Congressional Record, Volume 142 Issue 94 (Monday, June 24, 1996)

[Congressional Record Volume 142, Number 94 (Monday, June 24, 1996)]
[Senate]
[Pages S6680-S6718]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

CAMPAIGN FINANCE REFORM

The PRESIDING OFFICER. The Senate will now resume consideration of S.
1219, which the clerk will report.
The legislative clerk read as follows:

A bill (S. 1219) to reform the financing of Federal
elections, and for other purposes.

The Senate resumed consideration of the bill.
Mr. BENNETT addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. BENNETT. Mr. President, the subject of today's debate is
ostensibly campaign finance reform. It is currently fashionable to say
that all of our ills as a nation are caused by incompetent
officeholders--or worse, politicians who have been bought by special
interests through the process of campaign contributions. So we are
gathering to debate a bill that is supposed to fix that.
Who can possibly be in favor of a system like that? To some, this
should be an easy vote. Destroy the status quo. Anything would be
better. So I am in favor of destroying the status quo, Mr. President,
but I reject the idea that anything will be better, and particularly
the bill that is before us.
I believe there is at stake here an issue that is far more
fundamental than campaign finance reform. Perhaps without realizing it,
we are dealing with the most crucial political questions that any
society can confront, issues that were confronted and resolved by those
that we now refer to as the Founding Fathers.
Accordingly, Mr. President, I wish to deviate from the direct bill in
front of us long enough to move this debate into a context that goes
back to the Founding Fathers.
I begin with the writings of James Madison, commonly called ``the
father of the Constitution.'' His work, along with that of his fellow
Virginian, Thomas Jefferson, is now on display in the National
Archives, America's most hallowed document, our political scriptures,
if you will: the Constitution, the Declaration of Independence, and the
Bill of Rights.
However, today I am not going to be quoting either from the
Constitution or the Bill of Rights, both of which were products of
Madison's genius, but rather from what has come to be known as the
Federalist Papers, a series of political tracts written during the time
that the Nation was debating the ratification of the Constitution. At
that time, there were many people who were afraid of the impact the
Constitution would have on their existing Government, and to allay
those fears, James Madison, along with John Jay and Alexander Hamilton,
set forth the clear statement of the intellectual and philosophical
underpinnings of American Government.
It has added relevance to the debate on campaign finance reform
because in the 10th of this series of publications, that which has come
to be known as the 10th Federalist, Madison addressed the fundamental
question of what to do about what we now call special interests.
The 18th century word for ``special interest'' was ``faction,'' so I
will use the terms ``faction'' and ``special interest''
interchangeably.
Quoting now from the 10th Federalist, I give you Madison's definition
of what a faction is. Faction:

. . . a number of citizens . . . who are united and
actuated by . . . common impulse of passion or . . .
interest, adverse to the rights of other citizens.

I can think of no better description of a special interest than that
one.
Madison then tells us, ``There are two methods of curing the
mischiefs of faction: * * * removing its causes'' or ``removing its
effects.''
He then tells us, ``There are again two methods of removing the
causes of faction: * * * by destroying * * * liberty'' or ``by giving
to every citizen the same opinions, the same passions and the same
interests.''
Appropriately, Madison then describes the first remedy, that is, the
destruction of liberty, as ``* * * worse than the disease.'' I think
all Americans would agree with this. Controlling the mischiefs that
come from special interests by destroying the basic liberty that
guarantees each American his or her own right of opinion would destroy
the very basis of the Nation in which we live.
Now, referring to the second way of dealing with factions, that is,
``* * * giving to every citizen the same opinions * * * passions * * *
and interests,'' Madison says, ``The second * * * is as impractical as
the first would be unwise. As long as the reason of man continues
fallible * * * different opinions will be formed.'' He summarizes,
``The latent causes of faction are thus sown in the nature of man.''
Again, Mr. President, no contemporary writer could place the
situation more precisely than Madison has. Special interests arise
among us because we are free, and, as long as we are free we will
disagree to one extent or another.
Madison continues. He says, ``The inference to which we are brought
is, that the causes of faction cannot be removed * * * and that relief
is only to be sought in the means of controlling its effects.'' He then
tells us, ``* * * relief is supplied by the republican principle.''
Now, by using the word ``republican,'' Madison is clearly not
referring to the modern Republican Party. He is differentiating between
a democracy and a republic as a governmental form. He says, ``The two
great points of difference between a democracy and a republic are,
first, the delegation of the government in the latter, to a small group
of citizens elected by the rest. Secondly, the greater number of
citizens * * * over which the latter may be extended.''
Referring to the greater number of citizens that are governed by a
republic, he tells us why this will defeat the pressures of special
interests. Quoting, ``The influence of factious leaders may kindle a
flame within their particular States, but will be unable to spread a
general conflagration throughout the other States.''
I will say more about this in a moment, but for now it is his point
of the difference between the democracy and a republic which I wish to
stress. In a pure democracy, every decision is made by the vote of
every citizen; in a republic, as Madison says, ``The delegation (goes)
to a small number of citizens elected by the rest.'' It is this
republican form of government that the Constitution gives us and under
which we have lived for well over two centuries.
Now, since the representatives in our Republic are freely elected, as
contrasted to those who were chosen by the Communists to serve in the
Republics of the old Soviet Union of Republics, modern commentators use
the term ``democracy'' to describe us, and if we interpret the word
``democracy'' to mean a system where everybody gets to vote, I have no
objection to that term. However, as a description of governmental
structure, applying the term ``democracy'' to the United States is a
misstatement.
What does all this have to do with campaign finance reform? In my
view, it has a great deal to do with it. Campaign finance reform is
about the power of special interest groups--factions--and how to
control that power, the very subject of the 10th Federalist paper.
Let us take modern tools of communication and insert them into the
model that Madison gave us. For instance, is it now possible for a
modern special interest or faction to create a conflagration
simultaneously in several States? Given the wide reach of television,
national publications, the Internet, the answer is clearly yes. A
special interest group, be it a labor union, an environmentalist group,
a business alliance or a religious association, now possesses the
means, if it can raise the money, to reach every citizen in the country
virtually simultaneously without regard to any political boundaries or
geographical boundaries that might exist. Examples of this are all
around us.

First, various religious organizations calling themselves the
Christian Coalition have banded together, and by using the outlets of
communication available to them in both churches and the media, in 1994
put out a common message to all of those who are adherents to those
particular denominations. They greatly influenced the outcome of the
election that year, and

[[Page S6681]]

they have promised to repeat the process in 1996.
Second, the National Rifle Association sent broad mailings and
purchased advertising time on the electronic media to make sure that
everyone who agreed with their views with respect to gun legislation
would be stimulated to go to the polls and support candidates of the
same mind.
Third, the AFL-CIO has publicly announced that by increasing the
compulsory dues levied on their members, they are going to raise at
least $35 million, which will be spent in an effort to guarantee that
candidates who support their political agenda will be elected to the
House of Representatives in 1996.
And finally, on an issue perhaps closer to home for me as a Senator
from Utah, recently groups of environmental supporters concerned about
a bill relating to land use in Utah, which was introduced by members of
the Utah delegation, purchased full-page ads in the major newspapers in
major cities all across the country urging an outpouring of
communication to Congress seeking defeat of this particular
legislation. They were successful in creating a filibuster in the
Senate that saw the bill go down.
Madison's statement that ``the influence of factious leaders may
kindle the flame within their particular States but will be unable to
spread a general conflagration throughout the other States'' is clearly
no longer true. That means we must return to the other ``great point of
difference between a democracy and a republic'' of which Madison
speaks, namely, ``the delegation of the government to a small number of
citizens elected by the rest.''
It is through this device primarily that we must now find hope for
protection against the tyranny of a pure democracy where a faction able
to temporarily gain a majority position can then ride roughshod over
the interests and opinions of all the other citizens in society.
I realize that when he talks about the republican principle, Madison
is talking about officials after they take office, but the same
principle applies to campaigns. We do not vote in campaigns as a pure
democracy, deciding every issue. Instead, we choose among Madison's
phrase a ``small number of citizens'' who have offered themselves to
serve in public office. Through a process of conventions or primaries
or both we winnow this number down to the final choice. It is done
through a democratic process, but it is an example of the republican
representative principle nonetheless.
The rhetoric we are hearing about campaign reform flies in the face
of this preference for a republican principle. The more we limit the
amount of money that is available to candidates--those who will be
representative once they are in office--the more we weaken the
republican principle and strengthen the hand of special interests. This
is particularly ironic in view of the calls for this kind of reform in
the name of weakening the power of special interests.
Envision the following: Assume a congressional district with
candidate A and candidate B, under strict spending limitations. This
means that each has a limit on the amount he or she can tell the voters
about his or her position on particular issues. The special interests,
on the other hand--the labor unions, the environmentalists, the
Christian Coalition or the NRA--have no such limits, which means that
the voters can and presumably will be bombarded with information coming
exclusively from those groups and aimed at influencing their vote.
Exercising their first amendment right of free speech, the special
interests will never have limitations placed upon them, nor should
they. The first amendment is too precious. But in the name of campaign
finance reform, we will create a situation where the voters will
receive proportionately less and less information from the candidates
and more and more information from the special interests, so the voters
will ultimately make their choices on the basis of which special
interest message is the most persuasive. The candidate's intellect,
training, character, and talent will all become secondary if not, in
the end, lost altogether in the elective process. The Republican
principle of representative government will be weakened and washed
away. Officeholders will become more and more insignificant.
We have a clear example of how this can happen in the current
workings of the electoral college. That is an institution that is so
arcane that very few of our citizens even know that it exists. But the
Founding Fathers intended to have the electoral college work this way:
Voters in the individual States would pick outstanding citizens in
their States to represent them in the process of choosing a President.
If the electors were unable to produce a majority for any one
individual, the choice would then move to the House of Representatives.
It was anticipated in the time of the ratification of the Constitution
that the election of a President by Members of the House of
Representatives would be a frequent occurrence if not, indeed, the
norm.
Today, even the names of the electors let alone their opinions or
qualifications, are virtually unknown to the voters, most of whom think
they are casting a vote directly for one Presidential candidate or the
other. The power of the Presidential candidate to reach over the heads
of the electors and appeal directly to the voters is so strong that the
electoral college has become virtually a dead letter. Indeed, there are
now laws on the books in a number of States that prohibit the electors
from exercising their own judgment as the Founding Fathers had intended
that they would. I am not here to call for reform of the electoral
college. But I give this as an example of what can happen when the
qualifications of the individuals become overwhelmed with advertising
dollars that go to the point on which the individual is supposed to
vote.
If, in the name of campaign reform, we set up a circumstance that
limits the ability of a candidate to raise and spend his or her own
money, therefore limiting that candidate's ability to put forth his or
her own positions, we weaken the ability of the candidate to stand up
to a special interest. When we say to a candidate, ``If you disagree
with the position taken by the AFL-CIO, or the Sierra Club, or the
Christian Coalition, or the trial lawyers, or the NRA, or whatever, you
have only a limited number of dollars available to make your case;
while they, on the other hand, can say whatever they want, without
limitation, about you and your position.'' That is not a fair fight.
That puts the candidate who would be the constitutional representative
at a serious disadvantage as opposed to the special interest. That is
not the position that Madison laid out for the American people as he
described the Constitution, and it is not the kind of fundamental
change in our political life that we should be pursuing here.

I can hear the question now. ``All right, Senator Bennett, thanks for
the civics lesson, the political science lecture. If you do not like
this bill, what proposals do you have to try to clean up the influence
of special interest money in America?''
I have a proposal. It is not in the form of legislation, but can be
reduced to legislation as soon as I feel I have stirred up enough
support for it. I believe in the power of full disclosure. I would
support measures that would eliminate all limitations on candidates to
raise and spend money, as long as those candidates were open and candid
in disclosing to the voters where that money came from. I would extend
those disclosure requirements to the special interests. At least with
the AFL-CIO, we know where the money comes from. It comes from their
increasing the levy on their members. That very fact has produced an
issue in itself, as people have complained that their money is going to
support candidates that they themselves do not support. That kind of
debate is healthy.
The more people know where the money comes from, the better off we
are going to be in our political discourse. We do not know where all of
the money that supports Common Cause comes from. They are immune from
the kind of disclosure that candidates have to meet. We do not know the
exact nature of the contributions that keep open the doors of the
Christian Coalition. They, too, are immune from the kind of disclosure
requirements that candidates have to meet. We do not know the extent to
which

[[Page S6682]]

people on the payrolls of these organizations show up in campaigns to
perform services on behalf of the campaign, either for or against the
candidate involved. I do not condemn any of these activities. They are
free, proper expressions of one's rights under the Constitution. But I
say the way to limit the power of special interests in our political
process is to open the door of disclosure upon those special interests,
to maintain and increase, if necessary, the full disclosure
requirements on candidates, but leave the candidates free to raise and
spend whatever money they need to defend themselves against the money
that is raised and spent against them, directly, by the special
interests.
If we are to preserve the principles laid down by Madison and his
contemporaries, we have the right to know more about the inner workings
of factions than we do now. As long as modern communications have made
them major players in the political game, they should be treated as
such and brought under the appropriate kinds of sunshine requirements
that we have decided as a Nation that we want our candidates to live
under. They should not be given a free ride while the candidates, who
need to protect themselves against the pressures from these special
interests, are held back with artificial and, in my view, tremendously
unwise limitations.
For these reasons, then, I would support an elimination of all
limitations on candidates' fundraising and candidates' spending, with
full and solid disclosure requirements, making sure that voters knew
where that money came from, and then applying the same principle, no
limitation on spending but full disclosure on those special interests
that seek now to gain unfair advantage by virtue of the passage of this
legislation.
I am sure in the course of this debate I will have plenty of
opportunity to expound further on this theme, so I will leave it at
that and yield the floor.
Mr. McCAIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I paid close attention to Senator
Bennett's remarks. I must say I agree with him on several of the issues
that he raised concerning campaign finance reform. Really, what this
issue is going to be all about, to start with, Mr. President, is not
about whether we can improve and make better proposals for campaign
finance reform; the question is, are we going to have it? That is going
to be embodied in the cloture vote tomorrow. If we cannot cut off
debate, we know that this issue will be shelved for the near term.
If we do invoke cloture, then Senator Bennett will propose his
amendment, which he said he could quickly transform into legislation. I
will be glad to consider it; I will be glad to debate it, and I hope
that Senator Bennett, and others who think that this proposal is less
than perfect, which indeed it is less than perfect, will seize the
opportunity to vote in favor of cloture, and then we would have
unlimited amendments to the bill.
If we do not invoke cloture, then clearly the Senate has to move on
to other business.
Mr. President, I am not despondent, but I am not optimistic about our
chances of getting 60 votes. I am not sure whether we will or will not.
I continue to hope so. I hope Members and, more important, the American
public will pay attention to this debate. I talked to several of my
colleagues on this side of the aisle who are very aware of the
political ramifications of filibustering campaign finance reform. But I
also understand that the odds may be against it.
Let me point out that if the challengers were voting today instead of
the incumbents, I think the outcome might be very different. Let me
show you one of the reasons why. In 1995, this is what the FEC
reported, and I am sure the numbers are the same for 1996: $59.2
million contributed by political action committees to incumbents; $3.9
million to challengers.
We can talk about the Federalist Papers, we can talk about Monroe and
Madison, and, by the way, we will be talking about constitutional
scholars, including the Congressional Research Service, who have stated
unequivocally that this proposal is constitutional.
But, Mr. President, no one--no one, no one, no one--can allege that
we have a level playing field today when these kind of contributions
have been made in favor of incumbents. By the way, that is not for
Democrat incumbents, it is not for Republican incumbents; it is for
incumbents, and it is wrong and we know it is wrong. It needs to be
fixed, and the American people want it fixed, and it should be fixed.
After being in a 10-year battle on the line-item veto, I know it is
going to be fixed. It may not be this year, it may not be next year, it
may not be the year after, but it is going to be fixed, because you
have to believe the American people will be heard.
Mr. President, according to two pollsters, most widely respected
pollsters in America:
When asked: ``Which of the following do you think really controls the
Federal Government in Washington?'' registered voters responded:

The lobbyists and special interests, 49 percent; the Republicans in
Congress, 25 percent; haven't thought much about this, 14 percent; the
President, 6 percent; the Democrats in Congress, 6 percent.
When asked: ``Those who make large campaign contributions get special
favors from politicians * * *'' respondents said that this is:
One of the things that worries you most, 34 percent; worries you a
great deal, 34 percent; worries you some, 20 percent; worries you not
too much, 5 percent; worries you not at all, 3 percent.
Sixty-eight percent of the American people, according to this poll,
said in response to the question, ``Those who make large campaign
contributions get special favors from politicians * * *.'' Sixty-eight
percent of the American people said that it is one of the things that
worries them most or worries them a great deal.

When asked: ``We need campaign finance reform to make politicians
accountable to average voters rather than special interests . . .,''
voters stated this was:

Very convincing, 59 percent; somewhat convincing, 31 percent; not
very convincing, 5 percent; not at all convincing, 4 percent; and don't
know, 2 percent.
Later in this debate, I am going to show other polling data which
shows that the approval rating of Congress is at a very impressive 19
percent approval, 71 percent disapproval, and I will show other polling
data that show, despite what some of my colleagues may feel, that this
is an important issue with the American people, it is something they
believe needs to be changed, and they do believe that it is a
corrupting influence in the Congress.
I am not alleging that it is, Mr. President, but I am alleging that
the belief is out there and the lack of confidence in our political
system over time can be devastating to democracy.
There are a lot of editorials that we will be submitting for the
Record, 261 editorials from 161 newspapers and publications, urging
support for campaign finance reform. These editorials have been
published since January 1, 1995. Some of these are very good, and some
of them not so good. Some of them, I think, are very illustrative.
Let me quote one from the East Oregonian. I do not want to talk too
long in this particular round, because Senator Feingold, Senator
Wellstone, and others want to talk. This is from the East Oregonian,
September 31, 1995:

They're still out there, these folks the press keeps
calling the Perot voters. This even though most PV's don't
have much use anymore for the eccentric, unpredictable
zillionaire who stabbed his followers in the back when he
withdrew from the 1992 Presidential campaign and goofily
reentered the race. Let's not call them Perot voters anymore,
let's call them disgusted voters, DV's.
Like some of the things Perot addressed, they are still
waiting for another politician to pick up the ball, and if
that means a third party movement, so be it. DV's are
Democrats, Republicans, liberals, conservatives, all
religious and ethnic groups. What is unique to them is not
their views on Federal spending, foreign policy or social and
environmental issues. What they all hate is the legal
corruption corroding American politics, the corruption that
comes from special interest money falling from corporations,
unions, associations and coalitions into political action
committees and then funneled into campaign coffers. The final
results are committee and floor votes that don't have much to
do with conscience or constituents' needs. That linkage of
votes with money is what disgusts voters more than any single
issue.

[[Page S6683]]

Mr. President, I intend to quote from a number of these editorials as
this discussion and debate goes on this evening and tomorrow.
I first want to take a moment to thank my colleague from Wisconsin,
which I should have done at the beginning of my remarks. My colleague
from Wisconsin has been dedicated, he has been zealous, and he has been
totally cooperative. I am proud to not only work with him on a
professional basis but, as we have worked on other reform issues, I
consider him a good and dear friend. More important, I am pleased that
we have in the Senator from Wisconsin a person who is dedicated to true
reform and one whose entire career has been hallmarked by a forthcoming
and very honest attitude toward the people of his State and this
country. I am pleased to be able to work with him on this and other
issues as I have.
I repeat, Mr. President, if we had voting challengers today, if
leading challengers who have won the primary would vote today, I know
what the vote would be, because I hear too many of them, when they run
for Congress, say, ``As soon as I get there, we're going to clean this
up, we're going to give the challengers a chance.''
I know of no objective observer of the political process today who
believes that there is a level playing field between incumbent and
challenger, and this is ample evidence of it. As we go through the
debate I will provide much more evidence.

As I said, we can quote from the Federalist Papers. We can quote from
different ones of our Founding Fathers. I could quote from different
amendments of the Constitution. There is one part of all these
important documents that I would cite to my friend from Utah; and that
is ``We hold these truths to be self-evident, that all men are created
equal,'' equal, equal. There is no equality in the political system
today for people who are challenging.
Everybody talks about the great turnover in 1994, how so many
incumbents were thrown out, and there were so many new faces. Do you
know, Mr. President, 91 percent of the incumbents who sought reelection
were elected in 1994? There is a wonderful editorial here from the
Philadelphia Inquirer that talks about a tale of two incumbents and
shows why the campaign finance system must be fixed and how it could
be. Mr. President, I will go into that later on.
I am going to go into details of our proposal also later on. We will
talk about the constitutionality of it. But I do not want us to lose
focus in this debate about what this debate is all about. It is not
whether several of the compromises that Senator Feingold and I made in
order to make this a bipartisan issue are the best or not. It is not
about whether, frankly, we should limit the contributions to 60 percent
of contributions or 60 percent of contributors in-State.
What this debate is all about--and we cannot lose the focus on it--is
that a lot is at stake here, Mr. President. And what is at stake is the
credibility, the credibility of the Congress of the United States that,
one, the best qualified people are elected to office, and, two, once
they are there, that they act in the interest of the American people.
If you accept this polling number and polls I have heard all over the
country, that is not the case, and we have a significant problem.
I will repeat again, when asked if those who make large campaign
contributions get special favors from politicians, 34 percent of the
respondents thinks it worries them most, 34 percent thinks it worries
them a great deal. And 59 percent of the American people find it
convincing that we need campaign finance reform to make politicians
accountable to average voters rather than special interests.
Mr. President, the average voter in America thinks they are not
listened to here in Washington, DC. I have to tell you, from my 14
years experience here, in some cases they are right.
So, Mr. President, I will yield the floor. I know my friend from
Wisconsin, and others, including Senator Wellstone from Minnesota, want
to talk. I appreciate the opportunity. I hope the American people will
call upon their elected representatives to bring about this much-needed
and fundamental change so we can restore confidence in our most
important institutions and perhaps remove the cloud of cynicism that
pervades America today. Mr. President, I yield the floor.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Thank you very much, Mr. President.
It is very good to be here on the floor with the Senator from Arizona
and to finally have a chance to debate S. 1219, the campaign finance
reform bill.
I first want to return the compliments from the Senator from Arizona.
I appreciate the kind words. I think everyone in the Senate and
everyone in the country knows this would not be happening today,
whether we win or not, this would not be happening today if there were
not an independent-minded Senator from Arizona who feels so
passionately about campaign and other reforms in this country that he
is willing to take both the compliments and the lumps that go with
leading a bipartisan effort, which he has done.
It has been a pleasure and will continue to be a pleasure because we
intend to win this, hopefully tomorrow, but if not, as the Senator from
Arizona said, the American people will win this issue when some control
is finally exerted over the obscene amount of money that is now
dominating the political process.

I also want to mention, Mr. President, the new Senator from
Tennessee, one of our main coauthors, Senator Thompson, whose
perspective and help has been very helpful and very useful throughout
this process, and especially, of course, the Senator from Minnesota,
Senator Wellstone, who, in my mind, is the most focused reformer in
this entire body. You name the issue, I think he is most likely to be
the first person in line to say, let us reconnect the political process
between elected representatives and the people back home, rather than
the special interests.
We also have had wonderful help from the Senator from Kansas, Senator
Kassebaum, and Senator Graham from Florida, Senator Murray from
Washington, Senator Kerry from Massachusetts, and others.
We cannot talk about this bipartisan effort without reminding
everybody it has been a bicameral effort. Even more uncommon in the
Congress than a bipartisan effort is having the two Houses have
cooperation. And there the Representative from Washington, Linda Smith,
and others, have been very helpful in making this an effort that the
American public has recognized. It did not hurt either that the
President of the United States took the care in his State of the Union
address to specifically endorse this effort, this bipartisan effort, as
the way to go. And all of this has helped us move forward.
Mr. President, I also want to thank the new majority leader for
letting this bill come up. It is not the way I wanted it to come up. We
did not want to have to start off by having 60 votes just to get the
ball rolling. But it is sure better than not having the chance to
discuss it at all. I do appreciate that and look forward to the process
of hopefully ending up with a successful vote tomorrow at about 2
o'clock.
But let us set the record straight, Mr. President, about what this
bill is about. The first statement by the Senator from Utah certainly
laid out one view of what this is about. But let us clear one thing up
now. And I know we are going to have to clear it up over and over
again. This bill has no mandatory spending limits that requires every
candidate to only spend a certain amount. It has a voluntary incentive
system.
You will hear this red herring over and over again because the
opponents of this bill want you to think that this bill creates
mandatory spending limits even though we all know that such limits
would be unconstitutional under the decision in Buckley versus Valeo.
So let us remember that. The bill does not have a mandatory limit on
how much a candidate can spend. No matter how many times you are led to
believe that is what it does, it is just not true. It is not in the
bill. It is not the McCain-Feingold bill that we have before us.
Rather, Mr. President, what we are offering today in hopes of
restoring the lost faith and confidence of the American people is
something very different.

[[Page S6684]]

We are hopeful the Democrats and Republicans can come together and
demonstrate to the American people our willingness to restore some
element of integrity to the political process. So the proposal we have
has different goals than that suggested by the Senator from Utah.
Our goals are as follows. We try to reduce the flow of money in the
electoral process that has become dominated by dollars and cents rather
than issues and ideas. We try to end the perpetual money chase on
Capitol Hill by somehow allowing current office holders to spend less
time raising the requisite campaign funds and more time fulfilling
their legislative duties and obligations.
Mr. President, those are important things but they are not the core
of our proposal. The core of our proposal, the very heart of this
legislation, is, for the first time, to provide qualified candidates
who are not millionaires, and who are not able to amass colossal war
chests and do not have access to the extensive net worth of well-heeled
contributors with an opportunity to run a fair and competitive campaign
for the U.S. Senate. That is what this bill tries to do. It tries to
give most Americans, which includes those who are not
multimillionaires, most Americans, a fighting chance to be a part of
this process, that they were born and taught to believe was their
right. That is what this effort is about.
Our current campaign system is heavily tilted in favor of a
privileged few. If you have access to large amounts of campaign funds,
then our current system is great for you, it accommodates you. If you
are a millionaire and are able to contribute your own personal wealth
to your campaign without having to participate in the endless cycle of
attending fund raisers and soliciting contributions, then our current
system is good for you, too.
But, Mr. President, if you are not an incumbent and you are not worth
several millions of dollars, and even if you have a wealth of
experience and ideas, and even a large base of grassroots support, the
sad truth is that such candidates are automatically labeled long shots
under the standards set forth under the current election system.
Why is this, Mr. President? Why is someone who may have served as a
city council member, who may have been a police officer or a
schoolteacher, who believes in public service and holds an ambition to
represent their particular community, why is such a person in America
automatically labeled a ``long shot,'' making it so very difficult to
get credibility?
The answer is very simple, Mr. President. The answer, Mr. President,
is money. Money has become the defining attribute of congressional
candidates in this Nation. If you have money, you are considered a
serious contender; if you do not have money, you get stamped on your
head the phrase ``automatic long shot.''
I tell you what happens when someone declares their candidacy for the
Senate in this country. They are not asked about the issues very much.
They are not asked that much about what level of support they have in
their home States. Maybe at some point they will be asked that. Those
are not the questions that first greets either a real candidacy or a
planned candidacy. The question that they are greeted with has become
the determining question in American politics. The determining question
in American politics, Mr. President, is, ``Hey, where are you going to
get the money? How are you going to raise all the money? How much time
will it take? How much do you have to raise every week in order to be a
viable candidate?'' Most of us have had these questions thrown at us
when we first ran.
If you have the money, you are welcomed into our system with open
arms. You are considered a credible candidate, and your pursuit of
elected office is considered, right away, to be a tenable goal. But if
you do not have the money, it is an entirely different reaction. Such
candidates are usually shunned by the political establishment, labeled
long shots, and entered into an electoral arena where chances of
upsetting high finance candidates parallel their odds maybe of being
struck by a lightning bolt or winning the Powerball lottery.
Our campaign should be a discourse between candidates of differing
perspectives. Instead, we have a system that is the equivalent of a
high-stakes poker game, where only those players with the ability to
ante up are truly invited to sit at the table and join the game. It
does not matter what sort of experience you have or what your positions
are or what ideas you can bring with you. It is all about your ability
to put up big money on the table and ante up. That is really what this
bill is about, Mr. President. It is not an effort to prevent people
from participating in the process. It is just the opposite. There are
no mandatory spending limits, as is suggested by the opponents of the
bill.
But we have another problem. That is, Mr. President, that a lot of
people think it just cannot happen. I had this experience in talking to
editorial writers and constituents. They think this can never happen.
We have seen this before, whether it is partisan or bipartisan. It does
not matter whether it is after major electoral changes. It does not
matter that people think they have heard this song before and it just
cannot happen, that Washington can never clean itself up in this
regard. I admit this issue has been very difficult to alter. What is
different this time is that we have a bipartisan effort. Maybe the
polls in the past have shown the people do not rank this real high on
their list. However, as the Senator from Arizona says, that is
changing.
Maybe the reason it was not so high on the list before was this sense
that it could not happen. I remember the same attitude about the
deficit issue. When I first started talking about the deficit in 1990
and 1991, the consultants would say nobody cares about that. The public
gets bored, they get glassy eyed on that issue. After a while, people
realized that was a central issue. The same thing happens here. Maybe
it has been tough to get this issue going because it is not easy to
understand. It is not as easy as the effort that Senator McCain,
Senator Wellstone, and I all made on the gift ban. That was so easy.
All you had to show was that people could get free golf trips all over
the country and there was not much more to explain. It is awful hard to
vote for that. But this is worse. This is even worse than the gift-
giving system that we finally cracked down. I think there is reason to
believe that we can win tomorrow and reason to believe that we will
win, whether tomorrow or in the near future.

There are many reasons, but I thought the vote we had in 1995 on the
floor of the Senate was a little clue. That was when the former
majority leader, Senator Dole, came to the floor to move to table an
amendment I had brought up to simply say that campaign finance reform
ought to be considered. I would have thought we would have lost that
vote. The majority leader usually won, almost always won on those kind
of votes. We had 13 or 14 Members from the other side who came over and
joined us to make sure it got on the agenda. Unfortunately, of course,
it took us almost a year to actually get out here and have a bill come
up, but it has finally happened.
How do I know this issue is stronger than it was in the past? When I
go to my counties around the State to town meetings for listening
sessions, I usually make an introductory statement --keep it short,
because people have been told I will listen to them; I only give myself
5 minutes like I give everyone else. I found this year when I merely
said the words to my constituents, I have signed on to a bipartisan
bill concerning campaign finance reform, even before people knew who I
signed on with or what the bill did, there was tremendous applause in
the room. Many times I just get blank stares after I speak. This got
major applause and response every time, because people are fed up. We
have reached the time when this bill and this issue will come to
fruition.
I want to say--all of us have this same feeling who have cosponsored
this bill--this is not our perfect bill. It is not the perfect bill for
the Senator from Arizona or the Senator from Minnesota. I introduced S.
46 in the first day of the 104th Congress. That was a lot closer to
what I would prefer, the Feingold bill. It included public financing,
which I think is the best way to go. That is my preference. I think it
is the preference of the Senator from Minnesota, who has long been an
advocate of this issue.

