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STATEMENT BY SENATOR JOHN McCAIN ON THE U.S. SUPREME COURT CASE CITIZENS UNITED v. FEDERAL ELECTION COMMISSION (PART 1)
October 21, 2009
“Mr. President, on September 9th, the U.S. Supreme Court heard oral arguments from both sides in the case Citizens United v. Federal Election Commission. The implications of this case are very serious and the Supreme Court’s decision could result in the unraveling of over one hundred years of Congressional action and judicial precedent with respect to corporate spending in political campaigns.
“I was present in the Supreme Court Chamber for the arguments in this case, and I commend both sides for presenting their case in a thoughtful, intelligent manner. However, there was one part of the argument that I found particularly disturbing. While responding to a question from Justice Alito, the Solicitor General was interrupted by Justice Scalia who said:
‘Congress has a self-interest. I mean, we – we are suspicious of Congressional Action in the First Amendment area precisely because we – at least I am – I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.’
“I take great exception to Justice Scalia’s statement, as should every member of both Houses of Congress. It is an affront to the thousands of good, decent, honorable men and women who have served this nation in these halls for well over 200 years. Not only was Justice Scalia’s statement excessively cynical, it showed his unfortunate lack of understanding of the facts and the history of campaign reform. Throughout our history, America has faced periods of political corruption, and in every instance Congress has risen above its own self-interest and enacted the necessary reforms to address the scandals and corruption that have plagued our democratic institutions over time.
“Mr. President, the Tillman Act in 1907, the Publicity Act in 1910, the Federal Corrupt Practices Act in 1925, the Public Utilities Holding Act in 1935, the Hatch Act in 1939, the Smith-Connelly Act in 1943, the Taft-Hartley Act in 1947, the Long Act in 1968, the Federal Election Campaign Act in 1974, and the Bipartisan Campaign Reform Act in 2002 are just some of the reforms enacted by Congress over the years to address corruption in our government and our campaigns. Simply put, history has proven Justice Scalia wrong in his assessment that Congress will not act in anything but a self-serving manner.
Justice Scalia’s statement was also remarkable in that it exposed his belief that, when it comes to issues relating to campaign reform, he somehow is a better arbiter of what is needed to reform the electoral process than the Congress or the American people. With all due respect – that is NOT the job of the judicial branch. Judges who stray beyond their constitutional role to try and take Congress’s place as policy makers falsely believe that judges somehow have a greater insight into what legislation is necessary and proper than representatives who are duly elected by the people and accountable to them every several years. Activist judges, regardless of whether it is liberal or conservative activism, assume that the judiciary is a super-legislature of moral philosophers, entitled to support Congress’s policy choices whenever they choose. I believe this judicial activism is wrong and is contrary to the Constitution.
Mr. President, our Constitution is very clear in its delineation and disbursement of power. It solely tasks the Congress with creating law – not the courts. I have a long history of opposing activist judges. Judicial activism demonstrates a lack of respect for the popular will - and that is at fundamental odds with our republican system of government. I believe that a judge should seek to uphold all acts of Congress and state legislatures unless they clearly violate a specific section of the Constitution, and refrain from interpreting the law in a manner which creates new law. That is a fundamentally conservative position I have held throughout my career. I wish Justice Scalia shared that position.
“Let’s be very clear, Mr. President. At stake in the Citizen United case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are rescinded. Overturning Supreme Court precedent would open the floodgates to unlimited corporate and union spending during elections and undermine election laws across the country. Those able to spend tens of millions of dollars, like a Fortune 500 company or a big labor union, are much more likely to be heard during an election than the average American voter. For this reason, I have always advocated laws that would prevent big-moneyed special interests from drowning out the voices of individual American citizens in elections, and dominating the decision-making process of our government. Contrary to some of my critics, I am a firm believer in the First Amendment.
FOR MORE THAN 100 YEARS, LAWS HAVE STOOD TO LIMIT CORPORATE DONATIONS TO POLITICAL CANDIDATES AND CAMPAIGNS
“The concern about corporate involvement in campaigns is not new in America. On September 3, 1897, in a speech on Government and Citizenship, Elihu Root, who would go on to become Theodore Roosevelt’s Secretary of State and a Nobel Peace Prize winner, said:
‘The idea . . . is to prevent the great moneyed corporations of the country from furnishing the money with which to elect members of the legislature . . . in order that those members of the legislature may vote to protect the corporations. It is to prevent the great railroad companies, the great insurance companies, the great telephone companies, the great aggregations of wealth, from using their corporate funds, directly or indirectly, to send members of the legislature to these halls, in order to vote for their protection and the advancement of their interests as against those of the public.
