A resolution supporting the goals and ideals of National Domestic Violence Awareness Month and expressing the sense of the Senate that Congress should continue to raise awareness of domestic violence in the United States and its devastating effects on families and communities, and support programs designed to end domestic violence.

Mr. President, I am joined by my friend and colleague and fellow warrior, Senator Feingold. He and I both have some remarks to make. I was chosen to go first, and then Senator Feingold, I know, will also want to address what we think is a very important issue. This is the issue of the U.S. Supreme Court case Citizens United v. Federal Election Commission.

On September 9, the U.S. Supreme Court heard oral arguments from both sides in the Citizens United v. Federal Election Commission. The implications of this case are very serious, and the Supreme Court's decision could result in the unraveling of over 100 years of congressional action and judicial precedent with respect to corporate spending in political campaigns. Senator Feingold and I were present in the Supreme Court chamber for the arguments in this case. I commend both sides for presenting their case in a thoughtful, intelligent manner. However, there was one part of the argument I found particularly disturbing.

While responding to a question from Justice Alito, the Solicitor General was interrupted by Justice Scalia, who said:

Congress has a self-interest. I mean, we--we are suspicious

of Congressional action in the First Amendment area precisely

because we--at least I am--

Here is the interesting part, when Justice Scalia said:

I doubt that one can expect a body of incumbents to draw

election restrictions that do not favor incumbents. Now is

that excessively cynical of me? I don't think so.

Yes, I think it is excessively cynical. I take great exception to Justice Scalia's statement, as should every Member of both Houses of Congress. It is an affront to the thousands of good, decent, honorable men and women who have served this Nation in these Halls for well over 200 years. Not only was Justice Scalia's statement excessively cynical, it showed his unfortunate lack of understanding of the facts and history of campaign reform. Throughout our history, America has faced periods of political corruption, and in every instance, Congress has risen above its own self-interest and enacted the necessary reforms to address the scandals and corruption that have plagued our democratic institutions over time and throughout our history. The Tillman Act in 1907, the Publicity Act of 1910, the Federal Corrupt Practices Act in 1925, the Public Utilities Holding Act in 1935, the Hatch Act in 1939, the Smith-Connelly Act in 1943, the Taft-Hartley Act of 1947, the Long Act in 1968, the Federal Election Campaign Act in 1974, and the bipartisan Campaign Reform Act in 2002 are just some of the reforms enacted by Congress over the years to address corruption in our government and in our campaigns.

Simply put, history has proven Justice Scalia wrong in his assessment that Congress will not act in anything but a self-serving manner.

Justice Scalia's statement was also remarkable in that it exposed his belief that when it comes to issues relating to campaign reform, he somehow is a better arbiter of what is needed to reform the electoral process than the Congress or the American people. With all due respect, that is not the job of the judicial branch. Judges who stray beyond their constitutional role to try and take Congress's place as policymakers falsely believe that judges somehow have a greater insight into what legislation is necessary and proper than representatives who are duly elected by the people and accountable to them every several years.

Activist judges--regardless of whether it is liberal or conservative activism--assume the judiciary is a superlegislature of moral philosophers, entitled to support Congress's policy choices whenever they choose. I believe this judicial activism is wrong and is contrary to the Constitution.

Our Constitution is very clear in its delineation and dispersement of power. It solely tasks the Congress with creating law, not the courts. I have a long history of opposing activist judges. Judicial activism demonstrates a lack of respect for the popular will, and that is at fundamental odds with our republican system of government. I believe a judge should seek to uphold all acts of Congress and State legislatures, unless they clearly violate a specific section of the Constitution, and refrain from interpreting the law in a manner which creates new law. That is a fundamentally conservative position I have held throughout my career. I wish Justice Scalia shared that position.

Let us be very clear. At stake in the Citizens United case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are rescinded. Overturning Supreme Court precedent would open the floodgates to unlimited corporate and union spending during elections and undermine election laws across the country. Those able to spend tens of millions of dollars, such as a Fortune 500 company or a big labor union, are much more likely to be heard during an election than the average American voter is. For this reason, I have always advocated laws that would prevent big-moneyed special interests from drowning out the voices of individual American citizens in elections and dominating the decisionmaking process of our government.

Contrary to some of my critics, I am a firm believer in the first amendment.

For more than 100 years, laws have stood to limit corporate donations to political candidates and campaigns--for more than 100 years. The concern about corporate involvement in campaigns is not new in America. On September 3, 1897, in a speech on government and citizenship, Elihu Root, who would go on to become Theodore Roosevelt's Secretary of State and a Nobel Peace Prize winner, said:

The idea . . . is to prevent the great moneyed corporations

of the country from furnishing the money with which to elect

members of the legislature . . . in order that those members

of the legislature may vote to protect the corporations. It

is to prevent the great railroad companies, the great

insurance companies, the great telephone companies, the great

aggregations of wealth, from using their corporate funds,

directly or indirectly, to send members of the legislature to

these halls, in order to vote for their protection and the

advancement of their interests as against those of the

public.

It strikes, Mr. Chairman, at a constantly growing evil in

our political affairs, which has, in my judgment, done more

to shake the confidence of the plain people of small means in

our political institutions, than any other practice which has

ever obtained since the foundation of our government.

Remember, this was in 1897. He went on to say:

And I believe that the time has come when something ought

to be done to put a check upon the giving of $50,000 or

$100,000 by a great corporation toward political purposes,

upon the understanding that a debt is created from a

political party to it; a debt to be recognized and repaid

with the votes of representatives in the legislature and in

Congress, or by the action of administrative or executive

officers who have been elected in a measure through the use

of the money so contributed.

Additionally, one can make the case that the concern about corporate influence extends as far back as our Founding Fathers. In 1816, Thomas Jefferson wrote:

I hope we shall crush in its birth the aristocracy of our

moneyed corporations which dare already to challenge our

government in a trial of strength, and bid defiance to the

laws of our country.

Kentucky was the first State to ban corporations from spending their funds in State elections in 1891, and by 1897 Florida, Missouri, Nebraska, and Tennessee had all enacted similar corporate spending prohibitions in their State elections. While some States began enacting limits on the influence of money on politics during the Civil War era, Congress did not begin to pass major campaign finance regulations until some decades later. By that time, political contributions by major corporate interests and business leaders dominated campaign fundraising, and this development sparked the first major movement for national reform.

Progressive reformers, such as President Theodore Roosevelt and investigative journalists, charged that these business interests were attempting to gain special access and favors; thereby, corrupting the democratic process. This reform movement, combined with allegations of financial impropriety in the 1904 Presidential election, resulted in the enactment of significant reforms.

On October 1, 1904, Joseph Pulitzer published an editorial in the New York World questioning President Roosevelt's ties to many of the large corporations that had donated to his campaign. Those questions led Roosevelt's opponent, Judge Alton Parker, to describe the donations as blackmail and insinuated there was a quid pro quo involved. President Roosevelt responded angrily, calling the accusations monstrous and said:

The assertion that there has been any blackmail, direct or

indirect . . . is a falsehood. The assertion that there has

been made any pledge or promise or that there has been any

understanding as to future immunities or benefits, in

recognition from any source is a wicked falsehood.

President Roosevelt, not wanting to give the appearance of improper influence, directed his staff to return a $100,000 contribution from the Standard Oil Corporation. In his memo he wrote:

We cannot under any circumstances afford to take a

contribution which can be even improperly construed as

putting us under an improper obligation.

The allegations of impropriety also led Roosevelt to call for an end to corporate donations to campaigns. In his fifth annual message to the Congress on December 5, 1905, Roosevelt said:

The power of the Government to protect the integrity of the

elections of its own officials is inherent and has been

recognized and affirmed by repeated declarations of the

Supreme Court. There is no enemy of free government more

dangerous and none so insidious as the corruption of the

electorate.

He warned:

If [legislators] are extorted by any kind of pressure or

promise, express or implied, direct or indirect, in the way

of favor or immunity, then the giving or receiving becomes

not only improper but criminal. All contributions by

corporations to any political committee or for any political

purpose should be forbidden by law; directors should not be

permitted to use stockholders money for such purposes; and,

moreover, a prohibition of this kind would be, as far as it

went, an effective method of stopping the evils aimed at in

the corrupt practices acts. Not only should both the national

and the several State legislatures forbid any officer of a

corporation from using the money of the corporation in or

about any election, but they should also forbid such use of

money in connection with any legislation.

Again, the following year, in his sixth annual message to Congress in December 1906, President Roosevelt tried to limit corporate influence, stating:

I again recommend a law prohibiting all corporations from

contributing to the campaign expenses of any party. Such a

bill has already passed one House of Congress. Let

individuals contribute as they desire . . .

I repeat what he said:

Let individuals contribute as they desire; but let us

prohibit in effective fashion all corporations from making

contributions for any political purpose, directly or

indirectly.

In January 1907, Theodore Roosevelt signed into law the Tillman Act. This law prohibited nationally chartered banks and corporations from contributing to campaigns. In the report to accompany the Senate version of the legislation, dated April 27, 1906, the Senate Committee on Privileges and Elections wrote:

The evils of the use of money in connection with political

elections are so generally recognized that the committee

deems it unnecessary to make any argument in favor of the

general purpose of this measure. It is in the interest of

good government and calculated to promote purity in the

selection of public officials.''

Following passage of the Tillman Act, Roosevelt again addressed the issue in his Seventh Annual Message to Congress in December, 1907. He said:

Under our form of government voting is not merely a right

but a duty, and, moreover, a fundamental and necessary duty

if a man is to be a good citizen. It is well to provide that

corporations shall not contribute to Presidential or National

campaigns, and furthermore to provide for the publication of

both contributions and expenditures.

Although the Tillman Act constituted a landmark in Federal law, according to campaign finance expert Anthony Corrado, ``its adoption did not quell the cries for reform. Eliminating corporate influence was only one of the ideas being advanced at this time to clean up political finance.'' In the years following the passage of the Tillman Act, reducing the influence of wealthy individuals and labor unions became a concern and reformers pushed for further limits on donations.

