly different from the type of regime that I would have in mind that I was passionately advocating, as you say. I think the George Soroses and Sheldon Adelsons and Kochs of the world should have to disclose if they are making major multimillion donations, but under the current regime, you know, the maximum donation is $2,500. I think that is too low. I do not think any politician--I think more highly of you, Senator Coons, than to think that you can be bought by a $2,500 donation, for example. And so I am for certain types of disclosure, but there are a lot of problems with the DISCLOSE Act, both in the numbers and exemptions for unions and other things like that. So with another type of disclosure regime, I think you might see other types of votes. Senator Coons. Professor Lessig, your colleague to your left there suggested that Citizens United did not really overturn settled law. Any difference of opinion on that point? Mr. Lessig. Very strong difference of opinion. In particular, I guess I take some--well, I would not say ``offense,'' but I want to say it is a little bit harsh to say that the President, a former constitutional law professor from your law school, was in error in his characterization of Citizens United. I do not think he was in error at all. What he said was that it overturned a century's law, and what he was referring to was the very clear indication in the Supreme Court, explicitly articulated by Justice Scalia, that they would not treat the First Amendment as making any distinction based on speaker. And the assumption that you could regulate on the basis of the difference of speaker was fundamental from the Tillman Act on. So that is why the Tillman Act has a very specific regulation of corporations, and there was in Taft- Hartley a different set of regulations around unions than around corporations. And, quite frankly, that principle the Supreme Court itself has now abandoned, as Justice Stevens recently commented in a speech when the Supreme Court upheld limitations on legal immigrants participating in the political process while striking down limitations on corporations participating in the political process. So, quite frankly, it is the Supreme Court that I would criticize as confused in this particular area, not the President. Senator Coons. Thank you, Professor. If I might, I will note we have reached the moment. Chairman Durbin. Excuse me, Professor Lessig and Senator Coons. I might note for those who were not aware that, 14 years ago, Capitol Hill Police Officer Jacob Chestnut and Detective John Gibson of the U.S. Capitol Police were killed in the line of duty defending the Capitol, the people who work here, and its visitors against an armed intruder. And for those who are physically able, I would ask you to please rise for a moment of silence. [Moment of silence.] Chairman Durbin. Thank you very much. Senator Coons, please proceed. Senator Coons. Thank you, Mr. Chairman. I will, just in closing, remark on our gratitude for the men and women of the Capitol Police who protect us each and every day and protect the many folks who work here and the many citizens who come here to offer their testimony and their witness. Professor Lessig, if I might just in closing, you offered a tantalizing vision of how we might mobilize broadly the citizens of this country to become, in effect, real Citizens United to galvanize action by the Senate. If you could just explain in a little more detail how you think an effective citizen convention might move us toward effective action in campaign finance reform. Mr. Lessig. Well, I think the most difficult problem here is that this is a difficult problem to solve. Unlike the 17th Amendment, which when it changed the Senate from being appointed by State legislatures to be elected by the people, that solution was a simple one to craft. Everybody understood how to do it. The words were not in contest. What we have seen in the range of proposals here is that it is a really complicated question, and it should be carefully deliberated upon in a way that could bring people into the conversation much more effectively than, frankly, any hearing process could inside of the U.S. Congress. So my suggestion is if we had a process that was open and observed by people, where ordinary people participated--and I have run mock conventions of ordinary people talking about constitutional matters--I think to the surprise of many people, you would see that ordinary people deliberating about what the Constitution needs and how the reforms should go forward would far surpass 98 percent of what is commonly discussed in this particular context. And that is because, frankly, politics is the one sport where the amateur is better for the Nation than the professional, because the professional is very good at figuring out what the particular interests that he or she represents needs, but the amateur can be brought to a point where he or she thinks about what the Nation needs. And I think we need at least that part in this process. So if this Congress convened a series of citizen conventions that could advise Congress--it would have no legal authority, of course, but if run in the right way, it could advise Congress in a way that could make people look at it and say, OK, if four of these conventions have said the following amendments make sense and Congress then proposes those amendments, we have a reason to have some confidence that this might actually be a way to solve the problem. Senator Coons. Professor Lessig--I see I am out of time-- that is a very, I think, compelling proposal. It is sort of harkening to what is at the heart of our jury system, our grand jury system, and how average citizens are empowered in our system, or should be, to make fundamental decisions both about the substance and the process of