[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]




 
  CITIZENS UNITED AT 10: THE CONSEQUENCES FOR DEMOCRACY AND POTENTIAL 
                         RESPONSES BY CONGRESS

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION,
                    CIVIL RIGHTS, AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 6, 2020

                               __________

                           Serial No. 116-74

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]      

         


        Available http://judiciary.house.gov or www.govinfo.gov
        
        
        
                            ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
 41-288               WASHINGTON : 2020         
        
        
        
                       COMMITTEE ON THE JUDICIARY

                   JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California              DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas              Ranking Member
STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr., 
HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
    Georgia                          STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
KAREN BASS, California               JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
ERIC SWALWELL, California            MATT GAETZ, Florida
TED LIEU, California                 MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania,      BEN CLINE, Virginia
  Vice-Chair                         KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas

        Perry Apelbaum, Majority Staff Director & Chief Counsel
                Brendan Belair, Minority Staff Director
                                 ------                                

            SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, 
                          AND CIVIL LIBERTIES

                     STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana,
ERIC SWALWELL, California              Ranking Member
MARY GAY SCANLON, Pennsylvania       LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania         JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas              GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas              BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas            KELLY ARMSTRONG, North Dakota

                       James Park, Chief Counsel
                     Paul Taylor, Minority Counsel
                     
                            C O N T E N T S

                              ----------                              

                            FEBRUARY 6, 2020

                           OPENING STATEMENTS

                                                                   Page
The Honorable Steve Cohen, Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     4

                               WITNESSES

The Honorable Ted Deutch, Member of Congress
    Oral Testimony...............................................     9
    Prepared Testimony...........................................    34
The Honorable Pramila Jayapal, Member of Congress
    Oral Testimony...............................................    39
    Prepared Testimony...........................................    41
Ellen L. Weintraub, Commissioner, Federal Election Commission
    Oral Testimony...............................................    45
    Prepared Testimony...........................................    48
Robert Weissman, President, Public Citizen
    Oral Testimony...............................................    53
    Prepared Testimony...........................................    55
Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault 
  Professor of Law, Capital University Law School
    Oral Testimony...............................................    56
    Prepared Testimony...........................................    58
Ciara Torres-Spelliscy, Professor of Law, Stetson University 
  College of Law
    Oral Testimony...............................................    71
    Prepared Testimony...........................................    73

          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

Statement by the Honorable Jerrold Nadler, submitted by the 
  Honorable Steve Cohen, Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     6
Items for the record submitted by the Honorable Ted Deutch, 
  Committee on the Judiciary.....................................    10
Items for the record submitted by the Mary Gay Scanlon, Committee 
  on the Judiciary...............................................    92
Items for the record submitted by the Steve Cohen, Committee on 
  the Judiciary..................................................   106

                                APPENDIX

Items for the record submitted by The Honorable Steve Cohen, 
  Chairman, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................   112
Items for the record submitted by The Honorable Mike Johnson, 
  Ranking Member, Subcommittee on the Constitution, Civil Rights, 
  and Civil Liberties............................................   119
Items for the record submitted by The Honorable Doug Collins, 
  Ranking Member, Committee on the Judiciary.....................   124


  CITIZENS UNITED AT 10: THE CONSEQUENCES FOR DEMOCRACY AND POTENTIAL 
                         RESPONSES BY CONGRESS

                              ----------                              


                       THURSDAY, FEBRUARY 6, 2020

                        House of Representatives

            Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties

                       Committee on the Judiciary

                            Washington, DC.

    The subcommittee met, pursuant to call, at 10:06 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Cohen 
[chairman of the subcommittee] presiding.
    Present: Representatives Cohen, Raskin, Swalwell, Scanlon, 
Dean, Escobar, Jackson Lee, Johnson of Louisiana, Jordan, 
Cline, and Armstrong.
    Staff Present: David Greengrass, Senior Counsel; John Doty, 
Senior Advisor; Madeline Strasser, Chief Clerk; Moh Sharma, 
Member Services and Outreach Advisor; Anthony Valdez, Staff 
Assistant; John Williams, Parliamentarian; Jordan Dashow, 
Professional Staff Member; James Park, Chief Counsel, 
Constitution Subcommittee; Will Emmons, Professional Staff 
Member, Constitution Subcommittee; Matt Morgan, Counsel, 
Constitution Subcommittee.
    Mr. Cohen. The Committee on the Judiciary, Subcommittee on 
the Constitution, Civil Rights, and Civil Liberties, will come 
to order.
    Without objection, the Chair is authorized to declare 
recesses of the subcommittee at any time.
    I welcome everyone to today's hearing, ``Citizens United at 
10: Consequences for Democracy and Potential Responses by 
Congress.''
    I will now recognize myself for an opening statement.
    Can you hear me?
    Can you hear me now? [Laughter.]
    Well, I am not going to talk that way. I will try to talk 
closer to the microphone. Thank you.
    This year marks the 10th anniversary of the Supreme Court's 
deeply troubling decision in Citizens United v. Federal 
Election Commission. That decision has resulted in the 
corrosion of our democracy, giving a disproportionate weight to 
monied interests and drowning out the voices of ordinary 
Americans. Today's hearing will examine the extent of this 
corrosion and explore ways to repair the damage that the flood 
of dark money into our political system has wrought as a result 
of that decision.
    In Citizens United the Supreme Court struck down as 
unconstitutional a ban on corporations and unions using their 
general treasury funds to make independent expenditures 
expressly advocating for the election or defeat of a candidate. 
Essentially, the Court held wrongly, in my view, that this ban 
on independent expenditures violated corporations' First 
Amendment free speech rights.
    Citizens United represented an unjustified extension of 
Buckley v. Valeo, a Supreme Court decision in 1976 that had 
struck down limits on independent expenditures by individuals. 
In handing down its decision in Citizens United, the Supreme 
Court overturned decades-old precedents that held that the 
government could regulate outside spending by corporations and 
unions.
    The negative effect of Citizens United was immediately 
apparent. The same year that the Supreme Court decided Citizens 
United, the U.S. Court of Appeals for the U.S. District decided 
Speechnow.org v. FEC, striking down Federal limitations on 
contributions by individuals to political committees that only 
made independent expenditures.
    Taken together, these two decisions resulted in the rise of 
the so-called super-political action committees, or Super PACs. 
Because of these decisions, individuals and corporations can 
make unlimited contributions to PACs dedicated only to making 
independent expenditures whose donor disclosure rules are much 
more opaque, allowing them to accumulate massive amounts of 
dark money.
    It is now 10 years later and we are seeing the negative 
corrosive effects of a decade of permitting wealthy mega-donors 
and corporations pouring unlimited amounts of money into our 
elections. Perhaps now more than ever, many Americans believe 
that their elected leaders do not care about them, that 
politicians only care about raising money and the people who 
fund those Super PACs that help get them elected, prioritizing 
narrow interests to the money class or corporations in the 
political system people feel is rigged against them. They 
believe their voices will be drowned out come the election by 
the megaphones bought by dark money, megaphones as if they are 
speech. Example after example shows they are right.
    For instance, most Americans, including most gun owners, 
support universal background checks for gun purchases. 
According to a 2018 Quinnipiac University poll, almost all 
Americans, including 97 percent of gun owners, support 
universal background checks. Despite the fact that enacting 
universal background checks would be overwhelmingly popular, 
the Grim Reaper, also known as Mitch McConnell, the Majority 
Leader, has so far refused to take up H.R. 8, the bipartisan 
Background Checks Act, which the House passed nearly a year 
ago. Perhaps not surprisingly, since 2016, the National Rifle 
Association has spent more than $54 million on outside spending 
efforts, including $34 million raised from its dark money arm. 
That is a lot of money and has a big impact on who wins 
elections and influences the opinions on gun ownership.
    Similarly, Americans overwhelmingly support lowering 
prescription drug prices. According to the Henry J. Kaiser 
Family Foundation, more than 70 percent of Americans believe 
drug costs are unreasonable and that drug companies are putting 
profits before people. Similarly, a study conducted by Politico 
and the Harvard School of Public Health found that 92 percent 
of Americans favor lowering the rates for prescription drugs as 
an important health policy priority. Even President Trump 
during his Show of Shows, also known as the State of the Union 
address earlier this week, in a speech that could otherwise 
best be described as a campaign rally masquerading as a reality 
TV show, called on Congress to pass a bill to dramatically 
lower drug prices. Yet for years Congress has done nothing. 
Why? It probably has something to do with pharmaceutical 
companies' army of lobbyists backed up by massive amounts of 
dark money raised by allied Super PACs.
    Sadly, I can name policy after policy area, from climate 
change to Wall Street regulations meant to avert another 
economic meltdown, where Americans overwhelmingly believe that 
Congress should take action, yet Congress has failed to take 
such action when confronted by massive and targeted outside 
spending by dark money organizations.
    And the people that benefit from that are the leaders of 
the Senate and the leaders of the House, and generally they are 
not going to favor giving up a tool that gives them more power, 
particularly on the side that has the most money.
    The very real danger here is that the American people, 
convinced that their voices will be drowned out by mega-donors 
and corporate interests, will lose faith in the enterprise of 
self-government and indeed turn to demagogic and anti-
democratic forces. It is for this reason that I support a 
constitutional amendment to overturn Citizens United. I am a 
co-sponsor of H.J. Res. 2, the Democracy for All Amendment, and 
I thank Representative Deutch for working so hard on that for 
many, many years. Passing a constitutional amendment is one way 
to bring the dark age of the Super PAC to a definitive close.
    I also urge Leader McConnell to take up H.R. 1, the For the 
People Act, which I believe Representative Sarbanes championed, 
which would enact reforms that would expose dark money donors. 
And I thank Representative Jayapal for all her work on this 
issue as well. She has another bill that goes a little further.
    Passing a constitutional amendment to overturn Citizens 
United should be our ultimate goal. In the meantime, however, 
Congress should take whatever action it can to stop the flow of 
dark money into our elections that threatens to erode even 
further the American people's faith in democratic self-
government.
    I look forward to our witnesses' testimony and I thank them 
all for appearing here, and all the citizens that have been 
involved in this issue, and I now recognize the Ranking Member, 
Mr. Johnson, for his opening statement.
    Mr. Johnson of Louisiana. Thank you, Mr. Chairman, and 
thank you all for being here. I know this is an issue that 
concerns a lot of Americans on both sides, and it will not 
surprise you that our side over here has a very different view 
of the issue.
    Before I get into my opening remarks, it is incumbent upon 
me to remind my good chairman here that it is a violation of 
House rules and decorum to refer to the Majority Leader of the 
other house as the Grim Reaper. Even if he does so himself, we 
can't do it here.
    Mr. Cohen. I'm out of order. So ruled. [Laughter.]
    Sustained. Overruled. [Laughter.]
    Mr. Johnson of Louisiana. No objection.
    We believe the Supreme Court's decision in Citizens United 
issued a decade ago was based upon a long line of prior Supreme 
Court precedents and was in accordance with our proud 
constitutional history regarding the First Amendment.
    As the late Justice Scalia pointed out in his concurrence 
in Citizens United, the original meaning of the text of the 
First Amendment clearly supports the majority's decision. This 
is what he wrote: ``In 1791, as now, corporations could pursue 
only the objectives set forth in their charters, but the 
dissent provides no evidence that their speech in the pursuit 
of those objectives should be censored. Most of the Founders' 
resentment towards corporations was directed at the state-
granted monopoly privileges that individually-chartered 
corporations enjoyed. Modern corporations don't have such 
privileges and would probably have been favored by most of our 
enterprising Founders. The individual person's right to speak 
includes the right to speak in association with other 
individual persons. Surely the dissent does not believe that 
speech by the Republican Party or the Democratic Party can be 
censored because it is not the speech of an individual 
American. It is the speech of many individual Americans who 
have associated in a common cause, giving the leadership of the 
Party the right to speak on their behalf. The First Amendment 
is written in terms of speech, not speakers. Its text offers no 
foothold for excluding any category of speaker, from single 
individual to partnerships of individuals to unincorporated 
associations of individuals to incorporated associations of 
individuals.''
    This is not just a conservative's view. As you know, the 
American Civil Liberties Union, which most Americans regard as 
a left or far left organization today--I do--seems generally 
supportive of the Citizens United decision. On its website 
today you can find the following statement: ``In Citizens 
United, the Supreme Court ruled that independent political 
expenditures by corporations and unions are protected under the 
First Amendment and not subject to restriction by the 
government. Any rule that requires the government to determine 
what political speech is legitimate and how much political 
speech is appropriate is difficult to reconcile with the First 
Amendment. Our system of free expression is built on the 
premise that the people get to decide what speech they want to 
hear. It is not the role of government to make that decision 
for them. Unfortunately, legitimate concern over the influence 
of big money in politics has led some to propose a 
constitutional amendment to reverse the Citizens United 
decision. The ACLU will firmly oppose any constitutional 
amendment that would limit the free speech clause of the First 
Amendment.''
    I don't find myself in agreement with the ACLU very often, 
but I think they got that one right. You see, the ACLU and 
Justice Scalia appear to be on the same page, and that page is 
the parchment of our First Amendment.
    I suspect much of what we will hear today at this hearing 
will be repetitions of the sorts of erroneous statements that 
none other than President Obama made about the Citizens United 
decision during his 2010 State of the Union address in which he 
opined, ``The Supreme Court 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.''
    Every clause of that sentence was incorrect. Citizens 
United didn't reverse a century of law. The Tillman Act of 1907 
banned corporate donations to campaigns, and such donations 
remain banned. Citizens United overturned a 1990 precedent that 
allowed banning independent spending by corporations, which was 
itself a stark anomaly in our First Amendment law, as it was 
the only time the Court had allowed a restriction on political 
speech for a reason other than the need to prevent corruption.
    Second, the ``floodgates of special interests'' weren't 
opened. Instead, dams preventing the free flow of speech were 
removed. We may not always like that speech, but that is what 
the First Amendment is about. As Professor Brad Smith, whom we 
will hear from today, explained recently, ``The New York Times 
accused the justices in Citizens United of having paved the way 
for corporations to use their vast treasuries to overwhelm 
elections and thrust back to the robber baron era of the 19th 
century.'' A decade later, most spending comes from the same 
place it always has, and that is individuals who donate 
directly to candidates up to legally limited amounts. 
Corporations contribute well under 10 percent of Federal 
political spending. Their voice is not dominant, and voters 
have a right to hear it.
    Third and finally, Citizens United said nothing about 
foreign corporations spending in political campaigns. Indeed, 
in 2012 the Supreme Court explicitly upheld such restrictions 
in Bluman v. Federal Election Commission. Obviously, there is a 
lot of misunderstanding and misinformation and even, dare I 
say, fake news circulated about the Supreme Court's Citizens 
United decision. But I expect at least part of today's 
discussion may help us correct those misinterpretations, and I 
look forward to hearing from all of our witnesses here today.
    I am going to apologize in advance before I yield back. A 
lot of us have multiple things going on this morning, so we may 
be in and out, but it is not a reflection on our view of the 
importance of this subject matter and this hearing.
    I yield back. Thank you.
    Mr. Cohen. Thank you, Mr. Johnson.
    Now, Mr. Nadler, who is not present, gave us a statement 
for the record, and we thank Chairman Nadler for his 
participation in other ways.
    [The information follows:]
      

