[Congressional Record Volume 142, Number 95 (Tuesday, June 25, 1996)]
[Senate]
[Pages S6761-S6816]
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 assistant 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.
The PRESIDING OFFICER. The Senator from Texas.
Mrs. HUTCHISON. Mr. President, I want to speak against cloture on
this bill, but I also want to talk about what I think is good about the
bill and why I am voting against cloture.
First, I want to say, if I were titling this bill, it would be called
the Incumbency Protection Act, because that is what limitations on
expenditures for campaigns will do. It will take away the right of a
challenger to be able to raise more money than an incumbent with the
advantage of name identification and to be able to go forward with a
message.
What they say in this bill is that it is voluntary. It is voluntary,
but you pay quite a price if you do not adhere to the limits. You,
then, will be faced with 30 minutes of free broadcast time against you,
if you do not adhere to the limits. You will have reduced postal rates
against you. This is really coercive. Then there is the cost. My gosh,
the Postmaster General has said he will have to raise all postal rates
if he has to provide reduced rates.
[[Page S6762]]
So I want to talk about why I think this is the most important part
of the bill. But I also want to talk about what I think is good in the
bill because, if we ever want to come back to this, there are some
improvements that we really ought to make, and I will be supportive of
these things. I love the idea of requiring 60 percent of campaign funds
to be raised from individuals in a State. I think that is something
that will enable the people in the State to have the right say in the
election of their Members of the U.S. Congress, in the election of
their Senators.
I am for limitations of personal money for a campaign. I think you
have to make sure it would be constitutional, so you would say a person
can spend any amount of his or her own money that he or she wants to,
but he or she could only be repaid a certain amount. I think that is a
wise thing, because I, too, am alarmed, as many of us are, by people
who would just pour millions of their own money into a campaign and, in
effect, be able to buy an election; because that is what people see.
They have the access to the airways with money, and it does become, I
think, an inequitable situation.
Limitations on the amounts of contributions by PAC's to the same
amount as individuals contribute is good. I do think PAC's, however,
have been misrepresented, not only on this floor but around the
country, because I think political action committees, most often, are
grassroots efforts within a company. Why would we not want the working
people of this country to be able to contribute $25 or $100 or $500, if
they desire to do it? PAC's are voluntary and they should be voluntary.
But if people want to participate in our process, I think they should
be encouraged. Frankly, I think many of the companies in this country
have done a wonderful job of encouraging their employees to be a part
of a PAC. When they do that, the employees are able to have the
candidates come before them. They will have the Democrat and the
Republican. They will be able to have debates. I think that is healthy.
That makes more people interested in the process, have a stake in the
process, and be good citizens. That is what we want to encourage in our
democracy.
I am for the provision that would not allow the franking privilege
for mass mailings in an election year. I do not use the franking
privilege for mass mailings at all. I have not detected I am any less
in contact with my constituents. I think it is a good thing, in an
election year, not to have the franking privilege for mass mailings. I
think we could easily do that.
So these are things that I think are great steps in the right
direction, and I commend my colleagues, Senator McCain and Senator
Feingold, for bringing these forward because these are things I could
vote for.
The reason I am going to vote against cloture is because the
overriding, most important part of this bill goes against everything
that freedom in a democracy stands for, and that is the limitations on
contributions, voluntary, but nevertheless I think it creates a very
uneven situation.
I am a person who could be on the other side of that because in my
personal experience I ran against an incumbent who was much better
funded than I was, who had the PAC contributions from Washington that I
have heard so much talk about on this floor. I had a very hard time
raising money against this incumbent. But you know what? The people
were looking at the message. And even though my message was much less
generously funded than my opponent's message, nevertheless the people
were able to make this choice.
I do not want to limit the incumbent or the challenger. If the
message is right, we need to have the freedom to get it out. I, of
course, think that limiting an incumbent and saying you can only spend
this much, and limiting the challenger and saying you can only spend
this much, is going to favor the incumbent. There is just no question
about that. And even though I was on the other side of that, I think it
is wrong and I think I will stand always against any kind of
limitations, whether it is cloaked in a voluntary cloak of armor or
not, because it is not really voluntary when you are then going to the
television stations or the postal service or going to the radio
stations and saying, ``Ah, yes.''--these people that are voluntarily
saying that they are going to stay within the limit--``You're going to
pay for that difference.''
What is the nexus? Why are we telling television stations or the
Postal Service, which is going to have to raise rates on everyone else
in America, that you should subsidize this arbitrary limitation that is
voluntary? It just does not make sense, Mr. President.
So I am going to vote against cloture because I think the overriding
issue here is limitations. If you want to see the hardship of
limitations, look at the States that have the limitations in place.
Look at the Presidential election right now. One candidate has a
primary and therefore has to spend the money in the limitation. The
other candidate does not have a primary. This could be reversed. It
could be the year that there is a Republican incumbent and the
Democrats have a primary. Either way, it makes for an artificial
limitation that is not fair. I do not think we want to put that in
place now for Members of Congress and Members of the Senate.
Let me just say that we do have limitations on contributions that I
think are quite reasonable. Could they be lower? Yes. I mean, $500,
$1,000--it could be lower if we wanted it to be lower. I would
certainly be flexible in that area. But you know, when I look at the
States around this country that have no limitations whatsoever on
contributions and there are people taking $100,000 for a campaign for a
State office, and we are talking about $1,000 limitations on
contributions or $5,000 from a PAC that is an amalgamation of many
employees in a company, I think we are assuring that there is going to
be a grassroots base. We have that assurance right now.
I had 40,000 contributors to my campaigns for the U.S. Senate. I ran
twice within 2 years. Forty thousand. My average contribution was about
$100. I think that is a grassroots effort. I had many $5 and $10
contributions. That does make sure that no one has particular access to
a person because of some huge contribution.
I think we can do a lot to improve our campaign finance in this
country, Mr. President, but I just think this bill is not the right
approach. I hope that we can work on this and continue to work on it,
because as I said, I think, having limitations on personal use of
funds, having the 60 percent requirement of raising money in your home
State, not using the franking privilege in an election year are very
good, solid recommendations from this bill. So I hope that we will be
able to work on something, but, Mr. President, this is not the right
vehicle. Thank you, and I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. McConnell addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Let me thank my good friend from Texas for her
excellent statement on the issue before us. I appreciate her
contribution to this debate, not only at this time but in previous
rounds. She is right on the mark, it seems to me, in concluding that
this bill falls well short of anything the Congress ought to foist on
to the American people, and particularly the restrictions on all the
individuals across the country that want to participate in the
political process.
I would just say to my friend from Texas--I did not get a chance
yesterday to tell her this--even the National Education Association,
almost never aligned with people like the Senator from Texas and
myself, wrote me a letter yesterday saying how awful this bill was, and
said they hoped it would be defeated. They also pointed out that the
average contribution to the NEA PAC was $6, and asked the question, why
in the world participation of that sort would be a bad thing for
American democracy and something the Congress ought to eliminate?
Mrs. HUTCHISON. Will the Senator yield for a question?
Mr. McCONNELL. Certainly.
Mrs. HUTCHISON. Is it not true that the Postmaster General has raised
serious questions about this bill, and what he would be required to do
is in the way of raising postal rates for everyone because of the
subsidy that would be required under this bill for lower postal rates
in an election year?
Mr. McCONNELL. In a letter I received from the Postmaster General
[[Page S6763]]
yesterday, he comes out against the bill. Obviously, the Postmaster
General is not accustomed to taking positions on legislation up here.
But his point is that this is in effect a transfer of cost to the
postal ratepayers across America.
That is one of the reasons the Direct Marketing Association, the
direct mail people--they are a private business--also opposes this,
because in effect it is passing on to the postal ratepayers an enormous
expense.
This bill is not free. The notion has been put forth that somehow the
spending limits are free. In fact, it passes the cost on to the
broadcasting industry and on to the postal patrons of this country.
Mrs. HUTCHISON. Not only that, since we have virtually a monopoly in
the postal system, it is like a taxpayer subsidy because it is
requiring every person in America that wants to send a letter to pay
more for this limitation that we are putting in place. It just does not
qualify as a true voluntary limitation.
Mr. McCONNELL. No, it is not voluntary and not free, I say to my
friend from Texas. It is not voluntary because if you choose not to
shut up, if you choose not to take the Government prescribed speech
limits, you have to pay more for your television. So it is not
voluntary. And it is not free because the broadcasting industry is
called upon to subsidize campaigns and the postal patrons are called
upon to subsidize campaigns. So it is neither voluntary nor free.
I thank very much my friend from Texas for pointing this out.
Mrs. HUTCHISON. I yield the floor back to the Senator from Kentucky.
But I commend the Senator from Kentucky for his great leadership in
this area because he is the person who has studied this issue
thoroughly and has taken things that sound very good, and has talked
about what the real impact is going to be on the consumer that has to
pay 32 cents to send a letter right now. And that is a lot to ask when
you look at the fine print here. I commend the Senator from Kentucky
for helping us understand it.
Mr. McCONNELL. I thank the Senator from Texas.
Mr. President, how much time does my side have left?
The PRESIDING OFFICER. The Senator has 87 minutes.
Mr. McCONNELL. I yield the floor.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, how much time do the proponents of the
bill have?
The PRESIDING OFFICER. The Senator has 103 minutes.
Mr. FEINGOLD. I thank the Chair.
Mr. President, before I turn to my very distinguished colleague from
West Virginia for his remarks, let me just make a couple points in
response to the Senator from Texas and the Senator from Kentucky.
First of all, it seems, almost as if in an effort to stop this bill
from even being amended, that the kitchen sink is being thrown at this
bill. Now we hear the Postmaster General is one of the lead opponents
of the bill. But this completely disregards the resolution that we have
placed in the bill, the Senator from Arizona has placed in the bill,
that would provide that the money that is saved from preventing Members
of Congress from franking during an election year would be used to
provide a relatively modest funding necessary to provide the postal
discounts which will only be given to those Senators and Members of
Congress who agree to the spending limits. So that again is another red
herring.
Second, it does not matter how many times the other side says that
this bill is not voluntary, it is voluntary. There are no such
mandatory restrictions across the board for citizens as has been
suggested by the Senator from Kentucky and the Senator from Texas.
It does not matter how many special interests--whether it is the NEA,
the AFL-CIO, or business PAC's--it does not matter how many times they
tell you our scheme for allowing people to voluntarily abide by limits
and give them benefits; it does not matter how many times they say that
is not voluntary. It is. It is voluntary.
Mrs. HUTCHISON. Will the Senator yield?
Mr. FEINGOLD. I am happy to yield to the Senator.
Mrs. HUTCHISON. I want to ask the Senator, what would happen under
your bill if there was not enough money saved from the use of the frank
to cover the cost of the discounted mailing?
Mr. FEINGOLD. If that happens, which I doubt, it would have to come
out of the budget of the post office.
Mrs. HUTCHISON. In other words, it does not necessarily cover all of
the costs?
Mr. FEINGOLD. Our estimates are from----
Mrs. HUTCHISON. The Postmaster General says he would have to raise
all of the rates, because it comes from the post office.
Mr. FEINGOLD. Our estimates are that it would cover it. We go on the
basis of estimates here. That is our assumption. Even if there was a
small gap, the effect would be minimal.
Let me quickly wrap up--because I want to turn to the Senator from
West Virginia--and indicate again a very serious distortion. The
Senator from Kentucky keeps saying that it will cost people who do not
abide by the limits more. That is just not true. They will not pay a
dime more than they pay today. They will still be eligible for the
lowest commercial rate as the TV stations are required to give them.
They will not have to pay more for their postal rates. It is simply
untrue they will have to pay more than they do today. True, they will
not get the lower costs that those who abide by the limits will get,
but do not let anyone tell you people have to pay more under our bill.
They can still spend as much as they want, and they will not have any
higher cost for what they do.
Finally, Mr. President, what this is about, really, is whether
candidates who are more rooted back in their home States will have a
better chance, or whether those who are dominated by big money or by
D.C. special interests will dominate.
I have this cartoon from one of the most distinguished political
cartoonist of the 20th century. This is the context in which the vote
today is being seen. We can talk here about how important PAC's are,
and somehow this will put artificial limits on candidates. This is what
the American public knows today's vote is about. It shows a gentleman
from the U.S. Congress talking to a lobbyist with a lot of money and a
cigar. The guy says, ``No more little gifts or junkets--from now on,
it's strictly campaign cash.''
Mr. President, the American public knows we have finally done
something about lobbying disclosures. The American public knows we have
cracked down on the practice of gift giving, one of the most offensive
practices to the American people. But they also know the big granddaddy
of them all, the important issue is the money that is awash in this
campaign because of campaign financing.
If we do not take the action today to move this bill forward, if we
fail in this bipartisan effort, this cartoon will be prophetic. This
cartoon will show that all that has happened is that the gifts and the
lobbying are being transferred through the campaign cash system. I do
not think we should let that happen.
Mr. President, with that, I yield 15 minutes of the proponents' time
to the distinguished Senator from West Virginia.
The PRESIDING OFFICER (Mr. Brown). The Senator from West Virginia.
Mr. BYRD. Mr. President, I thank the distinguished manager of the
bill, and I thank the Chair.
Mr. President, for nearly 2 years now many of our Republican
colleagues, particularly those in the House of Representatives, have
trumpeted the glories of their so-called Contract With America. To
listen to some, this was the document that held the secrets to solving
the Nation's problems. It was the primer for a reform-minded Congress--
something that would bring great respect to this institution and its
Members. Yet, there is one item conspicuously absent from the much-
touted, so-called contract. I note with amazement that what is
completely missing from that celebrated ideological text is any mention
of campaign finance reform. I have looked and I have looked and I have
looked and it is just not there.
We are told by those who promote the contract that a balanced budget
constitutional amendment is good for
[[Page S6764]]
the country. We are told that the line-item veto is good for the
country. But, for seemingly inexplicable reasons, many of those who
have spent their time clamoring for change have decided that putting an
end to our current grotesque and out-of-control campaign spending
system is just not worthy of attention.
How unfortunate, Mr. President, because I, along with many of my
colleagues, truly believe that until Members of Congress come to grips
with the simple fact that campaign finance reform is much more
important than any of these other reforms, this institution will
continue to be perceived as the property of the special interests--that
is exactly what it is, the property of the special interests--owned
lock, stock, and barrel. We all know it. And, as the public opinion
polls indicate, the American people know it, too.
It is a great disappointment to me that too few Members seem to
understand this. Time and time again, those of us who have pushed for
these reforms have seen our efforts rebuffed. Indeed, Mr. President, as
Majority Leader in 1987 and 1988, I tried eight times--eight times--to
get cloture on campaign finance reform legislation. And eight times I
lost. More importantly, however, eight times the American people lost.
That is why this legislation before us today is so important. It is
an effort, a bipartisan effort, to put a stop to the noxious system
currently in place for the financing of senatorial campaigns. It is a
measure that does not favor challengers or incumbents, or candidates
from either political party. On the contrary, this bill, the McCain-
Feingold bill, takes a balanced approach that will go a long way toward
creating a level playing field.
Mr. President, one needs to look no further than this Chamber to see
the pressing need for this type of reform. I believe that the primary
problem in this body, the root problem plaguing the Senate today is
what I would term the ``fractured attention''--the fractured attention
of Senators. Countless times, action on the Senate floor has been
slowed or delayed because Senators are not in Washington, or if they
are, they are away from the Capitol. That absence is not because those
Senators are off on vacation or taking their leisure. They are not off
somewhere lounging in the sun, neglecting their duties here. On the
contrary, as each of us knows all too well, Senators are often
elsewhere because of the need to raise unthinkable sums of money--
unthinkable sums--money essential for running for reelection.
Plato thanked the gods for having been born a man, and he thanked the
gods for having been born a Greek. He also thanked the gods for having
been born in the age of Sophocles. Sophocles said, ``There's nothing in
the world so demoralizing as money.'' Sophocles was not an American
politician, but he knew what he was talking about.
I can say after 50 years in politics, there is nothing so demeaning,
nothing so demeaning as having to go out with hat in hand, passing a
tin cup around and saying, ``Give me, give me, give me, give me.'' Not
that old song, ``Give me more and more of your kisses,'' but ``Give me
more and more of your money. Give me more and more of your money.''
Sophocles said, ``There's nothing in the world so demoralizing as
money.'' And, indeed, in this Senate, the need for Members to
constantly focus on raising the huge sums necessary to stay in office
has taken a heavy toll.
The incessant money chase is an insidious demand that takes away from
the time we have to actually do our job here in Washington. It takes
away from the time we have to study and to understand the issues, to
meet with our constituents, to talk with other Senators, and to be with
our families and to work out solutions to the problems that face this
Nation.
Mr. President, consider this: According to data provided by the
Congressional Research Service, the combined cost of all House and
Senate races in the 1994 election cycle was $724 million, a sixfold
increase from 1976. Even more troubling, though, at least from the
perspective of our colleagues, is that the average cost of a winning
senatorial campaign rose from barely $600,000 in 1976 to more than $4
million in 1994. Four million dollars. And that, of course, is just the
average.
In 1994, nearly $35 million was spent by the two general election
candidates in California, while the candidates in the Virginia Senate
race spent $27 million.
What do those astounding numbers say to someone who may wish to stand
for election to the Senate? What does the prospect of needing $35
million, or $27 million, or even $4 million say to the potential Senate
candidate? What it says, Mr. President, is that unless you win the
lottery, or unless you strike oil in your backyard, or unless you are
plugged into the political money machines, unless you actively compete
to be part of the ``aristocracy of the money bag'' you are a long shot,
at best, to win election to the United States Senate. And that fate is
meted out to prospective candidates before they have even presented an
idea, or given a speech, or offered a policy position.
The money chase is like an unending circular marathon. Since the
share of money coming from small contributors has declined while the
share contributed by big political action committees has increased,
candidates have to look more and more outside their home States to
raise big bucks. The traveling, the time away from the Senate, the time
away from talking with constituents, the time robbed from reading and
reflection, the personal time stolen from wives, children, and
grandchildren, the siphoning off of energies to the demands of
collecting what has been called campaign grease is making us all less
able to be good public servants. Ironically, we spend much time and
raise huge sums of money in order to be reelected to the Senate so we
can serve our States and our country. Then, once here, we cripple our
ability to serve our State and our country by spending an inordinate
amount of our time on the money treadmill so we can come back for yet
another try at serving our States and our country.
That kind of system sends the clear message to the American people
that it is money, not ideas and not principles, that reigns supreme in
our political system. No longer are potential candidates judged first
and foremost on their positions on the issues, or by their experience
and capabilities. No longer. Instead, potential Senators are judged by
their ability to raise the millions of dollars that are needed to run
an effective campaign. Publilius Syrus said that, ``a good reputation
is more valuable than money.'' Senators should stop and reflect on that
observation because our reputations and the feeling that we can be
trusted by the American people are both in severe free-fall.
The American people believe that the key to gaining access and
influence on Capitol Hill is money. Can anyone blame them for coming to
that conclusion?
Now, Mr. President, if I were starting out in politics today, with a
background like mine--working in a gas station, being a small grocer, a
welder in a shipyard, a meatcutter, just common ordinary trades--I
could not even hope to raise the sums of money needed for today's
campaigns. In 1958, when Jennings Randolph and I ran together for the
two Senate seats that were open--he ran for the short term, and I ran
for the full 6-year term--we ran on a combined war chest of something
like $50,000 or less. When I first started out in politics, I would win
a campaign for the House of Representatives and spend as much as $200,
perhaps. Think of it. If I had been forced to raise $1 million, $2
million, $4 million, or $10 million the first time I ran for the
Senate, in 1958, I would not have given it a second thought. In fact, I
would not even have gotten past the first thought. I would not have
been able to even contemplate running for office--a poor boy like
myself.
The ever-spiraling cost of public office is not a healthy trend. The
Congress could become the exclusive domain of the very wealthy. The
common man, without the funds to wage a high-powered, media-intensive
campaign could be removed from effectively competing in the political
arena, reserving it for the exclusive use of the very wealthy and the
well-connected.
That is why we must stop this madness. We must put an end to the
seemingly limitless escalation of campaign costs. We must act to put
the U.S. Senate within the reach of anyone with the desire, the spirit,
the brains, and the spunk to want to serve once again.
[[Page S6765]]
We must bring into check the obscene spending which currently occurs.
The Bible says, ``The love of money is the root of all evil.'' In
politics, the need for huge sums of money just to get elected is
certainly at the root of most of what is wrong with the political
system today.
Mr. President, I congratulate Mr. McCain and Mr. Feingold. I urge my
colleagues, for the sake of this institution if for no other reason, to
support cloture on this vital legislation.
I yield the floor.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I thank the Senator from West Virginia.
I cannot think of a more eloquent testimony to the need for this reform
than the statement that this great Senator, if he were starting out
today, probably would not even have considered running for the U.S.
Senate because of the incredible barrier of the money to be raised.
Our bill is a voluntary scheme that allows people who would try to
follow in Senator Byrd's tradition to raise a modest amount of money
and have benefits for agreeing to do that. I greatly appreciate that.
Mr. BYRD. Mr. President, I thank the Senator.
Mr. FEINGOLD. Mr. President, how much time remains?
The PRESIDING OFFICER. The Senator has 82 minutes remaining, and
Senator McConnell has 89 minutes.
Mr. FEINGOLD. Mr. President, I now yield up to 15 minutes to the
distinguished Senator from California, who has been a stalwart in
support of campaign finance reform.
Mrs. FEINSTEIN. Thank you, Mr. President.
I thank the Senator from Wisconsin and the Senator from Arizona. I
want to compliment both Senator McCain and Senator Feingold for this
effort.
I intend to vote for cloture, and should cloture on this bill be
successful, I will either propose a substitute of the whole or two
second-degree amendments to this bill.
I would like to take the time allotted to me this morning, Mr.
President, to explain my position on campaign finance reform.
I believe very strongly that the time has come to engage the debate.
If nothing else, I believe I am kind of a walking, talking case for
campaign spending reform. In the 1990 race for Governor, I had to raise
about $23 million. In the first race for the Senate in 1992, $8
million; in the second race, $14 million.
One newspaper just estimated that in the big States a candidate
really has to raise about $2,000 a day just to run for reelection to
the Senate of the United States. It certainly should not have to be
this way.
Essentially I agree with the basic tenets of the McCain-Feingold
legislation. I agree that the time has come to try a system that would
voluntarily cap campaign spending with a high of about $8.2 million in
the big States like California, going down to $1.5 million in States
with lesser population.
I believe that efforts should be made to limit the amount of personal
funds that can be used in a campaign. I believe that an effort to
promote honesty in advertising and reducing the influence of connected
PAC's in the outcome of elections is important.
As always in an election year, we hear a lot of talk about Congress
enacting meaningful campaign spending reform. But when it comes to
actually doing something about it we tend to hide behind one procedural
maneuver or another that allows us to vote the right way but gets us
nowhere toward achieving a piece of legislation.
In the last Congress a campaign finance bill passed both the Senate
and the House but got bogged down because the necessary 60 votes to
invoke cloture on a motion to proceed with a conference were not
present in the Senate. I understand that this will likely be the
problem here today. I hope we do get the 60 votes for cloture, and I
hope that in the ensuing debate a solid campaign finance reform bill
can emerge.
Legislation I introduced last year and which, for the most part,
forms the basis of McCain-Feingold, addresses what I believe are the
areas most in need of reform: The limiting of spending; creating a
level playing field between wealthy candidates who finance their own
campaigns and candidates who rely on contributions; and finally
ensuring honesty in campaign advertising.
One of the problems where I have a very real difference with the
present bill is on the issue of a candidate using vast sums of his or
her own money to finance a campaign. Either the substitute bill, or a
second-degree amendment which I will offer if we gain cloture on this
bill, mirrors parts of the campaign finance bill introduced by Senator
Dole in the last Congress. It also attempts to limit the ability of a
wealthy candidate to buy a seat in Congress. The provisions of the
amendment I would propose are a little different than anything that has
been introduced before now.
Under my substitute bill, after qualifying as a candidate for a
primary, a candidate must declare if he or she intends to spend more
than $250,000 of their own funds in the election. If the candidate says
``I am going to spend more than $250,000 of my own money in this
election'' then the contribution limits on his or her opponent are
raised from $1,000 to $2,000. If a candidate declares that he or she
will spend more than $1 million on the race from their own pocket, then
the contribution limit on his or her opponents would be raised to
$5,000. This is different from McCain-Feingold where there is only the
jump to $2,000. And the reason it is different is because in the larger
States, if an individual is going to spend more than $1 million, as
happened in my case where my opponent spent about $30 million of his
own money, it is impossible to catch up with the smaller contributions.
Therefore, raising the limit to $5,000 only in instances where in
individual States they are going to spend more than $1 million of their
own money would enable a more level playing field.
The amendment I will propose would also address the issue of PAC's.
As you know, McCain-Feingold would prohibit all PAC contributions
whether or not these PAC's are connected PAC's; that is, connected to a
business or a labor union or a nonconnected PAC. By that, I mean
organizations that are developed let us say to promote women for public
office, or let us say to support a cause in candidates who support that
cause for public office. The law permitting nonconnected PAC's would
remain unchanged in my amendment. As a fallback, if the ban on
connected PAC's is found to be unconstitutional, it provides that
contributions from connected PAC's be limited to 20 percent of a
campaign's receipts.
In my view, a blanket ban on all political action committees in a
sense throws the baby out with the bath water. I think we need to be
encouraging people to be involved in politics and not discouraging
them. Virtually every legal scholar who has examined this question
believes that a complete ban on all PAC's is unconstitutional.
The Congressional Research Service has advised the Senate, and I
quote: ``A complete ban on contributions and expenditures by connected
and nonconnected PAC's appears to be unconstitutional in violation of
the first amendment.''
I support the ability of a group or organization to encourage small
donations from their members to candidates of their choice. In some
cases, these members send their contributions made out directly to the
candidate's campaign to that organization to be gathered or bundled and
presented collectively to the candidate. In other cases, the
organization simply asks for donations to be made directly to the
candidates they recommend. This is not the same as writing a check to
an intermediary or to a political action committee and then having the
political action committee decide how to disburse the funds.
The McCain-Feingold bill bans bundling in all political action
committees. My amendment would not affect bundling, and I believe this
is a crucial difference in these two bills.
For example, there are two organizations which have helped women run
for political office. One is EMILY's List, and one is WISH List. One is
a Democratic organization and one is a Republican organization. Both of
these groups collect smaller donations primarily from women. They
bundle those funds from many sources to a single candidate.
[[Page S6766]]
In the 1994 election cycle, EMILY's List members supported 55 women
candidates. They raised a total of about $8.2 million. The average
donation to EMILY's List was less than $100.
WISH List, a much smaller and newer organization than its Democratic
counterpart, supported 40 Republican women candidates and raised
approximately $400,000. None of these funds were given directly to
either of these groups and neither group used the funds to lobby on
legislation before Congress. Both EMILY'S List and WISH List researched
the records of women candidates and advised their members which
candidates they recommended supporting. Based on that information, the
members decided who to support and how much they wished to donate, and
they donated directly to the candidates, sent their check to either
WISH List or EMILY'S List who then put the checks together and sent
them to the candidates.
I believe that has been helpful in electing women to both Houses of
this Congress. Currently, there are nine women in the Senate. When I
came to this body, there were only two elected women.
Groups like WISH List and EMILY'S List are an important factor in
helping more women run for office. Frankly, I do not have a problem
with any organization going out and endorsing candidates, writing to
their members, and saying if you would like to contribute to these
candidates, please go ahead and do so. I have no problem whether that
group is the Christian Coalition, whether it is the National Rifle
Association, whether it is EMILY'S List or WISH List. I think the
encouragement of small contributions to candidates that support a cause
that you believe in is important to the American political system.
My separation from what Senators McCain and Feingold have done is
that this bill wipes out all PAC's, connected and unconnected. I would
ban connected PAC's but permit unconnected PAC's to continue their
bundling efforts.
The other difference I have would be in how you would voluntarily
have the spending limits to create two different levels. If a wealthy
candidate were to enter a race and say, I do not intend to adhere to
the spending limits; I intend to spend $250,000 to $1 million of my own
money, then your opponent's limit goes to $2,000. If the wealthy
candidate says, I am going to spend more than $1 million, then the
limit of the opponent goes to $5,000.
I strongly support the $50 disclosure requirement. I strongly support
the incentives that are built into this bill which would provide free
radio time, special mailing to those who do comply with the voluntary
spending limits.
I believe this is an important bill. I am proud to vote for cloture.
I hope that the Senators of this body would see some merit in either
the two amendments I will offer as second-degree amendments or the
substitute of the whole to do the two items that I mentioned.
I thank the Chair. I yield the floor.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. Who seeks recognition? The Senator from
Kentucky is recognized.
Mr. McCONNELL. Let me just say briefly in response to the speech of
the Senator from California, which I listened to carefully, she also is
a member of the Rules Committee and participated in the hearings. I do
not remember whether she was there--she may have been--the day that
Col. Billie Bobbitt, retired U.S. Air Force officer, testified before
the committee in opposition to this bill. I want to take a minute to
quote some of her observations. She is a member of EMILY'S List, which
would effectively be put out of business by this legislation, as the
Senator from California has, I believe, acknowledged. That might have
been one of the amendments she would offer were she in a parliamentary
position where that were permissible. But, in any event, Colonel
Bobbitt, retired Air Force officer, said, ``I'm in one of the
organizations,'' referring to EMILY'S List, ``35,000 active members
from all 50 States, and along with voting, I haven't missed an
election,'' she said, ``in 51 years. EMILY'S List is the primary means
through which I participate,'' said Colonel Bobbitt, ``in the electoral
process.''
She goes on in her testimony, ``In the decade since EMILY'S List
began, more women than ever have been elected to Congress, and EMILY'S
List is a big reason why. EMILY'S List has allowed women to compete and
win.''
She went on to say, with regard to the bundling, in effect, that
EMILY'S List does--she describes it. She says, ``This is what's called
bundling, which I know Common Cause and some others have criticized,
but to me it's just good old American democracy at work.'' So said
Colonel Bobbitt.
She goes on to say, ``That's not bad for the system. That's good for
the system. Thousands of small contributions are able to offset the big
money coming from the rich and powerful. We are making the system more
participatory and more competitive,'' said Colonel Bobbitt.
Then she concluded by saying, ``My membership in EMILY'S List is a
way for me to be connected to the political life of the Nation and to
my fellow citizens. It allows me to band together with others who share
my views and work toward a common end. I do not pretend to be a
constitutional scholar,'' she says, ``but like most Americans, I carry
within me an almost innate knowledge of the first amendment rights of
citizenship--freedom to practice religion, freedom to speak my mind,
freedom to assemble with fellow citizens in support of a common goal. I
believe without a doubt that any membership in EMILY'S List is secured
by such rights, and I believe that organizations like EMILY'S List,
which encourage political participation by average citizens, are in the
best tradition of American democracy.''
I just wanted to quote what Colonel Bobbitt, an active member of
EMILY'S List, had to say about the underlying legislation, which she
obviously believes would greatly restrict her rights to participate in
the political process.
Mr. President, I wanted to take a moment here to make some
observations about the injunctive authority that I view in this bill as
provided to the Federal Election Commission. As I read the underlying
bill which we are debating, section 306, ``Authority to Seek an
Injunction,'' basically, what this section does is give to the
Government, the Government of the United States, the right to step in
and, prior to the issuance of speech, restrain it. It gives the
Government the authority to engage in prior restraint of political
speech by stepping in and getting a temporary injunction. This is but
one of a number of clearly unconstitutional measures granted to the
Government by this bill.