Consequently, in 1947, Congress enacted the Taft-Hartley Act, which explicitly banned corporate and labor union expenditures in Federal campaigns. In doing so, Senator Robert Taft made clear that the purpose of the new language was simply to affirm what had been understood to always be the case--that the 1907 corporate ban had prohibited corporate expenditures, or indirect contributions, as well as direct corporate contributions.

A ban on corporate expenditures in campaigns has been consistently upheld by the Supreme Court as constitutional and as ``firmly embedded in our law.''

The constitutionality of the ban on corporate campaign expenditures was upheld by the Supreme Court in the Austin v. Michigan Chamber of Commerce decision in 1990 and reaffirmed by the Court in the McConnell v. Federal Election Commission decision in 2003. And the corporate expenditure ban had been commented on favorably by the Court in earlier cases.

In 1990, in the Austin case, the Supreme Court acknowledged the importance of maintaining the integrity of the political process. From the Court's opinion:

Michigan identified as a serious danger the significant

possibility that corporate political expenditures will

undermine the integrity of the political process, and it has

implemented a narrowly tailored solution to that problem. By

requiring corporations to make all independent political

expenditures

through a separate fund made up of money solicited expressly

for political purposes, the Michigan Campaign Finance Act

reduces the threat that huge corporate treasuries amassed

with the aid of favorable state laws will be used to

influence unfairly the outcome of elections.

In the McConnell case, the Supreme Court recognized its long-standing support for the constitutionality of bans on corporate campaign expenditures going back to its Buckley decision in 1976. From the Court's decision:

Since our decision in Buckley, Congress' power to prohibit

corporations and unions from using funds in their treasuries

to finance advertisements expressly advocating the election

or defeat of candidates in federal elections has been firmly

embedded in our law.

Additionally, in 1982, in the National Right to Work Committee case, the Supreme Court, in an opinion authored by Chief Justice William Rhenquist, stated regarding the Federal ban on corporate and labor union expenditures:

The careful legislative adjustment of the federal electoral

laws, in a cautious advance, step by step, to account for the

particular legal and economic attributes of corporations and

labor organizations warrants considerable deference. [I]t

also reflects a permissible assessment of the dangers posed

by those entities to the electoral process.

In order to prevent both actual and apparent corruption,

Congress aimed a part of its regulatory scheme at

corporations. The statute reflects a legislative judgment

that the special characteristics of the corporate structure

require particularly careful regulation. Nor will we second

guess a legislative determination as to the need for

prophylactic measures where corruption is the evil feared. As

we said in California Medical Association v. FEC, the

``differing structures and purposes; of different entities

`may require different forms of regulation in order to

protect the integrity of the electoral process . . .' ''

The governmental interest in preventing both actual

corruption and the appearance of corruption of elected

representatives has long been recognized, First National Bank

of Boston v. Bellotti, supra, and there is no reason why it

may not in this case be accomplished by treating unions,

corporations and similar organizations different from

individuals.

In 1986, in the Massachusetts Citizens for Life case, the Supreme Court stated regarding the Federal ban on corporate expenditures in campaigns:

This concern over the corrosive influence of concentrated

corporate wealth reflects the conviction that it is important

to protect the integrity of the marketplace of political

ideas . . . Direct corporate spending on political activity

raises the prospect that resources amassed in the economic

marketplace may be used to provide an unfair advantage in the

political marketplace . . . The resources in the treasury of

a business corporation . . . are not an indication of popular

support for the corporation's political ideas. They reflect

instead the economically motivated decisions of investors and

customers. The availability of these resources may make a

corporation a formidable political presence, even though the

power of the corporation may be no reflection of the power of

its ideas.

By requiring that corporate independent expenditures be

financed through a political committee expressly established

to engage in campaign spending, section 441b seeks to prevent

this threat to the political marketplace. The resources

available to this fund, as opposed to the corporate treasury,

in fact reflect popular support for the political positions

of the committee.

If anyone has doubts about the influence of big-moneyed special interests on policy makers in this town, let me relay a personal observation. During the Senate Commerce Committee's consideration of the 1996 Telecommunications Act, every company affected by the legislation had purchased a seat at the table with soft money. Consequently, the bill attempted to protect them all, a goal that is obviously incompatible with competition. Consumers, who only give us their votes, had no seat at the table, and the lower prices that competition produces never materialized. Cable rates went up. Phone rates went up. And huge broadcasting giants received billions of dollars in digital spectrum, property that belonged to the American people, for free. They got it for free, billions of dollars worth of spectrum.

Information gathered from various sources in the press at the time indicated that the special interest groups involved spent nearly $150 million to lobby Congress on telecommunications reform--and they all came out on top--at the expense of the American consumer.

Similarly, the pharmaceutical industry has spent millions of dollars to sway lawmakers against the idea of drug importation. In the 2008 election cycle, pharmaceutical companies gave almost $30 million in campaign contributions to Members of Congress. Just this year, according to an article published in the June 3 edition of The Hill, the prescription drug industry has given more than one million dollars to both Republicans and Democrats. And these contributions were from the limited funds of corporate PACs--a fraction of the flood of money that could be spent out of corporate treasuries if the Supreme Court changes the law by judicial fiat.

As my colleagues know, for many years my colleague from Wisconsin, Senator Feingold and I fought to ban soft money--the large, unregulated donations from corporations, labor unions, and wealthy individuals-- from Federal elections. As the sponsors of the Bipartisan Campaign Finance Reform Act, we submitted, together with our colleagues from the House, Representatives Shays and Meehan, a brief for the court. In this brief we stated:

More fundamentally, Austin and McConnell were correctly

decided. Unlimited expenditures supporting or opposing

candidates may create at least the appearance of corruption,

as Caperton v. A.T. Massey Coal Co. illustrates. The

tremendous resources business corporations and unions can

bring to bear on elections, and the greater magnitude of the

resulting apparent corruption, amply justify treating

corporate and union expenditures differently from those by

individuals and ideological nonprofit groups.

So, too, does the countervailing free-speech interest of

the many shareholders who may not wish to support corporate

electioneering but have no effective means of controlling

what corporations do with what is ultimately the

shareholders' money. Austin was rightly concerned with the

corruption of the system that will result if campaign

discourse becomes dominated not by individual citizens--whose

right it is to select their political representatives--but by

corporate and union war-chests amassed as a result of the

special benefits the government confers on these artificial

``persons.'' That concern remains a compelling justification

for restrictions on using corporate treasury funds for

electoral advocacy--constraints that ban no speech but only

require that it be funded by individuals who have chosen to

do so.

The holdings of Austin and McConnell--that it is

constitutional to require business corporations to use

segregated funds contributed by shareholders, officers and

employees for express candidate advocacy or its functional

equivalent--remain sound today. The interests in preventing

actual or apparent corruption of the electoral process and

protecting shareholders provide compelling justification for

such requirements, which neither unduly burden nor

overbroadly inhibit protected speech.

The corporate PAC option, moreover, is ideally suited to

balancing the First Amendment interests of corporate entities

and their shareholders. It allows the corporation to direct

political spending only to the extent shareholders have

personally decided to contribute for that specific purpose.

It thus ensures that the corporation may have a voice, but

one that is not subsidized unwillingly by those who may

disagree with its electoral message. And there is no basis in

the record for concluding that PACs are inadequate or unduly

burdensome for business corporations, whatever may be true of

certain ideological nonprofit corporations. Indeed, PAC

requirements pale in comparison with the detailed

recordkeeping and accounting otherwise required of

corporations and unions.

The ability of corporate campaign expenditures to buy influence with Federal officeholders, and to create the appearance of such influence- buying is sadly evident in nearly every aspect of the legislative process. This fact was recognized in the McConnell case.

The brief filed in the McConnell case by me and my colleagues stated:

Not surprisingly, the McConnell record provided strong

corroboration that corporate and union expenditures on ads

that were the functional equivalent of express advocacy

created the appearance of corruption. Based on that record,

Judge Kollar-Kotelly found that such expenditures ``permit

corporations and labor unions to inject immense aggregations

of wealth into the process'' and ``radically distort the

electoral landscape.'' She further found that candidates are

``acutely aware of'' and ``appreciate'' such expenditures,

and ``feel indebted to those who spend money to help get them

elected.'' She concluded that ``the record demonstrates that

candidates and parties appreciate and encourage corporations

and labor unions to deploy their large aggregations of wealth

into the political process,'' and that ``the record presents

an appearance of corruption stemming from the dependence of

officeholders and parties on advertisements run by these

outside groups.''

According to the Solicitor General's brief, the record in the McConnell case showed that:

Federal officeholders and candidates were aware of and felt

indebted to corporations

and unions that financed electioneering advertisements on

their behalf or against their opponents.

The brief further stated:

[T]he record compiled in the McConnell case indicated that

corporate spending on candidate-related speech, even if

conducted independent of candidates, had come to be used as a

means of currying favor with and attempting to influence

Federal office-holders.

It is important for us to remember that this case does not affect solely the integrity of Federal elections. The States also have a great deal at stake in this case. In a brief filed in the Citizens United case, 26 State attorneys general wrote that ``Courts have repeatedly upheld these State and Federal corporate electioneering restrictions from their inception.''

In their brief, the attorneys general wrote:

This case does not concern the traditional regulation of

corporate spending by State Laws. Instead it presents the

application of a recent Federal statute to a novel form of

political campaigning through the medium of video-on-demand

and the message of a ninety-minute film. These and other

political campaign innovations present an occasion to draw on

State law experiments, not end them. The court cannot reach

the validity of these laws under Austin without departing

from its conventional approach to constitutional avoidance

and as-applied review of campaign finance statutes, and

ignoring its cautions against facial challenges in election

law generally.

