II 110th CONGRESS 1st Session S. 1285 IN THE SENATE OF THE UNITED STATES May 3, 2007 Mr. Durbin (for himself, Mr. Specter, Mr. Feingold, and Mr. Obama) introduced the following bill; which was read twice and referred to the Committee on Rules and Administration A BILL To reform the financing of Senate elections, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Fair Elections Now Act. (b)

Table of contents

The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Fair elections financing of Senate election campaigns Subtitle A—Fair elections financing program Sec. 101. Findings and declarations. Sec. 102. Eligibility requirements and benefits of fair elections financing of Senate election campaigns. TITLE V—Fair elections financing of Senate election campaigns Sec. 501. Definitions. Sec. 502. Senate Fair Elections Fund. Sec. 503. Eligibility for allocations from the Fund. Sec. 504. Seed money contribution requirement. Sec. 505. Qualifying contribution requirement. Sec. 506. Contribution and expenditure requirements. Sec. 507. Debate requirement. Sec. 508. Certification by Commission. Sec. 509. Benefits for participating candidates. Sec. 510. Allocations from the Fund. Sec. 511. Payment of fair fight funds. Sec. 512. Administration of the Senate fair elections system. Sec. 513. Violations and penalties. Sec. 103. Reporting requirements for nonparticipating candidates. Sec. 104. Modification of electioneering communication reporting requirements. Sec. 105. Limitation on coordinated expenditures by political party committees with participating candidates. Sec. 106. Audits. Subtitle B—Senate Fair Elections Fund Revenues Sec. 111. Deposit of proceeds from recovered spectrum auctions. Subtitle C—Fair Elections Review Commission Sec. 121. Establishment of Commission. Sec. 122. Structure and membership of the commission. Sec. 123. Powers of the Commission. Sec. 124. Administration. Sec. 125. Authorization of appropriations. Sec. 126. Expedited consideration of Commission recommendations. TITLE II—Voter information Sec. 201. Broadcasts relating to candidates. Sec. 202. Political advertisement vouchers for participating candidates. Sec. 203. FCC to prescribe standardized form for reporting candidate campaign ads. Sec. 204. Limit on Congressional use of the franking privilege. TITLE III—Responsibilities of the Federal Election Commission Sec. 301. Petition for certiorari. Sec. 302. Filing by Senate candidates with Commission. Sec. 303. Electronic filing of FEC reports. TITLE IV—Miscellaneous provisions Sec. 401. Severability. Sec. 402. Review of constitutional issues. Sec. 403. Effective date.

.

103.

Reporting requirements for nonparticipating candidates

(a)

In general

Section 304 of the Federal Election Campaign Act of 1971 (2 U.S.C. 434) is amended by adding at the end the following: (i)

Nonparticipating candidates

(1)

Initial report

(A)

In general

Each nonparticipating candidate who is opposed to a participating candidate and who receives contributions or makes expenditures aggregating more than the threshold amount shall, within 48 hours of the date such aggregate contributions or expenditures exceed the threshold amount, file with the Commission a report stating the total amount of contributions received and expenditures made or obligated by such candidate. (B)

Threshold amount

For purposes of this paragraph, the term threshold amount means 75 percent of the allocation from the Fund that a participating candidate would be entitled to receive in such election under section 510 if the participating candidate were a major party candidate. (2)

Periodic reports

(A)

In general

In addition to any reports required under subsection (a), each nonparticipating candidate who is required to make a report under paragraph (1) shall make the following reports: (i)A report which shall be filed not later than 5 p.m. on the forty-second day before the date on which the election involving such candidate is held and which shall be complete through the forty-fourth day before such date. (ii)A report which shall be filed not later than 5 p.m. on the twenty-first day before the date on which the election involving such candidate is held and which shall be complete through the twenty-third day before such date. (iii)A report which shall be filed not later than 5 p.m. on the twelfth day before the date on which the election involving such candidate is held and which shall be complete through the fourteenth day before such date. (B)

Additional reporting within 2 weeks of election

Each nonparticipating candidate who is required to make a report under paragraph (1) and who receives contributions or makes expenditures aggregating more than $1,000 at any time after the fourteenth day before the date of the election involving such candidate shall make a report to the Commission not later than 24 hours after such contributions are received or such expenditures are made. (C)

Contents of report

Each report required under this paragraph shall state the total amount of contributions received and expenditures made or obligated to be made during the period covered by the report. (3)

Definitions

For purposes of this subsection and section 309(a)(13), the terms nonparticipating candidate, participating candidate, and allocation from the Fund have the respective meanings given to such terms under section 501. . (b)

Increased penalty for failure To file

Section 309(a) of the Federal Election Campaign Act of 1971 (2 U.S.C. 437(g)) is amended by adding at the end the following new paragraph: (13)

Increased civil penalties with respect to reporting by nonparticipating candidates

For purposes of paragraphs (5) and (6), any civil penalty with respect to a violation of section 304(i) shall not exceed the greater of— (A)the amount otherwise applicable without regard to this paragraph; or (B)for each day of the violation, 3 times the amount of the fair fight funds under section 511 that otherwise would have been allocated to the participating candidate but for such violation. .

