Nomination of Nancy L. Moritz to be United States Circuit Judge for the Tenth Circuit

Floor Speech

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Mr. COONS. Madam President, I come to the floor today to speak about the corrupting power of money in our national politics and the tragic impact of a whole series of decisions by the Supreme Court that has steadily strengthened that power.

Over the last 40 years a bipartisan coalition in this body and bipartisan coalitions in Congress have come together behind commonsense measures that actually succeeded in limiting the power of money in politics. Most recently, back in 2002, a bipartisan coalition in this Chamber led by Senators John McCain and Russ Feingold, Republican and Democrat, took a few steps to effectively limit the use of so-called ``soft money'' and to ban special interests from pouring money into national elections in the month or two before Election Day.

As actual elected representatives, their perspective as Members of Congress who enacted that legislation was informed by their real experience as public officials who have run and won elections and who have written, fought for, and passed actual legislation.

Since Members of this Chamber, Members of this Congress, have seen and experienced the corrosive effect of money every day, Congress, in my view, should be given great deference when it has been able to transcend partisan division and put in place commonsense protections.

Yet over the past few years a bare majority on the current Supreme Court has, in decision after decision, dismantled many of those critical protections and shows no signs of stopping.

In doing so, this Court's decisions display a significant and stunning naivete about how our political system actually works and how it is continuing to change and as a result have brought us closer to a world where, as a recent New Republic piece argues, ``millionaires and billionaires speak loudly and the rest of us do the listening.''

Most recently, in a 5-to-4 decision, the Supreme Court struck down a limit that has stood since 1971, when Congress passed the Federal Elections Campaign Act, on total campaign donations anyone may make in the same election cycle.

Before this recent Supreme Court ruling, individuals couldn't give more than $117,000 between candidates and party committees. After the ruling, that limitation has been swept away, and there is nothing to stop a wealthy donor, an ultrawealthy donor, from contributing to every Federal race each election cycle.

Some here have cheered the decision as upholding the First Amendment and free speech, but in my view, when you are able to spread around hundreds of thousands of dollars in donations to dozens and dozens of candidates in a coordinated way, you are not speaking, you are coming dangerously close to buying.

For ultradonors, the reality is not just about making their voices heard. Under existing Supreme Court precedent under these recent decisions, there is no limit on anybody's ability to spend whatever amounts he or she wishes to conduct actual speech, to buy newspaper ads, buy television spots, or even to make a politically motivated movie.

The reality is it is about trying to control more and more of the legislative agenda of this Congress and more and more of the direction of our government.

In McCutcheon, this recently decided case, the Supreme Court hasn't just enabled speech, it has made it dramatically easier for the wealthiest and the special interests they represent to hedge their bets by diversifying their political portfolio. It has more in common, sadly, with Wall Street investment strategies than with the free speech rights envisioned by our Founders at the Constitutional Convention.

Frankly, I think the Founders would not recognize our political system today and the increasingly harsh influence of big-money donors in our overall national political scene.

Together with the Citizens United decision of the Supreme Court of 5 years ago, we see the truly dangerous implications of the decisions rendered. One of the boldest decisions I have ever seen--Citizens United, with another 5-4 decision--killed off nearly half of that bipartisan compromise bill of 2002 of McCain-Feingold by allowing corporations and other special interests to anonymously fund campaign ads in the months before an election.

In doing so, as Justice Stevens wrote in a dissent, the Supreme Court ``relied largely on individual dissenting opinions. ..... blaz[ing] through our precedents [and] overruling or disavowing a body of case law.''

Justice Stevens noted that to do so the Court decided a question the parties did not present directly to it, saying:

Essentially, five justices were unhappy with the limited nature of the case brought
before us, so they changed the case to give themselves an opportunity to change the law.

I understand this is a dissent, but a dissent that I think should draw our attention to the direction these two vital, difficult Court decisions are taking this Nation.