Austin follows a century of campaign finance law at the

State and Federal level honed by six decades of this Court's

holdings. Those decisions, and the State and Federal laws

that gave rise to and rely on them, delineate a workable

segregated-fund requirement for corporate electioneering that

is embedded in campaign laws and practice at the Federal and

State level. While imposing minimal burdens on corporations,

the segregated fund protects the integrity of the political

process from the corrupting influence of corporate executives

funding political campaigns that have no proven support from

the shareholders or customers whose money pays for the

advocacy. The flourishing of corporate speech through PACs,

and continued harms of direct corporate electioneering, has

vindicated rather than undermined Austin's approval of

segregated funds.

It is clear that the Austin and McConnell cases were correctly decided on the merits and those decisions remain sound today. According to the brief filed by the U.S. Solicitor General:

The Court in Austin held that corporations may

constitutionally be prohibited from financing electoral

advocacy with funds derived from business activities. That

holding was correct when issued and should not be overturned

now. Use of corporate treasury funds for electoral advocacy

is inherently likely to corrode the political system both by

actually corrupting political officeholders and by creating

the appearance of corruption. Moreover, such use of corporate

funds diverts shareholders' money to the support of

candidates who the shareholders may oppose.

Congress's interest in preventing these pernicious

consequences is compelling, and Congress has chosen a valid

message of achieving it, requiring a corporation to fund its

electoral advocacy through the voluntary contributions of

officers and shareholders who agree with its political

statements.

The Solicitor General's brief further stated:

Corporate participation in candidate elections creates a

substantial risk of corruption or the appearance thereof.

Corporations can use electoral spending to curry favor with

particular candidates and thus to acquire undue influence

over the candidates' behavior once in office.

The record in McConnell, which is by far the most extensive

body of evidence ever compiled on these issues, indicates

that during the period leading up to BCRA's enactment,

Federal office-holders and candidates were aware of and felt

indebted to corporations and unions that financed

electioneering advertisements on their behalf or against

their opponents.

The nature of business corporations makes corporate

political activity inherently more likely than individual

advocacy to cause quid pro quo corruption or the appearance

of such corruption. Even minor modifications in complex

legislation have great potential to benefit or burden

particular companies, industries, or sectors. The economic

stake of corporations in the nuances of such matters as

industry-specific tax credits, subsidies, or tariffs

generally dwarfs that of any set of individuals.

And when those benefits can be obtained through a game of

``pay to play,'' corporations are better suited than

individuals to afford the ante. Corporate managers need not

assemble a coalition of the like-minded; they can draw on the

firm's entire capitalization without seeking the approval of

shareholders. If only businesses can afford the investment

necessary to pursue rents in this way, only businesses can

reap the (even larger) reward. And the public perception that

businesses reap such rewards from legislators whom they

support in campaigns creates an appearance of corruption that

corrodes popular confidence in our democracy.

At the heart of the Citizens United case is a critical question: Do the cherished individual rights protected by the Constitution extend in the same manner to corporations? Corporations, after all, are artificial creations of law, provided for by acts of Congress and the State legislaturs, and endowed under these laws with perpetual existence, special tax status, and other privileges, all for the sole purpose of economic gain. The resolution of this question in the affirmative will have wide-ranging and unpredictable results for our legal system.

For example, if the Court determines corporations have first amendment rights, it will be logical that corporations also have fifth amendment rights against self-incrimination. Is a corporation ``endowed by its creator with inalienable rights''? Just last year the Court found that the second amendment right to bear arms is a personal right. If the Court were to determine that corporations had the same rights as persons, would corporations have the right to arm themselves? Would lobbies of Fortune 500 companies contain grand weapon caches? The absurdity of the argument should be apparent to the members of the Court.

John Marshall, former Chief Justice of the Supreme Court, wrote in 1819 that corporations were ``an artificial being, invisible, intangible.'' Therefore, he stated, ``Being the more creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.''

Essential to a corporation's existence is a first amendment right to speak about their products and services. Essential to a corporation's existence is the right to sue for the theft of its intellectual property. Essential to a corporation's existence is the right to enter into contracts. Not essential to a corporation's existence is the ability to contribute unlimited funds to political candidates.

It is for this reason and others that the Supreme Court has repeatedly and consistently upheld a ban on direct contributions to political candidates by corporations and unions. Chief Justice Roberts stated at one point during the argument in the Citizens United case that: ``We do not put our First Amendment rights in the hands of FEC bureaucrats.'' I agree. And that is why the Court has repeatedly upheld bans passed by the Congress of the United States and by the State legislators on unlimited corporate or union spending in elections.

Under current law, corporations are free to give to political candidates through political action committees. In an editorial in the Boston Globe entitled ``Corporations Aren't People Yet,'' the editorial board rightly states: ``Even under current financial restrictions, health care industry groups are pouring millions of dollars into Congressional campaigns in the hope of thwarting reforms that might constrain their members.''

A September 10, 2009 editorial in the Philadelphia Inquirer stated:

Allowing corporations to flood elections with their

aggregate corporate wealth would place a heavy thumb on the

scales of democracy. If a certain industry did not like the

way a Senator voted on environmental regulations, for

example, there would be nothing to stop that industry from

dumping $200 million into the campaign of that Senator's

opponent.

The editorial goes on to say:

If the high court rules now that corporations have the same

political speech rights as individuals, average citizens will

have that much more trouble being heard . . . the distinction

between corporate speech and individual speech is clear

enough, and the importance of limiting the undue influence of

money and politics is significant enough that the court, in

all its wisdom, should leave well enough alone.

I agree.

In conclusion, the Court should not overturn precedent and Congress's clear intent to limit corporate contributions to political candidates. In summary, there are three simple points raised by the Court's consideration of the Citizens United case. First, whatever one thinks of a first amendment right for corporations, it is not appropriate for a nondemocratic branch of government to raise a question of the broadest scope at the last minute when

such a question was not raised in the trial court and there is no ability to build a record.

Congress is the most democratically elected branch of government and should be able to make laws that do not stand in the face of the Constitution whether or not the members of the Court would themselves support such legislation if they served in the elected branches of government.

Secondly, the principle enshrined in law for many years was that corporations, because of their artificial legal nature and special privileges, including perpetual existence, pose a unique threat to our democracy. However, the current court seems poised to find that Thomas Jefferson, Theodore Roosevelt, and others were wrong despite there being no record built on this point in this case. In McConnell, there was a record built to support the decision. Here, the trial court never examined the idea of corporations having broad first amendment rights. The Court is reaching to find such a conclusion as part of the Citizens United case.

Lastly, I stress again to my colleagues the implications of the decision the Court may reach in this case. The Court is considering a question that may lead to corporations being treated as ``persons'' under the Constitution, would allow corporations to assert a fifth amendment right to refuse to testify under oath and to keep documents from lawful investigations, and would allow corporations to be subject to individual tax brackets.

Are my colleagues prepared to provide such rights to corporations? Are my colleagues prepared to pass legislation that taxes corporations and persons at the same rate? If the Court provides full first amendment rights to corporations, there is no reason that corporations could not receive the benefits as well as the responsibilities of being a person.

Justice Sandra Day O'Connor wrote in the McConnell decision, and I think with such accuracy, that ``money, like water, will always find an outlet,'' and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits. Again, Justice O'Connor knew better than most jurists, as a former Arizona State Senator, and majority leader of the Arizona State Senate. I hope and wish that the current Court heeds the words of this brilliant jurist who had real-life experiences in politics.

Needless to say, I am very concerned about the integrity of our elections should the Supreme Court rule to overturn the Austin decision. I sincerely hope that the Justices will practice restraint and rule in a manner consistent with judicial precedent and the Constitution of the United States of America.

I again want to, as I have on many occasions, thank my friend from Wisconsin, a man of courage and a man of integrity, and a man I have always been proud to be associated with on issues such as these that are important to the integrity of the institution that we both try to serve with honor.

I yield the floor.

Mr. President, let me say at the outset the Senator from Rhode Island has addressed two issues that are timely and important. I certainly concur with him and cosponsor the legislation offered by the chairman of the Senate Judiciary Committee, Senator Patrick Leahy, which would repeal the McCarran-Ferguson Act as it relates to health insurance companies and medical malpractice insurers. The McCarran- Ferguson Act, since the 1940s, if I am not mistaken, has exempted the insurance industry from antitrust regulation, which literally means those insurance companies, exempt from the supervision of the Justice Department, can engage in conduct absolutely illegal and unacceptable by any other corporation in America, save one. Organized baseball is given the same basic exemption for reasons that are lost in the pages of history. But I will say that under the current McCarran-Ferguson law, the health insurance companies have the power to fix prices, to allocate markets. In other words, they can make good on their threat 2 weeks ago that they are going to raise health insurance premiums if we pass health care reform in America. There is nothing we can do to stop them, short of creating a competitive model where they might have an actual competitor in markets such as Rhode Island and Illinois. It is known as the public option. Some people brand it as socialism or some wild French idea, but what it comes down to is basic competition-- something the health insurance companies loathe. Because of the antitrust exemption, McCarran-Ferguson, they have not been held to the same standards as any other business in America.

I believe Senator Leahy is on the right track. It is part of the health care reform. I know he is supported by Senator Harry Reid, the majority leader, that we should repeal the McCarran-Ferguson antitrust legislation as it exists today.

I concur with Senator Whitehouse as well on the notion that the case which is now pending before the U.S. Supreme Court could, in my mind, completely destroy our political climate and campaigning in America. If we allow corporations to be exempt from limitations in their involvement in this political process, it is virtually the end of campaigns as we have known them.

It is time for us to not only endorse the position that has been expressed by Senator McCain, Senator Feingold, and Senator Whitehouse, but also step back and take an honest look at this system, which I think is unsustainable and intolerable.

I have introduced legislation with Senator Specter calling for public financing of campaigns. When will we ever reach the conclusion that this system, if it is not corrupt, is corrupting? In order to take the big money out of politics, whether from corporations or from individuals, we need to move to a model that has been embraced by States that are more progressive in their outlooks. The States of Maine and Arizona have moved in this direction. We should as well.

