Citizens United Anniversary

Floor Speech

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Mr. BLUMENTHAL. Madam President, I am proud to follow the distinguished Senator from the State of Washington who has spoken so powerfully on this issue, which is especially appropriate at this time because we do mark the 2-year anniversary of the U.S. Supreme Court's momentous and misguided decision in Citizens United v. Federal Election Commission. That decision strikes at the core of democratic ideals and principles, not just because it opens the floodgates for money that can drown out the voices of millions of ordinary Americans in the political process, but it also demonstrates the results of judicial activism at its worst. In that case, the Court, by a 5-to-4 margin, held that corporations have a first amendment right to spend unlimited amounts of money in the service of political candidates and that those rights cannot be abridged by placing limits on their independent spending for political purposes.
This decision not only expanded the ability of wealthy individuals and large corporations to flood out the voices of millions of ordinary Americans, it also reversed nearly a century of existing law and struck down the validly approved--by this Congress--Bipartisan Campaign Reform Act, approved in 2002. The purpose of that act was to limit the corrosive influence of money on our political process that has been discussed and denounced by Members of this body again and again and again and by the President of the United States as recently as a couple nights ago.

This decision, in my view, was wrong as a matter of law as well as policy. It enables unlimited anonymous money to be contributed in support of or opposition to candidates. It allows the wealthy and powerful to have a disproportionate voice in the most important and fundamental aspect of our democracy--a free and fair election that counts everyone's vote equally.

The shock waves of that decision in Citizens United are reverberating now with increasing impact throughout our political system. We can see them every day, literally, in the ads that appear on TV in major markets in the primary States and throughout the country that could and would--might as well be in the voices of the candidates themselves. Outside groups spent four times as much money in the 2010 midterms as in the 2006 midterms--nearly $300 million. Nearly half of the money spent in the 2010 elections was spent by just 10 groups. Outside spending per race tilted in favor of the winning candidate in 60 of the 75 contests last year where power changed hands. This impact is visible and tangible, undeniable in our political process. It is right before us, as visible as the desks and people in this Chamber. That impact can be expected to grow dramatically in 2013, as spending in the Presidential years is typically much higher than in the midterm elections.

According to opensecrets.org, which tracks political spending, as of today, 296 groups organized as super PACs have already reported spending nearly $41 million on the upcoming election. These super PACs are banned from explicitly coordinating with the candidate they support, but they are operated and controlled by supporters, many of them former staff members. Their collaboration and confederacy are no less impactful because of that rule barring explicit coordination.

We must act to limit the destructive effects of Citizens United before it permanently alters the nature of our political system, undermining it forever and eviscerating the fundamental rights and freedoms that are protected by our Constitution.

I am a strong proponent of legislative proposals to force corporations and individuals to disclose their enormous donations and expenditures to the public--a number of them have been mentioned by my colleagues--and I support them. The Supreme Court's opinion in Citizens United naively argued that voters could readily learn the identity of companies behind these corporate-funded political advertisements. But the fact is otherwise.

Nearly half of the $300 million spent by outside groups in 2006 came from groups that did not disclose their funding source. We must pass disclosure legislation immediately to at least allow sunshine to rein in the worst excesses of this new system, to give ordinary Americans the knowledge they need so that disclosure protects their freedom.

But I also believe we need to go further, and that is why I am a cosponsor of the constitutional amendment that would reverse this decision. The amendment, S.J. Res. 29, would reiterate what we all believed the law to be before Citizens United. That resolution clarifies, and the amendment would do so, that Congress does indeed have the power ``to regulate the raising and spending of money and in kind equivalents with respect to Federal elections and that States have the authority with regard to State elections to do the same.''

I know that amending the Constitution is not easy, and supporting a proposed amendment is not something I do lightly. But, unfortunately, the Supreme Court has clearly demonstrated that it will permit unchecked corporate power over elections, and the task is then for Congress and the States and the people to restrain such spending and thereby rein in the Supreme Court.

Many have seen Citizens United as an expression of the U.S. Supreme Court's judicial activism in favor of well-funded and well-lawyered corporations, often at the expense of vulnerable Americans, and there is support for that view of the Supreme Court trend in decisions.

In AT&T v. Concepcion, it expanded the ability of companies to force consumers into secretive binding arbitration agreements. In Wal-Mart v. Dukes, it restricted the ability of similarly situated persons, including female employees who faced discrimination in the workplace, to ban together and seek redress against a powerful company.

In PLIVA v. Mensing, a case involving a woman who sustained injuries from a drug company's failure to properly disclose the risk of a generic drug, the Court sided with the drug companies, holding that a generic drug company is not liable under State law for failing to notify the FDA or the consumer about newly discovered risks of the drug.

In Sorrell v. IMF Health, the Court overturned a Vermont law intended to prevent improper and invasive practices of drug companies tracking doctors' prescriptions to patients. Just 2 weeks ago, in CompuCredit v. Greenberg, the Court halted a class action lawsuit by consumers who signed up for a credit card marketed to individuals with poor credit histories. Each of those decisions and others has been interpreted as part of a pattern that led the Senate Judiciary Committee to hold a hearing a few months ago entitled: ``Barriers to Justice and Accountability: How the Supreme Court's Recent Rulings will Affect Corporate Behavior.''

But more important than that perception and the appearance of that favoritism in judicial activism is the activism itself, the potential overreaching that undermines the faith and confidence of people in the Court. Citizens United exemplifies judicial activism at its worst. People want limits on the corrosive and corrupting influence of money. They want restraints on the power of corporations and wealthy individuals to fund----

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Mr. BLUMENTHAL. In closing, people speak through their legislature. The judiciary struck down a measure through which the people spoke to place those limits on the ability of corporations to shape results, and the judiciary now should be overturned through a constitutional amendment that restores the Democratic voice of the people as a whole.

I yield the floor.

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