governing. Governor Roemer, I just want to say thank you for your very strong example. Mr. Roemer. Thanks. Senator Coons. It is a striking example that you were not engaged in the debate so that your voice was really not a part of the Presidential campaign. Mr. Roemer. Well, as the only non-lawyer around these parts--you know, and I never admit to going to Harvard undergraduate and the Harvard Business School when I am in Louisiana, but I think I am far enough away now to go ahead and admit that. [Laughter.] Mr. Roemer. But as a former Senator would always say when he fought civil rights legislation, talking about the distinction that Larry made between the professional politician--us--and the average citizen, as Russell of Georgia would say, ``It is not about the poll tax. It is about States' rights.'' Of course, we knew what it was about. And citizens meeting to focus on what is needed to make our Constitution real would be powerful. I think it is a great idea. Chairman Durbin. Senator Whitehouse. Senator Whitehouse. Governor Roemer, you will be pleased to know that States' rights has declined a bit in its stature around here once it became a potential place for credit card customers to get out from under the rules that are set in South Dakota or people were trying to avoid the gay marriage licenses of other States. I think that was a doctrine of convenience then, and interesting that you should bring it up. Professor Lessig, the Supreme Court in Citizens United said, and I quote: ``Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.'' What was it doing when it said that? Is that a judicial determination? Is that a conclusion of law? Is that an act of taking judicial notice? What were they doing? Mr. Lessig. I think they were blundering when they said that. Senator Whitehouse. We know that, because we know that they were wrong. [Laughter.] Mr. Lessig. And as I have written, I think they were blundering in a way that harkens back to the mistake of the Supreme Court in the Lochner era, where in a similar way, the Court, sitting high above the legislative process, looked down and reviewed what the legislature had said about whether health legislation was actually affecting the health of workers, and said, ``We do not buy it. We do not think it affects the health of workers. We think it is really about taking money from the capitalist and giving it to the workers, so we are going to strike it down.'' A judicial finding of fact based not upon evidence--there was no submission to suggest this---- Senator Whitehouse. In fact, they went well out of their way to make sure that there was no record that might give contrary evidence to the finding of fact that they made. Mr. Lessig. Absolutely. And, actually, in the Montana case, the most striking thing, I think, about the Montana case was the Court's decision to summarily reverse the Montana case when the Montana Supreme Court's appeal was chock full with all the arguments necessary to see why this is a kind of corruption, this current system is a kind of corruption. But the current Court is dominated by Justices who believe the only corruption that is relevant is quid pro quo corruption. Senator Whitehouse. Criminal corruption was your testimony. Mr. Lessig. That is right. But from the Framers' perspective, that is outrageous. The Framers of our Constitution were more concerned with the systemic, what Buddy called the ``institutional corruption,'' than they were worrying about whether there would be the Randy Duke Cunninghams or William Jeffersons inside of Government. They were worried about setting up a system that would create the right incentives, the right dependencies. And what we have seen now is a corruption of that---- Senator Whitehouse. They talked about that in the debates that led to the Constitution, and they used the very word ``corruption'' in those discussions, and it was sort of the opposite side of the coin of integrity of government. Mr. Lessig. Absolutely. That is exactly right. Senator Whitehouse. Now, you used to clerk for Judge Posner, did you not? Mr. Lessig. I did. Senator Whitehouse. Recently, Judge Posner critiqued the Citizens United decision. He is a very conservative judge, so it was interesting coming from him. He said, and I quote, ``Our political system is pervasively corrupt due to our Supreme Court taking away campaign contribution restrictions on the basis of the First Amendment.'' Do you have a sense of what he meant using the phrase ``pervasively corrupt'' ? Mr. Lessig. I think that he is referring to the kind of corruption that I am talking about, and in this sense, this is the way in which--I want to take more distance from Mr. Shapiro's testimony. When Mr. Shapiro and libertarian organizations say the solution to this problem is just to remove all limits so that we do not have any caps on the amount that people can give directly to campaigns or indirectly to campaigns, let us just have disclosure but no limits, that does not in any way respond to the kind of corruption that I am talking about, because what we have seen--and Montana, again, submitted evidence about this--is that when you remove limits, overwhelmingly the pattern is for campaign contributions to go up dramatically so that we concentrate even more fundraising in the tiniest slice of the one percent in a world where there is no limits. So we would go to a world where maybe 1,000 families would be funding all the campaigns in a world where there are no limits on campaigns, and that would be more corruption relative to the current system in the framework that I think the Framers gave us for thinking about how to keep this institution non-corrupt. Senator Whitehouse. And if you go behind the--I agree with you. It is a judicial finding of fact. You are an expert in appellate law as well. Let