I support public financing, and I hope our Rules Committee can consider a hearing on this important measure soon.

Unemployment Insurance Benefits

Yesterday, I came to the Senate floor to talk about a Republican hold on our efforts to extend unemployment insurance benefits to millions of Americans. These are people who have worked hard their entire adult lives and are struggling now to make ends meet. Some of them earned six-figure salaries and others more modest incomes, and now they are struggling to put food on the table. Some had high-ranking bank jobs, others more mundane and routine jobs. But they are all in trouble, and they are counting on us to let them have the money they put into a fund for their unemployment.

These people worked for years on factory floors, building expertise in machines and equipment, and now have depleted their savings and do not know where to turn, and they are frightened.

Listen to the words a husband and father from Joliet, IL, has written to me:

I am one of the millions who has become dependent on my

unemployment benefits to help carry our family from week to

week. I've been employed full time since I was legally old

enough to work and have always had a job.

I worked at the same company for 8 years before losing my

job due to lack of work. Confident that I'd find a job right

away, I didn't sweat it. But I haven't. Eighteen months later

and I'm still unemployed and terrified because I'm about to

receive my last unemployment check.

I have two young children, a modest house, one vehicle and

a lot of bills. I'm horrified at the thought that I won't be

able to pay my bills or put food on our table. We just got

hit with unforeseen medical bills that the insurance company

has decided not to cover (apparently vaccinating children

falls under the ``unimportant'' category), my truck needs

tires and brakes, but we can't afford to pay for either, and

my refrigerator is threatening to die on me.

My entire world feels like it's crumbing around me but I

was confident that the government, my government, would be

there to back us up and I'm appalled that this extension is

being held up.

Without this extension, things are going to get much worse.

I'm scared. Please don't let us fall through the cracks.

I say to the Senator from Rhode Island, I am sure he has received similar messages from his State, and I am sure our Republican colleagues have received similar messages. They have held us up in our attempt to extend unemployment benefits to millions of people just like the man who wrote to me from Joliet, IL.

Here is something I just learned. The Republicans say: We cannot go onto unemployment benefits because we want to offer some amendments. This is a common plank we hear from them, that they don't have enough of a chance to offer amendments. I have not seen the amendments, but they were described to me. I think the Senator from Rhode Island may be surprised to learn that two of the amendments they want to offer--the reason they are holding up unemployment benefits is because they want to take another whack at ACORN. Think about that. The Republican Senate leadership has reached the point where they would consider amendments on the organization of ACORN as an alternative or at least holding up even the most basic unemployment benefits for unemployed workers across America.

ACORN is a controversial organization. I know that as well as anyone. I said the people who were disclosed on a video several weeks ago should be held accountable. I know they have been fired. And if they have broken laws, they should be prosecuted, period. I called for an investigation of ACORN's involvement with the Federal Government to find out if there has been wrongdoing and misuse of Federal funds. We have gone even further on the floor of the Senate to actually barring ACORN from doing business with

the Federal Government. But that is not enough on the Republican side of the aisle. In order to feed the mouths of the rightwing cable shows, they keep pushing ACORN down our throats at the expense of unemployment benefits for millions of Americans.

When you look at this, this is such a vacuous, frivolous, embarrassing outcome that we would say to people like the man who has just written to me: Sorry, we cannot give you the peace of mind you get with an unemployment check; we have to take another whack at ACORN and we have to hold up the bill for weeks until we satisfy a few Senators who cannot get enough of this exercise. I don't think it is responsible. I sure don't think it is fair. And I can tell you that the people who are suffering because they lost their jobs and are feeling the pain and frustration are not going to be satisfied to know a few Republican Senators want to offer another amendment on ACORN.

Listen to the frustration and pain of a veteran from Cicero, IL. He writes:

My age is 61. I have been unemployed since March 2008. I am

actively looking for work. It has been more than 6 months

since I've even had an interview.

When I've had interviews, I feel that once the interviewer

sees my gray hair, I am eliminated from competition, saying

I'm over qualified.

I'm realistic, and willing to take a cut in pay to [get a

job].

What I'm writing about is the extension of unemployment

benefits. I've received notices from the State of Illinois my

extended benefits and emergency benefits from the State of

Illinois have expired.

I understand that the House [of Representatives in

Washington] has voted to extend benefits by an overwhelming

majority. But the extension is being held up in the Senate.

Sir, I am facing losing my home and all my possessions that

I can't pack in my car.

I must urge you once again to look positively and in a

timely manner to a vote in the Senate. Now, I must also ask

you to consider extending relief to those who no longer

have benefits.

I have now applied for State welfare benefits. I am now

waiting for my scheduled interview to have my application

reviewed.

All of these people have been helped by unemployment insurance. All of them are at risk of losing that lifeline.

Since I spoke on the floor yesterday about the Republican obstructionism stopping us from bringing up unemployment benefits, 7,000 people have lost their unemployment insurance, 7,000 more will lose it today and 7,000 more tomorrow. Why? So that several Senators can have another amendment attacking ACORN. Does that make any sense? Is that fair or just? These Senators ought to go home to their States and tell the people who are out of work and not receiving unemployment: Sorry, we can't help you yet because we have a few more political items to work on, an agenda.

Republicans in this body, unfortunately--some of them--are too concerned about the political agenda and not concerned enough about the human agenda of hard-working Americans out of work. Mr. President, 1.3 million Americans will lose benefits by the end of the year if we do not pass the Democratic extension of unemployment benefits; 1.3 million Americans will suffer needless poverty and deprivation for their families because of this obstructionism. These are working-class families. These are families we value in this country. These are families who deserve a fighting chance.

I say to my Republican colleagues who have stopped the Democrats from extending unemployment insurance benefits: What are you waiting for? Don't you receive the same e-mails, mail, and phone calls we receive? You have unemployed people in your State. Clearly, they need help.

Mr. President, 50,000 families in Illinois will lose their unemployment insurance, while they look for work, by the end of the year if the Senate does not act. Some seem to be worried about how to pay for this extension, but we have paid into this for years. Workers put in a little bit of money out of their paychecks, and employers as well. It goes right into a fund to cover unemployment. So it is not as if the money is not there; it is just the political will is lacking. Unfortunately, there are other things that are more important to some people on the other side of the aisle.

I say to my colleagues in the Senate, it is time for us--in fact, it is over time for us--to pass extension of unemployment benefits.

Hate Crimes Legislation

Mr. President, the Defense authorization bill includes hate crimes language which for several years has been passed by both the House and the Senate only to see it blocked by filibuster threats or by the threat of a veto. What a difference a year has made. When Congress took up the hate crimes bill last Congress, President George W. Bush called it ``unnecessary and constitutionally questionable.'' He said he would veto it.

The American people said last November that they wanted a new President and a change. They wanted our country to move in a different direction. President Obama is doing that. In this case, he is supporting the hate crimes legislation.

This bill has another important champion who sadly is no longer with us. Senator Ted Kennedy of Massachusetts was our leader on this issue for over a decade. I only wish he were here to vote and join us on the passage of this important legislation. Nobody spoke to this issue with more authority and clarity than Senator Ted Kennedy. He was the heart and soul of the Senate, and passing this bill will honor the great work he gave in his public career to the cause of civil rights.

I generally believe Congress should be careful in federalizing crime, but in the case of hate crimes, there is a demonstrated problem and a carefully crafted solution.

There are two parts to this problem. First, the existing Federal hate crimes law, which was passed over 40 years ago in 1968 after the assassination of Dr. Martin Luther King Jr., only carries six narrow categories of conduct. The hate crime has to take place, for example, while using a public accommodation. The hate crimes bill now being considered would expand coverage so that hate crimes could be prosecuted wherever they take place. Federal prosecutors would no longer be limited to these six narrow categories.

Second, the bill would expand the categories of people covered under the Federal hate crimes law. The current law provides no coverage for hate crimes based on the victim's sexual orientation, gender, gender identity, or disability. Unfortunately, statistics tell us that hate crimes based on sexual orientation are the third most common after those based on race and religion. About 15 percent--one out of six or seven--of all hate crimes is based on sexual orientation. We cannot ignore this reality.

Let me address one or two arguments made against this bill.

Many have written to me and said they believe this bill would be an infringement on religious speech. Their concern is that a minister in a religious setting could be prosecuted if he sermonizes against homosexuality and then a member of his congregation assaults someone on the basis of their sexual orientation. I certainly understand this, but their concern is misplaced.

The chair of the Senate Judiciary Committee, Senator Leahy, held a hearing a few months ago with Attorney General Eric Holder. I attended the hearing, and I asked the Attorney General of the United States pointblank whether a religious leader could be prosecuted under the facts I just described. This is what the Attorney General said in response to the hypothetical question I raised:

This bill seeks to protect people from conduct that is

motivated by bias. It has nothing to do with regard to

speech. The minister who says negative things about

homosexuality, about gay people, this is a person I would not

agree with, but is not somebody who would be under the ambit

of this statute.

This clear representation from the Nation's top law enforcement officer puts to rest, in my mind and the mind of any reasonable person listening to it, any misunderstanding people might have about how this law would work.

It is also important to note that the hate crimes bill requires bodily injury before prosecution. Words are not enough. It does not apply to speech or harassment. It does not apply to those who would carry signs with messages which exhibit their religious belief. Attorney General Holder assured the Senate that unless there is bodily injury involved, no hate crimes prosecution could be brought. I don't know how he could have been clearer and more definitive. People who listen to his statement in good faith will understand it.

I also note that 24 States, nearly half the States in our Nation, have hate crime laws on the books that include sexual orientation, and religious leaders are not being prosecuted in those States.

That is not the purpose of the hate crimes law. Prosecutors aren't looking to put ministers in jail for their religious beliefs. To the contrary, the hate crimes bill will actually help religious communities. Understand, 20 percent of all hate crimes that are committed in the United States are committed on the basis of religion. This bill would eliminate the narrow requirements that currently prevent Federal prosecutors from bringing certain hate crimes cases motivated by religious bias.

