Franken Could Have Written “Citizens United” Court Opinion In A “Couple Of Minutes”

Franken Could Have Written “Citizens United” Court Opinion In A “Couple Of Minutes”


This morning, the Supreme Court announced
its decision in McCutcheon v. Federal Election Commission, the latest in a series of rulings
that have done away with any meaningful limits on money in politics. Since the Supreme Court
issued its ruling in Citizens United in 2010, we’ve witnessed the systematic unraveling
of our nation’s campaign finance laws. I’m sure that this is cause for celebration
for some – the super wealthy and well-funded corporate interests – because, after all,
these rulings give them even more influence, more access, and more power – as if they need
it. Then there’s everyone else – the everyday
folks in Minnesota and around the country who don’t have the luxury of pouring millions
of dollars into political campaigns. There’s the senior on a fixed income who gives
twenty-five dollars to the candidate she likes – maybe someone who’s fighting to contain
the cost of prescription drugs. That twenty-five dollar donation – that’s real money for that
senior. But it’s nothing compared to the twenty-five million dollars that the pharmaceutical industry
now can spend to elect the other candidate. There’s the middle class mom who has just
enough money to buy her kids’ school clothes – but surely doesn’t have enough left over
to buy an election, too. And there’s the small business owner in the
suburbs who’s so concerned about making payroll that she can’t even begin to think about making
a huge campaign contribution. Our democracy can’t function the way it’s
supposed to when theses voices are drowned out by a flood of corporate money. So for
those of us who believe that the measure of a democracy’s strength is in votes cast, not
dollars spent – for us, there’s nothing to celebrate today. Citizens United was one of the worst decisions
in the history of the Supreme Court. By a five-to-four margin, the Court ruled that
corporations have a constitutional right to spend as much money as they want to influence
elections. Big oil wants to spend millions of dollars
to attack the guy who’s advocating for more renewable fuels? The Supreme Court says, “Sure,
go ahead.” Huge corporations want to run endless radio
ads against the candidate who promises to raise the minimum wage? The Supreme Court
says, “Fine. Why not?” The Wall Street banks want to pour money into
a campaign to undo consumer protection laws? The Supreme Court says that that’s their constitutional
right now, so there’s not much you can do about it. That’s the way the Court sees it. But it’s not the way I see it, and it’s not
the way most Minnesotans see it, either. I think we should be able to say, enough is
enough – that there’s too much corporate money in politics – that some reasonable limits
on campaign spending are not just appropriate, they’re necessary. And, really, that’s what Citizens United was
all about – the case that got us into this mess. It sort of came down to this question:
Can We the People place any real limit on the amount of money that corporations spend
on elections? The answer should have been yes, of course we can. But five Supreme Court
justices said no, no we can’t. Their logic was unprecedented – literally.
To reach the result it did, the Supreme Court had to overturn a case, Austin v. Michigan
Chamber of Commerce, that had been on the books for twenty years. Overturning Austin
wasn’t some sort of minor, technical change to the law; it was a radical shift, an exercise
in pro-corporate judicial activism. Just compare what the Court said about corporate campaign
expenditures in Austin to what it said twenty years later in Citizens United. In Austin, the Court refused to strike down
a Michigan law that limited corporate spending on elections. The Court explained that the
law served a “compelling interest,” namely, preventing corporations from gaining an unfair
advantage in the political system. The Austin Court said that “corporate wealth
can unfairly influence elections” – those are the Supreme Court’s words in 1990 – that
“corporate wealth can unfairly influence elections.” The Court explained that campaign finance
laws prevent, quote, “the corrosive and distorting effects of immense aggregations of wealth
that are accumulated with the help of the corporate form,” end quote. In other words,
there’s good reason – no, a compelling reason – to be worried about unlimited corporate
money in politics. Had today’s Supreme Court followed precedent,
Citizens United would have been an easy case. I mean, I could have written the opinion in
a couple of minutes. It would have gone something like this: “Laws limiting corporate campaign
expenditures are constitutional. See Austin v. Michigan Chamber of Commerce. The end.”
Of course, that’s not the opinion the Court wrote in Citizens United. The Court’s opinion
was a lot longer – and a lot worse. Here’s the one phrase that sums up the Citizens
United decision: Quote, “we now conclude that independent expenditures, including those
made by corporations, do not give rise to corruption or the appearance of corruption,”
end quote. The majority of the Court told us that there’s no reason at all to be worried