                   MR. COHEN FOR THE OFFICIAL RECORD

=======================================================================

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Cohen. Does Mr. Collins have a statement to enter? No?
    We welcome our witnesses and thank them for participating. 
Our first panel will be made up of members of Congress who 
worked hard on this issue. I will introduce each witness, and 
after the introduction I will ask them for their testimony.
    Your written statement will be entered into the record in 
its entirety, and you get 5 minutes, and you know the rules of 
the 5 minutes and the lights.
    The first witness is Representative Ted Deutch. 
Representative Deutch represents the 22nd Congressional 
District in the State of Florida. He is the Chairman of the 
House Ethics Committee, Chairman of the House Foreign Affairs 
Subcommittee on the Middle East, North Africa, and 
International Terrorism, and a long-time member of this House 
Judiciary Committee.
    He is a co-sponsor or the prime sponsor of H.J. Res. 2, a 
proposed constitutional amendment that would effectively 
overturn the Citizens United decision and permit Congress and 
the states to regulate campaign finance.
    Mr. Deutch, you are recognized for 5 minutes.

 STATEMENT OF THE HON. THEODORE E. DEUTCH, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Mr. Deutch. Thank you. Before I begin my testimony, Mr. 
Chairman, I ask the following documents be included in the 
record: written testimony of bipartisan advocates from around 
the country, including Jeff Clement, President of American 
Promise; John Pudner, the Executive Director of Take Back Our 
Republic; Jim Rubens, the former Republican New Hampshire state 
senator; as well as business executives, farmers, educators, 
health workers from Ohio, New Jersey, Michigan, California, 
Tennessee, Pennsylvania, and Kansas.
    Mr. Cohen. Without objection.
    Mr. Deutch. Thank you.
    [The information follows:]
      

                   MR. DEUTCH FOR THE OFFICIAL RECORD

=======================================================================

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Deutch. Thank you, Chairman Cohen, Ranking Member 
Johnson, and members of the subcommittee. It has been 10 years 
since the Supreme Court's disastrous decision in Citizens 
United, and I am here today to call for a constitutional 
amendment to overturn it.
    In the 5-4 majority opinion, Justice Anthony Kennedy 
dismissed concerns about corruption caused by limitless 
spending. He wrote, ``The appearance of influence or access 
will not cause the electorate to lose faith in our democracy.'' 
But it has.
    The decision knocked down longstanding bipartisan campaign 
finance laws.
    There are three primary problems that have crystallized in 
the Citizens United decade. First, extreme election spending 
destroys any hope of political equality in America. Second, 
current disclosure and anti-coordination rules have not 
prevented corruption or stopped foreign interference. And 
third, very few very wealthy individuals have extraordinary 
influence. Government institutions too often focus on their pet 
projects rather than on the public will.
    Citizens United unleashed a torrent of billions of dollars 
into our elections. In the 20 years before the Citizens United 
decision, $750 million of outside spending. In the 10 years 
since, over $4.5 billion.
    Dark money groups are not required to disclose their 
donors. Their spending jumped from $129 million in the 10 years 
before the decision to $1 billion since. The 10 families who 
spent the most in our elections in the Citizens United decade 
spent a total of $1.2 billion.
    Now, to put that in perspective, it would take 6 million 
Americans spending $200 each to match the spending of these 10 
families. This flood of spending has distorted the agenda in 
Congress, and we now know that it is sapping America's faith in 
our democracy and our government.
    Eighty-four percent of Americans think that special 
interests come first here. Last year the House passed the For 
the People Act and the Voting Rights Advancement Act, and these 
bills would require disclosure and end gerrymandering and make 
it easier to vote and protect voting rights. But statutory 
changes alone can't fix the problems created by Citizens 
United.
    The Democracy for All Amendment would allow reasonable 
limits on campaign spending. Americans want to get big money 
out of our elections. The amendment rejects the Supreme Court's 
claim that only quid pro quo bribes can corrupt politicians. 
Our amendment would level the playing field. It would promote 
political equality, and it would protect the integrity of our 
government institutions and elections.
    I want to thank the millions of advocates and hundreds of 
organizations who built the movement to get money out of 
politics. Twenty states and over 800 local governments are 
calling for a constitutional amendment, and we wouldn't be here 
today without them.
    I want to thank Vice Chair Raskin, Representative McGovern, 
Representative Katko, and Senators Udall and Shaheen for 
joining me in introducing this bipartisan amendment. And I want 
to thank the 210 co-sponsors, including Congresswoman Jayapal 
and many members of this subcommittee, for their support.
    And to be clear, this issue is not partisan among the 
American people. In 2018, the University of Maryland reported 
that 75 percent of Americans, three-quarters of all Americans, 
support a constitutional amendment to allow for limits on 
election spending. That includes 85 percent of Democrats, 70 
percent of Independents, and two-thirds of Republicans.
    We must overturn Citizens United to fulfill the ideals we 
affirmed at our nation's founding. The Democracy for All 
Amendment is necessary because your status in our democracy 
should not depend upon your status in our economy. Whether you 
work three jobs and barely get by, or you own three homes and 
you barely work, the eyes of our law, the eyes of our 
government, our elections, must see all Americans as equal. 
This amendment will get money out of our elections. And most 
importantly, it will put voters back in charge.
    With that, Mr. Chairman, I appreciate the time, and I yield 
back.
    [The statement of Mr. Deutch follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
     
    Mr. Cohen. Thank you, Mr. Deutch. Very well timed and very 
well delivered.
    Ms. Jayapal is next. Representative Pramila Jayapal has 
been a leader in Congress on many, many progressive issues. She 
represents the 7th Congressional District of Washington State. 
She is a member of the House Judiciary Committee, where she 
sits on the Immigration and Antitrust Subcommittees. She is a 
senior Whip for the Democratic Caucus and Co-Chair of the 
Congressional Progressive Caucus and the Women's Working Group 
on Immigration. She is the sponsor of H.J. Res. 48, a proposed 
constitutional amendment providing that the rights protected by 
the Constitution of the United States are the rights protected 
of natural persons only.
    Congresswoman Jayapal, you are recognized for 5 minutes. 
Thank you.