In addition, obviously, if this bill were somehow to pass
constitutional muster, which is extremely unlikely, the Federal
Election Commission, which today has great difficulty in auditing the
races of the candidates running for the one race in America at the
Federal level where we have, arguably, spending limits--it takes 5, 6
years to audit those few races that they have to audit--it is just, I
think, reasonable to ask the question: How big would the Federal
Election Commission be if it had to regulate the speech of 535
additional races as well as engage in the injunctive relief powers
apparently given to it by the bill, as well as whatever additional
regulatory authority it might be able to assert over independent
expenditures?
In short, I think it is reasonable to assume, Mr. President, that we
would have an FEC the size of the Veterans Administration. If there is
anything this Congress is about, it seems to this Senator it is not
building more large Federal bureaucracies.
We have been trying to balance the budget, to downsize the
Government, to restrain our appetite for not only spending but for
regulation, and, clearly, this is a regulatory power grab of enormous
proportions, I would say, Mr. President--of enormous proportions. It
could well be that is one of the reasons an awful lot of the groups in
this country this time, across the ideological spectrum, have decided
to get off of the sidelines and into the game and stand up for their
rights to participate in the political process.
This bill is not just about us, that is, the candidates for office;
it is also about all the groups organized that, under the first
amendment, have a constitutional right to participate in the political
process.
Let me just go down some of the letters that I have received on this
bill,
[[Page S6767]]
first from the Christian Coalition, a letter dated yesterday, June 24,
1996, in response to an effort to modify this bill, which was agreed
to, and we do have a modified version in the Chamber today.
The Christian Coalition says it strongly urges a no vote on cloture.
Contrary to the letter sent out by Senators McCain,
Feingold, and Thompson on June 19, the amended version of S.
1219 still contains the flawed provisions that seriously
threaten voter guides. The voter guide problem has NOT been
corrected.
According to the Christian Coalition.
The letter goes on:
The amended S. 1219 continues to place the First Amendment
right to educate the public on issues in serious jeopardy. It
redefines ``express advocacy'' so that for the first time
ever the Federal Elections Commission would regulate issue
advocacy by citizen groups.
The Supreme Court has repeatedly protected voter education
from Government regulation unless it expressly advocates the
election or defeat of a clearly identified candidate.
The letter goes on:
This interpretation ensures that the First Amendment right
of like-minded citizens to discuss issues is not infringed by
federal campaign law. But under S. 1219, this free speech
would be subjected to great uncertainty, and as it is likely
to be interpreted by the FEC, possible illegality. S. 1219
could effectively cripple the Christian Coalition's voter
education activities, including the distribution of voter
guides.
I will not read further from that letter, but I ask unanimous consent
the entire letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Christian Coalition,
Washington, DC, June 24, 1996.
Vote No on Cloture on the McCain-Feingold Campaign Finance
Bill.
Dear Senator: Tomorrow the Senate will vote on whether to
invoke cloture on S. 1219, the McCain-Feingold campaign
finance bill. Christian Coalition strongly urges you to vote
NO on cloture. Contrary to the letter sent out by Senators
McCain, Feingold, and Thompson on June 19, the amended
version of S. 1219 still contains the flawed provisions that
seriously threaten voter guides. The voter guide problem has
NOT been corrected.
The amended S. 1219 continues to place the First Amendment
right to educate the public on the issues in serious
jeopardy. It redefines ``express advocacy'' so that for the
first time ever the Federal Elections Commission (FEC) would
regulate issue advocacy by citizens groups.
The Supreme Court has repeatedly protected voter education
from government regulation unless it ``expressly advocates''
the election or defeat of a clearly identified candidate.
This interpretation ensures that the First Amendment right of
like-minded citizens to discuss issues is not infringed by
federal campaign law. But under S. 1219, this free speech
would be subjected to great uncertainty, and as it is likely
to be interpreted by the FEC, possible illegality. S. 1219
could effectively cripple the Christian Coalition's voter
education activities, including the distribution of voter
guides.
Although the sponsors of this legislation have amended the
bill to exempt the distribution of elected officials' voting
records (vote ratings and congressional scorecards), the new
provision still threatens the distribution of candidates'
positions on the issues (voter guides).
This new definition of express advocacy is but just one of
the bill's many egregious provisions. Under subsection (a) of
Section 241, the expenditures made by a Christian Coalition
chapter leader for voter education could be considered
contributions to a candidate if that same chapter leader
happened to merely retain the same lawyer or accountant as
a candidate, even though the chapter leader did not
cooperate or consult with the candidate at all.
Section 211 is so broadly written that it could prevent a
Christian Coalition chapter leader from also holding a local
party position even though the two activities are separate
and not interrelated.
Section 306 would give the FEC the authority to seek
injunctions if it believes ``there is a substantial
likelihood that a violation . . . is about to occur.'' Such a
prior restraint of free speech is unconstitutional. It is
only justified in weighty cases such as national security
concerns, but should never be permitted to prevent core
political free speech. The free speech rights of citizen
organizations should not be infringed by the FEC at the
eleventh hour of an election.
The Christian Coalition does not have a political action
committee. However, as a free speech issue, we believe
citizens should be able to pool resources to form political
action committees under reasonable restrictions. We therefore
object to section 201.
On behalf of the members and supporters of the Christian
Coalition, we strongly urge you to vote on the side of the
First Amendment and free speech. Please vote NO on cloture.
Thank you for your attention to our concerns.
Sincerely,
Brian Lopina,
Director,
Governmental Affairs Office.
Mr. McCONNELL. In addition to that, the National Right to Life
Committee, in a letter dated June 22, says that it has ``* * * analyzed
the new substitute and finds that, to an even greater degree than the
original bill, it rides roughshod over the First Amendment.'' The
National Right to Life Committee also opposes this bill.
I will not read further from that letter, but I ask unanimous consent
the entire letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
National Right to
Life Committee, Inc.,
Washington, DC, June 22, 1996.
Re In opposition to McCain-Feingold substitute (S. 1219) to
regulate and restrict political speech.
Senator Mitch McConnell,
U.S. Senate,
Washington, DC.
Dear Senator McConnell: On June 18, we sent you a letter
expressing the strong opposition of the National Right to
Life Committee (NRLC) to the McCain-Feingold ``campaign
reform'' bill (S. 1219). Since then, the sponsors have
produced a new substitute amendment, on which the Senate will
conduct a cloture vote on Tuesday, June 25, at 2:15 p.m.
NRLC has analyzed the new substitute and finds that, to an
even greater degree than the original bill, it rides
roughshod over the First Amendment. Through multiple overt
and covert devices, the substitute attempts to suppress
advertisements, publications, and other forms of speech on
federal public policy issues, including but not limited to
speech that refers to candidates for federal office.
Therefore, NRLC again urges you to vote No on the motion to
invoke cloture on S. 1219, which will be scored as a key pro-
life vote for the 104th Congress.
The substitute bans PACs and therefore bans independent
expenditures--except for political parties and rich
individuals. [Sec. 201] This ban would prevent citizens of
ordinary financial means from effectively expressing their
political viewpoints.
If the PAC ban is declared unconstitutional, the substitute
contains ``backup'' provisions to suppress independent
expenditures by requiring advance notice of intended
expenditures--even though some of those expenditures will
never actually occur [Sec. 242(3)]--and by rewarding
candidates who are thought to be disadvantaged by independent
expenditures [Sec. 101].
In addition, the substitute [Sec. 241] says that an
independent expenditure can no longer be conducted at all by
anyone who ``has played a significant role in advising or
counseling the candidate's agent at any time on the
candidate's plans, projects, or needs relating to the
candidate's pursuit of nomination for election, or election,
to Federal office, in the same election cycle, including any
advice relating to the candidate's desision to seek Federal
office.'' [emphasis added] In other words, any person or
group that remarked to a potential candidate, ``We'd like
you to consider running for Congress,'' would thereby
trigger a ``gag rule'' under which any subsequent
independent expenditure on behalf of that candidate would
be illegal. Moreover, this clause could be triggered by
even one-sided communication from an interest group to an
incumbent, discussing (for example) public opinion in a
given state regarding a piece of pending legislation.
The substitute [Sec. 241(a)] seeks to broaden the
definition of ``express advocacy'' far beyond the definition
enunciated by the Supreme Court in Buckley v. Valeo (1976).
The bill would enact the ``taken-as-whole' test that has been
rejected by the federal courts on constitutional grounds.
Under this expansive definition, the bill would restrict the
distribution of issue-oriented material that does not, in
fact, urge the election or defeat of any candidate.
In a June 19 ``Dear Colleague'' letter Senators McCain,
Feingold, and Thompson said that they added a provision to
exempt ``voting guides'' from the bill's restrictions, but
the actual provision in the substitute is vastly narrower
than what is described in the ``Dear Colleague'' letter. The
purported ``exemption'' [see Sec. 241(a)] applies only to ``a
communication that is limited to providing information about
votes by elected officials on legislative matters.'' On its
face, this ostensible ``exemption'' does not apply to
information regarding the public policy positions of non-
incumbents, or to dissemination of any information on
candidates' positions obtained from press accounts, candidate
questionnaires, speeches, interviews, or a host of other
sources. Moreover, even the purported exemption for
information on ``votes'' is effectively meaningless because
of other provisions and definitions in the bill, such as the
definition of what constitutes a ``contribution'' to a
candidate (see below).
The substitute [Sec. 241(b)(3)] would restrict ads and
other forms of speech that contain no reference whatever to
an election or even to any candidate, by defining certain
speech on legislative issues as a contribution to a like-
minded candidate with whom there has been communication
regarding those issues. For example, if NRLC communicated
with a senator regarding the merits of a certain abortion-
related bill, which the senator
[[Page S6768]]
later voted for, and if NRLC later ran advertisements in that
senator's state discussing that bill, this could be regarded
as a ``contribution'' to the incumbent (even if the senator
is not mentioned in the ad), and therefore subject to all of
the other restrictions and penalty clauses in the bill. The
costs of non-partisan voter guides that contain information
obtained from candidate questionnaires or other
communications with an incumbent or a challenger could also
be regarded as ``contributions'' under this provision.
The substitute [Sec. 306] explicitly authorizes the Federal
Elections Commission, if it believes ``there is a substantial
likelihood that a violation of this Act is occurring or is
about to occur,'' to obtain a temporary restraining order or
temporary injunction to prevent publication, distribution, or
broadcast of material that the FEC believes to be outside the
bounds of the types of political speech that would be
permitted under the law. This authorization for prior
restraint of speech violates the First Amendment.
The overall effect of the bill would be to greatly enhance
the already formidable power of media elites and of very
wealthy individuals to ``set the agenda'' for public
political discourse--at the expense of the ability of
ordinary citizens to make their voices heard in the political
process.
Therefore, the National Right to Life Committee urges you
to vote No on cloture on S. 1219. Because S. 1219's
restrictions on independent expenditures and voter education
activities would ``gag'' the pro-life movement from
effectively raising right-to-life issues in the political
realm, NRLC will ``score'' this vote as a key pro-life vote
for the 104th Congress.
Thank you for your consideration of NRLC's concerns
regarding this legislation.
Sincerely,
David N. O'Steen, Ph.D.,
Executive Director.
Douglas Johnson,
Legislative Director.
Carol Long,
Director, NRL-PAC.
Mr. McCONNELL. Interestingly enough, a group with which I have not
frequently been allied, and not many Members of this side of the aisle
have been allied, the National Education Association, sent a letter to
me dated yesterday, June 24, in which the NEA stated it opposed this
bill and called upon all Senators to vote against cloture. The NEA
pointed out, in referring to the ban on political action committees,
that ``The average contribution of NEA members who contribute to NEA-
PAC is under $6.'' So, their question is, How in the world is that bad
for the political process. So they, too, oppose this legislation and
urge a vote against cloture.
I will not read further from that letter, but I ask unanimous consent
the entire letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
National Education Association,
Washington, DC, June 24, 1996.
U.S. Senate,
Washington, DC.
Dear Senator: The National Education Association (NEA)
opposes S. 1219, the Senate Campaign Finance Reform Act of
1996, sponsored by Senators John McCain (R-AZ) and Russell
Feingold (D-WI). This measure would hamper the ability of
citizens to participate in the political process in a
meaningful way and limit the ability of organizations to make
their voices heard in an open, democratic process.
Political action committees have encouraged millions of
Americans to become involved in the political system, many
for the first time. Many Americans are able to make small
political contributions that serve as entree into greater
political participation. Individuals are more likely to work
for a candidate or issue when they have contributed money,
and they are more inclined to make a contribution when they
know it will make a difference in the outcome.
Political action committees stimulate small, individual
donations. The average contribution of NEA members who
contribute to NEA-PAC is under $6. These small contributions
from middle-income citizens help counterbalance the ability
of wealthy individuals to influence policymakers. Eliminating
political action committees would not reduce the importance
of money in politics. It would reduce the importance of
working people in politics.
Political action committees also play an important role in
communicating with members of organizations about issues that
affect them. NEA would resist any effort to constrain the
ability of the Association--or any other organization--to
communicate with members and candidates about issues
affecting children, public education, and education
employees.
NEA strongly supports campaign finance reform that
encourages participation and requires full disclosure of all
sources of political financing. Moreover, we support partial
public financing of election campaigns as a means of leveling
the playing field for challengers and incumbents. S. 1219
would weaken efforts to increase voter participation, limit
the involvement of low- and middle-income citizens in the
political process, and discourage efforts to educate and
engage the electorate. We urge you to oppose cloture on S.
1219, and should the Senate vote on the measure, to oppose it
and its substitute.
Sincerely,
Mary Elizabeth Teasley,
Director of Government Relations.
Mr. McCONNELL. The National Rifle Association, in a letter dated
yesterday, said:
We have examined the draft text of that possible substitute
[the bill that is actually before us today] and our
opposition . . . is not only unabated--it is, if anything,
stronger than before.
So the National Rifle Association also urges a vote against cloture
because they believe it adversely affects their ability to participate
in the political process.
I will not read further from that letter, but I ask unanimous consent
the entire letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
National Rifle Association
of America,
Fairfax, VA, June 24, 1996.
Hon. Mitch McConnell,
Russell Senate Office Building,
Washington, DC.
Dear Senator McConnell: We understand that an amendment in
the nature of a substitute may be offered during this week's
debate on S. 1219, the Senate campaign finance bill. As you
know, we have repeatedly expressed our opposition to S. 1219,
as we believe it unjustifiably and unconstitutionally
restricts the First Amendment right of organizations to
communicate with their members and the general public in the
political process.
We have examined the draft text of that possible substitute
amendment and our opposition to S. 1219 is not only
unabated--it is, if anything, stronger than before. The ban
on activities of political action committees remains in the
substitute, and would have a devastating effect on the
ability of ordinary citizens such as our members to act
jointly in support of candidates.
Additionally, the new proposed reporting requirements for
independent expenditures, and the provisions intended to
dilute the effect of such expenditures, would have a chilling
impact on the effectiveness of such communications. Coupled
with the continuing effort to broadly redefine ``express
advocacy,'' Sections 241 and 242 represent one of the
broadest attacks on free speech rights seen in years,
affecting not only electoral but other legislative
communications. Giving the Federal Election Commission a
power to engage in prior restraint makes the attack even more
serious.
We appreciate the support for the right to free speech
which you've shown in your opposition to S. 1219, and we urge
you to continue your work on this very important issue. If
there is anything we can do to be of assistance to you,
please don't hesitate to call.
Sincerely,
Tanya K. Metaksa,
Executive Director.
Mr. McCONNELL. Also, obviously the National Association of Business
PAC's, NAB-PAC, which would essentially be put out of business and lose
their ability to participate in the political process, opposes the
bill.
The American Conservative Union and the Conservative Victory Fund
oppose it as well. I will not read from those letters, but I ask
unanimous consent the letters be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
The American
Conservative Union,
Alexandria, VA, June 25, 1996.
Hon. Mitch McConnell,
Russell Senate Office Building,
Washington, DC.
Dear Senator McConnell: On behalf of the one million
members and supporters of the American Conservative Union, I
urge you to oppose S. 1219, the McCain-Feingold campaign
finance reform act.
As a party to the seminal Buckley v. Valeo decision, ACU
has had a long-standing interest in our nation's campaign
finance system. Over the years, we have worked with many
Members of Congress on both sides of the aisle to try to
reform the system in a manner consistent with constitutional
guarantees of free speech--even as we have opposed efforts to
change the system in a manner which abridges those freedoms.
McCain-Feingold does just that. Its fundamental reliance on
spending limits--whether ``voluntary'' or otherwise--is
merely the worst of its many wrong-headed provisions. The
problem with our current system is not that too much money is
raised and spent; as countless studies have shown, we spend
as a nation far more to advertise products such as soft
drinks and potato chips in a given year than we do on all
campaign spending combined. Do you really want to vote for
spending limits and in effect tell your constituents that as
far as you're concerned, their decision over which soft drink
[[Page S6769]]
to purchase is more important than which leaders to choose?
Rather, the problem in our current system of campaign
financing is that too much time is spent collecting the
amounts of money needed to compete effectively in a
competitive marketplace. Because of the contribution limits
enacted in the Federal Election Campaign Act, too many
candidates spend too much time chasing too few dollars--which
is what gives special interest groups a disproportionate
influence over legislators. If what you are really seeking is
a way to reduce the influence of the special interests,
simply lift the contribution limits.
But McCain-Feingold's reliance on spending limits is not
its only fault. Other wrong-headed provisions include
taxpayer subsidization of both print and broadcast
communications, and the bill's outright abolition of
political action committees. Public subsidies amount to
partial taxpayer financing of politicians--something
overwhelmingly opposed by the American people. Nor should
PACs be abolished; to do so would be an unconstitutional
infringement on the rights of free association and free
speech.
McCain-Feingold is a bad bill. Kill it and start over.
Yours sincerely,
David A. Keene,
Chairman.
____
Conservative Victory Fund,
Washington, DC, April 2, 1996.
House of Representatives,
Washington, DC.
Dear Congressman: I want to bring to your attention a bill
that would bring irreparable damage to the political process.
Congresswoman Linda Smith has introduced HR 2566 which bans
contributions from political action committees to individuals
running for Congress. I'm deeply concerned about this.
In 1976, the Supreme Court ruled in Buckley v. Valeo that
campaign finance restrictions burdened First Amendment
rights. The only purpose recognized by the Supreme Court to
justify restrictions on PAC contributions is the prevention
of real or apparent corruption.
Most of the arguments used for additional limits on
political contributions from political action committees do
not stand up under scrutiny. Originally, the goal of campaign
finance reform was to reduce the influence of money, to open
up the political system, and to lower the cost of campaigns.
Since the 1974 amendments to the Federal Election Campaign
Act, which were done in the name of ``campaign finance
reform'', spending has risen sharply and incumbents have
increased both their reelection rate and the rate at which
they outspend their challengers.
As you know when you first ran for Congress, money is of
much greater value to open-seat candidates or challengers
than to incumbents. Studies show that added incumbent
spending is likely to have less effect on vote totals than
the challenger's added spending. Limits on political
contributions hamper challengers from getting their voice
heard while incumbents have significant advantages in name
recognition. Campaign finance laws lock into place the
advantages of incumbency and disproportionately harm
challengers.
We oppose HR 2566 and any other such bills. The First
Amendment is based on the belief that political speech is too
important to be regulated by the government. The Conservative
Victory Fund has helped you and hundreds of other
conservatives since its creation in 1969. HR 2566 would
eliminate the Conservative Victory Fund.
Sincerely,
Ronald W. Pearson,
Executive Director.
Mr. McCONNELL. So there are a number of groups who, in the past, have
largely not been heard from during these debates who have decided to
take a position, to get interested, and to express their views. This
is, of course, something we greatly welcome since--the point I would
like to make--obviously this bill not only affects candidates for
office, it affects everybody's ability to participate in the political
system. These groups do not like our effort to push them out of the
process. They do not feel that their involvement in politics is a
harmful thing. They think it is protected by the first amendment, and I
think they are right.
Also, just in closing, I see the Senator from Utah is ready to take a
few moments or more, if he would like. One of my biggest adversaries on
this issue, over the last decade, has been my hometown newspaper, the
Louisville Courier-Journal, which is the largest newspaper in our
State. I was amazed to pick up the paper this morning and read an
editorial in which they even think this is a bad bill. They even think
this is a bad bill. This is the most liberal newspaper in Kentucky. I
was astonished. Obviously, it made my day.
I would like to read a couple of comments. They are predicting the
cloture will not be invoked. They say, ``This outcome would be more
regrettable if the bill were better.'' They go on to say:
[Most] . . . of the rest of the package would be a step
back from real reform, while making the election finance
regulatory effort more complex and of less service to the
public.
Further, they say:
The abolition of those endlessly maligned PAC's would make
special interest money harder to trace while denying small
givers a chance to participate. A limit on out-of-state
contributions sounds good, but it could cut two ways. Indeed,
it would probably be more damaging to candidates who
challenge the local powers-that-be than one who thrives on
special interest support. Anyway, both provisions are surely
unconstitutional.
They are right about that.
As for a scheme to lure candidates to limit spending by
offering them free TV time contributed by the networks, it's
simply wrong to foist the cost of cleaner government on a
handful of businesses--and their advertisers, stockholders
and viewers. If there's a cost to election reform, it should
be borne by all taxpayers.
It is a curious ally but I am proud to have them on board.
Mr. President, I ask unanimous consent that other letters of
opposition in addition to those I referred to a few moments ago, as
well as the editorial of today in the Louisville Courier-Journal, be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Reform's Tired Refrain
As the U.S. Senate convenes today for yet another vote on
election finance ``reform,'' the setting is all too familiar.
The measure is backed by liberal and conservative members
of Congress--including Republicans who, in response to public
disgust with incumbent Democrats, promised to change the
money system. Good government and citizens groups complain--
legitimately--that the national legislature is awash in vast
sums of money given by favor seekers.
The likely result? That's expected to be a rerun, too.
Barring unexpected strength among the reformers, a filibuster
organized by Mitch McConnell will halt Senate action. In any
event, the House probably won't find time to act this year.
This outcome would be more regrettable if the bill were
better. Sadly, it has only one good provision--an end to the
``soft money'' scam that allows corporations and labor unions
to give political parties millions of dollars, purportedly
for vague ``party-building'' activities. If this reform alone
survives, Congress could claim some progress.
But much of the rest of the package would be a step back
from real reform, while making the election finance
regulatory effort more complex and of less service to the
public.
The abolition of those endlessly maligned PACs would make
special interest money harder to trace while denying small
givers a chance to participate. A limit on out-of-state
contributions sounds good, but it could cut two ways. Indeed,
it would probably be more damaging to a candidate who
challenges the local powers-that-be than to one who thrives
on special interest support. Anyway, both provisions are
surely unconstitutional.
As for a scheme to lure candidates to limit spending by
offering them free TV time contributed by the networks, it's
simply wrong to foist the cost of cleaner government on a
handful of businesses--and viewers. If there's a cost to
election reform, it should be borne by all taxpayers.
It may be, indeed, that Congress is incapable of devising
workable change. And that may matter less and less.
The good news is that Kentucky and other states are
experimenting with new approaches to paying for campaigns. To
the extent that states are also developing solutions to
welfare and other national problems--a positive trend in our
view--a national political establishment wallowing in dollars
showered on it by Philip Morris, RJR Nabisco and others
becomes increasingly irrelevant.
____
National Rifle Association
of America,
Fairfax, VA, June 24, 1996.
Dear Senator: We understand that an amendment in the nature
of a substitute may be offered during this week's debate on
S. 1219, the Senate campaign finance bill. As you know, we
have repeatedly expressed our opposition to S. 1219, as we
believe it unjustifiably and unconstitutionally restricts the
First Amendment right of organizations to communicate with
their members and the general public in the political
process.
We have examined the draft text of that possible substitute
amendment and our opposition to S. 1219 is not only
unabated--it is, if anything, stronger than before. The ban
on activities of political action committees remains in the
substitute, and would have a devastating effect on the
ability of ordinary citizens such as our members to act
jointly in support of candidates.
Additionally, the new proposed reporting requirements for
independent expenditures, and the provisions intended to
dilute the effect of such expenditures, would have a chilling
impact on the effectiveness of such communications. Coupled
with the continuing effort to broadly redefine ``express
advocacy,'' Sections 241 and 242 represent one of the
broadest attacks on free speech rights
[[Page S6770]]
seen in years, affecting not only electoral but other
legislative communications. Giving the Federal Election
Commission a power to engage in prior restraint makes the
attack even more serious.
We urge you to oppose S. 1219's attack on the right of free
political speech. If there is anything we can do to be of
assistance to you, please don't hesitate to call.
Sincerely,
Tanya K. Metaksa,
Executive Director.
____
Chamber of Commerce of the United States of America,
Washington, DC, June 24, 1996.
Members of the U.S. Senate: The Senate will soon be asked
to consider S. 1219, the ``Senate Campaign Finance Reform Act
of 1995.'' The United States Chamber of Commerce Federation
of 215,000 businesses, 3,000 state and local chambers of
commerce, 1,200 trade and professional associations, and 76
American Chambers of Commerce abroad urges your opposition to
this legislation, which would restrict the participation by
Political Action Committees (PACs) and individuals in the
political process.
The U.S. Chamber of Commerce has long promoted individual
freedom and broad-scale participation by citizens in the
election of our public officeholders. In this regard, we
oppose efforts to eliminate or restrict the involvement of
PACs in our political process. We believe that PACs are a
critical tool by which individuals voluntarily participate in
support of their collective belief.
In addition, there are other proposals contained in the
bill that would greatly inhibit long-standing protected
freedoms. These attempts to further limit the ability of
individuals or collective political participation should be
defeated as an infringement on the basic principle of free
speech. Further, a public mandate on the private sector to
subsidize the election of public officials without regard to
support for a candidate also must be defeated.
We believe that an indispensable element of our
constitutional form of government is the continued power of
the people to control, through the elective process, those
who represent them in the legislative and executive branches
of government. Any attempt to reform the system through
eliminating PACs or further restricting contribution levels
has the consequence of unreasonably restricting the rights of
American citizens. Rather, we support a system that relies on
accountability through public disclosure, voluntary
participation without government mandates, and confidence in
the electorate to make sound decisions through the free
exchange of ideas and information.
Therefore, we urge your opposition to S. 1219, as well as
your opposition to invoking cloture on such legislation,
which seeks to restrict the participation of individuals or
PACS in the political process.
Sincerely,
R. Bruce Josten.
____
National Rifle Association
of America,
Fairfax, VA, June 19, 1996.
Dear Senator: It is our understanding that a cloture vote
has been scheduled for June 25, 1996 on S. 1219, the Senate
Campaign Finance Reform Act. We believe this will be the most
critical vote that you will cast this year in protecting the
constitutional rights of your constituents. Speaking for the
more than three million members of the National Rifle
Association (NRA), we strongly urge you to vote against
bringing this measure, or this issue, before the Senate in
any form. S. 1219 is a misguided attempt to limit
participation in the political process, and represents a
direct challenge to the right of free speech which we all
should cherish and strive to protect.
Those who support S. 1219 have suggested that it will
enlarge or enhance participation in the political process. We
believe those who promote this view are either misinformed or
unaware of the consequences of this legislation. In fact, S.
1219 will not level the political playing field, but will
rather increase opporunities for political manipulation by
those who have access to national media outlets, at the
expense of those who do not.
The main focus of the NRA is in protecting the right to
keep and bear arms. However, we believe that our system of
government depends on preserving all of our Constitutional
protections. Associations like the NRA facilitate
participation by concerned citizens who otherwise would not
have the resources to speak out on a national level. By
removing their ability to offer their views in independent
forums by combining their individual resources you would, for
all intents and purposes, eliminate their First Amendment
rights.
As we have noted in previous correspondence (letters dated
01/25/96 and 05/7/96), in the Buckley v. Valeo decision of
1976, the Supreme Court stated that ``* * * legislative
restriction on advocacy of the election or defeat of
political candidates are wholly at odds with the guarantees
of the First Amendment.'' S. 1219 contains the same kind of
legislative restrictions, and we believe therefore that it is
clearly unconstitutional.
Again, I urge you to reject S. 1219, and all other ill-
conceived attempts at limiting free speech and participation
in the political process.
Sincerely,
Tanya K. Metaksa,
Executive Director.
____
National Right to
Life Committee, Inc.,
Washington, DC, June 18, 1996.
Dear Senator: We understand that the Senate is likely to
vote on or about June 25 on whether to invoke cloture on the
McCain-Feingold bill (S. 1219), which would make sweeping
changes in federal election laws.
The National Right to Life Committee (NRLC) is strongly
opposed to S. 1219. In banning PACs, the bill also bans
independent expenditures--except by wealthy individuals. This
provision would flagrantly violate the First Amendment right
of individual citizens who share a common viewpoint on an
important public policy issue, such as abortion, to pool
their modest financial resources in order to participate
effectively in the democratic process. The average donation
to NRL-PAC is $31.
The bill would also place severe new limitations even on
issue-oriented voter education materials that do not urge the
election or defeat of any candidate. This, too, violates the
First Amendment. The overall effect of S. 1219 would be to
greatly enhance the already formidable power of media elites
and of very wealthy individuals to ``set the agenda'' for
public political discourse--at the expense of the ability of
ordinary citizens to make their voices heard in the political
process.
Therefore, the National Right to Life Committee urges you
to vote No on cloture on S. 1219. Because S. 1219's
restrictions on independent expenditures and voter education
activities would ``gag'' the pro-life movement from
effectively raising right-to-life issues in the political
realm, NRLC will ``score'' this vote as a key pro-life vote
for the 104th Congress.
A vote in opposition to S. 1219 is consistent with the
position taken by the U.S. Supreme Court in its 1976 Buckley
v. Valeo decision: ``In the free society ordained by our
Constitution, it is not the government, but the people--
individually as citizens and candidates and collectively as
associations and political committees--who must retain
control over the quantity and range of debate on public
issues in a political campaign.''
Moreover, the overwhelming majority of Americans oppose the
concept embodied in S. 1219. The Wirthlin Worldwide firm
conducted a nationwide poll on May 28-30, which included this
question:
``Do you believe that it should be legal for individuals
and groups to form political action committees to express
their opinions about elements and candidates?''
Yes, should be legal: 83%.
No, should not be legal: 13%.
Thank you for your consideration of NRLC's concerns
regarding this legislation.
Sincerely,
Douglas Johnson,
Legislative Director.
Carol Long,
Director, NRL-PAC.
____
National Right to
Life Committee, Inc.,
Washington, DC, June 7, 1996.
Dear Member of Congress: The House Oversight Committee will
soon mark up some form of ``campaign finance reform''
legislation. The committee will consider, among other things,
proposals to either (1) ban PACs and thereby also ban
independent expenditures, or (2) not ban PACs, but place new
restrictions on independent expenditures.
National Right to Life Committee (NRLC) is strongly opposed
to any legislation that would further restrict independent
expenditures, whether by banning PACs or in any other
fashion. Such proposals would infringe on the First Amendment
rights of individual citizens, sharing a common viewpoint on
an important public policy issue, to pool their modest
financial resources in order to participate effectively in
the democratic process.
As you review various ``campaign reform'' proposals during
the weeks ahead, please keep in mind the words of the Supreme
Court in its 1976 Buckley v. Valeo decision:
``In the free society ordained by our Constitution, it is
not the government, but the people--individually as citizens
and candidates and collectively as associations and political
committees--who must retain control over the quantity and
range of debate on public issues in a political campaign.''
The Wirthlin Group conducted a nationwide poll on May 28-
30, which included this question:
``Do you believe that it should be legal for individuals
and groups to form political action committees to express
their opinions about elections and candidates?''
Yes, should be legal, 83%.
No, should not be legal, 13%.