“It strikes, Mr. Chairman, at a constantly growing evil in our political affairs, which has, in my judgment, done more to shake the confidence of the plain people of small means in our political institutions, than any other practice which has ever obtained since the foundation of our government. And I believe that the time has come when something ought to be done to put a check upon the giving of $50,000 or $100,000 by a great corporation toward political purposes, upon the understanding that a debt is created from a political party to it; a debt to be recognized and repaid with the votes of representatives in the legislature and in Congress, or by the action of administrative or executive officers who have been elected in a measure through the use of the money so contributed.’
“Additionally, Mr. President, one can make the case that the concern about corporate influence extends as far back as our Founding Fathers. In 1816 Thomas Jefferson wrote: ‘I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country.’”
“Kentucky was the first state to ban corporations from spending their funds in state elections in 1891. And by 1897, Florida, Missouri, Nebraska and Tennessee had all enacted similar corporate spending prohibitions in their state elections.
“While some states began enacting limits on the influence of money on politics during the Civil War era, Congress did not begin to pass major campaign finance regulations until some decades later. By that time political contributions by major corporate interests and business leaders dominated campaign fundraising, and this development sparked the first major movement for national reform. Progressive reformers, such as President Theodore Roosevelt, and investigative journalists, charged that these business interests were attempting to gain special access and favors, thereby corrupting the democratic process. This reform movement, combined with allegations of financial impropriety in the 1904 presidential election, resulted in the enactment of significant reforms.
“On October 1, 1904, Joseph Pulitzer published an editorial in the New York World questioning President Roosevelt’s ties to many of the large corporations that had donated to his campaign. Those questions led Roosevelt’s opponent, Judge Alton Parker, to describe the donations as ‘blackmail’ and insinuated that there was a quid pro quo involved. President Roosevelt responded angrily, calling the accusations ‘monstrous’ and said ‘the assertion that there has been any blackmail, direct or indirect . . . is a falsehood. The assertion that there has been made any pledge or promise or that there has been any understanding as to future immunities or benefits, in recognition from any source is a wicked falsehood.’”
“President Roosevelt, not wanting to give the appearance of improper influence, directed his staff to return a $100,000 contribution from the Standard Oil Corporation. In his memo he wrote:
“We cannot under any circumstances afford to take a contribution which can be even improperly construed as putting us under an improper obligation.”
“The allegations of impropriety also led Roosevelt to call for an end to corporate donations to campaigns. In his Fifth Annual Message to the Congress on December 5, 1905, Roosevelt said:
“The power of the Government to protect the integrity of the elections of its own officials is inherent and has been recognized and affirmed by repeated declarations of the Supreme Court. There is no enemy of free government more dangerous and none so insidious as the corruption of the electorate.”
“He warned:
“If [legislators] are extorted by any kind of pressure or promise, express or implied, direct or indirect, in the way of favor or immunity, then the giving or receiving becomes not only improper but criminal. All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in the corrupt practices acts. Not only should both the national and the several State legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation.”
“And again, the following year in his Sixth Annual Message to Congress in December, 1906 President Roosevelt tried to limit corporate influence, stating:
“I again recommend a law prohibiting all corporations from contributing to the campaign expenses of any party. Such a bill has already passed one house of Congress. Let individuals contribute as they desire; but let us prohibit in effective fashion all corporations from making contributions for any political purpose, directly or indirectly.”
“In January 1907, Roosevelt signed into law the Tillman Act. This law prohibited nationally chartered banks and corporations from contributing to campaigns. In the report to accompany the Senate version of the legislation, dated April 27, 1906, the Senate Committee on Privileges and Elections wrote:
“The evils of the use of money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure. It is in the interest of good government and calculated to promote purity in the selection of public officials.”