about unlimited corporate money in politics any more – that it does not give rise even
to the appearance of corruption. And, the logic goes, since there’s no reason to be
concerned about it, there’s no constitutional basis to regulate it. That’s what the Court
tells us. But we know better. The Court’s analysis not
only is disconnected from precedent; it’s disconnected from reality. The Minnesota League
of Women Voters recently issued a report in which it concluded that “the influence of
money in politics represents a dangerous threat to the health of our democracy in Minnesota
and nationally.” That sounds right to me. Because here’s the thing: in our democracy,
everyone is supposed to have an equal say, regardless of his or her wealth. The guy on
the assembly line gets as many votes as the CEO – one. You don’t get extra votes just
because you have extra money. You don’t get a greater say just because you have greater
wealth. It doesn’t work that way. At least, it’s not supposed to. Citizens United
turned the whole thing on its head – it basically said that those among us with the most money
get the most influence, and, not only that, there’s no limit to the amount of money the
wealthy can spend or the amount of influence they can buy. I think that’s inherently corrupting. Unfortunately, Citizens United was just the
beginning of the story. In the years since, we’ve seen courts across the country strike
down campaign finance laws, ushering in what are known as Super PACs – wealthy groups that
can raise and spend unlimited money to influence elections. And, today, in McCutcheon, the
Court took Citizens United a step further, striking down a law that limited the amount
of money that people could give directly to candidates and political parties. Before today, the law said that direct contributions
to candidates, parties, and certain PACs could not exceed about 125 thousand dollars in the
aggregate per election cycle. The law was intended to stem the tide of money in politics
and maintain the integrity of our public institutions. But, as of this morning, that law has been
taken off the books – at the Supreme Court’s direction. As Justice Breyer explained in his dissenting
opinion in McCutcheon, quote, “Taken together with Citizens United, today’s decision eviscerates
our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave
problems of democratic legitimacy that those laws were intended to resolve,” end quote. He’s right. Changing the law has real consequences.
What happens when you get rid of the speed limit? People with fast cars drive faster
– as fast as they want to drive. What happens when you get rid of campaign finance limits?
Special interests with a lot of money spend more of it on politics – as much as they want
to spend. That’s not a theory; it’s an empirical fact.
According to data collected by the Center for Responsive Politics, spending by outside
groups more than tripled from 2008 to 2012, with overall outside spending topping a billion
dollars – that’s billion with a “b” – for the first time in history. Where’s the new money coming from? Well, in
a lot of cases, we don’t know. More on that later. But what we do know is pretty much
what you’d expect: According to one study, 60 percent of Super PACs’ funding in the 2012
election cycle came from just 132 donors, each donating at least a million dollars.
So we have a relatively small group of super-wealthy people accounting for most of the money. Remember when the Citizens United Court assured
us that all of this new money in politics was okay – that we shouldn’t be worried about
it – that it “will not cause the electorate to lose faith in our democracy”? Boy, were
they wrong. People are losing faith in their democracy. Can you blame them? The system is broken; we need to fix it. There
are a number of good proposals out there, and I’d like to use this opportunity to mention
three of them – disclosure, public financing, and a constitutional amendment. First, we need greater disclosure. The problem
in the post-Citizens United world isn’t just that there’s now unlimited money in politics,
it’s also that we often have no idea where the money is coming from. Billionaires and
big corporations want to influence elections by giving unlimited money to Super PACs, but
they don’t want anyone to know that they’re the ones pulling the strings, so they do something
that looks a lot like money laundering – except that it’s perfectly legal. Let’s say that there’s a bunch of corporations
and billionaires out there who want to preserve indefensible tax loopholes that really only
help their bottom lines. Their allies form a Super PAC whose mission is to do just that
– preserve their big tax breaks. Now, the Super PAC needs a name. “Americans for Indefensible
Tax Loopholes” won’t do. So, the Super PAC decides to go with something like “Americans
for a Better Tax Code.” After all, who could be against that? Now remember, the corporations or the billionaires
who are behind this whole thing don’t want their fingerprints on it. So they pass their
money through shell corporations before it ends up with the Super PAC – that way, the
actual donors don’t show up on the federal disclosure forms. So now the TV is flooded
with attack ads that end with something like, “Paid for by Americans for a Better Tax Code.”