Thank you for your consideration of NRLC's concerns
regarding this legislation.
Sincerely,
Douglas Johnson,
Legislative Director.
Carol Long,
Director, NRL-PAC.
____
National Right to
Life Committee, Inc.,
April 30, 1996.
Dear Senator: You are being pressured by so-called ``public
interest'' groups to pass campaign finance reform measures
under the guise of ``cleaning up the system.'' More
specifically, you are being asked to support a floor vote on
S. 1219, the McCain-Feingold-Wellstone bill.
[[Page S6771]]
We urge you to oppose S. 1219. Attorneys that span the
ideological spectrum agree that S. 1219 would destroy free
speech and grievously injure both the right to association
and the right to petition government.
It is a myth that the American public is clamoring for
campaign finance reform. In a recent poll conducted by the
Tarrance Group, only one person, out of 1000, volunteered
campaign finance reform as the biggest problem facing the
country. When the poll respondents were given a list of 10
problems and asked to rank them, campaign finance reform came
in last, with only 1% selecting that topic.
Under S. 1219, an individual would be able to make
independent expenditures, but because of the ban on political
action committees, a group of individuals would be forbidden
to organize, pool their resources, and coordinate their
activities. This would leave the political process open to
very wealthy individuals and the media, but would prohibit
the vast majority of citizens from effectively making their
voices heard.
S. 1219 defines ``express advocacy'' so broadly as to sweep
in ``issue advocacy.'' Thus, citizens' groups would, in
effect, be prohibited from publishing voter guides or giving
candidates' voting records. Several federal courts have
already struck down attempts by the Federal Election
Commission to do the same thing.
Free speech is essential to democracy. It is important not
only for the press and wealthy individuals, but also for
ordinary citizens. We urge you to take any steps necessary,
including opposing cloture, to prevent S. 1219 or any similar
measure that infringes upon the First Amendment rights of
citizens from being approved by the Senate.
We also oppose the appointment of any unelected commission
that has the authority to issue a final report on campaign
finance reform that would not be subject to the regular
amendment process on the Senate floor.
Christian Coalition.
____
National Right to
Life Committee, Inc.,
Washington, DC, November 8, 1995.
Senator Mitch McConnell,
Senate Office Building, Washington, DC.
Dear Senator McConnell: Campaign finance ``reform'' that
destroys the freedom of speech is not reform.
Current measures under consideration in the Senate would
largely prevent citizen involvement in the political process.
We realize there is a lot of pressure from the press to
``reform'' the election process. However, limiting free
speech for citizens, while it may please some elements in the
press because it greatly increases their own power, is
neither politically wise nor constitutional.
We have the three major objections to S. 1219, the ``Senate
Campaign Finance Reform Act of 1995'' as sponsored by
Senators McCain and Feingold, and therefore will vigorously
oppose this measure.
1. S. 1219 would almost eliminate involvement in the political process
for ordinary citizens who are not independently wealthy
S. 1219 would permit only individuals, or political
committees organized by candidates and political parties, to
solicit contributions or make expenditures ``for the purpose
of influencing an election for Federal office.''
Many political action committees (PAC), such as the
National Right to Life PAC, exist because their members want
to work together to elect candidates who share their views
and beliefs. Under the current system, citizens are free to
coordinate activities through PACs in order to discuss
issues, express their views on positions taken by candidates,
and urge voters to support or oppose certain candidates. This
dialogue is very important to the political process and very
important to the American system.
Under the Act, an individual can make independent
expenditures, but a group of individuals cannot organize and
coordinate their activities. This opens the political process
to wealthy individuals, but prohibits the vast majority of
citizens from pooling resources to make their voices heard.
If citizen groups and their political action committees are
eliminated, the only entities left that are freely able to
discuss candidates and the issues, except the candidates
themselves, are a few wealthy individuals and the news media.
That is not the intention of the First Amendment.
Another problem for you to consider is that many in the
media have a bias against pro-life and pro-family candidates.
If the media is allowed free speech and citizens groups are
not, that will be a real disadvantage for pro-life and pro-
family candidates.
2. the new definition of ``express advocacy'' is unconstitutional and
represses the free speech of citizens
Section 251 of S. 1219 attempts to ``clarify'' Independent
Expenditures, However, it redefines ``express advocacy'' to
now include protected ``issue advocacy.''. This extremely
broad new definition of express advocacy would sweep in
protected issue advocacy, such as voter guides which state
the positions candidates have taken on issues or give
candidates' voting records.
The new definition goes far beyond what the United States
Supreme Court said was permissible to regulate as
electioneering in the case of Buckley v. Valeo, 424 U.S. 1
(1976). In Buckley, the Supreme Court held that, in order to
protect issue advocacy (which is protected by the First
Amendment), government may only regulate election activity
where there are explicit words advocating the election or
defeat of a clearly identified candidate.
This new definition would expand the umbrella of ``express
advocacy'' so broadly that citizen groups other than PACs
would also be effectively prohibited from informing the
public about candidates' positions on issues as well as
voting records. This curtailment of citizens' freedom of
speech would not affect the major media whose political power
would be vastly enhanced, since one balancing force currently
in the public forum would be eliminated.
The Supreme Court would, again likely find this new
definition of ``express advocacy'' unconstitutional, and
voters would find it exceedingly repressive.
3. s. 1219 authorizes unconstitutional prior restraint
Section 306 of the Act authorizes an injunction where there
is a ``substantial likelihood that a violation . . . is about
to occur.'' The FEC would be authorized to seek injunctions
against expenditures which, in the FEC's expansive view,
could influence an election. Such a preemptive action against
the freedom of speech is unconstitutional except in the case
of national security or similarly weighty situations. Prior
restraint should never be allowed in connection with core
political speech. There simply is no governmental interest of
sufficient magnitude to justify the government stopping
persons from speaking.
This country's open system of representative democracy is
the envy of the world. If you try to ``fix'' it by limiting
people's voices, then you head towards totalitarianism.
Whatever its flaws, democracy is the best system the world
has seen to date.
Free speech is essential to democracy. It is important not
only for the press and wealthy individuals, but also for
ordinary citizens. The only way ordinary citizens can have
any meaningful opportunity to exercise their right of free
political speech in modern America is if they are allowed to
pool their funds in PACs. For the record, the average
donation from National Right to Life members to its PAC is
$31.
The status quo on speech by membership organizations and
independent expenditures by political action committees
works. Disclosure laws governing PACs already provide
detailed information on where the money came from and how it
was spent. The current process allows citizens to be involved
in their government. That it how it should be.
We are enclosing a copy of the legal analysis of S. 1219 by
James Bopp, Jr., General Counsel for NRLC. National Right to
Life urges you to protect the constitutional rights of your
constituents and oppose S. 1219.
Respectfully,
Wanda Franz, Ph.D.,
President.
David N. O'Steen, Ph.D.,
Executive Director.
Carol Long,
PAC Director.
Mr. McCONNELL. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 75 minutes.
Mr. McCONNELL. Mr. President, I yield to the Senator from Utah, 10
minutes.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. BENNETT. Mr. President, I spoke at some length yesterday in a
philosophical fashion, going back to the Founding Fathers and the
Federalist Papers, hoping to turn the debate into that kind of an
analysis of our basic freedoms and our political approach. Today I want
to get very down and dirty, as they say; very practical. It has been my
observation throughout this entire controversy, and it goes back to the
last Congress as well as this one, that the efforts at campaign finance
reform really constitute an incumbent protection activity. The Senator
from Arizona, my friend, Senator McCain, said that if the challengers
were voting here they would all vote for this bill because he showed
the chart that showed most of the PAC money went to incumbents.
I have been a challenger. The memory is still fresh in my mind, even
though I am now an incumbent. And I can assure all who do not know
anything about the political process, that an incumbent comes into a
race with incredible advantages. Let me give an example. I did not run
against an incumbent Senator but I ran against an incumbent
Congressman. These are the advantages he brought to the race.
He had a staff, paid for by the taxpayers, that was available to
research every issue, provide him with a paper on every issue, and in
the course of press releases give him the press support that he
required.
He held a press conference late in the campaign in which he attacked
me for a wide variety of things. The press person who scheduled that
press conference, who wrote the press release,
[[Page S6772]]
and who handled all press inquiries relating to it was paid by the
taxpayer because he was on the Congressman's staff. I had to have
people there to protect my interests. They were all paid for out of
campaign funds because I had no congressional staff. I am not saying
that he broke the law. I am not saying that he did anything improper. I
am just outlining this is the way it is.
He had name recognition going back to 8 years of service in the House
of Representatives. I thought I had some name recognition because my
father had served in the Senate. I figured everybody would remember the
name ``Bennett'' favorably in connection with the Senate. Boy, did I
find out differently. In the first poll that was taken, I was at 3
percent, with a 4-percent margin of error. I could have been minus 1.
How do I counteract that 8 years of name recognition that he has built
up? I had to raise the money. How did I pay for the people who were
there to counteract the people that he had on his congressionally
supported staff? I had to raise the money.
Is it a fair fight when you say the incumbent is at level x and the
challenger must also be at level x, when the incumbent has all of these
advantages that are worth money that the challenger has to raise money
in order to produce? When you say, let us get a fair fight and let us
do it by saying that the challenger is unable to raise money to take
care of the things that the incumbent does not have to raise money for,
you are automatically creating a circumstance in favor of the
incumbent.
Some political observers have said to me, ``Why are you opposed to
this now that you are an incumbent? We can understand that you were
opposed to campaign reform while you were a challenger because as a
challenger you were at a disadvantage in the face of campaign reform.
But now that you are an incumbent, and particularly now that your party
has a majority of the incumbents, why isn't your party in favor of an
incumbent protection act that will put all of these disadvantages on
the backs of the challenger?''
Well, I go back to my statement yesterday. I have philosophical
challenges with these attempts to do that which I consider would
produce damage to our basic philosophical underpinnings in this
country. I did not quote the Federalist Papers just to prove that I had
read them. I went through that process to demonstrate that I have a
philosophical objection to what it is we are trying to do here, even
though, should this bill pass, I would be benefited as an incumbent. I
am convinced, if this bill were to pass, that I would be benefited as
an incumbent, that I would be in a circumstance where it would be
impossible for anybody to challenge me. But I am willing to run the
risk of having them challenge me because that is the American pattern
and that is what is in the Constitution that all of us have sworn to
uphold and defend here in this body.
So, Mr. President, I am not going to vote for cloture. I am not going
to vote to support a bill that is an incumbent protection act. I am
going to say we will all stand exposed to the challenge of challengers
who have the energy and the message necessary to raise the money to
challenge us and not hide behind limits that say that we can use the
advantages of our offices and our challengers cannot. I believe it is
as simple as that. I believe that honest fairness says we will oppose
this bill, and, therefore, we oppose cloture on the bill. I yield the
floor.
The PRESIDING OFFICER. Who seeks recognition?
Mr. FEINGOLD. How much time do the proponents have remaining?
The PRESIDING OFFICER. The proponents have 67 minutes 15 seconds.
Mr. FEINGOLD. I yield 10 minutes to the distinguished Senator from
Florida, who has been one of the original supporters of this
legislation and has helped us all through the difficult process of
trying to get it up for a vote. I thank him very much.
Mr. WELLSTONE. Will the Senator yield me 5 seconds?
Mr. GRAHAM. I yield the Senator 5 seconds.
Mr. WELLSTONE. I thank the Senator.
Privilege Of The Floor
Mr. WELLSTONE. Mr. President, I ask unanimous consent that David
Hlavac, who is interning with me, be allowed to be on the floor
throughout the duration of this bill.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. GRAHAM. Mr. President, I first will extend my commendation to
Senators Feingold and McCain and the others who have worked so hard to
craft what is truly a bipartisan proposal to deal with one of the
serious cancers in our American democratic system, and that is the way
in which we manage and finance campaigns for the Congress. This bill is
another example that, if we are going to do the public's will, it must
be done in a bipartisan spirit.
Mr. President, we have spent a lot of this year and last year talking
about the creative energy of the States, the desire to return greater
responsibility to the States for many of our most basic domestic
programs. We have acknowledged that the States, given that
responsibility, given their flexibility to respond to the specific
circumstances that they face, would unleash a new wave of innovation to
bring us creative solutions to some of our most vexatious problems.
Mr. President, I say that we can take some encouragement as to the
legitimacy of that position by looking at what States have done in the
area of campaign finance reform. States were faced with basically the
same problem that we are dealing with this morning--the problem of
campaign money run amok and the need to change campaign financing
mechanisms in order to restore public confidence.
The experience of my State of Florida, I believe, is instructive in
this regard. In 1991, the State legislature overhauled Florida's
campaign finance system. It instituted a $500 cap on individual
contributions. Prior to that it had been as much as $3,000. It provided
for public financing of campaigns. It instituted overall caps on
statewide races. It provided incentives to abide by the cap.
What has happened in the relatively brief period that Florida has had
these campaign finance reforms? In 1990, there was an incumbent
Governor running for reelection. That incumbent Governor spent
$10,670,000. Four years later, there was a different incumbent Governor
running for reelection. In that campaign he spent $7,480,000. I note
that the incumbent in 1990, who spent almost a third more, lost. The
incumbent in 1994, under the new standards, was reelected. Common Cause
of Florida attributes the decrease in campaign spending directly to
Florida's enactment of campaign finance reforms.
Mr. President, the States can control the terms and conditions of
elections for State officials. It is our responsibility to do likewise
for the Congress. I applaud the effort that is before us today. It is a
genuine, thoughtful response to a serious national problem. I do not
pretend that it is perfect. We have already heard on the floor several
persons who, like myself, will vote to invoke cloture and support this
bill, but who also are prepared to support modifications that we think
would perfect it.
For instance, I do not believe that political action committees are a
poisonous political evil that should be banned. But, Mr. President, if
accepting some restraints on political action committees is necessary
to achieve the bipartisan consensus for the passage of this sorely
needed legislation, I am prepared to vote to do so.
Mr. President, there are many infirmities in our current system which
have already been identified. Remedies have been prescribed. I wish to
focus on one of those infirmities. That is, that the enormous amount of
money in political campaigns has fundamentally changed the nature and
purpose of congressional campaigns.
What should be the purpose of a political campaign? In my opinion, it
should include at least two dual relationships. First, there should be
a duality of relationship in terms of education. Yes, the candidate is
trying to educate the public as to who he or she is, what he or she
stands for, what would be the objective of service in public office,
what they would try to accomplish. But there is an equally important
side of the education duality, and that is that the citizens are
influencing the candidate. A campaign should be a learning experience.
The campaign should better prepare the candidate to serve in public
office by
[[Page S6773]]
the experiences, the exposure, that the campaign will provide.
There is a second duality, and that is the development of a
democratic contract. The citizens should have some reasonable
expectation that if they vote for a particular candidate, the policies
that candidate has advocated will, in fact, form the basis of the
candidate's efforts once in office, and the public official should have
the right to expect that in office he would have the support of the
public, the mandate of the public to achieve those policies upon which
his or her campaign was predicated. These dualities, a duality of
education and a duality of the forming of a democratic contract, these
are essential elements of our system of representative democracy.
However, Mr. President, the excess of money in campaigns has changed
the nature and the purpose of the campaign. It has, in fact, allowed
candidates to hide from the voters rather than to use the campaign to
learn from and more effectively communicate with the public. Candidates
now move from the television studio to record 30-second sound bites,
often of a highly negative character, to the telephone to solicit
campaign contributions to pay for those 30-second sound bites. There is
little time left to interact on a personal level with the voter.
By providing for spending limits, this bill would direct voters from
the television studio back to the street to look for ways other than
money to appeal to voters, by interacting with them, discussing issues,
debating of the candidates, so that voters can make an accurate
assessment of who they wish to represent.
I personally, Mr. President, would like to see a requirement that one
who participates in the public assistance to a campaign, whether
Presidential candidates participating for direct-cash infusion or
congressional candidates who, under this legislation, would benefit by
preference in perks like postal and broadcast rates, that they would
commit themselves to participate in a stipulated number of public
appearances with their opponents. I believe that is the truest way in
which the public can form an opinion as to the qualities and
capabilities of the persons who seek to represent others.
Mr. President, providing for a voluntary system of spending limits,
while simultaneously requiring candidates to raise at least 60 percent
of campaign funds from their home State, are positive steps toward
bringing candidates and voters together. Passage of this bill would be
a positive step toward realizing the goal of our political process,
allowing the voter to truly understand, truly assess the candidate's
view, and thus to make an informed judgment, while simultaneously
helping to prevent politicians from becoming insulated and mitigate
voters' disaffection.
Mr. President, by passing this bill today, we can restore a
meaningful dialog between the voter and the candidate. By doing so, we
can all share in giving this country a great victory, and restoring the
public's faith in the political process. I urge this bill's passage.
The PRESIDING OFFICER. Who seeks recognition?
Mr. FEINGOLD. Mr. President, I yield up to 5 minutes to the Senator
from North Dakota.
Mr. DORGAN. Mr. President, I intend to vote for cloture today. I do
not do so believing this is a perfect bill. There are some provisions
in this measure I do not support. I do not support the complete
abolition of PAC's, for example. But I believe we ought to be debating
campaign finance reform. Therefore, I will vote for cloture to get a
campaign finance reform bill on the floor of the Senate so we can offer
amendments and see if we can perfect the bill in a way that will
represent the public interest.
In my judgment, the financing of political campaigns is spinning out
of control--more and more dollars in each campaign, more and more
wealthy candidates financing their own campaigns. Campaigns in America
have not so much become a competition of ideas--this is what campaigns
ought to be--but a 30-second ad war. Not so much by candidates, but by
the creators of the 30-second little ``bomb bursts'' that are put on
television to try and destroy other reputations. These hired guns
hardly serve the public interest, yet campaigns really have become a
competition of 30-second ads.
When I last ran for the U.S. Senate, I was much better known than my
opponent, so I made a novel proposal, which he did not accept,
unfortunately. I wish he would have. I said: I am better known than
you, but if we can agree to certain things, I think in many respects it
will even things up. Let neither of us do any advertising at all.
Neither of us will do any radio or television ads, no 30-second ads, no
ads of any kind. You and I will put our money together, and we will buy
an hour of prime time television each week for the 8 weeks prior to the
election, and each week we will show up without handlers, without
research notes, at a television studio with no monitor, and for an hour
in prime time, statewide on North Dakota television, you and I will
discuss the future. We will discuss whatever you want to discuss,
whatever I want to discuss, such as why we are seeking a seat in the
U.S. Senate, what kind of future we see for this country, what kind of
policies we think will make this a better country.
I thought, frankly, 8 hours of prime time television, statewide, with
both of us addressing each other and addressing why we were running for
the U.S. Senate, might have been the most novel campaign in the
country. My opponent chose not to accept that. Instead, we saw a
barrage of 30-second ads. I do not think it provided any illumination
for the North Dakota voters in that campaign. I think it would have
been a better campaign had we had 8 hours prime time, statewide
television, without handlers, to talk about what we thought was
important for the future of this country. We did not have that kind of
campaign.
So, the question for the Senate now is, what kind of campaign finance
reform would be useful in this country? There are wide disagreements
about how this ought to be addressed. For instance, I saved this
article, the headline of which quotes my friend Speaker Gingrich as
saying, ``Gingrich calls for more, not less, campaign cash.'' Speaker
Gingrich gave a speech downtown, and he fundamentally disagrees with me
that there is too much money in politics. He says there is not enough
money in politics; there ought to be more money in politics.
I think that if we can find a way--and this bill provides one
mechanism--to limit campaign spending and require full disclosure on
all contributions, at that point you will start ratcheting down the
cost of political campaigns in this country, and I think you will do
this country a public service.
Last weekend when I was at Monticello, the home of Thomas Jefferson,
I was reminded again of the work and words of this great American in
the early days of this country. It seems to me Tom Jefferson would view
what goes on in political campaigns in America today as a perversion of
democracy. Today's campaigns are not, as I said earlier, a competition
of ideas about how to make this a better country. They are much more a
30-second ad war that does not serve the public interest.
I intend to vote for cloture. I hope we will obtain cloture and have
this important piece of legislation on the floor, open for amendments.
I yield the floor.
Mr. FEINGOLD. Mr. President, I yield up to 15 minutes to Senator
Thompson of Tennessee, who has been one of the main authors of this
bill and has been key to making this a bipartisan reform effort. I
thank him for his good work on this bill.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.
Mr. THOMPSON. I thank the Senator. I thank the majority leader for
bringing this matter to the floor at this time. I thank my
distinguished colleagues, Senator McCain and Senator Feingold, for
their leadership on this bill. I am proud to be one of the original
cosponsors of this particular legislation.
Mr. President, after having listened to over a day of debate on this
issue, I think the question now could be simply put. Are we satisfied
with our current system of financing Federal campaigns in this country?
Do we think it is a good system? If we are not satisfied, are we
willing to at least take the first step--perhaps not a perfect step--
toward doing something about it?
[[Page S6774]]
I approach this from the standpoint of one who was recently a
challenger and who is now an incumbent running for reelection in 2
years, having gotten the unexpired term of the Vice President for a 2-
year term. I am now running as an incumbent for a full term. So I have
seen it from both sides.
I also approach it from the standpoint of one who made a commitment
to the people of Tennessee that I will try to change the system that we
have now working in Washington and that I was dissatisfied with the
process by which our legislation is enacted. But I think it is
fundamentally the business of the U.S. Congress to address how we elect
our public officials, how long they stay, and what their motivations
are when they get here. So I am delighted to be a part of this effort.
The system now--let us take a look at the system that we have now. I
believe I can be objective in describing it. Elections certainly cost
more and more and more. We see Senate campaigns now that cost $10, $20,
and $30 million. The combined expenditures in one Senate campaign were
over $40 million. We have a system where more and more time is taken by
Members of Congress, at a time when technology and all the demands of
modern campaigning require campaigns to cost more and more. More and
more, we, the Members of, supposedly, the world's greatest deliberative
body, wind up having no time to deliberate anymore because of the
fractured nature of our lives. For someone to run in a State such as
mine, I have calculated that now it would be about $15,000 a week that
I would have to raise, year in and year out, to run the kind of
campaigns that would be traditionally raised in a State such as mine.
Mr. President, that is not why I came to the U.S. Senate. We have a
system now where more and more of the perception is that contributions
are tied to legislation. Perhaps that was not a problem when the
amounts were smaller. But now we see larger and larger contributions,
usually soft money contributions, with regard to larger and larger
issues, millions of dollars being spent, billions of dollars being
decided by massive pieces of legislation in the U.S. Congress.
We have a system where it is no longer ideological. The money does
not flow to ideas. The money flows to power. Whoever is the incumbent
party likes the system. Whoever is not the incumbent party plans on
being the incumbent party. Democrats have killed this legislation for
years, and now that the Republicans are in power, we are trying to
return the favor. We have a system whereby, in individual cases, people
are drawing closer and closer relationships with individual pieces of
legislation and massive amounts of money that are being spent by the
people affected by the legislation.
We constantly see news stories, day in and day out. There is a strong
perception among the American people that any system that costs so much
money and any system that requires us to go to such great lengths to
get that money cannot be on the level. We see, day in and day out,
editorials across the country. Common Cause has compiled 261 editorials
from 161 newspapers and publications. What they say is not a pretty
picture. It is not that I necessarily agree with the analysis made of
these articles, but this is the perception among editorial writers
across the country--liberal papers and conservative papers. The most
conservative paper in my home State, in Tennessee, the Chattanooga Free
Press, a Republican paper, has one of the editorials contained in this
compilation. What they say, I think, is what is perceived by the
American people. They say that neither party wants to end the abuses.
One of the editorials says, ``In Congress, Money Still Talks.'' Another
says, ``New Year's Sale on Votes.'' Another says, ``Money Brings
Votes.'' Another says, ``Congressmen Admit Being Bought by
Contributions.'' Another says, ``Republican Reform; GOP Already Bought
Off.''
Mr. President, that hurts. The Chattanooga Free Press in Tennessee
says in its article--it entitles it, ``The Campaign Money Evil.''
Another article says, ``Getting What it Paid For,'' talking about
American industry. Another says, ``Feeding Frenzy on the Hill,''
talking about us and our fundraising activities. Another says, ``Buying
the Presidency.'' While we are not dealing with a Presidential
campaign, if I heard it correctly on the Brinkley show, now,
apparently, for $50,000 you can sleep in the Lincoln bed at the White
House. Another says, ``NRA Buys Recent House Votes.'' You can say
that----
Mr. McCAIN. Will the Senator yield?
Mr. THOMPSON. Yes.
Mr. McCAIN. That is $130,000. It is not as cheap as $50,000.
Mr. THOMPSON. Well, that certainly seems more reasonable. Another
says, ``Big Money Talks.'' Another says, ``Taste of Money Corrupts
Politics.'' This is from Texas. Another says, ``The Great `Unsecret' of
Politics.'' That is the relationship between contributions and votes.
Another says, ``Legal Bribery Still Controls Congress.'' I do not
believe that, but a lot of people believe that, and we have to ask
ourselves why. Another says, ``Campaigns up for Sale.''
Mr. President, how much more of this can we stand as an institution?
How can we go before the American people with the tough choices that we
are going to have to be leading on, convincing the people, with no
credibility? Ten percent of the people in this country have a great
deal of confidence in Congress. Twelve percent have a great deal of
confidence in the executive branch. Eighty percent of the people, at
least, favor major change here. We always want to be responsive to the
American people, until it comes to something that affects us and our
livelihoods--whether it is term limits, campaign finance reform, or
some other issue that affects us directly as politicians. Then we come
up with all kinds of excuses why it will not work.
We have a system where soft money, of course, has completely made a
sham of the reforms that were put in place in earlier years. We all
know that. It is a bipartisan problem. Soft money now is up 100
percent--a 100-percent increase--with hundreds of thousands in
contributions, in many cases that we see. So there has been a 100-
percent increase since the last election cycle.
Now, that is the system, Mr. President. I do not think it is a very
good one. I submit that it is not a good system. Some opponents of
reform say there is not enough money in politics. It is not a question
of too much; it is not enough; that $700 million spent in 1994 is not
enough. They say that more money is spent on soap detergent
advertisement, or whatever kinds of advertisement, than on political
campaigning. I hope that that analogy will fall on its face without
serious analysis, but a lot of people use that. No. 1, we are not in
the soap-selling business. No. 2, if Procter & Gamble were advertising
in a way that undermined the credibility of the company, they would not
be doing it. No. 3, these businesses have only one goal, and that is
profit. I would like to think that we have an additional goal in the
U.S. Congress.
Other opponents say that it restricts freedom and the ability to
participate. This is, of course, a voluntary system, No. 1. And No. 2,
we are not talking about mom and pop sitting around the kitchen table
deciding how to distribute their $100 or $250 to a Presidential
campaign or a senatorial campaign. They can still do that any way they
want to do it.
With regard to the PAC issue, which I will discuss in a moment, it
simply means that if this legislation were passed, instead of sending
it to a political action committee, they would have to make a decision
themselves as to which candidate they wanted to send it to. There is no
restriction of freedom here on anyone except those in Washington who
receive all those minicontributions from various people and make the
political decision as to how to use that money. Their freedom will be
restricted somewhat. There is no limit whatsoever in this legislation
on anybody's ability to participate in the process. People need to
understand that.
The current limitation we have is $1,000 on individual contributions.
That is a limitation. That is the same limitation that we have here; no
new limitation.
Many people say that certainly we want reform. Everybody knows we
need reform. ``It is a lousy system but not this reform. I would
support it, if this particular feature was in, or out,'' or whatnot. I
think that it is tempting to
[[Page S6775]]
want to have it both ways; to be for reform but never be for a reform
measure. Some people say it is an incumbent protection business, like
my friend Senator Bennett. I take a different view from that. I think
that under the system now he is certainly correct. Incumbents have
substantial advantage. What this legislation would do is, let us say,
at least place some limitation on the major incumbent advantage; and
that is the ability to raise unlimited amounts of money. The incumbents
are still going to have the advantages that they always had. But at
least you are saying to that incumbent if he voluntarily chooses to
participate that there will be some cap on the amount of money that you
spend. You are an incumbent now. The money is going to come to you not
because people believe in you in many, many cases any more but simply
because you are an incumbent, and you have the power and authority at
that point. They say, ``Well, it restricts people from coming in and
spending enough money to overcome the incumbent.'' How often does that
happen in the real world? When it happens, it is somebody who is an
extremely wealthy individual. And it happens then sometimes.
So you wind up with professional politicians on the one hand who are
able to raise large sums of money because they are incumbents, and
wealthy individuals on the other. That is what our system is becoming--
those two classes of people and nobody else.
This legislation would level the playing field and let more people of
average means participate. This bill is voluntary. Under it campaigns
will cost less. I think that is the crucial feature. A lot of us who
support this legislation have different ideas about that. To me the PAC
situation is not a crucial feature.
Opponents are certainly correct when they point out that the PAC's
were a reform measure in and of themselves in 1974 in the aftermath of
Watergate. We thought that would substantially reform the process, and
now PAC's are an anathema to a lot of people.
The fact of the matter is--and both sides should understand and know
this--that people, whether they be businesses or labor unions or
whoever, individuals can still send money in. They can still
contribute. They can still get together and decide that they want to
individually send contributions in.
In my campaign I ran against an individual that did not accept PAC
money. He got all of the same kind of money that he wanted. It is a
little more cumbersome. But we are not eliminating special interest
money if we eliminate PAC's.
So to me that is more of a symbolic measure than it is anything else.
The real crucial measure is limiting the overall amounts of money--that
$500 million that was spent in congressional races in the last election
time. It will take less time. It will allow my colleagues to spend the
time on the things that they were elected to do.
I believe it would level the playing field; 90 percent of all
incumbents--in this revolution that was supposedly having all this
turnover of all of those who want to be reelected--90 percent are
reelected. For those of my friends who always look and see who supports
a piece of legislation before they decide whether they are for it or
against it, and all of them who decry the trial lawyers and the AFL-CIO
and the, well you finally found something that you all agree on because
they are all in agreement with the opponents of this legislation that
this is a bad piece of legislation. So maybe they will lay off those
groups for a little while in the future.
Mr. President, this is not a division any longer of business versus
labor or of Democrats versus Republicans. It is a division of people
who want to change the system and those who genuinely do not believe
that we ought to have it. I would like to think that this is reform
time. I would think that this would do more to assist in our attempt to
balance the budget than anything else because much of the pressure that
this process has within, in it is pressure to spend money. It would be
a genuine reform measure.
The lobbying and gift reform measures were something long overdue. We
needed to do it. But we are in a situation now where you cannot buy me
a $50 meal or a $51 meal but you can go out and get together a few
hundred thousand dollars for me for my campaign. So that does not make
a whole lot of sense.
I do not think that we ought to get in a situation where we are for
reform until it affects us individually and our livelihood when we are
affecting everybody else's livelihood on a daily basis. I think it
should not be viewed with suspicion among my Republican colleagues. I
think too often that we are trying to figure out how this is going to
benefit them, or us. The fact of the matter is we do not know. There is
no way to figure it. There is no way to tell. It depends on swings.
Sometimes we are going to be in. Sometimes we are going to be out.
Sometimes a new scheme might hurt us. Sometimes it might help us. But
the bottom line is that we should not be afraid of fundamental reform
that the American people want, that we all know that we need, and we
should get back to winning not on the basis of who can raise the most
money but on the basis of the competition of ideas.
That is what we pride ourselves in. That is why we think we were
successful last time. That is why we think we will be successful again.
Let us get back to that concept.
It is for those reasons that I support this legislation and urge my
colleagues to do so.
Thank you, Mr. President. I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, a couple of observations, and then I am
going to yield 10 minutes to the distinguished Senator from Washington.