Soon after the Supreme Court extended these rules to State campaign finance laws as well. In combination these two decisions, McCutcheon and Citizens United, have brushed aside important bipartisan legislation that was designed to prevent corruption of the political branches and to provide Americans some level of confidence that their voices, not just those of the ultrawealthy and powerful, mattered to their elected representatives. We have all seen the impact of this decision, of Citizens United in particular, as commercials by groups nobody has ever heard of, funded by donors who can remain in the dark, have flooded the airwaves of our election years ever since.

Earlier I mentioned that these two decisions show a stunning naivete about how politics in our modern world really works. Let me be clear I don't say this because the Supreme Court overturned a law that Congress passed. It is the Court's job to be a check on Congress to defend our fundamental freedoms in the face of congressional overreach or improvident action. But in the McCutcheon decision, the Court overturned a core holding of its own previous decision in Buckley v. Valeo, the case it purports to apply. As Justice Breyer wrote in dissent in McCutcheon, the Court's holding:

understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that ..... taken together with Citizens United ..... eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those very laws were intended to resolve.

For instance, in the Court's decisions, it consistently refers to traditional political corruption as quid pro quo corruption, corruption of the sort where a specific contribution is made for a specific vote or action in arguing that campaign donations and political spending or speech have shown no signs of leading to corruption. The majority argues that campaign giving and the ``general gratitude'' that a candidate or elected official may feel is not the same thing as quid pro quo corruption in the sense of directly buying votes or action in the Congress.

But as Justice Breyer notes in his opinion in McCutcheon in the dissent, the majority's:

narrow view of corruption ..... excludes efforts to obtain ``influence over access to elected officials or political parties.''

Every single Member of this body and every Member of the House of Representatives knows that to be true and knows this influence to be pernicious. Let me give an example. As many of my colleagues would attest, hanging over everything we do is the shadow of anonymous big-money ads getting dropped into the airwaves out of nowhere in the last weeks before an election, and it influences, in pervasive and corruptive ways, decisions made in this body week in and week out.

Of course, tough opposition ads are nothing new. Robust debates in campaign season go back to the very first campaigns of this Republic. As politicians, we all welcome the opportunity to those who engage to disagree with them. That is an important and healthy part of our democracy, and every citizen should have the right to voice their opposition to me or to any Member.

But what is a huge problem is the fact that nobody knows who is behind these ads, making it easier for any wealthy individual or corporation to pour an unlimited

amount of money into a race behind completely false attacks. Because the donor is often in the dark, there is no way for the public to know who the claims are coming from or whether they are credible.

That is why in this Chamber folks in my caucus, Democrats, have repeatedly argued for our taking up and passing the DISCLOSE Act, which would require third-party ads to say who funded them so that citizens can reach their own conclusions.

This is an increasingly difficult problem for our country. In the 2010 election cycle, super PACs spent more than $62 million nationally. Through the 2012 cycle, outside groups spent an incredible $457 million on House and Senate races. So far in this cycle they have already raised and spent more than $200 million.

The result is that every campaign has to do more and more fundraising so they have the resources to rebut the claims made in these negative ads with concealed donors. That means more time on the phone or at fundraisers, traveling around the country, organizing and carrying out fundraising activities rather than engaging with our constituents and diving into details of policy. It is even worse in the House where the daily demands in their 2-year cycle are even more difficult.

Let me offer one brief statistic. In the average winning Senate race in 2012, it cost $10 million, which means the winning Senator had to raise $4,600 every single day over a 6-year term.

That is time not spent on solving the real issues facing our country. That is an unbelievable amount of time dedicated to fundraising, and it just doesn't end, whether the term is 2 or 6 years.

I know I have it relatively easy, little to complain about. Compared to my colleagues I come from a small State. The very modest amount we have to raise in a competitive race in Delaware pales in comparison to much larger States with much more expensive media markets, but it is a problem for this entire body and this entire country.

Let me offer one last example of concretely why this matters. As we debate in the Senate, the other party complains about the absence of opportunities to offer amendments and the lack of a robust and open amendment process. One of the reasons we often do not take to the floor and vote on competitive, compelling amendments is the concern that they will then become the subject of last-minute, aggressive, targeted campaign ads funded by undisclosed donors. Rather than being a Chamber of honest, open, and free debate, the shadow of secret money turns policymaking into a beacon of risk aversion. Policymaking gets paralyzed and this serves no one.

