[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]