me start with: What is the role of ab initio judicial findings of fact at the Supreme Court level? Mr. Lessig. Well, the Supreme Court has learned again and again the high costs that it suffers when it engages in exactly that kind of behavior. It is striking that it forgets it again and again, but it learns it again and again after---- Senator Whitehouse. Because it seemed a little convenient in this case, but I will---- Mr. Lessig. That is right. And I think that the Court's opinion, to the extent that it says that the people cannot perceive this as corruption, just cannot stand, because, of course, the people are pretty good at perceiving this as corruption. And there is all the reason in the world for them to perceive it as corruption, not necessarily the corruption that says that anybody is being bought--so, again, it is not the question of whether $2,500 buys a Senator or not--but from the perspective that what it does is guarantee that you are constantly focused on what the 0.05 percent of America cares about so that you can win in the money race so that you have a shot in the voter election. Senator Whitehouse. And as a matter of traditional appellate practice, judicial findings of fact are supposed to be made at the trial court level or by a jury. Mr. Lessig. That is true. Senator Whitehouse. And not by either intermediate or ultimate appellate courts, correct? Mr. Lessig. That is right, although in constitutional context, the Court has a significant role in making what is thought of as constitutional findings of fact like this. But what is so striking about---- Senator Whitehouse. This is not constitutional finding of fact. This has to do with the behavior of human beings in a political environment. Mr. Lessig. It does. Senator Whitehouse. And whether or not somebody will be corrupted by, say, a secret, multimillion-dollar expenditure made on their behalf by a special interest. The notion that that cannot happen seems to me to be absurd. Mr. Lessig. OK. You can--you should say that. As a law professor, I should avoid that word because my students will have less respect for what I say. But it is something that I think is deeply troubling in that decision. It is one of the core mistakes of that decision--a decision, though, that--let me say that the kernel of that decision, the idea that Congress should not be able to silence or effectively silence anybody, you could agree with, without agreeing with the implication that the Court made from that decision, that basically Congress has no power to intervene to try to limit the corrupting influence on this democracy. Senator Whitehouse. And I would conclude by asking you, I hope, a very short question. What we I think both agree is an inaccurate finding of fact that they made stood on two subordinate findings that they also made. One is that--or presumptions that they made. One is that these expenditures would, in fact, be independent, and the second is that they would be disclosed. Are either of those legs borne out by the facts in Citizens United? Mr. Lessig. They are certainly not disclosed. The Court was mistaken in its understanding of the extent of disclosure obligations. But even if we assume that they are independent in the sense that nobody is behind the doors agreeing on ways to coordinate, what we have understood from antitrust law since the beginning of antitrust law is that there are ways to coordinate without explicit agreement. And when you are looking at the same polling data, the Super PAC and the campaign, and you understand the same data supports the same response, you do not have to actually pick up the telephone and make any agreement---- Senator Whitehouse. Well, throw in former staffers, family members running it, the same consultants on both sides of the equation, the Super PACs using actual footage from the candidates' campaigns, and, frankly, I think your competitor, Mr. Santorum, actually won in Minnesota only through his Super PAC. So it does not seem to be holding up very well. I should yield. I have gone over my time. Mr. Roemer. And the lead benefactor, Senator, was standing behind Rick when he gave his victory speech in the central part of America--I think it was Missouri that night--and there was no coordination. He just was four feet away from him. [Laughter.] Senator Whitehouse. Thank you, Governor Roemer. I yield. Chairman Durbin. Senator Klobuchar. Senator Klobuchar. Well, thank you very much, Mr. Chairman. Thank you for holding this hearing. Since we are mentioning the Midwest, it is a good time for me to talk. I am someone who is up for office now and have seen firsthand what is going on here, and I truly believe that unless we fix this, we are going to literally undermine our elections and our democracy. And my first question is really just about how this has rolled out, and I guess for you, Governor Roemer, having been in the middle of it, I think most people anticipated that corporations would give a lot of money, and I think that they are, through 501(c)(4)s, which is really hard to track down, which is part of the DISCLOSE Act. But I am not sure anyone anticipated that individuals would give to this extent, that one billionaire would write a $10 million or a $15 million check, and how the influence that that one person can wield over an individual, I think, was something that was not at first anticipated when this came out. And I wondered if you could comment on that, Governor Roemer? Mr. Roemer. I think you are absolutely correct, Senator. I read nor spoke with anyone--I read anything that anybody wrote or spoke to anyone who a year and a half ago predicted this onslaught of individual wealth and large checks. But the pattern has been coming for a number of years, and one of the interesting things to me, as kind of a populist at heart, you