104.

Modification of electioneering communication reporting requirements

Paragraph (2) of section 304(f) of the Federal Election Campaign Act of 1971 (2 U.S.C. 434(f)(2)) is amended by redesignating subparagraphs (E) and (F) as subparagraphs (F) and (G), respectively, and by inserting after subparagraph (D) the following new subparagraph: (E)in the case of a communication referring to any candidate in an election involving a participating candidate (as defined under section 501(9)), a transcript of the electioneering communication. .

105.

Limitation on coordinated expenditures by political party committees with participating candidates

(a)

In general

Section 315(d)(3) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(d)) is amended— (1)by redesignating subparagraphs (A) and (B) as subparagraphs (B) and (C), respectively; and (2)by inserting before subparagraph (B), as redesignated by paragraph (1), the following new subparagraph: (A)in the case of a candidate for election to the office of Senator who is a participating candidate (as defined in section 501), the lesser of— (i)10 percent of the allocation from the Senate Elections Fund that the participating candidate is eligible to receive for the general election under section 510(c)(3); or (ii)the amount which would (but for this subparagraph) apply with respect to such candidate under subparagraph (B); . (b)

Conforming amendment

Subparagraph (B) of section 315(d)(3) of such Act, as redesignated by subsection (a), is amended by inserting who is not a participating candidate (as so defined) after office of Senator.

106.

Audits

Section 311(b) of the Federal Election Campaign Act of 1971 (2 U.S.C. 438(b)) is amended— (1)by inserting (1) before The Commission; and (2)by adding at the end the following: (2)

Audits of participating candidates

(A)

In general

Notwithstanding paragraph (1), after every primary, general, and runoff election, the Commission shall conduct random audits and investigations of not less than 30 percent of the authorized committees of candidates who are participating candidates (as defined in section 501). (B)

Selection of subjects

The subjects of audits and investigations under this paragraph shall be selected on the basis of impartial criteria established by a vote of at least 4 members of the Commission. .

B

Senate Fair Elections Fund Revenues

111.

Deposit of proceeds from recovered spectrum auctions

Section 309(j)(8)(E)(ii) of the Communications Act of 1934 (47 U.S.C. 309(j)(8)(E)(ii)) is amended— (1)by striking deposited in and inserting the following: “deposited as follows: (I)90 percent of such proceeds deposited in ; and (2)by adding at the end the following: (II)10 percent of such proceeds deposited in the Senate Fair Elections Fund established under section 502 of the Federal Election Campaign Act of 1972. .

C

Fair Elections Review Commission

121.

Establishment of Commission

(a)

Establishment

There is established a commission to be known as the Fair Elections Review Commission (hereafter in this subtitle referred to as the Commission). (b)

Duties

(1)

Review of fair elections financing

(A)

In general

After each general election for Federal office, the Commission shall conduct a comprehensive review of the Senate fair elections financing program under title V of the Federal Election Campaign Act of 1974, including— (i)the number and value of qualifying contributions a candidate is required to obtain under section 505 of such Act to qualify for allocations from the Fund; (ii)the amount of allocations from the Senate Fair Elections Fund that candidates may receive under sections 510 and 511 of such Act; (iii)the overall satisfaction of participating candidates with the program; and (iv)such other matters relating to financing of Senate campaigns as the Commission determines are appropriate. (B)

Criteria for review

In conducting the review under subparagraph (A), the Commission shall consider the following: (i)

Review of qualifying contribution requirements

The Commission shall consider whether the number and value of qualifying contributions required strikes a balance between the importance of voter choice and fiscal responsibility, taking into consideration the number of primary and general election participating candidates, the electoral performance of those candidates, program cost, and any other information the Commission determines is appropriate. (ii)

Review of program allocations

The Commission shall consider whether allocations from the Senate Elections Fund under sections 510 ad 511 of the Federal Election Campaign Act of 1974 are sufficient for voters in each State to learn about the candidates to cast an informed vote, taking into account the historic amount of spending by winning candidates, media costs, primary election dates, and any other information the Commission determines is appropriate. (2)

Report, recommendations, and proposed legislative language

(A)

Report

Not later than March 30 following any general election for Federal office, the Commission shall submit a report to Congress on the review conducted under paragraph (1). Such report shall contain a detailed statement of the findings, conclusions, and recommendations of the Commission based on such review, and shall contain any proposed legislative language (as required under subparagraph (C)) of the Commission. (B)

Findings, conclusions, and recommendations

A finding, conclusion, or recommendation of the Commission shall be included in the report under subparagraph (A) only if not less than 3 members of the Commission voted for such finding, conclusion, or recommendation. (C)

Legislative language

(i)

In general

The report under subparagraph (A) shall include legislative language with respect to any recommendation involving— (I)an increase in the number or value of qualifying contributions; or (II)an increase in the amount of allocations from the Senate Elections Fund. (ii)

Form

The legislative language shall be in the form of a proposed bill for introduction in Congress and shall not include any recommendation not related to matter described subclause (I) or (II) of clause (i)

122.