I have listened with interest over the years to the debate in this
debate about the suggestions of the money chase and dividing up the
amount of money one might raise in a campaign by every week of service.
My good friend from Tennessee, for example, suggested that he would
have to raise $15,000 a week throughout his entire term to be
competitive in Tennessee.
I think it is important to remind everyone of the statistics which
are irrefutable. Eighty percent of the money raised in a Senate
reelection cycle was raised in the last 2 years. Senators are not out
raising money every week through a 6-year term. In fact, in the last
cycle 80 percent of the money raised by Senators was raised in the last
2 years.
So I am unaware of anybody here in the Senate that is working on
fundraising week in and week out through the course of the 6-year term.
Second, let me just say again that I always find it somewhat amusing
the extent to which the revelation that little is spent on campaigns
relative to consumer items like yogurt tends to exercise the proponents
of this bill almost to distraction. But, of course, it is absolutely
appropriate when it is said too much is spent on campaigns. You would
have to ask the question: Compared to what? Compared to what? For that
observation to mean anything it has to be compared to something.
In 1994, in House and Senate races, about $3.74 per eligible voter
was spent. We spent about on politics in the last cycle what consumers
spent on bubble gum. Roughly $600 million was spent on bubble gum. In
1996, Americans will spend $174 billion on commercial advertising.
So it is appropriate when dealing with the basic premise underlying
this measure that too much is being spent to ask the question about the
premise: How much is too much? My view is that $3.74 per voter is
pretty hard to argue is too much to spend communicating with the
electorate.
Mr. President, my good friend from Washington has been quite patient,
in the Chamber for some time now, and I will be glad to yield to him 10
minutes.
The PRESIDING OFFICER. The Senator from Washington is recognized.
Mr. GORTON. Mr. President, I believe it important in discussing an
issue of this significance to begin once more with fundamental
principles. The most fundamental principle affected by this debate is
found in the first amendment to the Constitution of the United States
which in relevant part reads, ``Congress,'' that is to say us, ``shall
make no law abridging the freedom of speech.''
Mr. President, I turn to page 31 in this bill in section 201 and I
read, ``No
[[Page S6776]]
person other than an individual or a political committee may make a
contribution to a candidate.''
``No person other than an individual or a political committee may
make a contribution to a candidate.'' In other words, any voluntary
association is entirely denied the right to participate in the most
effective possible way in a political campaign by making any
contribution to a candidate at all.
Here we live in the third century of a Nation, the particular genius
of which has been the accomplishment of myriad purposes by voluntary
associations, and we are seriously considering a bill that says no
voluntary association can make a contribution to a candidate for the
Senate.
Our opponents can read us 1,000 opinions of law professors to the
effect that that does not violate the first amendment, but a third
grader would understand that it does. It is a clear abridgment of the
right of free speech. Moreover, that brief comment reflects the entire
nature of this bill. Everything in it is designed to restrict political
participation, to abridge the effective right of free speech in the
political arena. But it does not restrict everyone's right of free
speech in every fashion. No, it discriminates among methods of
political speech. It imposes severe restrictions upon candidates who,
while they may elect to stay out of the system, nonetheless are
severely penalized by advantages given to their opponents if they
repudiate this outrageous system. It not only prevents these voluntary
associations from making any contribution but even an individual is
likely to be prohibited from making a contribution to a candidate when
that candidate has reached the rather modest maximum permitted under
this law to gain certain other advantages.
It, of all things, severely restricts as a great evil political
parties. For some reason or another, it is based on the proposition
that both the Republican and Democratic Parties are highly undesirable
organizations that must be severely restricted in their fundraising and
prevented in many cases from providing support to their own candidates.
Now, while candidates have their rights abridged, organized groups
have their rights abridged, individuals have their rights abridged, and
political parties have their rights abridged, whose free speech rights
are not abridged by this bill? Well, first, television networks and
stations and their reporters and their editorial writers can continue
to say as much as they want to say and to be as biased as they wish to
be with respect to any election campaign, and not only are no
restrictions placed on their ability to engage in those activities but
the candidates who are their victims, whom they oppose, are not granted
any ability to raise money to counteract what they may consider to be
biased editorials or biased news stories. Newspapers fall into exactly
the same category, whether in the reports of their political writers or
the editorial support that they provide for candidates--no limitations
there but severe limitations on the ability to respond to those
newspapers.
And one other important element. All organizations, all groups that
are willing to engage in the subterfuge that they are not endorsing
candidates or promoting elections by simply reporting through 30-second
commercials on their interpretation of the way in which candidates who
hold office have voted, and so all of the commercials, the tens of
millions of dollars of commercials we have seen in the last 6 months
paid for by labor unions attacking Members of the House of
Representatives for their votes on Medicare reform and the balanced
budget, none of those are restricted in any way by the proposals in
this bill. All that is restricted is the ability of a candidate
attacked by these millions of dollars effectively to respond to those
attacks.
Now, I do not know how much value there is in plumbing the
motivations of the authors of the bill. Perhaps they feel that form of
political participation ought not to be restricted in any fashion.
Perhaps they feel that even though they cannot stand a political action
committee giving money to a candidate's campaign, that same group ought
to be permitted without limitation and without restriction to buy
advertisements attacking candidates or incumbents on their lifestyle or
their record, that that somehow or another is good policy. I think,
however, the reason there is no limitation on this form of free speech
is that they know perfectly well, the sponsors know perfectly well that
such restrictions would be found to be unconstitutional. And so they
only restrict free speech where they think they can get away with it,
even though they make a situation that at the present time is unfair
far more unfair than is the status quo.
Mr. President, acknowledge, those who oppose this bill, that the
people of the United States by special interest groups that would be
benefited by having their opponents removed from the equation and
newspaper and television editorialists who would be benefited by having
their views less effectively counteracted, have created a situation
where a majority of the people of the United States do not like the
present system and want reform. This bill is entitled ``Reform,'' and
we are, therefore, supposed to pass it. But we went through this
experience more than 20 years ago when the present law was passed.
Every argument that has been made here for 2 days was made then. That
present system was terrible. We had to have limitations. We had to
create things called political action committees in which people could
engage in political action. We would restore confidence in the system.
Well, Mr. President, not a single one of the desires or the goals or
the promises of those proponents has been accomplished at this point,
and so what are we asked to do now? Back off and start over with a very
simple proposition that just says everyone disclose where his or her
money comes from and trust the intelligence of the people to sift
through the arguments that they get? No. We are told if 1,000
restrictions were not enough, let us try 2,000 restrictions and see if
it does not work better. That is the theory of this bill.
We hear a great deal about how terribly prejudicial in favor of
incumbents the present system is. But, then, why do we wipe out the one
organization that will always support a challenger in a race, the
challenger's political party?
The Republican Party will support the challenger to a Democrat, the
Democratic Party will support the challenger to a Republican, if they
think that challenge is remotely viable. So this bill is not about
incumbents and nonincumbents. If it were, it would encourage
contributions to political parties. It would lift the restrictions on
the amount of support that political parties can provide for its
candidates. But, instead, it treats parties, if anything, as a greater
evil than candidates themselves.
No, this is not campaign reform. This is a huge bureaucracy, the
design of which is to abridge the freedom of speech of candidates for
the U.S. Senate, exactly what the first amendment tells Congress it may
not do.
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. McCONNELL. Mr. President, I thank my distinguished colleague from
Washington for an absolutely brilliant discourse on the impact of this
bill on the political process. As usual, he is right on the mark, and I
thank him for his important contribution to this debate.
My friend and colleague from New Hampshire has been on the floor for
some time. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 51 minutes remaining.
Mr. McCONNELL. I yield 5 minutes to the distinguished Senator from
New Hampshire.
The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
Mr. GREGG. I thank the Senator from Kentucky. I also congratulate the
Senator from Washington for his very thoughtful and concise discussion
relative to this bill. I wanted to focus on a narrower issue which
really plays out some of the points raised by the Senator from
Washington.
I heard a prior Senator's statement, ``This is a bill that levels the
playing field.'' I only perceive this as leveling if you perceive the
north slope of some mountain in the Himalayas, Mount Everest, for
example, to be level. The fact is, this is not a leveling bill. The
fact is, this bill, because it fails to address the independent
expenditure issue, is a bill which, were this a teeter-totter, would
have one side directly up in the
[[Page S6777]]
air and the other side directly on the ground.
We have to realize that under this bill one of the core elements of
what I consider to be inappropriate activity in the political area, but
which others would consider to be good politics, as they are supported
by it, is not addressed at all. It was in March, for example, that the
AFL-CIO held a rather unique convention here in Washington, where they
voted, as an institution, to levy a special assessment on their
membership, which assessment was meant to raise approximately $25
million of a $35 million goal dedicated to defeating Republicans. There
was no other purpose. It was openly stated. They were going to spend
$35 million for the purpose of defeating Republicans. So they had this
special assessment of $25 million which went out against all their
union membership.
Someone took a poll of the union membership, and it turns out the
union membership, at least 58 percent of the union membership, did not
realize they were going to have to pay this mandatory fee; 62 percent
of the union membership opposed this mandatory fee; 78 percent of the
union membership did not know they had the right to get the fee back;
84 percent would support making union leaders here in Washington, the
big bosses, disclose exactly what their money is spent for; and only 4
percent thought that engaging in political elections was the most
important responsibility of major unions.
So, what we have here is an instance where the AFL-CIO is going to go
out, and they have the right to do this, and raise $25 to $35 million
and spend it against people who they, the union bosses here in
Washington, do not agree with. It happens that the rank and file
membership, to a large degree, do agree with the agenda of the
Republicans here in Washington. In fact, 87 percent of the union
membership supports welfare reform and 82 percent of union membership
supports the balanced budget amendment and 78 percent happens to
support tax reductions and the $500-per-child tax credit, all of which
happen to be Republican initiatives, all of which are opposed by
President Clinton, all of which have been opposed by Democratic
Members. But, once again, the big bosses here in the unions in
Washington have decided to assess, essentially, a tax against the union
membership, and that tax, raising $25 to $35 million, is going to be
used to attack Republicans who happen to support philosophies which are
supported by a majority of the union membership.
Yet, this bill remains silent on this rather significant gap in the
campaign election laws. If you were in the process of addressing
campaign election laws, I think by the very fact it remains silent, you
must ask: Why? Why would such a colossal amount of money that is going
to be poured into the political system be ignored by a bill like this?
Well, folks, I think it is called politics. I think it is called
political influence. I think it is because the majority of the sponsors
of this bill happen to be mostly related in their political philosophy
to the bosses of the unions here in Washington. As a result, there is
no desire to address something which might affront that group of
political forces in this country, who are significant. They have always
been significant in this country. They have a major role to play, and
always should have a major role to play. But there is unquestionably a
significant issue of credibility raised by the failure to address this
issue. In fact, it is such a significant issue of credibility that I
think it brings down the whole bill, because it draws the whole bill
into question, as to its integrity, as to its purpose--not integrity,
wrong word--as to its purpose, as to its legitimacy.
It could be corrected rather easily, actually. You could simply put
language in which would say union members shall have the affirmative
right, which shall have to be confirmed or which shall have to be--let
me restate that. Union members will have to approve how their dues will
be spent when it comes to political actions and political activity.
The PRESIDING OFFICER. The 5 minutes of the Senator has expired.
Several Senators addressed the Chair.
Mr. McCONNELL. I yield the Senator 2 additional minutes.
The PRESIDING OFFICER. The Senator has 2 additional minutes.
Mr. GREGG. I have an amendment which proposes that: the Union Members
Protection Act. It essentially says that before union members' dues can
be spent in the manner in which these $25 million to $35 million are
going to be spent, the union member will have the right to
affirmatively approve that or disapprove it. In the case of
disapproving it, the money will not be spent. That will bring into the
process at least the ability of the union members to avoid this tax if
they decide to avoid this tax; in the process, to direct the funds in a
manner which they feel is appropriate to their own political position,
not to those of a few bosses here in Washington.
That type of correction is not in this bill. Not only is it not in
this bill, but were that amendment to be brought forward, this bill
would be filibustered by the supporters of the bill, I suspect.
Certainly, if there was a chance it was going to be passed, it would be
filibustered by the proponents of this bill. Why? Political interests.
So the credibility of this proposal, I think, is highly suspect, not
only substantively on the grounds of constitutionality that was raised
by Senator Gorton, but on the grounds of the politics of the bill,
because when you leave this large a gap in the issue of how you are
going to reform campaign financing, you basically are saying your
intention is not to reform campaign financing; your intention is to
tilt the playing field once again in favor of one political group which
happens to have a significant amount of influence amongst the sponsors.
Mr. President, I yield back the remainder of my time.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Very briefly, before I turn it over to the Senator from
Massachusetts. I, too, listened to the constitutional analysis by the
Senator from Washington and the strong agreement by the Senator from
Kentucky. The one suggested that any third grader would know that the
PAC ban, with a backup provision, is unconstitutional. I am sorry, but
I will say one thing about that. The Senator from Kentucky and the
Senator from Washington voted for precisely that proposal 3 years ago
under the Pressler amendment. So, apparently, at that time they did not
understand, apparently, what any third grader would understand, which
is that this in fact is constitutional, because it provides that, if
the PAC ban is found unconstitutional, there is a backup provision. So
that entire analysis disregards their own voting record and their own
past position, which is that that is constitutional.
Mr. President, I yield up to 10 minutes to the Senator from
Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KERRY. Mr. President, thank you. I thank the Senator from
Wisconsin.
Mr. President, I was really fascinated to listen to our colleague
from New Hampshire. I really never knew, but now I guess the Senate has
learned something new, that the Senator from Tennessee, Senator
Thompson, and the Senator from Arizona, Senator McCain, are the tools
of the union bosses. That is a rather remarkable concept. I am sure the
Senator from Arizona will struggle, as will the Senator from Tennessee,
for years to get out from under that moniker.
I think that both that and the argument of the Senator from
Washington just underscore what is really going on here today in the
U.S. Senate. Every argument that can conceivably be laid out on the
table in pretense on the merits is really just an effort to avoid what
this vote today is really about. This vote today is about whether or
not the U.S. Senate is willing to stay here and work to produce
campaign finance reform or whether it is happier with the status quo.
That is the vote. It is very simple.
Eighteen months ago we could have started doing campaign finance
reform. I think it was 12 months ago there was a famous handshake
between Newt Gingrich and the President suggesting there would be a
commission to deal with campaign finance reform. But not only did
Congress not follow through on the commission, as neither the
[[Page S6778]]
President nor the Speaker did, but at the last moment here we are on
day one of consideration of this bill and we have to have a cloture
vote. That tells the whole story.
This is not a serious effort to legislate. This is not a serious
effort to take an amendment from the Senator from New Hampshire and
deal with this problem of constitutionality or of union bosses. After
all, they only have 53 votes last time I counted. It seems to me that
if it is truly an issue of the unions, that 53 Republicans are very
quickly going to be summoned to the floor to vote against whatever
union advantage is being built into this bill.
So let us cut the charade here. This is not a serious effort to
legislate. This is, once again, the Senate's moment of tokenism to
pretend or at least expose--because Senator Feingold and Senator McCain
insisted on it--that there are a majority of Senators here who are
unwilling to deal with the issue of campaign finance reform.
There is not even a serious discussion going on of an alternative.
There is no alternative that has been proposed. There is no serious set
of alternatives that have been put forward to try to say, ``Well, if we
don't want to do it your way, here's a better way of doing it.'' There
is no better way on the table.
The Senate has been forced to bring one vehicle to the floor today,
one effort, one pathetic gasp to try to suggest that we are prepared to
deal with what the majority of Americans want us to deal with, which is
the putrid stench of the influence of money in Washington that is
taking away democracy from the people of the country. Everybody knows
it. Every poll in the Nation just screams it at us.
Ninety-two percent of registered voters believe that special interest
contributions affect the votes of the Members of Congress. Eighty-eight
percent believe that people who make large contributions get special
favors from politicians. The evidence of public discontent just could
not be more compelling. It is now spoken in the way in which Americans
are just walking away from the system. Only 37 percent turned out to
vote in the last election. They are walking with their feet away from
what they perceive as an unwillingness of the Congress to deal with
this.
The vote today, Mr. President, is very simple. Do you want to deal
with campaign finance reform or do you want to play the game again and
be content and pretend that there is some great constitutional issue?
I listened to the Senator from Washington raise the first amendment.
My God, three-quarters of the people today talking about the first
amendment and no curbs on free speech are the first people to come down
here and vote against the Supreme Court's decision with respect to the
protection of free speech and the flag. So they choose it when it suits
their purposes, and then they go protect it when it also suits their
purposes. Selective constitutionalism.
Any third-grader does understand that if there is a voluntary system,
purely voluntary, by which people participate in limits, there is no
restraint on free speech. Anybody who wants to go out and spend their
millions of dollars and avoid accountability within the rest of the
system can do so under this bill. There is no limit.
If perchance there were to be some problem with the PAC's and
constitutionality, because of the freedom of association, the House of
Representatives, in their bill, has an alternative. It is perfectly
legitimate for us to send this bill to a conference committee, work in
the conference committee, come up with a reasonable alternative and
come back here. It is really inconceivable that the Republican Party,
which is the majority of the U.S. Senate with 53 votes, is going to be
disadvantaging itself in any amendment on the floor of the U.S. Senate,
because they can summon all 53 votes to beat back any amendment that
does not draw away some measure of those who are reasonable on their
side.
So this is not an effort to legislate. This is an effort to
procrastinate once again. It is a vote on whether you desire to have
campaign finance reform or whether you are content to suggest that
there are problems with this bill sufficient that we cannot even deal
with it on the floor or work through the legislative process.
I have some problems with this bill. I do not like every component of
it. I personally would like to see more free time available. I think
there are a number of other options that we could work on. But I am
content to live with what the majority of the U.S. Senate thinks is
appropriate. I am content to have whatever advantage to our side or
their side be put to the test of the legislative process. That is what
we are supposed to do. Instead, once again, the special interests are
going to win here today. Probably most likely this issue will not be
able to be seriously considered this year yet again.
I have worked on this since the day I came here with Senator Bradley,
Senator Biden, Senator Mitchell, and Senator Boren. We have passed it
in certain years here. But the game has been played with the House so
it comes back at the last minute. Each side can blame the other for not
really being serious about it or for filibustering it to death.
In the end, Mr. President, the American people lose again, because
everyone knows that the budget deficit is partly driven by the
interests that succeed in preventing any tough choices from being made.
Everyone knows what the money chase and the money game in Washington is
all about. We would all be better off if we were to reduce that. I hope
that colleagues today will come together in an effort to try to say,
let us at least legislate through the week and see if we could engage
in a serious effort to try to deal with one of the most pressing
problems facing America's fledgling democracy.
Mr. President, I yield back whatever time I may have to the manager
of the bill.
Mr. McCONNELL. Mr. President how much time do I have remaining?
The PRESIDING OFFICER (Mr. Gregg). The Senator has 43 minutes
remaining.
Mr. McCONNELL. I yield to the distinguished chairman of the Rules
Committee--and we have listened to a great many hearings this spring on
this matter--I yield 10 minutes.
Mr. WARNER. Mr. President, I thank the floor managers, both floor
managers, and indeed my colleague from Kentucky. As a senior member of
the Rules Committee he sat side by side with me throughout what I am
sure will be reviewed as a very prodigious, fair, and balanced series
of hearings, which I will cover, given that the Rules Committee has
jurisdiction over this particular bill and like bills.
This morning, however, Mr. President, I make it very clear that while
I support many areas of campaign finance reform, and I shall address
those areas, this particular bill that is before the Senate is not one,
in my judgment, which will solve any of the problems. Therefore, I
shall be voting against it in accordance with the procedural votes.
I will start my comments by quoting from Thomas Jefferson. Virginians
are very proud of our heritage of freedom which is reflected by Mr.
Jefferson, who said: ``To preserve the freedom of the human mind * * *
and freedom of the press, every spirit should be ready to devote itself
to martyrdom; for as long as we may think as we will, and speak as we
think the condition of man will proceed in improvement.''
Jefferson's thoughts on the first amendment reflect my own personal
concern that our constitutional right to speak out as individuals and
as groups receive the utmost protection as we labor as a legislative
body to make badly needed reforms to our campaign finance system.
The pending bill would amend our campaign finance laws applicable to
elections to Congress. This bill, S. 1219, was referred to the
Committee on Rules and Administration some time ago. In addition to S.
1219, 14 other bills that would amend our campaign finance laws have
also been referred to the committee. These bills address myriad issues
and offer a variety of potential solutions to the concerns many of us
have.
I am well aware that the calls for campaign finance reform have been
heard for many years. I am well aware, also, of the many proposals this
body has considered over the past sessions. I am also well aware these
efforts were ultimately unsuccessful because they did not reflect the
consensus of the American people. It is easy to label
[[Page S6779]]
something campaign finance reform and immediately find support from
those across this Nation, like myself, who have a level of frustration
with the current framework of laws. Ultimately, however, each of those
bills must stand on its own merits. I will not merely vote for
something called reform without being convinced that the proposals are
constitutional and beneficial to our political process.
Our committee gave careful consideration to a wide variety of issues.
First, our committee heard from Senators McCain of Arizona, Feingold of
Wisconsin, Thompson of Tennessee, Wellstone of Minnesota, Feinstein of
California, and Bradley of New Jersey. Members of the House of
Representatives also appeared before our committee.
We then heard testimony from some of the foremost experts across our
Nation on campaign finance reform, including Prof. Larry Sabato and
Prof. Lillian BeVier from the University of Virginia; Norman Ornstein
from the American Enterprise Institute; Thomas Mann from the Brookings
Institution; Bradley Smith from the Cato Institute; David Mason of the
Heritage Foundation; Prof. Herbert Alexander from the University of
Southern California; Dr. Candice Nelson of American University; Prof.
Michael Malbin from the Rockefeller Institute of Government; Ann
McBride of Common Cause; and Joan Claybrook with Public Citizen.
We also heard from a number of citizens who participated in campaigns
by contributing to political action committees--PAC's--or by making
donations to be bundled. We heard these voters' worries that their
voices would be greatly diminished if their ability to participate in
PAC's and bundling were completely denied. In addition to these
witnesses, we also asked the Chairmen of the Republican and Democratic
National Committees, Mr. Haley Barbour and Mr. Donald Fowler to testify
before our committee. Each party official testified to the need to
strengthen--I repeat, strengthen--not weaken the political parties and
enhance their links to their State counterparts.
Because several of the bills before the committee mandated some form
of free or reduced-fee television time and reduced postage rates, as S.
1219 does, we also heard from representatives of the broadcast industry
and parties affected by the health of the postal service. They advised
us of the impact on these proposals, pro and con, on their operations.
Further, because of my personal belief that we should not pass
legislation that has a high degree of likelihood of being struck down
by the Federal court system as unconstitutional, we asked a number of
legal experts and scholars to address the constitutionality of some of
the various proposals before the committee, particularly the proposal
to ban PAC's. Among those commenting on the issues were Joel Gora of
Brooklyn Law School on behalf of the American Civil Liberties Union,
Robert O'Neil of the Thomas Jefferson Center for the Protection of Free
Expression, Archibald Cox of Harvard Law School, and Frederick Schauer
with the Kennedy School at Harvard.
To date, the committee has held six extensive hearings on campaign
finance reform--the most extensive, I repeat, the most extensive
hearings on this subject of campaign finance reform, held here in the
Senate since 1991. A number of conclusions were reached, although not
formally, by the individual Members. I shall speak for myself.
First and foremost is the overwhelming consensus that the PAC ban
contained in S. 1219 is unconstitutional. There is little doubt on
this, with near unanimous agreement from the legal experts. Mr.
President, we should not pass legislation in the name of reform,
knowing that the Federal courts will strike down the bill. There is
always the urge to try and create something to throw out there and go
back and tell our constituents, ``Well, we handled it--we handled
campaign finance reform,'' but I personally cannot do that with clarity
of conscience, knowing that there is a high likelihood that the Federal
court system will strike it down.
A second point: in addition to the PAC ban, there are other serious
constitutional concerns in S. 1219. One main problem lies in the
extremely broad definitions of ``independent expenditures'' and
educational advertising which would serve to greatly restrict
information about the candidates. According to the Free Speech
Coalition which represents groups from far left to far right, ``This
extremely broad definition of `expressed advocacy' would sweep in
protected issue advocacy such as voter guides.''
Perhaps even more startling, S. 1219 allows the Federal Election
Commission to obtain prior restraining orders against groups it
suspects might violate the new, broader restrictions on presently-
independent political activities. Let me emphasize this point. Federal
bureaucrats would have the power to stop--I repeat, stop--somebody from
exercising their first amendment rights before they say or publish
anything. One commentator called this result ``a grotesque legislative
assault on bedrock American freedoms * * * ''
The PAC and bundling bans, combined with the breadth of S. 1219's
coverage and restrictions on independent expenditures violate a maxim
clearly articulated by our Supreme Court in Buckley versus Valeo when
the Court stated ``The concept that government may restrict the speech
of some elements of our society in order to enhance the relative voice
of others is wholly foreign to the first amendment.''
Make no mistake about it, S. 1219 would severely restrict the speech
of many of our citizens, resulting in a terrific enhancement of others.
This we cannot condone. Again, to quote Mr. Jefferson:
There are rights which it is useless to surrender to the
government, and which governments have yet always been found
to invade. [Among] these are the rights of thinking, and
publishing our thoughts by speaking or writing.
He made this observation in 1789, but despite the transformation of
our country and the changes in our Government, it is as true today as
it was in 1789.
A third observation is that, while reduced fee or free TV coverage
and postage might serve to reduce the cost of campaigns, requirements
such as these are not really free--they simply shift the costs from
candidates to postal users, broadcast stations, and other television
advertisers. To the extent candidates for political office are granted
even more reduced fee postage rates than they already have, the postal
user--virtually every American citizen and business--will bear the
cost, for the Postal Service must make up the lost revenue from these
users.
And, in addition to the lost revenues the TV broadcasters will face,
there are extremely severe management problems associated with S.
1219's mandate for TV stations to provide coverage of political
candidates. Not the least of these would be trying to offer television
time to candidates in large population centers such as New York City
where dozens of contested elections will take place in New York, New
Jersey, and Connecticut--you might have more than 50 candidates each
entitled to prime time TV coverage. And this doesn't even consider
party primaries which might feature many candidates per election.
And, as I have noted in our hearings, how will local politicians
react if they see candidates for Federal elections being offered
extremely cheap ads and mailings. If we start down this road, how will
we say no to the local sheriff or other State and local politicians who
run for office? In sum, these reduced fee proposals--which are better
described as cost shifting provisions--are not well thought out. More
thorough analysis and understanding of the impact they will have on the
postal and broadcast industries and the American people is necessary.
In addition, several of the provisions of S. 1219 could result in
less information being available to voters. Spending caps obviously
might cause cutbacks in campaign activity, whether advertising,
traveling, or get-out-the vote activities. Bringing more independent
expenditures under spending caps also could reduce the amount of
information that is available. This concern has been voiced by others.
David Frum of the Weekly Standard stated:
[P]olitical reformers imagine that by capping campaign
spending America could somehow purify its politics, replacing
vulgar and deceptive radio spots with lofty Lincoln-Douglas-
style debates and serious-minded
[[Page S6780]]
presentations of positions in 30-minute unpaid public service
announcements on television. The far likely effect of
campaign expenditure caps, though, would be to invite
cheating and to deprive less attentive voters even of what
little information they now get to guide their vote.
This discussion of present reform proposals would of course be
incomplete without mentioning the fact that the Federal Election
Commission would need a veritable army of investigators and auditors to
keep up with their new mandates. We know that the FEC has had
difficulty winding up audits of Presidential campaigns in a timely
process, and I hesitate to think about the prospect of the FEC trying
to keep up with hundreds of congressional candidates every 2 years.
While these hearings result in the conclusion that S. 1219 will not
produce the type of reform that is needed, they also have revealed many
potential reforms which might be quite beneficial to our political
process without trampling on the first amendment. The many experts who
testified at these hearings provided us with a multitude of proposals
that should be examined more thoroughly.
I was particularly impressed by some of the suggestions made by Prof.
Larry Sabato of the University of Virginia, who has been at the
forefront of campaign finance reform and is a well-renowned speaker and
author on the subject. I ask unanimous consent that a statement
submitted by Professor Sabato be printed in the Record at the
conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. WARNER. Professor Sabato's main focus lies in broadening and
strengthening our disclosure laws, so that all types of significant
political involvement are available for public inspection. The American
people are the best judge of improper or excessive influence, and it
may be time to require greater access to information about those who
give to candidates for Federal office and those who spend more to
influence campaigns. Of course, we would need to weigh the need for and
degree of privacy that should be afforded to individual donors, but
this is clearly a subject that should be addressed in any campaign
finance reform.
I have been impressed with other suggestions which have been raised
in our hearings, such as: limiting the amount of money a PAC can give
to a candidate from funds raised out of State; raising the contribution
limits for initial donations to challengers to facilitate their entry
into the political campaign process; and permitting challengers to draw
a salary from their contributions.
Then there is the sensible suggestion to index contribution limits
for inflation--perhaps had this been done in the last reforms in the
1970's, candidates would have more time to debate the issues and meet
the voters and need less time to raise money. This change would also
reduce the growing tendency for rich candidates to use their money
to buy credibility. As discussed by the eminent commentator, David
Broder:
All the contribution limits are accomplishing today is to
create an ever-greater advantage for self-financed
millionaire candidates. . . If we really want to be ruled by
a wealthy elite, fine; but it is a foolish populism that
insists it despises the influence of wealth, and then resists
liberalizing campaign contribution limits.
While I disagree with their proposals, I commend my colleagues for
making a commitment to this difficult issue. I can understand their
frustration in attempting to craft legislation which might meet
constitutional muster and find legislative support. Their bill has
served the useful purpose of generating an extensive set of hearings on
campaign finance reform and the many ideas I have mentioned.
Yet, the hearings which the Rules Committee held will be for nought
if we proceed on S. 1219 today, in its present form. We must learn from
these hearings. The committee should be permitted to proceed with its
hearings. The Rules Committee will hold authorization and oversight
hearings this coming Wednesday, June 26 on the Federal Election
Commission [FEC]. These hearings will include a discussion of some 18
recommendations that would update the campaign finance laws and
streamline the administration of the campaign finance laws. In
addition, we are studying the possibility of holding one more hearing
on the Presidential election process and reform suggestions that might
be beneficial. After that the full extent of the committee hearings
will be made available to the entire Senate and to others for study and
review, with the goal that this educating process will produce an
effective and positive reform bill.
While I understand the frustration of some of my colleagues with this
issue, I cannot shirk my duty with regard to this legislation--it
contains unconstitutional and unwise provisions, and we should not pass
this legislation into law.
Exhibit 1
Testimony of Professor Larry J. Sabato \1\ --Hearing of the Senate
Committee on Rules and Administration, May 8, 1996 \1\
phony cures versus a workable solution: deregulation plus
The campaign finance system's problems are vexing. Is it
possible to fashion a solution to all of them simultaneously?
Over the years, the reformers' panacea has been taxpayer
financing of elections and limits on how much candidates can
spend. Public financing is a seductively simple proposition:
if there is no private money, presumably there will be none
of the difficulties associated with private money. But in a
country such as ours, which places great emphasis on the
freedoms of speech and association, it is unrealistic to
expect that the general citizenry or even many of the elite
activists will come to support greater federal subsidization
of our election system at the cost of their individual and
group political involvements. Spending limits are also
enticing. Are politicians raising and spending too much
money? Let's pass a law against it! Yet such a statute may be
difficult to enforce in an era when politicians and the
public seek less regulation, not more--not to mention the
serious, maybe fatal, problem of plugging all the money
loopholes (the C(4)s; Supreme Court-sanctioned, unlimited
``independent expenditures'' by groups and individuals
unconnected to a campaign, and so on). Once again, the
biggest, the original, and the unpluggable loophole is the
First Amendment.