  STATEMENT OF THE HON. PRAMILA JAYAPAL, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF WASHINGTON

    Ms. Jayapal. Chairman Cohen, Ranking Member Johnson, and 
members of the subcommittee, thank you so much for the 
opportunity to testify on my bill, House Joint Resolution 48, 
the We the People Amendment.
    Ten years ago, the Supreme Court issued its 5-4 landmark 
ruling in Citizens United v. Federal Elections Commission. The 
implications of Citizens United reach far beyond electoral 
politics and political donations. It has had a profound impact 
on our elections, our policymaking, and our daily lives.
    And that is why I am proud to sponsor H.J. Res. 48, the We 
The People Amendment, a comprehensive solution to the Citizens 
United decision. Corporations and the few ultra-rich have 
hijacked our elections for far too long. The We The People 
Amendment would put power back to everyday people by ending 
corporate personhood and clarifying that money does not equal 
free speech.
    Citizens United established political spending as protected 
speech under the First Amendment of the Constitution and 
further prevented the government from limiting corporations and 
other entities from spending money on candidates in elections. 
This established a dangerous precedent of corporate personhood 
that the We the People Amendment reverses by specifying that 
the rights provided by the Constitution are for real people, 
individuals, not corporations.
    The Supreme Court's decision empowered the Federal 
Elections Commission to allow outside groups to accept 
unlimited political donations, giving corporations and the 
ultra-rich unrestricted power in elections. This created an 
enormous imbalance in power in which the average American's 
ability to influence elected officials is dwarfed by large 
corporations.
    As we in Congress grapple with critical issues such as 
climate change, immigration, and an inequitable health care 
system, we must recognize the power that those with financial 
stakes in these industries such as the oil and gas, private 
prison, and insurance companies exert in our elections.
    The We the People Amendment would regulate political 
donations and mandate public disclosure to ensure transparency 
and public accountability.
    Yet, the impact of Citizens United is not limited to the 
role of money in politics. The freedom of expression granted to 
corporations in Citizens United led to the decision in Hobby 
Lobby v. Sebelius. The Court granted a corporation the ability 
to opt out of provisions of the Affordable Care Act in order to 
deny basic health care to women employees on the basis that a 
corporation has religious liberty. It puts corporate rights 
over a woman's right to make decisions about her own body, and 
it is one more reason why we must limit corporate personhood 
beyond elections.
    Research has found, as my colleague Mr. Deutch said, that 
77 percent of Americans believe that there should be limits on 
the amount that both individuals and groups can spend on 
campaigns. The time has come for Congress to intervene. I am a 
proud co-sponsor of H.R. 1, the For the People Act, and of 
Congressman Deutch's Democracy for All Amendment. I believe 
that Congress and the states must do the important work of 
regulating campaign contributions and distinguishing between 
people and corporations when creating campaign finance 
legislation.
    The We the People Amendment goes further, to end corporate 
constitutional rights and ensure that our democracy is really 
of the people, by the people, and for the people. I believe our 
democratic values are worth more than what corporations can 
pay. In the Citizens United dissenting opinion Justice Stevens 
wrote, ``corporations have no consciences, no beliefs, no 
feelings, no thoughts, no desires. Corporations help structure 
and facilitate the activities of human beings, to be sure, and 
their `personhood' often serves as useful legal fiction. But 
they are not themselves members of `We the People' by whom and 
for whom our Constitution was established.''
    As members of Congress, we are here to serve the people, 
not to serve corporations. We are here to ensure that our 
democracy is sustained by We the People, and that we in 
Congress, the elected members, elected by our constituents, 
must listen only to We the People.
    I look forward to working with my colleagues on this 
committee to reverse the harmful impacts of Citizens United and 
advance the goals set forth in this amendment, and I thank the 
movement around the country that has forced us to take on this 
issue.
    I yield back.
    [The statement of Ms. Jayapal follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
      
    Mr. Cohen. Thank you, Ms. Jayapal, for your representation 
and your testimony.
    I thank the first panel for their testimony and their work, 
and dismiss them and call up our second panel of witnesses.
    Can those of you in the back hear me any better, or is it 
still a problem? Good. Thank you.
    Normally I do not have the witnesses sworn in or affirmed, 
because I think that we shouldn't put people in that particular 
position, and it is against the law, Section 1001 of Title 18 
of the U.S. Code, to testify before Congress in an untruthful 
manner which could subject you to penalties and fines. I think 
that is sufficient.
    Mr. Johnson, who unfortunately is not with us now, is a 
firm proponent of having the oath administered, and I had 
thought that people would always tell the truth knowing that 
they are subject to fine or imprisonment, or at least fine, to 
lie to Congress.
    But yesterday Mitt Romney, what was an historic day in 
Congress, showed me that at least one person, at least one 
person, because they swore their oath to God, it made a 
difference. So in honor of Mitt Romney and showing that one 
person truly does have concern about not giving false witness 
because they swore an oath to God, I am going to ask the 
witnesses to stand and be sworn in.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct to the best 
of your knowledge, information, and belief, so help you God?
    Thank you.
    Let the record show the witnesses have answered in the 
affirmative.
    Our first witness is Ellen Weintraub. Ms. Weintraub is the 
Commissioner of the Federal Election Commission, a position she 
has held since 2002. She served as Chair of the FEC on three 
different occasions, most recently in 2019. She briefly served 
as Counsel to the House Ethics Committee.
    Commissioner Weintraub received her J.D. from Harvard Law 
School and her B.A. from Yale.
    Ms. Weintraub, you are recognized for 5 minutes. You know 
about the 5 minutes, the red light, the green light.
    You are recognized.

TESTIMONIES OF ELLEN WEINTRAUB, COMMISSIONER, FEDERAL ELECTION 
COMMISSION; ROBERT WEISSMAN, PRESIDENT, PUBLIC CITIZEN; BRADLEY 
  SMITH, JOSIAH H. BLACKMORE II/SHIRLEY M. NAULT PROFESSOR OF 
  LAW, CAPITAL UNIVERSITY LAW SCHOOL; CIARA TORRES-SPELLISCY, 
      PROFESSOR OF LAW, STETSON UNIVERSITY COLLEGE OF LAW

                  TESTIMONY OF ELLEN WEINTRAUB

    Ms. Weintraub. Chair Cohen, Ranking Member Johnson, and 
members of the subcommittee, thank you for inviting me to 
testify today. It is a pleasure to be part of such a 
distinguished panel, and a particular pleasure for me to appear 
with my old friend and former colleague, Brad Smith. I 
compliment the minority on selecting such an esteemed panelist.
    In the decade since Citizens United, according to the 
Center for Responsive Politics, we have seen $1.2 billion given 
to candidates, parties, and outside spending groups from just 
the top 10 contributors. We have not seen who is behind the 
nearly $1 billion that has been spent by dark money groups that 
keep their donors secret. And there has been $4.5 billion in 
non-party outside spending, 12 times as much per year as in the 
20 years before Citizens United.
    This spending flocks to the most competitive races, where 
it has the biggest impact, especially where control of a 
chamber is up for grabs. From 2000 to 2006, pre-Citizens 
United, not surprisingly, candidate spending exceeded outside 
spending in the top 10 most expensive Senate races in every 
single race. But by 2014, after Citizens United, outside 
spending topped candidate spending in seven of those top 10 
races. And in those races, the outside groups spent an average 
of 80 percent more than the candidates.
    But even in the face of Citizens United, there are steps 
that Congress can take right now to reduce the risk of 
corruption, to address important issues like coordination, 
coercion, disclosure, and foreign national spending. Some of 
these solutions are well-known to members of this subcommittee: 
H.R. 1, which passed the House in 2019, contained many useful 
reform proposals, requiring better disclosure of large donors 
to political committees; clarifying that the foreign national 
political spending ban applies to ballot issues; creating a 
small-dollar matching public financing program; creating a 
Democracy Vouchers pilot program; reforming the financing of 
inaugural committees; requiring shell companies to disclose 
their beneficial owners; extending electioneering 
communications disclosure requirements to online ads; and 
requiring a public file of online political ads.
    One reform that would aid in the important effort to 
exclude foreign money from our system was in an earlier version 
of H.R. 1. That provision would have required corporations that 
are spending in politics to certify that they are complying 
with the foreign national political spending ban. I urge you to 
restore it if the bill is introduced in a future Congress.
    The Supreme Court, in upholding contribution limits in 
Buckley v. Valeo, recognized ``the reality or appearance of 
corruption inherent in a system permitting unlimited financial 
contributions, even when the identities of the contributors and 
the amounts of their contributions are fully disclosed.'' But 
contribution limits have been undermined by joint fundraising 
committees that collect upwards of half-a-million dollars per 
donor; by so-called cromnibus accounts, which allow 
contributors to give to the national party committees more than 
$1.5 million per person per election cycle; and by outdated 
coordination standards that cannot bear the weight that Super 
PACs have placed on them.
    Super PACs are premised on the fiction that they are 
entirely independent of candidates, and therefore the money 
raised by Super PACs supposedly cannot corrupt those 
candidates. In reality, candidates appear as special guests at 
fundraisers for the so-called ``independent'' Super PACs 
supporting them.
    Super PACs are established by close family or current or 
former staff of the candidate. Candidates publicly announce 
which Super PACs they favor and encourage people to support it. 
Candidates post videos of themselves for the apparent purpose 
of inviting Super PACs to use it in ads.
    Congress should adopt new law making crystal clear that if 
we are going to have independent spending groups, they must be 
truly independent of the candidates.
    In empowering corporations, Citizens United created 
opportunities for unscrupulous employers to pressure their 
employees to engage in political activity on behalf of 
management's favorite candidates. Congress should adopt new 
laws to protect employees from political coercion.
    The proliferation of Super PACs in the post-Citizens United 
era has also given rise to new opportunities for con artists. 
Scam PACs have become an increasing problem that calls out for 
strengthening the anti-fraud provisions.
    The chief concern when Citizens United unleashed corporate 
political spending was that Fortune 1000 companies would use 
their enormous financial might to dominate political discourse. 
That has not been the biggest impact. Instead, it is the 
billionaire mega-donors whose role has been super-charged in 
the Super PAC era. The top 1 percent of Super PAC donors 
accounted for an astonishing 96 percent of funding to these 
groups in 2018. No statute, no regulation, no FEC advisory 
opinion can touch this problem. Only a judicial or 
constitutional reversal of Citizens United can get at the root 
of it.
    And while I know this is not within the House's purview, 
the FEC could really use some new commissioners to restore our 
quorum and let us do our job. So, tell your friends.
    Again, thank you for inviting me here today, and I look 
forward to your questions.
    [The statement of Ms. Weintraub follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
      
    Mr. Cohen. You are welcome. And thank you, Ms. Weintraub, 
for your testimony.
    Our second witness is Mr. Robert Weissman. Mr. Weissman is 
President of Public Citizen. He is an expert on corporate and 
government accountability, including the effect of money in 
politics. Prior to joining Public Citizen, he worked as 
Director of the Corporate Accountability Organization of 
Central Action from 1995 to 2009. From 1989 to 2009, he was 
Editor of Multinational Monitor, a magazine that tracks 
multinational corporations.
    Mr. Weissman received his J.D. from Harvard magna cum 
laude. He is recognized now for 5 minutes.
    Where did you get your undergraduate degree?
    Mr. Weissman. Harvard.
    Mr. Cohen. You had a long lease.