[[Page S6685]]

One of our responsibilities here in this body is to know when it is
time to work with the other side and to give up some of the things we
really want so we can move forward. I remember that is exactly what the
former majority leader said in his farewell talk. If you cannot get 100
percent, get 90 percent today and get 10 percent later. I was delighted
when the Senator from Arizona came to me and initiated this process.
The bill included some ideas the Democrats had proposed before, some
the Republicans proposed before. What struck me overall, it was a
genuine attempt to reach an accord between the parties. You have to do
that on an issue like this. This is an issue where if either side feels
the other side has somehow rigged the bill, it is all over. That is why
I am so proud of the support we have received for this bill.
One of the problems with reaching a compromise is that you worry some
how those who have been real strong advocates, especially out among the
public, will say, ``Wait a minute. This is not good enough.'' That
could have happened. As the Senator from Arizona knows, just the
opposite happened. We have received enormous support. We have 60
sponsors of the two bills in the House and the Senate. It is almost
evenly divided on bipartisan lines in the House. The lead author of
this in the Senate is a Republican, although we do have more on the
Democratic side who have cosponsored it. It has been supported
vigorously by Common Cause and Public Citizen, AARP, and the United We
Stand group that has helped on this issue all across the country. These
are not necessarily political bedfellows, but on this issue they came
together.
As the Senator from Arizona indicated, we have had enormous editorial
support all across the country--east, west, north, south--from major
newspapers to minor newspapers. As I indicated, we have the support of
both the President of the United States and Mr. Ross Perot. What I have
been impressed by with regard to this support, Mr. President, is that
even though it came out about a year ago, and this bill has been
delayed and delayed, nonetheless, the support remains, and the people
who have advocated this bill have kept the heat up.
Mr. President, why does the public sense we absolutely have to move
on campaign finance reform at this point? I think it is because people
have finally realized that the No. 1 issue that we have to deal with in
this country is getting the big money out of policymaking that goes on
in Washington.
For me, the No. 1 substantive issue is we have to balance the budget.
If I had to pick the one reform issue, the one issue that is underlying
all of this, it is the issue of campaign finance reform. Mr. President,
why is it that people are finally sensing what is going on? Just a few
of the statistics that are very troubling: In a U.S. Senate race now,
the average winner spent in 1994, $4.5 million. That is what the
average winner needs. It is not good enough anymore just to be a
millionaire. You better have a lot more than that. You better have
about $10 million if you want to finance it yourself.
What about personal wealth contributions? They have gone up
dramatically in the last few elections. In 1990, only 4 percent of the
money that was spent on elections was from personal wealth, from
individuals putting in their own money. The same in 1992. Suddenly, in
1994, 18 percent of all the money spent on U.S. Senate elections came
from a dramatic increase in personal spending.
Mr. President, what about overall spending? In 1990, it was a lot of
money--$494 million. In 1992, the spending in House and Senate races
grew to $702 million. Just 2 years later, it jumped again to $784
million. The same thing goes with the trend on out-of-State
contributions. After staying at 16 percent in 1990, in 1992, the
percentage of money in Senate elections that comes from out of the
State for a Senator is now 23 percent, and growing. So these are not
static concerns. These are not trends that have always been there or
practices that have always been there. These are rapidly increasing
trends in overall spending, out-of-State spending, and the huge
infusion of personal money into campaigns.
I know this from my own campaign. Everyone of us has our own story.
For me, all three of my opponents--both of the primary candidates and
the final election candidate, the incumbent--had all spent over what
this bill suggests as a limit by the time of the primary. That is about
a $14 million or $15 million Senate race in Wisconsin, which is
certainly not a small State, but it is not a real large State either.
It was a staggering sight for the people in my State. Fortunately, for
me, my primary opponents felt so confident that I was not a factor in
the race, they decided to turn all that money on each other, causing
the people to look for an alternative. But we know that type of thing
is an exception to the rule. That was just in a primary, not the
general election.
Mr. President, perhaps most disturbing, though, is not the issue of
how can somebody finance their campaign, or even the issue of what
happens when somebody is outgunned in a race, even though one person
may be more qualified than the other. I think what the American public
realizes more than anything else, and what really bothers them the
most, is they know that this story does not end when the votes are
counted. It is not just a question of who wins and who becomes a
Senator. They know that the very policies enacted in this Congress are
altered in some way or another by the presence of all of this money in
the process.
How does this happen? Well, one way it happens is that in this town
there are, apparently, 13,500 people who are lobbyists. They help with
this process. They are not inactive in connecting the campaign process
to the policy process. Let me give you one example of what happens
around here. I will omit the names of those involved, but it is just a
sample so that nobody is confused or puzzled about how sometimes what
we decide to do out here is somehow connected to what happens during
the campaigns.
Here is an invitation:

During this year's congressional debate on dairy policy,
representative ``blank'' has led the charge for dairy farmers
and cooperatives by supporting efforts to maintain the milk
marketing order program and expand export markets abroad.
To honor his leadership, we are hosting a fundraising
breakfast for ``blank'' on Wednesday, December 6, 1995. To
show your appreciation to ``blank,'' please join us at Le
Mistral Restaurant for an enjoyable breakfast with your dairy
colleagues.
PAC's throughout the industry are asked to contribute
$1,000. ``Blank'' would prefer that the checks be made to his
leadership fund. If your PAC is unable to comply with this
request, please make your PAC check to ```blank' for
Congress.''
Thank you for your support of our industry's legislative
campaign this year and your recognition of ``blank's''
important role toward achieving our objective.

Now, this is legal. I am not suggesting anyone here has done anything
legally wrong. It is just what goes on in this town. A vote is taken,
and a fundraiser is held. I am not suggesting the opposite, which would
be wrong. But, boy, it is a tight connection. That is what is going on
in this town, and that is what the American people have come to
realize.

Earlier this year, a report was issued by the Center for Responsive
Politics. It does show a relationship--at least an arguable
relationship--between campaign contributions and the congressional
agenda. The list includes cattle and sheep interests contributing over
$600,000 during the last election cycle, while fighting to protect
Federal grazing policies to give them access to Federal lands at below-
market prices. Mining interests spent over $1 million in 1993 and 1994
on campaign contributions to Members of Congress while trying to
prevent reform of the 1872 mining law. Oil and gas interests
contributed over $6.1 million in the last election cycle pushing for
the alternative minimum tax. That is a change that would cost the U.S.
Treasury $15 billion.
So this problem affects everything, including our deficit problem. If
special interest money can encourage us to spend more money, or create
more tax loopholes, then it is part of the reason we cannot balance our
budget.
Mr. President, there are many other issues that I wish to discuss,
just as the Senator from Arizona does, and there will be time to do
that. At some point, we will lay out some of the specific provisions of
the bill. We will discuss in detail the constitutional issues that I
know the Senator from Kentucky will tenaciously raise, and we will
certainly

[[Page S6686]]

point out that, although they are interesting arguments, they are not
the arguments that the U.S. Supreme Court would ultimately follow. But
I think it will be a spirited debate.
Finally, I hope to get a chance to stand again and talk about what
this means. Let me conclude by saying what it means to me from the
point of view of someone who grew up believing that everybody had a
chance to run for Congress or the Senate if they really wanted to.
This summer, I will go to my 25th high school class reunion at
Janesville Craig High School in Janesville. I am looking forward to it,
and I am eager to see my former Democratic and Republican friends--
there were more Republicans than Democrats in that town, which taught
me the value of bipartisan cooperation. Recently, I had a chance, here
in the Halls of the Capitol, to meet with the political science
students from the another high school, our crosstown rival, Janesville
Parker. They asked me what I was working on. As I looked at them, I
realized something had changed from 1971 when I told people that maybe
I would go into politics someday. You know, in 1971, nobody said,
``First, Russ, you have to go out and raise about $5 million, or you
better become so connected to the political structure in Washington, or
you are never going to be a Senator or a Congressman.'' Nobody said
that to me, and I have had the good fortune to be an exception to the
rule here. But I could not tell those kids 25 years later that anyone
of them had any reasonable expectation to ever be elected to this body,
unless they become very, very wealthy, or very, very well connected.
To me, that is a little bit of a denial of the American dream. It is
not the same thing as being able to buy a house. It is not the same
thing as not having health care. I realize it has to be down the list
as compared to basic necessities. But I still believe that the right of
every American to fairly participate in this process is part of the
American dream. That is all our bill is about, making sure, on a
voluntary basis, that every qualified American has a fair chance to
participate in the process. That is what we are trying to do.
Mr. President, I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. BENNETT. Mr. President, I will not speak at length, having
introduced the debate. I want to provide a counterpoint to the
arguments that we have had now with two speakers in favor of the bill.
I would like to make several comments, one with respect to the chart
offered by my friend from Arizona.

I was in this town when Richard Nixon was President of the United
States and the loud outcry went up that money was destroying politics;
that we had to reform politics; that we had to find a way to take the
corrosive support of money away from politics in the wake of the
Watergate scandal. The solution that was crafted and debated on this
floor and ultimately passed was the creation of the political action
committees [PAC's]. PAC's were touted as the ultimate purifying
process. What could be better than a PAC?
I remember the debate very well. It went this way. Instead of one
individual being able to give Richard Nixon $250,000--or, as Clement
Stone did at the time, $2.5 million--now you have a circumstance where
ordinary citizens can get together and pool their money in a political
action committee, and for efficiency purposes, the managers of that
committee will issue individual single checks of no more than $5,000.
What could be better in cleaning up politics than the creation of the
political action committees? Indeed, Mr. President, I once worked for
the man who probably created the first political action committee. His
name was Howard Hughes.
At the Hughes organizations in California, where people were
constantly coming to Mr. Hughes for political contributions, he said,
``Let's get all of the employees together, let them contribute $5, $10,
whatever is their choice, into a single fund, and then let them
determine how that money will be spent.''
The original Hughes political action committee had every politician
in California coming before it to speak to the employees because the
candidate who did a great job in front of that PAC meeting would walk
away with a check for $50,000, $60,000, or $100,000, depending upon how
the employees voted that their PAC money was to be spent. I believe
that was the model for the creation of the political action committee.
Now we see charts being given to us telling us of the corrosive
damaging influence of PAC's.
It all comes down to a statement that was made in an editorial in the
Wall Street Journal on the 4th of April. I quote:

The bigger point here is that money and politics is like
water running downhill. Dam up one avenue, and it will pool
and meander until it finds another way to break through.
Trying to regulate it is a fool's errand, as even some good
government reformers are beginning to understand.

If I could go back to the theme of my opening statement, we are not
talking about, in the words of the Senator from Wisconsin, reducing the
flow of political action money. We are talking about redirecting the
flow of political action money with the kind of legislation that is
being offered here.
Back to the Wall Street Journal, another editorial. This one that
appeared on the 2d of February 1996, which gives an example of the kind
of thing I was talking about in my opening statement.

What the reformers will not advertise is that there is
nothing much they can do about the special interests who
decide to spend money on their own, as they did to great
effect in Oregon. The AFL-CIO says it devoted 35 full-time
professionals and sent out 350,000 pieces of partisan mail
for the cause. The Sierra Club and the League of Conservation
Voters spent $200,000 on 30,000 postcards, 100,000 telephone
calls, and very tough TV and radio spots accusing Republican
Gordon Smith of voting against ground-water protection, clean
air, pesticide limits, and recycling.

The editorial goes on:

The toughest was a Teamster radio spot run on seven
stations in five cities that in effect accused Mr. Smith of
being an accomplice to murder because a 14-year-old boy died
in an accident at one of his companies.

Quoting the spot:

Gordon Smith owns companies where workers get hurt and
killed. He has repeatedly violated the law. Those are the
facts.

The Journal goes on:

In fact, the young worker had died after a fall in a grain
elevator while being supervised by his father, who still
works for Mr. Smith and does not blame him. An analysis of
the ad in the liberal Oregonian newspaper essentially
concluded that the whole thing was false. The ad was the work
of consultant Henry Sheinkopf, who is part of Bill Clinton's
reelection team this year and likes to say he believes in the
politics of terror.

The editorial goes on:

Even Mr. Wyden felt compelled to criticize the rhetoric of
the ad, but since it was not run by his campaign he couldn't
be blamed for it even as it cut up his opponent. That is the
beauty of these independent expenditures. They work for a
candidate without showing his fingerprints. Mr. Wyden took
the high road earlier this month and announced that both
candidates should stop negative campaigning, while his allies
kept dumping garbage on Mr. Smith through the mail and on the
airwaves.

Mr. President, that is the point I made in my opening remark, and
that is the point I will keep coming back to again and again until we
recognize that special interest money is more damaging in the hands of
special interests going directly to the voter than it is in the hands
of a candidate who must be accountable to the voter. We will be missing
the point in this whole debate. Setting limitations? Oh, we are told
they are not mandatory, that they are only driven by a voluntary
incentive system.
Ask Bob Dole about the voluntary incentive system he is laboring
under. He cannot spend any more money now under this voluntary
incentive system, and President Clinton has $27 million to spend
because Bob Dole had to run against Steve Forbes and Pat Buchanan to
win his nomination, and Bill Clinton did not have to run against
anybody. So Bill Clinton has his $27 million raised for the primary
that he can spend in any way he wants, and Bob Dole is forbidden by
law. But, no, that is not mandatory. That is a voluntary incentive
system.
Mr. McCAIN. Mr. President, will the Senator yield for a question?
Mr. BENNETT. Yes.
Mr. McCAIN. The Senator surely knows that has nothing to do with the
legislation we are considering. That

[[Page S6687]]

has to do campaign financing within campaigns, which is not in this
legislation.
I sympathize with the frustration of the Senator from Utah. I was
going to talk about it later on. I understand, according to some folks,
that now you can sleep in the Lincoln bedroom for $130,000, but that
has nothing to do with the legislation that is being proposed here,
which those limitations impose because of candidates taking taxpayers'
money.
Mr. BENNETT. I agree completely that the Senator from Arizona is
correct, that this bill does not include public financing. But may I
get clarification? The voluntary incentive system does, in fact, if
entered into by a candidate for local office, produce a limitation.
Mr. McCAIN. Mr. President, I ask unanimous consent to engage in a
colloquy with the Senator from Utah.
The PRESIDING OFFICER (Mr. Stevens). Is there objection? Without
objection, it is so ordered.
Mr. BENNETT. Is there, in fact, a limitation if someone enters into
the voluntary incentive system?
Mr. McCAIN. There is no limitation. What happens is that then the
challenger who is running, who is not in violation of the voluntary
spending limits, then receives extra incentives.
That is all there is to it. There is no prohibition for anyone, and
it allows them to spend however much money they want to spend. In the
case of a millionaire or a multimillionaire, say from a small State,
who wanted to spend millions of dollars of his or her own money, we
would not allow that person, as is the habit of these millionaires, to
raise all that money back. We only allow them to raise $250,000 back,
and the rest of it he or she would have to write off.
But there is no limit on the spending that a person can make. They
just lose the incentives that are in the bill, and the opponent who may
not be nearly as well funded has some extra incentive to go along with
it, the details of which I will be glad to explain to the Senator from
Utah.
Mr. McCONNELL. Will the Senator yield?
Mr. BENNETT. Mr. President, I ask unanimous consent that the Senator
from Kentucky be allowed to enter the colloquy.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. Mr. President, I do not believe that that is according to
the rules of the Senate. I do not believe that three--I do not believe
that more than two can engage in a colloquy. I ask the Parliamentarian.
The PRESIDING OFFICER. By unanimous consent, the Senate can engage in
such colloquy, Senators may engage in such colloquy as they seek.
Mr. McCAIN. Then I ask unanimous consent that the Senator from
Wisconsin be included in this colloquy.
The PRESIDING OFFICER. Is there objection?
Mr. WELLSTONE. I ask unanimous consent that the Senator from
Minnesota be in this colloquy.
The PRESIDING OFFICER. Is there objection? Very well, gentlemen. The
Chair will still ask that Senators seek recognition through the Chair
if there is a dispute.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. I understand that my friend and colleague from
Minnesota is supposed to be at an event. I will try to keep this short.
But I would say to my friend from Utah, I think the answer to the
question that was raised, the whole issue of whether there is spending
in this bill, of course, there is. It is referred to, Mr. President, as
``voluntary'' when, in fact, it is voluntary such as the following
situation: You are being held up and a fellow puts a gun to your
temple, and he says, ``You don't have to give me your billfold, but if
you don't, I am going to shoot you.''
So what happens to you in this situation, I say to my friend from
Utah, is that if you do not agree to the Government-imposed speech
limit on the campaign, the following things happen to you: You lose
free broadcast time, 30 minutes; you lose the 50 percent broadcast
discount; you lose a discounted postage rate; your opponent gets a
higher contribution, individual contribution limit.
As you can see, this is not terribly voluntary. In fact, it is the
part of the bill that makes it unconstitutional.
Now, I did not stand up here to make my major comments on this, but I
did want to just follow up on this PAC discussion because I know my
friend from Arizona had the PAC chart up. I used to advocate, as a part
of an overall compromise back years ago when our side was trying to put
together an alternative, going along with the PAC ban even though I
knew it was unconstitutional. I think that it was a bad decision then
and it would be a bad decision now to eliminate political action
committees, because, in fact, the vast majority of them are organized
just as my friend from Utah has suggested.
An awful lot of American citizens, Mr. President, are really offended
by the likelihood that they would be pushed out of the political
process altogether. Having been involved in this debate for some 10
years now and having watched the flow of this issue, I would say what
is different about the debate this year is that an awful lot of people
who are aggrieved by it are willing to say something.
For example, the National Education Association, with which I am very
seldom allied, just wrote me a letter indicating they are opposed to
this bill. I know that EMILY's List is opposed to this bill. I know
that the National Taxpayers Union, the National Right to Life
Committee, the National Rifle Association, the Christian Coalition, the
National Association of Broadcasters, the National Association of
Business PAC's are all against this bill.

Now, in the case of the broadcasters and the direct marketing people,
you could argue that one of the reasons they do not like this bill is
because they are going to be called upon to pay for it. I guess you
could argue technically that there is not taxpayer funding in here, but
spending limits are not free. So the question is, who picks up the tab?
Under this proposal, the broadcasting industry and the direct marketing
industry have the opportunity to pass these costs along to their
customers. And that is, in effect, how it is paid for.
The NEA----
Mr. FEINGOLD addressed the Chair.
Mr. McCONNELL. Let me just say, Mr. President, I am going to yield
the floor because I know my friend from Minnesota is anxious to get his
remarks in and go to something else. But I mentioned the NEA in
connection with the PAC discussion because I would say to my friend
from Utah, in the letter they sent just today indicating their
opposition to this bill, they said that the average contribution to the
NEA PAC is $6.
Now, Republicans know they are a very big PAC because we rarely get
any contribution from it, but I would say that it is a step forward for
democracy to have that many people involved participating together on
behalf of a cause in which they believe. So we should not be banning
PAC's. I do not think the courts would let us do it, but we should not
be doing it. Something as unconstitutional, as the ACLU candidly says,
should not pass in the Senate.
But specifically in connection with the PAC discussion, most PAC's
include an awful lot of Americans banding together to support the
candidates of their choice. It is very, very hard for me to see how
that is a bad thing for democracy.
Finally, before yielding the floor, let me say there is always a lot
of discussion anytime we bring this issue up about leveling the playing
field. Well, in order to level the playing field in Kentucky, you would
have to get about half the Democrats to change their registration. You
would have to sell about half the newspapers to different owners so
they would occasionally support Republicans. And you would have to
rewrite the political history of the State.
So if we are really going to be serious about leveling the playing
field here, money is not the only factor in these elections--voting
behavior, registration, newspaper endorsements, what kind of year it
is. If the Government is really going to try to create a level playing
field, let us really get into this thing now and figure out how to
really do it.
In short, Mr. President, you cannot create a level playing field; it
is impossible. It is impossible because every political year is
different, every State is different, the strength of the parties is
different. All you can do through this

[[Page S6688]]

kind of proposal is, as my friend from Utah pointed out, redirect money
in a different direction. Spending limits are, in short, like putting a
rock on Jello. It sort of oozes out to the side in a different
direction.
Several Senators addressed the Chair.
Mr. McCONNELL. I will be happy to yield the floor, and we will
continue the debate later.

The PRESIDING OFFICER. Under the past unanimous consent, the Members
who sought recognition as part of a colloquy may yield to one another
until this colloquy is over.
Mr. McCAIN. Will the Senator from Kentucky yield?
Mr. McCONNELL. I yield the floor.
Mr. FEINGOLD and Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER. The Senator yielded. The Chair will recognize
the Senator from Minnesota.
Mr. WELLSTONE. Mr. President, the Senator from Arizona and the
Senator from Wisconsin want to respond.
Mr. McCAIN. I would like a very brief response.
Mr. WELLSTONE. Very well. And I would like to get the floor. Could I
ask unanimous consent that after they respond I might have the floor?
The PRESIDING OFFICER. The Senator is part of the colloquy by
unanimous consent.
Mr. WELLSTONE. I will defer to my two colleagues, and then I would
like to follow.
Mr. McCAIN addressed the Chair.
The PRESIDING OFFICER. The Chair is just going to issue an edict that
when the three speakers have spoken, there be no action under this
colloquy; it is too hard to maintain.
The Senator has yielded. The Senator from Arizona.
Mr. McCAIN. Mr. President, that was the reason why I raised the
concern to start with.
Mr. President, as far as PAC's are concerned, I just make two
responses. I have heard the comment that a lot of people have felt that
if political action committees were not allowed, they would somehow be
deprived of their part in the political process. In fact, most
constituents of mine feel that making campaign contributions directly
to the candidate is the most effective and beneficial way. In fact, I
do not know many of my constituents who come here to Washington to give
me that PAC check. In fact, the person that gives out those $5,000 PAC
checks is the lobbyist here in Washington. So that is a strange
description of the political process.

Mr. President, I do not want to get too harsh, but let us talk what
this is really all about. Let me give two examples of the Palm Beach
Post editorial of last October:

In his diaries, Mr. Packwood describes his relationship
with a lobbyist. Shell Oil and many other clients hired him
because they knew he had access to Senator Packwood. In
return, this lobbyist raised money for the Senator so the
lobbyist collected fees, the Senator collected campaign
contributions and the company got legislative favors. As
Senator Packwood told his diary: ``That's a happy
relationship for all of us.''

I do not think that is exactly along the lines of the process that
the Senator from Kentucky just described.
Let me just quote again from this editorial.

The lawmaker's claim to be above board has collapsed
lately. Wyche Fowler, a former Senator and Representative
from Georgia, said, ``On many occasions--I am not proud of
it--I made the choice I needed this big corporate client, and
therefore I voted for or sponsored this provision even though
I did not think it was in the best interests of the country
or the economy.''

Mr. President, there are two examples from both sides of the aisle of
what the problem is here. The problem is that this money exerts undue
influence on the process.
Mr. President, there will be more. I yield.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Minnesota yielded.
Does the Senator now yield to the Senator from Wisconsin?
Mr. WELLSTONE. I now yield to the Senator from Wisconsin.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I know the Senator from Minnesota has
been waiting for a long time. I will yield in a moment.
Mr. President, I thought this was a colloquy on the issue of whether
there were spending limits in this bill. The Senator from Kentucky and
the Senator from Utah have come out here today and said, time and
again, that there are mandatory spending limits or that there are
spending limits that force you to lose something that you have now. We
have to clear this up. I am going to stay out here as long as this bill
is up to clear it up.
The example the Senator from Kentucky used suggested that if somebody
started to spend what they used to spend, they would lose something
they used to have. It is not true. Our bill does not cause a person who
wants to spend money to lose anything. If they want to go over the
limit, they still get the lowest commercial rate. They never had the
benefits of the bill in the first place. So let us be very clear about
this, there is no gun to anyone's head. That is just false. In a State
where the limit is $1 million, a person can spend $10 million, just as
they can today, and they lose nothing. There is no gun to anyone's head
in this bill. It only provides benefits to those who are willing to
comply with it.
I challenge the Senator from Kentucky at any point in this process to
suggest where anyone is forced to give up what they have now. People
can spend themselves into oblivion on this bill still. But at least
those who are opposing them will have a chance.
I think it is very important that the record show what this bill
actually provides, not the parade of horribles that have been suggested
that do not actually exist in the text of the bill.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, just following up on what my colleague
from Wisconsin, Senator Feingold, has had to say, I think what this
bill will do, however, is it will set a higher standard. You do not
have to comply with it. But once we, as a U.S. Senate, and then
hopefully the House of Representatives, respond to what I think people
are telling us in the country about what they yearn for in our
political process, it sets a higher standard. I think the focus will be
on how to make this political process more accountable and more open
and more credible and more believable for people.
I want to get to my more formal remarks. But I want first to respond
to a little bit of what I have heard said. My colleague from Kentucky--
we have debated other issues on the floor of the Senate--talked about
how in Kentucky a whole lot of other things would have to be done in
order to have a level playing field: You would have to change part of
the history, you would have to change who owns some of the newspapers,
et cetera.
This is a bit of a strawperson argument. We are not making the
argument that this piece of legislation will create a political heaven
on Earth. We are just trying to talk about how to make this a little
better, to improve people's confidence in it and in elected officials.
We are talking about how to try to make this system work better for
people.
I suppose the argument can be made that you can never have a 100
percent completely level playing field. But this piece of legislation
is a significant step toward dealing with some of the disparity that
now exists and toward making this system less wired for people who are
incumbents, less wired for people who are wealthy, less wired for
people who are connected to the well-connected.
Some of the arguments made by this bill's opponents this afternoon
kind of miss the point. I do not want right now to get into a long
discussion with my colleague from Utah. Maybe we will later on. I plan
on staying on the floor for the duration of this debate, or for a good,
long period of time. But if we want to go back to the Federalist
Papers, let me also just suggest to my colleague that part of the
intention of those who wrote Federalist Paper No. 10 was to figure out
how, in fact, you could check majority rule. There was a big concern
about the tempestuous masses.

I must say, I think part of what is going on here on the floor is
trying to figure out how to check majority rule, because this system
right now does not meet the standard of real representative democracy,
because the standard of a representative democracy in our country, or
any other country, is that

[[Page S6689]]

each person counts as one and no more than one. I dare any of my
colleagues to, in this debate, come out here on the floor and say,
given the system we have right now and the reliance on huge
contributions--whether it be soft money, PAC money or individual
contributions--that, as a matter of fact, each and every citizen has
the same influence over our political process. It is simply not true.
And it is certainly not the perception that many have of our system.
This current system does very severe damage to the very essence of
what representative democracy is supposed to be all about. I think this
vote is going to be the reform vote of the 104th Congress. That is what
this is all about. This is going to be the reform vote of the 104th
Congress. I want people to understand exactly what is at stake here
over the next day or so.
We will have a vote on this, to bring to a close the Senate
filibuster. We have been able to bring this bill to the floor but we've
been blocked from amending it or otherwise moving forward on it by this
filibuster. We will have a vote to try to break the filibuster at 2:15
p.m. tomorrow. In the meantime, we do not have the opportunity to amend
the bill. Senators do not have the opportunity to improve the bill.
Senators should have that opportunity. And then we should have a chance
to vote on it, up or down.
Last Congress we debated campaign finance reform--that is to say,
ways in which we could begin to get some of the big money out of
politics, ways in which we could bring the spending limits down, and
make the system work better for people--for several weeks. What is
going on here is an effort to filibuster this bill, motivated by a hope
that tomorrow at 2:15 we will not get the required 60 votes to end the
filibuster and then it will all go away. Then I suppose the sort of
political cover position will be: Let us appoint a commission. But
that's not going to fly, either here or with the American people. And
if we are unable to break the filibuster tomorrow, we will be back
again on this issue until we get it done.
I want to remind my colleagues one more time: this is the reform vote
of the 104th Congress, and people will hold us accountable. Our
constituents in our States, Democrats, Republicans, and Independents
alike, will hold us accountable. Nobody should believe this is going to
be an easy vote: Vote against cloture, block this legislation, and then
duck for political cover by saying you want to appoint some commission.
I want to talk about this piece of legislation, not in a technical
way--though we can have that debate as well--but, rather, just in terms
of some simple human realities. First of all, I will start with
Senators and Representatives. I do not know, my colleague from
Wisconsin talked about this, but I think I am speaking for almost
everybody here. I think most of us dislike the current system. Most of
the people in Congress, on both sides of the political aisle, with whom
I talk in private say it is a rotten system. People spend too much time
fundraising and they do not spend enough time legislating. People hate
to have to call and ask for money. We all know that what my colleague
from Wisconsin said is true, which is that the very definition of why
you are a viable candidate, unfortunately, has nothing to do with
content of character, with leadership, with vision, with your sense of
right or wrong for your country; it has to do with whether or not you
are independently wealthy or you have raised or will raise millions of
dollars.
I think all of us should want to change this system because I think,
when we are involved in the fundraising, the perception--and I do not
accuse one colleague here of any individual corruption--but the
perception of people is often that we are out there raising money from
this person or that person or this PAC or that PAC, and people just
simply lose confidence in the political process. All of us who care
fiercely about public service, all of us who care fiercely about good
politics, all of us who are proud to serve in the U.S. Senate ought to
be concerned about the fact that people have lost confidence in this
process.
So I argue the human realities are this: We need to pass this reform
bill to restore some trust in this political process. That is what this
is all about. I would say there is an A and a B part to this. The A
part is this. I am wearing a political science hat, I am wearing a
U.S.-Senator-from-Minnesota hat, and I am also wearing a citizen hat.
People are not going to believe in the outcomes of this process unless
they believe in the process itself. And as long as people believe that
too few people, with so much wealth, power and say, dominate the
political process and the vast majority of people feel left out, ripped
off, underrepresented, not listened to, then I would say to everybody
here we are not going to do well with the public.
People want to believe in this political process. They do not like
the fact that big money dominates too much of politics in America.
Regular people do not feel well-represented within the current system.
Mr. President, I have worked with Senator McCain and Senator
Feingold, I worked with Senator Simon on many, many, many issues. If it
does not get him in trouble, I will say he is my best friend in the
U.S. Senate. You can only have one best friend. I wish he would not
leave. I think it is a huge loss for our country. We have worked on
other things. We worked on the gift ban, and we worked on lobbying
disclosure. Senator Levin from Michigan played a major role as a leader
on lobbying disclosure.
In some ways, this has a sense of deja vu to me. For many months,
many of our colleagues said they were opposed to the gift ban and
opposed to lobbying disclosure legislation. In fact, they were both
filibustered and stopped at the end of the last Congress. But we came
back in this Congress, and we won.
What were we saying there? We were saying, ``Look, we're not bashing
people here, we're proud to serve. But if you want the bashing to stop,
if you want the denigration of public service to stop, if you want
people in our country to be more engaged in public affairs, if you want
citizens to be more active, then, for gosh sake, give up this practice
of having this interest or these folks or those folks pay for you to
go, take trips, wherever, give it up, let it go. We don't need it.''
And we passed that.
Then we came to the floor and we said, in the spirit of sunshine and
full disclosure, if somebody lobbies here, Americans should know what
they're up to. People lobby for different interests. That is not the
problem, but there are two problems.
One problem is we wanted to deal with an outdated bill passed in the
late 1940's and have full disclosure so we would have accountability,
as to who was doing the lobbying, who was working for whom and what
were the scope of their efforts. And the other problem, by the way, is
lobbyists, by and large, those people who march on Washington every
day, tend to represent a very narrow segment of the American
population. That is the problem. Many other people are not well
represented.
Now we come to the ethical issue of politics, I think, of our time,
which is the way in which money has come to dominate politics: Who gets
to run for office? Who is likely to win the election? Who is the best
connected? Who are the heavy hitters? Which people have the most
influence? What issues are on the agenda? What issues are off the
agenda? How many people are out there in the anteroom, and whom do they
represent? How do they secure access? what are their patterns of
political giving? Political scientists and reformers have been asking
these questions for years, and they've come up with some very telling
answers.
And we see it here everyday. We don't need anybody to point out
what's going on. When it is a telecommunications bill or it is a health
insurance reform bill, that anteroom is packed wall to wall with
people. They represent the most powerful in America.
But when it comes to children's issues--Head Start, title I, support
for kids with disadvantaged backgrounds--I never see it wall to wall
lobbyists.
This is the ethical issue of politics in our time. And, Mr.
President, we are talking about a systemic problem, but not about the
corruption of an individual officeholder. I do not believe that is the
case. We are talking about systemic corruption when what happens is too
few people have way too much power and say, and those are the people

[[Page S6690]]

who can most affect our tenure in office and, unfortunately, in this
system, those are the people who have the financial resources. We are
trying to, through this legislation, take a significant step toward
beginning to end that.
Mr. President, I want to say to my colleague from Wisconsin, if I can
get his attention for one moment, that when he was talking, I was very
moved by what he said when he was talking about meeting with students.
He said, ``I just feel like this isn't the American dream. Money is
so important in terms of who can run, who can get elected.''

He said, ``Maybe this isn't exactly as important as health care, or
maybe it's not as important as whether people have a job, maybe it is
not quite up there.'' I think it is; I think it is. As a matter of
fact, this is the core issue, the one that's in a way prior to other
political issues. The first chapter in one of the many books my
colleague, the Senator from Illinois, has written dealt with the whole
issue of campaign finance reform. That was not by mistake. This is the
core issue, I say to my colleague from Wisconsin and my colleague from
Illinois. This is, in many ways, the most fundamental issue, because
you know what we are talking about? We are talking about something we
all must hold dear that is fundamental: whether we are going to have a
functioning democracy.
If you believe that each person should count as one and no more than
one, if you believe there should be some political equality, if you
believe that citizens should have real input and real say and have the
same opportunities to participate and be listened to and to be involved
in public affairs and to run for office and to be elected for office,
it is simply true--I do not want it to be true--but most of the people
in the country know it to be true, that this is not what is happening
in our country today, and big money mixed with politics has severely
undercut the very ideal of representative democracy.
That is why people are so disenchanted. That is why people are so
disengaged. That is why this has become a cafe issue. That is why
people are talking about this, I say to my colleague from Wisconsin, in
the same way they are talking about a lot of other issues.
This is no longer just Common Cause. I honor Common Cause. They have
done marvelous work as fierce advocates of political reform. But this
is no longer being pushed just by good government, United We Stand,
reform parties. More important, this is an issue people are talking
about in their own homes, and people want change.
I will just take a couple of more minutes, Mr. President. I have said
that this is a core issue, and that we must deal with it before we try
to address other problems. I am going to get some colleagues angry at
me when I say that, and we will have a good debate on it. I think many
people have decided that we will never do deficit reduction on the
basis of some standard of fairness. That is to say, yes, we will target
a whole lot of deficit reduction on those citizens on the bottom
economically who have the least political clout, but we do not do
deficit reduction when it comes to the big military contractors or all
those oil companies and coal companies, and tobacco companies and
pharmaceutical companies that get all of their tax breaks.
I do not think people believe we will do deficit reduction with any
standard of fairness. I do not think people believe that we are going
to deal with the fundamental problem of making sure every child has a
decent educational opportunity in our country; that we are going to
resolve inner-city poverty; that we are going to make sure we have a
clean environment, within our current system.
I do not think people believe that we are going to deal with the
budget deficit or with the investment deficit, because I think people
believe that this political process will not work, and the reason they
think it will not work is because they think it is dominated by big
money, because the citizens of the United States of America do not
believe they exercise real power.
And guess what? In a democracy, the people ought to have the right to
dominate their political process. They have the right to believe that
the Capitol belongs to them. But it does not.
So we are at a critical juncture. Either we are going to go forward
without a truly representative democracy, what some have called
checkbook politics, or we are going to have a democratic renewal, and I
mean democratic renewal not with a large ``D,'' I mean with a small
``d,'' where people have confidence in this process, where people feel
like they are being listened to, where people feel like they can
participate. That is what this is all about.