---------------------------------------------------------------------------
Footnotes at the end of article.
---------------------------------------------------------------------------
Public financing and spending limits are both also
objectionable on the basic merits: the right to organize and
attempt to influence politics is a fundamental constitutional
guarantee, derived from the same First Amendment protections
that need to be forcefully protected. To place draconian
limits on political speech is simply a bad idea. (The call
for a ban on political action committees suffers from the
same defect.)
Once again, even if candidates could be persuaded to comply
voluntarily with a public financing and spending limits
scheme, such a solution would fail to take into consideration
the many ways that interest groups such as the Christian
Coalition and labor unions can influence elections without
making direct contributions to candidates. Even if we passed
laws that appeared to be taking private money out, we would
not really be doing so. This is a recipe for deception, and
consequently--once the truth becomes apparent--for still
greater cynicism.
In our opinion, there is another way, one that takes
advantage of both current realities and the remarkable self-
regulating tendencies of a free-market democracy, not to
mention the spirit of the age. Consider the American stock
markets. Most government oversight of them simply makes sure
that publicly traded companies accurately disclose vital
information about their finances. The philosophy here is that
buyers, given the information they need, are intelligent
enough to look out for themselves. There will be winners
and losers, of course, both among companies and the
consumers of their securities, but it is not the
government's role to guarantee anyone's success (indeed,
the idea is abhorrent). The notion that people are smart
enough, and indeed have the duty, to think and choose for
themselves, also underlies our basic democratic
arrangement. There is no reason why the same principle
cannot be successfully applied to a free market for
campaign finance.\2\ In this scenario, disclosure laws
would be broadened and strengthened, and penalties for
failure to disclose would be ratcheted up, while rules on
other aspects--such as sources of funds and sizes of
contributions--could be greatly loosened or even abandoned
altogether.
Call it Deregulation Plus. Let a well-informed marketplace,
rather than a committee of federal bureaucrats, be the judge
of whether someone has accepted too much money from a
particular interest group or spent too much to win an
election. Reformers who object to money in politics would
lose little under such a scheme, since the current system--
itself a product of reform--has already utterly failed to
inhibit special-interest influence. (Plus, the reformers' new
plans will fail spectacularly, as we have already argued.) On
the other hand, reform advocates might gain substantially by
bringing all financial activity out into the open where the
public can see for itself the truth about how our campaigns
are conducted. If the facts are really as awful as reformers
contend (and as close observers of the system,
[[Page S6781]]
much of what we see is appalling), then the public will be
moved to demand change.
Moreover, a new disclosure regime might just prove to be
the solution in itself. It is worth noting that the stock-
buying public, by and large, is happy with the relatively
liberal manner by which the Securities and Exchange
Commission regulates stock markets. Companies and brokers
(the candidates and consultants of the financial world)
actually appreciate the SEC's efforts to enforce vigorously
what regulations it does have, since such enforcement
maintains public confidence in the system and encourages
honest, ethical behavior, without unnecessarily impinging on
the freedom of market players. Again, the key is to ensure
the availability of the requisite information for people to
make intelligent decisions.
Some political actors who would rather not be forced to
operate in the open will undoubtedly assert that extensive
new disclosure requirements violate the First Amendment. We
see little foundation for this argument. As political
regulatory schemes go, disclosure is by far the least
burdensome and most constitutionally acceptable of any
political regulatory proposal. The Supreme Court was explicit
on this subject in its landmark 1976 Buckley v. Valeo ruling.
The Court found the overweening aspects of the Federal
Election Campaign Act (such as limits on spending) violated
the Bill of Rights, but disclosure was judicially blessed.
While disclosure ``has the potential for substantially
infringing the exercise of First Amendment rights,'' the
Court said, ``there are governmental interests sufficiently
important to outweigh the possibility of infringement,
particularly when the free functioning of our national
institutions is involved.''
The Court's rationale for disclosure remains exceptionally
persuasive two decades after it was written:
First, disclosure provides the electorate with information
``as to where political campaign money comes from and how it
is spent by the candidate'' in order to aid the voters in
evaluating those who seek federal office. It allows voters to
place each candidate in the political spectrum more precisely
than is often possible solely on the basis of party labels
and campaign speeches. The sources of a candidate's financial
support also alert the voter to the interests to which a
candidate is most likely to be responsive and thus facilitate
predictions of future performance in office.
Second, disclosure requirements deter actual corruption and
avoid the appearance of corruption by exposing large
contributions and expenditures to the light of publicity.
This exposure may discourage those who would use money for
improper purposes either before or after the election. A
public armed with information about a candidate's most
generous supporters is better able to detect any post-
election special favors that may be given in return. And . .
. full disclosure during an election campaign tends ``to
prevent the corrupt use of money to affect elections.'' In
enacting these requirements [the Congress] may have been
mindful of Mr. Justice Brandeis' advice: ``Publicity is
justly commended as a remedy for social and industrial
diseases. Sunlight is said to be the best of disinfectants;
electric light the most efficient policeman.'' \3\
A new disclosure-based regime, to be successful, would
obviously require more stringent reporting rules. Most
important, new reporting rules would require groups such as
organized labor and the Christian Coalition to disclose the
complete extent of their involvement in campaigns. Currently,
such groups rely on a body of law that holds that under the
First Amendment, broadly based ``nonpartisan'' membership
organizations cannot be compelled to comply with campaign
finance laws, nor can groups that do not explicitly advocate
the election or defeat of a clearly identified candidate.
However, expert observers of the current system, such as
former Federal Election Commission chairman Trevor Potter,
believe the Court has signaled that constitutional protection
for such groups extends only to limits on how much they can
raise or spend, not to whether they are required to disclose
their activities.\4\ The primary advantage of this step is
that it would formally bring into the political sphere groups
that clearly belong there. By requiring organizations such as
the Christian Coalition and labor unions to disclose, their
role in elections can be more fully and fairly debated.
Another possible objection to broadening the disclosure
requirements would be the fear that the rules would drag a
huge number of politically active but relatively
inconsequential players into the federal regulatory
framework. Clearly, no one wants the local church or the
Rotary Club taken to court for publishing a newsletter
advertisement that indirectly or directly supports
candidates of their choice. To our mind, this is easily
addressed by establishing a high reporting threshold--
something between $25,000 and $50,000 in total election-
related expenditures per election cycle. After all, the
concern is not with the small organizations, but the big
ones. The Christian Coalition, the term limits groups, and
organized labor have all raised and spent millions of
dollars annually and operated on a national scale. It is
not hard to make a distinction between groups such as
these and benign small-scale advocacy.
Another necessary broadening of disclosure would involve
contributions made by individuals. While most political
action committees already disclose ample data on their
backers and financial activities, contributions to candidates
from individuals are reported quite haphazardly. New rules
could mandate that each individual contributor disclose his
place of employment and profession, without exception. The
FEC has already debated a number of effective but not overly
oppressive means of accomplishing this goal (although to date
it has adopted only modest changes). The simplest solution is
to prohibit campaigns from accepting contributions that are
not fully disclosed. Disclosure of campaign expenditures is
also currently quite lax, with many campaign organizations
failing to make a detailed statement describing the purpose
of each expenditure. It would be no great task to require
better reporting of these activities as well.
The big trade-off for tougher disclosure rules should be
the loosening of restrictions on fundraising. Foremost would
be liberalization of limits on fundraising by individual
candidates. This is only fair and sensible in its own right:
there is a glaring disconnection between the permanent and
artificial limitations on sources of funds and ever-mounting
campaign costs. One of the primary pressures on the system
has been the declining value in real dollars of the maximum
legal contribution by an individual to a federal candidate
($1,000 per election), which is now worth only about a third
as much as when it went into effect in 1975. This increasing
scarcity of funds, in addition to fueling the quest for
loopholes, has led candidates (particularly incumbents) to do
things they otherwise might not do in exchange for funding.
Perversely, limits appear to have increased the indebtedness
of lawmakers to special interests that can provide huge
amounts of cash by mobilizing a large number of $500 to
$1,000 donors. By increasing contribution limits, candidates
would enjoy more freedom to pick and choose their
contributors. Given the option, we hope more candidates would
turn primarily to those contributors whose support is based
on values and ideological beliefs, spurning the favor-
seekers. By lifting disclosure and contribution levels at the
same time, politicians' access to ``clean'' funds would rise
while scrutiny of ``dirty'' funds would be increased. The
idea is to concede that we cannot outlaw the acceptance of
special-interest money, but the penalties for accepting it
can be raised via the court of public opinion. So at the very
least, the individual contribution limit should be restored
to its original value, which would make it about $2,800 in
today's dollars, with built-in indexing for future inflation.
We would actually prefer a more generous limit of $5,000,
which would put the individual contribution limit on a par
with the current PAC limit of $5,000 per election.
For political parties, there seems little alternative to
simply legitimizing what has already happened de facto: the
abolition of all limits. When the chairman of a national
political party bluntly admits that millions of dollars in
``soft money'' receipts mean that the committee will be able
to spend millions of dollars in ``hard money,'' it is time
for everyone to acknowledge reality. Moreover, such an
outcome is not to be lamented. Political parties deserve
more fundraising freedom, which would give these critical
institutions a more substantial role in elections.
How would the new disclosure regime work? While the FEC has
already moved to impose some tighter disclosure requirements,
it lacks the resources as currently constituted to enforce
the new rules across the board. However, the solution does
not necessarily require a massive increase in funding. Under
a disclosure regime, the agency could reduce efforts to
police excessive contributions and other infractions,
devoting itself primarily to providing information to the
public. The commission's authority to audit campaigns
randomly would have to be restored to ensure compliance, and
sanctions for failure to disclose would have to be increased
substantially. In addition, the commission should be given
the power to seek emergency injunctions against spending by
political actors who refuse to comply with disclosure
requirements. And to move the FEC away from its frequent
three-to-three partisan deadlock, the six political party
commissioners (three Democrats and three Republicans) ought
to be able to appoint a seventh ``tie-breaker'' commissioner.
Presumably anyone agreeable to the other six would have a
sterling reputation for independence and impartiality.
Another remedy for predictable partisanship on the FEC would
be a one-term limit of six years for each commissioner. Freed
of the need to worry about pleasing party leaders in order to
secure reappointment, FEC commissioners could vote their
consciences more often and get tough with election scofflaws
in both parties.
Finally, in exchange for the FEC relinquishing much of its
police powers, Congress could suspend much of its power over
the FEC by establishing an appropriate budgetary level for
the agency that by law would be indexed to inflation and
could not be reduced. Another way of guaranteeing adequate
funding for a disclosure-enhanced FEC is to establish a new
tax check-off on Form 1040 that would permit each citizen to
channel a few dollars of her tax money directly to the FEC,
bypassing a possible vengeful Congress's appropriations
process entirely. The 1040 solicitation should carefully note
that the citizen's tax burden would not be increased by by
his designation of a ``tax gift'' to the FEC, and that the
purpose of all monies collected is to inform the public about
[[Page S6782]]
the sources of contributions received by political
candidates. It is impossible to forecast the precise reaction
of taxpayers to such an opportunity, of course, but our bet
is that many more individuals would check the box funding the
Federal Election Commission than the box channeling cash to
the presidential candidates and political parties. In today's
money-glutted political system, the people's choice is likely
to be reliable information about the interest groups and
individuals investing in officeholders.
concluding comments
The purpose of these reforms is to make regulation of
campaign financing more rational. Attempts to outlaw private
campaign contributions or to tell political actors how much
they can raise and spend are simply unworkable. Within broad
limits, the political marketplace is best left to its own
devices, and when those limits are exceeded, violators would
be punished swiftly and effectively.
Regarding the pro-incumbent bias of contributors, there is
unfortunately no obvious practical solution. It is impossible
to predict how a deregulated system would affect the existing
heavy bias toward incumbents by contributors, both PAC and
individual. In truth, there may be no way to eliminate pro-
incumbent financial bias.\5\ However, it is possible that
expanding private resources through deregulation will
actually end up helping challengers more than incumbents. A
substantial body of research shows that the amount an
incumbent spends is less determinative of election outcomes
than the amount a challenger spends.\6\ Simply put,
challengers do not need to match incumbent spending, but need
merely to reach a ``floor'' of financial viability.
Deregulations's greatest impact could actually be in helping
challengers reach this floor. If fears about the effects a
free market will have on competition prove warranted,
however, a modest federal subsidy in the form of discounts on
mail or broadcast time--so that every nonincumbent candidate
could at least reach the floor--would seem reasonable and
might be acceptable even to some conservatives as long as it
could be tied to deregulation.
If Deregulation Plus proves too radical, perhaps it is time
to revive the sensible scheme proposed in 1990 by the U.S.
Senate's Campaign Finance Reform Panel, which attempted to
bridge the gap between partisans on the basic issues by
suggesting many ideas, including so-called flexible spending
limits.\7\ These are limits on overall campaign spending by
each candidate, with exemptions for certain types of
expenditures by political parties (such as organizational
efforts), as well as small contributions from individuals who
live in a candidate's own state. Since the Supreme Court has
ruled that spending limits must be voluntary, incentives such
as reduced postal rates and tax credits for the small
individual donations mentioned above should be offered. The
flexible limits scheme represents a reasonable compromise
between the absolute spending limits with no exemptions
favored by Democrats and the opposition to any kind of limits
expressed by Republicans.
Flexible limits or Deregulation Plus ought to be
supplemented by free broadcast time for political parties and
candidates, as well as strengthened disclosure laws that
cover every dollar raised and spent for political
purposes.\8\ Detailed free-time proposals have been made
elsewhere but ignored by a Congress fearful of alienating a
powerful lobby, the National Association of Broadcasters.\9\
Yet no innovation would do more to reduce campaign costs or
help challengers than this one. Fortunately, technological
advances such as ``digital'' television--which will multiply
available ``analog'' TV frequencies by a factor of about six
once it is available in 1997--are creating new opportunities
to implement an old idea. Federal Communications Commission
chairman Reed E. Hundt has recently endorsed the provision of
free time for candidates and parties once digital TV comes
into being, noting that free time was ``not practically
achievable in an analog age [but is] entirely feasible with
the capacity and band width explosion of the digital era.''
\10\
In this area and others in the field of campaign finance,
it is time for new thinking and creative ideas to break the
old partisan deadlocks that prevent reform of an
unsatisfactory system.
Footnotes
\1\ This is an excerpt from the just published book, ``Dirty
Little Secrets: The Persistence of Corruption in American
Politics'' (New York: Times Books), by Larry J. Sabato and
Glenn R. Simpson. All rights reserved.
\2\ We are indebted to attorney Jan Baran of the law firm
Wiley, Rein & Fielding for this analogy.
\3\ Buckley v. Valeo, 424 U.S.1, at 66-7 (1976).
\4\ Interview with Trevor Potter, July 12, 1995.
\5\ Frank Sorauf, one of the most astute students of campaign
finance, has raised the possibility that ``voluntary funding
of campaigns for public office is intrinsically committed to
the support of incumbents and likely winners.'' Frank J.
Sorauf, ``Competition, Contributions, and Money in 1992,'' in
James A. Thurber and Candice J. Nelson (eds.), ``Campaigns
and Elections American Style'' (Boulder, Colo.: Westview
Press, 1995), p. 81.
\6\ For a cogent review of the literature, see Frank Sorauf,
``Inside Campaign Finance: Myths and Realities'' (New Haven,
Conn.: Yale University Press, 1992), pp. 215-16. There is an
increasing number of dissenters to this view. For instance,
Christopher Kenny and Michael McBurnett argue that those who
say that the level of incumbent spending has no effect
neglect the interrelationship of challenger and incumbent
spending in producing the outcome of the election. Incumbent
spending is at least partially a function of challenger
spending, that is, when challengers spend more, incumbents
respond to the increased competition with greater outlays.
When this interrelationship is taken into account, both
challenger and incumbent spending levels affect the outcomes
of the races; Kenny and McBurnett provide empirical evidence
to show the effect is statistically significant. (See Kenny
and McBurnett, ``An Individual Level Multiequation Model of
Expenditure Effects in Contested House Elections.'' American
Political Science Review 88 (September 1994): 699-707).
\7\ See ``Campaign Finance Reform: A report to the Majority
Leader, the Minority Leader, United States Senate, by the
Campaign Reform Panel,'' March 6, 1990, p. 41. Coauthor
Sabato was one of the panel's six members, appointed by then
Senate Majority Leader George Mitchell (Democrat of Maine)
and then Senate Minority Leader Robert Dole (Republican of
Kansas).
\8\ See Larry J. Sabato, Paying for Elections: The Campaign
Finance Thicket (New York: Twentieth Century Fund-Priority
Press, 1989), esp. pp. 25-42, 61-64. For example, disclosure
laws do not currently cover contributions to foundations that
presidential candidates sometimes form. These foundations
often pay for pre-campaign travel, and openly promote their
candidate-creator.
\9\ The Campaign Finance Reform Panel mentioned above
endorsed the free broadcast time proposal in ibid, pp. 25-42.
\10\ Remarks delivered at the Nieman Foundation, Harvard
University, May 5, 1995, p. 7. Hundt has proposed making
these new frequencies available under two government-imposed
restrictions (1) some broadcast time must be devoted to
educational programming for children, and (2) free broadcast
time must be given to political candidates and parties. See
also Max Frankel, ``Airfill,'' New York Times Magazine, June
4, 1995, p. 26; and Mary McGrory, ``The Vaster Wasteland,''
Washington Post, June 4, 1995, p. C1.
Mr. McCONNELL. Mr. President, I thank my good friend, the chairman of
the Rules Committee for his excellent statement and say again how much
I enjoyed sitting to his right listening to the testimony this spring.
Thanks for a very important contribution to this matter.
Mr. WARNER. Mr. President, I appreciate the sentiment. I commend the
Senator for his corporate knowledge. Indeed, he is the Oracle of Delphi
in this matter.
Mr. McCONNELL. I yield 5 minutes to the distinguished Senator from
Utah.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, it seems to me we really cannot debate
campaign finance reform without debating the way in which political
funds are not only given to candidates but also acquired from people.
Campaign contributions are usually donated voluntarily. You can get
an invitation to a fundraiser or a direct mail solicitation, and you
can decide whether to contribute to that candidate, cause, or party.
We all consider this one of the basics of American democracy.
Individuals must support it by supporting the candidates they believe
in. But there are people in our country for whom this very fundamental
freedom of choice is not given--members of labor unions. I may be one
of the few ever in the history of Congress to actually have earned his
union card and worked in the construction industry for 10 years.
It is certainly no secret that unions collect dues from their members
and that, in many cases, an individual has to join a union in order to
be employed in a particular industry or with a particular company. So
there is no effective choice about paying union dues for these people.
But to add insult to injury, these Americans, who are forced to pay
union dues, must also suffer the fact that unions donate millions of
dollars to candidates that any individual may not support.
The recent announcement by the AFL-CIO that this big labor--you would
have to say now mega-labor--organization would donate $35 million to
candidates this year may be welcomed by some--certainly all Democrats--
but disappointing to any who may not agree with the choices.
Take President Clinton, for example. I daresay that there may be any
number of union members out there who do not support President
Clinton's reelection.
In my view, this violation of fundamental choice and freedom of
speech is compounded by the fact that labor unions do not even disclose
their soft money contributions, which amount to millions.
At this particular time, I would like to place in the Record a
Congressional Research Service report for Congress entitled ``Political
Spending by Organized Labor: Background and Current Issues.'' This
report is astounding. They indicate that in Presidential elections, it
is estimated that from $400 to $500 million in moneys go basically to
the Democratic Party.
I ask unanimous consent that that report be printed in the Record at
this point.
[[Page S6783]]
There being no objection, the material was ordered to be printed in
the Record, as follows:
Political Spending by Organized Labor: Background and Current Issues
(By Joseph E. Cantor)
summary
Labor unions have traditionally played a strong role in
American elections, assisting favored candidates through
their direct and indirect financial support, as well as
through manpower and organizational services. While direct
financing of federal candidates by unions is prohibited under
federal law, unions can and do establish political action
committees (PACs) to raise voluntary contributions for
donation to federal candidates. This PAC money is also known
as ``hard money,'' because certain federal limits on
contributions make it harder to raise. It is also fully
disclosed under federal law. Other aspects of labor's
political support take the form of ``soft money,'' which is
not limited by federal law and is not as hard to raise. Soft
money is generally considered to be a formidable factor in
organized labor's political strength. This spending is
largely unregulated, either because it is restricted to
seeking to influence only its members and their families or
because it does not advocate specific candidates' election or
defeat. The soft money aspect of labor's political activity
has aroused controversy because of fundraising methods and
the relative dearth of disclosure.
origin of distinction between hard and soft money
During World War II, the War Labor Disputes Act of 1943,
known as the Smith-Connally Act, prohibited unions from
making contributions in federal elections.\1\ In 1947, the
Taft-Hartley Act made this wartime measure permanent and
expanded it to include primary elections and any expenditures
in connection with federal campaigns.\2\
---------------------------------------------------------------------------
Footnotes at end of article.
---------------------------------------------------------------------------
Organized labor responded to the 1943 prohibition on
donating union treasury money be creating the first separate
segregated fund (SSF), commonly known as a PAC. Through CIO-
PAC, the Congress of Industrial Organization established the
precedent of collecting voluntary contributions from its
members, which could be dispensed to favored candidates.
Other national and local unions followed suit: 17 national
labor PACs gave $2.1 million to federal campaigns in 1956,
and 37 such PACs spent $7.1 million in 1968.\3\ This
money, raised and spent according to federal regulation,
came to be known as hard money.
The concept of soft money arose during the several decades
before the Federal Election Campaign Act (FECA) of 1971 was
enacted [P.L. 92-225]. During that period, unions used money
from their treasuries--as opposed to PAC money--for political
activities other than donations in federal elections. These
included: (1) contributions to state and local candidates,
where union donations were allowed; (2) such ``educational,''
``non-partisan,'' activities as get-out-the-vote and
registration drives and distribution of voting records; and
(3) public service activities to promote their philosophy
through union newspapers and radio shows.\4\ It was generally
understood at that time that spending on such activities
might influence federal elections less directly or overtly
than candidate contributions; hence, it was not subject to
federal limits or disclosure rules. Thus, the term soft money
has come to mean money that is raised and spent outside the
purview of federal election law and that is not permitted in
federal elections, but which might have at least an indirect
impact on those elections.
The 1971 FECA incorporated the concept of union and
corporate SSFs in federal law for the first time. This
landmark legislation also distinguished between political
activities that were and were not to be federally regulated
and thus, without using the term, provided the legal basis
for union (and corporate) soft money. The Act amended 18
U.S.C. 610 (which banned union, corporate, and national bank
spending in federal elections) to give specific authority for
these organizations to use their general treasury money for
political activities. It thus exempted certain union and
corporate activities from FECA definitions of
``contribution'' and ``expenditure,'' if the activities are
aimed at restricted classes (for unions, members and their
families, and, for corporations, stockholders and their
families). The specified activities were communications
(including partisan ones), nonpartisan registration and get-
out-the-vote drives, and costs of establishing,
administering, and soliciting contributions to an SSF. The
1976 FECA Amendments (P.L. 94-283) recodified this provision
as 2 U.S.C. 441b, added executive and administrative
personnel and their families to corporations' restricted
class, and allowed membership organizations, cooperatives,
and corporations without capital stock to set up SSFs.
The FECA thus created a legal framework for unions to set
up PACs to raise and spend money directly in federal
elections, subject to federal regulation (hard money), and to
use its treasury money for specified activities aimed only at
its restricted class and not subject to federal regulation
(soft money).\5\
current regulations
Under recently amended regulations, unions (and
corporations) were acknowledged to have great latitude in
communications with their restricted classes. Under these
regulations, unions are exempt from FECA definitions of
``contribution'' and ``expenditure'' for communications on
any subject, registration and get-out-the-vote drives (not
just ``nonpartisan'' efforts), and costs of setting up,
administering, and fundraising for an SSF. Such efforts,
however, may only be aimed at union members, executive or
administrative personnel, and their families.\6\
New regulations, promulgated to implement the intent of
various Supreme Court decisions,\7\ also introduced the
standard of express advocacy in deciding what types of
communications are permitted by and to whom.
``Expressly advocating means any communication that . . .
uses phrases . . . which in context can have no other meaning
than to urge the election or defeat of one or more clearly
identified candidate(s) . . . .'' \8\
Communications containing express advocacy are permitted by
unions if limited to the restricted class; correspondingly,
communications without express advocacy may be made to the
public, if done independently of any candidate.\9\
hard money activity: union pacs
Given the rising costs of elections and the higher
contribution limits for PACs than individuals in federal
elections ($5,000 versus $1,000), PACs became a growing
source of campaign funds in the past 20 years.\10\ As the
pioneers in the PAC field, labor PACs grew in both overall
numbers and money contributed, although by both measures,
they have been increasingly overshadowed by corporate and
other types of PACs.
When the Federal Election Commission (FEC) first recorded
PAC activity in January 1975, 201 of the 608 PACs (one-third)
were labor PACs. As of January 1996, there were 334 labor
PACs, only 8.3% of the total 4,016 PACs.\11\
Another common gauge of federal PAC activity is the money
contributed to congressional candidates (relatively little is
given to presidential candidates). In 1974, Labor PACs
contributed $6.3 million to congressional candidates, half of
the $12.5 million from all PACs;\12\ in 1994, labor PACs gave
$40.7 million, 23% of the $179.6 million from all PACs.\13\
While union PACs do not play as large a role among all PACs
as they did 20 years ago, they have been able to remain
competitive by giving larger donations than most PACs. While
there are far fewer labor than corporate PACs, the average
labor PAC contribution of federal candidates in 1994 was
twice the average for a corporate PAC. Given labor's
traditional ties with the Democratic Party, it is not
surprising that labor PAC donations are largely directed the
Democrats. In 1994, for example, 96% of labor PAC
contributions went to Democrats, compared with 49% for
corporate PACs, 60% for non-connected (unsponsored) PACs, and
54% for the trade/membership/health category.\14\ The
relative political uniformity among labor PACs is viewed by
some as another way in which labor maximizes its political
power.
soft money activity: union treasuries
Although there are no complete, publicly available data on
amounts of union treasury money spent. One press account
expressed a widely held view:
``Labor's real importance to candidates, though, is not so
much the PAC dollars unions contribute directly to campaigns
as the expenditures they make from their treasuries to lobby
among their members. In each election, labor spends millions
of dollars in advocating its preferred candidates before the
union rank and file, but how many millions is unknown, and
estimates vary widely.'' \15\
Forms of support
Two major types of activities are financed by union
treasuries which promote labor's political philosophy: (1)
the exempt activities aimed at their restricted class (as
described); and (2) non-express advocacy communications aimed
at the public (also referred to as issued advocacy or public
education).
In the exempt activities category, unions have a ready
infrastructure (phone banks, office space, etc.) and a ready
pool of volunteers to make their internal communications and
voter drives a significant force. While these efforts may
only involve a restricted class and while corporations have
the same rights as unions in all soft money activities, the
Bureau of Labor Statistics (BLS) reports that labor's
restricted class totaled 16.4 million people in 1995, plus
families.\16\
In terms of public education and issue advocacy, unions
engage in the same type of efforts as many other groups in
the public arena. These often involve media ads to influence
public opinion on policy issues. By avoiding overt appeals to
elect or defeat specific candidates, these groups may promote
their political and philosophical goals without triggering
federal campaign finance regulation.
Source of funding and compulsory dues issue \17\
Union treasuries are financed in large part through dues
paid by members. In addition, under some union security
agreements, workers who do not join a union must pay a form
of dues called agency fees. There are no available data on
how many workers pay agency fees, but the BLS data indicate
that some 2 million workers were represented by unions but
who were not union members.
[[Page S6784]]
Some portion of these workers pay agency fees as a condition
of employment.
Due to the compulsory nature of agency fees, some workers
have objected to the unions' political uses of their
payments. Among several relevant rulings, the Supreme Court,
in Communication Workers of America v. Beck [487 U.S. 735
(1988)], said that a union may not, over the objections of
dues paying nonmember employees, spend funds collected from
them on activities unrelated to collective bargaining. Hence,
objecting employees could get a pro rata refund of their
agency fees representing costs of non-collective bargaining
activities.
While the court rulings have left no doubt that dissenting
workers are entitled to such refunds if requested, issues
have arisen as to the extent to which unions should notify
such workers of these rights. On April 13, 1992, President
Bush issued Executive Order 12800, requiring federal
contractors to post notices to employees informing them of
``Beck'' rights; this was rescinded by President Clinton
on February 1, 1993 (Executive Order 12836). Bills have
been introduced in recent Congresses to either prohibit
the use of ``compulsory union dues'' for political
purposes or to require greater notification of all
workers' (not just non-members') rights regarding the use
of their dues or agency fees.
Dollar value of union soft money
The only soft money unions must disclose under the FECA are
express advocacy communications with members, but only when
they exceed $2,000 per candidate, per election, and excluding
communications primarily devoted to other subjects.\18\ In
1992, unions reported $4.7 million on such activities.\19\
While unions are required to file financial reports under
the Labor Management Reporting and Disclosure Act of 1959
(P.L. 86-257), these reports are arranged by type of
expenditure (e.g., salaries, administrative costs) rather
than by functional category (e.g., contract negotiation and
administration, political activities). Under President Bush,
the Department on Labor proposed regulations to change
reporting to require functional categories (October 30,
1992); in a proposed rulemaking notice on September 23, 1993,
the Department, under President Clinton, rescinded the change
to functional categories.\20\
Due to the limitations of public disclosure, one must look
to estimates of the total value of labor soft money. Such
estimates, which amount to educated guesses and may be
influenced by the political orientation of the observer,
range from the $20 million labor supporters claim is its
value in presidential campaigns,\21\ to the $400-$500 million
critics estimate for total labor soft money in a presidential
election year.\22\
\1\ 57 Stat. 167. Earlier in the century, the Tilman Act of
1907 [34 Stat. 864] had banned contributions from
corporations and national banks.
\2\ The Labor Management Relations Act of 1947; 61 Stat. 159.
\3\ Alexander, Herbert E. ``Financing the 1976 Election.''
Washington, Congressional Quarterly Press, 1979. p. 559.
\4\ Alexander, Herbert E. ``Money in Politics.'' Washington,
Public Affairs Press, 1972, 1972. p. 170; Heard, Alexander,
``The Costs of Democracy.'' Chapel Hill, University of North
Carolina Press, 1960. p. 177-8.
\5\ The 1976 FECA Amendments required disclosure of internal
communications once they exceed $2,000, the only exempt
activity subject to federal disclosure requirements.
\6\ 11 C.F.R. Sec. 114.1(a)(2)(i)-(iii)
\7\ Most notably, FEC v. Massachusetts Citizens for Life,
Inc. [479 U.S. 238 (1986)].
\8\ 11 C.F.R. Sec. 100.22
\9\ 11 C.F.R. Sec. 114.3(a), (b), (c)(1) and 114.4(c)(1). (If
public communications are coordinated with a candidate, they
would constitute prohibited in-kind contributions, regardless
of content.)
\10\ 2 U.S.C. 441a(a)(1) and (2); to be eligible for the
$5,000 limit, most PACs easily meet the criteria for
``multicandidate committees'' (i.e., they must be registered
for at least 6 months, receive contributions from more than
50 persons, and donate to 5 or more federal candidates).
\11\ U.S. Federal Election Commission. FEC Release Semi-
Annual Federal PAC Count (press release): Jan. 23, 1996.