know, being from that cotton farm in north Louisiana and I cannot get away from it, the lessons learned, is how distant the average person has become from the process, which includes the money. And it is not healthy. And they are angry about it. If you get the meeting room to express their fear and their anxiety, it is like it will bring the room to a stop. So I am here to--I am not a constitutional lawyer. I get my advice from Larry. I apologize, and I admit that. The first person I went to see when I decided in December 2010 to run for President, the first person I went to see the first week in January 2011 was Larry Lessig. We had never met. We had a mutual friend, a guy named Mark McKinnon, who is a political strategist who helped me run my campaign for Governor. And Mark and I were close, and I gave Mark the speech at my family meeting--Mark is like part of my family--that I was running for President, $100 limit, no PACs, no Super PACs, full disclosure, and let us get it on. I remember the speech. I will not go through it now. Senator Klobuchar. Thank you. I only have seven minutes. Mr. Roemer. I know. Mark says, ``Well, you have got to call Larry Lessig,'' and he gave me the number. And that is when Larry and I met, and we have worked together. We do not always agree but work together. But one of the surprising things to, I think, both of us is the lack of credibility and feasibility of a candidacy if you do not embrace the big checks, because you cannot win. Wow. Senator Klobuchar. Yes. You know, one of the things that I think is just so ironic here is anyone that is running, if you are a candidate, you disclose everything that is over $200, and it is out there, everyone can see it. And that is one of the beauties of our laws right now. And you can disagree with people who are giving, but at least you know who it is. And this has completely decimated that. And I also was wondering, Professor Lessig, if you could talk a little bit about what effect you think this could have legally on some of the down-ballot races, not just the congressional races but State and local and what could happen there. I know in my State we have campaign finance laws that allow for matching funds, which has evened the playing field somewhere, where there is public funding for half the money basically for legislative races, and what you could see happening here. Mr. Lessig. Well, it is certainly the case that this business model of the Super PAC, which because of changes in the last has become an extremely effective vehicle for large donors to channel their influence, is spreading not just at the Federal level but at the State level, even the local level. In my testimony, I pointed out a Denver school board race which is in the hundreds of thousands of dollars in contributions and expenditures for a school board position that was facilitated by exactly this kind of dynamic. And so you are going to see this happen across the board because, as campaign managers begin to think about what is the most effective device for channeling money into a political election, these Super PACs will serve it. There have been three very important counter examples to this--Arizona, Maine, and Connecticut most recently--which have tried to facilitate small-dollar-funded elections. I do not like to call it ``public funding'' because it evokes a different idea--small-dollar-funded elections where people need to raise a certain amount of money in small-dollar contributions and those then get to be matched--this was the model, of course, the Fair Elections Now Act proposed--has dramatically changed the way those State legislature elections work. In Connecticut, in the very first year of that system, 78 percent of the elected representatives ran with this small- dollar-funded system on both the Republican and Democratic sides of the aisle, 78 percent of the elected representatives used that. So this convinces me that if we just get the numbers right and have a kind of small-dollar system inside of Congress, you just change the business model. This is just incentives. Change the business---- Senator Klobuchar. Especially with the Internet, I mean, this was the hope, that you are able to reach out, as Governor Roemer knows, to more people on the Internet. But it completely gets overwhelmed by these $10, $15 million checks. My last question would be, obviously--I am a cosponsor of the DISCLOSE Act. I think it is important to disclose, but we all know that is not going to fix it. When you talk about your idea of citizens gathering for these basically constitutional conventions on the local level, how do you see this working with actually getting the amendment passed that it appears that we are going to have to pass to fix this? Mr. Lessig. I think that these conventions should come up with their view of what the right answer looks like, and that should come back to this Congress, and this Congress should be required to then answer the view of these conventions: Here is what we think is should be, here is how Congress responds to that. And then hopefully the process comes to some convergence on what the right answer looks like, which Congress could then introduce as an amendment that gets sent down to the States. This is a short circuit around the way the Framers thought we would bring the States and the people into this process, which is a constitutional convention or an Article V convention that the States call up on. A lot of people have problems with that. I have more faith in that system than most. But I think this system would at least bring citizens into the process at a time when the technology enables people to participate in a way that would be quite effective, but could product something valuable and useful for Congress to use in figuring out what the right answer looks