Mr. President, my colleague from Wisconsin already recited the
statistics. And he noted the work of the Center for Responsive
Politics. I ask unanimous consent that a letter and three short opinion
pieces written by the director of the center, Ellen Miller, which have
appeared in newspapers throughout the country, be printed in the Record
following my statement, because they outline succinctly what I have
been talking about in terms of the problems with our current system.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. WELLSTONE. Mr. President, it has only gone from bad to worse
during the decade of the 1980's and the 1990's. It is just absolutely
out of control, absolutely out of control, with the new twist being
soft money. Much of it is just shifting to soft money. I mean, you have
the individual contributions. And by the way, the people who make the
large individual contributions represent a tiny slice of the American
population. You have PAC money.
In addition, you have soft money that is supposed to be for party
building or for issue-oriented ads. I know all about those ads in
Minnesota. The sky is the limit. The parties are awash in this money.
The attack ads do not add one bit of information to one citizen
anywhere in the United States of America.
They do not contribute toward representative democracy. I have to
smile when I hear the argument made, well, we ought to actually be
spending more money. There are some people here that want to do that.
On the House side they are talking about actually raising the limits.
That is an interesting argument.
The argument goes like this. ``Well, Senators and Representatives
wouldn't have to make as many calls and do as much fund raising if you
could just raise it to larger chunks.'' That goes in exactly the
opposite direction of having a representative democracy where there is
some political equality and where citizens really count.
Or I heard my colleague from Utah make the argument about expanding
disclosure. I'm all for more disclosure. But that's not enough. Even
so, that could be an amendment. Give us the cloture vote and then let
us have amendments. That is the way to deal with this. ``If we make no
changes, we will do better on disclosure.'' Every 2 years and every 4
years people will see clearly that even more money is being spent by
special interests or by people who are wealthy. And people will become
more disenchanted. And we will be stuck with all the problems we have
right now. I do not see that as the answer.
So I will not summarize our bill. I think everybody here is aware of
what we are doing. We are reducing the spending limits. We have some
strict disclosure on soft money. We banned bundling. We banned PAC
money for Federal candidates. If that is declared unconstitutional,
then we have a fall-back smaller limit on PAC's which would apply. We
ask that people raise the majority of the money from within their
States. And we have some incentives which I believe really help when
people agree to these spending limits.
We set a standard. We do not have the public financing that I would
like to have. But this sets a standard for the country. It is a
significant step forward. I believe it is good for each and every one
of us here. I certainly think it is good for challengers. I think it
deals with some of the disparity. I think it gets us closer to a level
playing field. I think that it is probably the most important step we
can take in this Congress to pass this legislation.
So to my colleagues, if you want to debate this, let us debate it.
But do not block it. Do not think it is going to go away. Give us the
cloture vote. Bring out your amendments. Try to improve it. Let us have
the debate that people in this country want us to have. And to each and
every one of you, this is the

[[Page S6691]]

reform vote of this Congress. The people back in our States will hold
us accountable. I yield the floor.

Exhibit 1

Center for Responsive Politics,

June 14, 1996.
Senator Paul Wellstone,
U.S. Senate, Washington, DC.
Dear Paul: I want to share with you the enclosed series of
five op-ed ads that the Center has placed in The New York
Times, The Washington Times, and the Atlanta Journal-
Constitution. A version of the first ad will also run in the
Boston Globe, The Advocate (Stamford, CT), the Seattle Post
Intelligencer, the Milwaukee Journal Sentinel, the Arizona
Republic, the Louisville Courier-Journal, The Nation, The New
Republic, The Weekly Standard, Roll Call, The Washington
Monthly, and Talkers Magazine. The op-ed ads will appear
during a two-week period starting Monday, June 17, preceding
the upcoming debate in Congress on various campaign finance
reform bills.
The purpose of these ads is not to support or oppose any
particular piece of legislation now before Congress, nor is
it to put forward a reform proposal of our own. It is simply
to help re-frame the debate. What are the real problems? What
must real reform accomplish? We see these ads as providing
``guideposts'' for evaluating what is real reform and what is
not. In short, we want to use the ads to push the debate onto
higher ground by reminding people that democracy carries with
it certain fundamental principles--principles that are now
violated by our campaign finance system.
If you would like additional copies of the ads, or would
like to talk about the ad series, please give me a call. You
are welcome to insert them into the Congressional Record if
you so desire.
With warm regards,
Ellen S. Miller,
Executive Director.

Financing Elections . . . As If Democracy Mattered

Remember when democracy was something you believed in, not
something for sale?
Those days have come . . . and gone.
Big money from big campaign contributors has put a price
tag on our democracy. Our fundamental principles--like a
government accountable to the people--are undermined as
candidates collect millions of campaign dollars from rich
people and organizations with specific and special interests.
When the election's over, the donors collect. Fancy dinners.
Private briefings. Special favors. Subsidies. Tax breaks.
No wonder average Americans are angry. Democracy is
supposed to be about empowering all the people, not just the
people with money. Political equality and government
accountability are the values that inspire our faith in
democracy. America's history is the history of our progress
toward making these goals real for every citizen. These same
values should inspire efforts to reform campaign financing.
Americans want real reform--not empty promises. But not all
the proposed reforms in Congress and in state legislatures
across the country will solve the problem.
How will we recognize real campaign finance reform?
In this series of essays, the Center for Responsive
Politics presents four essential ``guideposts'' for reform.
Keep these in mind when you hear lawmakers talk about
campaign finance reform. Real campaign finance reform will:

enhance competition

Allow qualified Americans of diverse backgrounds and
perspectives to seek public office regardless of their
personal wealth or their access to wealth.

restore public confidence

Eliminate the inevitable conflicts of interest created when
big money buys elections and the special interest replaces
the public interest.

ensure equal access

Provide all Americans access to their government and their
elected representatives regardless of their ability to make
campaign contributions.

stop the money chase

Place the people's business first by freeing elected public
servants from the money chase that distracts them from the
responsibilities of governing.
Campaign finance reform . . . as if democracy mattered.
Because it does.
____

Get Adopted By Steve Forbes

Get adopted by Steve Forbes or his friends in the
multimillionaire club.
In today's ``cash-ocracy'', that's your only chance to get
the cash you need to compete in a major election. Unless
you're already a member of the club. Either you have deep
pockets to fund your own campaign or you reach into someone
else's deep pockets. No wonder Congress has the highest
concentration of millionaires outside of Wall Street.
Of course, money isn't everything in politics--Steve Forbes
proved that. But ask yourself; what kind of attention would
Forbes have gotten if he didn't have money?
Consider who isn't running for President: Jack Kemp. Dick
Cheney. Dan Quayle. All popular, potentially strong
candidates who decided not to run. Money was a major reason.
This year, you had to raise $20 million just to be
``viable.'' And consider that in nine out of ten
Congressional races, the candidate with the most money wins--
even in the ``revolutionary'' elections of 1994.
Good people don't run for office because they can't raise
the money they need to be taken seriously. Anyone you know
able to quickly raise $5 million? $500,000? These are the
average prices of a U.S. Senate or House campaign.
Democracy is cheated and weakened when the first test of a
candidate's strength is the size of their bank account or the
wealth of their friends. Elections should be decided on the
power of ideas openly debated, the strength of character, a
record of accomplishments and a vision for the future. Our
elected representatives should be skilled listeners and
thinkers--not mere fundraisers.
How will we recognize real campaign reform?
In this series of essays, the Center for Responsive
Politics presents four essential ``guideposts'' every
American should use to evaluate proposals for campaign
finance reform.

guidepost #1: ENHANCE COMPETITION

Real campaign finance reform should enhance fair
competition by allowing candidates of diverse backgrounds and
perspectives to seek public office regardless of their
personal wealth or access to wealth. You shouldn't need to be
a millionaire to be a candidate.
Campaign finance reform . . . as if democracy mattered.
Because it does.
____

He Who Pays the Piper Calls the Tune

This truism teaches us a lot about how we finance election
campaigns and how our government works--a lesson known even
to House Speaker Newt Gingrich and President Bill Clinton.
``Congress is increasingly a system of corruption in which
money politics is defeating and driving out citizen
politics,'' said Gingrich in 1990.
``Many special interests are trying to stop our every move.
They try to stop reform, delay change, deny progress, simply
because they profit from the status quo,'' said President
Clinton in 1993.
It's ironic that two of the biggest fundraisers in American
history confirm it--we have a checkbook democracy. He who
pays the piper calls the tune.
Most Americans can't afford to ``pay the piper.'' The
biggest funders of Congressional campaigns are those who have
a direct interest in the business of government. Decisions
are skewed in their favor. Those who cannot afford to pay are
left out.
____

Yet, all of us pick up the tab. Pork-barrel federal
programs, subsidies, and tax breaks for corporations and
industry groups are expensive: Hundreds of billions of
dollars every year, according to research by organizations as
diverse as the Progressive Policy Institute and the Cato
Institute. Then there's the cost to our democracy in
increased public cynicism, alienation and lower voter
participation. Confidence in government plummets.
How will we recognize real campaign finance reform?
In this series of essays, the Center for Responsive
Politics presents four essential ``guideposts'' every
American should use to evaluate proposals for campaign
finance reform.

guidepost no. 2: restore public confidence

Real campaign finance reform should restore public
confidence in government by eliminating the inevitable
conflicts of interest and skewed policymaking created when
big money buys elections and the special interest replaces
the public interest.
Campaign finance reform . . . as if democracy mattered.
Because it does.

Mr. GORTON addressed the Chair.
[Disturbance in the gallery.]
The PRESIDING OFFICER. Any more outbreaks and we will empty the
galleries.
The Senator from Washington.
Mr. GORTON. Mr. President, the arguments of each of the three
sponsors and proponents of this bill who have spoken here this
afternoon almost take the form of what we were taught in college was a
syllogism.
Proposition No. 1. The people of the United States intensely dislike
the present system of financing election campaigns. We see that in
polls. We hear that in town meetings. We certainly read that in the
editorials in the great majority of our daily newspapers.
Proposition No. 2. The title of this bill is the Senate Campaign
Finance Reform Act of 1996.
Conclusion. We should pass this bill. People want campaign finance
reform. This is campaign finance reform, therefore, it should become
law.
Only, incidentally, to this point in the debate has the actual
content of the bill been discussed, and almost not at all have the
proponents discussed the similar debate that took place more than 20
years ago that resulted in our present campaign finance law, passed on
the basis of precisely the syllogism that is presented to us today. In
1974 people did not like the way in which campaigns were being financed
and run. A number of Members in both Houses proposed what they called
campaign finance reform, and the Congress passed it.

[[Page S6692]]

Mr. President, one might ask Members of Congress to look at a little
bit of history. I am convinced that if we were to open up the
Congressional Record for those debates, somewhat more than 20 years
ago, every one of the same propositions you have heard here this
afternoon were presented: There is too much money in politics. We do
not have enough people involved in it. We have to make a set of reforms
in order to restore trust in the process.

Mr. President, is there more trust in the process today than there
was in 1974? I think not. Are there fewer complaints about the process
today than there were in 1974? I think not. Are there more self-
financed millionaire candidates today than there were in 1974? I
believe there are. Are there more independent expenditures, attempts to
influence voting behavior by those who are not directly connected with
the candidates themselves? The answer to that question, Mr. President,
is there are infinitely more.
And so what is the proposal of the proponents of this bill? ``Let's
do more of what we did in 1974. Let's impose more restrictions on the
process than we imposed then. Let's limit more significantly what can
take place in an open and disorderly political world than we did in
1974.'' All we need is more of what has failed for more than 20 years.
I have looked through this proposal, and I do not think I am
exaggerating to say that I believe that I find the heart of the
philosophy of the proponents in section 201. I think I can quote it in
its entirety. It is on page 31 of the bill, Mr. President.

Notwithstanding any other provision of this act, no person
other than an individual or a political committee may make a
contribution to a candidate or candidate's authorized
committee.

No person, other than an individual or political committee may make a
contribution to the political process. And then, Mr. President, I get
out my copy of the Constitution of the United States, and in amendment
I, I read, ``Congress shall make no law * * * abridging the freedom of
speech.'' And I weigh those two propositions against one another.
I see a group of proponents who really, in the world of politics and
the expression of political opinion, do not like the first amendment to
the Constitution of the United States. So they say that any political
campaign through a candidate, no person other than an individual or an
authorized committee--authorized by law, passed by this Congress--can
make any contribution to a candidate.
Now, Mr. President, we are all quite correctly frequently quoting or
remembering the great French observer of more than a century and a half
ago, Alexis de Tocqueville, who found the genius of the United States
of America to consist of free association. De Tocqueville talked about
this country as being a place in which people got together voluntarily
in organizations to build a church or to found an antislavery society
or to organize a group of immigrants to the new West or to do any of
1,000 or 10,000 other activities. Our genius was voluntary association.
In fact, some of the most thoughtful and cogent criticisms of the
Soviet Union in its heyday was that it prohibited voluntary
association--prevented voluntary associations of people for charitable
purposes, for religious purposes, but above all, Mr. President, for
political purposes.
The heart of this bill makes it illegal for a group of persons to get
together to make a contribution to a political campaign for the U.S.
Senate. If the Senator from Kentucky and I want to get together and
form an association to promote the election of a candidate for the U.S.
Senate in his State or my State or any other State, we will be
violating the law if this bill becomes law. We could do it as
individuals, but only with this tiny amount of money that has,
effectively, been cut by two-thirds since the 1974 law was passed. Of
course, as much as the proponents of this legislation dislike the first
amendment, they cannot repeal it. They absolutely cannot prevent the
Senator from Kentucky and me from getting together and forming this
organization and going out quite independently to educate the people of
one of these States about the misdeeds of an incumbent, or the glories
of some other candidate. Mr. President, if they could, they would. That
is the philosophy of this bill. They think that any organization of
individuals is a great evil that should be prevented from engaging in
campaigns for the U.S. Senate.
Mr. McCONNELL. Will the Senator yield?
Mr. GORTON. I yield.
The PRESIDING OFFICER (Mr. Craig). The Senator from Kentucky.
Mr. McCONNELL. The Senator from Washington indicated it would be
illegal under the bill for citizens to form together and form a
political action committee and submit a candidate. But is it not true
if an individual does it, they better do it early, because once the
speech limit has been achieved, even the individual is shut out of the
political process, is he not?
Mr. GORTON. The Senator from Kentucky is correct. He and I, under
this hypothetical, would not be able in, say, the last 2 weeks before a
general election to make any such contribution if the candidate whom we
propose to support had already reached the limits provided in this law
and agreed to come under its provisions.
As I say, we could not be prevented from our own independent action
in that connection. But even the elaborate superstructure, which might
to a certain extent lift the restrictions on the other candidate, would
likely come too late if we ourselves were late.

I find it fascinating that this bill is being debated on this floor,
considering the way in which we see politics has been practiced in the
last 6 or 8 months in the United States. We have had literally tens of
millions of dollars spent in the most thinly veiled attack on
incumbents, mostly in the House of Representatives, who supported last
year's balanced budget--tens of millions of dollars. I am particularly
sensitive to those attacks because so many of the victims are freshmen
Members of Congress from my own State.
Yet the definitions in this bill do not constitute those labor
attacks on these incumbents as either contributions to their opponents
or, for that matter, independent action, because they very carefully do
not advocate their defeat in so many words or the election of their
opponent. These incumbents' hands, should this apply to the House, are
absolutely tied with respect to a response to those advertisements
which they feel--I think even the newspapers feel--grossly misstate
their positions on issues.
This leads me, of course, to the second point. When you have a
proposal--and assume for the purposes of this action the proposal is
entirely constitutional--that limits the ability of one individual, a
candidate, or a group of individuals, the candidate and that
candidate's supporters, from effectively communicating their ideas to a
large group of potential constituents in a country of more than 250
million people, what is the impact? The impact is, if there is less
political communication, the political communication that is still
allowed has a greater impact.
Now, what kind of political communication is absolutely allowed and
not remotely touched by this bill? Why, of course, the communication
that comes from editorial writers of the newspapers who have endorsed
the bill. It is a bonanza for the editors of the Los Angeles Times or
the New York Times or the Milwaukee Journal or the Portland Oregonian.
There are far fewer people to counter whatever it is they tell their
readers they ought to do. Nothing is provided to the candidate
disfavored by those newspapers in the way of being able to communicate
countervailing ideas.
At least at the founding of our Republic we could be fairly sure that
a town of 5,000 people had four newspapers to engage in that
communication. Do we have that today? How does the disfavored candidate
in the State of Kentucky deal with a series of editorials every day of
the week, and columns every day of the week, in the Louisville Courier
Journal in favor of his opponent, against him under this bill? How can
that disfavored candidate possibly communicate under this bill?

Mr. McCONNELL. Will the Senator yield?
Mr. GORTON. Yes.
Mr. McCONNELL. The Senator, of course, is entirely correct. It is
totally impossible to level the playing field--the argument that we
always hear by the proponents of this bill. As the Senator indicated,
the expression of newspapers, of course, is not impacted at

[[Page S6693]]

all; as a matter of fact, specifically exempted from expenditure. I
will just read this from the current law, which has not changed under
the bill:

The term ``expenditure'' does not include any news story,
commentary, or editorial distributed through the facilities
of any broadcasting station, newspaper, magazine, or other
periodical publication, unless such facilities are owned or
controlled by any political party, political committee, or
candidate.

In other words, that kind of speech, which is enormously significant
in the political discourse that surrounds any particular campaign year
is completely outside of the speech limits imposed by this bill. The
Senator from Washington is entirely correct, to the extent that the
speech of candidates is suppressed, the speech of others is enhanced.
Mr. GORTON. That enhancement applies not only to the newspapers, of
course. Just to take an example of one of the great proponents of the
bill, Common Cause. Its ability to communicate its ideas is not in any
way restricted by this bill, nor, of course, could it be. But the
ability of a candidate who disagrees with the views of Common Cause, or
the Sierra Club, or the National Rifle Association, or the AFL-CIO, is
severely restricted and, as a matter of fact, may be rendered totally
and entirely ineffective.
Now, the proponents of this bill have said this is a very narrow
bill. It only applies to the Senate, for example, and not even to the
House of Representatives--as if we will ever end up getting a law of
that nature. It does not apply to the Presidency. That was a statement
made recently by, I think, the Senator from Arizona, which is entirely
correct. It does not. But the philosophy behind the bill, that there is
just too much free speech in politics today, is absolutely identical.
So I think it not at all unfair, Mr. President, to say that we are
faced today, right now, without any change in the present law at all,
under present laws that stem exactly from the philosophy behind this
bill, with the absolutely absurd situation in which there is only one
person in the United States of America who may not raise money to
communicate his ideas to the people of the United States, and that
person is Robert Dole.
Mr. FEINGOLD. Will the Senator yield for a question?
Mr. GORTON. Not at this point.
The PRESIDING OFFICER. The Senator will not yield.
Mr. GORTON. Mr. President, under this bill, Robert Dole, at this
point, is in exactly the position of one of the volunteer candidates
for the U.S. Senate. A year ago, or a year and a half ago, whenever the
key time was, he determined that he would operate under certain
campaign restrictions in return, in his case, for a direct subsidy from
the Federal Treasury. In the case of this bill, oh, no, not a direct
subsidy, no taxpayer money here. We just take it away from private
enterprise, people who own television stations, or from the public and
postal fees. He made that determination. He did not realize at that
time that he was going to end up with an opponent who would ignore
these limitations and spend $40 million of his own money attacking him
so that in order to survive through a group of primaries, he had to
spend money he had not intended to spend. So he finds himself in a
situation in which the other candidate for President of the United
States, with all of the advantages that incumbency has, with $18
million, I think, left to spend directly on his campaign, is spending
at least some of it harassing the opposing candidate for overspending
on his allotment.

So we have campaign election reform. Boy, we have it coming out of
our ears in the field of the Presidency of the United States, the net
result of which is that one of the two major candidates cannot campaign
effectively between now and August.
This is a triumph of election law reform? This is a triumph for the
first amendment of the Constitution of the United States? I do not
think so, Mr. President. But this is exactly what they want to do to
the U.S. Senate in this bill.
Presumably, the great evil is that there is too much in the way of
communication of ideas and the people of America are too stupid to be
able to figure out who to vote for if we have a free exercise of our
first amendment rights and the ability to communicate those ideas
through groups, including the groups we have voluntarily chosen to
join. Some of the most severe restrictions in this bill are on what
political parties can do, Mr. President, for their own candidates.
Now, I do not think there is a single State in the United States of
America in which the political party of a candidate for the U.S. Senate
does not appear beside his or her name on the ballot. For the Senator
from Wisconsin, it says Democrat, and for the Senator from Kentucky, it
says Republican right on the ballot when you go in to vote. Yet,
somehow or another, receiving more than a modest degree of financial
support or direct expenditures from one's political party is deemed by
the sponsors of this bill to be corrupting in nature.

Mr. President, I do not understand that. I absolutely fail to
understand the theory behind that limitation.
Mr. McCONNELL. Will the Senator yield?
Mr. GORTON. Yes.
Mr. McCONNELL. As the Senator from Washington knows, that very issue
is currently before the Supreme Court, as to whether or not it is even
constitutional to restrict what parties can do on behalf of their
candidates, an absurd restriction on its face.
There has been much discussion out here on the floor about the
advantages of incumbency. We know that political parties will support
challengers. If we wanted to have the right kind of campaign finance
reform, one of the first things we ought to do--and I am sure my friend
from Washington would agree--is take the shackles off, if the Court
does not do it for us, take the shackles off of the one institution of
American politics that will support a challenger every time.
Mr. GORTON. That is the party to which the challenger belongs and
which can certainly make the determination, which was so eloquently
outlined by the Senator from Wisconsin, as to whether or not that
challenger is a serious one and has a real opportunity for victory. So
if we have no limits on the amount of money----
Mr. FEINGOLD. Will the Senator yield for a question?
Mr. GORTON. In a few minutes, I will.
If we have no limits on the amount of money the political party could
contribute, we would certainly benefit the challengers. Of course,
there might be a degree of loyalty on the part of the elected candidate
to his or her own political party, the party with whom he or she
identifies, from the beginning of his or her candidacy. No, Mr.
President, I think it comes right back down to the way with which I
began these remarks.
The heart of this bill--and of the other provisions that move in the
same direction--is that no person, other than an individual or
political candidate, may make a contribution to a candidate. That is
the heart of this bill. You cannot make a contribution to a candidate
unless you do it in strict accordance with this bill.
It is against the first amendment of the Constitution of the United
States that says ``Congress shall make no law * * * abridging the
freedom of speech.''
If that law does not abridge the freedom of speech, it is impossible
for me to devise one that does.
If the Senator wishes to ask a question, I would be happy to answer.
Mr. FEINGOLD. This Senator is intrigued by the Senator's discussion
of newspapers and the roles of the newspapers today in the context of
this bill passing and becoming law. All I hear around the country is
that the newspapers have lost their clout and that they do not compare
with television, cable TV, and the like.
My question is: If it is the case that newspapers somehow have this
power, why do not campaigns spend a lot of money on newspaper
advertising to counteract?
I would suggest--and it would be an interesting response--that the
influence of newspapers is absolutely minuscule. Regrettably the
influence of these editorial writers is minuscule compared to the power
of television. I would suggest that is the reason that 75 or 80 percent
of almost every Senate campaign spends its money on television.
I would be interested in why suddenly newspapers have reached the

[[Page S6694]]

power that they have lost over the years.
Mr. GORTON. I am convinced that the Senator from Wisconsin has made
an excellent point, and I suspect that however we may disagree on some
elements of campaigning that he probably did not spend an awful lot of
money in his campaign on newspaper advertising. And I can assure him
that I did not either for exactly the reasons that he outlined.
I guess to take the least important part of my answer first, my
answer would be there is a difference between newspaper advertising and
newspaper editorial support. All of us, even when we were not spending
money in a particular newspaper, sought the editorial support of the
newspapers in our States. The next level of my answer to his question
is, of course, even though that influence has declined in recent year--
I think clearly it has--this bill would clearly restore it.
The fundamental point that I was making is that, if you restrict the
amount of information that people have about elections, those elements
of information that they get will be proportionately more important. If
the candidate is severely limited in the amount of communication that
he can effectively engage in through newspapers, or through television,
or through any other mass media, the impact of what the media
themselves do either in their news columns or in their editorial
columns will be increased.
But the most significant point that the Senator from Wisconsin causes
me to make is that I really used newspapers as a shorthand for the way
in which we communicate today. I suspect that the Senator from
Wisconsin might not even have asked me the question if I had
substituted for newspapers the NBC television outlet in his city, or
for that matter NBC, or ABC, or a number of other television outlets in
the country as a whole. While they have certain rules on blatant
editorialization, there is not one of them who has not experienced what
he or she considers to be an absolutely unfair or distorted news story
on television which can have a devastating, or for that matter a
tremendously affirmative, impact on the attitudes of people toward a
campaign.

And what this bill does is to say that no matter how devastating that
television news story is on a particular campaign, the victim, the
disfavored candidate, is not going to be able to effectively respond to
it. None of the benefits of this bill accrues under those
circumstances. And the limitations are such that the attack is almost
certain to go unanswered.
Mr. FEINGOLD. Mr. President, if I could ask one more question, is it
a fair characterization for the Senator to say that the loss of the
last 2 years or decades of relative influence of newspapers vis-a-vis
television may be changed by this bill? Is it fairly characterizing his
remarks as suggesting that newspapers may gain a greater influence than
they have under the current system?
I believe that was the gist of the Senator's remarks.
Mr. GORTON. No. The gist of my remarks was that newspapers would gain
vis-a-vis television. It will be that both will gain vis-a-vis the
ability of the candidate to project his or her own idea.
Mr. FEINGOLD. Have newspapers regained some of the ground they have
lost in terms of influence?
Mr. GORTON. I am not sure television has ever lost ground.
Mr. FEINGOLD. But newspapers will regain some of the ground they have
lost in terms of the influence. I believe that was one of the Senator's
points.
Mr. GORTON. I believe that is the case simply because there will be
less in the way of alternate communication under this bill.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington has the floor.
Mr. GORTON. Mr. President, I will summarize. I know the Senator from
Illinois has not had an opportunity to speak yet. He has waited almost
as long as I did to get that opportunity. I will once again return to
what I began with.
So far the arguments, as I have heard them on the floor here today,
are that the polls, the newspapers, and the people do not like the
present system, and they want campaign election reform. This
proposition 2--this bill is entitled ``Campaign Election Reform.''
Conclusion: We should pass this bill.
Mr. President, I do not believe that to be the case. This bill will
not end up restoring confidence in the political system. It will force
money into different channels, channels which neither this bill nor any
other bill can control, one for which the candidates will be less
responsible, and not more I think responsible in any respect
whatsoever.
The Senator from Utah in beginning this debate said that the
appropriate solution was not limitation but disclosure. I agree with
him. That is the thrust of an opinion based by Larry Sabato, a
political scientist at the University of Virginia which is frequently
quoted on these subjects.
Mr. President, we should be willing to trust the American people, as
he puts it, with sorting out their own ideas as long as they know the
source of those ideas and the source of the money to communicate those
ideas. That is appropriate election reform. The Senator from Arizona
said, ``Well, why don't you put it up as an amendment after voting for
cloture on this bill?'' Mr. President, I think I can announce to him
that it would be a nongermane amendment if cloture were granted on this
bill and on this amendment. It goes way beyond the scope of the bill--
the bill and the amendment itself--because it goes to the current
election as a whole.
Mr. McCAIN. Will the Senator yield?
Mr. GORTON. He will.
Mr. McCAIN. I assure the Senator right now that I will agree to a
unanimous consent request, a motion, if cloture is invoked, that any
amendment that the Senator from Washington wanted to impose I would
agree to.
Second of all, if I could just comment, the Senator knows what
section 324 means: Notwithstanding any other provisions of this act, no
person, other than an individual or political candidate, may make a
contribution. The Senator knows that unions cannot contribute directly
right now. Corporations cannot contribute directly right now, and all
it does is say political action committees cannot contribute right now,
and the reason political action committees should not be allowed to
contribute is because the system in America is so skewed and so unfair
that no challenger has a chance.
As I said in my opening remarks, if the challengers were voting
today, I say to the Senator from Washington that this bill would be
passed in a New York minute.
So the fact is that what this does is it bans political action
committees. It does not ban individuals. We have already placed
restrictions on free speech by limiting the amount that an individual
can contribute.
So I would say to the Senator from Washington that perhaps it is a
great idea just to have total disclosure and complete freedom as far as
any contribution is concerned. This bill does require disclosure. This
bill does require soft money to become hard money, and it also places
some reasonable restraints, and they are voluntary. They are voluntary.
We have the Congressional Research Service and other constitutional
opinions stating that this is constitutional. I respect the Senator's
opinion, but I certainly cannot allow him to get by with saying we are
restricting anyone's freedom of speech when we ban political action
committees where the common practice is that the Senator from
Washington and I go to a lunch someplace, dinner here someplace in
Washington, and are given a $1,000, $2,000, $3,000, $4,000, $5,000
check or groups of checks. That is not exactly what our Founding
Fathers had in mind.
I thank the Senator for yielding to me.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, we are at the heart of the matter now. The
Senator from Arizona does not like the way in which first amendment
rights are conducted or exercised at the present time. He therefore
wants to limit them. The genius of America in voluntary associations is
to him somehow so repulsive that no voluntary association, no
unincorporated, voluntary association in America, none whatsoever, is
going to be allowed to contribute to a candidate--none. You cannot get
together in America in a

[[Page S6695]]

voluntary association and contribute to a candidate because he does not
like the distribution of money from political action committees.
Well, thank God for James Madison. Thank God for the prohibition on
the part of this Congress or any other Congress to abridge the right of
free speech just because this Senator does not like the way in which it
is exercised at the present time.
The present law is bad, Mr. President. This law is worse.
Mr. McCONNELL. Will the Senator yield for just a brief question?
Mr. SIMON addressed the Chair.
The PRESIDING OFFICER. Will the Senator yield?
Mr. GORTON. Yes.
The PRESIDING OFFICER. The Senator from Washington yields.
Mr. McCONNELL. I know the Senator from Washington is about to
complete his remarks, and I missed part of the colloquy, but I gathered
at the end, if I could ask the Senator from Washington, I guess his
view of the bill is that certain kinds of speech are more worthy than
others. For example, would the Senator from Washington share my view
that this bill puts a premium on the following kinds of speech: going
down to a phone bank and volunteering your time or maybe putting yard
signs up or making a speech?
Mr. GORTON. As long as you do not pay for them.
Mr. McCONNELL. As long as you do not pay for them. So would the
Senator from Washington agree that the bill attempts to set up certain
kinds of preferred speech that would remain acceptable in the
postlegislative environment but other kinds of speech are viewed as
somehow nefarious and therefore should fall under Government
restriction? Is that essentially the point?

Mr. GORTON. Well, it does, but in that case, in that situation, it
does not differ from the general philosophy of the present law either
applied to races for Congress or to the Presidency. The thrust of my
criticism was that 20 years ago, we went into this restriction of free
speech rights with all of the same criticisms of the then system that
we have now, that that law was going to restore confidence on the part
of the American people in the system, and it is worse now and so their
cure is more of the hair of the dog that bit you.
Mr. McCONNELL. I thank the Senator.
Mr. GORTON. I yield the floor.
Mr. SIMON addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. McCAIN. Will the Senator from Illinois yield to me for 30 seconds
to respond?
The PRESIDING OFFICER. Does the Senator from Illinois yield?
Mr. SIMON. I yield 2 minutes to my friend from Arizona.
The PRESIDING OFFICER. The Senator from Arizona has the floor.
Mr. McCAIN. Mr. President, the Senator from Washington and the
Senator from Kentucky and I can argue about constitutionality of
certain actions, and since we are in disagreement, then obviously at
that point we have to refer to people who have a dog in this fight, and
I would like to submit for the Record at this time a Congressional
Research Service opinion from the Library of Congress, from Mr. L.
Paige Whitaker, legislative attorney of the American Law Division, that
declares our proposals, which the Senator from Washington was so
roundly critical of and so astute in fashioning himself as a
constitutional scholar, are viewed to be constitutional.
Second, Mr. President, we do have also various opinions from people
like Archibald Cox, Mr. Daniel Lowenstein, professor of law at the
University of California, at Los Angeles, and others, all of which say
that the provisions of this bill are, indeed, constitutional. The
Senator from Washington can certainly be offended by them if he does
not like them, but the view of most constitutional scholars on this
issue is that it is constitutional.
The PRESIDING OFFICER. Does the Senator wish to enter those into the
Record at this time?
Mr. McCAIN. I ask unanimous consent to enter into the Record the
opinion from the Congressional Research Service. I will save the others
as they are needed. I yield and thank my friend from Illinois.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Congressional Research Service,

The Library of Congress,

Washington, DC, April 12, 1996.
To: Senator Russell Feingold; Attention, Andy Kutler.
From: L. Paige Whitaker, Legislative Attorney, American Law
Division.
Subject: Constitutionality of Campaign Finance Reform
Proposals.