\12\ Common Cause. Campaign Finance Monitoring Project. 1974
Congressional Campaign Finances. Vol. 5--Interest Groups and
Political Parties. Washington, 1976. p. xii.
\13\ U.S. Federal Election Commission. 1994 PAC Activity
Shows Little Growth Over 1992 Level, Final FEC Report Finds
(press release): Nov. 1995.
\14\ Ibid.
\15\ Brownstein, Ronald, and Maxwell Glen. Money in the
Shadows. National Journal, v. 18, Mar. 15, 1986. p. 633.
\16\ U.S. Department of Labor. Bureau of Labor Statistics.
Employment and Earnings, v. 43. Jan. 1996. p. 210.
\17\ For fuller discussions of these issues, see: U.S.
Library of Congress. Congressional Research Service. ``Use of
Compulsory Union Dues for Political and Other Ideological
Purposes.'' CRS Report 94-565A, by Thomas M. Durbin and
Margaret Mikyung Lee. Washington, 1994.; --. ``Labor
Controversies: Suspension of Davis Bacon''; ``Open Shop
Bidding Requirements''; and `` `Beck' Rights.'' CRS Report
93-458E, by Gail McCallion, Vince Treacy, and William
Whittaker. Washington, 1993.
\18\ 11 C.F.R. Sec. 100.8(b)(4) and 104.6.
\19\ U.S. Federal Election Commission. ``Communication Cost
Index.'' July 7, 1993.
\20\ U.S. Department of Labor. Labor Organization Annual
Financial Reports. Federal Register, v. 58, no. 243, Dec. 21,
1996. p. 67595.
\21\ Alston, Chuck. Republicans Seek to Reduce Labor's Clout
at the Polls. Congressional Quarterly Weekly Reports, v. 48,
Mar. 31, 1990. p. 963.
\22\ Testimony of Reed Larsen (National Right To Work
Committee) and Professor Leo Troy (Rutgers University). U.S.
Congress. House of Representatives. House Oversight
Committee. March 19, 1996.
Mr. HATCH. Mr. President, let me reiterate: in my view, this
violation of fundamental choice and freedom of speech is compounded by
the fact that labor unions do not even disclose their soft money
contributions, which amounts to hundreds of millions of dollars. That
$35 million which we have all been reading about in the newspapers is
really nothing. It is almost a wash compared to what they really spend.
The unions pull in somewhere, it is estimated, around $4 to $6 billion
a year, and up to 85 percent of that money, according to some
estimates, is used for political purposes on local, State and Federal
levels.
The Supreme Court, in 1988, in Beck versus Communications Workers of
America, declared that workers were entitled to know how much of their
dues were being directed to political uses and to receive a refund for
that portion of dues paid.
I think a brief description of the Beck case is useful. Harry Beck
was a telephone company technician working for the Bell Telephone
System. He was not a member of the Communications Workers of America,
but was required to pay agency fees to the union under the labor
contract it negotiated with American Telephone & Telegraph Co.
In June 1976, 20 employees, including Mr. Beck, initiated a suit
challenging the CWA's use of their agency fees for purposes other than
collective bargaining, contract administration, or grievance
adjustment. Specifically, Mr. Beck and his coworkers alleged that the
expenditure of their fees on activities such as organizing the
employees of other employers, lobbying for legislation, and
participating in political events violated the union's duty of fair
representation and section 8(a)(3) of the National Labor Relations Act.
The Supreme Court agreed that Mr. Beck and other objecting employees
had a right to a refund from the union for the portion of their fees
being used for political and other noncollective bargaining or
representational purposes. This decision was, of course, significant
for its holding that unions in the private sector are not permitted,
over the objections of employees such as Mr. Beck, to expand funds
collected from them for political and other activities unrelated to
collective bargaining. In that regard, the Beck decision was a logical
and reasoned follow-on to prior Supreme Court cases regarding the
rights of employees covered by the Railway Labor Act to object to that
portion of their dues or fees expended for noncollective bargaining
purposes. See Machinists v. Street, 367 U.S. 740 (1961) and Ellis v.
Railway Clerks, 466 U.S. 435 (1984).
The Beck decision was significant in its affirmation (1) that the
Federal courts properly exercised jurisdiction over such cases as a
violation of the unions' duty of fair representation and, (2) that such
union conduct was also prohibited under the National Labor Relations
Act, enforcement of which is charged to the National Labor Relations
Board.
The rest of the system really is this. Regardless of what the court
ruled--and it took some 8 years before the NLRB even got around to
issuing its first ruling on a Beck-related case in 1995--all of the
burden is being placed on the employee instead of on the union. For an
employee to be able to withdraw his or her dues and to require
disclosure, the employee has to go to court, file a claim before the
NLRB, and/or has to go through all kinds of procedural maneuvers, and
basically has to resign from the union and lose all of that employee's
democratic rights to vote for or against strikes, for or against
contract ratification, et cetera. In the end, the employee is basically
out of a lot of money, out of his power of representation, and out of
his right to vote. Why? Simply because one employee, pitted against a
powerful union, has sought a voice in how his or her union dues is
being spent for political purposes.
I do not see how we can consider campaign finance reform without
correcting this injustice.
Nothing should be a more fundamental American right than political
expression. Those Americans whose union dues are diverted for political
purposes--without disclosure and without an adequate rebate system--
have been treated as second-class citizens.
The NLRB has not only failed to implement the Beck decision, but the
executive order issued by President Bush was rescinded during President
Clinton's first days in office. That is amazing to me. If we want true
campaign finance reform, why would we not clarify
[[Page S6785]]
this injustice to individual workers all over America?
What is even more amazing to me is that my colleagues on the other
side of the aisle have fought any attempt to deal with this issue.
Several years ago, I oferred a simple and straightforward amendment to
campaign finance reform that would merely have required that unions
disclose to dues paying members how their dues money is being spent. It
was defeated.
It is about time that we realize that mega-labor unions are among the
biggest--they are the biggest--special interests in the electoral
system, and that their political capital was not always given away
freely.
Unless this issue can be addressed, I do not see how we can call this
campaign finance reform. It is more a continuation of campaign finance
coercion.
Employees have a right to know how much of their moneys are used for
partisan political activities with which they disagree. That is what
the Supreme Court said, and that ought to be enforced. This bill will
do nothing about that.
Mr. President, I yield back whatever time I have.
Mr. McCONNELL. Mr. President, I yield the Senator from Colorado 2
minutes.
Mr. BROWN. I will take 1 minute. I ask unanimous consent that the
Brown amendments 4108, 4109, as offered to S. 1219, be withdrawn
because they were improperly drafted.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BROWN. Mr. President, I want to indicate my highest praise and
respect for the authors of the underlying bill. I think they come with
good intentions and an honest bipartisan effort. I am concerned about
the bill. I am concerned about the prospect of us dividing up broadcast
time. It does seem to me that that is a taking of property without
compensation, and I believe it is a major flaw in the plan before us.
I yield the floor.
Mr. FEINGOLD. Mr. President, I yield 30 seconds to the Senator from
Arizona.
Mr. McCAIN. Mr. President, not for the first time I have heard
complaint about the power of unions and how this bill does not address
that appropriately. It just came from the Senator in the chair. If do
you not like it, come to the floor and propose an amendment and do
something about it. There are 53 votes on this side. Do not refuse to
move forward with the bill. If you do not like the bill--everybody
comes down here and says, ``I am for campaign finance reform, but just
not this one.'' If you are not for this one, come to the floor after we
invoke cloture, and propose your amendments. We have 53 votes on this
side, 47 on that side. If they share the view of the Senator from Utah,
then you can amend it and take care of it. But do not expect the
American people to accept this story about ``I am for campaign finance
reform but not this one,'' and then not vote to cut off debate because
it is a filibuster, and then we cannot move forward with the bill.
Mr. HATCH. Mr. President, will the Senator yield on that point?
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, let me reiterate what the Senator said.
It was not our idea to have a cloture vote up front so there could not
be amendments. That was the idea of the other side. That is the only
way we could get the bill up for a vote.
I yield 5 minutes to the distinguished Senator from New Jersey.
Mr. HATCH. Will the Senator yield for 10 seconds?
Mr. BRADLEY. Not out of my time.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. HATCH. If it is on our time?
Mr. BRADLEY. I would be prepared to yield on the manager's time.
Mr. McCONNELL. Mr. President, I yield the time out of my time.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, let me say this up front. If cloture is
invoked, that type of amendment would not be germane and would not be
permitted. If cloture is not invoked, I intend to bring up the
amendment.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. BRADLEY. Mr. President, I think it says a lot if the Senate is
not able to move forward on this good piece of legislation. I think
this inability to move forward says two things.
The first thing it says is that fundamental campaign finance reform
will not begin in Washington. It will begin in the States. The
opponents of this bill like the status quo. They do not want to change
the status quo. They have not offered an alternative. They have only
picked at the bill. They want to keep money and politics just as it is
today because they know how to work the system.
The fact is the American people have a different view. I am astounded
how much opposition to this bill is rooted in a kind of Washington
understanding of this country. The people in this country look at
elected Representatives and Senators and they think we are controlled.
They think we are controlled by special interest money. Some think we
are controlled by parties that blunt our independence. Some think we
are controlled by our opposition that prevents us from saying what we
really believe and only saying things that will advance us to the next
level of office. Some even think we are controlled by pollsters who
give us focus views and phrases and paragraphs, that we do not think
for ourselves, saying things because we have convictions in our heart.
The fact is that the opponents of this provision do not get it. This
year there will be referendums in California, Colorado, Alaska,
Arkansas, and Maine, and all of those referendums will be sending one
message: reduce the role of money in politics; cut back on the role of
money in politics.
Those referendums will be followed in the years to come by other
referendums, and maybe after another 2 or 3 years the people in this
body who like the status quo will change. I hope they will, because I
believe money and politics today distort democracy.
That leads to the second point. We need to confront the central
issue. The central issue is Buckley versus Valeo. The only way to
confront Buckley versus Valeo directly is with a constitutional
amendment.
The distinguished Senator from South Carolina and I have offered such
an amendment for a number of years that would say simply that the
Congress and the States may limit what is spent in a campaign in total
and what an individual may spend on his or her own campaign. Until we
take that step, we are going to be constructing Rube Goldberg types of
contraptions to try to get around the central issue, which is, money is
not speech. Anybody who believes that money is speech, in my opinion--
the Supreme Court said it was, and, therefore, it is the law of the
land. That is why we need to amend the Constitution. But I do not
believe that a rich man's wallet in free-speech terms is the equivalent
of a poor man's soapbox. We have to confront that issue directly.
Otherwise, we are going to be in these debates about antacid and bubble
gum. Even that debate is a diversion from the central issue, which is
changing the way we now do politics in Washington, but even that issue
is based on a confusion.
Capitalism is different than democracy. The distinguished Senator
from Kentucky said, ``Well, we have to compare antacids and bubble gum
because''--compared to what? I would suggest you compare the amount of
money in politics in 1980 versus the amount of money in politics today
and the size of the contribution and the sources of the money.
Without question, money is distorting democracy. And, indeed, we have
had other times in American history where there have been distortions
in our democracy. We have changed it by recourse of the constitutional
amendment.
Many people will remember earlier in this century when women did not
have the right to vote. The absence of that voice in the polling booths
distorted democracy. We passed a constitutional amendment giving women
the right to vote in order to restore a broader participation.
I believe today money is playing the same role. The fact of the
matter is that until we confront this issue, skepticism is going to be
high. People say, ``Well, it is not the No. 1 issue on people's
minds.'' That is true. The No. 1 issue on people's minds is, how do I
put
[[Page S6786]]
bread on the table? How do I pay the utility bill? How do I send my
kids to college? They are dealing with the economic transformation
which we are in. That is the No. 1 issue. But when they say, ``Do any
of the politicians have any relation to my dealing with these issues,''
people say no, because politicians are controlled by money. That is why
this is a linchpin issue.
Mr. FEINGOLD. Mr. President, I thank the Senator from New Jersey.
Mr. President, I yield 3 minutes to the distinguished Senator from
Connecticut.
Mr. DODD. Mr. President, I thank the Senator.
Mr. President, let us be very clear. I think we all get a sense of
what is going to happen here in about 3 hours and 45 minutes, and that
is cloture, instead of being invoked, is not going to be invoked.
Everyone ought to understand this. This is the vote. This will be
your vote in this Congress on campaign finance reform. It is going to
come down to this. It will get obscured so much because it is a
procedural vote. But how you vote on this will be determined on how you
are judged on the issue of campaign finance reform.
The idea that we ought to reject the effort to invoke cloture here
because we want to make perfect the enemy of the good, I think is a
great tragedy. I think it is so transparent that anyone watching this
will see right through it--to come up and say, ``I don't like this
aspect or that aspect,'' therefore denying the opportunity for cloture
to be invoked. As I listened to our distinguished colleague from Utah
suggest an amendment that might have something to do with whether or
not organized labor would be able to participate with soft money, or
that independent campaigns will not be allowable in a postcloture
environment, it is ridiculous on its face.
So I want to commend our colleague from Arizona and our colleague
from Wisconsin for bringing this up. I am proud to be a cosponsor of
it. I have believed for years that we had to move directly and
aggressively in this area of campaign finance reform.
Mr. President, in Connecticut, it is $16,000 a week. That is what you
have to raise over a 6-year period every week, week in and week out, if
you are going to be successful in taking on or waging an effective
campaign.
We know today--quite candidly, all of us in this Chamber know--that
the respective leaders of our campaign committees are out recruiting
affluent candidates. Go out and buy a candidate who is well-heeled
financially, and you have a pretty good candidate, someone who can
write their own checks. Why seek those kind of candidates? Why? Because
you understand that it is money. It is money that allows you to ante up
and to get an entry fee into the contest.
There is a woman by the name of Linda Sullivan who a few weeks ago in
Rhode Island--and I do not know much about it, what the issues are or
what she stands for--said: ``I took my race out of Congress because Mr.
and Mrs. Smith can no longer be candidates of the Congress of the
United States on an average basis in their finances.''
So we all know her situation. Every single one of us knows that the
debates around here are directly affected by it. Positions people take
are directly affected by this issue.
This is not a sweeping piece of campaign finance reform legislation,
but it is the first effort we are going to have to make a difference in
this area. After years of talking about it we now have a chance to do
something about it.
Mr. President, I am general chairman of the Democratic National
Committee. I just want to say, while not everyone in my party agrees
with this, that I happen to believe this is important. This is the one
opportunity we are going to have to make a true difference on how we
wage campaigns in this country.
I plead with our colleagues on both sides of the aisle. We have never
had a bipartisan proposal here before. It has always been partisan.
This is a chance to go on record. This is a vote on campaign finance
reform.
Mr. President, I rise on the floor today for what I believe is a
truly historic debate.
As America's elected leaders we play a critical role as guarantors
and protectors of our Nation's democratic institutions.
And with this legislation today, we have a unique opportunity to
fulfill that mandate as leaders--by beginning the long and arduous
process of restoring the American people's faith in their Government
and their democracy.
The McCain-Feingold bill will not change the American people's
seemingly inherent cynicism toward their Government overnight.
That is an ongoing process--and one that should be of paramount
concern to every Member of this body.
However, by reducing the role of money in our campaign system, this
legislation takes a critically important first step toward cleaning up
our political process.
In my view, there are few issues we in Congress consider that have as
overwhelming and direct an impact on the functioning of our democracy
than the laws governing how we run campaigns in this country. For many
of us, campaigns are often the most direct means by which we, as
elected representatives, communicate with our constituents.
But, today those lines of communications are frayed by a political
process that rewards those with money and influence, rather than
working families and Americans struggling to make ends meet.
Created as a Government of the people and for the people, our
Government today seems to operate more for the well-connected few than
the country as a whole.
That's why, more than any other time in our history, the American
people's confidence in their Government and its elected leaders is
abysmally low.
Poll after poll provides ample evidence that the American people
believe special interests and lobbyists have a greater influence on our
endeavors than the will of the voters.
I believe wholeheartedly that the vast majority of those who serve in
the U.S. Congress are well-intended and responsive to the varied needs
of their constituents.
However, I think I speak for many of my colleagues when I say it is
becoming more and more difficult to make that argument to the American
people.
Because, when the American people look to Washington they do not
always see citizen-legislators who focus their full energies on
tackling the problems impacting America's working families.
Instead, they see corporate lobbyists working hand-in-hand with
lawmakers to turn back the clock on 25 years of environmental
protection.
They see special interest lobbyists with unfettered access to
committee rooms drafting legislation that fails to keep our workplaces
safe and protect the food we eat.
When they look to Washington, they hear politicians in positions of
great power and influence bemoaning the lack of money in our political
process.
They see leaders who insist that the political process is starving
even though $724 million was consumed on House and Senate campaigns in
1994 alone.
When they look to Washington they see unlimited access and influence
given to the fewer than 1 percent of Americans who can, and do, give
more than $200 a year to political campaigns.
And, when they look out on the campaign trail they see a political
process dominated by candidates with deep pockets, instead of those
with new ideas.
Whatever one may think of Steve Forbes' ideas on the flat tax or
economic growth, it is doubtful that most Americans would know about
them if he were not a multimillionaire.
Consider that in his run for the Republican Presidential nomination,
Forbes spent $400,000 per delegate that he won in the Republican
primaries. Our colleague Senator Phil Gramm, spent $20 million to win
10 delegates. For Bob Dole, his victory in the Iowa caucuses cost him
about $35 a vote.
In fact, Presidential candidates spent more than $138 million by the
end of January 1996--all before a single American voter had stepped
into the voting booth to cast their ballot.
Is it any wonder the American people are cynical and disenchanted
with their elected leaders?
But, the vast sums of money needed, for even unsuccessful runs for
public office, are simply out of reach of the average American.
Eighty-five years ago, former President Theodore Roosevelt said ``the
[[Page S6787]]
Representative body shall represent all the people rather than any one
class of the people * * * .''
But today, not only are we becoming more responsive to one class of
citizens, but the reins of leadership are increasingly available to
only a select few Americans.
Throughout my more than 21 years of public service, it has been my
great privilege to serve the people of Connecticut in the U.S.
Congress.
Every time I come to the floor of this body I am humbled by the great
men and women who came before me: Daniel Webster, Henry Clay, Everett
Dirksen, Lyndon Johnson, Richard Russell, and the list goes on.
But today in America, I genuinely fear that the next generation of
Clays, Websters, Doles, and Byrds will be excluded from a process that
favors the privileged few.
This is not just partisan rhetoric. There are real Americans who are
being thwarted from seeking public office.
Just a few weeks ago, I read about Linda Sullivan, president of the
Warwick City Council in Rhode Island.
Ms. Sullivan considered seeking the Democratic Party's nomination for
the seat of Congressman Jack Reed, who is running for the Senate.
But, she decided against it because she simply couldn't raise the
$450,000 needed to seek the nomination.
And I want everyone to hear what she said, because it says a lot
about our current campaign system.
Unfortunately, my campaign has come face to face with the
financial reality that governs today's politics in America.
Sadly, Mr. and Mrs. Smith cannot go to Washington anymore.
Now, I do not know Ms. Sullivan personally. I do not know anything
about her ideas, her policy prescriptions or her capability as an
effective legislator.
But, what I do know is that the exclusion of an entire segment of the
population from the political process threatens to undermine the whole
notion of participatory democracy in this country.
What is more, it fundamentally limits the choices of the American
people to politicians who, more and more, are incapable of
understanding the problems of working class Americans.
Aristotle once said that; ``Democracy arises out of the notion that
those who are equal in any respect are equal in all respects.''
But, when it comes to political campaigns in this country and the
access that working Americans have to their lawmakers, those words ring
hollow.
Mind you there are no silver bullets for ending the American people's
inherent cynicism or feeling of disempowerment toward their government.
But the legislation we are debating today is the foundation by which
we must begin this process of change.
First of all, by limiting overall campaign spending, the McCain-
Feingold bill would allow candidates to focus less time on raising
money and more time on tackling the issues that truly affect the
American people.
Now, I know some of my colleagues argue that this provision of the
bill violates the 1976 ruling that political campaign spending is a
form of political speech, and thus protected by the first amendment.
But, this legislation imposes only voluntary limits on campaign
spending. No candidate would be mandated to accept them.
In fact, no provision in this legislation would prevent a candidate
from spending as much money as they wanted to.
However, if they chose to abide by these voluntary limits, candidates
could receive free television time, could purchase advertisements at
lower rates, and could send out mail at cheaper rates.
Additionally, the bill would tackle the issue of millionaire
candidates by exempting candidates from the bill's benefits if they
spend more than $250,000 of their own money.
The McCain-Feingold bill is by no means perfect. In particular, we
need to be sure that working people are not restricted from
participating in the political process and that grass-roots and
volunteer activities are not constrained.
However, it is an excellent place to start in reforming the means by
which we fund political campaigns in this country.
Let me clear on one point: I am not a Johnny-come-lately to this
debate. In 1985, I sponsored one of the first legislative proposals to
reform campaign finance laws.
And as a Congressman, Senator, and now general chairman of the
Democratic party I have flourished within the framework of the current
system.
But, after 20 years of public service I am more convinced than ever
that the current approach to funding political campaigns in this
country is broken and desperately in need of reform.
Time after time, we have talked about reform--particularly when it is
an election year--but in the end we have done nothing. We have
appointed commissions, we have proposed legislation, we have ordered
reports, analyses and studies, and yet in the end, it seems that it is
just business as usual.
Well today, I call on all my colleagues to chart a new course, to put
aside their partisan differences, to ignore how this bill affects our
reelection chances and put first and foremost in our deliberations the
good of the Nation.
Let us not forget that a Government that is viewed with suspicion and
mistrust by its own people cannot sustain our Democratic institutions.
As Henry Clay, a former Member of this body once said:
Government is a trust, and the officers of the government
are trustees; and both the trust and the trustees are created
for the benefit of the people.
Let us remember that: our democracy exists for the benefit of the
people--and not their elected leaders.
As leaders, we must not shirk our responsibility to do all we can to
restore that sense of trust to the American people. The McCain-Feingold
bill begins that process and I believe that as a body we have a solemn
responsibility to embrace this legislation.
Mr. FEINGOLD. Mr. President, I yield 30 seconds to the Senator from
Arizona.
Mr. McCAIN. Mr. President, I ask unanimous consent that in the event
that cloture is invoked, that two amendments be made in order and
germane, one on the Beck decision and the other on allowing unlimited
spending on campaigns.
The PRESIDING OFFICER. Is there objection?
Mr. McCONNELL. Mr. President, I have no objection.
Mr. McCAIN. Mr. President, I withdraw the unanimous consent request,
but I want to make it clear that in the event that cloture is invoked,
that the unanimous consent proposal made would make those amendments
germane to this bill. But I withdraw the unanimous consent request.
The PRESIDING OFFICER. The request is withdrawn.
Mr. McCONNELL. Mr. President, how much time remains on our side?
The PRESIDING OFFICER. There are 24 minutes and 23 seconds.
Mr. McCONNELL. I yield to the distinguished Senator from Oklahoma 5
minutes.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. I thank the Senator for yielding. I do not think I will
even take that much time. I know time is very precious right now. I
have been listening to the debate, and I am the first one to say I am
not on any of the committees that deal with this, so it is not that I
have been entrenched in this issue. I agree with one thing the Senator
from Connecticut said, and that is it is very transparent, the things
that are going on around here.
The Senator from Utah was very specific and I think very articulate
in the way that he addressed how this would affect labor unions. It is
my understanding that even in the reporting aspects of soft money each
local could give up to $10,000 without even reporting it. So let us
assume that they report accurately and that someone who says that a
local says it is contributing less than $10,000 is in fact correct. I
am not ready to accept that. But let us assume that is right. If you
have a hundred locals, you are talking about a million dollars. No one
will ever know where it came from. This is money that is used very
effectively in campaigns.
So as far as I am concerned, one of the big areas that should be
regulated is left out of this thing, and that is labor unions. And then
there is trial lawyers. I have to tell you that every time I run for
office there are thousand-dollar checks coming from all
[[Page S6788]]
over, from trial lawyers from all over America because I am the one who
has on his agenda a desire that I am going to fulfill to see to it we
have real meaningful tort reform in this country, to make us
competitive again. So we have the trial lawyers out there with the
ability to send in, on their own contributions of $1,000 apiece, to
maybe six different campaigns. Maybe there are 100 of them who are out
there. All you have to do is look at an FEC report and you can see that
they are doing it.
Let me make one comment about PAC's. Everyone assumes that political
action committees are something evil. Political action committees allow
small people to get involved, people who are of low incomes to get
involved in the process, and there is not any other way they can get
involved. I have been a commercial pilot for I guess 38 years. I have
been active in aviation. I believe that aviation makes a great
contribution to the technology of aerospace and many other things, and
consequently I am supported by the Aircraft Owners and Pilots
Association, AOPA, 340,000 members. Each one puts in about $5 and they
do contribute to people who are supportive of the industry that they
believe in.
The NRA, they have taken a lot of hits recently. Who are the NRA?
When you sit up here, you are looking at millions of dollars in
Washington, but if you were with me last weekend in Hugo, Cordell, Lone
Grove, Sulphur, those are people who belong and they might give $5 a
year because they honestly in their hearts believe in the second
amendment rights to the Constitution. I do, too. They contribute. These
are not big fat cats, wealthy people. So I think to categorize PAC's as
being something that is evil in our society is wrong.
The third thing I do not like about this legislation that is coming
up, and I will be opposing it, is the arrogance that is there. We have
reduced postage for us--not for you, not for anybody else but for us.
Now, what happens when you reduce our postage? It is all out of one
fund. So other postage is going to end up going up. It is just sheer
arrogance that we should be treated differently than everybody else.
We passed legislation, a very good bill through this Chamber at the
very first of this Congress and that was the bill which made us live
under the same laws as everybody else. All of a sudden people around
here are looking, pointing fingers, saying, should we have done that?
Here we are again, coming right on the heels of that, saying we are
going to give us a benefit nobody else has.
The Senator from Massachusetts a minute ago stood up and said we
ought to have more free time on TV. Who are those broadcasters out
there? Are they all fat cats? I go around Oklahoma. We have small
stations. They are going to give time, and if they do not give free
time, they are going to have to give a reduced rate, 50 percent of the
lowest rate. That is for us because we are in Congress. We are
important people. We are supercitizens--not everybody else, just us.
The arrogance in the way we are approaching that, saying we are
entitled to things other people are not entitled to I find to be very
offensive.
Mr. President, I conclude by saying I agree with the Senator from
Connecticut. This is transparent. The two biggest offenders, the ones
who contribute the most to campaigns--and I would categorize them as
organized labor and trial lawyers--are not going to be inhibited in any
way by this bill.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. McCONNELL. I thank my good friend from Oklahoma for his important
contribution to this debate.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 19 minutes.
Mr. McCONNELL. I yield 5 minutes to the distinguished Senator from
Georgia.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. COVERDELL. Mr. President, I thank the Senator from Kentucky for
his diligent and dedicated efforts to this debate for a long, long
period of time--probably longer than he wishes.
I know it has been said many times but I think everybody should see a
caution flag go up when the Republican National Committee, the National
Taxpayers Union, the National Right to Life Committee, the National
Rifle Association, the American Civil liberties Union, the Christian
Coalition, Direct Marketing Assocation, National Association of
Broadcasters, National Assocation of Business PAC's, National Education
Association, the complete political spectrum, all are opposed to this
legislation. Why? Because it is an infringement on the first amendment
of the Constitution of the United States. It is that simple.
Just moments ago I was at a hearing where a former Presidential
candidate, Gov. Lamar Alexander, said it best. He said these efforts to
regulate and restrict have left labor with full constitutional rights
of the first amendment, political parties with full constitutional
rights of the first amendment, the entire media of the United States
with the full rights of the first amendment, and only one category is
being denied their rights under the first amendment, and who is that?
It is the candidates, the candidate for President, the candidate for
Senate, the candidate for Congress. The only class for which we
restrict first amendment rights, the people who will ultimately
represent America are the single class we carve out to deny first
amendment rights.
Mr. President, this kind of legislation envisions a very narrow
sanitized environment, almost like a prize fight with two contestants
inside a defined ring, and there are rules that define how that combat
will be conducted. But in the case of American politics, vast resources
affect the outcome of the election. Take my State. The largest
newspaper in the State is the Atlanta Constitution. It has a
circulation of a half a million, on Sunday 750,000, and they can say
anything they choose and meddle in every political race, and with
everybody's acknowledgment, and even theirs, with a very biased and
fixed agenda.
So in seeking office a candidate who might not agree with that agenda
is not simply dealing with his or her opponent; they are dealing with
the extraneous factors--the media itself, the State's largest daily
newspaper. Why is it that this corporation, the Atlanta Constitution--
it is a corporation, I might add--is not restricted under campaign
finance? Why are their first amendment rights protected but Ace
Hardware's are not? They can say anything they choose. They can put an
editorial in their editorial page every day for a month. They can
comment, as they do, on the fortunes of a political campaign every day.
To buy an ad in that paper might cost, one page, $14,000, or a half a
page $7,000. So think of the enormous resources that are being invested
in meddling or commenting, however you want to put it, on the outcome
and fortunes of a political race.
We take the candidate and draw narrow parameters around that
candidate in terms of how he or she can communicate.
Frankly, I think it is the candidate that should be the freest to
express him or herself, to talk about and interpret his or her beliefs.
The idea of restraining that candidate's capacity only enlarges the
forces of those who do not ultimately represent the people--the
journalists, the media. Would it not be far better to let the person
who is going to represent the American people, the person who is going
to represent the people from the good State of Georgia, to be on equal
footing with all these other resources? The answer to that question is
yes.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. COVERDELL. I ask for 1 additional minute.
Mr. McCONNELL. I yield my colleague 1 minute.
Mr. COVERDELL. I think the Governor of Tennessee said it best. The
first amendment is protective for the labor movement, for the media,
for special interest groups, and one class in American politics has
been carved out for denial of first amendment rights: the candidates.
That is not appropriate.
I yield the floor.
Mr. McCONNELL. Mr. President, I say to my friend from Georgia,
special thanks for a superb presentation.
I just want to make one additional comment to follow on. The
proponents of this kind of legislation have said
[[Page S6789]]
over the years they wanted to level the playing field. I would say to
my friend from Georgia, he and I compete in the political arena in the
South. In order to level the playing field in my State, not only would
you have to get a number of the newspapers sold to different kinds of
owners, you would also have to change the voter registration and
history of the State in order to create a remotely level playing field
upon which a person with the disability that the Senator from Georgia
and I share, that disability of being registered Republicans, so we
could compete on a truly level playing field.
In fact, even the attempt to create a level playing field is
constitutionally impermissible. Buckley verus Valeo addressed that
particular issue. So I thank my friend from Georgia for a remarkable
contribution to this debate.
Mr. COVERDELL. I thank the Senator from Kentucky.
The PRESIDING OFFICER. The Senator from Wisconsin has 15 minutes.
Mr. FEINGOLD. I yield 1 minute to the Senator from Minnesota.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, it has been my honor to work with
Senator Feingold and Senator McCain from the very beginning, and
Senator Thompson. I spoke yesterday, so I will be very brief, less than
a minute.
The way in which big money has come to dominate politics, I believe,
is the ethical issue of our time. Too few people have way too much
power and say, and the vast majority of the people in our country are
not well represented.
The standard of a representative democracy is that each person should
count as one and no more than one. That standard is violated every day
by the way in which big money dominates politics in our country today.
I say to my colleagues, I have worked on gift ban. I have worked on
lobby disclosure. This is the reform vote of the 104th Congress. We are
just asking for an opportunity to have the debate, move the bill
forward, and make it better.