                  TESTIMONY OF ROBERT WEISSMAN

    Mr. Weissman. Thank you very much, Chairman Cohen and 
members of the committee.
    Citizens United is the emblematic decision of the new 
Gilded Age in which we live. It represents, it ratifies, and it 
worsens the extreme wealth and income inequality that defines 
our current societal situation. It has empowered a very tiny 
number of people to have a disproportionate, a wildly 
disproportionate influence over who runs for office, who wins 
elections, what candidates say, what candidates don't say, and 
what officeholders do, what officeholders are even permitted to 
say and to be taken seriously when in office.
    When I say a small number of people, I mean a very small 
number of people. Twenty-five individuals are responsible for 
half of all Super PAC contributions made since the Citizens 
United decision was handed down, 25 individuals; .01 percent of 
donors, .01 percent of donors, are responsible for roughly 40 
percent of all campaign contributions now.
    There is, of course, an important race component of this as 
well, given the tracking of race and wealth in our country. 
Almost all the top 100 Super PAC donors are white. Our analysis 
shows the majority of white zip codes contribute 20 times the 
amount to campaigns as majority minority zip codes do. It is 
not an abstract issue. It is a deeply-felt issue. It touches 
every single issue this Congress and our administration 
undertake.
    To take one example, as mentioned by Representative Deutch, 
the American people overwhelmingly want action on drug pricing. 
President Trump himself just called for action on drug pricing. 
Ninety percent of people want aggressive action to deal with 
drug pricing. They have wanted it for a long time. It hasn't 
happened. It is no mystery why. It is due to the 
disproportionate political influence of Big Pharma.
    To take another example, we face an existential crisis for 
humanity in catastrophic climate change. This Congress has been 
unable to do anything about it. Why? This traces directly back 
to the political power of the dirty energy industries.
    This is true for issue after issue, whether Wall Street 
reform or food safety or living wage or commonsense gun safety, 
expanded Social Security, protecting consumer privacy, 
proposing appropriate corporate taxes, dealing with Pentagon 
spending, protecting clean water. Almost anything you name is 
touched by this issue, and it traces back to the 
disproportionate influence of big money in our elections where 
the agenda that the American people want overwhelmingly is not 
furthered by this Congress because of the political power of 
these large entities.
    It doesn't have to be so. Citizens United is rooted in a 
series of very significant flaws both in constitutional terms, 
historic terms, and commonsense terms. It is not just Citizens 
United, it is the entirety of modern campaign finance 
jurisprudence.
    Citizens United itself famously rests on the illogical 
assertion that corporations have the same rights to influence 
election outcomes as do human beings. There are a series of 
other flawed notions that underlay the decision as well, 
including that spending on advertising should be given the same 
rights of political speech as speech itself. It required the 
Supreme Court to contort itself to come up with a very narrow 
conception of what amounts to corruption, nothing other than 
bribery effectively, yet they even understood how quid-pro-quo 
corruption itself would work. They adopted a needlessly cramped 
understanding of what corruption is, excluding concerns about 
excessive influence and access. And they ignored, most 
importantly, the systemic effects of their decision in modern 
campaign finance jurisprudence to empower the super-rich and 
distort the political system and deny the political equality 
that is at the core of what American democracy is all about.
    Polling shows that Americans are furious at the state of 
affairs. They are outraged by what they perceive to be 
widespread corruption, and they overwhelmingly support 
fundamental campaign finance reform. Indeed, democratic 
legitimacy itself is at stake. Democratic legitimacy itself is 
at stake.
    The Congress in the face of this must take action. H.R. 1 
is a vitally important step. This House has passed it. The 
Senate should get on with the business of doing the same thing. 
But H.R. 1 is not enough. It cannot deal with the problem of 
outside spending. It cannot deal with the problem of self-
financing. And the current trend of Supreme Court jurisprudence 
suggests that even elements of H.R. 1 itself might be 
threatened in the future by an endlessly creative Supreme Court 
majority.
    There is overwhelming support for a constitutional 
amendment among the American people to overturn Citizens United 
and related decisions. It is not supported among Democrats 
only. As Representative Deutch said, it crosses party lines. It 
is felt throughout the country. It is overwhelming. It is 
reflected in 20 states that have passed resolutions calling for 
a constitutional amendment, more than 800 cities and towns that 
have called for a constitutional amendment. I can't strongly 
enough urge this Congress now to take action to pass H.J. Res. 
2 and send it to the states for ratification to restore our 
democracy.
    Thank you very much.
    [The statement of Mr. Weissman follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
      
    Mr. Cohen. Thank you, Mr. Weissman.
    Our next witness is Mr. Bradley Smith. Rarely is a witness 
thanked for coming and complimented by the other side, so you 
are special.
    Bradley Smith holds the Josiah H. Blackmore II/Shirley M. 
Nault Professor of Law position at Capital University Law 
School. He is one of the nation's leading authorities on 
election law and campaign finance, and co-author of ``Voting 
Rights and Election Law,'' a leading casebook in the field. He 
previously served for five years as a member of the FEC and 
Chair of the Commission in 2004.
    He received his J.D. cum laude from Harvard Law School.
    Do any of you ever get accepted at another school? 
[Laughter.]
    And his B.A. from Kalamazoo College.
    Professor, you are recognized.

                   TESTIMONY OF BRADLEY SMITH

    Mr. Smith. Thank you, Mr. Chairman and members of the 
committee.
    I guess I would begin simply by saying that repeatedly 
calling a decision a disaster doesn't really make it so, and we 
haven't really heard much evidence that actually ties the idea 
that people can't enact their preferences to anything that has 
come about from Citizens United.
    In fact, Citizens United has had a number of beneficial 
effects on American society. We were told that it would lead to 
an oligarchy, an entrenched group of people who would strangle 
American democracy. And yet instead, in the years since 
Citizens United, politics in America has been more fluid. 
Congressional incumbent reelection rates have declined. That 
may not be good news for all of you, but it cuts against 
certainly the argument that has been made against Citizens 
United.
    We have seen that either Congress or the presidency has 
changed hands in four of the five election cycles since 
Citizens United. There are more newcomers in Congress by about 
40 percent each time around. That may be good news for some of 
you who are among those newcomers.
    Outsiders such as the President himself, such as at least a 
contender to the President in the general election, Senator 
Sanders, people such as Representative Ocasio-Cortez or former 
Representative Braut have been complete outsiders who have 
dramatically shaken up the system and defeated entrenched 
insiders, typically by spending far less money.
    We find that the trend of more women being elected to 
office has continued, and there are other things that are just 
kind of interesting. For example, the rate of spending increase 
in American politics has actually declined considerably since 
Citizens United. I don't think that is because of Citizens 
United, but it certainly cuts against the notion that this is 
some disaster leading to this massive explosion in spending. It 
is just not really so.
    We find that most money in politics, dramatically so, still 
comes from individuals in amounts limited under the law. The 
vast majority still comes in limited individual contributions. 
But corporate contributions, which make up at most--I don't 
know how we want to calculate it and what we do with this small 
percentage of money, about 2 or 3 percent that is so-called 
``dark money,'' how much we think that might be corporate 
money. If we take the worst case, so to speak, the highest case 
scenario, we are talking about 5 percent of spending, maybe 6 
percent coming from for-profit corporations. That is hardly 
drowning anybody out. And, in fact, it is a good thing. The 
American people have a right to hear those voices, they should 
hear those voices, and polling data shows that they actually 
want to hear those voices and believe that business has a right 
to comment on issues of concern.
    Finally, it is important to remember what the case was all 
about. It was the position of the United States Government that 
it could censor a book or a movie if that book or movie was at 
any stage produced or distributed with corporate funds, like 
every other book or movie you have ever bought on Amazon or in 
a book store or seen in a theater or seen on cable or streaming 
television. That was the position of the government, that you 
could censor this. In that respect, the position that four 
members of the Supreme Court actually endorsed that is the 
truly radical view that we saw in Citizens United.
    We have heard a lot in both the opening panel and from my 
colleagues here about all these policy initiatives that have 
been blocked, and it is curious to me that they all happen to 
be policy preferences of the American political left. There is 
nothing wrong with the political left having policy 
preferences, but the idea that you are not able to enact your 
policy preferences unless you can kneecap people who oppose 
those is hardly something that the First Amendment endorses. 
Indeed, that is why we have a First Amendment, so you can't 
kneecap your opponents in order to shut them up so that you can 
pass whatever policies you want.
    I find it interesting. We had the NRA used as an example. 
The NRA has 3 to 5 million members. These are U.S. citizens, 
people who are out there, and they care intensely about these 
issues. They talk to their neighbors and they work on these 
issues, and that is why these things sometimes don't come 
through.
    I remind you, it is not impossible to pass legislation. 
Medicare, Social Security, the Voting Rights Act, the Civil 
Rights Act, these things all passed when contributions even 
from individuals were unlimited and almost never reported 
because there was no enforcement mechanism even on reporting.
    So I think when we look at things more rationally, we see 
that while the American people certainly don't like Citizens 
United when they are asked specific questions like ``Do you 
think corporations should be able to speak in elections?'', 
when we ask ``Do you think Citizens United should have been 
able to show its movie?'', we find that majorities, in some 
cases substantial majorities, do, in fact, favor those 
positions.
    So again, I would say Citizens United has been good for the 
United States, but mostly it is really good for the First 
Amendment precisely because it does what the First Amendment is 
supposed to do. It is a check.
    Thank you.
    [The statement of Mr. Smith follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
       
    Mr. Cohen. Thank you, sir.
    Finally, our last witness is Ms. Ciara Spelliscy. She is a 
Professor of Law at Stetson College of Law in Florida. She 
teaches election law, corporate governance, business entities, 
and constitutional law. Prior to joining Stetson's faculty she 
was Counsel to the Democracy Program at the Brennan Center for 
Justice at NYU School of Law, where she provided guidance on 
the issue of money in politics. She was a staffer for Richard 
Durbin up here on the Hill.
    She received her J.D. from Columbia University and her A.B. 
from Harvard.
    Professor, you are recognized for 5 minutes.