This memorandum is furnished in response to your request
for a constitutional analysis of three campaign finance
reform proposals:

I. Constitutionality of a voluntary spending limit system linked with
public benefits in the form of free and discounted television time and
discounted postage rates

In the 1976 landmark case of Buckley v. Valeo,\1\ the
Supreme Court held that spending limitations violate the
First Amendment because they impose direct, substantial
restraints on the quantity of political speech. The Court
found that expenditure limitations fail to serve any
substantial government interest in stemming the reality of
corruption or the appearance thereof and that they heavily
burden political expression.\2\ As a result of Buckley,
spending limits may only be imposed if they are voluntary.
It appears that the provision in question would pass
constitutional muster for the same reasons that the public
financing scheme for presidential elections was found to be
constitutional in Buckley. The Court in Buckley concluded
that presidential public financing was within the
constitutional powers of Congress to reform the electoral
process and that public financing provisions did not violate
any First Amendment rights by abridging, restricting, or
censoring speech, expression, and association, but rather
encouraged public discussion and participation in the
electoral process.\3\ Indeed, the Court succinctly stated:
``Congress may engage in public financing of election
campaigns and may condition acceptance of public funds on an
agreement by the candidate to abide by specified expenditure
limitations. Just as a candidate may voluntarily limit the
size of the contributions he chooses to accept, he may decide
to forgo private fundraising and accept public funding.'' \4\
Because the subject provision does not require a Senate
candidate to comply with spending limits, the proposal
appears to be voluntary. Although the incentives of public
benefits are provided, in the form of reduced and free
broadcast time and reduced postage rates to those candidates
who comply with the spending limits, such incentives do not
appear to jeopardize the voluntary nature of the limitation.
That is, a candidate could legally choose not to comply with
the limits by opting not to accept the public benefits.
Therefore, it appears that the proposal would be found to be
constitutional under Buckley.

II. Constitutionality of requiring candidates who are voluntarily
complying with spending limits to raise at least 60% of their
individual contributions from individuals within their home state

A voluntary restriction on Senate candidates to raise at
least 60% of their individual contributions from individuals
within their home state, with incentives for candidates to
comply with the ban, would also appear to be constitutional.
In exchange for voluntarily complying with the restriction on
instate contributions, a congressional candidate could
receive such public benefits as free and reduced television
time and reduced postage rates. This type of voluntary
restriction would most likely be upheld for the same reasons
that the Supreme Court in Buckley upheld a voluntary spending
limits system linked with public financing.
Here, in the subject proposal, as limitations on out-of-
state contributions are linked to public benefits as part of
the eligibility requirement, they would seem to be
constitutional for the same reasons that similar eligibility
requirements of the receipt of public funds were held to be
constitutional in Buckley v. Valeo.\5\ In exchange for public
benefits, participating Senate candidates would voluntarily
choose to limit the sources of their contributions. In
addition, an out-of-state contribution limit would not seen
to violate the First Amendment rights of out-of-state
contributors as they would have other outlets, such as
through independent expenditures, to engage in political
speech in support of such candidates who voluntarily restrict
receipt of out-of-state contributions.

III. Constitutionality of prohibiting all political action committees
(PACs) from making contributions, soliciting or receiving
contributions, or making expenditures for the purpose of influencing a
federal election

[[Page S6696]]

individuals, persons, groups, including even labor union
members, corporate employees, officers, and stockholders,
their families, and by persons who collectively work to
promote a certain ideology; provided, however, that they keep
their political funds separate and apart from any corporate
or labor union funds and accounts. They are required to
register with the Federal Election Commission after receiving
or expending in excess of $1,000 within a calendar year, they
are subject to contribution limitations, and, unlike
connected PACs, they are limited to using only those funds
they solicit to cover establishment and administration costs.
\7\
A complete ban on contributions and expenditures by
connected and nonconnected PACs would appear to be
unconstitutional in violation of the First Amendment.
Although the courts have not had occasion to address
specifically this issue, in Buckley v. Valeo, the Supreme
Court made it clear that the right to associate is a ``basic
constitutional freedom'' \8\ and that any action which may
have the effect of curtailing that freedom to associate would
be subject to the strictest judicial scrutiny.\9\ The Court
further asserted that while the right of political
association is not absolute,\10\ it can only be limited by
substantial governmental interests such as the prevention of
corruption or the appearance thereof. \11\
Employing this analysis, the Court in Buckley determined
that any limitations on expenditures of money in federal
elections were generally unconstitutional because they
substantially and directly restrict the ability of
candidates, individuals, and associations to engage in
political speech, expression, and association. \12\ ``A
restriction on the amount of money a person or group can
spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting
the number of issues discussed, the depth of their
exploration, and the size of the audience reached,'' the
Court noted. \13\ Therefore, in view of Buckley, it appears
that completely banning expenditures by nonconnected PACs
would be found to be unconstitutional.
In Buckley the Court found that limitations on
contributions can pass constitutional muster only if they are
reasonable and only marginally infringe on First Amendment
rights in order to stem actual or apparent corruption
resulting from quid pro quo relationships between
contributors and candidates. \14\ The Court noted that a
reasonable contribution limitation does ``not undermine to
any material degree the potential for robust and effective
discussion of candidates and campaign issues by individual
citizens, associations, the institutional press, candidates,
and political parties.'' \15\ Hence, Buckley seems to
indicate that a complete ban on contributions by nonconnected
PACs would be unconstitutional. Such an outright prohibition
would arguably impose direct and substantial restraints on
the quantity of political speech and political communication
between nonconnected PACs and federal candidates.
In sum, it appears that prohibiting all expenditures by
PACs would not pass strict judicial scrutiny as it would
significantly restrict most PACs from effectively amplifying
the voices of their adherents or members. \16\ Moreover, an
outright ban on contributions, although they are less
protected by the First Amendment, would probably be found to
substantially infringe on the First Amendment rights of the
members of the PACs and therefore be found to be
unconstitutional as well.
L. Paige Whitaker,
Legislative Attorney.

footnotes

\1\ 424 U.S. 1 (1976).
\2\ Id. at 39.
\3\ Id. at 90-93.
\4\ Id. at 57, fn. 65.
\5\ Id. at 90-92, 94-96.
\6\ 2 U.S.C. Sec. 441(b)(2)(C).
\7\ 2 U.S.C. Sec. 431(4) (definition of political committee);
2 U.S.C. Sec. 433 (registration of political committees).
\8\ Buckley, 424 U.S. at 25 (quoting Kusper v. Pontikes, 414
U.S. 51, 57 (173)).
\9\ Id. (quoting NAACP v. Alabama, 357 U.S. 449, 460-61
(1958)).
\10\ Id. (citing CSC v. Letter Carriers, 413 U.S. 548, 567
(1973)).
\11\ Id. at 27-28.
\12\ Id. at 39-59.
\13\ Id. at 19.
\14\ Id. at 20-38.
\15\ Id. at 29.
\16\ NAACP v. Alabama, 357 U.S. 449, 460-61 (1958). This case
was cited in Buckley v. Valeo, 424 U.S. at 22 to support the
conclusion that an expenditure limitation precluded most
associations from effectively amplifying the voices of their
adherents. See also Sweezy v. New Hampshire, 354 U.S. 234,
250 (1957).

The PRESIDING OFFICER. The Senator from Illinois has the floor.
Mr. SIMON. Mr. President, I yield 1 minute to my friend from
Wisconsin.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I am just a little puzzled by the round
condemnation of the PAC ban provision, especially given the fallback
provisions that we have included in the bill, because in 1993, Senator
Pressler offered an amendment 372, which is virtually identical to our
provision, and it was supported and voted for by the Senator from
Washington and the Senator from Kentucky. They voted for this PAC ban
with the fallback provision. I am a little puzzled as to why this can
be such a central problem in this bill when it was worthy enough for
their support just 2 years ago.
I yield the floor.
Mr. SIMON addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois has the floor.
Mr. SIMON. I think the comments of my friend and esteemed colleague
from Washington underscore something I have learned in 22 years here. I
am a slow learner. I have not learned much, but one of the things I
have learned is every reform ultimately needs a reform. That is one of
the laws you can put down and it almost always is the case.
I commend my colleagues from Arizona and Wisconsin, Senator McCain
and Senator Feingold, for their foresight and their courage in offering
this legislation.
This is not an abridgement of free speech. The reality is we have
restrictions. If someone in the gallery right now decides they want to
make a speech here, the Presiding Officer, the Senator from Idaho, is
going to say, ``No, you cannot.'' That is not unconstitutional. So we
have sensible restraints in our society.
The other day I saw a bumper sticker here in Washington that tells
something of the public mood. It was a little bumper sticker that says,
``Invest in America. Buy a Congressman.'' Kind of a sad commentary on
where some people think we are.
I do not believe you can buy a Congressman, but I think we have a
system that warps the results of this body.
I thought Senator Wellstone's speech was outstanding. I am sorry I
did not hear the others. I hope political science teachers around the
country will read it and give it to their classes.
Frequently people who visit here, Mr. President, are astounded at the
few numbers of Senators who are on the floor. I think they would be
more astounded and more outraged if they knew this fact--and I cannot
prove it right now, but I am reasonably sure it is true--right now,
this minute, there are more Senators raising money than are on the
floor of the Senate. I believe that to be the truth. It is a usurpation
of the time that we ought to be devoting to issues, to be going out
raising money. It affects all of us. I have never promised anyone a
thing for a campaign contribution. But if I end up at midnight in a
hotel and there are 20 phone calls waiting for me, 19 of them from
names I do not recognize, the 20th is someone who gave me a $1,000
campaign contribution--at midnight I am not going to make 20 phone
calls. I might make one. Which one do you think I am going to make? The
reality is you feel a sense of gratitude to people who are generous
enough, and obviously wise enough, to contribute to your campaign. But
it means that the financially articulate have inordinate access to
policymakers.

I can remember before I ran for reelection in 1990, just before we
formed the new Congress, that two key members of my staff came to me
and said, ``You ought to shift over to the Finance Committee.'' Why did
they want me to shift over to the Finance Committee from Labor and
Human Resources or the Judiciary Committee or the Foreign Relations
Committee? So I could raise more money.
That is a practical reality around here. Even beyond that reality,
when people come into my office or they are on the phone and they ask
me to vote for or against something and they have been generous to me,
I sometimes wonder, ``Are they going away thinking I agree with them
because of the contribution?'' That distorts things. This whole
distortion concerns me.
I can remember when I voted for NAFTA, a group of people who said
they had been major contributors to me almost implied I had been bought
and how could I possibly vote for NAFTA? The process just distorts
everything.
I spoke here about 2 hours ago on the west Capitol steps to the PTA.
They are here, interested in getting more money for education. My
friends, what if the PTA and the other groups like that had as much
money to contribute as the defense industry? Would we have a different
budget today? You bet we would have a different budget today. We would
have appreciably more spent on education, which is in the national
interest.
This bill does not solve every problem. It does not go as far as I
would like to see us go. But it certainly is a

[[Page S6697]]

step forward. Why is this Nation the only one of the Western
industrialized nations not to provide health care protection for all of
our citizens? Mr. President, 41 million Americans do not have health
care coverage. Those 41 million Americans are not big contributors. The
insurance companies, the pharmaceutical companies, the people who
profit from the present system are the big contributors, and we are
letting this system just roll on.
Mr. President, 24 percent of our children are living in poverty. No
other Western industrialized nation is anywhere close to that. This is
not an act of God. This is not some divine intervention that says
children in America have to live in poverty more than children in Italy
or Denmark or France or other countries. It is a result of flawed
policy. It is a result of policy that is disproportionately responsive
to those who can finance campaigns. The 24 percent of our children who
live in poverty, their parents are not contributing to our campaigns.
That is the reality. So, we do not pay as much attention to them as we
should.
One of the arguments I have heard against this is the least valid of
all the arguments against it, and that is if we change this, that would
be unfair to nonincumbents. Let me tell you, no system is better for
incumbents than the system we have right now. We occasionally have
people who win who spend less. I am looking at two of them, Senator
Feingold and Senator Wellstone. But they are the rare exception. I
managed to do that in my first Senate campaign, too. But, generally,
incumbents under the present system have a huge advantage, and
incumbents tend to think whatever system got us elected has to be a
pretty good system.

Let me, finally, say I announced right after the last election I was
not going to run for reelection. I felt it was time for me to move on
and do other things. Not the major consideration, but a consideration,
was that in my last election I had raised $8.4 million. I enjoy
policymaking. I even, unlike a lot of my colleagues, enjoy campaigning.
I enjoy going down the streets of small towns as well as Chicago and
elsewhere, campaigning. I do not enjoy fundraising because I think it
is distasteful, and I think many, many people understand it is
distorting our system.
So I am pleased to be a cosponsor of this legislation. I think it
moves us in a direction we ought to be going. It is a step in the right
direction. For my friend from Washington, who said the present bill,
the reform adopted in 1974, is not working as it should, I would not
like to see the present law repealed, weak as it is. My guess is my
friend from Washington would not want to see it repealed either. This
is a step forward. It is a step the Nation needs.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. KERREY. Mr. President, I rise today in strong support of S. 1219,
the Senate Campaign Finance Reform Act of 1996. Let me first praise
both the Senator from Arizona and the Senator from Wisconsin for being
able to reconcile what I know are substantial differences and produce a
piece of legislation that both of them support. I believe the exercise
they went through is an exercise all of us need to go through if we are
going to be able to change the law that underlies our campaign system.
It seems to me it is very, very important for us to do so.
First, as to why, I know there are very strong feelings. I caught a
piece of the debate thus far between the Senator from Kentucky and the
Senator from Washington and the Senator from Arizona. I know there are
very strong feelings about campaign finance reform. Very often, it is
true, the facts do not bear up the conclusion people make about the
system being corrupted and being bad and so forth. It is very often
true the perceptions are far, far worse than the reality.
But as we all know, perceptions in politics can become reality in a
big hurry. We all, I suspect, are aware that last summer, on the 11th
of June, the two most powerful political leaders in the country, the
President of the United States and the Speaker of the House, stood in
Claremont, NH, in the runup to the Presidential primary, took a
question from the audience about campaign finance reform, and agreed,
shook hands and agreed that they were going to cooperate in the
appointment of a commission that would make recommendations. We all
know since that time nothing has happened.
Also last summer, I read--and I asked staff, and they dug it out for
me--a poll that was presented to me that I had presented asking the
American people the following question: Who they thought really
controlled the Federal Government in Washington, DC. That was last
summer, summer of 1995. Twenty-five percent said they thought the
Republicans in Congress, since they are in control of both the House
and Senate, the Republicans control the Congress; 6 percent said the
Democrats controlled the Congress; interestingly, 6 percent thought the
President controlled the Federal Government; and 49 percent, up from 38
percent in 1991, said special interests controlled Washington, DC.
Again, I appreciate that much of this is a perception, but it is a
very serious perception for us. People have lost trust and confidence,
and they are asking for us to level the playing field, give
nonincumbents a greater opportunity to clean up our campaign finance
system.
I actually heard very few people come to the floor and say the system
does not need to be changed. The problem is that we always find
ourselves coming up short, unable to finally reach agreement, which is
why, again, I praise the hard work that the Senator from Arizona and
the Senator from Wisconsin have done because they sat down and worked
out their differences. I suspect they still have some things about the
bill they are not wildly enthusiastic about, but they know it is long
past the time that we are going to be excused by the American people
for giving them some excuses.
Mr. President, Nebraska has a connection between campaign finance
reform and the history of campaign finance reform. We are connected
because we had a son of the State, William Jennings Bryan, running for
President in 1896. He was leading his opponent, William McKinley, until
a man by the name of Mark Hanna, the Cleveland industrialist who was
the top adviser to Republican nominee William McKinley and who also
chaired the Republican National Committee, raised and spent money, at
that time, in unprecedented amounts.
He spent $100,000 of his own money, which would be well over a
million dollars today, on preconvention expenses for McKinley.
He organized and funded the distribution of 100 million campaign
documents to what was then a nation of 71 million Americans and 14
million voters.
He established for the first time a line of clear national authority
over the State party committees, which carried out his orders.
More important, he augmented the old party fundraising system. The
old system was to send your political appointees a note saying, ``Two
percent of your salary is the amount. Please remit promptly.''
But Hanna also went to the wealthy industrialists who most feared the
free-silver policy of William Jennings Bryan. In August 1896, he met
with New York's financial barons and assessed them according to their
capital.
J.P. Morgan gave $250,000; Standard Oil $250,000; Chicago's giant
meatpackers gave $400,000.
In the end, Hanna raised almost $3.5 million for McKinley, although
he never did say how much he raised, but it was enough for him to crush
Bryan in the general election, outspending him nearly 20 to 1 and
resulting in McKinley's victory.
Until the 1970's, Mr. President, our campaign finance laws were
mostly futile efforts to stem the flood of money into politics.

Lest I be completely unbalanced and reference only Republicans doing
it, it was a progressive Republican who followed McKinley into the
White House, Theodore Roosevelt, who proposed the public funding of
elections in his 1907 State of the Union Address, but his proposal went
forgotten for 60 years.
Congress passed the Tillman Act of 1907, also backed by Theodore
Roosevelt, which barred corporations and banks from contributing to
campaigns. In 1925, it passed the Federal Corrupt Practices Act. But
these laws did little to stem the tide of money in politics, which had
become, at that time, very much a bipartisan problem.

[[Page S6698]]

In 1932, the chairman of the Democratic National Committee, John
Raskob, the former finance chairman of General Motors, gave about
$500,000 a year of his own money to fund the Democratic Party and gave
nearly $150,000 alone to the campaign of Franklin Roosevelt.
The year 1940 saw the rise of a young Texas Congressman named Lyndon
Johnson. He revitalized what at the time was a very moribund Democratic
Congressional Campaign Committee, with money raised from the oil and
construction barons who dominated the politics of his State.
Mr. President, I laid that down, and much more can be laid in this
debate, to indicate that there is generally a sort of history of
lawlessness about campaign finance reform that should be noted when
this debate is going on.
The system of funding campaigns is dramatically different. The system
itself is much, much cleaner than it was 100 years ago or even 30 years
ago. But, again, the perception still dominates in the land that
special interests control our legislative process, and that seems to me
to be the most important argument for changing our law.
Laws which currently govern our system of campaign finance were
passed in the 1970's.
There was the Revenue Act of 1971, which introduced public funding of
Presidential campaigns, as well as voluntary limits on campaign
spending.
The Federal Election Campaign Act of 1971 set up our system of
disclosing contributors and of providing broadcast time to candidates
at the lowest unit rate.
The scandal of Watergate later on caused Congress to pass the Federal
Election Campaign Act Amendments of 1974. These amendments created the
Federal Election Commission; they established individual and PAC
contribution limits; they established public funding of Presidential
primaries and political conventions; and they limited the amounts that
individuals could spend on their own campaigns, a provision which would
later be ruled unconstitutional as a violation of the first amendment
by the U.S. Supreme Court.
In 1976 and again in 1979, Congress passed additional amendments to
the Federal Election Campaign Act. These amendments addressed the
constitutional problems of the 1971 and 1974 legislation and expanded
the role of the political parties under the law.
But since then, efforts by Congress to pass laws that would reform
the system failed.
Mr. President, I believe when more than 50 percent of the American
people believe that special interests control the Federal Government
and when the two most powerful politicians in America meet in New
Hampshire before the first Presidential primary and promise with a
handshake to do something to change the law, that we would expect to
see some action. The lack of action reinforces the view that Americans
have of their Government.

The American people are frustrated by our delay. They are frustrated
with the political process that appears to respond to those with
economic power and which, all too often, ignores the needs of working
men and women.
They are frustrated with the rising cost of campaigns, with a
political system which closes the door to people of average means who
also want to serve their country in the U.S. Congress.
They are frustrated with a Congress which, in their minds, has been
bought and paid for. I serve in the Senate, Mr. President, and I know
my colleagues to be men and women of honor, but I can hardly blame the
American people for believing that we are not.
They see millions of dollars that go into our campaigns. They read
the newspapers and see pictures of lobbyists huddling outside our
Chamber with cellular phones, and the citizens wonder whose voice is
being heard. They think the men with the cellular phones have first
priority.
The American people are frustrated with our tendency to talk instead
of act. Eliza Doolittle, in the musical ``My Fair Lady,'' sang a verse
which captures how the American people feel about campaign finance
reform. She sang:

Words, words, words. All I hear is words. If you love me,
show me.

Mr. President, it is time for us to show the American people, not
with words but with action. With a single vote today or tomorrow,
Senators can act to allow this issue to move front and center on the
political stage. With this bipartisan bill, we can show the American
people that we mean what we say when we talk about political reform.
S. 1219 amends the Federal Election Campaign Act of 1971 and it also
amends the Communications Act of 1934. It has four simple titles, and I
have chosen to go through these titles and allow those who are
listening to make their own determination as to whether or not this
will improve the system.
Title I of the bill sets up a system of voluntary spending limits for
primary, general and runoff elections which are based upon State
population. It also sets a voluntary limit on the amount of personal
funds which a candidate spends.
For example, let us say you have a woman citizen of this country who
challenges a male incumbent. The bill would provide benefits to this
candidate who would meet a threshold contribution requirement, and it
works within the bill's spending and fundraising limits. It would give
her up to 30 minutes of free air time on television and allows her to
buy television time and send bulk mail at special low rates.

When she runs against someone who will not accept the bill's limits,
whether it is an incumbent or nonincumbent, it boosts her fundraising
spending and maximum individual contribution limits so she can keep up
with her opponents. If her opponent pledges to obey the limits, and
then backs out, he is not only forced to pay back the benefits he
received, but then has to start buying his television time at normal
commercial rates instead of the lowest unit rate that all candidates
enjoy.
The bill requires candidates to raise 60 percent of their funds from
residents of their State, but allows candidates in our smaller States
to meet that requirement by having 60 percent of their individual
contributors be in-State residents. This is a very sensible provision,
Mr. President, which prevents the small number of powerful economic
interests from dominating the Senate campaign politics of a given
State.
Title II of the bill bans contributions from political action
committees and provides that if the courts rule the ban
unconstitutional, that the maximum contribution limit for PAC's will
drop from $5,000 to $1,000 per election. It bans national political
parties from raising and spending soft money. It requires State and
local parties to spend Federal money on activities that would affect
Federal races. It prevents political parties from funding so-called
501(c) organizations.
It allows State parties to raise funds under the control of the
Federal Election Campaign Act for grassroots activities such as get-
out-the-vote and generic ballot efforts. It requires corporations and
unions that spend more than $10,000 for internal communications efforts
to report their activity to the Federal Election Commission within 48
hours.
It restricts the bundling of contributions by counting those
contributions toward the bundler's individual contribution limit. It
requires those who make independent expenditures to report those
expenditures within a matter of hours.
Title III, Mr. President, codifies Federal Election Commission
regulations which keep candidates from spending their campaign funds on
themselves. It requires the FEC to allow a candidate to file their
reports electronically. It allows the FEC to conduct random audits upon
a vote of four of its members.
Further, it toughens the disclaimer requirements for television ads,
something that almost every single Member has observed is very much in
need. It bans Members of Congress from using the franking privilege for
mass mailing during the calendar year in which they are up for
reelection.
Title IV, Mr. President, the bill's final title, provides for
expedited review of constitutional issues by the Supreme Court and
authorizes the Federal Election Commission to implement the bill's
provisions through regulations.
It is not a perfect bill, Mr. President. For example, my view is that
PAC and bundling provisions do too much to limit the participation of
average men and women in America and too little to

[[Page S6699]]

rein in the big corporations which could stay beyond the reach of the
law. But it is unquestionably a start, and a very important start. It
should not be the target of a filibuster. It should not be an occasion
for Senators to weep more crocodile tears and say, we support the
concept of reform, but we just cannot live with this or that particular
proposal. The voters have heard that before, Mr. President. They know
what it means.

It means we want to do nothing. It means we are worried about
protecting ourselves, when we ought to be worrying about protecting our
democracy. The best test of this bill's success is whether it makes an
incumbent Senator nervous. If it does, then it gets the job done.
We cannot afford to tell the voters one more time that we do not want
to do anything. They are quickly losing their trust in us. They do not
trust us to reform our entitlement programs and allow our children to
retire in dignity. They do not trust us to improve the way we teach our
children. And they do not trust us to send our troops overseas, to keep
our Nation strong, and to lead in the world.
Mr. President, last week 70 percent of Russian voters went to the
polls to choose a President. They went because they thought they could
make a difference. Meanwhile, in this country it has been a long time
since 70 percent of our citizens, who fought and won the cold war,
would vote in the 70-percent range.
Mr. President, it is time for us to prove to the American people that
we mean what we say when we talk about reforming our political system.
Let us earn back their trust so we can go to work and build a better
nation.
Mr. President, I again want to say, as I said at the start, I know
there are significant disagreements about what should be in any change
in the 1971 Campaign Finance Act. I respect those differences of
opinion and respect different points of view on this. But, for gosh
sakes, let us allow the voters and the citizens of the United States of
America to hear a full and open debate. Let us rally the 60 votes
necessary to allow this proposal to be considered. I hope sincerely
that we will have enough votes tomorrow so that once and for all we can
put some action behind our words. I yield the floor.

The PRESIDING OFFICER. Who seeks recognition?
Mr. HOLLINGS addressed the Chair.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, I filed an amendment as a sense-of-the-
Senate amendment on last Friday, believing at the time that you could
not amend the Constitution by amending a simple bill, that it would not
be in order. I have since learned differently. So I ask unanimous
consent that that sense-of-the-Senate amendment be modified into the
form of a regular amendment.
The PRESIDING OFFICER (Mr. Brown). Is there objection?
Mr. McCONNELL. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. HOLLINGS. Mr. President, we see really where they all stand. Now
I can give a good sense of history, 23 years ago, we passed the act
that gave rise to the problems we're dealing with today--the 1974 act
was passed. So if cloture is agreed upon tomorrow, we will be around
with that same amendment--a constitutional amendment, because I have
just learned for the first time today--you learn something new every
day--that you can amend a simple bill with a joint resolution to amend
the Constitution.
I have been told otherwise time and again for a good 10 years, ergo,
back in the late 1980's, we were trying to get the joint resolution out
of the Committee on the Judiciary for 2 or 3 years. We finally got it
out. At that particular time we had the distinguished Senator from
Oklahoma leading the charge for his particular campaign finance reform,
Senator David Boren.
We were trying our best to have our amendment considered. I finally
worked out with the then-majority leader, Senator George Mitchell, if I
could get it out of the committee, he would give me an up-or-down vote.
So after a 3-year struggle we did get it out of the committee.
Back in April 1988, we got 52 votes to amend the Constitution. We had
four Republicans. Again, in 1993, in the form of a sense of the Senate
we got 52 votes--a bipartisan effort including 6 Republican colleagues.
At that time, I was told that one could not amend the Constitution by
amending a bill.
I have been told time and time again that what we really needed to do
was to correct the fundamental flaw in Buckley versus Valeo.
Ironically, what happens is that Buckley versus Valeo amends the
Constitution. That is what has occurred. By equating money in politics
with speech, the decision essentially amends free speech, because it
dictates that those with money can talk and those without money can
shut up.
You know, the mother's milk of politics, as it has been said many
times on the floor of the Senate, is money. And television, of course,
has a great deal of control over elections. Anybody that has been
elected--and I am proud to have been elected six times to this
particular body--will agree.
I remember when billboards were a sufficient form of advertising.
Today, any consultant will tell you, do not waste your money on
billboards or on newspaper advertising or whatever else. You get a far
greater return on television advertising. And television advertising is
very, very costly. Therefore those with money, those that can bear the
cost, have a better chance to prevail.
So I am not going to take a long time here because I am hoping we can
get cloture, and then I will offer up my amendment, either as a simple
amendment to the bill itself or a second degree. And we will stay here
as long as we can because it is a simple Senate bill that we would have
cloture upon.
It seems the distinguished Senator from Kentucky will not allow me an
honest mistake, made because I have been instructed over the many years
that one could not submit a constitutional amendment. Well, I harken
the memory of everyone to when we voted last year on the flag burning
legislation. At that time I was asked if I had any amendments. I said,
``Yes, I have two,'' because I had been waiting all year long to bring
up the joint resolution to amend the Constitution for a balanced
budget. Senator Dole's amendment, S. 1 of this particular Congress
provided for a balanced budget using Social Security trust funds,
thereby abolishing the law that protects the fund. I thought we ought
to retain that protection and not decimate Social Security trying to
balance the budget. We never could get that up.
The leadership was very astute. They did not call any joint
resolutions except to call up the flag burning amendment. When that
arose, I said, ``Oh, yes, I have two amendments: one to balance the
budget and the other one that pertains to campaign finance reform.''
So, as everyone saw in the U.S. Senate, my amendments failed.
They talk about a New York minute: if there is a lesser time period
to measure, it is political air. If my amendment passes, we will have
this adopted here in a few months, in November, by all the several
States. The States came to me, back some 10 years ago when I was
working on this and said, ``Please, please, put us in there, too.'' So
the legislation will not dictate that just the Congress of the United
States is hereby empowered to regulate or control expenditures in
Federal elections, but that the States be permitted, also.
So that is my amendment, a very simple one. How it is implemented,
what they do about bundling, what they do about separate committees and
what they do about disclosure, it can be done constitutionally. That is
the fundamental flaw in not only the Buckley versus Valeo decision, but
in the pending amendment by my distinguished colleagues, the Senator
from Arizona and the Senator from Wisconsin. They are trying to face up
to a real problem, but the solution they propose does not control
spending in Federal elections. That is the evil that we confronted back
in the early 1970's.
You go back to the 1968 Presidential race. You had institutionalized
campaign financing. The fundraisers came, for example, to the textile
industry. The textile industry, predominant in my State, is almost like
the United Fund or the Community Chest. They said, ``Your fair share is
$350,000.'' Mr. President, they got 10 textile industries together and
they collected $35,000 apiece from each of them in order to comply.
This got a lot of people in legal trouble.

[[Page S6700]]

I could go on, but that is not the point here. The distinguished
Senator from Illinois, Senator Simon, spoke about buying a
Congressman--he told of a bumper sticker he saw, ``Invest in America.
Buy a Congressman.'' That was the problem 25 years ago. After the 1968
election when President Nixon took office, John Connally, the Secretary
of the Treasury, stated to President Nixon: ``There are a lot of people
that have given you millions and thousands and thousands of dollars,
and they have not even had a chance to shake your hand. Some you
haven't met. I know you want to thank them.''
President Nixon said, ``Fine, I would love it. Give me the chance.''
Connally says, ``Well, come down here in a couple of weeks to my ranch
in Texas, and we will have a barbecue. I will invite them there. We can
have a grand time. You could meet them and thank them.'' The famous
prankster Dick Tuck, a Kennedy confidante, got himself a Brinks' truck,
and he put the truck out there on the main road, by the Connally ranch.
The press took a picture of the truck and blew it up. They said,
``There it is, Washington is up for sale.'' Republicans and Democrats
were hollering. They could not stand it. There was no complaining about
disclosure.
We just went ``ticker tape'' on all the things we wanted. No. 1, cash
was absolutely forbidden, against the law. Contributions were limited.
To an individual, $1,000; a race, $2,000, the primary and general
elections; and PAC's were limited to $5,000.