Mr. President, to go to a commission--I say to my colleagues, do not
look for cover, because a commission to study the problem is not a step
forward, it is a great leap backward.
Ms. MOSELEY-BRAUN. Mr. President, I rise today in support of the
McCain-Feingold-Thompson bill, S. 1219. Although this bill is not the
ideal resolution of this complicated issue, it is clear that the time
has come to reform the campaign finance architecture.
Campaign finance reform is needed to restore the American people's
faith in the electoral process. Americans are frustrated; many believe
that the current system cuts them off from their Government. A recent
League of Women Voters study found that one of the top three reasons
people don't vote is the belief that their vote will not make a
difference. We saw the result of this cynicism in 1994 when just 38
percent of all registered voters headed to the polls.
Voters, and not money, should determine election results. The money
chase has gotten out of control, and voters know that big money stifles
the kind of competitive elections that are essential to our democracy.
The effort to raise the money needed to run for election ends up making
it more difficult to make needed reforms in a whole range of areas.
This system must be reformed.
The effort needed to raise the average of $4.3 million per Senate
race in the last election decreases the time Senators need to meet
their obligations to all of their constituents. Furthermore, when
voters see that the average amount contributed by PAC's to House and
Senate candidates is up from $12.5 million in 1974 to $178.8 million in
1994--a 400-percent rise even after factoring in inflation over that
period--there is a perception that lawmakers are too reliant on special
interests to make public policy that serves the national interest. More
and more voters believe that Members of Congress only listen to these
special interest contributors, while failing to listen to the very
constituents who put them into office.
That is part of the reason why there is overwhelming public support
for reform. And make no mistake, there is a real public consensus that
reform is needed--now. Ordinary Americans want--and deserve--Government
that is responsive to their needs and problems. The way to do that is
through spending limits. Spending limits will make our system more open
and more competitive. Spending limits can help focus elections more on
the issues, instead of on advertising.
Unfortunately, however, for all of its strengths, S. 1219 does not
cure all the flaws of our current campaign finance system. The
legislation has gaps, and in some areas, it has made mistakes, mistakes
that deserve the Senate's attention before this bill becomes law.
When the Senate considered campaign finance reform in the 103d
Congress, I quoted a column by David Broder. He made the point that
many of the reforms that resonate strongly with the public ``have a
common characteristic: they would all increase the power of the
economic and social elite that most vociferously advocates them. And
they might well reduce the influence of the mass of voters in whose
name they are being urged.''
I think that we need to take Mr. Broder's warning to heart. We must
be sure that we don't have a process that only further empowers
political elites that are already empowered. We want campaign finance
reform that allows candidates more time to talk to voters. Voters want
to know that the system works for ordinary Americans and not just those
few who can devote substantial time and money to politics. They deserve
better than the present system.
The inordinate effort required to raise massive amounts of money
within the strictures of contribution limits make fundraising a
continuous and time consuming condition of elections.
It is also worth keeping in mind that campaign finance reform cannot
work for every American unless it also works for every candidate,
including minority candidates and women. Minority and women candidates
currently have less access to the large sums needed to run for office
today than other candidates. That financial inequity is one of the
primary reasons both women and minorities have long been under-
represented in both the Senate and House. The spending limits in S.
1219 are very important in addressing their concerns, but reform will
only be truly successful if it increases opportunities for candidates
from all walks of life and our society. Campaign finance reform will be
counted as a failure if the numbers of women and minorities in Congress
goes down, rather than up, under a new system.
S. 1219 attempts to level the playing field for all competing
candidates. It establishes a voluntary system by which candidates who
agree to limit their overall spending receive certain benefits,
including 30 minutes of free broadcast time, television and radio time
at 50 percent off of the lowest unit rate, and reduced postage rates.
If a complying candidate's noncomplying opponent has raised or spent
10 percent more than the State spending limits, then the complying
candidate can spend 20 percent more than the spending limit and still
be in compliance with the bill. If a noncomplying candidate raises or
spends 50 percent more than the spending limits, the complying
candidate's limits increase 50 percent without penalty.
Furthermore, complying candidates cannot spend more than the lesser
of 10 percent of their spending limit, or $250,000, from their personal
funds. When a candidate declares their intention to spend more than
$250,000 of personal funds, the $1,000 contribution limit for
individuals is raised to $2,000 for complying candidates, and the non-
complying candidate does not qualify for any of the bill's benefits.
These steps represent real progress, but the problems here are very
serious, and need much more attention. Those who are independently
wealthy have unequal access to the political system, and if reform is
to work, we have to do something about that.
Self-financing candidates are a rapidly growing phenomenon in our
current political system. In 1994, one candidate for the Senate spent a
record setting $27 million, almost all of which was his own money. And
over the last year, a Presidential candidate spent $30 million of his
own money for the primary elections alone. Without workable spending
limits that apply to every candidate, those who can break the limits by
dipping into their own deep pockets will end up dominating
[[Page S6790]]
our politics, even more than is the case now. Talented, but less
wealthy candidates will have it tougher than ever. The trend toward a
Congress comprised disproportionately of millionaires does a disservice
to representative democracy. Such trends are a very troubling aspect of
the loss of confidence in our system. This bill does not resolve that
fundamental flaw.
Imposing spending limits on millionaire candidates is very difficult,
given the Supreme Court's decision in the case of Buckley versus Valeo,
which used a first amendment justification to invalidate a
congressional attempt to impose limits on the amount a candidate can
contribute to his or her own campaign. However, there are things that
Congress should consider that might be able to bring self-funding
candidates into a campaign spending limits regime, or at least provide
enough disincentives so that these candidates will no longer profit
politically by using their own resources to finance their campaign cash
flow.
The relevant provision of the 1971 Campaign Act that was invalidated
in Buckley provided that a Presidential candidate could spend no more
than $50,000 out of personal resources. It is at least possible that
with a much more generous, though not unlimited, opportunity for
candidates to spend their own money, the infringement of individual
freedom is less severe, and perhaps not substantial as stated by the
Court in Buckley. After all, it is one thing to tell a candidate that
he or she can't spend more than $50,000 of personal money; it is quite
another to say he or she can't spend more than $1 million--and that the
rest must be raised from small contributors in order to demonstrate
broad political support.
If candidates were required to seek and demonstrate support from a
broad range of individuals--an important component of the democratic
process--the Supreme Court might see the first amendment issue somewhat
differently. An appropriate analogy would be the laws that require
candidates to obtain a certain number of signatures as a requirement
for access to the ballot. In other words, the reason for this limit
would not be to equalize resources, but to ensure that the amounts
candidates spend have some relation to breadth of support. This
proposal may be at least arguably consistent with Buckley, since the
Court in that case recognized that the Government has ``important
interests in limiting places on the ballot to those candidates who
demonstrate substantial popular support.''
In fact, it is that statement by the Court which demonstrates the
flaw in the Buckley versus Valeo decision. In the not too distant past,
a candidate had to have the endorsement of a political party, or have
his or her own strong, grass roots organization in order to have the
large number of people it takes to gather sufficient petitions to be
put on the ballot. Now, however, it is actually possible to hire people
to collect petition signatures, so petitioning does not necessarily
demonstrate broad support the way it used to. In fact, a wealthy
candidate, under the current state of the law, doesn't have to have any
broad support at all to gain access to the ballot, only enough money to
hire enough petition collectors. If the important government interest
the Buckley Court acknowledged is to be protected, therefore, some
limits on the use of money by wealthy candidates is required. The use
of money by wealthy candidates has to be brought into the bill's
reforms.
Bringing self-funded candidates completely under the bill's reform
umbrella is a necessary step, but another area of the bill also needs
another look--the treatment of groups such as EMILY's List and WISH
List. EMILY's List and WISH List have helped bring women into politics.
EMILY's List and the efforts of the women's fundraising organizations
is one of the main reasons there are now 33 Democratic and 16
Republican women in the House, 8 women Senators instead of just 1, and
2 Democratic women governors.
EMILY's List has energized women; it has given more women a way to
participate in our political system--women who have never participated
before. As the New York Times noted, ``alone among fund-raising
organizations, EMILY's List doles out millions of dollars and then
seeks nothing back from its beneficiaries. Its only mission is to get
women elected to Congress and the State houses.'' I think that kind of
activity should be encouraged, and not limited.
EMILY's List has helped open up our system; it has showed more women
that the system can work for them. I think that EMILY's List is
American democracy in its purest form. EMILY's List should be applauded
and encouraged, and not terminated.
I want to conclude, Mr. President, by returning to where I began. I
think that it is long past time for Congress to reform the campaign
financing system. This bill goes a long way toward making some real
changes to our current system. It is far from perfect, but it is a work
in progress. The bill's flaws can be corrected as we move forward
through the remainder of the legislative process. I am therefore voting
today to take the next step, to invoke cloture, because the bill cannot
be corrected if it is not considered by the Senate. And if we fail to
invoke cloture, this bill will fail. I do not want to see that happen,
and neither do the American people. They expect us to act on real
campaign finance reform this year. I will cast my vote to meet that
expectation; I hope all of my colleagues will do likewise and that this
Senate will meet its duty to the American people to change campaign
finance.
Mr. BIDEN. Mr. President, here we go again, Mr. President. Another
chapter in the never ending effort to reform the way we finance
political campaigns.
I feel like I am driving a race car around a track and no matter how
long and how far I drive, the checkered flag just never seems to come
down. We never seem to reach the finish line. We are never able to
finish what we start.
And, now, today, the question before us is whether we will even be
allowed to start--whether we will even be allowed to debate the issue
of campaign finance reform.
I have been on this track for almost 24 years now. One of the first
things I did as a new Senator back in 1973 was to testify before the
Senate Rules Committee on the need for campaign finance reform--on the
need for spending limits and public funding of congressional campaigns;
on the need for equal competition based on ideas, not money, between
challengers and incumbents. Let me tell you, I did not make many
friends.
But, I believed then--and I believe as strongly today--that campaign
finance reform is the single most significant thing Congress could do.
The American people have come to believe the system has failed. The
American people have lost faith in their leaders and in their
Government. The American people feel alienated and distant from the
very people who represent them.
There are several reasons for this. But, the biggest--and probably
what all others boil down to--is the way we fund our elections: the
influence of money; the influence of special interests; the influence
of everyone, it seems, except the average middle-class American.
A middle-class American does not make a $1,000 contribution. A
middle-class American does not hire a lobbyist to wander the Halls of
the Capitol and make $5,000 campaign contributions. A middle-class
American does not ask a Congressman to hand out campaign contributions
on the floor of the House of Representatives.
No. A middle-class American walks into the voting booth on election
day, if he or she has not been turned off by that time, and engages in
the most important exercise in a democracy. He or she casts a ballot
for a person to represent them.
But, when it is all said and done, many middle-class Americans feel
that they are not being represented. They have become apathetic,
cynical, and distrustful. And, I'm afraid this is not a whim or a
passing feeling. It may be wrong in reality--it may be right--but it
should not be taken lightly by those of us in Congress. There is a
major crisis of confidence in the American electorate, and it puts at
risk everything else we attempt to do. That is why I believe campaign
finance reform is the crucial issue of our time.
So, Mr. President, our mission is clear. We must restore integrity
and confidence in the political process.
[[Page S6791]]
And, to do that, we must have comprehensive campaign finance reform.
Unfortunately, today, we are not even voting on a campaign finance
reform bill. This is a vote on whether we will be allowed to vote on
the bill. And, you wonder why the American people are so sick of this
system.
The special interests have circled the wagons. They are on the
warpath to kill campaign finance reform.
So, I implore my colleagues: stand today with the American people.
Let us take up this bill--the first bipartisan campaign finance reform
bill in nearly a generation. Let us debate the issue. And, let us
decide the issue on the merits, not on inside-the-beltway maneuvering.
The American people demand no less.
Mrs. MURRAY. Mr. President, this past February, over 4 months ago, I
took the Senate floor to announce my cosponsorship of S. 1219. As I
spoke about how unique this bill is--one of the only truly bipartisan
attempts to reform campaign laws in two decades--I could not help
thinking to myself, ``here we go again.''
I have only been a Senator for a little over 3 years. In Senate
terms, that is not very long. But I have been here long enough to see
campaign finance reform come up, and be killed. In the 103d Congress,
shortly after the 1992 elections, I proudly cosponsored campaign reform
legislation. I was eager to answer the voters' hopes for cleaner, more
thoughtful politics.
I watched colleagues come to the floor, proclaim the need for
reforms, and declare their support for good legislation. The Senate
passed that bill, S. 3, and sent it to the House. A short time later, I
saw it killed amidst partisan bickering, despite the mad scramble of
Senators wanting to be seen as leading the charge for reforms.
In the end, nothing was accomplished, and here we are today living
under the same campaign system that has created so much cynicism and
mistrust among the voters.
So when I endorsed S. 1219, I thought ``here we go again'' because I
was embarking on my second attempt to reform campaign laws. But this
time, instead of thinking we could simply pass a bill and send it to
the White House, I knew we had our work cut out for us.
Now it is June, and the 104th Congress will adjourn in a few months.
While we are only now taking up campaign reform, I am still encouraged.
For the first time in a long time, the Senate is considering a truly
bipartisan bill. It has not been drafted by one party or another to
give themselves a leg up.
It has been drafted by a Republican and a Democrat, John McCain and
Russ Feingold, because they know that until the two parties come
together and focus on common sense reforms we can all agree on, nothing
will get done. It is supported by thoughtful new Senators like Fred
Thompson of Tennessee and Carol Moseley-Braun of Illinois who, like me,
were elected to make changes in the political system.
We have a very narrow window of opportunity today. It is narrow
because we have only a few months left in this Congress, and we have a
lot of work to do. It is an opportunity because it is a bipartisan
bill, free of taint, and maybe--just maybe--capable of restoring some
faith to the people. In light of this, it is critical that we move
quickly.
I urge my colleagues to stop, look, and listen. Listen to people at
the coffee shops. Talk to friends, to family members. Walk through a
neighborhood. A basic, fundamental lack of faith in Government lays at
the root of peoples' concerns about the future. Until something
dramatic happens to address public confidence in the political system,
we can expect the gap between the people and their Government to widen.
There is nothing I can think of that would be worse for this country;
for alienation breeds apathy, and apathy erodes accountability. America
is the greatest democracy the world has ever known, and it was built on
the principle of accountability: government of the people, by the
people, for the people. We simply must restore peoples' faith in their
Government.
At the core of the problem is money in politics. Right now the system
is designed to favor the rich, at the expense of the middle class. It
benefits the incumbents, at the expense of challengers. And most of
all, it fuels the special interest, inside-the-beltway machine at the
expense of the average person back home.
The average person feels like they can no longer make a difference in
this system. Earlier this year, my campaign received a $15 donation
from a woman in Washington State. She included a note to me that said,
``Senator Murray, please make sure my $15 has as much impact as people
who give thousands.''
She knows what she is up against, but she is still willing to make
the effort. Unfortunately, people like her are fewer and farther
between, and less willing than ever to try to make a difference.
We see her problem when people like Ross Perot or Steve Forbes are
able to use personal wealth to buy their way into the national
spotlight. Ninety-nine percent of the people in America could never
even imagine making that kind of splash in politics. Should we rely
only on the benevolence of a few wealthy individuals to ensure strong
democracy in this country? I don't think that is what the Founding
Fathers had in mind.
The political consultants will say negative ads work, because they,
quote, ``move the numbers.'' They will say we need to raise millions of
dollars because that is what it takes to get a message out.
But that ignores the reality in Main Street America every day. The
very campaigns they say we need to run to win are bleeding the life out
of our political system. Every time we go through an election with
expensive, negative campaigns, we pay a severe price in voter
participation and citizen apathy.
Add up election, after election, after election in the modern
political era, and elected officials are facing a huge bill for
accountability they may not be able to pay. I fear that once lost,
citizens may never re-engage in their democratic system.
During this debate, I have heard Senators take issue with certain
provisions in S. 1219. I have heard colleagues question the
constitutionality of spending limits. I have heard them make the case
that this bill takes the wrong approach. I have heard them argue for
reform, but not this way.
Mr. President, these arguments miss the point entirely. The upcoming
vote is not about whether you agree with every provision of S. 1219. It
is about whether this Senate is willing to step up and pass campaign
reform legislation this year.
I myself am not completely satisfied with S. 1219. The McCain-
Feingold bill is very broad, and does something about nearly every
aspect of the system: It restricts political action committee
contributions; it imposes voluntary spending limits; it provides
discounted access to broadcast media for advertising; it provides
reduced rates for postage; it prohibits taxpayer-financed mass mailings
on behalf of incumbents during an election year; it discourages
negative advertising; it tightens restrictions on independent
expenditures; and it reforms the process of soft money contributions
made through political parties.
Mr. President, these are very strong, positive steps, especially the
ones addressing independent expenditures. Over the past few years,
through the so-called Gingrich Revolution, we have seen an explosion of
campaign spending by special interest groups, many from Washington, DC,
attempting to swing elections in their own favor. These expenditures
are ideologically driven, often highly partisan, and serve only to
manipulate voters in the most sinister way. They corrupt our elections.
They are not disclosed, so we do not know who makes them, and they
violate the spirit of every disclosure requirement in law today.
If enacted as a package, all the steps I just mentioned would make
our system of electing Federal officials more open, competitive, and
fair. I feel strongly that we must take such steps to re-invigorate
peoples' interest in the electoral process, and in turn to restore
their confidence in the system.
There are some provisions in S. 1219 that could be problematic,
however. For example, the bill would require 60 percent of a
candidates' donors to reside within his or her State. This might work
fine for someone from New
[[Page S6792]]
York or California. However, it could put small-state candidates at a
real disadvantage, particularly if their opponent is independently
wealthy.
I also question the ban on PAC's. Under the right regulations, I
believe PAC's have a legitimate role in the process, for two reasons.
First, PAC's are fully disclosed, and subject to strict contribution
limits. That means we have a very detailed paper trail from donor to
candidate for everyone to see. Second, they give a voice to individual
citizens like women and workers and teachers who, if not organized as a
group, might not be able to make a difference in the process.
A serious question about PAC's remains, however: do they unfairly
benefit incumbents at the expense of challengers? This is a legitimate
question, and one I think we should focus on closely in this debate.
Finally, I am deeply concerned about how this bill would effect
organized fundraising by third party groups that do not even lobby
Congress. Groups like EMILY's List and WISH List support pro-choice
women candidates of both parties, though they do not actually lobby
Congress on legislation.
They give people of modest means like me an opportunity to compete on
the electoral playing field. For too long, this field has been
dominated only by wealthy, well financed candidates, establishment
candidates, or incumbents. In my 1992 campaign I was out-spent nearly
three-to-one. Without the support of groups like this, I would not have
even been able to make the race.
By banning these groups, S. 1219 would send a signal to people
everywhere: do not even think about playing this game unless you can
afford the price of admission.
However, as I said a moment ago, this vote is not about every little
detail. Let us remember something: this whole debate--arguments for and
against--comes against the backdrop of a campaign finance system that
has not been reformed since Watergate, over 20 years ago. Public faith
in government today has sunk below what it was in 1974. So in spite of
my personal concerns, I will vote to invoke cloture on the McCain-
Feingold bill. And after cloture is invoked, I will support amendments
that address the issues I have raised.
Right now, we need to move forward. People in this country want to
feel ownership over their elections; they want to feel like they, as
individuals, have a role to play and can make a positive difference.
Right now, for better or worse, not many people feel that way, and the
trend is going the wrong direction. Real campaign reform will be the
strongest, easiest step this Senate could take to begin restoring
peoples' faith in the process.
Set aside the legalistic, technical arguments for a moment. Get out
from behind all the procedural maneuvering. Put aside partisan
leanings. We have an opportunity right now, today, to show the voters
something. We can put pressure on the other body to act on similar
legislation. We can actually move reform efforts forward in a credible
way, and get something done this year.
A citizen from New Hampshire, Frank McConnell, made a good case just
the other day. He came to Washington to push this bill, and he said if
Congress wanted to, if it really wanted to, it could do the work and
have a bill to the President's desk in a couple weeks.
We know the President would sign it, because he said so in his State
of the Union Address earlier this year. Frank McConnell was right: if
we want to, we can just do it. Here we are again. We are considering
campaign reform legislation. There is not much time left. I thank the
two sponsors of this bill, Senator McCain and Senator Feingold, and I
urge my colleagues to step up and support the motion to invoke cloture.
Mr. BINGAMAN. Mr. President, I rise today to speak briefly on S.
1219, the Campaign Finance Reform Act and to discuss two amendments I
intend to offer to the bill if the Senate invokes cloture on the bill
tomorrow.
As a cosponsor of S. 1219, I am pleased to join with my friend and
colleague from Arizona, Senator McCain, and my friend and colleague
from Wisconsin, Senator Feingold, in supporting this legislation. I
want to commend Senators McCain and Feingold for their efforts in
bringing this measure to the Senate for its consideration. They have
been tireless champions of the need to reform our campaign finance
system and I am encouraged by the way they have worked together to
develop a bipartisan approach to a problem that has escaped solution
for so many years.
As my colleagues know, 2 years ago I completed an expensive and
negative campaign. The only positive thing that I brought from that
experience was the time I was able to spend listening to the concerns
of New Mexicans and traveling around the State.
Unquestionably, one of the most significant recollections I have of
the campaign is the enormous amount of money that I was forced to raise
and spend to defend against a wealthy opponent who attacked early and
continued with a negative campaign until the votes were counted.
That is one of the reasons why I support S. 1219 and why I have
supported every serious attempt to fix our campaign finance system.
Clearly, Mr. President, the system is broke and anyone who thinks
otherwise simply has not looked at the facts. More and more of our time
is spent raising money, special interest groups have too much influence
at the expense of the individual American, and, most important, the
American people have lost confidence in their elected officials because
they no longer believe that we have time to listen to them. Instead
they believe that only the wealthy can serve in Congress and that we
are engaged in an endless pursuit of special interest money. While this
is not true in all cases, I am very concerned that if we do not reform
the current system soon, the fears of average Americans will become
real.
Mr. President, we need to change the system and I believe that the
bill offered by Senators McCain and Feingold offers us a chance to
regain the confidence of those who sent us here.
If cloture is invoked tomorrow, I intend to offer two amendments to
this legislation. These amendments are contained in legislation I
offered earlier this year with my friends and colleagues Senator Pell
and Senator Campbell, S. 1723.
The first amendment requires that if a qualified candidate for
Federal office references his or her opponent in a TV advertisement
they must do so themselves if they want to take advantage of the lowest
unit-rate charge provided to candidates for Federal office under the
Communications Act of 1934. If the candidate voluntarily chooses not to
make the reference herself, or himself, the candidate would not be
eligible for the lowest unit rate for the remainder of the 45-day
period preceding the date of a primary or primary runoff election or
during the 60 days preceding the date of a general or special election.
The candidate would, of course, continue to have access to the
broadcast station and would be able to air whatever advertisement they
wish, but they would not be eligible for the special benefit that
Congress has provided under the Communications Act.
The second amendment requires that broadcasters who allow an
individual or group to air advertisements in support of, or in
opposition to, a particular candidate for Federal office, allow the
candidate in the case where a candidate is attacked, the same amount of
time on the broadcast station during the same period of the day.
Mr. President, these are not new concepts. In the 99th Congress,
Senator Danforth offered a bill to require a broadcast station that
allowed a candidate to present an advertisement that referred to her
opponent without presenting the ad herself, to provide free rebuttal
time to the other candidate. Since then, other variations of what has
become known as talking heads legislation have been incorporated in
overall campaign finance reform bills and introduced as free standing
bills.
In a little over a month, both national parties will be holding their
conventions. After that the race will be on, not only for the White
House but also for 435 House seats and 33 Senate seats and untold
number of State and local elections. I can say in all honesty that I do
not envy my colleagues here in the Senate, whether they are Republican
or Democrat, because I now that they will soon be subjected to the same
[[Page S6793]]
type of negative attacks ads that I had to face in my last election.
Many of these ads will contain misrepresentations, distortions, and
outright untruths. A voice will appear on the television but it will
not be the candidate's. Perhaps an image will appear but it will not be
the candidate's either. Instead, the candidate will be hiding behind
the message and that message will undoubtedly be negative.
Mr. President, I am told that public opinion polls show that
politicians are held in only slightly higher esteem than lawyers and
journalists. While that may be true, I know that my colleagues,
regardless of their political affiliation, are honorable men and women
who care about their respective States and our Nation. They are also
courageous. It is not easy putting your reputation and privacy on the
line to run for public office at any level. Unfortunately, the negative
perception persists. I believe that one of the reasons for that is the
trend in today's campaigns to attack, attack, and attack, to go
negative early and stay negative until the votes are counted. As
Senator Danforth noted, legislation requiring the candidate himself to
present ads that reference his opponent would serve the purpose, ``to
open up speech, open up the ability to respond, the ability to defend
oneself. In the case of a candidate making a negative attack, we try to
improve the sense of responsibility and accountability by making it
clear that the candidate who makes the attack should appear with his
own face, with his own voice.''
I believe that the amendment I am discussing today, just like the
legislation by Senators McCain and Feingold, will begin the process of
restoring the confidence of the American people in public service as an
honorable endeavor and in the election process as one where ideas and
platforms, not the candidate's personalities, are debated.
Mr. President, I would again like to commend my colleagues Senators
McCain and Feingold for their commitment to bringing this legislation
to the floor of the Senate and I hope that we will all vote tomorrow to
allow debate and votes on amendments and the underlying legislation.
The American people deserve nothing less.
Mr. FRIST. Mr. President, I rise to discuss the important issue of
campaign finance reform. I applaud the efforts of my colleagues on both
sides of the aisle for bringing this issue to the forefront of our
public policy debate.
The sole objective of any serious campaign finance reform must be to
open up the political process--to make it easier for more Americans to
get involved, to have more competitive races, to increase the free
exchange of ideas and debate, and to make our elections more reflective
of the will of the people.
To that end, I strongly support the following steps and believe they
are a sound foundation for campaign finance reform:
First, we should insist on full disclosure of all campaign spending,
by candidates, parties and nonparties alike. Currently, many special
interest groups have a huge impact on elections yet are not required to
and don't disclose anything about their political spending. Full and
fair disclosure will let the voters weigh the relative influence of all
who participate in the process.
Second, we should place PAC's and individuals on an even footing by
increasing the individual contribution limit to $5,000 and indexing it
for inflation. This will reduce both the influence of PAC's and the
amount of time elected officials must spend fundraising;
Third, we should ban the use of franked mass mailings by incumbents
in the calendar year of an election--although I would ban them
completely; and
Fourth, we should require candidates to raise a stated percentage,
for example 60 percent, of their individual contributions from people
residing within their home States.
The first amendment is the starting point for any discussion of
campaign finance reform. It ensures that, among other things, citizens
can participate in politics through publicly disclosed contributions to
the campaigns of their own choosing. It also permits citizens to spend
their own hard-earned dollars, independent of any candidate, to
influence elections via letters to the editors of their local papers,
pamphlets, and even television, radio, and newspaper advertisements.
This is a precious right to Americans. It sets us apart from many other
countries.
Many, however, believe that we spend too much money on this first
amendment right. Yet, given the importance of such speech, it is
surprising to find that in the 1994 House and Senate races, said to be
among the most expensive ever, we spent roughly $3.74 per eligible
voter. According to columnist George Will, this is about half as much
as Americans spend annually on yogurt.
Simply put, Mr. President, the amount of money spent in campaigns
should not be the focus of our debate--that is not the problem. Let a
well-informed public, not a Federal bureaucrat, decide whether a
candidate has spent too much in a campaign or has accepted too much
from a particular source. I believe there are significant negative
consequences to current efforts to reduce campaign spending. First,
significant restrictions on the amount of money that can be spent by a
candidate will reduce the amount of information available to voters.
Less information means a less-informed electorate. That is the opposite
of what we want to accomplish. More importantly, spending limits on
candidates will merely increase the influence and power of special
interests because they are not subject to spending limits and aren't
required to disclose their election financing efforts.
Second, limits on campaign spending would overwhelmingly benefit
incumbents. Congressional spending limits are subject to manipulation
that sets the spending threshold just below the amount that the
challenger must spend to have a legitimate shot at defeating the
incumbent. In testimony before the Senate Committee on Rules and
Administration, Capital University law professor, Bradley A. Smith,
said that in the 1994 Senate elections, the successful challengers
spent more than would be allowed under the legislation currently being
debated by this body, S. 1219. Thus, the spending limits proposed in S.
1219 would have worked to the incumbent's advantage in each case.
Overall, every 1994 Senate challenger who spent less than the ceiling
set in S. 1219 lost; every incumbent who spent less than that ceiling
won.
Finally, spending limits reduce the ability of campaigns to speak
directly to the voters, without the filter of the media. The news media
does play a critical role in the election process, but further
increasing their control over the flow of political information is not
positive reform.
Similarly, a limitation on contributions, like spending limits, is
inherently biased in favor of incumbents. Incumbents with high name
recognition and existing voter data bases are able to raise necessary
campaign dollars, in small amounts, with far more ease than no-name
challengers. Therefore, challengers must look to a small number of
large contributors to launch a campaign. This initial seed capital is
essential for challengers to get their name and message out to the
voters. The limits on contributions imposed by the 1974 amendments to
the FECA have limited the ability of challengers to raise seed capital.
I believe that further restrictions on contributions will force
candidates to spend more time fundraising and less time meeting voters
and discussing the issues. Contribution limits are a significant cause
of the drain that fundraising has become on a candidate's time.
Instead, I favor placing PAC's and individuals on an even footing. The
existing $1,000 limit placed on individuals should be raised to
$5,000--the same level as PAC's--and indexed for inflation. The $1,000
contribution limit established by FECA in 1974, had it kept pace with
inflation, would be worth approximately $3,000 today. Raising the
individual contribution limit will help level the playing field between
challengers and incumbents. It will put individuals on an even par with
PAC's, reduce the time candidates need to spend raising campaign funds,
and reduce the emphasis on a candidate's personal wealth.
Yesterday and today, I've heard the arguments concerning other
aspects of the current legislation before us, namely provisions that
mandate free air time and greatly reduced postage rates to candidates.
I am opposed to those provisions, however good intentioned
[[Page S6794]]
they are, because they would place a greater burden for funding Federal
campaigns on the backs of American taxpayers.
Proposals to force American businesses to give away their products
free of charge are misplaced and run counter to a free-market society.
Accordingly, I oppose attempts to mandate that private broadcasters be
forced to give free air time to candidates. Similarly, allowing deep
discounts in postal rates is merely a subsidy paid for by the general
taxpayers. These are not sound reforms.
As I mentioned earlier, strong campaign finance reform should also
mandate the complete and full disclosure of all funds that unions and
other special interest groups spend for political activity. This is a
critical point. We cannot outlaw special interest money, but the
potential penalties for accepting it can be raised via the court of
public opinion.
We are all aware of the current multimillion dollar effort by
organized labor to spend upward of $35 million to try and buy back
control of the House for the Democrats. They are getting the money for
this massive, partisan campaign through compulsory union dues, even
though 40 percent of their membership voted for Republicans in 1994.
No union member should be forced to make compulsory campaign
contributions to support any candidate or issue unless they freely
choose to do so. That is the foundation for our constitutional form of
government and the first amendment freedoms we enjoy as citizens. To be
forced, as a condition of employment to do otherwise, is wrong.
As unfair as this is to union members, it is even more poisonous to
our political process. There is no disclosure or reporting of the
sources or the expenditures paying for these activities. Under current
law, the unions are not required to file and do not file any disclosure
to report these political expenditures. This should be changed.