But nobody has any idea who’s actually behind the advertisement – and there’s no good way
to find out. But hang on – it gets worse. In addition to
all the secret money being spent by these Super PACs, there’s a bunch of non-profit
organizations that are using a glitch in the tax code to keep all of their campaign activities
secret. These groups – liberal or conservative – don’t have to disclose a single penny. Combine
them with the Super PACs and you have a lot of money – and very little information. Voters
aren’t just being flooded, they’re being blindfolded, too. We have a bill called the DISCLOSE Act that
would go a long way toward fixing this problem. It would put in place a clear set of rules
requiring disclosure whenever someone spends more than $10,000 to influence an election,
even when that money is being funneled through back channels. The idea is pretty simple:
if you’re going to spend that kind of money to influence elections, people should know
about it so they can make informed decisions and effectively evaluate what you have to
say. This is all about transparency and accountability. All of us should be able to get behind that,
and, indeed, most of us already have. The last version of the DISCLOSE Act had support
from a majority of Senators, and I’m proud to have been one of the bill’s cosponsors.
Several of my colleagues on the other side of the aisle have spoken enthusiastically
about greater disclosure. Even the Supreme Court has endorsed disclosure laws. And poll
after poll shows that the vast majority of Americans support greater transparency in
campaign finance. This is a basic step that we should be able
to take pretty easily. You’d think so, anyway. Turns out, you’d be wrong. In July 2012, we
brought the DISCLOSE Act to the Senate floor, and Republicans blocked it. The bill died
before it could get an up-or-down vote. But we’re not giving up on it. I’ll continue to
work with my colleagues to make the campaign finance system more transparent. Here’s another thing we can do: fundamentally
change the way candidates finance their campaigns. Senator Dick Durbin of Illinois recently reintroduced
the Fair Elections Now Act, which basically says that candidates who refuse to accept
contributions of more than 150 dollars will be eligible for public financing of their
campaigns. This would level the playing field: instead of campaigns that are funded by a
handful of wealthy donors, we’ll have citizen-funded grassroots campaigns, where candidates focus
their attention on people who donate five, ten, fifty, up to 150 dollars. We’ll restore
power to that senior who makes the twenty-five dollar donation. I’ve cosponsored the Fair Elections Now Act
in the past, and I’m proud to cosponsor it again in this Congress. This isn’t going to
solve all of the problems created by Citizens United and McCutcheon, but it’s a step in
the right direction. Finally, there’s something else we can do,
and, honestly, it’s the one thing that we most need to do if we’re going to repair all
of the damage the Supreme Court has done: amend the constitution to reverse the Citizens
United and McCutcheon decisions. Let me be clear: amending the constitution
is not something I take lightly. I think that it should be done only in extraordinary situations.
But the Supreme Court’s decisions present us with one of those situations – because
they erode the very foundation of our democracy. Now, I know what you’re thinking – constitutional
amendments are really hard to come by. They require agreement by two-thirds of both chambers
of Congress and they have to be ratified by at least three-quarters of the states. It’s
no wonder that constitutional amendments have been rare in our history. Well, look – just because a constitutional
amendment takes a long time and is difficult to accomplish doesn’t mean that it’s not worth
trying. It took a long time – much longer than it should have – to enshrine women’s
suffrage into the constitution. But it got done because it would have been an affront
to our democracy had it been otherwise. These things take time and patience and persistence
and perseverance. But they happen. In fact, there’s already momentum building. I’m proud
to cosponsor a constitutional amendment that has been proposed in the Senate and would
restore legal authority to the People to regulate campaign finance. The states are moving in
the right direction, too. According to Public Citizen, sixteen states already have called
for a constitutional amendment. I believe that it’s time for us to answer that call. Thank you, M. President. I yield the floor.

Comments

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    Author
    KateAnneNYC

    Senator Franken gives a clear explanation of the impact of the McCutcheon Supreme Court decision compounding that of the Citizens United decision on campaign spending laws, and the threat of both to our democracy. As Sen. Franken says, it isn't going to be easy to reverse but we MUST work on legislation and a constitutional amendment. Let our congressional reps know what we want. Money is not speech. Corporations are not people. And We the People have the right to limit campaign spending.

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