“Following passage of the Tillman Act, Roosevelt again addressed the issue in his Seventh Annual Message to Congress in December, 1907. He said:
“Under our form of government voting is not merely a right but a duty, and, moreover, a fundamental and necessary duty if a man is to be a good citizen. It is well to provide that corporations shall not contribute to Presidential or National campaigns, and furthermore to provide for the publication of both contributions and expenditures.”
“Mr. President, although the Tillman Act constituted a landmark in federal law, according to campaign finance expert Anthony Corrado, ‘its adoption did not quell the cries for reform. Eliminating corporate influence was only one of the ideas being advanced at this time to clean up political finance.’ In the years following the passage of the Tillman Act, reducing the influence of wealthy individuals and labor unions became a concern and reformers pushed for further limits on donations.
“Consequently, in 1947, Congress enacted the Taft-Hartley Act, which explicitly banned corporate and labor union expenditures in federal campaigns. In doing so, Senator Robert Taft made clear that the purpose of the new language was simply to affirm what had been understood to always be the case – that the 1907 corporate ban had prohibited corporate expenditures, or indirect contributions, as well as direct corporate contributions.
“BAN ON CORPORATE EXPENDITURES IN CAMPAIGNS: CONSISTENTLY UPHELD BY THE SUPREME COURT AS CONSTITUTIONAL AND AS ‘FIRMLY EMBEDDED IN OUR LAW’”
“Mr. President, the constitutionality of the ban on corporate campaign expenditures was upheld by the Supreme Court in the Austin v. Michigan Chamber of Commerce decision in 1990 and reaffirmed by the Court in the McConnell v. Federal Election Commission decision in 2003. And the corporate expenditure ban had been commented on favorably by the Court in earlier cases.
“In 1990, in the Austin case, the Supreme Court acknowledged the importance of maintaining the integrity of the political process. From the Court’s opinion:
“Michigan identified as a serious danger the significant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem. By requiring corporations to make all independent political expenditures through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to influence unfairly the outcome of elections.”
“In the McConnell case, the Supreme Court recognized its long-standing support for the constitutionality of bans on corporate campaign expenditures going back to its Buckley decision in 1976. From the Court’s decision:
“Since our decision in Buckley, Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law.”
“Additionally, in 1982, in the National Right to Work Committee case, the Supreme Court, in an opinion authored by Chief Justice William Rhenquist, stated regarding the federal ban on corporate and labor union expenditures:
“The careful legislative adjustment of the federal electoral laws, in a cautious advance, step by step, to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference. [I]t also reflects a permissible assessment of the dangers posed by those entities to the electoral process.”
“In order to prevent both actual and apparent corruption, Congress aimed a part of its regulatory scheme at corporations. The statute reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. Nor will we second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared. As we said in California Medical Association v. FEC, the ‘differing structures and purposes; of different entities ‘may require different forms of regulation in order to protect the integrity of the electoral process....”
“The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized, First National Bank of Boston v. Bellotti, supra, and there is no reason why it may not in this case be accomplished by treating unions, corporations and similar organizations different from individuals.”
“In 1986, in the Massachusetts Citizens for Life case, the Supreme Court stated regarding the federal ban on corporate expenditures in campaigns:
“This concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas... Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace...The resources in the treasury of a business corporation…are not an indication of popular support for the corporation’s political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’”
“By requiring that corporate independent expenditures be financed through a political committee expressly established to engage in campaign spending, section 441b seeks to prevent this threat to the political marketplace. The resources available to this fund, as opposed to the corporate treasury, in fact reflect popular support for the political positions of the committee.”
“UNFETTERED CORPORATE POLITICAL SPENDING CORRUPTS THE LEGISLATIVE PROCESS
“Mr. President, if anyone has doubts about the influence of big-moneyed special interests on policy makers in this town; let me relay a personal observation. During the Senate Commerce Committee’s consideration of the 1996 Telecommunications Act, every company affected by the legislation had purchased a seat at the table with soft money. Consequently, the bill attempted to protect them all, a goal that is obviously incompatible with competition. Consumers, who only give us their votes, had no seat at the table, and the lower prices that competition produces never materialized. Cable rates went up. Phone rates went up. And huge broadcasting giants received billions of dollars in digital spectrum, property that belonged to the American people, for free.
Information gathered from various sources in the press at the time indicated that the special interest groups involved spent nearly $150 million to lobby Congress on telecommunications reform – and they all came out on top – at the expense of the American consumer.