With regard to PAC's, we said representative groups like the teachers
association or the doctors in the group or whatever, like labor unions,
they ought to be able to band together. So we decided they should be
limited to $5,000. So we set the limit there. We said, now we will have
complete disclosure. You will have to file every dollar in and every
dollar out, not just with the secretary of the Senate, but with the
secretary of state in your own home State, so the people back home can
see it and know.
Then we said we are going to limit spending overall. Based on a
formula: so much per registered voter in each one of the States. My
little State of South Carolina, then, would have been limited--we
calculated it at around $670,000. This was back in the mid-1970's. Now,
double it here from 20 years ago to a million and a half, which is, my
gracious, plenty--not $3.5 million and $4 million that it costs for
that statewide race.
Look at the reports and the amounts and everything else, and the
Senator from Illinois is right. More Senators this minute are out
collecting money than Senators that avail themselves of the opportunity
to participate in this discussion on the floor of the Senate itself.
That is a crime.
According to the FEC reports, during the 6-year period, a Senator
must raise something like $12,000 or $14,000 a week, each week, in
order to run for reelection. Then, if you get one of these high-fliers
coming in that spends $12 million of their own money, then the ox is in
the ditch. You are in real trouble there--people who have achieved
financial success by way of family or otherwise, suddenly decide that
running for the U.S. Senate would be a fun thing to do. Well, that has
to stop.
First of all, we must eliminate the poisonous influence of large sums
of money. Second, we must get rid of the poisonous influence of the
amount time it takes to raise these sums.
The flaw in Buckley versus Valeo, and the flaw in all of these
amendments, is that money is not controlled, which is ultimately what
everybody wants to do.
Everybody wants that done: we who serve and have to collect the
money, those who give it and participate--whether individual PAC's or
otherwise--and it is easily done. If you go back to the last five or
six constitutional amendments, they deal with elections. Do not give me
this acrimony. I have had this before the Judiciary Committee. Oh, they
have so many thousands of amendments, and everybody wants to change
them. I have to agree that this is a bad atmosphere up here because the
contract crowd wants to amend everything in the Constitution.
This is one amendment that has been dutifully considered and voted on
by way of a majority at least twice in the last 10 years. I think we
can get an even larger majority now that Senator Dole ran into Steve
Forbes. He came in like a bolt out of the blue with $35 million and ran
around hollering ``Flat tax, flat tax, flat tax.'' Of course, some
voters thought, ``They are going to lower my taxes so I will vote for
them.'' Come on, Senator Dole was the one calling on the President for
a balanced budget. I want to tell Senator Dole, ``Call your colleagues,
get on Senator McConnell from Kentucky and tell him now is the time to
limit spending.''
The Senator from Kentucky has been frank and straightforward. He says
we spend more money on Kibbles and Bits and cat food and dog food than
we spend on political campaigns, and we ought to spend more. The
Senator from Utah started out the debate. He said: ``If I had to solve
it, I think it ought to be recorded, but collect all the money you want
and spend it all the time, wherever you want.''
That is exactly the opposite of the intent of campaign finance law.
The way we passed that law--Republican and Democrat, overwhelmingly--
was to control spending in Federal elections. Our friend, Senator
Buckley of New York at that time, took issue. He sued the Senate, in
the person of the Secretary Valeo. That is where we got the Buckley
versus Valeo decision. I have the appropriate references here in the
prepared remarks.
Mr. President, all I can say is here we go again with the same sing-
song--a half-hearted attempt to fix the chronic problems surrounding
campaign financing. Problems flowing from the Supreme Court's flawed
decision of Buckley versus Valeo. We all know the score--we're
hamstrung by that decision and the ever increasing cost of a
competitive campaign. With the total cost of congressional campaigns
skyrocketing from $446 million in 1990 to over $724 million in 1994,
the need for limits on campaign expenditures is more urgent than ever.
For nearly a quarter of a century, Congress has tried to tackle runaway
campaign spending with bills aimed at getting around the disjointed
Buckley decision. Again and again, Congress has failed.
Let us resolve not to repeat the mistakes of past campaign finance
reform efforts, which have become bogged down in partisanship as
Democrats and Republicans each tried to gore the other's sacred cows.
During the 103d Congress there was a sign that we could move beyond
this partisan bickering, when the Senate in a bipartisan fashion
expressed its support for a constitutional amendment to limit campaign
expenditures. In May 1993, a non-binding sense-of-the-Senate-resolution
was agreed to which advocated the adoption of a constitutional
amendment empowering Congress and the States to limit campaign
expenditures. Now we must take the next step and adopt such a
constitutional amendment--a simple, straightforward, nonpartisan
solution.
As Prof. Gerald G. Ashdown has written in the New England Law Review,
amending the Constitution to allow Congress to regulate campaign
expenditures is ``the most theoretically attractive of the approaches-
to-reform since, from a broad free speech perspective, the decision in
Buckley is misguided and has worsened the campaign finance
atmosphere.'' Adds Professor Ashdown: ``If Congress could
constitutionally limit the campaign expenditures of individuals,
candidates, and committees, along with contributions, most of the
troubles * * * would be eliminated.''
Right to the point, in its landmark 1976 ruling in Buckley versus
Valeo, the Supreme Court mistakenly equated a candidate's right to
spend unlimited sums of money with his right to free speech. In the
face of spirited dissents, the Court drew a bizarre distinction between
campaign contributions on the grounds that `` * * * the governmental
interest in preventing corruption and the appearance of corruption
outweighs considerations of free speech.''
I have never been able to fathom why that same test--the governmental
interest in preventing corruption and the appearance of corruption--
does not overwhelmingly justify limits on campaign spending. However,
it seems to me that the Court committed a far graver error by striking
down spending limits as a threat to free speech. The fact is, spending
limits in Federal campaigns would act to restore the free

[[Page S6701]]

speech that has been eroded by the Buckley decision.
After all, as a practical reality, what Buckley says is: Yes, if you
have personal wealth, then you have access to television, you have
freedom of speech. But if you do not have personal wealth, then you are
denied access to television. Instead of freedom of speech, you have
only the freedom to shut up.

So let us be done with this phony charge that spending limits are
somehow an attack on freedom of speech. As Justice Byron White points
out, clear as a bell, in his dissent, both contribution limits and
spending limits are neutral as to the content of speech and are not
motivated by fear of the consequences of the political speech in
general.
Mr. President, every Senator realizes that television advertising is
the name of the game in modern American politics. In warfare, if you
control the air, you control the battlefield. In politics, if you
control the airwaves, you control the tenor and focus of a campaign.
Probably 80 percent of campaign communications take place through the
medium of television. And most of that TV airtime comes at a dear
price. In South Carolina, you're talking between $1000 and $2,000 for
30 seconds of primetime advertising. In New York City, it's anywhere
from $30,000 to $40,000 for the same 30 seconds.
The hard fact of life for a candidate is that if you're not on TV,
you're not truly in the race. Wealthy challengers as well as incumbents
flushed with money go directly to the TV studio. Those without personal
wealth are sidetracked to the time-consuming pursuit of cash.
The Buckley decision created a double bind. It upheld restrictions on
campaign contributions, but struck down restrictions on how much
candidates with deep pockets can spend. The Court ignored the practical
reality that if my opponent has only $50,000 to spend in a race and I
have $1 million, then I can effectively deprive him of his speech. By
failing to respond to my advertising, my cash-poor opponent will appear
unwilling to speak up in his own defense.
Justice Thurgood Marshall zeroed in on this disparity in his dissent
to Buckley. By striking down the limit on what a candidate can spend,
Justice Marshall said, ``It would appear to follow that the candidate
with a substantial personal fortune at his disposal is off to a
significant head start.''
Indeed, Justice Marshall went further: He argued that by upholding
the limitations on contributions but striking down limits on overall
spending, the Court put an additional premium on a candidate's personal
wealth.
Justice Marshall was dead right and Ross Perot and Steve Forbes have
proved it. Massive spending of their personal fortunes immediately made
them contenders. Our urgent task is to right the injustice of Buckley
versus Valeo by empowering Congress to place caps on Federal campaign
spending. We are all painfully aware of the uncontrolled escalation of
campaign spending. The average cost of a winning Senate race was $1.2
million in 1980, rising to $2.9 million in 1984, and skyrocketing to
$3.1 million in 1986, $3.7 million in 1988, and up to $4.3 million this
past year. To raise that kind of money, the average Senator must raise
over $13,800 a week, every week of his or her 6-year term. Overall
spending in congressional races increased from $446 million in 1990 to
more than $724 million in 1994--almost a 70 percent increase in 4 short
years.

This obsession with money distracts us from the people's business. At
worst, it corrupts and degrades the entire political process.
Fundraisers used to be arranged so they didn't conflict with the Senate
schedule; nowadays, the Senate schedule is regularly shifted to
accommodate fundraisers.
I have run for statewide office 16 times in South Carolina. You
establish a certain campaign routine, say, shaking hands at a mill
shift in Greer, visiting a big country store outside of Belton, and so
on. Over the years, they look for you and expect you to come around.
But in recent years, those mill visits and dropping by the country
store have become a casualty of the system. There is very little time
for them. We're out chasing dollars.
During my 1986 reelection campaign, I found myself raising money to
get on TV to raise money to get on TV to raise money to get on TV. It's
a vicious cycle.
After the election, I held a series of town meetings across the
State. Friends asked, ``Why are you doing these town meetings: You just
got elected. You've got 6 years.'' To which I answered, ``I'm doing it
because it's my first chance to really get out and meet with the people
who elected me. I didn't get much of a chance during the campaign. I
was too busy chasing bucks.'' I had a similar experience in 1992.
I remember Senator Richard Russell saying: ``They give you a 6-year
term in this U.S. Senate: 2 years to be a statesman, the next 2 years
to be a politician, and the last 2 years to be a demagogue.''
Regrettably, we are no longer afforded even 2 years as statesmen. We
proceed straight to politics and demagoguery right after the election
because of the imperatives of raising money.
My proposed constitutional amendment would change all this.
Unfortunately, Senate procedure prevents me from offering my amendment
to this bill, but, hopefully tomorrow when we see yet another attempt
to reform our campaign spending laws fail, we will realize a
constitutional amendment is the only viable solution. It would empower
Congress to impose reasonable spending limits on Federal campaigns. For
instance, we could impose a limit of, say, $800,000 per Senate
candidate in a small State like South Carolina--a far cry from the
millions spent by my opponent and me in 1992. And bear in mind that
direct expenditures account for only a portion of total spending. For
instance, my 1992 opponent's direct expenditures were supplemented by
hundreds of thousands of dollars in expenditures by independent
organizations and by the State and local Republican Party. When you
total up spending from all sources, my challenger and I spent roughly
the same amount in 1992.
And incidentally, Mr. President, let's be done with the canard that
spending limits would be a boon to incumbents, who supposedly already
have name recognition and standing with the public and therefore begin
with a built-in advantage over challengers. Nonsense. I hardly need to
remind my Senate colleagues of the high rate of mortality in upper
Chamber elections. And as to the alleged invulnerability of incumbents
in the House, I would simply note that well over 50 percent of the
House membership has been replaced since the 1990 elections.

I can tell you from experience that any advantages of incumbency are
more than counterbalanced by the obvious disadvantages of incumbency,
specifically the disadvantage of defending hundreds of controversial
votes in Congress.
I also agree with University of Virginia political scientist Larry
Sabato, who has suggested a doctrine of sufficiency with regard to
campaign spending. Professor Sabato puts it this way: ``While
challengers tend to be underfunded, they can compete effectively if
they are capable and have sufficient money to present themselves and
their messages.''
Moreover, Mr. President, I submit that once we have overall spending
limits, it will matter little whether a candidate gets money from
industry groups, or from PAC's, or from individuals. It is still a
reasonable--``sufficient,'' to use Professor Sabato's term--amount any
way you cut it. Spending will be under control, and we will be able to
account for every dollar going out.
On the issue of PAC's, Mr. President, let me say that I have never
believed that PAC's per se are an evil in the current system. On the
contrary, PAC's are a very healthy instrumentality of politics. PAC's
have brought people into the political process: nurses, educators,
small business people, senior citizens, unionists, you name it. They
permit people of modest means and limited individual influence to band
together with others of mutual interest so their message is heard and
known.
For years we have encouraged these people to get involved, to
participate. Yet now that they are participating, we turn around and
say, ``Oh, no, your influence is corrupting, your money is tainted.''
This is wrong. The evil to be corrected is not the abundance of
participation but the superabundance of money. The culprit is runaway
campaign spending.

[[Page S6702]]

To a distressing degree, elections are determined not in the
political marketplace but in the financial marketplace. Our elections
are supposed to be contests of ideas, but too often they degenerate
into megadollar derbies, paper chases through the board rooms of
corporations, and special interests.
Mr. President, I repeat, campaign spending must be brought under
control. The constitutional amendment I have proposed would permit
Congress to impose fair, responsible, workable limits on Federal
campaign expenditures.
Such a reform would have four important impacts. First, it would end
the mindless pursuits of ever-fatter campaign war chests. Second, it
would free candidates from their current obsession with fundraising and
allow them to focus more on issues and ideas; once elected to office,
we wouldn't have to spend 20 percent of our time raising money to keep
our seats. Third, it would curb the influence of special interests. And
fourth, it would create a more level playing field for our Federal
campaigns--a competitive environment where personal wealth does not
give candidates an insurmountable advantage.

Finally, Mr. President, a word about the advantages of the amend-the-
Constitution approach that I propose. Recent history amply demonstrates
the practicality and viability of this constitutional route. Certainly,
it is not coincidence that all five of the last six recent amendments
to the Constitution have dealt with Federal election issues. In
elections, the process drives and shapes the end result. Election laws
can skew election results, whether you're talking about a poll tax
depriving minorities of their right to vote, or the absence of campaign
spending limits giving an unfair advantage to wealthy candidates. These
are profound issues which go to the heart of our democracy, and it is
entirely appropriate that they be addressed through a constitutional
amendment.
And let's not be distracted by the argument that the amend-the-
Constitution approach will take too long. Take too long? We have been
dithering on this campaign finance issue since the early 1970's, and we
haven't advanced the ball a single yard. It has been a quarter of a
century, and no legislative solution has done the job.
Except for the 27th amendment, the last five constitutional
amendments took an average of 17 months to be adopted. There is no
reason why we cannot pass this joint resolution, submit it to the
States for a vote, and ratify the amendment in time for it to govern
the 1998 election. Indeed, the amend-the-Constitution approach could
prove more expeditious than the alternative legislative approach. Bear
in mind that the various public financing bills that have been proposed
would all be vulnerable to a Presidential veto. In contrast, this joint
resolution, once passed by the Congress, goes directly to the States
for ratification. Once ratified, it becomes the law of the land, and it
is not subject to veto or Supreme Court challenge.
And, by the way, I reject the argument that if we were to pass and
ratify this amendment, Democrats and Republicans would be unable to
hammer out a mutually acceptable formula of campaign expenditure
limits. A Democratic Congress and Republican President did exactly that
in 1974, and we can certainly do it again.
Mr. President, this amendment will address the campaign finance mess
directly, decisively, and with finality. The Supreme Court has chosen
to ignore the overwhelming importance of media advertising in today's
campaigns. In the Buckley decision, it prescribed a bogus if-you-have-
the-money-you-can-talk version of free speech. In its place, I urge the
Congress to move beyond these acrobatic attempts at legislating around
the Buckley decision. As we have all seen, no matter how sincere, these
plans are doomed to fail. The solution rests in fixing the Buckley
decision. Unfortunately, today we are barred procedurally from getting
to take such a vote. It is my hope that before this Congress is out,
the majority leader will provide us with an opportunity to vote on my
amendment--it is the only solution.
Mr. President, this is a significant reference, and it has been
prepared for me with respect to the substituting, or actually amending,
a simple bill by a constitutional amendment. The Parliamentarian says:

The most significant question addressed here is whether the
form for proposing a constitutional amendment is prescribed.
Article V of the Constitution provides that Congress may,
upon a two-thirds vote in each House, propose amendments to
the Constitution, subject to ratification by three-fourths of
the States. In the alternative, Congress may, upon
application of two-thirds of the States, call a convention to
consider proposed amendments. Neither the Constitution nor
the Standing Rules of the Senate specify the form that the
proposal should take. The vast majority of measures proposing
amendments to the Constitution introduced in either House of
the Congress have been in the form of a joint resolution. A
report prepared by the Congressional Research Service, or
reference service of the Library of Congress, in 1985, which
built upon two earlier compilations of this material states
that 9,994 proposals to amend the Constitution had been
introduced since 1789 through the 98th Congress (report
number 8536, page 3). Of these, only the following 6 have
been determined to be in a form other than a joint
resolution: S. 2 (December 4, 1889); S. 3000 (January 5,
1916); S. Con. Res. 4 (January 9, 1924); H.R. 9468 (February
17, 1926); S. 199 (January 4, 1935); S. 1020 (April 20,
1981). This enormous weight of practice has, however, never
resulted in a Senate precedent. To the contrary, in the only
Senate precedent on this point, Vice President Barkley
stated, in response to a related point of order: ``On the
question of whether an amendment to the Constitution must be
submitted in the form of a joint resolution, or in the form
of a bill, the only requirement of the Constitution is that
the question shall be submitted by a two-thirds vote. It does
not require that it be done by joint resolution. It may be
done in the form of a bill (January 25, 1950, Congressional
Record, page 872, 8lst Congress, second session). On May 9,
1962, in response to an inquiry, the chair implied that a
constitutional amendment could be proposed as a substitute
for a House private relief bill. Therefore, no point of order
would lie against a bill which proposed to amend the
Constitution.''

I thank the distinguished Chair and my colleagues for their
indulgence.
Mr. STEVENS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alaska is recognized.
(The remarks of Mr. Stevens pertaining to the introduction of S. 1899
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Mr. STEVENS. Mr. President, I would like to say a few words about
this campaign reform bill which is before us. It is with reluctance
that I come to the floor to make these statements because I, also,
along with Senator Hollings, was a member of the conference committee
that brought forth the Senate and the House bill, and sent to the
President what I considered to be a real reform bill. We did that
coming out of the days of the disclosures of the Watergate era. I
believe we have come through several reform eras, and unfortunately
those who have come in after the reform has taken place do not
recognize that what they see has been reformed, when compared to the
past.
When I first came to the Senate there were campaign chairmen who went
from State to State with suitcases full of cash. There was no
disclosure as to where it came from. We did a lot to reform politics in
the United States with the acts that have already been passed. If those
acts had only been really followed perhaps we would not be here today
arguing over whether this is a reform bill. I come to the Senate
because in recent weeks Alaskans who were worried about the impact of
this bill have contacted my office. They came to me from the Alaska
Broadcasters Association, they came to me as members of various church
related organizations, and they came just as individuals who are
concerned about the limits placed on their political freedom by this
bill.
I agree with the statements earlier made by the Senator from
Washington concerning the freedom of association. I view this bill as
being directly contrary to one of the basic freedoms of our country.
And it is not a bill that is a reform bill at all. It is a bill that
people want to call reform because they want to have some symbol in
this campaign to use against those of us who are candidates, and they
think we will not have the guts to stand up and oppose this bill. They
are wrong.
This bill is not a reform bill. I believe we must clean up the system
even more than we have in the past and make it fair. But we cannot do
that by limiting people's freedom, or by forcing upon the public the
cost of financing campaigns.

[[Page S6703]]

To me this bill places unfair restrictions on advocacy groups and
associations. People in this country ought to be free to associate
together and pool their money as long as there is disclosure of where
it has come from and there is a record of it. The bill restricts
organizations that are the eyes and ears of people who are far distant
from this place, and bans political action committees.
Mr. President, the political action committee itself was a reform. It
required that people who band together disclose who contributes to
their campaign fund, and it requires those to whom the funds are given
disclose the receipt of it as well as the committee disclosing the
contribution of it. This bill would discourage voter guides that are
given to members of groups such as the Christian Coalition or
individual churches, or fishermen's organizations in my State. They are
records to guide their membership as to the actual voting that takes
place here on the floor, and the positions taken by candidates.
I think that ought to be encouraged in a democracy, and not
discouraged. This bill will discourage it.
This bill requires broadcasters--and in my view unconstitutionally--
to provide free air time to participating candidates.
I happen to have in my State a series of very small broadcasters. I
sometimes wonder how they survive. As a matter of fact, one of them, Al
Bramstedt of a network affiliate in Anchorage, flew in and testified at
our Rules Committee and set forth their objections to this bill. Mr.
President, at this point I ask unanimous consent that Mr. Bramstedt's
testimony be printed in the Record.
There being no objection, the testimony was ordered to be printed in
the Record, as follows:

Oral Testimony of Al Bramstedt on Campaign Reform

Thank you, Mr. chairman. My name is Al Bramstedt. I am
general manager of the NBC affiliate in Anchorage, Alaska. I
thank you and Senator Stevens for allowing me to speak to you
this morning on the impact broadcast provisions of campaign
reform proposals would have on small-market television.
During the new few minutes I want to discuss the effects of
the bill's free-time provisions. And you'll hear examples of
how these provisions, with reductions in the lowest unit rate
and revised classification of time, would bring about
financial harm for many smaller stations.
Changing technologies will present us new challenges in the
future, but with calm minds and stout hearts America's
television broadcasters, even most of the small-market
broadcasters, will meet these challenges and remain viable.
Today, and in the years ahead, that viability depends on
stable income.
A.C. Nielsen ranks Anchorage, Alaska number 156 in market
size. Although that's considered small, there are dozens of
other markets even smaller. In our market, with its low
television station profit margins, every dollar makes a
difference.
Political advertising revenue is no exception. In 1994,
Anchorage market television cash revenue totaled over $19
million dollars. Political advertising represented more that
10 percent of that total--close to $2 million dollars.
In any business decision, I believe we must consider the
impact of Isaac Newton's third law of physics. Newton taught
us that for every action there is an equal and opposite
reaction.
The action of the free-time provisions of S. 1219 would be
to disrupt and reduce revenue from political advertising upon
which we, as small-market television broadcasters, are
dependent.
Our stations' regular advertisers in turn depend on
television to deliver the vital fourth-quarter revenue that
sustains them the other nine months of the year.
Local broadcasters also depend heavily on fourth quarter
revenues to meet their overall profitability. S. 1219 and
proposals like it would reduce television's effect as an
advertising medium for commercial advertisers each political
season and would directly impact our ability to operate
profitably.
These free political ads would not really be free. Newton
was right: there will also be a reaction.
To make up revenue lost by displacing regular advertisers,
broadcasters would have to increase already challenging
fourth-quarter rates for their year-round advertisers, or
simply eat those costs themselves.
There is no such thing as ``free'' time. The cost of
providing this time under S. 1219 would be paid by
advertisers and broadcasters.
Mandated free time proposals are unnecessary. Broadcasters
already are providing ever-increasing news and public affairs
coverage of federal candidates' campaigns, without the force
of federal law.
It is unfair that, while more coverage is taking place,
broadcasters are being singled out by this proposed
legislation--unlike our major advertising competitor,
newspapers.
The current lowest-unit-rate law contains remarkable
benefits for political candidates. Forty-five days prior to
the primary and 60 days before the general election, legally
qualified candidates receive the lowest unit rates the
station provides to its most favored advertisers.
Even in small markets, to receive these substantial
discounts--typically 25 percent or more--non-political
advertisers must spend at least $100,000 each year.
Under the current lowest-unit-rate provisions, during the
most important pre-election period candidates pay the lowest
rates possible without a commitment of any kind.
Any greater discount formula, much less any free-time
provisions, would be unfair not only to television
broadcasters, but also to every fourth-quarter advertiser.
In conclusion, I urge you to reject S. 1219. The free-time
provisions contained in this bill would harm television
broadcasters financially and disrupt advertisers
significantly. Further discounts and revising the
classification of time simply would make the fourth quarter
of every election year unmanageable for television
broadcasters. Thank you.

Mr. STEVENS. Mr. President, these broadcasters are the people who
deliver over-the-air free television and free radio to people who live
in rural America. And if there is any place that is rural it is my
State, one-fifth the size of the United States.
To have a bill that says these people must provide the candidates
free time is a burden from which many of those broadcasters cannot
survive. If they do survive, it will be by charging their advertisers,
their customers, to pay higher rates to cover the cost of this free
time mandated by the Congress, if this bill is enacted. I think that
too is unconstitutional.
It also burdens the Postal Service. Mr. President, I now have served
on the Post Office and Civil Service Subcommittee of this Senate longer
than any Senator in history. I have really spent a lot of time trying
to help the Postal Service survive. It is something I believe must
continue. Today, there are many, many Members of Congress would like to
just do away with it altogether. This bill would start the process
because it would require that the Postal Service provide reduced postal
rates to the participating candidates. It is other postal users, their
customers again, that pay those costs, or else there will be a deficit
for the Postal Service.
This bill is simply public financing of political campaigns again. It
is masked. It is in disguise. It is not a reform bill. The broadcasters
will pass along their costs to advertisers who try to support free
over-the-air radio, or television, if they can. It will require the
Postal Service to pass on their costs to the users of the Postal
Service, if they can. In effect this bill may be raising the rates for
everyone else in the country who uses the Postal Service. The Postal
Service is not supported by the taxpayers. It is supported by the
ratepayers.
I believe that reform of the system is possible. But it must be
constitutional, and it must be fair. It cannot place the financial
burden of reform on the public.
I support changing the system in many ways. I have discussed these
before. All contributions and campaign expenditures I think should be
held to the strictest standards of disclosure. I do not believe in soft
money whether it is given to political parties or to candidates, or in
bundling of contributions from many sources. I think sunlight is the
best disinfectant for the political process, but there is no sunlight
under this bill at all.
I support the concept that political action committees should be held
to the same disclosure standards and the same contribution limits as
individuals or as associations of individuals. In my judgment, business
people, fishing groups, and even Alaska whaling captains ought to have
the right to participate in the system as a group. But it is not a
stronger right I think than individual citizens.
Cash contributions I think should be banned in any amount, whether it
is called soft money, or whatever you want to call it. It ought to be
banned. Cash is too difficult to track, too difficult to monitor, and
it is ripe for abuse. I do not want to go back to the days when
campaign chairmen traveled with suitcases full of cash.
They do not do it anymore, Mr. President. There has been reform. And
not too many people remember the reforms.

[[Page S6704]]

Corporate contributions of any sort to candidates or to parties ought
to be banned. We thought we had banned it before under the act that
passed the Congress, and there have been ways found around it. But I do
not think we should allow corporate contributions of any sort to
candidates or parties. All contributions to parties or individuals who
are candidates ought to be after-tax dollars. There should be no burden
on the taxpayers as a result of the political process.
I would support an additional constitutional amendment to get around
the problem of Buckley versus Valeo, the Supreme Court case that held
that the bill we passed was unconstitutional as far as the spending of
the money that belonged to an individual candidate or his family. I
support a constitutional amendment that would limit a candidate's
personal spending to a reasonable amount--a quarter of a million
dollars, shall we say. That ought to be enough for anyone to spend of
their own money to run for political office. Congress ought not to
become a special preserve for the wealthy.
But it also ought not to be so structured that it denies an
individual or a group of individuals to freely associate and freely
conduct themselves in a political process.
Again, I say I was in the chair when one Member kept repeating that
this is the reform bill of this Congress. If this is the reform bill of
this Congress, if this is the best that we can do, we ought to go home
now.
Thank you very much, Mr. President.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, perhaps this would be a good time to
spend just a few minutes on distinguishing what is in this bill and
what is not in the bill.
We have heard a number of concerns from the opponents that apparently
relate to other pieces of legislation. What I would like to do just
briefly is indicate what we do have in the bill, and then the Senator
from Arizona, I think, will more plainly explain the basic structure of
the bill.
The Senator from Alaska just made a few comments about the bill
which, unfortunately, simply do not reflect what the bill does now. A
concern was raised in the past about these voter guides that people
want to be able to send out. The concern was heard. The Senator from
Arizona and I specifically included a provision in this bill which
reads as follows:

The term ``expressed advocacy'' does not include the
publication and distribution of a communication that is
limited to providing information about votes by elected
officials on legislative matters and that does not expressly
advocate the election or defeat of a clearly identified
candidate.

We heard the concern. It has been taken care of. This is another red
herring.
Second, speaker after speaker in the opposition today has said that
there are mandatory spending limits on this bill, that it is a return
to the legislation in the early 1970's. That is just false. We read
Buckley versus Valeo. We understand there is a concern in that
decision, and that is why we have a voluntary structure. You only have
to limit your campaign spending voluntarily. If you do not want to, you
do not have to.
Third, the Senator from Alaska says that small TV stations in places
like Alaska will have a problem with the free television time. We were
aware of that problem from the beginning and specifically have included
a hardship provision where a station can easily demonstrate--a smaller
station, which is not very likely to be the station used for the free
time anyway, can get out from under those provisions. Again, a red
herring.
And finally, the concern about the postal service. Senator McCain and
I have included a sense-of-the-Senate provision suggesting that the
money we save on not having franking done in an election year by people
running for office be used to fund the postal reduction. So this is not
some kind of new public financing or new burden on the post office if
it is done right.
Mr. President, let us talk a little bit about what the bill really
does. The proposal does not advocate taking money completely out of the
process. Consistent with the Supreme Court's ruling in Buckley versus
Valeo, we do not limit any single candidate's ability to spend as much
money on their campaign as they want.
No matter how many times the opposite is said to try to confuse the
issue, all we try to do here is set up a fair fight. That is all, just
a fair fight. We want to ensure that all qualified candidates, not just
those with access to big money, have the ability to adequately
participate in the political process. All this talk about a gag rule or
automatic limitations simply does not relate to our bill. What the
overwhelming majority of Americans believe, Mr. President, and what I
suspect most Members of this body believe is that our current campaign
system which has as its foundation unlimited campaign spending has
become about as dysfunctional as it can possibly get.

So what does our bill actually do? None of the things that have been
said in the Chamber today by the opposition. What it does do is create
a simple, voluntary system.
What are the things that one must volunteer to do in order to get the
benefits of the bill? Three major things. First, you have to agree, in
order to get the incentives that the Senator from Arizona says, if you
want to get the incentives, you have to agree to limit how much you
spend in total based on the size of your State--$1 million in a smaller
State, something like $9 million in California and all the States in
between. You do not have to. But if you want the benefits of the bill,
that is what you need to agree to.
Second, you need to get 60 percent of your campaign contributions
from individuals from your own home State. That means all the PAC money
and all the out-of-State contributions have to be less than 40 percent.
If you do not want to do it, you do not have to. If you want to spend
$20 million in out-of-State money or PAC money, you can do it. But if
you want the goodies, if you want the benefits, if you want the
fairness of this system and not spend all of your time raising money
from out of State or from PAC's, then you have to agree to this 60
percent limitation.
Third, you cannot spend any amount of your own personal money in
order to get the benefits of the bill. In the largest State, you cannot
spend more than $250,000. In my State, you could not spend more than
$150,000. This is irrelevant to me and some of us in the body, but
assuming you have that, that is what you have to do. But again, you can
do whatever you want. Mr. Huffington could still spend $30 or $40 or
$100 million in California. He just would not get the benefits of the
bill. So it is all voluntary.
It is a major distortion to suggest that any of that is mandatory. It
simply is not. We crafted it that way because, of course, we intended
for this bill to be constitutional, and we strongly believe it is.
What does the person get if they abide by these rules? They sure do
not get equality. That is not what the Senator from Arizona and I
believe is the result of this bill. They just get a fighting chance.
One of the things a person gets who obeys and abides by the rule is
half price on their television time. They get half of the lowest
commercial rate--30 days before the primary and 60 days before the
final. That is the biggest expenditure of most campaigns. That is what
they would get.
Second, they get 30 minutes of free television time if they make it
to the final election.
And third, they get the equivalent of two statewide postal mailings
at the third class rate given to nonprofits. That is all they get.
They do not get public financing. They do not get equality with their
opponent, and the opponent can still spend $5, $10, $15, $20 million.
Again, the notion that these provisions are either unconstitutional or
mandatory is simply false.

In addition--and this has not been brought out yet--this bill puts
the toughest restrictions on soft money ever in a piece of legislation
in this body. In other words, we are going to shut down on this
practice of pretending that there are hard money limits of $1,000 or
$5,000 for PAC's and then somehow allowing individuals and political
action committees to come through the back door and end up spending
anything they want. Currently, individuals can only give $1,000 to
candidates per election, but, with

[[Page S6705]]

soft money, individuals can give unlimited contributions to a national
party's non-Federal account. PAC's are limited under the law today to
$5,000 for hard money, but they may make unlimited contributions to a
national party's non-Federal account. Corporations and unions today are
prohibited from making direct contributions to Federal candidates or
national parties, but they may make unlimited contributions to a
national party's non-Federal account. The McCain-Feingold bill shuts
this down.
So there is a voluntary scheme that candidates need to abide by to
get the benefits, but, yes, there is a scheme of cracking down on soft
money that would make the process much more fair and much more
accountable.
Mr. President, I want to emphasize, because of the criticisms of the
bill as being unconstitutional, the voluntary nature of the bill. If a
particular candidate wants to spend more than the system allows or if
the candidate is spending $1 million and wants to drop more money into
the campaign, they can go ahead and do it. All the candidates can
operate as under the present system.
Mr. President, in the time remaining, let me indicate specifically
that the authors of this bill strongly reject the notion that this bill
is not constitutional. Let me read from the opinion of L. Paige
Whitaker, the legislative attorney for the Congressional Research
Service, who was specifically asked the question about the
constitutionality of our voluntary scheme. He said as follows:

In the 1976 landmark case of Buckley v. Valeo, the Supreme
Court held that spending limitations violate the first
amendment because they impose direct substantial restraints
on the quantity of political speech. The Court found that
expenditure limitations failed to serve any substantial
Government interest in stemming the reality of corruption or
the appearance thereof and that they heavily burdened
political expression. As a result of Buckley, spending limits
may only be imposed if they are voluntary.

Mr. Whitaker continues:

It appears that the provision in question would pass
constitutional muster for the same reasons that the public
financing scheme for Presidential elections was found to be
constitutional in Buckley. The Court in Buckley concluded
that Presidential public financing was within the
constitutional powers of Congress to reform the electoral
process and that the public financing provisions did not
violate any first amendment rights by abridging, restricting
or censoring speech, expression and association but, rather,
encouraged public discussion and participation in the
electoral process.

Indeed, as Mr. Whitaker quotes the Court, he says:

The Court succinctly stated, ``Congress may engage in
public financing of election campaigns and may condition
acceptance of public funds on agreement of the candidate to
abide by specific expenditure limitations. Just as a
candidate may voluntarily limit the size of the contributions
he chooses to accept, he may decide to forego private
fundraising and accept public funding.

Finally, applying this principle to this bill, which does not involve
public financing, he says:

Because the subject provision does not require a Senate
candidate to comply with spending limits, the proposal
appears to be voluntary. Although the incentives of public
benefits are provided in the form of reduced and free
broadcast time and reduced postage rates to those candidates
who comply with the spending limits, such incentives do not
appear to jeopardize the voluntary nature of the limitation.
That is, a candidate could legally choose not to comply with
the limits by opting not to accept the public benefits.
Therefore [he concludes] it appears the proposal would be
found to be constitutional under Buckley.