Another criticism of the legislation is there is no need to pass a Federal hate crimes law because some States are already doing it on their own. This argument is similar to one we faced before. Almost a century ago, when Congress debated an antilynching law between 1881 and 1964, almost 5,000 people were lynched in the United States. The victims were mostly--but not exclusively--African American. Yet Congress resisted addressing this problem for generations. Criminal law is primarily a State and local function. I understand that. An estimated 95 percent of prosecutions for crimes occur at that level. But in some areas of criminal law, the Federal Government can and should step in to help.

We have 4,000 Federal criminal laws, 600 of which have been passed in the last 10 years. Hate crimes are a sad and tragic reality in America. The killing this past summer of an African-American security guard at the Holocaust Museum here in Washington, DC, was a reminder that hate- motivated violence still plagues our Nation.

Earlier this year, in my home State of Illinois, two White men in the town of Joliet used a garbage can to beat a 43-year-old Black man outside a gas station, while yelling racial epithets and stating: ``This is for Obama.'' The victim sustained serious injuries, lacerations, and bruises to his head.

Just 2 weeks ago, in Springfield, in my hometown, three University of Illinois students were arrested for viciously beating and punching two men while yelling antigay slurs at them.

These are incidents in my home State, a State I am proud to represent, but I am not proud of this criminal conduct, and I don't think America should be proud of it.

According to FBI data, based on voluntary reporting, there are 8,000 hate crimes annually in America. Some experts think the number is closer to 50,000. The hate crimes bill would not eliminate hate crimes, but it will help ensure these crimes do not go unpunished.

In closing, I wish to quote the words of Senator Kennedy when he introduced the hate crimes bill in April. This is what he said:

It has been over 10 years since Matthew Shepard was left to

die on a fence in Wyoming because of who he was. It has also

been 10 years since this bill was initially considered by

Congress. In those 10 years, we have gained the political and

public support that is needed to make this bill into law.

Today, we have a President who is prepared to sign hate

crimes legislation into law, and a Justice Department that is

willing to enforce it. We must not delay the passage of this

bill. Now is the time to stand up against hate-motivated

violence and recognize the shameful damage it has done to our

Nation.

We will honor the memory and legacy of Senator Edward Kennedy by passing this Defense authorization conference report, which includes the hate crimes law language. We need to send this to President Obama, who has promised he will sign it into law. I urge my colleagues to join me in support of this important legislation.

I yield the floor and suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I come to the floor to speak in strong support of the Health Insurance Industry Antitrust Enforcement Act, introduced by the senior Senator from Vermont, the chairman of our Judiciary Committee, Mr. Patrick Leahy. I believe this bill is an important part of health care reform, and I am hopeful it can be included in the final reform bill as it makes its way through this body.

Our antitrust laws embody the proud American idea that democracy shapes capitalism and not vice versa; that vigorous economic competition is not an amoral, Hobbesian contest but disciplined by a strong rule of law tradition; and that ours is not a society in which might makes right and only the powerful write the rule book.

The great Supreme Court jurist and antitrust crusader William O. Douglas, wrote:

Industrial power should be decentralized. It should be

scattered into many hands so that the fortunes of the people

will not be dependent on the whim or caprice, the political

prejudices, the emotional stability of a few self-appointed

men. . . . That is the philosophy and the command of the

Sherman [Antitrust] Act.

The passage of the Sherman Antitrust Act and the Clayton Antitrust Act and the creation of the Federal Trade Commission and the Antitrust Division at the Department of Justice demonstrated a Federal commitment to a level economic playing field. Small businessmen and entrepreneurs, shouldering the enormous task of starting and sustaining a new enterprise, would know that powerful competitors could not collude to keep them out of the market. Consumers could rest assured that prices were not being fixed artificially high by scheming monopolists. Every industry, ever vector of American business, was made subject to these rules of the road--except for one: the insurance industry.

In 1944, insurance companies challenged the Federal Government's very ability to enforce antitrust laws against them, and the Supreme Court ruled that the insurance business was subject to antitrust laws just like everybody else. In response, insurance companies came to Congress, where they launched a massive lobbying campaign, pressuring Congress to invalidate the Supreme Court's decision--not unlike the current lobbying barrage they are aiming at killing health care reform. That campaign back in 1944 was successful. In March 1945, the McCarran- Ferguson Act exempted insurance companies entirely from the reach of America's antitrust laws. If that exemption ever made sense, it no longer does, especially when it comes to health insurance coverage.

Today, Americans pay ever-higher premiums for less care because a small group of wealthy, powerful companies control the health insurance market. Just consider these numbers: A study by the American Medical Association shows that 94 percent of metropolitan areas--virtually every one--has a health insurance market that is ``highly concentrated,'' as measured by Department of Justice standards. This means that if the Department of Justice's Antitrust Division had enforcement authority over the health insurance industry, it would be carefully scrutinizing this market for signs of anticompetitive conduct that hurts consumers. But due to the antitrust exemption, the Department of Justice cannot do that job. That same study shows that, in 39 States 2 health insurers control at least half of the health insurance market and in 9 States a single insurer controls at least 70 percent of the market.

Back in 1945, the insurance industry argued that it should be exempted from the antitrust laws because the market was heavily localized and not concentrated. Well, if that were true then, it is not true now.

Overhead for private insurers is an astounding 20 to 27 percent-- charges that consumers pay for in higher premiums. A Commonwealth Fund report indicates that private insurer administrative costs increased 109 percent from 2000 to 2006--109 percent in those 6 years--and the McKinsey Global Institute estimates that Americans spend roughly $150 billion annually on what the report calls ``excess administrative overhead'' in the private health insurance market. Mr. President, $150 billion a year in ``excess administrative overhead.'' Clearly, this is not a competitive market. If it were, companies would be driven to cut these costs in order to compete effectively in the marketplace.

Without competition and without economic incentive to avoid massive administrative costs, health insurance premiums have increased 120 percent--more than doubled--in one decade, while insurance industry profits increased 428 percent in the same period--428 percent.

Doctors and other health care providers have been hurt as well. For many years, United Health Care, a massive health insurance company, owned and operated a computerized pricing system that was used by almost every other health insurer. The New York attorney general recently found that the system was designed to systematically underpay doctors for their services and that this had been going on for years. United Health paid $400 million to settle lawsuits by the State, but if the Federal Trade Commission or the U.S. Department of Justice had tried to bring suit under the Federal antitrust laws, they would have been blocked by McCarran-Ferguson.

Finally, ironically, health insurers threaten and sue doctors all the time under these same antitrust laws while protecting their own exemption from the laws they seek to impose on the providers and the doctors whom they torment.

One might ask how this exemption has survived so long. A certain school of political thought holds that the only proper relationship of government to the market is hands off, that any government involvement in the marketplace is unnatural and unwelcome. But with respect to antitrust enforcement, we crossed that Rubicon long ago, and every industry in the country is required to play by rules that support the market by increasing competition, again, except insurance. Experience in those other areas has shown that the government referee on the field of play creates a better environment for competition, and the public wins.

Think of the benefits of a competitive health insurance market. Insurers would have to compete on price, lowering premiums for individuals and small businesses purchasing insurance, and work hard to lower those unnecessary administrative costs. New competitors would be able to enter more easily and offer better consumer service, quicker claims processing, streamlined enrollment--competition that is desperately needed in a market where 36 percent of physician overhead is consumed by fighting with the insurance industry over inappropriate denial and delay of health insurance claims.

Senator Leahy's Health Insurance Industry Antitrust Enforcement Act would repeal the unique and peculiar exemption for health insurance and medical malpractice insurance companies. The bill ensures that these companies are no longer permitted to engage in the most egregious forms of antitrust violations--price fixing, bid rigging, and market allocations--while preserving insurers' ability to share statistical information with each other in a procompetitive manner, with appropriate approvals.

Let me conclude with the words of a distinguished Senator, one of the greatest advocates for the elderly, ill, and disabled this Chamber has seen, Senator Claude Pepper. Senator Pepper, at the time, strongly opposed the McCarran-Ferguson antitrust exemption for the insurance industry, and he

warned of the ``carte blanche authority . . . which had been contained in no previous legislation . . . [and] which for the first time gives the States carte blanche to legitimize the very vices against which the Clayton Act and the Sherman Act were directed.''

It appears to me the exemption for the insurance industry was a mistake then, and it is assuredly unwise now. Let's repeal this unfair law and give health insurance consumers the same benefits of free, open, and fair competition that all Americans enjoy.

Let me finally add that the state of the health insurance market reinforces the need to which I have spoken, and so many of my colleagues have spoken before, for an efficient, nonprofit public health insurance option. The health insurance industry has been artificially sheltered by government for decades, building huge profit margins, massive market share, and colossal overhead and administrative costs. Now these same companies argue vehemently against the public option on the grounds that it would amount to government interference-- government interference with their government protection from competition. That irony just doesn't pass the laugh test.

According to the AMA study I quoted in the beginning of my remarks, Rhode Island is the second most concentrated health insurance market in the country. Just two insurers control 95 percent of the market. My constituents desperately would like the chance to choose a public option and would benefit from a more competitive health insurance market, one in which vigorous competition brings down costs and improves the quality of care and encourages health insurers to treat people decently.

Mr. President, I have concluded the remarks on the McCarran-Ferguson exemption. I wish to turn to another topic, but I see the majority whip on the Senate floor, and I would be delighted to yield to him if he wishes to take a moment.

I will continue, then. I thank the distinguished majority whip.

Bipartisan Campaign Reform Act

Mr. President, I wish now to say a few words about the colloquy that took place between Senator McCain and Senator Feingold on the Senate floor a few moments ago over the need to protect our Nation's political system from the influence of corporate money.