              TESTIMONY OF CIARA TORRES-SPELLISCY

    Ms. Torres-Spelliscy. Thank you. Good morning. My name is 
Ciara Torres-Spelliscy. I live in a swing district in the swing 
state of Florida. My law students are Republicans, Democrats, 
and Independents, and I am here to tell you that American 
voters are worried about the state of our elections after the 
attacks on our democracy in 2016.
    What American voters see from Congress and from the Federal 
Election Commission is not reassuring. It looks like they 
cannot get out of their own way to protect the integrity of 
American elections. This was true before 2016, but after 2016 
it is nothing short of excruciating to watch Congress and the 
FEC not act in the face of eager enemies.
    Now without a quorum, the FEC is more powerless than ever 
at a time when the 2020 election already has candidate debates, 
large-scale rallies, primary votes, and big political 
fundraising to the tune of over $2 billion already.
    Nearly a decade ago, I told Congress right after Citizens 
United that I could predict two problems with inviting 
corporate money into our democracy: a lack of shareholder 
consent, and a lack of transparency. And I wish my prediction 
had not come true, but it did.
    Today I will focus on the lack of transparency, which is 
better known as the dark money problem. Dark money has 
blanketed our elections since 2008. To date, over a billion 
dollars in dark money has been spent in Federal elections 
alone. With dark money you can see the public dance, but you 
can't see the puppeteer. And after the 2016 election, Americans 
really deserve to know whether any of those puppeteers were 
foreign nationals or foreign governments.
    As I note in my book, Political Brands, we know from the 
redacted Mueller Report, as well as indictments of Russians by 
the Special Counsel's Office, that Russians were trying to 
influence the 2016 election, including by purchasing political 
ads on Facebook with rubles. In nearly any other area of the 
law, what happens with dark money would be akin to money 
laundering. But in election law, most dark money is actually 
legal.
    The FEC is the primary regulator with the ability to stop 
dark money, and instead they have basically done nothing. The 
FEC could have started rulemakings to end dark money even 
before Citizens United, because the problem appeared before 
2010. The typical way that dark money is created is by spending 
through an opaque non-profit, like a 501(c)(4) or a 501(c)(6), 
and the porous rules at the FEC have allowed donors to remain 
anonymous. The only change that has come was at the order of a 
Federal court in CREW v. FEC.
    One thing American voters still do not know is whether dark 
money is hiding illegal foreign money. And because the FEC has 
largely been stuck in deadlocks, even investigations or 
punishment for foreign spending has largely been lacking.
    As I discussed in my first book, Corporate Citizen, in a 
particularly colorful episode, a foreign pornographer spent in 
a Los Angeles election in 2012. This spending violated 
longstanding bans on foreign money in American elections, 
whether they are Federal, state, or local. But the FEC would 
not enforce the law against the foreign pornographer. If the 
FEC is not going to stand up to a foreign pornographer, it begs 
the question who would they stand up against?
    This general lack of enforcement against foreign spending 
has sent a terrible message to anyone who was paying attention. 
The message is that campaign finance laws are basically not 
being enforced at the Federal level by the FEC, and as American 
voters face 2020, the Department of Justice is the only cop 
left on the beat. But DOJ can only enforce willful and 
egregious violations of law. This leaves a vast wasteland of 
unenforced campaign finance laws where cheating and corner-
cutting is all but invited.
    And this happens as American voters are asked to choose the 
next president, all of the members of the House, a third of the 
Senate, 11 governors, and 45 state legislatures.
    Given the experience of 2016 with Russians breaking 
American election laws with abandon, the lesson for North 
Korea, China, Iran, or any other hostile nation is that 
interference in our elections can be done with little 
consequence.
    So the FEC needs a full complement of commissioners so that 
they can at least act. And if you are serious about reform, you 
need to add an additional seat to the FEC so that, like every 
other Federal agency, they have an odd number of commissioners 
so that they can enforce the law instead of ending in a 
deadlock.
    And you can improve disclosure by either changing election 
laws or changing securities laws, or possibly both. And, of 
course, you could expand what Congress can constitutionally 
regulate if the Constitution is amended to address Citizens 
United and other campaign finance cases like Buckley.
    But in our constitutional system, the fate of the nation is 
in your hands. Thank you.
    [The statement of Ms. Torres-Spelliscy follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    Mr. Cohen. Thank you very much.
    We will now have a round of questioning by the members of 
the committee, and I will start with myself. We have 5 minutes 
as well.
    Mr. Weissman, you have a lot of history in corporate 
involvement. Give me a little primer on corporations and their 
involvement in politics and their ability to spend money. Have 
they always been able to spend money in politics? Is it unique 
to America? Do different countries allow them to spend money in 
politics? And what is the growth or diminution of that?
    Mr. Weissman. I think that the statement that was correctly 
read from Justice Scalia in his decision that the original text 
permits corporations to spend, the original text of the First 
Amendment permits corporations to spend money, is inaccurate. I 
think Justice Stevens gave a much richer and more correct 
reading. The Framers never intended corporations to spend 
money, and there are a lot of reasons to think that they 
explicitly did not want them to. Justice Scalia's only 
argument, really, is the lack of evidence, not that there was 
affirmative evidence to enable corporations to spend money.
    As you do know, we do have a history of corporations 
spending money. It varies by state. In the original Gilded Age, 
we had corporations and the robber barons overwhelming 
elections and really running as party bosses. There were 
reforms put in place to curb that activity, and those reforms 
worked relatively effectively throughout much of the 20th 
century.
    Corporate spending itself really had not been given--there 
had been a series of restrictions on corporate spending, and 
the Supreme Court itself in an important decision, Austin, had 
recognized that the unique nature of corporations, their unique 
ability to gather enormous sums meant it made a lot of sense 
for the Congress or localities and states to have the ability 
to restrict corporate outside spending. That was thrown to the 
wind in Citizens United.
    Mr. Smith is correct, we have not seen the torrents that 
were anticipated. We calculate that about half-a-billion 
dollars have been spent by corporations since the Citizens 
United decision was handed down, not a small amount, much of it 
in really significant ways in local and state elections, as 
well as in referenda. We see corporations increasingly exerting 
an overwhelming effect with great harm. That is probably more 
than I can do right now to give you a cross-cultural story 
about it.
    But Citizens United really was a break from precedent, both 
historic jurisprudential precedent, but also from the previous 
100 years of American experience.
    Mr. Cohen. You expressed how much money has been put into 
campaigns through these Super PACs since Citizens United, the 
$7 billion figure I think George mentioned as distinguished 
from the $700 billion figure, whatever, the previous 20 years. 
Is there any data you have to show if that has affected 
Americans' belief that their government is not responsible to 
them?
    Mr. Weissman. In my written testimony I have extensive 
information, and the polling on this is really overwhelming, 
about Americans' deep concern with corruption. Asked by one 
pollster to rate 22 different attributes of American life, the 
campaign spending system comes in last. Only 20 percent of 
people are satisfied in that poll with the current campaign 
system. That actually is a pretty high number compared to other 
pollsters.
    The New York Times found that with near unanimity--their 
quote--Americans want to replace the current finance system. 
The only dispute among Americans they found was whether they 
believe that the current system needs fundamental change or 
should be completely rebuilt. It is hard to know which one is 
the more fundamental thing they are trying to get at.
    But we also see very deep concerns about corruption 
generally and dissatisfaction with American government, and 
really I think a fear that calls into question whether the 
government works for them. They are not wrong being skeptical 
about that.
    Mr. Cohen. Let me ask you, because I only have a little 
time left. You said there are 25 top individuals. Can you give 
me the top 10 names?
    Mr. Weissman. Well, the two top names now are Sheldon 
Adelson and Michael Bloomberg. The top 10 I can't give you off 
the top of my head.
    Mr. Cohen. Thank you.
    Ms. Jayapal's bill is different from Mr. Deutch's. Mr. 
Deutch's strictly deals with campaign finance, and hers deals 
with other issues. I can see a theory that corporations--I hate 
to say it because I don't even like the word anymore, but a 
Dershowitz theory that if it is good for the corporation and it 
is good for the stockholders, then they have a duty to see that 
the business goes further and whatever, putting money into 
politics that might affect their businesses. But how can you 
say that a corporation can express a religious opinion, like in 
Hobby Lobby? Is there any basis to think that a corporation 
should have a right? They are formed partially so they don't 
have to be responsible for liability, immune from liability. 
Why should they be able to have a right on what insurance 
covers?
    Mr. Weissman. Well, I agree and support Representative 
Jayapal's bill. It seems extraordinary to me. But to be clear, 
that was what the Supreme Court held in Citizens United as 
well. If you read the majority's decision, there is a lot of 
concern about discriminated-against minorities not having the 
right to express their feelings, hopes, and aspirations. The 
discriminated-against minorities they are discussing in the 
majority decision are corporations. That is the people they 
thought were being discriminated against in not having the 
ability to express what they feel.
    As you say, they don't have feelings, as Justice Stevens 
expressed in great detail. They don't have feelings, they don't 
hurt, they don't care about the future, they care about profit. 
That was lost entirely in the Supreme Court's decision there, 
and as well as in the Hobby Lobby case and others.
    Mr. Cohen. Thank you, sir.
    Mr. Armstrong is sitting in as ranking member, and I will 
recognize Mr. Armstrong now for 5 minutes.
    Mr. Armstrong. Thank you, Mr. Chair.
    Corporations in my town sponsor baseball fields, youth 
teams, charities, other things. I am incredibly proud of the 
corporate citizens that exist, and without them we would not 
have a lot of the services that exist in my local community, 
and I think that is very accurate with small towns all across 
the country.
    Professor Smith, Citizens United not only allowed 
corporations to spend, but unions too. Is that correct?
    Mr. Smith. Yes.
    Mr. Armstrong. And did the AFL-CIO file a brief in the 
lawsuit?
    Mr. Smith. Yes, it did.
    Mr. Armstrong. It has been suggested by Commissioner 
Weintraub that the existence of any foreign shareholder in a 
corporation--the one-drop rule--should prohibit that 
corporation from making political expenditures. How would that 
affect unions?
    Mr. Smith. Well, there has been a certain effort to whip 
up--I will be very blunt here--I think a kind of shameful 
effort to whip up hysteria against this idea that foreigners 
are coming in to influence our elections. But it is worth 
noting that the AFL-CIO, for example, has at least two dozen 
affiliates that have the term ``international'' right in their 
name, plus many other affiliates that take international 
members as well, and those all pay dues to the AFL-CIO. AFSCME 
has Canadian affiliates and so on. So, yes, to adopt that kind 
of extreme position would essentially shut labor unions out of 
political discussion as well.
    Mr. Armstrong. Do you know how many?
    Mr. Smith. How many members?
    Mr. Armstrong. How many unions?
    Mr. Smith. I don't know the total. Again, AFSCME has at 
least 24 affiliates, at least two dozen affiliates. I remember 
calculating it a few years back. It was like 29 or 30 that just 
had the term ``international'' in the name. In terms of the 
number who have international members, it could be larger.
    Mr. Armstrong. Thank you.
    Do Super PACs disclose their donors?
    Mr. Smith. Super PACs do disclose their donors, the same as 
any other PAC that has any contributor in it who contributes in 
the aggregate over $200 is disclosed.
    Mr. Armstrong. And did Citizens United change any 
disclosure laws?
    Mr. Smith. No, it did not. Those laws were upheld, in fact. 
Some of those laws were challenged and they were upheld in the 
decision.
    Mr. Armstrong. I will go to my next question. You say in 
your prepared testimony that dark money is typically around 3.5 
percent of total spending. How do we know that if it is not 
disclosed?
    Mr. Smith. Sure, that is a good question. You know, we keep 
hearing these huge numbers thrown out. ``Oh, it has been $100 
billion or $1 billion,'' or whatever. That sounds like a lot. 
But if we think about it, it is 2.5 or 3 or 3.5 percent. That 
doesn't sound quite so threatening. And we know that sometimes 
people say, well, we don't know how much there is because it is 
``dark.'' But, in fact, we do, because spenders have to report 
all that they spend. So we can look at the total amounts that 
are spent. All that dark money means is that an organization 
doesn't have to report the names of each and every donor to 
that organization.
    So even if we assumed all of that were dark money, and some 
of it is not--many of these spenders do disclose donors--we get 
up to that small figure that has been consistently under 5 
percent. And we also find that many of those spenders, by the 
way, are very well known to the public. For example, leading 
dark money groups include groups like the Environmental Defense 