like. Senator Klobuchar. Thank you very much. Chairman Durbin. Senator Blumenthal of Connecticut. Senator Blumenthal. Thank you. Thank you, Senator Durbin. Thank you for convening this hearing, which I think is profoundly important for all the reasons that you have stated very eloquently as members of this panel and also the panel before. And the Congress has sought to wrestle with these issues, most recently in the DISCLOSE Act, which I have been proud to cosponsor. Obviously it would not impose any restrictions on the size of funding, only require that there be some greater measure of transparency and literally disclosure, which seems like a fairly modest and limited, very simple and straightforward way of remedying some--in a very limited way-- some of the issues that have been raised. And, you know, your reference to the Connecticut system of public financing--which has been upheld by the courts--it was challenged while I was still Attorney General, and it has been upheld now. But I think that the combination of the 501(c)(4)s and the Super PACs threatens to make a mockery, literally to make a mockery, of any similar systems because the amounts of potential so-called independent financing will overwhelm the amounts available to candidates, and the test will really be not so much in this cycle as the next one, when there will be statewide campaigns for all the statewide offices, and we will see whether, in fact, these systems can survive that onslaught and deluge of money anonymously and in magnitudes that have not been seen in campaigns before. And so I think that, you know, the first question I would have, Professor Lessig, is whether, in fact, you can think of ways to change a Connecticut-type system to constrain or to overcome that threatened deluge. Mr. Lessig. Well, I agree with Congresswoman Edwards' comment earlier that this is a solution that requires--this is a problem that requires a three-legged solution. So disclosure is important and critical. That is leg one. I have been, every chance I can, saying a critical second leg has got to be the kind of citizen-funded elections that the Fair Elections Now Act would represent, or we have been talking about a voucher system. Congressman Sarbanes is considering introducing legislation that would start a pilot for a voucher system where individuals would have a democracy voucher that they could use to contribute. But a third thing has got to be a response to this constitutional problem the Supreme Court has created. So I do not think that there is a way, given the Supreme Court's authority right now, to use the citizen-funded component to directly limit the opportunity for independent expenditures But I do think if there is enough money in the citizen-funded component, you could overwhelm them. In the democracy voucher program that I have described, $50 a voter is $7 billion just for congressional elections. That is three times the total amount raised and spent in 2010. So that would be real money, and the critical thing is it would be coming from voters across the income spectrum, it would not be coming just from the tiniest slice of the one percent, which would be a significant way to make the funders the same as the people and so, therefore, eliminate the kind of corruption that I have been talking about. Senator Blumenthal. And, you know, the problem is not so much raising the money that candidates need to qualify for the public support. It is what happens when the anonymous groups come forward and raise the ante and thereby overwhelm them. And what I hear you saying is, given the current constitutional jurisprudence from this Supreme Court, it would be very difficult to counter it. Mr. Lessig. That is right, although there have been clever--or at least one very clever strategic response. So Congressman Sarbanes, again, finding himself drawn, because it is natural and more efficient, to only raise large-dollar contributions, did what I think has never happened in the history of the U.S. Congress where he bound himself through a legal document. He raised three-quarters of a million dollars and then said that he could not touch the three-quarters of a million dollars until he raised 1,000 small contributions. And then on June 30th, he achieved his 1,000 small contributions. And the reason he did that was that if a Super PAC came in and attacked him, he would have 1,000 small contributors to turn to to say, ``We need your help to respond to the Super PAC.'' So that is a dynamic, to use small-dollar contributions, just many of them, to create a large army of potential supporters who could respond to that big money. But there is no way legally to restrict that big money so long as the Supreme Court's doctrine remains. Senator Blumenthal. I want to, in the time I have remaining, turn to a related issue, which is the damage done not only to democracy by Citizens United and some would say the only tangentially related social welfare organizations, because Citizens United itself is not the sole cause of the problems we face, but also the damage done to the Court itself by these decisions. And I worry about the credibility and even legitimacy of the Court. I know you have been a scholar, you have been a law clerk. I wonder if you could talk a little bit about that area and about possibly also the related area of a code of ethics that would be applied to the Supreme Court. We have talked about it here. Senator Durbin and others have raised it, and I have as well. So let me ask you that very general question. Mr. Lessig. I frankly have been surprised in the last five to eight years with the carelessness the Court has displayed about the need to nurture and preserve the public's confidence in that institution as being above the political fray. I think there is a willfulness that historically, not