The constitutional analysis that has been given to this closely reads
Buckley versus Valeo and concludes what is inescapable, and that is, if
it is a voluntary scheme, which this is, it will pass constitutional
muster. All the claims that have been made today that this bill that is
before us today is somehow the bill that was passed 20 years ago are
simply false. This is a constitutional provision; we drafted it that
way with that in mind, and this is, again, perhaps, the largest red
herring that is being offered by the other side.
I yield the floor.
Mr. PELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. PELL. Mr. President, as one of the original cosponsors of the
McCain-Feingold bill S. 1219, I rise in support of the bill and urge
that it not be set aside by a cloture vote. It is by no means a perfect
bill, but it does move us several steps closer to a better campaign
finance system.
More than 35 years in the Senate I have joined in sponsoring and
supporting virtually all major campaign reform legislation before the
Senate. In my view, many of these reforms have worked quite well,
notwithstanding the traditional laments about the evils of the system.
Just consider how far we have come in improving the system since the
Watergate era. We have an effective reporting and disclosure system
which works very well; it uses electronic technology and is light years
beyond the previous system. We have a system for public funding of
Presidential elections, which while compromised by recent practice, is
still at core an effective counterforce to flagrant abuse. And we have
the Federal Election Commission which fulfills the indispensable role
of a neutral--or at least bipartisan--referee, notwithstanding the
structural problems inherent in such a role.
To be sure, there are major flaws and problems crying out for
resolution. They include the glaring problem of soft money, the
disproportionate influence of PAC's and the exorbitant cost of media
advertising. The McCain-Feingold bill addresses these problems in a
straightforward way.
Indeed, one of the main reasons I joined as an original cosponsor of
the bill is that it provides an entitlement of free broadcast time for
candidates who voluntarily comply with the spending limits proposed by
the bill.
The concept of free broadcast time for Federal candidates is an idea
that I have embraced for many years. I believe that the provision of
free media time to educate the electorate should be a basic condition
of a grant of a license for commercial use of a segment of the
broadcast spectrum.
I have sponsored legislation providing various schemes for free time
grants for political campaigns for the past 10 years, and I remain
hopeful that the concept will one day become law.
When I first introduced legislation providing for free media time in
1986, the idea was viewed as being quite far out of the mainstream--so
much so that the bill was not taken very seriously. But by 1993, the
concept had gained enough momentum to attract 32 votes in the Senate
when I offered it as an amendment to Senator Boren's Election Reform
Act. So while the amendment failed to carry the day, the idea had
indeed come into its own. And now the McCain-Feingold bill takes it a
step further.
I would point out that my own proposals for free broadcast time
differ from those in the bill in two respects. First, I believe free
broadcast time should be made available for all legitimate candidates,
regardless of whether they agree to spending limits, because all should
be sharing in an equal claim on a public resource, namely the broadcast
spectrum. And my plan would actually distribute the free time through
the political parties, to allow for the problem of overlapping claims
on broadcasters, which might result from direct distribution to
candidates.
Second, I would note that my 1993 amendment to the Boren bill
contained a contingency provision of tax deductibility for broadcasters
of the value of free time made available for political campaigns. Some
such consideration seems necessary to overcome the objections of the
broadcast industry.
Finally, Mr. President, I have a basically different view of
political action committees than is reflected in this bill. In my view,
PAC's play a useful and legitimate role in conveying valid political
interests to the campaign process. I do fully agree that they have come
to wield disproportionate influence and that their techniques have
frequently created the appearance and often the reality of undue and
improper influence.
But the solution, I believe, is not to ban PAC contributions
altogether from the political process. Surely, there must be a middle
ground that would permit PAC's to make their legitimate contribution to
the political process without compromising the beneficiaries.
One approach that I find intriguing is the idea of an intermediary,
or buffer, between the contribution PAC and the

[[Page S6706]]

beneficiary candidate both for purpose of sanitizing the transaction
and enforcing an overall limit of PAC expenditures per candidate.
This would entail the creation of a neutral entity which might be
called the national political action fund, to be the central repository
to which all PAC contributions must be sent, with a pubic listing of
intended beneficiaries. The fund would be administered by a neutral
authority, possibly the Federal Election Commission.
Part and parcel of this concept would be the provision of statutory
limits on the aggregate amount of contributions a candidate could
receive from all PAC's in an election cycle. A model for such a
provision is the standby limitation proposed in S. 1219, which is 20
percent of the applicable spending limit per State.
Under the plan I am outlining, PAC's could designate intended
recipients for payments up to the existing $5,000 limit, and the
neutral administrator of the fund would make the payments accordingly,
up to the statutory aggregate limit for a given candidate. Any
surpluses remaining in the national political action fund at the end of
each cycle could be transferred to the Presidential Election Campaign
fund, or some similar appropriate source.
Mr. President, I offer the outline of this plan for further
development. The process of political campaign reform is an
evolutionary process, and I am pleased to have been part of it so far.
It remains for those who follow to take up the cause and carry it to
new levels of improvement. I urge them to be persistent and patient.
Mr. KOHL. Mr. President, I rise today to join with my colleagues in
supporting S. 1219, the Senate Campaign Finance Reform Act. First, I
wish to commend my colleague, Senator Russ Feingold, for his tireless
work in bringing this issue to the floor. Senator Feingold has done a
tremendous job in keeping this issue before the Senate and ensuring
that we have a full debate on this bill. I also wish to commend Senator
John McCain, another stalwart advocate of campaign finance reform.
Without his bipartisan leadership, we would not be debating this bill
today.
Mr. President, we all know our campaign finance system is broken. We
all know that the American public is losing trust in our government
institutions and electoral system more and more each year. It seems
that all members of Congress, Democrats and Republicans, agree that
reform is absolutely necessary. Unfortunately, that is where the
agreement ends. For a variety of reasons, it seems impossible for
Congress to pass and for the President to sign meaningful campaign
finance reform. This issue is consistently mired in partisan politics,
tinged with the self interest of some individuals and groups who have a
vested interest in maintaining the status quo.
That is why today's proposal is so unique. The Senate Campaign
Finance Reform Act is the first, real bipartisan reform plan to reach
the Senate floor in decades. In the House of Representatives, there is
a companion measure which also has garnered bipartisan support. These
two bills have widespread grassroots backing through the United States,
from groups as diverse as United We Stand to the Gray Panthers to the
Children's Defense Fund.
This legislation strikes at the heart at much of what is wrong with
our campaign finance system: it eliminates PAC contributions; caps the
amounts that can be spent in campaigns; curtails the practice of
bundling contributions; and closes the loopholes allowing so-called
soft money contributions. The legislation establishes many of these
limits through a voluntary system, thereby conforming with Supreme
Court rulings governing campaign financing.
Like many Senators, if I had drafted my own bill, I would have
omitted some provisions of this legislation and included others. But
any meaningful bipartisan reform must be a compromise between competing
proposals. And campaign finance reform must be done in a bipartisan
fashion--legislation crafted by one party and rammed through the
Congress will not and should not get the support of the American
people.
Mr. President, I recognize there are deep divisions among Members of
Congress over the how to reform our campaign finance system. These
divisions have led to stalemate after stalemate over 20 years. Without
serious reform, the American public will continue to mistrust not only
the way we elect candidates, but the very fundamental precipes of our
government. This must not go on.
S. 1219 is the best option currently moving through the Congress to
begin renewing America's faith in our elections and curtail the
influence of special interest contributions. I am pleased to be a
cosponsor of this bill, and urge my colleagues to vote in favor of
cloture.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I understand we have a unanimous-consent
agreement concerning tomorrow's activities on this particular measure,
as well as the rest of today. In the meantime, I would like to make
some additional remarks.
I am pleased today we have begun debate on the issue of campaign
finance reform. It is a very important issue, one that affects every
Member individually, perhaps more than any other issue that will come
before this body. There are strong views on this subject. I appreciate
the sincerity of those views, but I think we must recognize the public
is rightfully demanding reform, and we have an obligation to act on
that demand.
Today, as we begin debate on this legislation, the bipartisan Senate
Campaign Reform Act of 1995, introduced by myself, Senators Feingold,
Thompson, Wellstone, Kassebaum, Simpson, Graham of Florida, and others,
we are taking a step in the right direction.
Tomorrow we will be faced with the next step. Tomorrow the Senate
will vote on cloture on this measure. Make no mistake, that vote is a
vote for or against campaign finance reform. A vote for cloture is a
vote to move forward, a vote to reform the system. A no vote on cloture
is a vote against reform, a vote to preserve the status quo.
This Congress has taken positive steps in the area of institutional
reform. The Senate has passed both lobbying reform and gift ban reform
legislation. The Senate deserves great praise for this action. The
public is justifiably now demanding we take action on the most
important sweep of reforms, campaign finance reform. Failure to do so
will result in greater public disdain for the Congress.
I hope my colleagues recognize that the status quo has led to dismal
approval ratings of the Congress. According to a recent poll conducted
by CBS News and the New York Times, only 19 percent of the American
people approve of the job that Congress is doing, while a staggering 71
percent disapprove.
We must do something to restore the public's confidence in the
Congress as an institution. Our bill is not perfect, but we should not
let ``perfect be the enemy of the good.'' After cloture is invoked, my
colleagues will have the opportunity to offer amendments and attempt to
improve the bill. I hope we can move forward.
Mr. President, this bill is about restoring the public's faith in the
Congress and the electoral system. It is about elections being won and
lost on ideology, not fundraising. It is about leveling the playing
field between challengers and incumbents, and it is a bipartisan effort
to bring about a dramatic change to the status quo.
Again, I want to note, this bill is about placing ideas over dollars.
Last year, the Republicans took control of the House and the Senate,
not due to fundraising but due to ideas that the American people
understood and related to. Campaigns are not run for free. This bill
recognizes that fact. It does not end campaign spending, but it limits
it in a manner that forces candidates to rely more on their message
than on their fundraising prowess.
Mr. President, poll after poll demonstrates that the public has lost
faith in the Congress. One of the reasons this has occurred is that the
public believes, rightly or wrongly, that special interests control the
political and electoral system.
In order to limit the ability of special interests to control the
process, we must enact campaign finance reform. A recent USA-CNN-Gallup
poll revealed that 83 percent of the American people want to see
campaign finance reform passed.

[[Page S6707]]

According to the same poll, the only two issues that the public felt
more important were balancing the Federal budget and reforming welfare.
Other polls show how badly campaign finance reform is needed.
I made reference earlier to a poll conducted by Mr. McInturff of
Public Opinion Strategies, which asks three questions: ``Which of the
following do you think really controls the Federal Government in
Washington?''
Registered voters responded: the lobbyists and special interests, 49
percent; Republicans in Congress, 25 percent; have not thought much
about it, 14 percent; the President, 6 percent; the Democrats in
Congress, 6 percent.

When asked ``those who make large campaign contributions get special
favors from politicians,'' respondents said: this is one of the things
that worries you most, 34 percent; worries you a great deal, 34
percent; worries you some, 20 percent; worries you not too much, 5
percent; and worries you not at all, 3 percent.
Finally, when asked ``we need campaign finance reform to make
politicians accountable to average voters rather than special
interests,'' the voters stated: this was very convincing, 59 percent;
somewhat convincing, 31 percent; not very convincing, 5 percent; not at
all convincing, 4 percent; and don't know, 2 percent.
Mr. President, I think that pretty well describes the view of the
American people on this issue. I would like to outline, again, because
of a lot of the statements that have been made already on the floor on
this issue, again, what the bill does, because there has been either a
misunderstanding or misconstruing of what this legislation does. It
contains voluntary spending limits and benefits. Spending limits would
be based on each State's voting-age population, ranging from a high of
over $8 million in a large State like California to a low of $1.5
million in a smaller State like Wyoming.
Candidates who voluntarily comply with spending limits would receive
free broadcast time. Candidates would be entitled to 30 minutes of free
broadcast time, broadcast discounts. Broadcasters would be required to
sell advertising to a complying candidate at 50 percent of the lowest
unit rate, reduced postage rate. A candidate would be able to send up
to two pieces of mail to each voting-age resident at the lowest third-
class nonprofit bulk rate.
As my colleague from Wisconsin pointed out earlier, by eliminating
the franked mail, the free mail that Senators make use of during this
time period, that would be the way that we would pay for the reduced
postage rates.
I also point out this free broadcast time of up to 30 minutes in
every 6-year cycle in a State I do not believe would be a debilitating
experience for most broadcasters. However, if a small station can prove
that that would have harmful--in fact, damaging--financial effects on
them, then there is a way to get dispensation from this requirement.
There is a new variable contribution limit. If a candidate's opponent
does not agree to the spending limits or exceeds the limits, the
complying candidate's individual contribution limit is raised from
$1,000 to $2,000 and the complying candidate's spending ceiling is
raised by 20 percent.
The bill limits the use of personal funds. Complying candidates
cannot spend more than $250,000 from their personal funds. Candidates
who spend more than that amount are considered in violation of this act
and thereby qualify for none of this act's benefits.
The legislation requires candidates to raise 60 percent of campaign
funds from individuals residing in the candidate's home State. If a
candidate is running from a small State, a candidate may still qualify
for the benefits contained in this bill if 60 percent of the
individuals contributing to the candidate's campaign committee legally
reside in the candidate's State, as compared to the larger States where
60 percent of the dollars raised must come from within the candidate's
State. All such individuals must be reported to the FEC.

There was a legitimate and, I think, sincere concern on the part of
Members from small States, and I think this modification that we have
made will be very helpful in that direction.
The legislation bans political action committee contributions. While
the bill bans PAC's, in case a PAC ban is ruled unconstitutional by the
Supreme Court, backup limits on PAC contributions are also included.
In such an instance, PAC contribution limits will be lowered from
$5,000 to the individual contribution limit.
Additionally, candidates could receive no more than 20 percent of
their contributions from political action committees.
Mr. President, I have heard the arguments today, and will hear them
again tomorrow, about how political action committees are simply
collections of individuals who want to see good Government. That is not
the problem. I believe that individuals can contribute significantly,
but the problem lies not in the political action committees being
formed, the problem is that the political action committees cause a
dramatic unlevel playing field.
I do not know how a challenger really thinks that they can compete
when in 1995--and the numbers will be similar for 1996, Mr. President--
$59.2 million went to incumbents and $3.9 million went to challengers.
That is what is wrong with the political action committee, Mr.
President. It is where the money is going. You know, I said half
facetiously earlier in the debate, if challengers were voting on this
bill, it would go through in a New York minute. I understand how many
incumbents have come to rely on political action committee funding. But
what we have to do here is try to give challengers an opportunity.
This frustration with challengers not having an equal opportunity in
the political playing field has been manifested in the term limits
movement. Why is it that we have seen in recent years this tremendous
increase in support for term limits? It is because incumbents stay too
long, in the view of the voters.
I suggest to you a better solution than term limits--although I have
supported term limits because that is the view of the majority of the
people in my State--but if you really want to keep the good and great
people, many of whom have graced this body and the other one, then you
should make sure that there is an equal opportunity for all in the
political arena, and thereby you keep the best people and you get rid
of the worst.
There were a lot of comments made in the last election that there was
this huge turnover in Congress, especially in the other body there was
this huge turnover. There were some very spectacular defeats of some
long-term incumbents.
Mr. President, I also remind you that 91 percent of the incumbents
overall were reelected in the last election in this and the other body
in the numbers of incumbents who sought reelection.
Mr. President, this is obviously a very, very emotional issue, this
issue of political action committees. It is an emotional issue. There
is a question about its constitutionality. That is why, if a complete
ban is declared unconstitutional, then the limits on spending will be
reduced to that of an individual contribution. Yet at the same time,
Mr. President, this situation, in the view of the majority of the
American people, I think very correctly, is that political action
committees distort the political process. Looking at those numbers, I
do not know how you reach any other conclusion except that they distort
the political process rather dramatically.
Mr. President, the bill also bans all franked mass mailings in the
calendar year of a campaign.
It increases disclosure and accountability for those who engage in
political advertising. In order to discourage negative advertising and
encourage accountability, any political ad must contain a disclosure
where the individual running the ad states, ``(the name of the
individual) is responsible for the contents of this ad.''
For example, if I was running against the Senator from Colorado, who
is in the chair, for the U.S. Senate and I had something negative to
say about him, then at the bottom of the television ad it would say--if
my committee paid for it, if contributions to my campaign paid for it,
down at the bottom of the television commercial it would say, ``John
McCain is responsible for this message.''
Mr. President, it would not say, ``Paid for by Joe Smith, treasurer,

[[Page S6708]]

McCain for Senate.'' It would not say a lot of the other things that
you see which are a little confusing to voters. It would say, ``John
McCain is responsible for the contents of this ad,'' so that there
would be no doubt as to who was responsible for the message. I think it
would do two things. I think it would dramatically contribute to truth
in advertising, and I think it would also be discouraging to those who
want to engage in negative advertising.

It limits bundling. The legislation also requires full disclosure of
all soft money contributions. In other words, soft money is made hard
so that it can be tracked.
The Scranton Times noted ``the soft money racket is a national
scandal that perpetuates special interest dominance of the
congressional debates on innumerable issues. Both parties troll the
soft money waters for contributions.''
Finally, the bill bans the personal use of campaign funds. The bill
codifies a recent FEC ruling that prohibits candidates from using
campaign funds for personal purposes, such as mortgage maintenance or
vacation trips.
Mr. President, I have been on the floor on this issue before. I have
always been amazed at the creativity of some Members of Congress as to
how they have been able to spend campaign funds. Clearly, it is an
abuse that needs to be brought to a stop.
This bill will affect both parties equally. It does what other bills
in the past did not. It does not benefit just one party. That is also
why it has bipartisan support.
Is this a perfect bill? No. I do not know if it is even possible to
write a perfect bill on this subject. But it is a good bill, and as the
Washington Post said, ``it would represent a large step forward.''
That is why this bill has so much support. Groups ranging from United
We Stand to Common Cause to Public Citizen, to the AARP support this
bill.
Two hundred sixty-one editorials from 161 newspapers from around the
country have opined in favor of campaign finance reform. Mr. President,
I ask unanimous consent that a list of the 261 newspapers be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Below are 261 editorials from 161 newspapers and
publications, urging support for campaign finance reform.
These editorials have been published since January 1, 1995:
Akron Beacon Journal, Akron, Ohio.
Alameda Times-Star, Alameda, California.
Times Union, Albany, New York.
Alexandria Daily Town Talk, Alexandria, Louisiana.
Altoona Mirror, Altoona, Pennsylvania.
Amarillo Daily News, Amarillo, Texas.
Anchorage Daily News, Anchorage, Alaska.
Asheville Citizen-Times, Asheville, North Carolina.
The Athens Messenger, Athens, Ohio.
The Daily Post-Athenian, Athens, Tennessee.
The Atlanta Constitution, Atlanta, Georgia (5).
The Atlanta Journal, Atlanta, Georgia (3).
Kennebec Journal, Augusta, Maine (3)
Bangor Daily News, Bangor, Maine (3).
The Times Argus, Barre, Vermont.
The Birmingham News, Birmingham, Alabama (4).
The Boston Globe, Boston, Massachusetts (4).
Boston Herald, Boston, Massachusetts.
The Brainerd Daily Dispatch, Brainerd, Minnesota.
Brattleboro Reformer, Brattleboro, Vermont (3).
Connecticut Post, Bridgeport, Connecticut (2).
The Courier-News, Bridgewater, New Jersey,
Brownwood Bulletin, Brownwood, Texas.
The Times Record, Brunswick, Maine (2).
The Buffalo News, Buffalo, New York.
Times-News, Burlington, North Carolina.
The Burlington Free Press, Burlington, Vermont.
Cadillac News, Cadillac, Michigan.
The Repository, Canton, Ohio (4).
Public Opinion, Chambersburg, Pennsylvania.
Chapel Hill Herald, Chapel Hill, North Carolina.
The Charleston Gazette, Charleston, West Virginia.
Chattanooga Free Press, Chattanooga, Tennessee.
Chicago Sun-Times, Chicago, Illinois.
Chicago Life, Chicago, Illinois.
The Leaf-Chronicle, Clarksville, Tennessee.
The Plain Dealer, Cleveland, Ohio.
Daily Editor, Cobleskill, New York.
Billerica Minute-Man, Concord, Massachusetts.
Concord Monitor, Concord, New Hampshire.
Corpus Christi Caller-Times, Corpus Christi, Texas.
The News-Times, Danbury, Connecticut.
Danvers Herald, Danvers, Massachusetts.
Danville Register & Bee, Danville, Virginia.
The Des Moines Register, Des Moines, Iowa (2).
Detroit Free Press, Detroit, Michigan.
The Dothan Progress, Dothan, Alabama.
Durango Herald, Durango, Colorado.
The Herald-Sun, Durham, North Carolina.
The Express-Times, Easton, Pennsylvania.
Imperial Valley Press, El Centro, California.
Times-Herald, Forrest City, Arkansas.
Sun-Sentinel, Ft. Lauderdale, Florida (2).
The Middlesex News, Framingham, Massachusetts.
The Gainesville Sun, Gainesville, Florida (11).
Georgetown Times, Georgetown, South Carolina.
Great Falls Tribune, Great Falls, Montana (2).
News & Record, Greensboro, North Carolina.
The Record, Hackensack, New Jersey.
The Times, Hammond, Indiana.
The Hartford Courant, Hartford, Connecticut (4).
The Daily Review, Hayward, California.
Standard-Speaker, Hazleton, Pennsylvania.
The Coastal Courier, Hinesville, Georgia.
Hobbs Daily News-Sun, Hobbs, New Mexico.
Houston Chronicle, Houston, Texas.
Independence Daily Reporter, Independence, Kansas.
Jacksonville Journal-Courier, Jacksonville, Illinois.
Johnson City Press, Johnson City, Tennessee.
The Joplin Globe, Joplin, Missouri.
The Kansas City Star, Kansas City, Missouri (3).
The Keene Sentinel, Keene, New Hampshire.
The Knoxville News-Sentinel, Knoxville, Tennessee.
La Crosse Tribune, La Crosse, Wisconsin.
The Ledger, Lakeland, Florida (3).
Las Cruces Sun-News, Las Cruces, New Mexico.
Bucks County Courier Times, Levittown-Bristol,
Pennsylvania.
Lodi News-Sentinel, Lodi, California.
Newsday, Long Island, New York (3).
The Daily News, Longview, Washington (2).
Los Angeles Times, Los Angeles, California (2).
Lubbock Avalanche-Journal, Lubbock, Texas.
Wisconsin State Journal, Madison, Wisconsin.
Journal Inquirer, Manchester, Connecticut.
Herald Times Reporter, Manitowoc, Wisconsin.
The Times Leader, Martins Ferry, Ohio.
The Middletown Press, Middletown, Connecticut.
Times Herald-Record, Middletown, New York.
The Milwaukee Journal Sentinel, Milwaukee, Wisconsin (2).
Star Tribune, Minneapolis, Minnesota.
The Mobile Beacon-Alabama Citizen, Mobile, Alabama.
The Montgomery Advertiser, Montgomery, Alabama.
The Muskegon Chronicle, Muskegon, Michigan.
The Tennessean, Nashville, Tennessee (6).
New Braunfels Herald-Zeitung, New Braunfels, Texas.
The New York Times, New York, New York (6).
The Queens Jewish Week, New York, New York.
The Times Herald, Norristown, Pennsylvania.
The Oakland Tribune, Oakland, California.
Ocala Star-Banner, Ocala, Florida.
The Olympian, Olympia, Washington.
Messenger-Inquirer, Owensboro, Kentucky.
The Paris Post-Intelligencer, Paris, Tennessee.
The Parkersburg Sentinel, Parkersburg, West Virginia.
Star-News, Pasadena, California.
East Oregonian, Pendleton, Oregon.
The Philadelphia Inquirer, Philadelphia, Pennsylvania (8).
Pittsburgh Post-Gazette, Pittsburgh, Pennsylvania.
Port Arthur News, Port Arthur, Texas.
Portland Press Herald, Portland, Maine.
The Oregonian, Portland, Oregon (2).
The Daily Times, Primos, Pennsylania.
The Providence Sunday Journal, Providence, Rhode Island.
The News & Observer, Raleigh, North Carolina.
Record-Courier, Ravenna, Ohio.
Roanoke Times & World News, Roanoke, Virginia (5).
Rockford Register Star, Rockford, Illinois.
Rutland Herald, Rutland, Vermont (2).
The St. Augustine Record, St. Augustine, Florida.
St. Louis Post-Dispatch, St. Louis, Missouri (3).
St. Petersburg Times, St. Petersburg, Florida.
Statesman-Journal, Salem, Oregon.
Standard-Times, San Angelo, Texas.
San Antonio Express-News, San Antonio, Texas.
Examiner, San Francisco, California.
San Francisco Chronicle, San Francisco, California.

[[Page S6709]]

Telegram-Tribune, San Luis Obispo, California (2).
Santa Cruz County Sentinel, Santa Cruz, California (2).
Sarasota Herald-Tribune, Sarasota, Florida (2).
Savannah News-Press, Savannah, Georgia.
The Scranton Times, Scranton, Pennsylvania.
The Tribune, Scranton, Pennsylvania (2).
The Seattle Times, Seattle, Washington (2).
The Sheboygan Press, Sheboygan, Wisconsin.
Simi Valley Star & Enterprise, Simi Valley, California.
South Bend Tribune, South Bend, Indiana.
Statesboro Herald, Statesboro, Georgia (3).
Stevens Point Journal, Stevens Point, Wisconsin.
Pocono Record, Stroudsburg, Pennsylvania (2).
Syracuse Herald-Journal, Syracuse, New York.
The News Tribune, Tacoma, Washington.
Temple Daily Telegram, Temple, Texas (2).
Thousand Oaks Star & News Chronicle, Thousand Oaks,
California.
The Blade, Toledo, Ohio.
The Times, Trenton, New Jersey.
Tyler Morning Telegraph, Tyler, Texas.
The Columbian, Vancouver, Washington.
Vero Beach Press-Journal, Vero Beach, Florida.
Vicksburg Evening Post, Vicksburg, Mississippi (2).
Waco Tribune-Herald, Waco, Texas (2).
The Washington Post, Washington, D.C. (10).
USA Today, Washington, D.C.
Watertown Daily Times, Watertown, Wisconsin (2).
Central Maine Morning Sentinel, Waterville, Maine (3).
San Gabriel Valley Tribune, West Covina, California.
The Palm Beach Post, West Palm Beach, Florida (4).
The Whittier Daily News, Whittier, California.
Morning Star, Wilmington, North Carolina.
The Potomac News, Woodbridge, Virginia.
Yakima Herald-Republic, Yakima, Washington.
Consumer Reports, Yonkers, New York.

Mr. McCAIN. Mr. President, I would like to just note some of the many
papers that have editorialized on this subject. I also want to point
out that a couple of the editorials have made note of the fact that
opposition to this legislation has made interesting bedfellows.
Mr. President, I do not know of a piece of legislation that is
opposed by the American Trial Lawyers Association, the major business
organizations in America, and the Christian Coalition. Let me quote
from the Atlanta Journal editorial of this year:

Time was when lawyers in this country worked at making
democracy work. Some still do. So it's discouraging to learn
that among those creating a coalition against campaign
finance reform is the American Trial Lawyers Association.
Actually, it is discouraging that the nation's top business
lobbying organization, which includes physicians as well as
realtors and the AFL-CIO, which represents a whole lot of
average folks, are also not giving up the money game. Our
Washington reporter Andrew Mollison uncovered a plan for the
probusiness National Association of Business Political Action
Committees to form a coalition with the AFL-CIO and the trial
lawyers to block a bill that the Senate will be considering
next week cosponsored by Republican John McCain and Democrat
Russell Feingold. The bill marks the first time ever the
Republicans and Democrats have agreed on such reform and
includes some honest changes.

Mr. President, as I say, I have never known of a piece of legislation
that has been opposed by this conglomerate of individuals who have
different interests. I can assume only that they feel threatened by
this reform in order for them to join together in what must be and some
would view as an unholy alliance.
Mr. President, the editorial writers from around the country of 261
newspapers support this bill because, first, it is the right thing to
do. It recognizes the system needs fixing, and they also recognize that
if any bill is to pass, it must affect both parties equally and fairly.
This bill does that, and for that reason it has bipartisan support. My
friend from Kentucky will contend that it is not bipartisan on that
charge. I must disagree. This is a bipartisan, balanced bill. It favors
neither party.
As the Philadelphia Inquirer stated:

To get the big money and its corrupting influence out of
campaigns for Congress, hundreds of incumbents must abandon
the system that coddles and protects them. [S. 1219] isn't
just another high-minded reform headed nowhere. It's a hard-
headed, achievable plan to cleanse a system that delivers
legislative influence to the bidders while stacking the deck
against challengers. Citizens should tell their lawmakers to
get with it.

Second, in a dramatic change from past campaign finance bills, it
contains no public financing. This is not a reincarnation of past
partisan bills. Those bills may have contained spending limits, but the
comparison ends there.
Third, the bill is constitutional. The Senator from Kentucky and
others do not agree with me on this point. But many legal experts from
around the country do.
Mr. President, I will submit for the Record several letters making a
compelling argument for the constitutionality of S. 1219. These letters
are from the American Law Division of the Congressional Research
Service; Prof. Frederick Schauer, professor of the first amendment,
Harvard University Law School; Prof. Daniel Lowenstein, professor of
law, University of California, Los Angeles; Prof. Cass Sunstein,
distinguished service professor of jurisprudence, University of Chicago
Law School; Prof. Marlene Arnold Nicholson, professor of law, DePaul
University; and Prof. Jamin Raskin, associate dean, the American
University College of Law.
Mr. President, I ask unanimous consent that those letters be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Congressional Research Service,

The Library of Congress,

This memorandum is furnished in response to your request
for a constitutional analysis of three campaign finance
reform proposals:

I. Constitutionality of a voluntary spending limit system linked with
public benefits in the form of free and discounted television time and
discounted postage rates

II. Constitutionality of requiring candidates who are voluntarily
complying with spending limits to raise at least 60% of their
individual contributions from individuals within their home state

[[Page S6710]]

Here, in the subject proposal, as limitations on out-of-
state contributions are linked to public benefits as part of
the eligibility requirement, they would seem to be
constitutional for the same reasons that similar eligibility
requirements of the receipt of public funds were held to be
constitutional in Buckley v. Valeo.\5\ In exchange for public
benefits, participating Senate candidates would voluntarily
choose to limit the sources of their contributions. In
addition, an out-of-state contribution limit would not seen
to violate the First Amendment rights of out-of-state
contributors as they would have other outlets, such as
through independent expenditures, to engage in political
speech in support of such candidates who voluntarily restrict
receipt of out-of-state contributions.