For more than a decade, Senators McCain and Feingold have been stalwart defenders of the integrity of our political system, and they achieved a hard-fought victory in 2002 with the passage of the Bipartisan Campaign Reform Act, which everybody around here knows as the McCain-Feingold law. As they said in their remarks, we face a real danger that an activist Supreme Court will strike down portions of that law, overturn the will of Congress and the American people, and allow corporations to spend freely in order to elect and defeat candidates and influence public policy to meet their ends. The consequences of such a decision by our Supreme Court could be nightmarish.

Federal laws restricting corporate spending on campaigns have a long pedigree. Back in 1907, the Tillman Act restricted corporate spending on political campaigns. While various loopholes have come and gone over the years, the principle embodied in that law that corporations aren't free to spend unlimited dollars to influence political campaigns is a cornerstone of our American system of government. That principle now appears to be at risk as the Supreme Court may be poised to open the floodgates now holding back corporate cash.

In September, the Supreme Court heard oral argument in Citizens United v. The Federal Election Commission. Citizens United is an organization that accepts, channels, and funnels corporate funding. It sought to broadcast a documentary attacking our former colleague, Senator Clinton, now Secretary of State Clinton, at the time a candidate for President, on On Demand cable broadcasts. Current law prohibits the broadcast of this kind of corporate advocacy on the eve of an election. Citizens United filed a lawsuit arguing that the law infringed on its first amendment rights.

Many observers expected the Court to rule narrowly on the case, perhaps focusing on whether McCain-Feingold applies to On Demand broadcasts. Instead, after hearing oral argument, the Court asked for an additional briefing and a new round of oral argument, something the Supreme Court does very rarely, to consider whether the first amendment bans such restrictions on corporate campaign spending. There is some indication that the activist conservative wing of the Court believes it does. We may be on the verge of another effort by a Roberts court to advance its ideologically charged view of the Constitution. In so doing, the Court would overturn its own longstanding precedents, opinions such as Austin v. Michigan State Chamber of Commerce where Justice Thurgood Marshall warned of ``the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public support for the corporation's political ideas.''

Should the Court upturn so much long-settled law, it would upend our entire political system and we could see a new era of corporate influence over politics not seen in the history of our Republic.

Imagine for a moment what our political system would look like if the Court takes the fateful step of allowing corporations to unrestrictedly spend money to influence campaigns. Corporate polluters under investigation by the Department of Justice, running unlimited advertisements for a more sympathetic Presidential candidate; financial services companies spending unlimited money to defeat Members of Congress who have the nerve to want to reform the way things are done on Wall Street; defense contractors overwhelming candidates who dare question a weapons program they build. It would become government of the CEOs, by the CEOs, and for the CEOs.

Nothing in the history of the first amendment requires the protection of such activities. To the contrary, Congress long has been understood to hold the power to protect the electoral process from the corrupting flood of corporate money. This is because, as the Supreme Court long has recognized, a corporation holds no inalienable right to participate in an election. Unlike the people from whom the sovereign power of the State is drawn, a corporation is created by and subject to the sovereign power of the State. Indeed, as Chief Justice John Marshall explained in 1809, only 18 years after ratification of the first amendment, a corporation is ``a mere creature of the law, invisible, intangible, and incorporeal and certainly not a citizen.''

In 1906, a century later, the Supreme Court explained that:

The corporation is a creature of the state. It is presumed

to be incorporated for the benefit of the public. It receives

certain special privileges and franchises, and holds them

subject to the laws of the state and the limitations of its

charter. Its powers are limited by law.

Corporations are created by government charter. They are legal fictions, tools for organizing human behavior. Neither logic nor history justifies unleashing them from the bonds of government to master and control the very government that created them--new monsters on the political landscape, bending public wealth to their peculiar private purposes.

How might they do that? Well, let's look at one recent case involving Bank of America.

All of us remember in September of 2008, Bank of America announced that it would buy Merrill Lynch for $50 billion. In August of this year, the Securities and Exchange Commission filed a civil suit against the Bank of America alleging that it had made a misrepresentation to its shareholders that Merrill Lynch would not pay bonuses to its executives in 2008 when, in fact, Bank of America had agreed that Merrill Lynch could pay up to $5.8 billion in bonuses to its executives. That is the background.

Bank of America and the Securities and Exchange Commission submitted a proposed final consent judgment proposing to resolve that case by giving $33 million of shareholder money to the Securities and Exchange Commission. The U.S. District Court in New York took a look at this proposal and threw it out. The judge rightfully rejected it as neither fair nor reasonable nor adequate. The Court said it well; I can't improve on the Court's decision:

The parties were proposing that the management of Bank of

America--having allegedly hidden from the bank's shareholders

that as much as $5.8 billion of their money, shareholder

money, would be given as bonuses to the executives of Merrill

who had run that company nearly into bankruptcy--would settle

the legal consequences of their lying by paying the SEC $33

million more of their shareholders' money.

As the Court noted, this was all done ``at the expense not only of the shareholders, but also of the truth.''

That is a pretty stark example of corporate management trying to use shareholder money to serve its own ends, even against shareholder interests. Well, guess whose interests corporate managers would pursue politically if they could open the spigots of shareholder money in elections.

Longstanding statutes and judicial precedents that limit corporate involvement in campaigns rests on the well-established and long- accepted recognition that corporations and their corrupting self- interests must be controlled. There is no reason now for a fundamental rethinking of such a plain and well-settled principle. The rightwing of the Supreme Court will be hard pressed to justify departing from such settled understandings of the first amendment, from the century-long tradition of controlling corporate spending, to invent new constitutional rights for corporations against real human beings.

In closing, I stand with my colleagues, Senator McCain and Senator Feingold, in readiness to do what it takes to protect our system of campaign finance laws from the danger of corporate corruption. I look forward to working with them and my other colleagues to ensure that our elections remain enlivened by a robust debate among human participants in which CEOs don't have favored princely status because they can direct corporate funds to drown out people's voices.

I thank the Presiding Officer, and I yield the floor.

Mr. President, yesterday the Supreme Court announced it would hear a case that has critical ramifications for our ability to detain foreign nationals safely outside our borders during wartime at the U.S. naval station at Guantanamo Bay, Cuba. The case also provides insight into the question of the best place to detain and try foreign terrorists.

The case involves a group of ethnic Chinese Uighurs who are detained at Guantanamo Bay. The Uighurs won their habeas corpus petition to be released from custody. Many of these Uighurs, however, had received terrorist training in the Tora Bora Mountains of Afghanistan, including weapons training on AK-47 assault rifles at a camp run by the head of a group that our State Department has designated a terrorist organization and that the United Nations has listed as a group associated with Osama bin Laden, al-Qaida, or the Taliban.

Not surprisingly, it has not been easy to find countries eager to accept the Uighurs into their civilian populations. So the Uighurs sued to be released into the United States. Federal District Court Judge Ricardo Urbina granted the Uighurs' request and ordered them released in our country. It did not matter to Judge Urbina that the Uighurs did not have an immigration status or that they had received military-style weapons training or that they had associated with a terrorist group. He was persuaded by their argument that justice required that they be released right here in the United States.

Fortunately, the DC Circuit Court reversed Judge Urbina. It ruled that even though the Uighurs had won their habeas corpus petition, they did not have a right to be released into the United States. In other words, it ruled that even if the government had to release them, it did not have to release them into Alexandria or Annandale or Falls Church or anywhere else in Northern Virginia that the Uighurs might like to go.

The DC Circuit's ruling is important to national security in general and to the debate over where we should try foreign terrorists in particular. The DC Circuit noted that the Supreme Court has held that foreign nationals, without property or presence in the United States, have fewer legal rights than foreign nationals who are present on American soil.

The DC Circuit also noted that the Supreme Court has repeatedly ruled that a sovereign has a right to control its borders, and that means it has a right to bar from being released into its territory foreign nationals whom it has not admitted onto its soil.

In short, because these detainees remain at Guantanamo outside our borders, they have fewer legal rights than they would have if they were brought within our borders, including the right to be released into our civilian population.

We don't know how the DC Circuit would have ruled if the Uighurs had been present on U.S. soil. But we do know a couple of things. First, the DC

Circuit's reason for not releasing them into the United States was that they had not been brought into the United States. Let me say that again. The DC Circuit's reason for not releasing them in the United States was that they had not been brought here. Second, other foreign nationals who have committed murder and other serious crimes who were in the United States have been released here when our government could not transfer them to another country, either because they did not want to go to another country or because other countries did not want to take them.

The administration and its defenders in the Senate say that because we have tried terrorists in civilian courts before, we should do so again. They say there is no problem with us doing so because the administration would never release detainees into the United States, by which they really mean to say the administration would not intentionally release detainees into the United States. Both assertions miss the mark.

First, whether we can try terrorists here is not the issue. The issue is whether we should try terrorists here. We can try them here, but should we? Before he became Attorney General, Michael Mukasey was a noted Federal trial judge who presided over civilian trials of terrorists such as the trial of the so-called Blind Sheik, Omar Abdel Rahman, for the 1993 World Trade Center bombing. He has written that there are very good reasons we should not try terrorists in a civilian court. This is a judge who presided over a terrorist trial in a U.S. civilian court, and this is what he says: We should not try terrorists in civilian court, including the additional legal rights terrorists will receive if they are brought here.

I ask unanimous consent to have printed in the Record at the conclusion of my remarks General Mukasey's recent op-ed on the topic.

Mr. President, second, once the administration brings detainees into the United States--right here in our country--it is no longer simply a matter for the administration. In other words, once they get here, the administration cannot entirely control the issue of whether they are going to be released. It is no longer about what it will or will not do. It is also about what a Federal judge will or will not do.

As we saw with Judge Urbina and the Uighurs, a judge may very well agree with the legal arguments of Guantanamo detainees and order them released right here in the United States. In other words, no matter what the administration's intention may be, once we bring them here, they do not control the situation; the courts do.