Fund, Planned Parenthood Action Fund, NAACP Action Fund, the 
U.S. Chamber of Commerce, the National Association of Realtors. 
I just don't think that most Americans are sitting around 
going, ``The National Association of Realtors, what are they 
about?'' I think most Americans understand the points of view 
that are being represented in those cases.
    Mr. Armstrong. After Citizens United, are there still 
constitutional limits on what disclosures can be mandated?
    Mr. Smith. There are. Citizens United did uphold existing 
law, but too many people have suggested that gives a green 
light to any kind of disclosure. In Buckley v. Valeo, the 
landmark campaign finance case, and also in numerous other 
cases over the years, McIntyre v. Ohio Election Commission, in 
cases outside of the direct political arena such as Thomas v. 
Collins, the Supreme Court has limited the ability of the 
government to force disclosure of memberships as something that 
infringes of First Amendment rights of association, petition, 
and speech.
    Mr. Armstrong. Where does the majority of speech about 
candidate spending on campaign ads come from, both before and 
after Citizens United?
    Mr. Smith. The vast majority, as I indicated in my opening 
comments, does indeed come from individual contributions to 
campaigns, and also to PACs. Some people seem to think that 
PACs are corporate money, but they are also individual 
contributions. It is better to say that a corporation sponsors 
a PAC into which employee shareholders can contribute. But 
again, that is individual money and not money from the 
corporate treasury.
    Mr. Armstrong. And what role do you think Citizens United 
plays in the trend of billionaire candidates like President 
Trump in the last election, and in this one Michael Bloomberg 
and Tom Steyer, self-funding candidates in expensive campaigns?
    Mr. Smith. Well, one thing is that, of course, that was 
authorized. Individuals prior to Citizens United, individuals 
had the right to spend as much as they wanted. So that really 
didn't change by Citizens United. Given the short time, I would 
just say that I think we can see that it hasn't really worked. 
I mean, Mr. Steyer spent a great deal of money and doesn't have 
very much to show for it. You still have to have a winning 
message, and all that money does is let the American people 
hear, and that is a good thing. The American people have a 
right to hear. But it doesn't cause them in some way to vote.
    Mr. Armstrong. With that, I will be interested to see if 
Mr. Bloomberg is still second now that he is actually running 
for president. That will be interesting to follow.
    Thank you, Mr. Chair.
    Mr. Cohen. Thank you, sir.
    Mr. Raskin, you are recognized for 5 minutes.
    Mr. Raskin. Mr. Chairman, thank you.
    Welcome to all of our distinguished witnesses today, and 
all of the natural persons who have come to participate in 
today's proceeding.
    The first thing that I want to point out is that Citizens 
United did not enlarge the free speech rights of any citizen in 
the United States, not even CEOs or corporate executives who 
could spend already whatever they wanted as independent 
expenditures under Buckley v. Valeo. All that Citizens United 
did was to transform every corporate treasury in America into a 
potential political slush fund and thereby authorize and 
empower the CEOs of the corporations to spend whatever they 
wanted of other people's money in the corporate treasuries in 
political campaigns.
    This declaration did transform, to my understanding, two 
centuries of jurisprudential understanding of what a 
corporation is. You can go back to Chief Justice John 
Marshall's opinion in 1819 in the Dartmouth College v. Woodward 
case, where he said that a corporation is an artificial entity, 
invisible, intangible, existing only in contemplation of law, 
possessing only the rights conferred upon it by the state 
legislature and not the constitutional rights of the people. 
And yet the Roberts court in Citizens United endowed private 
corporations, these invisible, intangible, artificial entities, 
with the political rights of the people, essentially arming the 
CEOs with the power to spend other people's money, as Justice 
Brandeis termed it, in political campaigns. And for all of the 
reasons stated by the witnesses, that has occasioned a dramatic 
change in the character and the quality of American politics.
    Now, I favor a constitutional amendment for the same reason 
that I support all the constitutional amendments that have 
reversed reactionary jurisprudence by the Supreme Court. That 
is how we got women's suffrage in the 19th Amendment which 
toppled the Supreme Court's decision in Minor v. Happersett, 
saying that women did not get the right under the 14th or 15th 
Amendment. The 14th Amendment, and the 15th and 13th, of 
course, reversed the Supreme Court's reactionary decision in 
the Dred Scott case before the Civil War. It is how we got the 
26th Amendment. It is how we got the 24th Amendment. Most of 
our amendments have been democracy-deepening, suffrage-
enlarging, democracy-perfecting amendments where the people 
have to overturn pinched and reactionary understandings of the 
Supreme Court.
    But until we get there, I wanted to take up an issue that 
comes out of Citizens United, because Justice Kennedy's conceit 
in his majority opinion is that the corporations are speaking 
for the shareholders, the corporations derive their First 
Amendment political rights from the First Amendment rights of 
the human beings who actually own stock in the corporation. But 
there is a problem, which is that the corporations are spending 
all of this money and putting money into political campaigns 
and dark money channels and so on without ever consulting the 
shareholders themselves; and, in fact, in most cases not even 
notifying the shareholders. And they have been doing everything 
in their power to fight in both the SEC and the FEC efforts to 
get just notice to people of how their money in the corporation 
is being spent.
    I introduced a measure which became part of H.R. 1 which I 
call Shareholders United. Shareholders United says that no 
corporation shall be allowed to spend any money in politics 
until you have first notified the shareholders of the proposal 
and they are authorized in advance by majority vote that their 
money be spent in a political campaign.
    I am wondering if each of you, if you could go quickly--and 
forgive us because we have our 5-minute stricture here. But 
would you agree that as long as we are living under the regime 
of Citizens United, that the shareholders should have the right 
to be apprised of proposed political spending by corporations 
of their money, and they should have the right to vote on it? I 
know there is an argument that there should have to be a 100 
percent vote, but at the very least there should be a majority 
vote before the corporation goes ahead and spends their money.
    And I could start with you, Madam Chair.
    Ms. Weintraub. Yes.
    Mr. Weissman. Absolutely. And as you know, more than a 
million people have requested the SEC to issue a rule to do 
exactly what you are suggesting.
    Mr. Raskin. Professor Smith, do you agree?
    Mr. Smith. No. This is a complex question of corporate 
governance and there are many things corporations do, including 
things that affect politics, that they don't require 
shareholder approval for.
    Mr. Raskin. Okay. And Professor Spelliscy?
    Ms. Torres-Spelliscy. I wholeheartedly endorse your bill. I 
think shareholders should have the right to consent to 
corporate political spending, and that would bring American law 
in line with the U.K., where shareholders in U.K. companies do 
have the right to pre-approve corporate political spending.
    Mr. Raskin. Okay.
    Mr. Cohen. Thank you, Mr. Raskin.
    Mr. Raskin. I yield back, Mr. Chairman.
    Mr. Cohen. Mr. Cline, you are recognized for 5 minutes.
    Mr. Cline. Thank you, Mr. Chairman, appreciate it.
    I would note that one of the things that we have that the 
U.K. doesn't have is the First Amendment.
    The majority in Citizens United maintain that political 
speech is indispensable to a democracy, which is no less true 
because the speech comes from a corporation. The majority also 
held that the BCRA's disclosure requirements as applied to the 
movie were constitutional, reasoning that disclosure is 
justified by a governmental interest in providing the 
electorate with information about election-related spending 
resources.
    The Court also upheld the disclosure requirements for 
political advertising sponsors and upheld the ban on direct 
contributions to candidates from corporations and unions.
    What it did not do is overturn centuries of law. Rather, it 
overturned portions of McCain-Feingold which had become law in 
2002, another law that went into effect in the 1940s, and two 
Supreme Court decisions in whole or in part, Austin v. Michigan 
Chamber of Commerce from 1990 and McConnell v. FEC from 2003.
    So I would ask Professor Smith, in your prepared testimony 
you quote part of the oral argument in Citizens United in which 
the government argues that as a matter of constitutional law it 
can ban books or movies if corporate resources are used in 
their production or distribution. Is that correct?
    Mr. Smith. Yes.
    Mr. Cline. And can we talk about whether this is really a 
danger?
    Mr. Smith. Yes. Citizens United was rescheduled after that 
first oral argument, and in the second oral argument then-
Solicitor General Kagan argued, well, we would never actually 
do that. But, in fact, the FEC from time to time has done that. 
In a little-noticed 1987 advisory opinion, the FEC informed 
U.S. News and World Report that their publication of a book 
would not be exempt under the press exemption because it was 
not a periodical, that it would therefore be potentially 
illegal to distribute a book.
    Now, maybe that wasn't noticed so much because in the end 
U.S. News wasn't really going to do that. It was dismissed on 
other grounds. But the FEC made that point.
    Just in the last decade, in 5642, the FEC spent almost two 
years investigating publication and distribution of a book, one 
that was written by George Soros, and it was eventually 
dismissed. But it should be noted that the General Counsel in 
that case recommended that the FEC find a violation due to 
distribution of a book about policy, a book called The Bubble 
of American Supremacy, because it included such radical 
statements as ``It is not enough to defeat President Bush at 
the polls,'' and ``We can regain the moral high ground only by 
rejecting President Bush when he stands for reelection,'' and 
that was considered enough that that book could have been 
potentially banned.
    So I do think it is a real issue.
    I would also note that when Justice Kagan, or now-Justice 
Kagan, then-Solicitor General Kagan, was asked what about 
pamphlets, she said pamphlets we ban, we definitely go in for 
pamphlets.
    I have here a copy of Common Sense, the great revolutionary 
tract by Thomas Paine. It is 54, 58 pages. That includes a 
couple of cover pages here. Is this a book or a pamphlet? I 
will ask you all to vote for it because you are the legislators 
who will get to decide whether or not this can be published or 
whether or not this can be banned as a pamphlet.
    Mr. Cline. Thank you.
    Some of our Democratic colleagues in the Senate have 
previously introduced a constitutional amendment to undo or 
overturn Citizens United. The amendment would allow Congress to 
regulate the giving and spending of money on political advocacy 
but explicitly carves out the press. Do you have any views on 
that approach?
    Mr. Smith. Well again, if I may, Mr. Cline, I want to 
briefly address something that my old colleague--we were law 
professors going back. You got your J.D. from Harvard, too; is 
that right?
    I think, Mr. Chairman, that we should probably note that 
again.
    But in any case, one thing I did want to comment, though, 
is that who has benefitted--we haven't seen this torrent of 
money from Fortune 100 companies. The corporations that have 
benefitted are small corporations, and most of those 
corporations can't afford to operate a PAC, they can't afford 
to have a lobbyist here, and those are the corporations that 
are really benefitting from this, and those are closely held 
corporations where I think we can usually find the shareholder 
benefits.
    Now, your specific question regarding the press, I think 
the Supreme Court has never really held that the press has 
rights that other American citizens do not, and there is 
polling data that shows if you ask people should we limit 
spending but the press is exempt, support for limiting spending 
drops dramatically. People don't think the press should have 
exemptions. In fact, less than 50 percent support restricted 
spending if the press is exempt. They don't see any reason why 
these guys, just because they are members of the National Press 
Club, get to talk about politics, spend a ton of money, Jeff 
Bezos can buy a newspaper and spend a ton of money, but 
everybody else could not. Again, the Supreme Court has never 
recognized some specific right. The press, in other words, is 
the ability of all Americans to speak. It is not a right that 
adheres to a certain group of people who got a degree from 
Columbia Journalism School.
    Mr. Cline. Thank you, Mr. Chairman.
    Mr. Cohen. Thank you, sir.
    Ms. Scanlon, you are recognized for 5 minutes.
    Ms. Scanlon. Thank you very much.
    I wanted to focus on something that Commissioner Weintraub 
mentioned earlier, and that is presidential inaugural funds. I 
introduced a bill which was folded into H.R. 1 called the 
Inaugural Fund Integrity Act, because of concerns that have 
come out about donations to and spending by these funds. Those 
funds have grown exponentially during the time since Citizens 
United came out. So the Obama inauguration fund in 2012, I 
guess, set a $53 million record, and the Trump inaugural fund 
just back in 2016 raised over $107 million. So 250 people or 
corporations gave 91 percent of those funds, and 47 people or 
corporations gave more than $1 million.
    There are concerns about these inaugural funds because, in 
a way, if you are donating to a candidate you are making a bet. 
There is no guarantee they will get in. But if you are donating 
to an inaugural fund, that person has already been elected, and 
it raises some really serious concerns about transparency and 
quid pro quo, et cetera.
    I would like to ask unanimous consent to enter into the 
record an Open Secrets article entitled ``Companies That Funded 
Trump's Inauguration Came Up Big in 2017.''
    Mr. Cohen. Without objection.
    [The information follows:]
      