just in this Court but across other courts across the world, has led to the weakening of that kind of institution within a political system. So, you know, I think in the recent Obamacare decision, it was an extraordinary act of political statesmanship, I think, that the Chief Justice did what the Chief Justice did, and I think it mirrors what Chief Justice John Marshall did in the decision of Marbury v. Madison, in a way to decide the case, actually, I think scholars will say, in a way that really helped the cause of limiting the scope of the Government's power, but in a way that did not open up the institution to the charge that it was just behaving politically, deciding a case favoring Republicans at a time when Republicans controlled the Court. And the same thing, of course, has happened the other way around. So I am concerned that not all Justices are demonstrating that kind of, I think, sensitivity and awareness, and I hope that this decision begins to remind other Justices on the Court of how important it is not just to decide the cases rightly, but to decide the cases in a way that continues to earn the respect and confidence of the American people in that extraordinarily important institution. Senator Blumenthal. And speaking extra--when Justices speak outside the courtroom, outside their opinions, or take positions or decline to conform to certain rules, all of it can affect the public perception of the Court. Mr. Lessig. That is right. And, you know, one of the great--one of the things I agree with Justice Scalia about is his desire not to have cameras inside the courtroom, and one of the reasons I think that is a great thing is that it minimizes the extent to which people want to play to the public. And I think they should not want to play to the public. There should be people who are happy, like Justice Souter was, to be completely unrecognized and to be able to walk around Washington without anybody coming up and saying, ``Justice, let me shake your hand.'' They should be focused on the job of deciding the cases in a way that is conforming to the law. And I worry that as they spend their whole lives on these courts and they live in this city where being well recognized and popular is so important, that some of that corrupts the way that institution begins to function as well. Senator Blumenthal. Well, I thank you and all the members of this panel very much for your answers and your very helpful testimony today. I might just respectfully suggest that having cameras in the courtroom would not necessarily make them instantly recognizable as they walk around the streets of Washington, which is a good thing. Mr. Shapiro. I have no problem with cameras in the courtroom. [Laughter.] Senator Blumenthal. Thank you. Chairman Durbin. Thanks, Senator Blumenthal. This panel has been very accommodating, and we will probably have a very brief second round here, not as long as the first. I thank you for waiting. Mr. Shapiro, I am trying to put this in the perspective of my life as a public official, representing a State of close to 13 million people, about 500 miles long and an hour-and-a-half- to two-hour plane ride to head back to it, spending three or four days a week in Washington, going home to try to serve 102 counties in the State, and considering the next political campaign, which may in a State my size run in the neighborhood of $20 million. So at the time you would announce for re- election, you are faced with raising $1 million a month, basically, to be competitive under the old rules, before the arrival of the Super PACs. Most Americans, I think, would be maybe a little embarrassed but certainly surprised at how much time Members of Congress spend talking about raising money and actually raising money. It is an enormous commitment of time--time away from Washington, time away from your State, time away from your family, generally spent with very nice people who, by and large, are not looking for much but generally are in higher- income categories, trying to raise enough money to be sure that at the end of the day your message gets out in the campaign. Now, air-drop in Super PACs, and you do not know what is going to happen in the closing days. So far a couple of our colleagues have faced $10 and $12 million of Super PAC negative advertising unanswered in their election campaigns. That is the new world that we live in. And so when you make the suggestion, as you have, that removing all limitations on the amount of money that can be donated to a campaign will lead to more people getting involved in the process and more donations, I have to look at the record that was presented to the Supreme Court by Montana. The Montana Supreme Court found that ``the percentage of campaign contributions from individual voters drops sharply from 48 percent in States with restrictions on corporate spending to 23 percent in States without [restrictions].'' Why? I think because unlimited contributions drive the fundraising business model away from small contributors to large contributions. And, second, small donors know their contributions will have a substantially diminished impact when there are no limits. So how do you respond, Mr. Shapiro, to others who say that the opposite true when the facts say that it does not help to increase voter participation and voter contributions? Mr. Shapiro. Mr. Chairman, I sympathize with your plight, and I offer you a solution. Remove contribution caps, and you will spend less time fundraising, as will all your colleagues. Chairman Durbin. If I get to know Sheldon Adelson. Mr. Shapiro. There are plenty of billionaires on both sides. Chairman Durbin. Is that really---- Mr. Shapiro. George Clooney and---- Chairman Durbin. Is that our goal, to find the richest people in America and cozy up to them to finance our