Structure and membership of the commission

(a)

Appointment

(1)

In general

The Commission shall be composed of 5 members, of whom— (A)1 shall be appointed by the Majority Leader of the Senate; (B)1 shall be appointed by the Minority Leader of the Senate; and (C)3 shall be appointed jointly by the members appointed under subparagraphs (A) and (B). (2)

Qualifications

(A)

In general

The members shall be individuals who are nonpartisan and, by reason of their education, experience, and attainments, exceptionally qualified to perform the duties of members of the Commission. (B)

Prohibition

No member of the Commission may be— (i)a member of Congress; (ii)an employee of the Federal government; (iii)a registered lobbyist; or (iv)an officer or employee of a political party or political campaign. (3)

Date

Members of the Commission shall be appointed not later than 60 days after the date of the enactment of this Act. (4)

Terms

A member of the Commission shall be appointed for a term of 5 years. (b)

Vacancies

A vacancy on the Commission shall be filled not later than 30 calendar days after the date on which the Commission is given notice of the vacancy, in the same manner as the original appointment. The individual appointed to fill the vacancy shall serve only for the unexpired portion of the term for which the individual’s predecessor was appointed. (c)

Chairperson

The Commission shall designate a Chairperson from among the members of the Commission.

123.

Powers of the Commission

(a)

Meetings and hearings

(1)

Meetings

The Commission may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Commission considers advisable to carry out the purposes of this Act. (2)

Quorum

Four members of the Commission shall constitute a quorum for purposes of voting, but a quorum is not required for members to meet and hold hearings. (b)

Information from Federal agencies

The Commission may secure directly from any Federal department or agency such information as the Commission considers necessary to carry out the provisions of this Act. Upon request of the Chairperson of the Commission, the head of such department or agency shall furnish such information to the Commission. (c)

Postal services

The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the Federal Government. (d)

Gifts

The Commission may accept, use, and dispose of gifts or donations of services or property.

124.

Administration

(a)

Compensation of members

(1)

In general

(A)

In general

Each member, other than the Chairperson, shall be paid at a rate equal to the daily equivalent of the minimum annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which such member is engaged in the performance of the duties of the Commission. (B)

Chairperson

The Chairperson shall be paid at a rate equal to the daily equivalent of the minimum annual rate of basic pay prescribed for level III of the Executive Schedule under section 5314 of title 5, United States Code, for each day (including travel time) during which such member is engaged in the performance of the duties of the Commission. (2)

Travel expenses

Members shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code, while away from their homes or regular places of business in performance of services for the Commission. (b)

Personnel

(1)

Director

The Commission shall have a staff headed by an Executive Director. The Executive Director shall be paid at a rate equivalent to a rate established for the Senior Executive Service under section 5382 of title 5, United States Code. (2)

Staff appointment

With the approval of the Chairperson, the Executive Director may appoint such personnel as the Executive Director and the Commission determines to be appropriate. (3)

Actuarial experts and consultants

With the approval of the Chairperson, the Executive Director may procure temporary and intermittent services under section 3109(b) of title 5, United States Code. (4)

Detail of government employees

Upon the request of the Chairperson, the head of any Federal agency may detail, without reimbursement, any of the personnel of such agency to the Commission to assist in carrying out the duties of the Commission. Any such detail shall not interrupt or otherwise affect the civil service status or privileges of the Federal employee. (5)

Other resources

The Commission shall have reasonable access to materials, resources, statistical data, and other information from the Library of Congress and other agencies and elected representatives of the executive and legislative branches of the Federal Government. The Chairperson of the Commission shall make requests for such access in writing when necessary.

125.

Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to carry out the purposes of this subtitle.

126.