                  MS. SCANLON FOR THE OFFICIAL RECORD

=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Cohen. And let me ask, was that a quid pro quo in 
Sondland? Was that in connection with giving money to the----
    Ms. Scanlon. I believe he gave $1 million.
    Mr. Cohen. Yes, and that was a quid pro quo. Thank you.
    Ms. Scanlon. But generally, the purpose in drafting the 
Inaugural Fund Integrity Act was to put some limits on both 
contributions to and spending by these inaugural funds to try 
to block foreign corporations and foreign nationals from giving 
money, and we have certainly heard of some issues with that 
with respect to Mr. Parnas, to block straw donors and to limit 
contributions by corporations.
    So in your experience, Commissioner Weintraub, can you tell 
us what kinds of issues you are seeing with respect to 
transparency and donations in these inaugural funds?
    Ms. Weintraub. Well, as you know, Congresswoman, there 
really is not that much law governing inaugural funds, which is 
interesting in light of the point that you just made, that 
people have already been elected, so there is no risk there, 
you know who you are giving the money to.
    I am concerned that there is, for example, no limitation on 
contributions in the name of another, which is a core provision 
of the rest of the Federal Election Campaign Act, and that is 
not part of the restrictions on inaugural funds. There is a 
limit that says you are not supposed to get foreign money, but 
then there is no way of really getting behind that because you 
don't have a restriction on contributions in the name of 
another. So how do you know that the people who say they are 
giving the money are actually giving their own money and that 
it is not coming from a foreign source or some other source?
    So I think there are big transparency problems with the 
current regime, and I applaud you for your efforts to try to 
fill some of those holes.
    Ms. Scanlon. So basically, if we did some of what the 
Inaugural Fund Integrity Act tries to do, which is apply the 
restrictions that apply to other campaign finance to inaugural 
funds, that would help the process?
    Ms. Weintraub. Absolutely.
    Ms. Scanlon. Okay. And it just seems like that is important 
this year given the fact that someone will be elected president 
and we will be dealing with another inaugural fund, so now 
might be a good time to put some brakes on what is going on.
    Mr. Weissman, do you have anything to add there?
    Mr. Weissman. First to applaud you for the effort, and also 
to sort of elaborate on it. We don't know where the money is 
spent, for one thing. So in terms of the quid pro quo analysis, 
or more generally a richer corruption analysis, there is worry 
about issues of self-enrichment. If a donor knows that not just 
a committee but the president or people around the president 
may benefit, as, in fact, was the case, because we know that 
some of that money was wasted at the Trump Hotel, that is a 
real incentive to give the money in expectation of some policy 
coming out of it.
    That Open Secrets article that you entered into the record 
I believe refers to, for example, a million-dollar contribution 
from Dow Chemical. Dow Chemical soon found that it was able to 
get benefits on specific regulatory matters on pesticides out 
of the Trump EPA. It was exactly the kind of corruption that 
should be intolerable in our system, and we do need safeguards 
to prevent this from going forward.
    Ms. Scanlon. Okay. Thank you.
    I yield back.
    Mr. Cohen. Ms. Dean, you are recognized for 5 minutes.
    Ms. Dean. Thank you, Mr. Chair. I appreciate the chance to 
hear from the testifiers to talk about this important issue.
    I think I will start, please, with Commissioner Weintraub, 
and this reflects some of the comments we just heard from 
Professor Smith.
    Some say that the proliferation of private money in our 
politics is not the result of Citizens United. Citizens United 
held that corporations have a First Amendment right to spend 
sums independently to support or oppose candidates for office, 
yet few for-profit corporations spend money on political 
campaigns in their own names, so Citizens United can't be all 
that bad they say.
    However, a simple review of the numbers shows that there is 
a problem, and it is tied directly to the Supreme Court's 
ruling. In the pre-Citizens United 2008 presidential election, 
outside spending totaled about $338 million. We saw that within 
your testimony. And in the 2012 presidential election, the 
first after the Supreme Court's decision, outside spending 
totaled over $1 billion.
    Can you speak to how Citizens United, which is the premise 
of this underlying hearing, changed the influence of money in 
the political process despite a dramatic increase in overt 
corporate expenditures?
    Ms. Weintraub. Well, there are a variety of ways that 
Citizens United has had this huge impact, which I think 
everybody gets that. In the first place, when corporations 
spend--and corporations can give to Super PACs. Super PACs 
disclose their donors, but the corporations often will be a 
shield against disclosing who really is behind the money. So 
you'll get the ABC Super PAC reporting that they have a 
million-dollar contribution from the ABC 501(c)(4), and who is 
giving money to the ABC 501(c)(4)? Well, we don't know that. So 
there is a huge transparency problem that arises immediately 
from letting corporations give.
    But as I said, really I think the biggest impact of 
Citizens United is that it really took the gloves off with the 
broad language in Citizens United about how ingratiation and 
access can't possibly be corrupting. First of all, I think that 
flies in the face of most people's commonsense understanding. 
If it is corrupting to give $3,000 directly to your campaign 
account, how could it not be corrupting to give $3 million to a 
Super PAC that is doing nothing but trying either to elect you 
or to defeat you? How does that not have any potential for 
corruption? I think most people really don't get that and think 
it doesn't really make sense, and that is part of why it is 
such an unpopular decision, because it flies in the face of how 
people think about corruption.
    But this broad language really emboldened a lot of folks 
who I think before were thinking, well, boy, somebody might 
think this is corrupting if I gave a million dollars to try and 
defeat a candidate or to elect a candidate, so maybe I 
shouldn't do that. Now they find out, whoa, I can't possibly be 
held accountable for that, so therefore I am going to up my 
giving. All this freedom, it only affects this very narrow band 
of people who have a million dollars to put into a campaign, or 
in some cases multi-million dollars. That is not freedom for 
most Americans. Most Americans aren't going to be able to 
partake of that additional liberty that the Supreme Court has 
granted them, and it does reframe the debate. It does involve 
billionaires just sort of dominating the political discourse in 
ways that are sometimes not transparent.
    We have seen folks go through incredible permutations of 
moving money from one organization to another organization to 
another organization because they are afraid we might pierce 
the first veil, but then we won't get through the second or the 
third or the fourth veils. There is somebody who is litigating 
this up to the Supreme Court right now to try and hide the 
money. So there has been an explosion in the role of these 
mega-donors, and I think that really has been the biggest 
impact.
    Ms. Dean. I have just a little bit of time left. There is 
so much more I would like to ask you, but I did take a look at 
what you said in your testimony about how the impact of H.R. 1 
would be helpful in this area. Quickly, on the issue of 
coordination, you just described very logically how things are 
non-transparent and hidden. How about the notion of if I say it 
publicly, we didn't coordinate? Can you speak to the problem of 
that Super PACs cannot coordinate with candidates, and yet how 
we so easily see folks getting around that?
    Ms. Weintraub. Well, the coordination rule was written 
before Super PACs existed, and despite my repeated efforts to 
launch a rulemaking to update them in light of Citizens United, 
I have never been able to get the four votes to do that at the 
FEC. I feel compelled to say that all of the things that 
Professor Torres-Spelliscy was complaining about at the FEC, I 
was on the other side and trying to get those things done. We 
have candidates who show up at Super PAC events and tell their 
supporters that is my favorite Super PAC, you can go ahead and 
support them and you will be supporting me, and people post 
things publicly and try to get around it. Well, it is not a 
secret conversation. I am telling the world that I love that 
Super PAC, I am telling the world that here is what would be 
useful to me, I am posting this video on my webpage.
    Some of it is silent. There is no purpose in having this 
roll up on anybody's webpage other than for somebody else to 
just lift it and incorporate it into a campaign commercial on 
their behalf.
    Ms. Dean. Thank you very much.
    Has my time expired, Mr. Chairman? Thank you very much for 
your indulgence.
    Mr. Cohen. Thank you, Ms. Dean.
    Ms. Escobar, you are recognized.
    Ms. Escobar. Thank you, Mr. Chairman.
    And thanks so much to our panelists, really appreciate you 
all today.
    Ms. Weintraub, I have some questions about the Commission, 
just some things that I am really curious about.
    When was the last time the Commission met with a quorum?
    Ms. Weintraub. That would have been August, August of 2019.
    Ms. Escobar. Okay. And how many cases are awaiting a 
hearing?
    Ms. Weintraub. We have roughly 300 enforcement matters, and 
right now over 100--last time I checked it was 119 of those 
were awaiting some kind of decision from the commissioners, 
which it requires us to have four commissioners to make that 
decision.
    Ms. Escobar. And how far back in terms of the cases that 
are waiting to be adjudicated by you all, how far back do those 
complaints go in terms of when they were first reported to the 
FEC? Do you know?
    Ms. Weintraub. There are a variety of beginning dates for 
the complaints. There is a five-year statute of limitations, 
and particularly in the reporting area sometimes there is a 
continuing violation even after the event that you are 
reporting happened, you have an ongoing obligation to report 
what money came in and what money went out. So sometimes we are 
able to extend. Sometimes we get tolling agreements. But for 
the most part, we are limited to a five-year statute of 
limitations, and the clock is ticking on a number of the cases 
that are sitting in front of us right now.
    Ms. Escobar. And I will give you an example of why there is 
probably no incentive for the President and others to ensure 
that we have a functioning FEC. In my community of El Paso, 
Texas, the President came and had a campaign rally, and he owes 
the City of El Paso over half-a-million dollars for all of the 
services that the city, that the local government had to 
provide. The Center for Public Integrity back in June actually 
reported that this is not a single instance where a campaign 
has failed to pay its bills, its outstanding debts. In fact, 
for the Trump Campaign this is a pattern, and there are a 
number of local governments.
    So it is a vicious cycle, unfortunately. There is no 
incentive for the President to want accountability by having a 
fully seated, fully functioning FEC because he might be held 
accountable, and we know how he feels about accountability.
    Ms. Weintraub. I don't want to comment on any particular 
case, but let me just say that when we lost the quorum last 
August when one of my colleagues decided to resign, I had two 
other colleagues who resigned two years ago and three years 
ago, respectively. So there was a very long run-up to this when 
we had two vacancies, one D, one R, when this could have been 
fixed so that we wouldn't have been in this situation last 
August when the most recent commissioner left. Why those seats 
weren't filled for two and three years, I really can't tell 
you.
    Ms. Escobar. Yes, we can only wonder why.
    Thank you so much for your response, Ms. Weintraub.
    Mr. Weissman, we have seen incredible, hugely consequential 
involvement from Russia in our elections, and this meddling in 
our elections is not limited to Russia. We now know after what 
happened yesterday, the acquittal, that there will not be 
accountability for inviting foreign assistance into our 
elections. At least for the President, there is no 
accountability.
    So many of us are obviously very concerned about outside 
involvement in our elections. You mentioned that Citizens 
United allows foreign actors to influence those elections as 
well. Is that correct?
    Mr. Weissman. Not legally, but yes.
    Ms. Escobar. Can you expand on what that involvement might 
be?
    Mr. Weissman. The reporting that has come out from the Lev 
Parnas tape is really instructive about how this all might go 
down. That tape, where most of the attention was focused on the 
conversation about Ukraine, it was really a donor event. It was 
a Super PAC donor event, actually, where the donors were given 
direct access to the President. The New York Times reported 
they were given access to go and pitch, as if they were on 
Shark Tank, their preferred policy preferences. A couple of 
those donors were Lev Parnas and Igor Fruman, who, according to 
the indictment against them, had donated money from a foreign 
source that they had laundered through an LLC.
    In this instance it was discovered. You have to assume that 
in most instances it is not going to be discovered.
    Also present at the event was a Canadian steel mogul who is 
not permitted to give money to affect U.S. elections but was 
able to use his U.S. subsidiary to run money to U.S. elections. 
So there are a lot of mechanisms, some of which are legal and 
some of which are not legal but have been super-powered by 
Citizens United, and we have to assume it is happening much 
more than we know.
    Ms. Escobar. Thank you so much.
    I am out of time. I yield back. I appreciate it.
    Mr. Cohen. Thank you.
    Ms. Jackson Lee.
    Ms. Jackson Lee. I want to thank all of the witnesses for 
their commentary today.
    Let me say that I am a proud co-sponsor of H.R. 1, which I 