campaigns? That makes us a better democracy? Mr. Shapiro. Let voters decide based on knowing who is contributing. In 1968, the reason Gene McCarthy was able to stage his challenge to LBJ was because he had three donors who gave seven figures each. Without that, there would not be anything like that, or third-party---- Chairman Durbin. I am not going to condone that, but when we have Sheldon Whitehouse's DISCLOSE bill up so that the voters can decide based on who gives the money, we cannot get a single vote--well, I guess we got a few, a handful of votes from the other side of the aisle, but not enough. Senator Whitehouse. Not one. Chairman Durbin. Not one? All right. Mr. Shapiro. Make the disclosure for really significant amounts and not small businesses that donate and then have the IRS sicced on them. Chairman Durbin. Well, I certainly do not think that is the case. I think when you look at the statements made by leaders of the other party, consistently made, that disclosure is the best disinfectant and so forth, sunlight is the best disinfectant, clearly we have a very infected model right now because there is not much sunlight nor much disclosure, and we cannot get any bipartisan cooperation to move us in that direction. So if ultimately the decision is to be made by the voters, should they not at least have the information about who is playing in this game? Mr. Shapiro. I agree. That is why I propose raising or eliminating contribution limits along with setting the proper disclosure, and you can negotiate what that amount should be. Senator Whitehouse. What should it be? What should it be? Mr. Shapiro. That would take a very difficult econometric analysis to perform. I am a simple constitutional lawyer . . . but on the order of half a million or something like that. It is not $10,000, it is not $2,500. It is where the interest in preventing the appearance of corruption overwhelms the interest in preventing harassment of various kinds. Senator Whitehouse. Do you know how much, say, a general treasurer's race in the State of Rhode Island costs to run? Mr. Shapiro. I do not. Senator Whitehouse. But you are willing to say that $500,000---- Mr. Shapiro. It would depend on the race. I was talking about a---- Senator Whitehouse. Presidential race? Mr. Shapiro. No, not a Presidential for that amount. I do not know. Like I said, I can pick numbers off the top of my head and I can pick on the fly right now, but---- Senator Whitehouse. A congressional race, most congressional races come in for well less than $1 million. You are saying that you should not have to disclose a $499,000 contribution to a Member of Congress? Mr. Shapiro. I am saying you set the amount for--maybe it differs on the State, maybe it differs on the race. I have not come here with a set of--with a roster, with a schedule of what that would be. It would have to be tailored---- Senator Whitehouse. You have come here with a criticism of the DISCLOSE Act that it sets the number in the wrong place. How do you know that it sets it in the wrong place if you do not know where that place is? Mr. Shapiro. Just like the Supreme Court often says when it rules in various directions, we do not know where the line is, but this is clearly past it---- Senator Whitehouse. And $10,000 is clearly an amount that would not influence an election? Mr. Shapiro. Correct. When you are talking--when you are comparing it to the Sheldon Adelsons and the George Soroses of the world, or the Koch brothers or whoever else, that is not a---- Senator Whitehouse. Even a congressional election, because it applies to congressional races. Mr. Shapiro. Maybe for city dog catcher. Maybe $10,000 should be disclosable for a city dog catcher. But, again, you have to balance the interests, and that is--that is not a bright line you can draw. It is something that you have to measure and that has to be debated about where that interest in knowing where that potential appearance of corruption is strong enough to overwhelm otherwise private individuals' rights to speak their mind without fearing harassment from their neighbors. Senator Whitehouse. Well, we have---- Mr. Shapiro. Let alone from the Government. Senator Whitehouse. We have had a country where--let me just tell you that when I went into the DISCLOSE Act vote, as I came out of the basement lobby, I passed a young man, a marine from Pennsylvania, who was sitting in the lobby in a wheelchair with a number of escorts around him to greet the Senators who were going by. We had asked that young man to go to Afghanistan, and we had sent him down a road that had an improvised explosive device under it that blew both of his legs off. If we can ask that young man to do that, we can darn well ask the Koch brothers to put up with some impolite blogging. Mr. Shapiro. I agree. The Koch brothers, yes. [Applause.] Mr. Shapiro. And George Clooney and George Soros and anybody that, as I said, is far above any line that I would draw. Senator Whitehouse. One other thing you said earlier, I want to correct the record here. You said there was--I believe I wrote it down accurately. You said there was an ``exemption for unions'' in the bill. I want to make sure that the record is clear there was no exemption for unions in the bill. Unions, corporations, 501(c)s, billionaires, everybody is treated exactly the same in the bill. I know that canard has kind of crept its way into the public debate, but every time I have asked a colleague of mine to say where is it, they cannot find it. And the reason they cannot find it is because in a 19-page- long bill written in very big letters, it just is not there to be found. And I want to make sure that that is clear for the record. We did not put an exemption for unions into the bill. Every organization is treated absolutely identically. Chairman