Expedited consideration of Commission recommendations

(a)

Introduction and committee consideration

(1)

Introduction

Not later than 60 days after the Commission files a report under section 121(b), the Majority Leader of the Senate, or the Majority Leader’s designee, shall introduce any proposed legislative language submitted by the Commission under section 121(b)(2)(C) in the Senate (hereafter in this section referred to as a Commission bill). (2)

Committee consideration

(A)

Referral

A Commission bill introduced in the Senate shall be referred to the Committee on Rules and Administration of the Senate. (B)

Reporting

Not later than 60 calendar days after the introduction of the Commission bill, the Committee on Rules and Administration shall hold a hearing on the bill and report the bill to the Senate. No amendment shall be in order to the bill in the Committee. (C)

Discharge of committee

If the Committee on Rules and Administration has not reported a Commission bill at the end of 60 calendar days after its introduction, such committee shall be automatically discharged from further consideration of the Commission bill and it shall be placed on the appropriate calendar. (b)

Expedited procedure

(1)

Floor consideration in the Senate

(A)

In general

Not later than 60 calendar days after the date on which a committee has reported or has been discharged from consideration of a Commission bill, the Majority Leader of the Senate, or the Majority Leader’s designee shall move to proceed to the consideration of the Commission bill. It shall also be in order for any member of the Senate to move to proceed to the consideration of the bill at any time after the conclusion of such 60-day period. (B)

Motion to proceed

A motion to proceed to the consideration of a Commission bill is privileged in the Senate. The motion is not debatable and is not subject to a motion to postpone consideration of the Commission bill or to proceed to the consideration of other business. A motion to reconsider the vote by which the motion to proceed is agreed to or not agreed to shall not be in order. If the motion to proceed is agreed to, the Senate shall immediately proceed to consideration of the Commission bill without intervening motion, order, action, or other business, and the Commission bill shall remain the unfinished business of the Senate until disposed of. (C)

Amendments, motions, and appeals

No amendment shall be in order in the Senate, and any debatable motion or appeal is debatable for not to exceed 5 hours to be divided equally between those favoring and those opposing the motion or appeal. (D)

Limited debate

Consideration in the Senate of the Commission bill and on all debatable motions and appeals in connection therewith, shall be limited to not more than 40 hours, which shall be equally divided between, and controlled by, the Majority Leader and the Minority Leader of the Senate or their designees. A motion further to limit debate on the Commission bill is in order and is not debatable. All time used for consideration of the Commission bill, including time used for quorum calls (except quorum calls immediately preceding a vote), shall come from the 40 hours of consideration. (E)

Vote on passage

(i)

In general

The vote on passage in the Senate of the Commission bill shall occur immediately following the conclusion of the 40-hour period for consideration of the Commission bill under subparagraph (D) and a request to establish the presence of a quorum. (ii)

Other motions not in order

A motion in the Senate to postpone consideration of the Commission bill, a motion to proceed to the consideration of other business, or a motion to recommit the Commission bill is not in order. A motion in the Senate to reconsider the vote by which the Commission bill is agreed to or not agreed to is not in order. (2)

Floor consideration in the House

(A)

In general

If a Commission bill is agreed to in the Senate, the Majority Leader of the House of Representatives, or the Majority Leader’s designee shall move to proceed to the consideration of the Commission bill not later than 30 days after the date the House or Representatives receives notice of such agreement. It shall also be in order for any member of the House of Representatives to move to proceed to the consideration of the bill at any time after the conclusion of such 30-day period. (B)

Motion to proceed

A motion to proceed to the consideration of a Commission bill is privileged in the House of Representatives. The motion is not debatable and is not subject to a motion to postpone consideration of the Commission bill or to proceed to the consideration of other business. A motion to reconsider the vote by which the motion to proceed is agreed to or not agreed to shall not be in order. If the motion to proceed is agreed to, the House of Representatives shall immediately proceed to consideration of the Commission bill without intervening motion, order, action, or other business, and the Commission bill shall remain the unfinished business of the House of Representatives until disposed of. (C)

Amendments, motions, and appeals

No amendment shall be in order in the House of Representatives, and any debatable motion or appeal is debatable for not to exceed 5 hours to be divided equally between those favoring and those opposing the motion or appeal. (D)

Limited debate

Consideration in the House of Representatives of the Commission bill and on all debatable motions and appeals in connection therewith, shall be limited to not more than 40 hours, which shall be equally divided between, and controlled by, the Majority Leader and the Minority Leader of the House of Representatives or their designees. A motion further to limit debate on the Commission bill is in order and is not debatable. All time used for consideration of the Commission bill, including time used for quorum calls (except quorum calls immediately preceding a vote), shall come from the 40 hours of consideration. (E)

Vote on passage

(i)

In general

The vote on passage in the House of Representatives of the Commission bill shall occur immediately following the conclusion of the 40-hour period for consideration of the Commission bill under subparagraph (D) and a request to establish the presence of a quorum. (ii)

Other motions not in order

A motion in the House of Representatives to postpone consideration of the Commission bill, a motion to proceed to the consideration of other business, or a motion to recommit the Commission bill is not in order. A motion in the House of Representatives to reconsider the vote by which the Commission bill is agreed to or not agreed to is not in order. (c)

Rules of Senate and House of Representatives

This section is enacted by Congress— (1)as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a Commission bill, and it supersedes other rules only to the extent that it is inconsistent with such rules, and (2)with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.