Generally, the term political action committee (PAC) is
used to refer to two different types of committees: connected
and nonconnected. A connected PAC, also known as a separate
segregated fund, is established and administered by an
organization such as corporation or labor union.\6\ A
nonconnected PAC, on the other hand, is one which is
unaffiliated with any federal office candidate, party
committee, labor organization, or corporation, although it
can be established and administered by persons who are labor
union members or corporate employees. Typically, nonconnected
PACs may be established by individuals, persons, groups,
including even labor union members, corporate employees,
officers, and stockholders, their families, and by persons
who collectively work to promote a certain ideology;
provided, however, that they keep their political funds
separate and apart from any corporate or labor union funds
and accounts. They are required to register with the Federal
Election Commission after receiving or expending in excess of
$1,000 within a calendar year, they are subject to
contribution limitations, and, unlike connected PACs, they
are limited to using only those funds they solicit to cover
establishment and administration costs. \7\
A complete ban on contributions and expenditures by
connected and nonconnected PACs would appear to be
unconstitutional in violation of the First Amendment.
Although the courts have not had occasion to address
specifically this issue, in Buckley v. Valeo, the Supreme
Court made it clear that the right to associate is a ``basic
constitutional freedom'' \8\ and that any action which may
have the effect of curtailing that freedom to associate would
be subject to the strictest judicial scrutiny.\9\ The Court
further asserted that while the right of political
association is not absolute,\10\ it can only be limited by
substantial governmental interests such as the prevention of
corruption or the appearance thereof. \11\
Employing this analysis, the Court in Buckley determined
that any limitations on expenditures of money in federal
elections were generally unconstitutional because they
substantially and directly restrict the ability of
candidates, individuals, and associations to engage in
political speech, expression, and association. \12\ ``A
restriction on the amount of money a person or group can
spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting
the number of issues discussed, the depth of their
exploration, and the size of the audience reached,'' the
Court noted. \13\ Therefore, in view of Buckley, it appears
that completely banning expenditures by nonconnected PACs
would be found to be unconstitutional.
In Buckley the Court found that limitations on
contributions can pass constitutional muster only if they are
reasonable and only marginally infringe on First Amendment
rights in order to stem actual or apparent corruption
resulting from quid pro quo relationships between
contributors and candidates. \14\ The Court noted that a
reasonable contribution limitation does ``not undermine to
any material degree the potential for robust and effective
discussion of candidates and campaign issues by individual
citizens, associations, the institutional press, candidates,
and political parties.'' \15\ Hence, Buckley seems to
indicate that a complete ban on contributions by nonconnected
PACs would be unconstitutional. Such an outright prohibition
would arguably impose direct and substantial restraints on
the quantity of political speech and political communication
between nonconnected PACs and federal candidates.
In sum, it appears that prohibiting all expenditures by
PACs would not pass strict judicial scrutiny as it would
significantly restrict most PACs from effectively amplifying
the voices of their adherents or members. \16\ Moreover, an
outright ban on contributions, although they are less
protected by the First Amendment, would probably be found to
substantially infringe on the First Amendment rights of the
members of the PACs and therefore be found to be
unconstitutional as well.
L. Paige Whitaker,
Legislative Attorney.

footnotes

Harvard University,

Cambridge, MA, March 17, 1996.
Re S. 1219--Senate Campaign Finance Reform Act of 1995.
Hon. Russell D. Feingold,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Feingold: You have asked me to provide to the
Senate my views about the constitutionality of the proposed
S. 1219, the Senate Campaign Finance Reform Act of 1995. I am
pleased to respond to your request, and I hope that my
analysis is useful to you and your colleagues.
At the outset, I should note that my political affiliation
is independent, and I have not registered as a member of a
political party in over twenty years. Moreover, I have no
political, financial, or fiduciary connections with anyone
who might be helped or hurt were this legislation to be
enacted. Indeed, consistent with my longstanding practice,
and consistent with my views about academic independence, I
do not represent clients, directly or indirectly, and I do
not enter into consulting relationships. Finally, I should
note not only that I have had no prior dealings with you or
your office, but also that when Mr. Kutler called me to ask
if I might undertake this analysis, he did not inquire about
my views, tentative or otherwise, on the advisability or
constitutionality of this or related legislation.
For constitutional purposes, the central features of S.
1219 are Section 101, which provides various incentives to
Senate candidates who limit their total campaign
expenditures, and Section 201, which prohibits political
action committees from contributing to candidates for federal
office. I will consider them in turn.
Section 101 would amend the Federal Election Campaign Act
of 1971, the Communications Act of 1934, and several other
laws by providing to Senate candidates who agree to limit
their total campaign expenditures a package of incentives
consisting primarily of discounted broadcast advertising
rates, thirty minutes of free broadcast air time, and
discounted postal rates for campaign mailings.
In evaluating the constitutionality of this proposal, two
potential constitutional problems are presented. One is the
indirect restriction, by way of incentives, on candidate
expenditures of their own resources, expenditures that since
Buckley v. Valeo, 424 U.S. 1 (1976), have been considered to
be themselves protected by the First Amendment. Another is
the potential restriction on the First Amendment rights of
broadcasters to allocate their air time as they see fit. I
will address these concerns in that order.
In Buckley v. Valeo, the Supreme Court held
unconstitutional a restriction on the amount of a candidate's
own funds (the major corollary of permitting contribution
limitations) that he or she could spend in the context of an
election. 424 U.S. at 39-59. The Court held that the First
Amendment protected the right of a candidate to spend an
unlimited amount of his or her own funds in the service of
advocating his or her candidacy. The Court reasoned that
since spending one's money to make a political speech or
support a political cause was plainly protected by the First
Amendment, it would be anomalous to create an exception where
the political cause was the cause of one's own election to
office. And although this dimension of Buckley was criticized
then, and is still criticized today, there is little in
subsequent developments to indicate that it is not ``the
law.'' In no subsequent campaign financing case, and there
have been about a dozen, has the Court retreated in any way
from its 1976 conclusion that personal expenditure
limitations violate the First Amendment.
Although this bill does not directly restrict the right
recognized in Buckley, it does provide an incentive for
candidates to relinquish that right. In many other contexts,
this form of indirect restriction would create the
constitutional problems often discussed under the rubric of
``unconstitutional conditions.'' See Speiser v. Randall, 357
U.S. 513 (1958). To take an obvious example, it would be
plainly unconstitutional for the federal government to offer
a tax credit to anyone who agreed not to criticize the
President, and it would be equally unconstitutional to
provide discounted postal rates for pro-American but not
anti-American publications, or for Protestant but not
Catholic magazines. The idea of the doctrine of
unconstitutional conditions is that it is impermissible to
allow the government to do indirectly what it cannot do
directly, and that the potential for such indirect
restrictions are enormous given the number of governmental
programs on which people routinely depend. See also Arkansas
Writer's Project, Inc. v. Ragland, 481 U.S. 221 (1987).

[[Page S6711]]

Yet the doctrine of unconstitutional conditions, even in
First Amendment context is much narrower than the First
Amendment itself. As the Supreme Court (controversially) held
in Rust v. Sullivan, 500 U.S. 173 (1991), the doctrine does
not require the government to be neutral in terms of the
programs it wishes to create or the activities it wishes to
subsidize. See also Regan v. Taxation With Representation of
Washington, 461 U.S. 540 (1983). The government may
support a Fund for Democracy without having to offer equal
support for the Fund for Theocracy or the Fund for
Aristocracy. Similarly, there is no doubt that a high
level employee of the Department of Defense can be
required as a condition of employment to relinquish his or
her right to express public support for the present
government of Iraq, even though that right is one
protected by the First Amendment when exercised by
ordinary citizens. Although there is some force to the
doctrine of unconstitutional conditions, it is thus a
mistaken oversimplification to maintain that citizens may
not constitutionally be induced by government to give up
what would otherwise be their constitutional rights.
Especially when the restriction is not, as it is not here,
one based on the viewpoint of the speech, it is a
misstatement of the current law to say that it is
unconstitutional for the government to provide incentives
for citizens to forego their right under Buckley v. Valeo
to spend unlimited funds in support of their own political
candidacies.
Although reasonable minds might disagree with the foregoing
analysis, it is clear that the Supreme Court in Buckley did
not. In Buckley the Court explicitly concluded, even while it
was protecting the First Amendment rights of expenditure,
that Congress could, consistent with the First Amendment,
provide incentives to encourage political candidates to
accept voluntary limitations on their own campaign
expenditures. ``Congress may engage in public financing of
election campaigns and may condition acceptance of public
funds on an agreement by the candidate to abide by specified
expenditure limitations. Just as a candidate may voluntarily
limit the size of the contributions he chooses to accept, he
may decide to forego private fundraising and accept public
funding.'' 424 U.S. at 57 n. 65. In Buckley the question
arose in the context of Presidential campaigns, but the
Court's just-quoted broad statement was not so limited, nor
is there any reason to suppose that there could be a
plausible distinction between the Senatorial campaigns that
are the subject of S. 1219 and the Presidential election
financing plan that prompted the Court's broad statement in
Buckley. Moreover, when a three judge United States District
Court in 1980 explicitly rejected an attack on voluntary
expenditure limitations in exchange for public financing, and
when the Supreme Court summarily affirmed that judgment, the
argument that the exchange was not truly voluntary was
rejected. Republican National Committee v. Federal Election
Commission, 487 F. Supp. 280 (three-judge court, S.D.N.Y.
1980), affirmed without opinion, 455 U.S. 955 (1980).\1\
---------------------------------------------------------------------------
Footnotes at end of letter.
---------------------------------------------------------------------------
In examining the incentives in S. 1219, I cannot see any
appreciable difference, on this issue, and from the
perspective of the candidate, between public funding, as in
Buckley, and the discounted advertising and postal rates that
are offered in S. 1219. First of all, both have the effect of
providing financial benefits for the candidate, and any
difference between the two would be a difference, from the
candidate's vantage point, of form and not of substance. In
addition, the discounts available under S. 1219 are, if there
is any difference at all, somewhat less direct. If a direct
cash subsidy is not, in the Supreme Court's eyes, an
unconstitutional inducement to relinquish a constitutional
right, then it is hard to see how the indirect inducements in
S. 1219 would be.
This is not to suggest that there is no merit in the
argument that the inducements offered make the seemingly
voluntary relinquishment not voluntary in fact. The line
between an inducement whose acceptance is truly voluntary and
one that begins to verge on the coercive is a wavering one,
and the special circumstances of a political campaign, in
which acceptance by a candidate's opponent would make the
rejection of the inducement even more costly, accentuate this
effect. Insofar as S. 1219, in section 105, offers increased
benefits to candidates whose opponents reject the
limitations, the coercive effect increases.\2\ Yet the
fundamentals of this phenomenon existed in Buckley itself,
since even without an amount keyed to acceptance or rejection
by a candidate's opponent, a candidate still is faced with a
choice under circumstances in which the candidate's opponent
will be subsidized by the government. Nor is there any
suggestion in Buckley that the constitutionality of the
conditional public funding should depend on case-specific
determinations of the circumstances under which a candidate
exercised the option. Thus, the grounds for current
objections existed in large part in Buckley and existed in
all of the subsequent court decisions,\3\ all but one \4\ of
which have accepted the exchange that provides the linchpin
of S. 1219. So although there are plausible objections to the
voluntariness of the arrangement in S. 1219, these objections
go back to Buckley itself, which concluded as a matter of law
that such exchanges were voluntary rather than suggesting
that a case-specific and factual voluntariness inquiry was a
condition for constitutional acceptability. This leads me to
conclude that the various objections now offered to S. 1219
and related proposals are not so much to the
unconstitutionality of S. 1219 under current law, but rather
to the state of the current law itself. The essence of the
objection is far less that Buckley supports the objection
than that Buckley was mistakenly decided.\5\
Much the same characterization applies to S. 1219 as a
restriction on broadcasters. In giving candidates broadcast
time, S. 1219 does to broadcasters what it plainly could not
do to newspaper publishers were the time (or space) offered
to be in newspapers, magazines, or even, in most contexts,
cable television. Under Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241 (1974), the First Amendment protects
total editorial control over the contents of a newspaper,
even in the face of a claim that granting space in a
newspaper would broaden rather than narrow the range of
public debate. There is no doubt, therefore, that the
First Amendment would not allow Congress to provide free
or discounted newspaper space (without the consent of the
newspaper, of course) as part of the inducement for
candidates to accept voluntary expenditure limitations.
Broadcasters are not newspapers, of course, not only as a
matter of fact, but also as a matter of law. The Supreme
Court rejected the broadcaster-newspaper analogy in Red Lion
Broadcasting Company v. Federal Communications Commission,
395 U.S. 367 (1969), agreeing with the congressional judgment
in 1934 that the airwaves were public property, to be
assigned in the public interest, and subject to limitations
designed to ensure that the public retained part of their
use. This has been embodied in the personal attack, equal
time, and (now obsolete) fairness doctrines, all of which has
the effect of ``giving'' some of the time encompassed by a
broadcast license to the public.
In rejecting the claim that broadcasters have an unlimited
First Amendment right to unfettered editorial control over
the time encompassed by their license, the Supreme Court in
Red Lion relied in part on the controversial notion that the
airwaves ``belonged'' to the government and could thus be
licensed subject to otherwise impermissible content-based
restrictions, and in part on the even more controversial, and
potentially technologically obsolete, argument that because
there were a limited number of broadcast bands (what is known
as the scarcity argument), those bands could be allocated
under content-based conditions that would never be permitted
for newspapers. Again, however, it is very important to
distinguish complaints about the existing law from the
argument that the existing law prohibits this legislation. As
long as Red Lion remains the law, Congress may within limits
consider broadcast time to belong to the public, and to be
subject to allocation in the public interest. In this
respect, therefore, price restrictions on advertising, and
direct grants of broadcast time, will not violate the First
Amendment as it is presently interpreted.
Finally, let me add a few words about the Political Action
Committee (PAC) contribution limitation in Section 201. As I
am sure you know, this restriction, in light of Federal
Election Commission v. National Conservative Political Action
Committee, 470 U.S. 480 (1985), is likely unconstitutional
under current law, although the narrow majority opinion in
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990),
might provide some basis for suggesting reconsideration of
the earlier case. Given the state of the law, however, the
issues now are much different, involving questions about the
responsibility of Congress in the face of contrary Supreme
Court precedent. There is a line of academic and political
opinion that maintains that Congress should engage in its own
direct consideration of what the Constitution requires,
without regard for, or at least not subject to, the authority
of contrary Supreme Court options. I do not subscribe to this
view, and I do not urge it on you, although the reasons for
my belief encompass the full domain of constitutional
jurisprudence. Since this is not the place to engage that
issue, I will simply assume that you believe that Congress
should respect the role of the Supreme Court as authoritative
interpreter of the Constitution.
Yet even within this view, it is of course possible in good
faith to believe that times change, that Justices change, and
that constitutional law changes. And it is possible,
therefore, to believe that Congress can act responsibly in
giving the courts the opportunity to reconsider their earlier
views in light of changed circumstances or in light of the
possibility that their earlier views may have been mistaken.
The rapidly escalating cost of elections make this a
plausible circumstance to give the Supreme Court this
opportunity, and just as it is ``legitimate'' for opponents
of section 101 to believe in good faith that the Court should
reconsider its judgment in Buckley that public inducements
for voluntary expenditure limitations do not violate the
First Amendment, so too is it legitimate for proponents of
section 201 to believe in good faith that changing
circumstances, or the bipartisan nature of this initiative,
are sufficient to invite the Court to reconsider its judgment
in Federal Election Commission v. National Conservative
Political Action Committee. Still, as a matter of existing
case law, section 201 is far more problematic, as I am sure
you know, than section 101.
To conclude, I believe that existing caselaw strongly
supports the constitutionality of sections 101 and 241, and
casts considerable doubt on section 201.\6\ In both

[[Page S6712]]

cases, there are arguments that could be made against the
caselaw, but it remains important to distinguish arguments
against the caselaw from arguments from the caselaw.
I hope you find this useful. Please feel free to contact me
at any time if I may be of further assistance.
Yours sincerely,

Frederick Schauer,

Frank Stanton Professor of the
First, Amendment, Harward University.\7\

footnotes

\1\ The summary affirmance is technically a decision by the
Supreme Court, but increasingly since 1980 the Court has made
it clear that summary affirmances are at best of limited
precedential value.
\2\ This is the argument in a Student Note, The Pitfalls of
Contingent Public Financing in Congressional Campaign
Spending Reform, 44 Emory Law Journal 735 (1995).
\3\ See, in addition to the previously noted Republican
National Committee v. Federal Election Committee, cases such
as Vote Choice, Inc. v. DiStifano, 4 F.3d 26 (1st Cir. 1993);
Weber v. Heaney, 793 F. Supp. 1438 (D. Minn. 1992).
\4\ See the dicta in Weber v. Heaney, 995 F.2d 872 (8th Cir.
1993).
\5\ In light of the distinction that the Buckley court drew
between expenditure limitations and contribution limitations,
the source restrictions in section 241, especially when seen
as part of a voluntary choice by the candidate, seem
especially non-problematic.
\6\ Although not on section 201's ``fallback'' provision.
\7\ From an abundance of caution, I emphasize that my views
are not to be taken as the views of the John F. Kennedy
School of Government, the Harvard Law School, or Harvard
University.
____

University of California,

Los Angeles, School of Law,

March 26, 1996.
Senator Russell D. Feingold,
U.S. Senate, Washington, DC.
Dear Senator Feingold: Thank you for your letter of
February 14, 1996, in which you asked for my assessment of
the constitutionality of three provisions in S. 1219, the
currently pending campaign finance bill authored by you,
Senator McCain, and others.
In summary, I believe the provision of discounted
television time and postage rates, conditional upon the
candidate's compliance with voluntary spending limits, is
constitutional.
It is more difficult to form a confident opinion with
respect to the other two provisions, because there is very
little from the Supreme Court on which to rely. The first of
these is a requirement that candidates who accept the
discounted television time and postage rates must agree that
at least sixty percent of contributions received come from
individuals residing in the candidate's state. I believe this
probably is constitutional, at least in part. The second is a
ban on PAC contributions to federal candidates. This may be
unconstitutional, but in light of the ``back-up'' provision
in S. 1219, the chance may be worth taking for those who wish
to eliminate PACs, since a declaration that the provision is
unconstitutional will not jeopardize the legislation as a
whole.
1. Voluntary spending limits. The Supreme Court held, in
Buckley v. Valeo, 424 U.S. 1 (1976), that as a general rule,
limits on the amount that a candidate's campaign can spend
are unconstitutional. However, the Court also opened a
loophole in this general ban on campaign spending limits, in
footnote 65 of the Buckley opinion:
``. . . Congress may engage in public financing of election
campaigns and may condition acceptance of public funds on an
agreement by the candidate to abide by specified expenditure
limitations. Just as a candidate may voluntarily limit the
size of the contributions he chooses to accept, he may decide
to forgo private fundraising and accept public funding.''
Although footnote 65 may raise many more questions that it
answers, it does seem to answer the question whether it is
constitutional to condition discounted television time and
postage rates on the acceptance of spending limits. The only
difference between this case and the case considered in
footnote 65 is that in the former, the government is offering
in-kind benefits to the candidate, while in the latter it is
offering money. The money gives the candidate more
flexibility in the management of his or her campaign, and
therefore is presumably of greater value than an equivalent
amount of in-kind benefits. But there is no apparent reasons
why this should make a difference for constitutional
purposes. In each case, the government is providing a real
benefit. If the in-kind benefit is less valuable to
candidates than cash, then it may be less likely that
candidates will accept the in-kind benefits than that they
will accept the cash. But candidates who do accept the
benefits/spending limits packages do so equally voluntarily
in each case. Therefore, I conclude that these provisions of
S. 1219 are constitutional.
2. Limit on organizational and out-of-state contributions.
Part of the benefits/spending limits package that is offered
to candidates under S. 1219 is that at least 60 percent of
the contributions accepted by the candidate must be from
individuals who reside within the candidate's state.
I have argued above that for purposes of footnote 65 of
Buckley v. Valeo, the fact that in-kind benefits are being
offered to candidates instead of cash should make no
difference. In footnote 65, the provision of benefits was
conditioned on the candidate's acceptance of spending limits.
Here, the benefits are conditioned on accepting two combined
aggregate contribution limits--on contributions from non-
individuals, and on contributions from out-of-state
individuals. Does this make a constitutional difference?
There is an obvious basis for answering this question in
the negative. Buckley and subsequent decisions of the Supreme
Court have generally treated restrictions on contributions as
less constitutionally offensive than restrictions on
expenditures. If voluntary expenditure restrictions tied to
benefits to the candidate are permissible, why not voluntary
contribution restrictions?
Insofar as the restriction is on the amount that can be
accepted in contributions from non-individuals, the voluntary
restriction should be constitutional. The government may
prefer contributions from individuals on at least two grounds
that seem plausible. First, organizations typically are
formed for a limited set of purposes. A contribution by an
organization is likely to be made in furtherance of the
limited purposes of the organization. Accordingly, it may be
more likely than a contribution from an individual to create
the sort of conflict of interest that the Court refers to as
``corruption or the appearance of corruption.'' Of course,
contributions from individuals may create the same
conflict of interest, but because the purposes of
individuals are not artificially limited, individuals are
more likely to contribute for a variety of reasons
unrelated to influencing legislation on particular issues.
Second, it is widely accepted that the principle of
freedom of speech protects both instrumental interests
such as the airing of public issues, and individual
interests such as the need of humans to express
themselves. The second category of First Amendment
interests applies to individuals, and this may provide
some basis for the government preferring contributions
from individuals over contributions from organizations.
It is much more difficult to justify the restriction on
contributions from out-of-state individuals. I have
occasionally made small contributions to Senator Joseph
Lieberman, because he was a college classmate of mine. Under
S. 1219, if Senator Lieberman had already received forty
percent of his contributions from non-individuals or out-of-
state residents, he would be required to reject my
contribution. Yet, I can see no danger whatever to the public
interest from my contribution, arising from the fact that I
live in California rather than Connecticut. If anything, this
restriction would enhance the likelihood of conflict of
interest, by heightening the pressure on Senator Lieberman to
raise money from individuals who reside in Connecticut. There
is no apparent reason for assuming that in-state
contributions are more or less corrupting than out-of-state
contributions, but anything that reduces the flow of money
from one source heightens the candidate's need for money from
the remaining sources and thus may increase the likelihood of
pressure.
Campaign spending limits can reduce conflict of interest by
reducing the pressure on candidates to raise funds. Limits on
contributions from organizations can be justified for the
reasons stated above. Limits on contributions from out-of-
state individuals serve no good purpose. Nevertheless, the
emphasis in Buckley's footnote 65 is on the voluntariness of
the candidate's acceptance of a restriction, not on the
utility of the restriction. It is difficult to say whether
the lack of utility of a restriction would enter into the
Court's constitutional equation.
For the reasons, I conclude that the restriction on the
proportion of contributions a candidate may accept from
organizations is constitutional. The restriction on the
proportion of contributions a candidate may accept from out-
of-state contributions presents a close question, but there
is a substantial possibility that it would be upheld.
3. Ban on PAC contributions. S. 1219 prohibits all
contributions and expenditures in federal elections except
from individuals and from committees controlled by candidates
and political parties. The practical consequence is that PACs
are banned from making contributions and expenditures in
federal elections.
In Austin v. Michigan Chamber of Commerce, 494 U.S. 652
(1990), the Supreme Court upheld a state ban on independent
expenditures by corporations. In Austin, the Court pointed
out that there was no absolute ban on corporate political
spending because corporations were permitted ``to make
independent political expenditures through separate
segregated funds'' (i.e., through PACs). Although Austin does
not hold that a ban on corporate independent spending that
extended to PACs would be unconstitutional, it suggests that
a ban on independent spending by PACs would be highly suspect
under the First Amendment.
Thus, the S. 1219 ban on expenditures by PACs is probably,
though not certainly, unconstitutional. Whether the ban on
PAC contributions is constitutional is much harder to say. As
was stated above, the Supreme Court has been more tolerant of
restrictions on contributions than on expenditures. In
Citizens Against Rent Control v. City of Berkeley, 454 U.S.
290 (1981), the Court devoted some rhetoric to the value of
``the practice of persons sharing common views banding
together to achieve a common end,'' and the ``tradition of
volunteer committees for collective action.'' But that was in
the context of a limit on contributions to a campaign
committee, not to a PAC that would be making contributions in
turn to other committees. A ban on PACs is a more severe
restriction on association for campaign fundraising purposes
than anything the Court has upheld, and it would have a
severe practical effect on the ability of many small
contributors to participate in the campaign finance

[[Page S6713]]

system. Union members and contributors to ideological PACs
are examples of people who traditionally have depended on
such organizations to pool their individually insignificant
contributions. I know of nothing in the Supreme Court's
precedents that gives much guidance as to how this question
would be resolved.
I conclude that the ban on PAC expenditures is probably
unconstitutional. The constitutionality of the ban on PAC
contributions is uncertain.
S. 1219 has a ``fallback'' provision that, in the event
that the PAC ban is struck down, candidates must limit the
aggregate amount they receive from PACs to an amount equal to
20 percent of the spending limit. The constitutionality of
such aggregate contribution limits has not been considered by
the Supreme Court. I believe they are not unconstitutional in
general, though they may be if they are overly restrictive.
The S. 1219 fallback provisions are certainly restrictive,
but whether they are so restrictive that the Supreme Court
would declare them unconstitutional is a matter for
speculation.
I have given extensive attention to the constitutionality
of aggregate contribution limits in a law review article, and
rather than report the analysis here, I simply refer you to
Daniel Hays Lowenstein, ``A Patternless Mosaic: Campaign
Finance and the First Amendment After Austin,'' 21 Capital
University Law Review 381, 413-424 (1992). More generally,
the remainder of that article and the articles in the same
symposium by Professors Roy A. Schotland and Marlene
Arnold Nicholson may be of interest to you, your
colleagues and your staff on this difficult issue.
The foregoing is my response to your questions. Let me add
the obvious point that I have confined this letter to the
questions of constitutionality that you posed, and have not
attempted to state my policy views on S. 1219 or the subjects
with which it deals.
Thank you for extending me the opportunity to participate
in the Senate's deliberations. If I can be of any further
assistance, please contact me.
Sincerely,
Daniel H. Lowenstein,
Professor of Law.
____

University of Chicago Law School,

Chicago, IL, April 4, 1996.
Senator Russell D. Feingold,
U.S. Senate,
Washington, DC.
Dear Senator: This will respond to your request for my
views on the constitutional issues raised by S. 1219. I am
writing under unusual time pressure, and I hope you will
forgive me for offering a brief and somewhat preliminary
analysis.
S. 1219 raises many difficult and complex questions, and my
most general thought is that to sort out those questions, it
would be best to hold hearings with some extended discussion
of the underlying factual issues and the caselaw law. For the
moment, I will devote my attention to three provisions about
which you express most concern. The first of these provisions
is probably constitutional; the second raises new issues and
any judgment must be tentative; the third is probably
unconstitutional.
1. Section 101 provides certain financial incentives to
candidates to limit their spending. In exchange for agreeing
to limit overall spending, a candidate will receive free and
discounted television time, and also discounted postal rates.
I believe that this provision should and would be upheld.
With respect to candidates, it is not direct coercion. It
does not discriminate on the basis of point of view. It is
also supported by the legitimate interests in promoting
attention to electoral issues and in using public money to
enlarge public discussion and participation. The best
authority here is Buckley v. Valeo, 424 U.S. 1 (1976), where
the Supreme Court upheld a provision making major party
candidates eligible for public financing if and only if they
agreed to forego private contributions and to limit their
expenditures to the amount of the major party subsidy. This
basic principle strongly supports section 101.
Some complex questions might be raised by requirements of
free television time for specified candidates. Such
requirements have no clear precedent. But a general
requirement of free television time violates no one's first
amendment rights so long as it is viewpoint-neutral, cf.
Turner Broadcasting System v. FCC, 114 S. Ct. 2445 (1994),
and the forms of selectivity in section 101 are consistent
with Buckley. Most generally, a system that promotes more
coverage of candidates through free media could enhance free
speech purposes by counteracting the ``soundbite'' phenomenon
and enhancing democratic processes. See Sunstein, Democracy
and the Problem of Free Speech 85 (1993). The legal issues
are not entirely settled, but my preliminary judgment is that
section 101 should and probably would be upheld.
2. Section 241 would require candidates voluntarily
complying with section 101 to raise at least 60% of their
individual contributions from people within their own state.
This provision is a bit more problematic and it raises novel
issues. The major question is: What is Congress' legitimate
justification here, and what factual evidence supports that
justification? Apparently the proposal is a response to the
perceived problem of out-of-state money affecting state
elections, so that candidates receive support not because the
real voters want them, but because out-of-state financial
interests have allowed for a great deal of advertising.
Perhaps Congress could find that the interest in in-state
control of state elections justifies a measure of this kind,
at least when the relevant law is tied to a voluntary
restriction.
It is possible that this justification can be made
legitimate and sufficiently weighty. But under existing law,
the answer is not clear. The Court has not dealt with this
particular justification. Moreover, it is possible that in a
national system, out-of-state money legitimately affects
state elections, and it is possible that the Court would find
it unacceptably paternalistic to ban out-of-state money to
``protect'' in-state voters. See First National Bank v.
Bellotti, 434 US 765 (1978) (questioning efforts to protect
voters from ``excessive'' speech). Distinctive issues
involving federalism are obviously raised by section 241. A
set of hearings would be helpful in sorting out this
important issue.
3. Section 201 would prohibit political action committees
(PACs) from contributing to federal candidates. This
provision appears to be unconstitutional under FEC v. NCPAC,
470 US 480 (1985), where the Court invalidated a provision
prohibited any PAC from spending more than $1,000 to further
the election of a presidential candidate receiving federal
funding. Any regulation of PACs will have the best chance of
success if it builds on CMA v. FEC, 453 US 182 (1981), where
the Court upheld a system banning any individual from
contributing more than $5,000 per year to PACs.
If Congress wants to put the Court's decision in the NCPAC
case in question, it would do best to hold extensive hearings
uncovering problems that the Court did not see in 1985, or
proposing alternative mechanisms to allow organizations to
give financial aid to candidates, or perhaps attaching
``strings'' to the receipt of money by PACs. This is a matter
that could require a high degree of creativity.
My basic conclusions, then, are that section 101 is
probably constitutional; that section 201 is almost certainly
unconstitutional; and that under existing law, the
constitutionality of section 241 is unsettled, and that is
validity would turn on the underlying evidence and on a
careful identification of a legitimate legislative interest.
My more general suggestion is that because of the difficulty
of these issues, and associated issues in these and other
provisions on which I have not touched, it would be highly
desirable to hold hearings to get a range of views about the
underlying issues of fact, policy, and law.
I hope that these brief comments are helpful.
Sincerely,
Cass R. Sunstein,
Professor of Law.
____

DePaul University,

College of Law,

Chicago, IL, April 30, 1996.
Senator Russel D. Feingold,
U.S. Senate,
Washington, DC.
Dear Senator Feingold: Thank you for your letter of April
12, 1996, asking for my assessment of the constitutionality
of provisions of S. 1219. I believe that the prospects for a
finding of constitutionality are mixed. There is a high
likelihood that the aspect of the bill which seems to be the
central focus--voluntary expenditure limitations in return
for in-kind benefits--would be found constitutional.
Conversely, I believe the PAC ban would almost certainly be
found unconstitutional. Predictions with respect to other
aspects of the bill are less clear. I will discuss these
conclusions below. I should note that some of the provisions
present novel constitutional issues and that the analyses
necessary to resolve some of the issues would be quite
intricate and lengthy. Therefore my remarks below will be
rather general and I will not attempt to explore the issues
in depth in this letter. However, if you would like a more
complex analysis in the future I would be happy to assist you
further.
1. The spending limit condition attached to receipt of in-
kind benefits.
In the well known Buckley footnote 65 the Supreme Court
clearly stated that despite the fact that expenditure
limitations are otherwise unconstitutional, when made a
condition to the voluntary acceptance of public subsidies
they are valid. Although this footnote must be considered
dicta, as the constitutionality of the provision was not
being challenged, it should be noted that the Supreme Court
later summarily affirmed a case which rejected a direct
constitutional challenge to the condition. Republican
National Committee v. Federal Election Commission (RNC) 487
F. Supp. 280 (S.D.N.Y.) aff'd, 445 U.S. 955 (1980). A summary
affirmance is a decision on the merits, and is therefore
binding precedent; however, the Supreme court may feel less
compunction about overturning such a decision that one
supported by a written opinion.
In RNC the district court asserted that there was no real
burden on First Amendment expression because a candidate
would only choose the public subsidy if it would enhance his
or her expression. Alternatively, the court determined
that even if there was a burden on expression the
restrictions would satisfy strict scrutiny because they
were necessary to compelling government interests in
preventing undue influence and saving time and energy for
expression other than fundraising. (See my enclosed
article from the Hastings Constitutional Law Quarterly for
a more thorough discussion of this