Although it is not an example of corruption in the quid pro quo sense that the Supreme Court so narrowly focuses on, money does corrode the public trust and steadily corrupts this system in a thousand different ways. The irony of this all is that we badly need an honest discussion about the impact of big spending and fundraising on our political system. At this point I believe we badly need fundamental changes to redirect the decisions and the attention of the Supreme Court.

Buckley v. Valeo, the 1976 decision by the Court that equated political contributions and money with speech, in my view needs to be revisited. Senator Udall of New Mexico has introduced a constitutional amendment that, in my view, restores the balance of that original law and decision, and it is one that I strongly support. By bending backward to declare anything that corporations or the ultrawealthy wish to do with their money the equivalent of speech, today's Court, in my view, rather than strengthening speech, has weakened it for the millions of Americans who cannot afford to play in this new system.

At a time of growing economic inequality, that concerns me more and more because this new political inequality threatens the very foundations of our democracy.

Noting the presence of two other colleagues, I would ask if I might have the forbearance of two brief speeches recognizing Delawareans.

I appreciate the forbearance of my colleagues and would like to take a few minutes to recognize two great Delawareans.

TRIBUTE TO HARRY GRAVELL

I wish to recognize Harry Gravell.

Right now in Wilmington, DE, friends will be coming to celebrate Harry, who is retiring from his long leadership role of the Delaware Building Trades Council after a lifetime dedicated to workers and our Nation.

I first got to know him in my service on the county council in New Castle County, where he gave me very helpful, very insightful advice, and was a constant source of encouragement and support.

Don't get me wrong. He didn't always agree with me. He didn't always support me. With Harry you got a straight shot. You got exactly what he thought and nothing less. You always knew where he stood even if he disagreed with you. He is transparent, he is honest, and you know why he believes what he believes.

He is not only a great friend but a great father. We were both honored in 2012 by the Delaware chapter of the American Diabetes Association as fathers of the year. Harry is the proud father of two: Jayme and Dee, and grandfather of three: Makayla, Avery, and Lily.

Harry's life story is one of determination and service. He never gives up, especially when he puts his mind to something. From an early age he knew the value of hard work. For high school he went to the Salesianum School, a great school in our community, and worked his way through school to make sure he could afford a great education.

A Vietnam veteran, he served our country in wartime. Since he came home, he has never stopped fighting for working families and veterans, and I was particularly proud to work with him in his role in the Sprinkler Fitters Union, then on the Building Trades Council on Helmets to Hardhats, on offering training and real job opportunities to returning veterans.

If you know Harry, you have seen his drive up close. You have seen him fight through thick and thin for his workers, his family, and our community.

But perhaps the greatest example of his sheer will was his most recent fight. He suffered a stroke a few months ago. Doctors read him a long list of things he was never going to do. Harry scoffed. Digging in, as he has his entire life, he finished his physical and occupation therapy faster than doctors thought he could. He has just finished building a house in Lewes. Everyone who knows him I believe will agree with me that he deserves the years he will now get to spend on the beautiful beaches of Delaware.

REMEMBERING JAMES WILCOX BROWN

Let me last briefly offer a tribute to a lifelong friend and mentor, James Wilcox Brown of Newark, DE. He set sail on April 24 at the age of 65. The gentle determination and unconditional kindness with which he lived his life inspired all around him, including his family, his friends, and this junior Senator from Delaware.

Jim graduated from Salesianum School, the University of Delaware, and the Washington and Lee University School of Law. He worked as legal counsel for W.L. Gore & Associates for 36 years. He served as a member of the U.S. Army Judge Advocate General Corps for 26 years, retiring as colonel.

His tireless community service was broad and deeply felt. I was proud to be able to appoint him to the Delaware Service Academy Selection Board.

He is survived by his wife Peggy and their four wonderful children: Genevieve, Hilary, William, Mary Ellen, and six grandchildren. I simply wanted to add my voice to so many who will deeply miss this patriot, this great lawyer, this centered, thoughtful, kind man, and this personal friend who helped teach me the importance of humility and of a commitment to excellence.

I yield the floor.

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