Those risks do not exist if the Obama administration does not bring the Guantanamo detainees into the United States. That risk does not exist if it leaves them at Guantanamo and tries them at the modern, multimillion-dollar courtroom at Guantanamo Bay under the very military commission rules it has now rewritten to its liking and which we will soon vote on when we consider the Defense authorization conference report.

The Supreme Court should affirm the DC Circuit Court's decision and let the political branches maintain control over our borders, including deciding whether and how foreign nationals outside our borders may be admitted within them.

If it does, it will bring clarity to the debate over whether terrorist detainees at Guantanamo Bay ought to be transferred to the United States. That clarity is this: If we want certitude that foreign terrorists detained at Guantanamo Bay are not released into the United States, then do not bring them here in the first place.

Mr. President, I repeat. We could try terrorists in the United States--we could do that--but the issue is should we do that. The answer is no.

I yield the floor.

Exhibit 1

[From the Wall Street Journal, Oct. 19, 2009]

Civilian Courts Are No Place To Try Terrorists

(By Michael B. Mukasey)

The Obama administration has said it intends to try several

of the prisoners now detained at Guantanamo Bay in civilian

courts in this country. This would include Khalid Sheikh

Mohammed, the mastermind of the Sept. 11, 2001 terrorist

attacks, and other detainees allegedly involved. The Justice

Department claims that our courts are well suited to the

task.

Based on my experience trying such cases, and what I saw as

attorney general, they aren't. That is not to say that

civilian courts cannot ever handle terrorist prosecutions,

but rather that their role in a war on terror--to use an

unfashionable harsh phrase--should be, as the term ``war''

would suggest, a supporting and not a principal role.

The challenges of a terrorism trial are overwhelming. To

maintain the security of the courthouse and the jail

facilities where defendants are housed, deputy U.S. marshals

must be recruited from other jurisdictions; jurors must be

selected anonymously and escorted to and from the courthouse

under armed guard; and judges who preside over such cases

often need protection as well. All such measures burden an

already overloaded justice system and interfere with the

handling of other cases, both criminal and civil.

Moreover, there is every reason to believe that the places

of both trial and confinement for such defendants would

become attractive targets for others intent on creating

mayhem, whether it be terrorists intent on inflicting

casualties on the local population, or lawyers intent on

filing waves of lawsuits over issues as diverse as whether

those captured in combat must be charged with crimes or

released, or the conditions of confinement for all prisoners,

whether convicted or not.

Even after conviction, the issue is not whether a maximum-

security prison can hold these defendants; of course it can.

But their presence even inside the walls, as proselytizers if

nothing else, is itself a danger. The recent arrest of U.S.

citizen Michael Finton, a convert to Islam proselytized in

prison and charged with planning to blow up a building in

Springfield, Ill., is only the latest example of that

problem.

Moreover, the rules for conducting criminal trials in

federal courts have been fashioned to prosecute conventional

crimes by conventional criminals. Defendants are granted

access to information relating to their case that might be

useful in meeting the charges and shaping a defense, without

regard to the wider impact such information might have. That

can provide a cornucopia of valuable information to

terrorists, both those in custody and those at large.

Thus, in the multidefendant terrorism prosecution of Sheik

Omar Abdel Rahman and others that I presided over in 1995 in

federal district court in Manhattan, the government was

required to disclose, as it is routinely in conspiracy cases,

the identity of all known co-conspirators, regardless of

whether they are charged as defendants. One of those co-

conspirators, relatively obscure in 1995, was Osama bin

Laden. It was later learned that soon after the government's

disclosure the list of unindicted co-conspirators had made

its way to bin Laden in Khartoum, Sudan, where he then

resided. He was able to learn not only that the government

was aware of him, but also who else the government was aware

of.

It is not simply the disclosure of information under

discovery rules that can be useful to terrorists. The

testimony in a public trial, particularly under the probing

of appropriately diligent defense counsel, can elicit

evidence about means and methods of evidence collection that

have nothing to do with the underlying issues in the case,

but which can be used to press government witnesses to either

disclose information they would prefer to keep confidential

or make it appear that they are concealing facts. The

alternative is to lengthen criminal trials beyond what is

tolerable by vetting topics in closed sessions before they

can be presented in open ones.

In June, Attorney General Eric Holder announced the

transfer of Ahmed Ghailani to this country from Guantanamo.

Mr. Ghailani was indicted in connection with the 1998 bombing

of U.S. Embassies in Kenya and Tanzania. He was captured in

2004, after others had already been tried here for that

bombing.

Mr. Ghailani was to be tried before a military commission

for that and other war crimes committed afterward, but when

the Obama administration elected to close Guantanamo, the

existing indictment against Mr. Ghailani in New York

apparently seemed to offer an attractive alternative. It may

be as well that prosecuting Mr. Ghailani in an already

pending case in New York was seen as an opportunity to

illustrate how readily those at Guantanamo might be

prosecuted in civilian courts. After all, as Mr. Holder said

in his June announcement, four defendants were ``successfully

prosecuted'' in that case.

It is certainly true that four defendants already were

tried and sentenced in that case. But the proceedings were

far from exemplary. The jury declined to impose the death

penalty, which requires unanimity, when one juror disclosed

at the end of the trial that he could not impose the death

penalty--even though he had sworn previously that he could.

Despite his disclosure, the juror was permitted to serve and

render a verdict.

Mr. Holder failed to mention it, but there was also a fifth

defendant in the case, Mamdouh Mahmud Salim. He never

participated in the trial. Why? Because, before it began, in

a foiled attempt to escape a maximum security prison, he

sharpened a plastic comb into a weapon and drove it through

the eye and into the brain of Louis Pepe, a 42-year-old

Bureau of Prisons guard. Mr. Pepe was blinded in one eye and

rendered nearly unable to speak.

Salim was prosecuted separately for that crime and found

guilty of attempted murder. There are many words one might

use to describe how these events unfolded; ``successfully''

is not among them.

The very length of Mr. Ghailani's detention prior to being

brought here for prosecution presents difficult issues. The

Speedy Trial Act requires that those charged be tried within

a relatively short time after they are charged or captured,

whichever comes last. Even if the pending charge against Mr.

Ghailani is not dismissed for violation of that statute, he

may well seek access to what the government knows of his

activities after the embassy bombings, even if those

activities are not charged in the pending indictment. Such

disclosures could seriously compromise sources and methods of

intelligence gathering.

Finally, the government (for undisclosed reasons) has

chosen not to seek the death penalty against Mr. Ghailani,

even though that penalty was sought, albeit unsuccessfully,

against those who stood trial earlier. The embassy bombings

killed more than 200 people.

Although the jury in the earlier case declined to sentence

the defendants to death, that determination does not bind a

future jury. However, when the government determines not to

seek the death penalty against a defendant charged with

complicity in the murder of hundreds, that potentially

distorts every future capital case the government prosecutes.

Put simply, once the government decides not to seek the death

penalty against a defendant charged with mass murder, how can

it justify seeking the death penalty against anyone charged

with murder--however atrocious--on a smaller scale?

Even a successful prosecution of Mr. Ghailani, with none of

the possible obstacles described earlier, would offer no

example of how the cases against other Guantanamo detainees

can be handled. The embassy bombing case was investigated for

prosecution in a court, with all of the safeguards in

handling evidence and securing witnesses that attend such a

prosecution. By contrast, the charges against other detainees

have not been so investigated.

It was anticipated that if those detainees were to be tried

at all, it would be before a military commission where the

touchstone for admissibility of evidence was simply relevance

and apparent reliability. Thus, the circumstances of their

capture on the battlefield could be described by affidavit if

necessary, without bringing to court the particular soldier

or unit that effected the capture, so long as the affidavit

and surrounding circumstances appeared reliable. No such

procedure would be permitted in an ordinary civilian court.

Moreover, it appears likely that certain charges could not

be presented in a civilian court because the proof that would

have to be offered could, if publicly disclosed, compromise

sources and methods of intelligence gathering. The military

commissions regimen established for use at Guantanamo was

designed with such considerations in mind. It provided a way

of handling classified information so as to make it available

to a defendant's counsel while preserving confidentiality.

The courtroom facility at Guantanamo was constructed, at a

cost of millions of dollars, specifically to accommodate the

handling of classified information and the heightened

security needs of a trial of such defendants.

Nevertheless, critics of Guantanamo seem to believe that if

we put our vaunted civilian justice system on display in

these cases, then we will reap benefits in the coin of world

opinion, and perhaps even in that part of the world that

wishes us ill. Of course, we did just that after the first

World Trade Center bombing, after the plot to blow up

airliners over the Pacific, and after the embassy bombings in

Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly

3,000 innocents. True, this won us a great deal of goodwill

abroad--people around the globe lined up for blocks outside

our embassies to sign the condolence books. That is the kind

of goodwill we can do without.

Mr. President, tomorrow at the Federal Communications Commission there will be a vote on a proposed rulemaking. It is a rulemaking on something called net neutrality. Let me put that in English, if I might. It is about Internet freedom. I wish to talk for a moment about the importance of this.

One would think, given the reaction by some and dozens and dozens of letters that are now going to the FCC,

that what is going to happen tomorrow is some unbelievable vote on some controversial proposal that has had no discussion. It is not that at all. It is a notice of proposed rulemaking. It is the beginning of a process to describe a rulemaking on what is called net neutrality or the principle of nondiscrimination with respect to the Internet.

I wish to describe how important that is. The Internet is an unbelievable new invention in our lifetime. It was created by the Federal Government. A bunch of scientists and engineers in the Federal Government described this method of communicating one to another with computer technology and it became the Internet. The Internet developed over a number of years in a completely free and open architecture. That meant that anyone could go to anyplace and see anybody on the Internet. So the stories are legend.

It was, I believe, 11 years ago when Larry and Sergey, two young men in college in a dormitory room started a company. They moved it to a garage that had a garage door opener, and it had eight employees, and they had this idea, a new company, a new search engine. It had eight employees and it was in a garage with a garage door opener 11 years ago. Well, now it is called Google.