Durbin. Senator Blumenthal. Senator Blumenthal. Thank you, Mr. Chairman. I just have a couple of follow-up questions, and I passed the same marine on my way to vote, and certainly if you compare the sacrifices that are made by the men and women who are fighting to uphold democracy and serving and sacrificing for our freedoms, I would compare them not only to the relatively minor inconvenience of disclosure, but also to the choice they have as to whether to contribute in the first place. And part of the reason why we are such a great democracy is that we do shine that light of disclosure in a lot of areas, not just in this one but in many corporate areas as well. When a company is a public company and making these contributions to a public process and a public institution I think well merits this kind of disclosure. But the question that I have for all the members of the panel is: Put aside the laws that have been proposed to improve the system. I am not satisfied that existing laws are being enforced sufficiently, aggressively, and faithfully, whether the provisions of the Tax Code, for example, or the current provisions that draw distinctions between political activities and non-political activities are being sufficiently well enforced. What is your view on that, Mr. Shapiro? Mr. Shapiro. I have not studied the enforcement mechanisms. If they are not being enforced, they should be. I am all for the rule of law. I will say that you cannot just brush aside the threat of harassment and vigilante action and the Government going after people who have disclosed. Frank VanderSloot, for example, an Ohio businessman, was disclosed as having contributed against President Obama, and all of a sudden has a raft of regulatory agencies going after him, even though he has never had any trouble, never committed a business crime. And that is not the only example of that. Whether you are talking about the $100 donor to a campaign for Prop. 8 in California--I happen to be against Prop. 8, but I do not think that someone who donates $100 should lose their job for it. Again, there are competing interests but we should be for maximizing speech rather than having government control. And do not mistake this. What all of these programs are saying is that the government should control independent political speech and people getting together at some point is too much speech. Senator Blumenthal. But disclosure is not control, is it? Mr. Shapiro. Disclosure is not control. That is a different problem. You are right. Senator Blumenthal. So if you cannot draw the line at a particular amount, why not just require disclosure of everything? Mr. Shapiro. Because there is no right, absolute right, to know what all your neighbors are donating. It is a prudential concern rather than a constitutional one at that point. It is possible to draw a line. I am just saying I have not analyzed all of the different possible races and seen where that line should be drawn. But, you know, after a study of this--and that can be negotiated and should be negotiated politically--that line should be drawn where indeed it only is the big boys that are putting their reputation on the line rather than people donating $100 or $2,500. Senator Blumenthal. Thank you. Chairman Durbin. Thank you very much, Senator Blumenthal. I thank the witnesses on this panel. For the record, the way the witness panels are constructed, there are witnesses that are suggested by the majority side and by the minority side, and so there is some balance in the testimony here. Mr. Shapiro, thank you for being here at the invitation of Senator Graham. I thank Professor Lessig and Governor Roemer for being here to give us their input on this important topic. I want to note that there are over 400 people who have been attending this hearing, both in this room and in the overflow room, as an indication of the level of interest. There is also another indication. We have had a number of organizations and individuals submitting statements for the record, including Americans for Campaign Reform, Common Cause, Demos, Free Speech for People, Move to Amend, People for the American Way, Public Campaign, Public Citizen, Ben & Jerry's, American Sustainable Business Council, Center for Media and Democracy, Washington Public Campaigns, Professor Jamie Raskin, Professor Sierra Torres Bellisi, former North Carolina State Representative Chris Haggerty, and Attorney Rick Hubbard of South Burlington, Vermont. Without objection, I will add their statements to the record, thanking the individuals and organizations for their important work. [The information appears as a submission for the record.] Chairman Durbin. There may be some follow-up questions to the witnesses--it happens--and I hope if you receive them that you can, even on vacation, respond in a timely fashion. I want to especially thank your son for being a dutiful observer of this constitutional process. And if there are no further comments from my panel or colleagues, I thank all the witnesses for participating and everyone in attendance on this important issue. This hearing stands adjourned. [Whereupon, at 4:30 p.m., the Subcommittee was adjourned.] [Submissions for the record follow.] A P P E N D I X Additional Material Submitted for the Record Witness List [GRAPHIC] [TIFF OMITTED] T6915.001 Prepared Statements of Hon. Richard J. Durbin and Hon. 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T6915.208 Submissions for the Record Not Printed Due to Voluminous Nature, Previously Printed by an Agency of the Federal Government, or Other Criteria Determined by the Committee, List of Material and Links Can Be Found Below: Torres-Spelliscy, Ciara, Assistant Professor of Law, Stetson Law, Tampa, Florida, Part 1, see link: http:// papers.ssrn.com/sol3/papers.cfm?abstract--id=2046832py.pdf