[[Page S6714]]

case and the unconstitutional condition doctrine
generally.)
The reasoning of the district court in RNC has been
reinforced by practical experience in the years since it was
decided. The public's growing perception that campaign
contributions cause undue influence cannot be controverted.
The degree of validity of that perception can probably never
be definitively determined. But regardless whether that
perception is correct, it has added to the rampant
disillusion with our political system which we are currently
experiencing. In Buckley the Court made clear that preventing
the appearance of impropriety as well as the reality is a
compelling government interest. Furthermore, the
extraordinary amount of time spent by candidates on
fundraising--time taken away from other kinds of campaigning
that reaches more people--from attending to official duties.
The latter concern alone might today be considered a
compelling government interest. The in-kind benefits combined
with expenditure limitations will advance the interests
asserted in RNC and Buckley because they will substitute for
a substantial number of contributions which would otherwise
be raised by those candidates who choose to comply. To the
extent that candidates fail to comply the interests will not
be forwarded; however, this will merely maintain the status
quo with respect to the campaign activities of noncomplying
candidates without burdens to their first amendment
expression. It is very clear that without expenditure
limitations subsidies or in-kind benefits would merely be
used to augment rather than substitute for fundraising and
would therefore not serve the aims of S. 1219.
Expenditure limitations will no doubt be challenged as
aiding incumbents to the disadvantage of challengers.
However, the fact that the limitations are voluntary greatly
weakens that argument. In addition, if one looks at the
combined effect of the various provisions of S. 1219 the
extent to which they would cut into major funding sources of
incumbents is quite remarkable. I am referring to the
restrictions on PACs, bundling, soft money, out-of-state
contributions and leadership committees. The restrictions on
the use of the frank further diminishes the advantages of
incumbency.
2. The condition of limitations on contributions from
organizations and out-of-state individuals.
I presume that the rationale for this condition on in-
kind benefits is that in-state individuals are likely to
contribute for reasons having to do with a generalized
interest in representation, while organizations, and to a
lesser extent, out-of-state individuals are likely to
contribute to pursue a limited purpose that would be more
likely to involve undue influence. It is difficult to
reach a conclusion as to whether the Court would consider
this distinction strong enough to uphold the restriction.
The fact that the Court has generally been more accepting
of contribution limitations than expenditure limitations
will be a help, as will the fact that it is a voluntary
restriction applicable only to candidates who accept the
in-kind benefits. Although the aggregate limitation may be
viewed as rather severe because it in effect bans
contributions from some sources after the threshold has
been reached, it is a particularly effective means of
preventing undue influence. As Professor Daniel Lowenstein
has persuasively argued, such restrictions vitiate the
undue influence producing effects of even those
contributions that are accepted below the threshold
amount. This is because the supply of such contributions
will ordinarily be greater than the legal demand, thereby
lessening the importance of any one contribution.
3. The requirement that the media time be used in intervals
of 30 seconds or more or less than 5 minutes.
I assume that the purpose for this limitation is two-fold.
The 5 minute provision probably is an attempt to avoid
onerous burdens on the media which will be required to cede
time to candidates. This interest is certainly permissible
and should not pose First Amendment problems. The minimum of
30 seconds does create what I consider to be a technical
First Amendment problem. I use the term ``technical'' because
it arises as the logical consequence of holdings in some
Supreme Court opinions. I would argue that were the Court to
invalidate this requirement it would be an example of
carrying logic to an absurd conclusion.
The constitutional issue arises because the provision seems
to be an attempt to cause candidates to formulate their
message in a particular way. This runs into case law that has
held that individuals can express themselves using whatever
words or symbols they choose, with the possible exception of
certain speech which is imposed on a captive audience.
Compare Cohen v. California, 403 U.S. 15 (1971), and Texas v.
Johnson, 491 U.S. 397 (1989), with FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). Also, somewhat relevant are
cases holding that the government cannot force individuals to
speak. See Wooley v. Maynard, 430 U.S. 705 (1977). The
minimum 30 second commercial requirement in the bill, unlike
the cases cited, does not directly target content. No one is
forced to use particular words or avoid others, or to convey
a particular message. The issue of content regulation comes
into play because it appears that the purpose of the
regulation is to cause candidates to express themselves using
a format that is more likely to have serious content than the
typical 10 second spot, thus encouraging a thoughtful
exploration of real issues. The Supreme Court has never
dealt with a case involving a simple time regulation of
speech which is aimed at affecting content. Therefore, the
cases presenting constitutional obstacles would not be
directly on point--rather, general statements taken out of
context would be used to challenge the regulation.
I believe that a credible response to such challenges would
stress the following arguments: Even if the aim is to affect
the content of the speech, the concern with content is quite
general. There does not appear to be an intent to regulate
viewpoint, which is the most serious of content regulation
problems. Indeed, the concern is not even with the somewhat
less serious matter of regulation of subject matter, as the
candidate can use the time to discuss any subject he or she
wishes. Rather the regulation is an attempt to encourage the
candidate to actually say something meaningful. But the
candidate can thwart the government and still use his or her
time for totally vacuous expression without suffering any
detriment other than the possibility that the vacuousness
will be more obvious to the audience than it might be if the
commercial was shorter. Such a detriment hardly seems to rise
to the level of a serious First Amendment concern.
The fact that the restrictions only apply to candidates who
voluntarily accept the in-kind benefits should be an
important factor in favor of a finding of constitutionality.
Although a more definitive content regulation attached as a
condition of a benefit would be unconstitutional, the
regulation in question should not meet the same fate because,
for the reasons discussed above, it has little in common with
the kind of content regulations which the Court has shown
serious concern for in past cases. Furthermore, I find it
hard to believe that the fact that the purpose of the
regulation is to encourage an intelligent discussion of
election issues will not influence the Court positively, even
though that concern can be described as generally content
based.
4. The increased spending limit in Section 502 and the
increased contribution limit in Section 105 applicable to
complying candidates opposed by non-complying candidates.
These two sections of S. 1219 present potentially serious
constitutional problems, and it is very difficult to predict
how they would be resolved by the Supreme Court. There is no
Supreme Court case law dealing with an analogous provision.
Although there are two federal circuit court cases addressing
somewhat similar statutes--one upholding and one invalidating
the provisions--the cases involved statutes that are
distinguishable from S. 1219 and from each other.
In Vote Choice v. DiStefano, 4 F.3d 26 (1st Cir. 1993) the
federal circuit court upheld a Rhode Island law which
provided subsidies conditioned on spending limits and also
increased the $1,000 contribution limit to $2,000 for
candidates agreeing to the expenditure limitation.
However, in Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994),
cert. denied 115 S. Ct. 936 (1995), the court invalidated
a Minnesota statute which provided that when independent
expenditures where made opposing a candidate complying
with the spending limits (which were conditions of state
subsidies), or supporting his or her opponent, the state
subsidy would be increased in an amount equal to one half
the independent expenditure. In addition, the overall
campaign expenditure limitation of the complying candidate
would be increased in an amount equal to the independent
expenditure.
A third case, relied upon by Professor Joel Gora in his
testimony, is somewhat analogous, but easily distinguishable.
Shrink Missouri Government PAC v. Maupin, 71 F.3d 1422 (8th
Cir. 1995) involved a statute which banned contributions from
organizations to candidates not complying with expenditure
limitations. The court stressed that this statute was not
analogous to Buckley because the restrictions were not a
condition of the receipt of any return benefit and because
the ban on organization contributions could not have been
constitutionally imposed independently of an agreement to the
expenditure limitation. The Court concluded that ``No
candidate would voluntarily agree to comply with the
expenditure limits in exchange for access to sources of
funding to which he or she already has a constitutional right
of access.'' Id. at 1425.
Rather than engage in the very intricate and lengthy
constitutional analysis which would be required to attempt to
determine the significance of DiStefano and Day to the
somewhat similar provisions in S. 1219, I will make a few
general comments. In my view the provisions in S. 1219 fall
somewhere between the provisions reviewed in the two cases,
both with respect to the burdens on expression and the
importance and legitimacy of the government interests being
pursued. For this reason it is particularly difficult to
determine whether either of the two circuit courts would have
upheld the provisions in S. 1219. My guess is that the
results in the two cases reflect an approach sufficiently
different from each other that one circuit would uphold the
provisions in S. 1219, while the other would find them
unconstitutional. However, the two cases could be
distinguished from each other in manner which would reflect
negatively on the provisions in S. 1219. This is because a
somewhat stronger case can be made for a chill on expression
when a complying candidate obtains a comparative benefit
based on the expressive actions of the other candidate or his
supporters than when it is the action of the

[[Page S6715]]

complying candidate which results in his or her comparative
benefit.
5. the PAC BANS and the ``fallback'' provision
I consider the PAC bans to clearly unconstitutional.
Although there is a weak argument in favor of the
constitutionality of the bans on contributions, there is no
argument consistent with the Supreme Court's campaign finance
jurisprudence which would lead to affirmance of a ban on
expenditures. The ``fallback'' provision, however, is
consistent with the Supreme Court's jurisprudence on campaign
finance regulation. I am generally in agreement with the
analysis submitted by Professor Lowenstein on these
provisions, so I will not repeat that discussion here.
Thank you inviting me to comment upon the proposed
legislation. If I can be of any further assistance, please do
not hesitate to contact me.
Sincerely,
Marlene Arnold Nicholson,
Professor of Law.
____

American University,

Office of the Dean,

Washington, DC, May 2, 1996.
Senator Russell Feingold,
Hart Senate Office Building,
Washington, DC.
Dear Senator Feingold: Thank you for inviting me to provide
comments on the constitutionality of S. 1219. It is an honor
to give you my thoughts on this important legislation. It
would probably be most useful for you to have a
constitutional analysis based on existing case law, and so I
have given you my best interpretive efforts based on the
state of constitutional doctrine as it exists today.
Section 101: There is no general problem with conditioning
the receipt of public funding or benefits by candidates on an
agreement to abide by limits on overall campaign spending.
This exact regime for financing presidential campaigns was
upheld in Buckley v. Valeo, 424 U.S. 1 (1976). The Court
stated in no uncertain terms: ``Congress may engage in public
financing of election campaigns and may condition acceptance
of public funds on an agreement by the candidate to abide by
specific expenditure limitations. Just as a candidate may
voluntarily limit the size of the contributions he chooses to
accept, he may decide to forgo private fundraising and accept
public funding.'' Id. at 58, n.65. The Supreme Court has
maintained this general posture towards the conditioning of
public benefits since Buckley was decided. See, e.g., Rust v.
Sullivan, 500 U.S. 173 (1991) (holding that the government
could restrict speech within a publicly funded family-
planning program so long as it was on a viewpoint-neutral
basis).
It makes no difference to the analysis here that the
campaign benefits awarded to participating candidates will be
in the form of free and discounted television time and
discounted postage rates. These goods have an easily
ascertained monetary value and have no more coercive effect
than money. Nor does it make any difference that
participating candidates must abide by limits on what they
spend of their own personal funds (Section 502) since the
element of voluntary choice to participate in the public
benefits regime remains effective and meaningful.
One problem that I see potentially arising with Section 101
relates to Section 502, which increases an eligible
candidate's spending limit by 20% if a non-participating
candidate collects contributions or spends personal funds
over the spending limit by 10% or more. It may be argued--
although I think with little force--that such a rule in
effect punishes the non-complying candidate spending
beyond the desired ceiling by giving the complying
candidate for an extra benefit beyond the original
bargain. There is actually an Eighth Circuit Court
decision that stands for something like this proposition.
See Day v. Hollohan, 34 F.3d 1356 (8th Cir. 1994), cert.
denied, 115 S. Ct. 936 (1995). (striking down a provision
that increased a complying candidate's spending ceiling by
the amount of money he or she is overspent by a non-
complying opponent and providing half of the difference in
public money).
Whatever the merits of this strange decision, however, it
does not apply here because of a key difference in the way
the Minnesota plan and this one work. S. 1219 would not
directly provide additional public funds to compensate for
the difference in what complying and non-complying candidates
spend. Rather, this provision simply increases the ceiling on
what the complying candidate is authorized to raise on his or
her own. Even if the Day v. Hollohan decision is right that
we cannot directly, albeit partially, subsidize political
speech to meet political speech--a shocking and novel concept
if true--nothing like that is going on here. Congress is
simply allowing for eligible candidates to achieve a rougher
parity of resources and quantity of expression without
altering the necessity for them to raise their own money. It
should also be noted that under this regime it would still be
perfectly possible for a candidate running outside of the
public regime to outspend his or her opponent by huge amounts
of money and margins of 2 or 3 or 4-to-1 or indeed more.
A similar conceptual problem is raised by Section 105,
which would raise the limit on individual contributions to an
eligible candidate if he or she is running against a non-
participating opponent who has either received contributions
or spent personal funds in excess of 10% of the general
election limit. According to this provision, individuals
contributing to eligible candidates could give $2,000 as
opposed to the $1,000 limit that individuals giving to their
opponents would have to observe. There may be a strong
argument that this provision does not conform to the logic of
Buckley. Recall that the $1,000 individual contribution limit
was upheld as a narrowly tailored means of implementing the
compelling interest in combatting the reality and appearance
of corruption. See Buckley, 424 U.S. at 30. As soon as you
raise--indeed double--the $1,000 limit in some cases, you may
have undermined the argument for the necessity of the basic
limit itself, especially when you have doubled it for
contributors to those candidates who will, almost by
definition, end up with a smaller overall pool of
contributors than their rivals. If it is not inherently
corrupting for candidate X to receive a $2,000 contribution
from one of 500 contributors, why is it inherently corrupting
for candidate Y to receive a $2,000 contribution from one of
1,000 contributors? This provision is potentially vulnerable
to the objection that it is not narrowly tailored to
advance Buckley's anti-corruption rationale and creates
major disparities in the legal rights of third parties--
citizen contributors--based simply on decisions that
candidates make.
However, a strong argument can also be made in favor of the
disparate contribution limits. In Vote Choice, Inc. v.
DiStefano, 4 F.3d 26 (1993), the United States Court of
Appeals for the First Circuit upheld a very similar state
campaign financing provision which provided different
contribution limits for publicly-financed and privately-
financed candidates. In that case, the court considered Rhode
Island Gen. Law sec. 17-25-10.1 and 17-25-30(3). These
provisions generally capped contributions for political
candidates at $1,000. However, if a candidate qualified for
and accepted public financing, then his or her contribution
limit from individual citizens was raised to $2,000.
The First Circuit held that this disparity was a
permissible and narrowly tailored incentive encouraging
candidates to accept public regulation and financing. The
court dismissed the argument that a disparate cap was
unconstitutional punishment for not accepting public-funding.
Vote Choice, 4 F.3d at 37. Contrary to the analysis I
suggested above, the court held that this provision was
narrowly tailored to the ultimate goal of preventing
corruption and the appearance of corruption. Id. at 41. Thus,
there is some strong support for the proposition that even a
special $2,000 limit for participating candidates could be
seen as narrowly tailored to the anti-corruption goals
promulgated in Buckley.
Section 241: This Section requires participating candidates
to raise at least 60% of their total sum of individual
contributions from individuals residing within their states.
It is, in my estimation, perfectly constitutional. Indeed, it
is my conclusion that the provision would be equally
constitutional if it required that 100% of the complying
candidate's contributions come from within state. The
decisive point, of course, is that no candidate is forced to
accept public financing, and so those who accept it can be
asked to abide by the government's reasonable and viewpoint-
neutral regulations. See, e.g., Rust v. Sullivan, supra. But
even if it were an outright rule applying uniformly to all
candidates--participating and non-participating alike--
Section 241 would be lawful since it is safely rooted in
three different constitutional principles: the Seventeenth
Amendment guarantee of popular election of Senators, the
equal protection principle of one person-one vote, and
constitutional federalism, including Article V's command that
``no State, without its consent, shall be deprived of it's
equal Suffrage in the Senate.''
The Seventeenth Amendment to the Constitution, passed
in 1913, replaced the system of election of United States
Senators by the state legislatures with election ``by the
people [of] each State.'' This language, on its face,
establishes a presumption in favor of the constitutional
validity of federal and state laws that confine political
participation in a state to the ``people'' or citizens of
the state itself. Moreover, the legislative history of the
Seventeenth Amendment reflects that it was added to the
Constitution in order to break the political stranglehold
that out-of-state money interests had over Congress. New
York Senator Joseph Bristow, the author of the amendment,
declared that the ``great financial and industrial
institutions'' were using their power ``in almost
reprehensible and scandalous manner,'' spending ``enormous
amounts of money in corrupting legislatures to elect to
the Senate men of their own choosing.'' Standing on the
Senate floor in 1911, he asked: ``Shall the people of this
country be given an opportunity to elect their own
senators, or have them chosen by legislatures that are
controlled by influences that do not many times reside
within the State that those senators are to represent?''
Thus, if we take seriously the language, history, structure
and spirit of the Seventeenth Amendment, it seems clear that
Congress has the authority under Article I, Section 4, to
enforce the boundaries of popular election of United States
Senators.
The second Constitutional principle reinforcing the
Seventeenth Amendment basis for Section 241 is that of one
person-one vote under the Equal Protection clause. In
Reynolds v. Sims, 377 U.S. 533 (1964), the case which
constitutionalized the principle of one person-one vote, the
Supreme Court connected

[[Page S6716]]

resident citizenship in a state to participation in its
political processes:
``. . . representative government is in essence self-
government through the medium of elected representatives of
the people, and each and every citizen has an inalienable
right to full and effective participation in the political
processes of his State. . . .'' Id. at 565.
If one person-one vote guarantees every citizen's right to
participate in the ``political processes'' of his or her own
state and political community, it is equally clear that non-
citizens of a state have no such right. If non-residents were
allowed to participate, their votes would, in both a
mathematical and constitutional sense, ``dilute'' the equal
representation of members of the community. Thus, we might
usefully think of Reynold's one person-one vote principle as
establishing a rule of one resident-one vote.
The Supreme Court has accepted as a premise of American
federalism that states may confine formal political rights
to their own citizens and prevent citizens of other states
from participating in their political processes. The Court
has continually ruled that states have the power to
categorically exclude both from the franchise and from
political candidacy American citizens who are not citizens
of the state or residents of the given election district.
See Pope v. Williams, 193 U.S. 621 (1904); Kramer v.
Union-Free School District, 395 U.S. 621, 626-28 (1969);
Evans v. Cornman, 398 U.S. 419, 422 (1970); Dunn v.
Blumstein 405 U.S. 330, 344 (1972); Holt Civic Club v.
Tuscaloosa, 439 U.S. 60, 68 (1978).
By linking a person's membership in a state or local
political community to the person's physical residence within
the state or community's legal borders, the Supreme Court has
tapped the deepest roots of American constitutional and
political philosophy. The Declaration of Independence began
with the principle that governments ``deriv[e] their just
powers from the consent of the governed.'' The Declaration of
Independence para. 2 (U.S. 1776). This principle means not
only that all those who are governed have a presumptive right
to participate in politics but that all those who are not
governed have no such right. This principle is closely
related to the founding American maxim of ``no taxation
without representation,'' whose obverse corollary is ``no
representation without taxation''--that is, no right of
political participation for those not subject to the
government's taxing power.
The Supreme Court has repeatedly upheld the power of states
to confine political process rights to their own citizens and
to the members of specific sub-state political jurisdictions.
In Holt Civic Club, the Court rejected the voting rights
claims of Alabama citizens who were partially governed by a
municipality but not permitted to vote in it. Chief Justice
Rehnquist stated: ``No decision of this Court has extended
the `one man, one vote' principle to individuals residing
beyond the geographic confines of the governmental entity
concerned, be it the State or its political subdivisions. On
the contrary, our cases have uniformly recognized that a
government unit may legitimately restrict the right to
participate in its political processes to those who reside
within its borders.'' Id at 68. (emphasis supplied)
In Dunn v. Blumstein, the Supreme Court struck down an
illegitimate one-year durational residence voting requirement
in Tennessee but carefully distinguished it from a legitimate
bona fide residence requirement. See 405 U.S. at 343. The
Court found that, unlike an arbitrary requirement that
residents spend a year in-state before gaining the right to
vote, a basic threshold requirement that all voters be bona
fide state residents is presumptively legitimate. For, as the
Court put it, an ``appropriately defined and uniformly
applied requirement of bona fide residence'' may be
``necessary to preserve the basic conception of a political
community, and therefore could withstand close
constitutional scrutiny.'' Id. (emphasis supplied)
In Evans v. Corman, 398 U.S. 419 (1970), the Court stated
that it assumed that any state had a compelling interest in
``insurin[ing' that only those citizens who are primarily or
substantially interested in or affected by electoral
decisions have a voice in making them.'' 398 U.S. at 422.
All of the Court's relevant decisions thus establish the
government's compelling interest in confining participation
in a state's formal ``political process'' to the state's own
citizens. This interest can be defined as a political
sovereignty interest, and may be vindicated also by Congress
using its powers under Section 5 of the Fourteenth Amendment.
See Katzenback v. Morgan, 384 U.S. 641 (1966) (holding that
Congress has power under the Fourteenth Amendment to
elaborate and define the meaning of equal protection beyond
minimal constitutional requirements, especially in the voting
field).
The remaining question is whether making campaign
contributions can be treated by Congress as part of the
formal political process. The teaching of Buckley, of course,
is that political contributions are a formal and irreducible
part of the political process. But, because we have no
precedent directly on-point governing Section 241, we can
shed light on this question by examining federal and state,
statutory and judicial treatment of campaign contributions,
and specifically contributions offered by outsiders to
candidates in a political community.
Like voting and candidacy, the process of making campaign
contributions is closely regulated by federal and state
statute. This regulatory structuring is radically opposed to
the laissez faire treatment of informal political activities
like volunteering to help a campaign, endorsing a candidate,
or speaking to the press or the public, all of which are not
regulated by state or federal legislatures. The Federal
Election Campaign Act, which was mostly upheld in Buckley,
closely regulates federal campaign contributions, and similar
statutes exist in every state. This vast and expansive
regulatory treatment reflects the fact that campaign
contributions have become a formal and integral part of the
political process.
It is instructive to consider how federal law treats the
desire of foreign nationals to participate in political
campaigns by making money contributions. The United States
Congress has categorically banned all campaign contributions
in federal, state and local elections by foreign nationals--
that is, persons who are not members of any of the relevant
political communities. 2 U.S.C. sect. 441e(a) (1995) (``It
shall be unlawful for a foreign national directly or through
any person to make any contribution of money or other
thing of value, or to promise expressly or impliedly to
make any such contribution, in connection with an election
to any political office or in connection with any primary
election, convention, or caucus held to select candidates
for any political office; or for any person to solicit,
accept, or receive any such contribution from a foreign
national.'') When Senator Lloyd Bentsen introduced the
original 1974 legislation banning campaign contributions
by non-citizens, he made the following apposite statement:
``I do not think foreign nationals have any business in
our political campaigns. They cannot vote in our elections
so why should we allow them to finance our elections?
Their loyalties lie elsewhere . . . '' 120 CONG. REC. 8783
(1974).
The categorical prohibition adopted by Congress on ``money
speech'' by non-U.S. citizens in American campaigns reflects
the American political system's understanding that the right
to finance campaigns belongs to members of the electoral
community itself. From a constitutional perspective, a
citizen of Florida or Puerto Rico or Vermont or the District
of Columbia has no more of a cognizable interest in making
campaign contributions in Wisconsin than he or she does
voting there. Viewed through the proper lens of American
federalism, all persons who are not legal residents of
Wisconsin are not citizens of Wisconsin and should have no
formal political rights to participate in state or federal
elections there. Put in the starkest of terms, if a resident
of New York has no constitutional right or interest in voting
or running for office in Wisconsin's elections, he or she
should have no such right or interest in making campaign
contributions there that could have a far more decisive or
sweeping effect on the outcome of an election.
In another closely analogous case from a statutory context,
the United States Supreme Court upheld a blanket union rule
forbidding candidates for union office to accept campaign
contributions from persons who are not members of the union.
United Steelworkers of America v. Sadlowski, 457 U.S. 102
(1982). The Court found that the Steelworkers' rule banning
``outsider'' contributions did not violate the Labor-
Management Relations Act or the First Amendment. The Court
emphasized the legitimacy of the Steelworkers' desire to see
that ``nonmembers do not unduly influence union affairs.''
Id. at 115. The union justly ``feared that officers who
received campaign contributions from nonmembers might be
beholden to those individuals and might allow their decisions
to be influenced by considerations other than the best
interests of the union. The union wanted to ensure that union
leadership remained responsive to the membership.'' Id.
Thus, it seems inescapable that Congress has a compelling
political equality interest in preventing a situation to
develop in which a majority of the money raised by U.S.
Senate candidates comes from non-citizens.
Third, Congress has a compelling constitutional interest in
protecting federalism and the states' ``basic conception'' of
their political communities. Intervention in Senate races by
non-citizen contributors changes the definition of the
state's political community, distorts the character of the
campaign process and the nature of campaign appeals,
potentially changes the outcome of elections and damages the
relationship of loyalty that ought to exist between residents
and their officials. In sum, out-of-state and out-of-district
money contributions are as distorting a political
intervention by non-citizens as would be out-of-state and
out-of-district votes and candidacies. If, as the Supreme
Court has held, the principal constitutional protections for
federalism lie in the political structure of state
representation in Congress, then there is clearly a
compelling governmental interest in preserving the integrity
of each state's political autonomy. Congress has
constitutional authority to preserve the ``equal Suffrage''
of each state's representation in the Senate as provided for
in Article V.
Beyond the Seventeenth Amendment, one person-one vote and
federalism justifications for Section 241, Congress can spell
out compelling anti-corruption interests in enacting this
provision. Thus, even if one were to apply First Amendment
strict scrutiny to Section 241, I believe that the compelling
state interests and correspondingly narrowly tailored means
exist here.

[[Page S6717]]

There are two anti-corruption interests that the Supreme
Court has found sufficiently compelling to uphold public
regulations of campaign contributions and expenditures.
First, in Buckley, the Court found sufficient justification
for Federal Election Campaign Act caps on campaign
contributions in Congress' ``primary purpose'' of
``limit[ing] the actuality and appearance of corruption . .
.''
This interest is present here as well, but in an even more
striking way. There is a great risk of corruption when non-
citizens participate in the financing of a state's federal
candidates' campaigns since non-citizens are far more likely
to be motivated by a material or economic interest. The
Center for Responsive Politics has consistently found that
special interests and PACs give overwhelmingly to members who
sit on the congressional committees that legislate over them
regardless of their state affiliations. Open Secrets, the
Center's ``Encyclopedia of Congressional Money and
Politics,'' reveals further that a majority of Senate and
House committee chairs receive a majority of their money from
out-of-state contributors. Out-of-state and out-of-district
contributors are more likely to have a narrow material
interest in legislation, to exercise a corrupting effect on
legislation and legislators, and to promote the appearance of
quid pro quo corruption and trades.
The second anti-corruption interest upheld by the Supreme
Court is in guaranteeing that the levels of money spent on
behalf of a candidate authentically reflect popular support
rather than extrinsic and antidemocratic factors. This
interest was identified in Austin v. Michigan Chamber of
Commerce, 494 U.S. 652 (1990). In Austin, the Court upheld a
Michigan law preventing corporations from using corporate
treasury funds to support or oppose candidates for state
office. The Court reasoned that a corporation amassed profits
on the basis of its economic prowess and the state's valuable
conferral of benefits to all corporations--not on the basis
of the public's support for the political ideology of the
corporate directors or management. Thus, Michigan was
perfectly justified in refusing to allow corporations to
convert their profits into political advocacy for particular
candidates. In allowing regulation of political money beyond
quid pro quo arrangements, the Court validated regulation of
``a different type of corruption in the political arena: 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's
support for the corporation's political ideas.'' Id. at 660.
Austin established that money contributions from sources
other than the individual citizens who make up the community
are inherently corrupting of democratic norms. The Court
stated that ``the political advantage of corporations is
unfair because `[t]he 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.'
'' Id. at 660 (quoting FEC v. Massachusetts Citizens for
Life, Inc., 479 U.S. 238, 257 (1986).
Just as contributions drawn from a corporate treasury have
``little or no correlation'' to the public's support for the
corporation's political ideas, contributions sent from non-
citizens who live out-of-state and out-of-district have
``little or no correlation'' to the public's support for the
political ideas of such outsiders. These contributions
instead mostly reflect the economically motivated
contributions of outside interests and political investors.
Thus, corporate treasury funds and funds from out-of-state
sources inhabit the same vulnerable constitutional position
of antidemocratic political money that does not reflect the
popular preferences of the actual voting public.
If it advances compelling interests, Section 241's partial
ban on out-of-state contributions is also narrowly tailored.
First of all, it allows non-citizens to give campaign
contributions up until the point that they would become
almost half of the candidate's total receipts. Moreover, like
the contributions caps upheld in Buckely, this provision
leaves in place the unhampered ability of the regulated
parties--here, the out-of-state contributors--to spend
unlimited amounts of money on direct campaign expenditures
expressing their own political views in support of, or
against, a particular candidate. Thus, while a ban on
expenditures by non-citizens would presumably violate the
Court's Buckley ruling, ``a limitation upon the amount
that any one person or group may contribute to a candidate
or political committee entails only a marginal restriction
upon the contributor's ability to engage in free
communication . . .'' Buckley, 424 U.S. at 20. Such a ban
``does not in any way infringe the contributor's freedom
to discuss candidates and issues.'' Id. at 21.
Section 241 mirrors the regulation upheld in Buckley. It
works effectively to ban the political dominance created by
an overwhelming cash nexus between out-of-state contributors
and U.S. Senators. If non-citizens seek to promote a
meaningful political or ideological point as opposed to a
relationship of political debt with public officials, they
can still spend untold millions of dollars speaking and
making their views known. What they cannot do under this
provision is threaten the systemic corruption of Congress.
Although I would prefer to see it ban all out-of-state
contributions categorically, Section 241 is still shaped to
isolate the corrupting and antidemocratic effects of
involvement by out-of-state interests while allowing them
every opportunity to get a valid, non-corrupting message
across.
To conclude, voting and running for office are fundamental
rights of U.S. citizenship protected by the Constitution, but
the Constitution allows states to deny the right to vote and
run for office to persons who are not citizens of the
relevant state. The confinement of formal political rights to
voting citizens is always presumptively based on compelling
state interests in sovereignty, loyalty and honest
government. The making of campaign contributions to
candidates for public office constitutes just such an
exercise of a formal political right. Congress may declare
the existence of compelling interests in preserving the
constitutional sovereignty of the people and in combatting
the corruption of their political and governmental processes
by non-citizens. Section 241 advances these interests with
considerable effect while still leaving unlimited room for
campaign expenditures by outside interests.
Section 201: This Section prevents political action
committees (PACs) from making independent expenditures or
giving to federal candidates. It seems clear that the ban on
expenditures runs counter to the Court's holding in FEC v.
NCPAC, 470 U.S. 480 (1985), that independent PAC expenditures
have the full measure of First Amendment protection since
they do not threaten quid pro quo corruption. However, I read
that case as relating only to independent expenditures and
not direct contributions to candidates, which pose a far more
serious risk of the kinds of corruption identified in
Buckley. Indeed, Congress can fairly invoke the last 20-odd
years of experience with disproportionate and systematically
corrupting PAC influence on federal campaigns and national
public policy to demonstrate a compelling interest in passing
a ban on direct PAC contributions to federal candidates.
It is important to remember that a ban on PAC contributions
to candidates still leaves in place the right of every voter
to give directly to a candidate and the right of every PAC,
or group of voters, to spend whatever it wants independently
advocating or disparaging a particular candidate. Thus, all
of the voters' legitimate constitutional interests--the right
to associate with a candidate's campaign with a direct
contribution and the right to associate with other voters and
promote a particular candidate--are still vindicated by a ban
on PAC contributions.
I hope that these thoughts are useful to you and that you
will feel free to call on me for assistance in the days
ahead.
Very truly yours,

Jamin B. Raskin,

Professor of Law,
Associate Dean.

Mr. McCAIN. For those who question the constitutionality of this
bill, I hope they will take the time to read the opinions of these
legal experts.
Fourth, and the most important, this bill makes message, and not
money, the most important part of any election. And as such,
challengers will have a more fair and equal footing when running
against an incumbent.
Spending limits will do more to level the playing field in an
election than any other contemplated reform. Analysis of past races
shows incumbents raised and spent considerably more money than the
challengers and that the candidates who spent the most money usually
won the election--this is especially the case in races where
multimillionaires outspent their rivals. It is especially interesting
to note that in competitive open seats, the candidate who raises the
most money tends to win the election. Spending limits would change that
dynamic.
This perverse system under which the richest takes all has resulted
in entrenched incumbents. The nonpartisan Congressional Research
Service has compiled an analysis of congressional races in recent years
and the conclusion of that study is that the candidate who raises and
spends the most money, even if that money is his or her own, usually
wins the election. Elections should be about message, not money.
The flow of PAC money is especially enlightening about how the system
favors incumbents. I pointed out earlier how much that disparity is.
Challengers basically receive $1 in PAC contributions for every $20
given to an incumbent. Which is why entrenched incumbency is such a
problem, and why we must do something to fix this situation.
Mr. President, the Supreme Court has ruled we cannot stop someone who
is willing to spend an unlimited amount of money for a Federal office
from doing so. That is the law of the land. Our bill conforms to it.
But the bill does provide strong incentives for candidates to
voluntarily comply with spending limits, regardless of personal wealth.
Candidates who choose to spend unlimited amounts of their own

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money receive none of the bill's benefits. Further, the bill raises the
individual contribution limit for candidates who comply with the bill's
provisions when they run against someone who either refuses to comply
with the spending limits or exceeds the personal contribution limit.
Some have said that the simple solution of raising the individual
contributor limit is the answer to the problem. That solution just is
not true. Raising the individual contribution limit does nothing to
control or limit the amount of money spent in a race. It may actually
have the perverse effect of discouraging candidates of modest means
from seeking office when confronted with an incumbent with unlimited
resources. Under the current system, an incumbent's access to PAC
contributions and an incumbent's appeal to well represented interests
in Washington who like to bet safely on election favorites will almost
always allow the incumbent to outspend his or her challenger.
Increasing contribution limits would do nothing to level the playing
field and may, in fact, only further entrench incumbents who will
always have superior advantages when it comes to attracting big money.
It has been said several times that the public spends more on yogurt
than is spent on campaigns. That is almost a catchphrase around here.
My friends use the example to demonstrate that spending limits are not
needed. Mr. President, I must respectfully disagree. This comparison is
amusing but completely irrelevant. There is not a crisis of confidence
in the yogurt industry. Confidence, trust, and faith in the yogurt
industry is not important for the well-being of future generations.
This country is not the great Nation it is today due to the yogurt
industry.

We live in the greatest democracy in the history of the world because
of the foresight of our Founding Fathers to create a government that
represented and had the trust of the people. It is that trust that we
must seek to restore.
Poll after poll reveals the public's urgent demands for genuine
finance campaign reform. These polls mark the progress of public
sentiment on this question. The people's cynicism over the way we seek
office has grown into contempt for the way we retain office. The
foundations of self-government rest on the public's faith in the basic
integrity of our legal system. That faith is shaken today.
This bill will not cure public cynicism for politics. But we believe
it will prevent cynicism from becoming contempt, and contempt from
becoming utter alienation.
Our bill represents substantial, necessary change to the status quo--
a status quo that has generated a reelection rate of over 90 percent
for Members of the House and Senate. We know the current system has
served incumbents well, and we know what a daunting task it will be to
convince the Congress to reform this system.
Our appreciation for the political realities and institutional
impediments arrayed against reform will not extinguish our
determination for reform because we know the consequences of failing to
act are far more frightening than the personal prospect of involuntary
retirement.
We must move forward. We must pass meaningful campaign finance
reform. The American people expect us to do at least that much.
Today's Washington Post stated: ``Give them a vote, and perhaps for
another Congress the issue will go away: That's the leadership
position. It's the way both parties deal with the issue; they spend
half their time endorsing reform and the other half making sure it
won't occur.''
Mr. President, I challenge my colleagues to prove the Washington Post
wrong. I urge my colleagues to vote for cloture and make reform more
than an unkept promise.

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