But it is not just Larry and Sergey having a dream and a vision. It is so many others as well. It is Jeff Bezos who drove to California with an idea and that idea became Amazon.com, selling books, and then selling almost everything. Or it became someone with an idea about having an auction on the Internet, and it became eBay, and most of us know about eBay. Or it became Mark Zuckerberg who had an idea of something called Facebook. Well, I am talking about huge successes. But for every one of those--Facebook, eBay, Amazon, Google--for every one of those large companies that have now grown on the Internet, there are millions of people out there who are conducting a business in their kitchen, in their dorm room, in their garage, because they are the next enterprising person to succeed on the Internet.

The question is this: If there is someone in my hometown--and let me describe that someone, because it happened to be someone who is now occupying the home that I grew up in; a very small, two-bedroom home in a small town of 300 people. I had not been back for some long while to see the home. So I knocked on the front door. When the woman answered, I asked if I could see the home that I grew up in, where I spent my first 17 years, and she said: Of course. Come on in. So I came in and she was doing something that I found kind of interesting. She had in the small kitchen on the table a camera, and the camera was pointed at an aperture with an arm and on the arm was hanging a bracelet, a little gold bracelet, and she was taking a picture of the gold bracelet.

I said: What are you doing?

Well, I have a business, she said.

I said: Well, what kind of business do you have?

Well, I sell on the Internet. I purchase jewelry and then I sell it on the Internet.

Sure enough, in the little porch coming into the home she had cardboard boxes and tape and the kinds of things you would do to box something up and send it. Here in this little town in southwestern North Dakota, a town of 300 people, a woman, in the home I grew up in, was running a business.

I said: How do you do?

She said: Pretty well. This income supplements my husband's income. She said: I sell on eBay.

Well, you know what? In that little kitchen, anybody in the world can find her business--anybody in the world can find that business. Why? Because the Internet is open. The architecture has never been closed. The whole notion of the Internet is this notion of freedom, of liberty to go anywhere you want to go. In the last 3\1/2\ years I have written two books and I have discovered in the writing of books how unbelievable the Internet is to be able to go to anywhere in the world and do research. If you want to know something, go there, and nobody is going to stop you from going wherever you wish to go. Put it in a search engine, go find it, and you will find it in some crevice on the Internet. Somebody out there has put it on the Internet for you to see. It is the most unbelievable research tool I have ever found.

So, yes, it is Google, it is Amazon, it is eBay, it is the big companies, but much more than that, it is the backbone that allows people all over this country and the world to do business. Yes, from their kitchen, from their garage. Some of those businesses will grow to become names we don't now know but will, because they will be successful. They will be the next invention, the next opportunity on this thing called the Internet.

Here is the question: The Internet was created under circumstances that required rules of nondiscrimination. For the first portion of its birth and then origin, it was an Internet that was described as a telephone service and it was subject to rules that had nondiscrimination, so no one could discriminate. It was completely open, completely free. Its architecture was available to anyone at any time. Anybody can go anywhere at any time. Nobody has a toll booth, nobody is a gatekeeper. It is completely open and free. The biggest company over here and the smallest enterprise over here--big corporate executives wearing gray suits making lots of money, and two people in a dorm room or someone in a small kitchen in a small town--they are equal. Anybody has access to both sites, or all sites. That is called nondiscrimination and the nondiscrimination rules say no one can set up a barrier. No one can set up a gate. No one can set up a toll booth. Anyone has freedom and access anywhere on the Internet.

That is the way the Internet was developed. That is its origin and that is the way most of its life has existed. Then the Federal Communications Commission came along and said, We are going to redefine the Internet as an information service rather than a telephone service and the result is the nondiscrimination rules fell off the chart because they attached to the telephone service. So some of us have said, Well, we certainly want to maintain and continue nondiscrimination rules. I mean, who would be for discrimination, right? So we want to maintain the nondiscrimination rules. We want to, with what is called network neutrality or net neutrality, restore the nondiscrimination rules and the basic freedom under which the Internet developed in the first instance. That has been our effort. That is what the Chairman of the Federal Communications Commission is attempting to do. It is to begin tomorrow with a notice of proposed rulemaking. It doesn't mean he is saying, Here is exactly what we are going to do; it is saying, Let's propose a rulemaking and that rulemaking process will allow everybody to weigh in, to make comments, to be involved with the question of exactly what kind of a rule they may or may not write.

I think what the Federal Communications Commission is doing tomorrow is exactly the right thing. I know there are some who are pushing back. In fact, there are some who have said, We want to set up a toll booth. There are some CEOs of some large companies who have suggested, You know what. Those wires belong to us. We want to be able to have some toll booths and so on.

I don't believe they should be able to set up any impediments. By that I am not suggesting they don't have a right to have security for their networks; they certainly do. I am not suggesting they don't have a right to do certain kinds of inspections to make sure that the kinds of things that are prohibited--child pornography and others--are stopped on the Internet. But what I am saying is the architecture under which the Internet itself was created is an architecture all of us should aspire to continue, and that is nondiscrimination rules and transparency. This is very simple. So tomorrow there will be a vote at the FCC. I would say to the chairman of the FCC and to all of the Commissioners that you are doing the right thing by proceeding to make certain that the future of the Internet is open and has free access with nondiscrimination rules and transparency.

Here are a couple of letters I wish to have printed in the Record, if I might ask unanimous consent. One is a letter to Chairman Genachowski and this letter is dated October 19th:

We write to express our support for your announcement that

the FCC will begin a process to adopt rules to preserve an

open

Internet. We believe a process that results in common sense

baseline rules is critical to ensuring that the Internet

remains a key engine of economic growth, innovation, and

global competitiveness.

Let me not read it all, but let me read the final paragraph of this letter:

America's leadership in the technology space has been due,

in large part, to an open Internet. We applaud your

leadership in initiating a process to develop rules that

ensure the qualities that have made the Internet so

successful are protected.

That is a letter from a large group of people who run Internet companies and applications, from Craigslist, EchoStar, Google, Mozilla, Skype, Amazon, Expedia, Netflix, Sony Electronics, XO Communications, Facebook, eBay, and so many others; Twitter, and Meetup, so many different folks who know of what they are speaking. I support this letter and commend it to the Chairman of the FCC. Again, I ask unanimous consent that it be printed in the Record.

Mr. President, this is a letter from the largest venture capital funds in the country that have made substantial investments in these companies that have helped the Internet grow;

Dear Chairman Genachowski: We write to express our support

for the Commission's ongoing efforts to adopt rules to

safeguard the open Internet. As business investors in

technology companies, we have first-hand experience with the

importance of guaranteeing an open market for new

applications for services on the Internet. Clear rules to

protect and promote innovation at the edges of the Internet

will reinforce the core principles that led to its

extraordinary social and economic benefits. Open markets for

Internet content will drive investment, entrepreneurship and

innovation. For these reasons, Net Neutrality policy is pro-

investment, pro-competition, and pro-consumer.

I ask unanimous consent to have printed in the Record this letter from the venture capital firms that know a lot about the Internet.

Mr. President, finally, I ask unanimous consent to have printed in the Record a letter from the folks who created the Internet. The list is headed by Vinton Cerf, who is often called the ``father of the Internet.'' I know Vint Cerf. He is an extraordinary man. Others signing this letter include Stephen Crocker, David Reed, Lauren Weinstein, and Daniel Lynch: these are all Internet pioneers. They were there at the beginning. They created this unbelievable engine of opportunity for the American people. They write a similar letter saying:

As individuals who have worked on the Internet and it

predecessors continuously beginning in the late 1960s, we are

very concerned that access to the Internet be both open and

robust. We are very pleased by your recent proposal to

initiate a proceeding for the consideration of safeguards to

that end.

This is a letter to Chairman Genachowski from the folks I mentioned. I ask unanimous consent to have printed in the Record this letter.

Mr. President, let me finally say this: I understand this issue has been controversial. I and Senator Snowe have worked on this issue for a long while. The only time it has been voted on in the Congress was an attempt by us to add an amendment in a Commerce Committee markup. This was about 2\1/2\ years ago. We had an 11-to-11 tie. Why was there a tie vote? It is a controversial issue, although it should not be.

The basic principle of freedom on the Internet, open architecture on the Internet, the openness with which this Internet was created ought to persuade everyone to say: Yes, let's restore the conditions under which the Internet has always operated, up until recently; that is, nondiscrimination and transparency.

There are some interests in this country, I understand, some economic interests that say: No, we don't want that. We want some opportunity to perhaps go a different direction. We had one CEO in this country say: You know what. I want some of these companies on the Internet to pay me for the right to move on my lines. Once that starts, once we go down that road with those who have the muscle or the strength to decide who is going to cross and who is not, who can get by their toll booth and who cannot, then I am telling you there are Larrys and Sergeys in a dorm room out there someplace or a woman in a kitchen with a small business that is not going to succeed. And that innovation, that new company, that new business for this country, the expansion of the Internet and opportunity that comes with it will not exist. Why? Because we failed to continue the open architecture and the basic freedoms on which the Internet was created and on which we still ought to govern the future of the Internet.

What Julius Genachowski, the new chairman, is doing tomorrow at the FCC is exactly the right thing. He is not mandating some specific menu. He is beginning a rulemaking process which, at the end, in my judgment, will result in the restoration of two basic principles: nondiscrimination on the Internet and transparency. Is there anyone who believes those principles are not fair, are not reasonable? I don't think so.

There has been a flurry of protests, an unbelievable dust created by a lot of noise, a lot of crowd noise around this issue. I hope perhaps the chairman and those on the Commission who believe we ought to move in this direction understand there is very substantial support for what they are trying to do. That support exists in a letter I am sending today with some of my colleagues to say that support is here. Work that Senator Snowe and I have done on this issue will be reflected as well in a message tomorrow.

I just want the Chairman to know: Keep going. You are doing the right thing. Don't worry about some of the dust that is out there. Do the public business, do the right thing, and this country will be best served.

Mr. President, I yield the floor.