hope the Senate turns on the light and allows us to pass that 
legislation, because some of this will change. Some have argued 
that the Court should revisit the question, but we know the 
skewing of the Court now, unfortunately.
    I am just going to ask a brief question and then a pointed 
question to the Commissioner. Thank you for your leadership.
    After Citizens United, can you state or re-state what you 
think about, very briefly, the amount of money that is now in 
the political process?
    Ms. Weintraub. Well, the amount of money always goes up, so 
let's start there. But I think what we are seeing is a shifting 
of money. As I pointed out in my testimony, in the most 
competitive Senate races, particularly in years where it looks 
like control of the Senate is up for grabs, that is where all 
the outside spending goes. And the outside spending in six out 
of ten, seven out of ten, depending on which year you look at, 
has dwarfed the amount the candidates are spending themselves, 
which is really kind of astonishing if you think about it. You 
are out there campaigning, and then somebody else is out-
spending you.
    Ms. Jackson Lee. Meaning it dwarfs the amount that the 
candidate is spending?
    Ms. Weintraub. Yes.
    Ms. Jackson Lee. It is more than what the candidate is 
spending.
    Ms. Weintraub. Yes.
    Ms. Jackson Lee. Okay. And therefore the voice of the 
candidates, plural, may be silenced or blocked out because of 
some special-interest undercover PAC that one has never heard 
of, but they are coming after you, whoever that is.
    Ms. Weintraub. And because the rules on PAC disclosure were 
designed for a time when these Super PACs didn't exist, the 
PACs aren't on the same disclosure schedule as the candidates 
are, and some of them have been very clever about making sure 
that they don't have to report up until after the election 
itself.
    Ms. Jackson Lee. Thank you. Thank you for your service.
    Let me use this example. A day or two ago we heard a very 
passionate statement on the floor of the United States Senate 
from a senator who offered his religious beliefs and his 
heartfelt analysis on his decision to vote for the conviction 
of the President of the United States under Article 1. Soon 
thereafter, he received an onslaught of attacks. One, Trump Jr. 
tweeted after Romney announced his decision that he was too 
weak to beat the Democrats, so he is joining them now, he is 
officially a member of the resistance and should be expelled 
from the GOP. Trump Jr. then started tweeting ``#ExpelMitt'' 
and later tweeted that Romney should be expelled from the 
AtSenateGOP. Ingraham called Romney ``the ultimate selfish, 
preening, self-centered politician. If he were up for 
reelection this year, the people of Utah would have their own 
payback against him because they were defrauded by Romney.''
    Now, people have argued that Citizens United provides for 
free speech. Certainly, the Senator has a right to free speech. 
My question quickly to Mr. Weissman and the Professor, to 
answer the question if this individual was up for reelection in 
2020, having exercised free speech, free speech Citizens 
United, how do you think that would be skewed with this kind of 
onslaught so that his voice could not truly be heard? If you 
would answer that question, my time is running and I would like 
to share it between you and the Professor. Thank you.
    Mr. Weissman. Yes. So very quickly, it is entirely 
appropriate for the people of Utah to make a judgment about 
what Senator Romney did. It is not entirely appropriate for 
giant Super PACs to come in and out-spend him, which, as you 
are implying, is a virtual certainty were he up for reelection 
in this coming term.
    Ms. Jackson Lee. Silencing his voice.
    Mr. Weissman. Overwhelming it at least.
    Ms. Jackson Lee. Professor?
    Mr. Smith. I will note first I served as counsel----
    Ms. Jackson Lee. I'm sorry.
    Mr. Smith. I'm sorry, the other professor.
    Ms. Torres-Spelliscy. Thank you. So, if I may, since I have 
not had many chances to talk, pay-to-play hurts honest business 
people because the honest business person wants to be judged by 
the metric of the quality of their goods and services. But pay-
to-play skews that entire system by privileging those who will 
stay at the Trump Hotel or pay an emolument, and that is a 
skewing not only of the political system but of the economic 
system as well.
    Ms. Jackson Lee. So do you have an answer about Mitt Romney 
and the amount of money?
    Ms. Torres-Spelliscy. Because I work with a non-partisan 
non-profit, I am going to demure on that.
    Ms. Jackson Lee. Well, let me thank the gentleman from 
Public Citizen for giving me the answer, and I thank all of you 
for providing your insight to this very important question.
    Mr. Chairman, I yield back.
    Mr. Cohen. Thank you, Ms. Jackson Lee.
    Mr. Swalwell I believe is next.
    Mr. Swalwell. Thank you, Chairman, for hosting this panel. 
And thank you to our panelists.
    I believe, having been in Congress now for seven-plus 
years, that it is dirty money and dirty maps that keeps us in 
Congress from reaching the consensus that our constituents have 
reached. On most issues, the American people are actually not 
really divided. They think we should have background checks, 
over 80 percent. They believe we should do overwhelmingly 
something about climate. They want to have universal access to 
health care. Yet, when we convene in Washington, we find people 
that cannot work and meet that consensus.
    Having been here and seen the power of the outside groups, 
I know that the single reason we can't find that consensus is 
the fear that if you were to speak out against your party--
particularly I see this on my Republican colleagues' side--you 
will be primaried. You are not going to lose your job to a 
Democrat. You are going to lose your job to someone who is more 
conservative, and that is the power of outside money. And it is 
also the power of dirty maps drawn by politicians to protect 
themselves and their friends, and we are interested in doing 
all we can to reduce the influence of that.
    Now, both Republicans and Democrats have gone to online 
platforms that encourage small-dollar contributors, and I think 
that is great that smaller dollars can be empowered. But I do 
wonder if anyone could address whether you see ways, 
considering that foreign money is flowing into our elections, 
that because of the reporting requirements for smaller-dollar 
contributions are not as transparent, that that could be 
manipulated to allow foreign contributions to come in.
    Commissioner, I will let you take a crack at that first.
    Ms. Weintraub. Well, of course, the committees have an 
obligation to ensure that they are not taking foreign money. I 
would argue that that obligation goes up with a larger 
donation. So if you are getting a million-dollar donation, then 
you had better make darn sure, if you are a Super PAC, that 
that money is coming from a good place. In fact, we saw an 
example of this just recently with a Super PAC that was 
supporting Jeb Bush in the 2016 election that took a $1.3 
million donation from a domestic subsidiary of a Chinese 
company, and it was the Chinese board members who had requested 
it, at the request of Neil Bush, who was also on the board.
    So we are seeing foreign money come in through corporate 
entities. I do worry about what is behind the small donors. We 
don't see the names on the small donations.
    Mr. Swalwell. I am talking about--Super PACs are their own 
issue. I am talking about the candidates' campaign committees, 
because I am worried that because of the lack of transparency 
requirements for small-donor contributions--I believe it is 
$200 and less--that that could be a way, if you have a campaign 
that is not checking, confirming, or even if they are in on it, 
that is a back door around the rules and that foreign 
contributions could make their way in. Is that a concern that 
you share?
    Ms. Weintraub. It is, because we don't see those names, so 
we don't know where the money is coming from.
    Mr. Swalwell. Also I wanted to raise a concern about 
foreigners working with U.S. campaigns, as you saw in 2016. In 
2016, Congress had not imagined prior to that election that 
campaigns would take assistance from foreign governments and 
not at least report the outreach. I have since introduced 
legislation that was included and passed in the House of 
Representatives that puts a duty to report on an individual if 
they receive campaign assistance, or even an offer of dirt on 
your opponent who you should know to be an agent of a foreign 
power.
    Is there anything else you think we could do to put a duty 
on people where we otherwise saw people in the past rely on the 
honor code and just do the right thing? What can we do now to 
ensure that the FBI would be notified of something like that? 
For anyone who wants to take a crack at that.
    Ms. Weintraub. As I said in my earlier testimony, one thing 
that I think would help would be putting a responsibility on a 
U.S. citizen to sign under penalty of perjury that they have 
checked and they have verified that there is no foreign money 
coming into the campaign accounts.
    Mr. Swalwell. Thank you, and I yield back.
    Mr. Cohen. Thank you, Mr. Swalwell.
    We are not going to have a second round, but I will do 
this. Normally if we have a second round, it is 5 minutes. If 
any member wants to ask a question, not make a statement but 
ask a question, we will entertain one question per member so we 
can tie up loose ends.
    Does anybody want to ask a question?
    Mr. Raskin, you are recognized for a question.
    Mr. Raskin. Give me a second to compose my interrogatory 
thought, Mr. Chairman.
    Given that we live in an age of propaganda and fake news 
and disinformation, I am wondering, for any of the majority 
witnesses--forgive me, Mr. Smith--to what extent Citizens 
United figures into the spending of money to confuse the public 
and to add to the propaganda? Is there something about the way 
that money has been spent under Citizens United that 
contributes to the thick fog of propaganda that overhangs our 
politics today?
    Ms. Weintraub.
    Ms. Weintraub. I think anything that undermines disclosure 
makes it harder for us to find out who is behind what we are 
seeing online. I mean, people get all sorts of information 
online, and I don't think anybody wants to get their news from 
a Russian troll farm, but people didn't realize that is where 
they were getting the information from last time. So to the 
extent that Citizens United, as I have said, has undermined 
disclosure, I think it has also contributed to that problem.
    Mr. Raskin. Dr. Fiona Hill in her testimony described to us 
that Russia is the world's largest Super PAC today, that it 
basically operates like a Super PAC in terms of funneling money 
and propaganda into our politics, and other societies too.
    Mr. Cohen. We will call that a question, and then we are 
going to let Mr. Weissman respond, if he wants to.
    Mr. Weissman. I am ready. I think two points come to mind. 
One, as Commissioner Weintraub said, there is an intersection 
between the general cultural impact of Citizens United and the 
rise of online advertising, particularly as it relates to lack 
of disclosure. So the system we have for disclosure is 
basically based on focusing on TV ads, and now we have moved to 
where TV ads are being competed with in importance for online 
advertising, huge amounts of money coming in. The disclosure 
system is really totally inadequate, and I think people are 
being confused by that.
    There is another component of this. I wouldn't want to call 
it propaganda necessarily, because there is a role for negative 
advertising and conflictual advertising in speech for sure. But 
what Citizens United has done--and Professor Smith's data I 
think are misleading but all correct. What it has done is lead 
to a rise, a significant rise in outside spending. Outside 
spenders are different than candidate spenders in a variety of 
ways.
    But most significantly perhaps is that they focus 
overwhelmingly on negative attack ads. So about 85 percent of 
outside spending is devoted to negative attack ads; half or way 
less by candidates. Again, there is an appropriate role for 
drawing distinctions. I think most Americans feel like we have 
way tipped the balance in terms of that kind of advertising. It 
is highly emotional in appeal, not really very communicative 
around policy or substance, and I think not that that kind of 
speech should be censored, but if we are looking at the overall 
effect, it has been unhelpful and an unhealthy effect for our 
democracy, and it has certainly contributed to the deep 
skepticism about how our politics work and the future and 
reliability of our democracy.
    Ms. Torres-Spelliscy. I guess I would just add that one of 
the things that you could have done in 2010 in the Disclose Act 
is clarify what counts as foreign for corporate purposes. That 
clarity is still needed in the law.
    And I would also add that Lev Parnas made a calculated risk 
that his corporate spending wouldn't send off any warning signs 
when he spent through a Super PAC. The indictment alleges 
against him that he has funneled at least $1 million of foreign 
money into both state and Federal elections, which I will 
reiterate is illegal, whether that money is going into a state 
election or a Federal election.
    Mr. Cohen. Thank you.
    Ms. Scanlon, you are our closer.
    You are good? Okay.
    Thank you very much to all of our witnesses.
    This concludes today's hearing.
    We have statements for the record from Citizens United 
Action Fund and a letter from Free Speech for People, which we 
would like to submit for the record.
    Without objection, so done.
    [The information follows:]
      

                   MR. COHEN FOR THE OFFICIAL RECORD

=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Cohen. This concludes today's hearing. I want to thank 
everybody.
    Without objection, every member will have 5 legislative 
days to submit additional written questions for the witnesses, 
which we will submit to you.
    With that, we are done. Thank you.
    [Whereupon, at 11:52 a.m., the hearing was adjourned.]
      

                                APPENDIX

=======================================================================

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]