In closing, I would like to quote a section of the 1976 decision by
the Supreme Court in the Buckley versus Valeo decision:
In the free society ordained by our Constitution it is not
the government, but the people--individually as citizens and
candidates and collectively as associations and political
committees--who must retain control over the quantity and
range of debate on public issues in a political campaign.
Our system is not perfect, and we do need meaningful campaign finance
reform. But, placing artificial limits on spending sends the opposite
message of what we should be saying. We should not drive spending
control away from candidates and parties and to special interests. We
should not enact reforms that will result in less information to the
public. We should open up the system to allow for maximum dissemination
of information and maximum exchange of ideas and debate. I intend to
work toward this type of campaign finance reform, and I urge my
colleagues to do likewise.
Mr. BAUCUS. Mr. President, I rise in support of the important
campaign finance reform legislation that is before us today.
I support this legislation because I believe it represents the right
kind of change. While not a perfect solution, it will help put our
political process back where it belongs: with the people. And it will
take power away from the wealthy special interests that all too often
call the shots in our political system.
Yet, ironically, by failing to act; by failing to pass this
legislation; we will also be opening the door to change--the wrong kind
of change. Our political system will continue to drift in the dangerous
direction of special interest.
Over the years since 1971, when Congress last enacted campaign
finance reform, special interest groups supporting both political
parties have found creative new ways, some of questionable legality, to
get around the intent of our campaign finance laws. Things like soft
money, independent expenditures, and political action committees all
came about as a consequence of very well-intended attempts at campaign
finance reform.
Need for Reform
This is an arcane subject, but it hits home. One of the benefits to
walking across Montana, in addition to the beautiful scenery, is that I
hear what real people in Montana think. Average folks who do not get
paid to fly to Washington and tell elected officials what they think.
Folks who work hard, play by the rules, and are still struggling to get
by.
People are becoming more and more cynical about government. Over and
over, people tell me they think that Congress cares more about fat cat
special interests in Washington than the concerns of middle class
families like theirs, or that Congress is corrupt.
Effect on the Middle Class
Middle-class families are working longer and harder for less. They
have seen jobs go overseas. Health care expenses rise. The possibility
of a college education for their kids diminished. Their hope for a
secure retirement evaporate. Today, many believe that to make the
American dream a reality, you have to be born rich or win the lottery.
Part of restoring that dream is restoring confidence that the political
system works on their behalf, not just on behalf of wealthy special
interests.
I believe that this Congress has taken some small but important steps
in that direction:
First, we passed a tough, fair gift ban to ensure that special
interests are not out wining and dining Members of Congress and
executive branch officials. Helping to reassure folks that individuals
in Government, whether you agree with their policies or not, are acting
in what they sincerely believe is the country's best interest. I am
proud to say that my office has taken this one step further--and
instituted a tougher than required gift ban--months before the Congress
voted.
Second, we passed a comprehensive lobbying disclosure bill--
eliminating the cloak of secrecy which lobbyists once operated under,
by requiring greater disclosure of lobbying activities by both the
individuals conducting and contracting the lobbying.
Now it is time for us to take the real step to win-back the public
trust--it is time for us to pass a tough, fair, and comprehensive
campaign finance reform bill. That bill must accomplish three things.
First, it must be strong enough to encourage the majority if not all
candidates for Federal office to participate. Second, it must contain
the spiraling cost of campaign spending in this country. Finally, and
most importantly, it must control the increasing amounts of undisclosed
and unreported soft-money that is polluting our electoral system.
REFORM MUST REDUCE COSTS OF CAMPAIGNS
Under the current campaign system, the average cost of running for a
Senate seat in this country is $4 million. In 1994, nearly $35 million
was spent between two general election candidates in California. And
nearly $27 million was spent in the Virginia Senate race.
There are some in Congress, I believe House Speaker Newt Gingrich is
one, who say we do not spend enough on campaigns in this country.
When a candidate is faced with the daunting task of raising $12,000 a
week--every week--for 6 years to meet the cost of an average campaign,
qualified people will be driven away from the process. If we allow
ideas to take a back seat to a candidate's ability to raise money--
surely our democracy is in danger.
Let me be clear--my first choice would simply be to control campaign
costs by enacting campaign spending limits. However, the Supreme Court,
in Buckley versus Valeo, made what I believe was a critical mistake--
they equated money with free speech--preventing Congress from setting
reasonable State-by-State spending limits that everyone would have to
abide by.
I have voted several times to overturn the Buckley decision and allow
Congress to set limits that everyone would have to obey.
WHAT'S RIGHT WITH THE BILL
While I must admit this bill is not perfect, compromise never is, it
will do several crucial things to reign in campaign spending. First is,
that it is the first bipartisan approach to campaign finance reform in
more than a decade.
Second, the bill establishes a system that does not rely on taxpayers
dollars to work effectively.
The bill encourages campaigns to accept a voluntary spending limit in
exchange for free and reduced cost access to television advertising,
and postal rates.
Last, the bill bans both PAC contributions, and indirect soft-money
campaign spending, while at the same
[[Page S6795]]
time increasing disclosure and accountability in political advertising.
Every election year, in addition to the millions of dollars in
disclosed contributions, there are the hundreds of millions in
unreported, undisclosed contributions spent by independent expenditure
campaigns and issue advocacy funded by soft-money contributions to
national political parties.
Where out-of-State special interest groups can spend any amount of
money they choose, none of which is disclosed, all in the name of
educating voters--when, in fact, their only purpose is to influence the
outcome of an election. More times than not the seesawing 30-second
sound bites do more to confuse than to educate.
This lack of accountability is dangerous to our democracy. These
independent expenditure campaigns can say whatever they wish for or
against a candidate, and there is little that candidate can do--short
of spending an equal or greater amount of money to refute what are
often gross distortions and character assasinations.
However, as I said earlier, the bill is not perfect. As currently
written, it fails to address critical issues in campaign reform.
What's Wrong with this Bill
I am concerned that this bill forces an unfunded mandate on
television broadcasters by requiring them to donate up to 30 minutes of
free prime time advertising air time to each candidate who abides with
the limits in the bill. While I believe this free and reduced cost air
time is critical to encouraging campaigns to accept spending limits, I
don't believe that broadcasters should be forced to bear the entire
burden.
I'm pleased that the sponsors have included language to provide
broadcasters with an exemption in the case of economic hardship,
however, it is my belief that we should do more.
Last, but perhaps most importantly, this bill does not contain the
strong enough enforcement provisions that are critical to ensure that
individuals who promise to abide by the spending limits don't dump
large sums of money into the campaign weeks or even days before the
election.
Since 1985 I have fought to limit the spiraling cost of Federal
elections in this country by cosponsoring five different campaign
finance reform proposals, as well as supporting efforts to amend the
Constitution to allow the Congress to set reasonable spending limits.
I remain committed to this cause and will do everything in my power
to ensure that the Congress passes meaningful campaign finance reform,
this year.
Mr. DOMENICI. Mr. President, those who follow campaign finance reform
are well aware of my thoughts on this issue. I have long advocated four
very straightforward and specific changes in reforms in campaign
finance law:
First, a flat-out prohibition on House and Senate candidates raising
money outside their home State;
Second, the abolition of PAC's as we know them;
Third, the creation of a strong disincentive to super-wealthy
candidates throwing masses of family money into a campaign;
Fourth, the elimination of ``soft-money:'' contributions to political
parties for activities such as voter registration drives and political
advertising which indirectly--but intentionally--help one particular
candidate;
I am pleased to see that this year's legislation includes campaign
finance reform ideas I initiated many years ago, specifically, a
limitation on the amount of personal or family funds a wealthy
candidate may contribute to his or her own race; and a limitation on
the acceptance of out-of-State contributions.
Unfortunately, this year's legislation also includes deeply
problematic provisions. These provisions, so called voluntary
restrictions on spending, are based on the premise that spending caps
are the solution to the problems with our campaign system.
The taxpayers will end up helping finance these campaigns because by
accepting spending caps under this bill, candidates would receive steep
discounts from the Federal Government in postal rates, as well as from
television and radio broadcasters for advertising time. In addition,
once candidates exceed voluntary spending limits, the Federal Election
Commission [FEC] would raise the contribution limits for the opponents
of these candidates.
These spending caps threaten first amendment free speech rights.
Moreover, these voluntary spending limits create burdensome new
regulatory responsibilities and powers for the FEC. If enacted, the
legislation before us today will create a quagmire of regulations
making Federal campaigns even more dependent upon professional campaign
strategists and lawyers, and less dependent upon, and more distant
from, our constituents.
For these reasons, while I firmly believe that we need campaign
finance reform, I cannot support today's proposed legislation in its
current form.
Mr. SMITH. Mr. President, I rise in opposition to S. 1219, the Senate
Campaign Finance Reform Act of 1996.
There are several major campaign finance proposals that are now being
considered by the Congress. I am pleased to offer my views on each of
them.
The most far-reaching campaign finance reform proposals involve the
taxpayer financing of congressional campaigns. I do not favor that
approach. I do not think that liberal Democratic taxpayers should be
forced to finance my political campaigns any more than conservative
Republican taxpayers should be forced to finance the campaigns of
liberal Democratic politicians.
Other campaign finance proposals have sought to place limits on how
much money campaigns can spend. Such proposals raise serious
constitutional questions. In the case of Buckley versus Valeo, the U.S.
Supreme Court held that it is unconstitutional for Congress to limit
the ability of individual candidates to spend their own money to
finance their own political campaigns. How is it fair, then, for
Congress to limit the ability of candidates who are not wealthy to
raise campaign money? If wealthy candidates can spend all of the money
that they want while candidates of modest means cannot, then we will
soon have a Congress made up almost exclusively of wealthy individuals.
Still another approach is that which is embodied by S. 1219. Under
the McCain-Feingold bill, voluntary campaign spending limits would be
adopted and candidates who complied with those limits would be provided
with free and-or sharply reduced rates of advertising by the news
media. I do not favor this approach because I do not think that
Congress should compel private entities to offer their services at
below-market rates. Therefore, I simply cannot support this bill.
The McCain-Feingold bill, as well as others, also proposes the
elimination of political action committees [PAC's]. I have voted for
this reform in the past.
I believe that the best way to reform our system of campaign finance
is to find ways in which to encourage more participation by small
donors. I am proud to say that in my political campaigns over the
years, I have been supported by many thousands of small contributors.
I also strongly support the current system under which congressional
campaigns must disclose the sources and amounts of financial
contributions from all entities--large and small. I believe that the
public has a right to this information.
I believe that a responsible and meaningful package of campaign
finance reform legislation can and should be developed and passed by
the Congress. I support that effort.
Mr. ABRAHAM. Mr. President, I rise today to express my concerns
regarding S. 1219, the Campaign Finance Reform Act of 1996, and to
explain my vote against the cloture petition.
Let me begin by stating that I support campaign finance reform.
However, the reform we need is not to be found in S. 1219. In my view,
the biggest problem with the way our political campaigns are financed
is that it gives rise to the perception that special interest donations
are dominating the political agenda. Indeed, many Americans believe
that special interest money is the source of great corruption in our
political campaign system.
While we should try to address this problem statutorily, I feel it is
unnecessary to wait for legislation before those of us concerned act.
To that end, when I ran for the Senate in Michigan in 1994, I
personally imposed my own limits on the amounts I would accept
[[Page S6796]]
from both out-of-State sources and political action committees, and
they were as strong or stronger than those in S. 1219. I lived up to
that pledge and still won my seat.
Now I recognize that not everyone will disarm unilaterally, so I do
believe we must seek to achieve a similar outcome legislatively.
Unfortunately, S. 1219 is overly broad and, if anything, likely to tilt
the field even further in the direction of special interest influence.
In my view the central question we must address in reforming campaign
financing is ``whose voice shall be heard during the campaign?'' The
proposals set forth in S. 1219 would have the ironic effect of limiting
the speech of the candidate while expanding the speech of the special
interest groups. The proposed legislation would encourage candidates to
abide by certain expenditure limits, thereby restricting their ability
to communicate with the voters. Conversely, the legislation does little
to curb the ability of special interest groups to spend their money
independently of any restrictions. This allows interest groups to
define the central issues of the campaign. It forces candidates to
follow the lead of these interest groups, preventing the voters from
hearing directly from the candidates and judging for themselves which
candidate has the proper positions and the proper priorities.
I believe that the solution begins with limiting the amount of out-
of-State/district contributions and PAC donations as I did in my own
campaign. By limiting out-of-State/district contributions we can
address the perception that House and Senate Members are not primarily
focused on the priorities of their own constituents. Similarly, by
placing a limit on the amount of PAC contributions a candidate may
receive, we can address the concern that public officials are unduly
influenced by special interest groups.
Mr. President, I am also concerned about provisions in S. 1219 which
shift resources from the private sector to the candidates. These
provisions, in effect, allow candidates to do as they please with other
people's involuntarily extracted money. The idea that taxpayers,
through special postage rates, should subsidize complying campaigns,
seems to me wrong. And, just as the taxpayers should not be obligated
to finance someone else's political speech I feel it inappropriate to
extract such subsidies from the owners of broadcast entities.
Mr. President, I believe that campaign finance reform should focus on
limiting PAC and out-of-State/district money. I have codified these
limits in my own campaign finance reform bill which I believe has the
effect of permitting candidates to speak freely while curbing the
influence of special interest and out-of-State moneys. In contrast, S.
1219 permits the increased influence of special interest money while
curbing candidates' ability to communicate with the voters. For these
reasons, I have voted against cloture and look forward to advancing my
own legislation in the future.
Mr. McCONNELL. Mr. President, I have just been handed two very timely
additions to this debate: an editorial in today's Wall Street Journal
entitled ``Muzzling Campaign Speech'' and a letter dated today from the
American Civil Liberties Union noting in some detail their many
objections to the McCain-Feingold bill.
I would note for the benefit of those who persist in
mischaracterizing the proposed spending limits as ``voluntary'' that
the first point in the ACLU letter is the emphatic assertion that they,
in fact, are not. The bill would severely handicap a noncomplying
candidate relative to a complying candidate so there really would be no
choice other than to comply. At this point, I ask unanimous consent
that the ACLU letter and the Wall Street Journal article be printed in
the Record. For the benefit of colleagues who have not yet read the
editorial I would note that the closing sentence captures the essence
of the bill before us today: ``The Senate should vote down the McCain-
Feingold bill before it does to American democracy what Clinton-Care
would have done to medicine.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, June 25, 1996]
Muzzling Campaign Speech
Some 20 years after Congress first restricted campaign
speech, the Senate will vote today on a campaign finance
proposal that suggests the way to correct the problems those
misguided ``reforms'' have created is with more restrictions.
We don't think so.
To the government goo-goos, led by Common Cause, money is
the root of all evil in politics and should be pulled out
regardless of the cost or the Constitution. They have
convinced GPO Senator John McCain and Democrat Russ Feingold
to propose a bill that would pass out subsidies for low-cost
mail and television advertising to candidates who abide by
``voluntary'' spending limits. This is public financing under
another guise. Subsidizing the mailing of more campaign
literature alone could cost $100 million, money the Postal
Service would have to recover by raising rates for other
customers.
Having created a permanent entitlement to cut-rate campaign
ads, the goo-goos would then ban contributions from political
action committees. Advocacy organizations from Emily's List
on the left to the Christian Coalition on the right would see
their activities scrutinized by the Federal Election
Commission, which lately has seen one after another of its
edicts struck down by the courts.
In 1976 the Supreme Court ruled in Buckley v. Valeo that
political contributions and spending are the equivalent of
political speech. Giving the FEC more control over politics
will limit speech. The McCain-Feingold bill would cede
authority to the FEC over any ``expression of support for or
opposition to a specific candidate'' and permit it to block
such expression with an injunction if the agency believes
there is a ``substantial likelihood that a violation . . . is
about to occur.'' The prospect of this enhanced federal power
had driven groups as disparate as the American Civil
Liberties Union and the American Nurses' Association to
oppose the bill.
The desire to police politics better by making the federal
government a meaner watchdog with a longer leash is based on
flawed premises. The first is that the influence of money in
politics is excessive and out of control. In fact, House and
Senate races, which unlike Presidential races don't rely
partly on public financing, saw about $700 million spent on
them in 1994. As George Will has pointed out, that's about
half of what Americans spend on yogurt every year.
What is excessive in politics is not the money spent, but
the amount of political power that government in our time has
to direct economic outcomes and regulate behavior. Given that
Congress can either put whole industries at risk or hand them
a subsidized bonanza, what's surprising is that more money
isn't spent trying to influence the people running for
Congress. The reformers, especially inside the Beltway, give
the clear impression that the government is so indisputably
virtuous in its every mandate that private parties should bow
before it, rather than spend money to defend themselves, an
effort almost always seen by the Beltway as the work of non-
virtuous ``special interests.''
The second mistaken premise behind campaign reform is that
the country is clamoring for it. We're told, for instance,
that 1992 Perot voters will have the heads of elected
officials on a platter if they don't crack down on campaign
cash. But there is little evidence of that. A Tarrance Group
survey in April found that just one voter out of a thousand
identifies campaign reform as the country's most pressing
problem. Voters are justifiably skeptical of political
reforms proposed by incumbent politicians.
This is not to say that nothing can be done. We are
attracted by the realistic ideas of Larry Sabato and Glenn
Simpson in their new book ``Dirty Little Secrets.'' They
conclude that individual limits on campaign contributions,
which haven't been indexed for inflation in 22 years, should
be raised and a regime of full disclosure on all political
spending should be created. That will let the voters both
hear from candidates other than incumbents and let them weigh
the relative influence of everyone participating in the
process.
The current effort at campaign finance reform has a lot in
common with the failed Clinton health-care plan, which sought
to ``fix'' the problems created by government involvement in
health care by having the government micromanage the entire
health care sector. The Senate should vote down the McCain-
Feingold bill before it does to American democracy what
ClintonCare would have done to medicine.
____
American Civil Liberties Union,
New York, NY, June 25, 1996.
Dear Senator:
The American Civil Liberties Union had the privilege of
testifying before the Senate Rules Committee on February 1,
1996 and at that time we elucidated our objections to the
``reform'' proposals set forth in the Feingold-McCain bill,
S. 1219. Throughout the current Senate debate, our opposition
has been repeatedly referenced. Rather than reiterate all of
our objections in detail in this letter, I encourage you to
read the testimony prepared on our behalf by Professor Joel
Gora, of the Brooklyn Law School.
Congress is endeavoring to reform current campaign finance
laws and regulations in an effort to reduce the perceived
adverse impact of monetary contributions on federal
elections. The call for reform is also punctuated
[[Page S6797]]
by cries of corruption. If there is corruption then Congress
does have the obligation to correct systemic problems, and to
ensure that the Federal Election Commission is exercising
fair and consistent enforcement of the existing laws. But
influence is not synonymous with corruption, and labeling
certain monetary contributions as such perpetuates notions of
corruption that have not been, in our view, adequately borne
out by the hearings before the Senate Rules Committee.
While rooting out corruption is a worthwhile objective, S.
1219 goes much further than merely attempting to eliminate
perceived corruption. Current proposals before the Senate
dramatically change the rules concerning financing of federal
campaigns in ways that do greater harm to civic participation
in the federal electoral process than good. Most importantly
S. 1219 directly violates First Amendment guarantees of
freedom of speech and freedom of association.
Some of our specific objections to the Feingold-McCain (S.
1219) and similar proposals include:
The bill's ``voluntary'' expenditure limits are coercive
and violate First Amendment principles. The bill requires the
receipt of public subsidies to be conditioned by a
surrendering of the constitutional right to unlimited
campaign expenditures. The bill grants postage and
broadcasting discounts only those candidates that
``volunteer'' for spending limits. The bill raises an
individual's contribution limit from $1,000 to $2,000 for
those candidates that agree to spending limitations and
therefore fiscally punishes those candidates who wish to
maintain their constitutional right of unlimited spending.
The bill's ban of Political Action Committees are a
violation of freedom of association and is therefore
unconstitutional. Such a provision would result in a
restriction in protected speech for any group the Federal
Election Committee deemed a ``political committee.'' All
relevant constitutional precedent, including Buckley v. Valeo
424 U.S. 1, 57 (1976) and FEC v. National Conservative
Political Action Committee 470 U.S. 480 (1985), clearly
suggest that the Supreme Court would overturn such a ban.
The limitation on out-of-state contributions is
constitutionally suspect and is disturbingly insular. In-
state limitations potentially deny underfinanced, lesser-
known insurgent candidates of the kind of out-of-state
support they may need. As long as citizens in the affected
district are the ones who select the candidate, how the
candidate is financed is a less compelling concern. After
all, Congress is our national legislature, and although its
representatives are elected from separate districts and
states, the issues it debates and votes on are of concern to
citizens from all over the nation.
The bill's disclosure requirements and regulations on
``soft money'' do not take into consideration the
constitutional divide between candidate-focused expenditures
and contributions, which are subject to some regulation, and
all other non-partisan, political and issue-oriented speech,
which are not. This restriction does not live up to the
``most compelling government interest'' standard in regards
to electoral advocacy as required by the Supreme Court in
Buckley v. Valeo, 424 U.S. at 14-15, 78-80. This restriction
also does not satisfy the minimum scrutiny of a
``compelling'' state interest in the regulation of political
parties as required by the Supreme Court in Tashjian v.
Republican Party, 479 U.S. 208 (1986).
The bill's new provisions governing the right to make
independent expenditures unconstitutionally invades the
absolutely protected area of issue advocacy. By broadening
the definition of ``express advocacy'' the bill would
encompass the kind of essential issue advocacy which Buckley
has held to be completely immune from government regulation
and control.
The bill so broadly defines ``coordination'' that virtually
an individual who has had any interaction with a candidate or
any campaign officials, in person or otherwise, is barred
from making an independent expenditure. A disaffected
campaign worker or volunteer for example, who leaves the
campaign because he or she thinks a candidate has acted
improperly, is barred from making independent expenditures
against the candidate, for, ironically, they will be deemed a
contribution.
The bill gives unacceptable new powers of political
censorship to the Federal Election Commission. The FEC would
be permitted to go to court and seek an injunction on the
allegation of a ``substantial likelihood that a violation . .
. is about to occur.'' This is fraught with First Amendment
peril because individuals and groups will face ``gag orders''
until a determination of wrongdoing is made.
This bill serves the purpose of unfairly protecting
incumbency by further limiting the overall amount of speech
allowed during a campaign. A limitation in the quantity of
speech makes the incumbent's name recognition and ability to
create free press and media attention all the more valuable.
This bill unfairly hinders access to the political process
of independent and third party candidates by limiting access
to public financing and avenues for receiving private
donations.
Constitutionally acceptable campaign finance reform
proposals could include the following elements:
Uncoerced public financing that include the following
provisions: Floors or foundations upon which candidates can
build their campaigns, not ceilings to limit them, the
availability of public financing to all legally qualified
candidates who have demonstrated an objective measure of
support, the availability of matching funds without
unconstitutional conditions attached, institution of the
frank to all legally qualified federal candidates.
Raise individual contribution limits. This will serve to
decrease reliance on PAC sources of support.
Modest tax credits of up to $500 for private political
contributions.
Public access and timely disclosure of large contributions.
This is the most appropriate way to deal with problems of
undue influence on elected officials.
Thank you for your consideration of our views.
Sincerely,
Laura W. Murphy,
Director.
Mr. FAIRCLOTH. Mr. President, first and most importantly, I strongly
support reform of our campaign finance system. Regrettably, there are
several broad problems with McCain-Feingold bill.
First, I have serious concerns that this bill does more to limit the
rights under the First Amendment, than it does to reform our campaign
finance laws. It bans political action committee contributions--but it
does nothing to empower the individual by raising individual campaign
contribution limits.
Second, as we have come to learn, it is impossible to plug all of the
money loopholes in politics. This legislation bans outside expenditures
by political action committees and other interest groups, yet it does
nothing to limit the use of labor union dues for political purposes.
Finally, there are unintended consequences of well-intentioned
reform. After all, the present system we are attempting to change is a
product of earlier ``reforms'' from the post Watergate years.
Mr. President, specifically, I have concerns that spending limits
function as an incumbent protection act. Further, the spending limits
aid those without a primary. Look at the recent Presidential election.
Senator Dole spent the maximum to get the GOP nomination--and is now
virtually out of money with respect to the spending limits.
If we really want to change our system, we should have enacted term
limits. Members of Congress should be more concerned with the next
generation than the next election but the constant pressure of re-
election affects votes and contributions.
Mr. President, any reform system should be tilted more in favor of
public disclosure of campaign contributions. The Federal Election
Commission's main mission should be to publicize campaign finance
information to the people.
Finally, contributions limits from individuals should be adjusted to
keep pace with inflation. The declining value in real dollars of the
maximum contribution from an individual to a Federal candidate is now
worth only about a third as much as when it went into affect in 1975.
This change would lessen reliance on political action committee
contributions and shorten the time candidates must spend asking for
money.
Remember, State candidates in North Carolina can accept $4,000
contributions per election while Federal candidates can only receive
$1,000. Adjusting the contribution limits for individuals coupled with
greater disclosure would be a significant improvement.
For this reason, Mr. President, I cannot support the McCain-Feingold
bill in its present fashion. We share the goal of reforming the
campaign finance system but there is a difference in the details. My
suggestion for reform includes term limits, greater public disclosure
of contributions, and increasing the limits on contributions from
individuals to lessen reliance on political action committees.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, to make concluding remarks, and later
Senator McCain will make other concluding remarks, let me again clarify
the point about constitutionality. The Senator from Virginia said
clarity of conscience prevents him from working for this bill because
of the PAC ban. But the fact is the Senator from Kentucky and the
Senator from Virginia and the Senator from Washington all voted for the
Pressler amendment 3 years ago that does exactly what our
[[Page S6798]]
bill does. It bans PAC's, but if the courts say PAC's cannot be banned,
it has a voluntary limit on PAC's. The reason they voted for it then,
the reason it is OK now, is because it is constitutional, and this is a
red herring.
The real issue here is what this vote is going to be. This is the
vote on campaign finance reform. I admire the candor of the Senator
from Kentucky, who simply says he wants to kill campaign finance reform
this session. He is not up here proposing an alternative. He admits
that is his goal. That is the vote.
This is the first bipartisan bill in 10 years. Who will benefit from
this bill? Many people will benefit. Incumbents will benefit from
having more time to work on the issues, to not have their fractured
attention, as the Senator from West Virginia indicated. Challengers
will be the main beneficiaries. Just look at the real statistics.
Incumbents blow challengers out of the water with the money. Does
anyone out there believe this bill would actually help incumbents? I
can tell you as a former challenger, this bill would have made a
tremendous difference and would have made the process more fair.
We would also benefit in this country from the inclusion of all the
people who never choose to run. You heard the Senator from West
Virginia say he never would have run for office if it would have
involved this amount of money. I bet the former majority leader,
Senator Dole, would not have run either. So there will be winners under
this bill and especially people back home.
But there will be losers under this bill. The losers are the people
who got together on April 30, all the lobbyists and all the PAC's in
this town that have been cited by the other side. They all got together
to kill this bill. They said it would prevent their free speech. But
the fact is, they are the Washington gatekeepers. They are the people
you have to go up to when you are running for office and say, ``Will
you give us the money?''
I used to go back and say to a banker in Wisconsin or a labor member
in Wisconsin, ``Can you provide us with some help?'' Do you know what
they would say? ``We have to check in with Washington. Washington has
to say yes.'' This bill will drive people back to their own home States
and take away the power from the gatekeepers.
How does it work? I mentioned it before. Here is one example. Here is
a letter about how it works, and I will omit the name of the
Representative.
During this year's congressional debate on dairy policy,
Representative [Blank] has led the charge for dairy farmers
and cooperatives by supporting the federation's efforts to
maintain the milk marketing order program and expand
program markets abroad. To honor his leadership the
federation is hosting a fundraising breakfast for [Blank]
on Wednesday, December 6, 1995. To show your appreciation
to [Blank], please show up at Le Mistral Restaurant at 8
a.m. for an enjoyable breakfast with your dairy
colleagues. PAC's throughout industry are asked to
contribute $1,000.
That is how it is done in this town. That is what the gatekeepers
want to keep, and that is what we have to crack down on and eliminate.
To make my final remarks, let me say this thing has just gotten worse
year after year. I want to finish by reading a few quotations from
people who have been troubled about this over time. Woodrow Wilson:
The Government of the United States is a foster child of
the special interests. It is not allowed to have a will of
its own.
President Eisenhower:
Many believe politics in our country is already a game
exclusively for the affluent. This is not strictly true; yet
the fact that we may be approaching that state of affairs is
a sad reflection on our elective system.
From Barry Goldwater:
It is not ``We, the people,'' but political action
committees and moneyed interests who are setting the Nation's
political agenda and are influencing the position of
candidates on the important issues of the day.
From Jack Kemp, explaining why he would not run for President in
1996:
There are a lot of grotesqueries in politics, not the least
of which is the fundraising side. . .. I don't seem to be
talking about the things that the fundraising people want me
to talk about.
Finally, from Robert F. Kennedy, who said:
The mounting cost of elections is rapidly becoming
intolerable for a democratic society, where the right to
vote--and to be a candidate--is the ultimate political
protection. For we are in danger of creating a situation in
which our candidates must be chosen only from among the rich,
the famous, or those willing to be beholden to others who
will pay the bills.
Mr. President, what Robert Kennedy said over 30 years ago is even
worse than he could have imagined today. What he feared has come to
pass, and our bill would begin the process of returning campaigns and
elections, and yes, our Government, back to the people at home.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 12 minutes.
Mr. McCONNELL. Mr. President, I do not think there is any issue which
we deal with that more clearly sums up the differences of the two
parties toward American participation in politics than the issue of
campaign finance reform.
Make no mistake about it, Mr. President, this is a partisan issue.
The Republican National Committee opposes the bill. The Democratic
National Committee supports the bill. So there is nothing particularly
bipartisan about the bill. There are a few Republicans who support it
and a few Democrats who oppose it, but the heart of the matter is, this
is a very partisan matter as currently presented to the Senate.
Why is it partisan? It is partisan, Mr. President, because
Republicans for the most part, accompanied by some interesting allies,
from the ACLU to the National Education Association, believe there is
nothing inappropriate about American citizens participating in the
political process. We think that ought to be applauded, not condemned.
We are not offended by those exercising their rights to petition the
Congress, those exercising their right to engage in free speech. We do
not think that is bad for America, Mr. President. We think it is good
for America.
Whether our opponents on the other side of the aisle like it or not,
the Supreme Court has been very clear that the speech of political
candidates cannot be restricted. Thank God for Buckley versus Valeo,
one of the great decisions in the history of the Supreme Court.
The speech of candidates should not be restricted. That is an
extremely important principle, Mr. President. After all, if we make the
candidates shut up and if we make the people who want to support them
shut up, who controls the discourse, the debate? Why, someone else.
Where will this transfer of power go? One place it will go, obviously,
is to the newspapers, most of whom love this legislation because they
realize it will enhance their power as the campaigns' power to
communicate is diminished. So they think this is a terrific idea.
Many of the large membership interest groups are not particularly
worried about this legislation because they know you cannot
constitutionally restrict their ability to communicate with their own
members, what we call nonparty soft money, or in any real way restrict
their ability to communicate with the public, what we call independent
expenditures, both of which, or the latter of which is certainly
protected by the Buckley case.
So what this is all about, Mr. President, is who gets to speak and
how much--who gets to speak and how much--and whether or not private
citizens can continue to band together and support candidates of their
choice.
It is said that too much is spent, which means to say there is too
much speech in the American political system. My view is that it is not
inappropriate to ask, when you say too much is being spent--compared to
what? In the last cycle we spent about as much on political speech as
we did on bubble gum. Put another way, $3.74 per voter in the last
cycle. I would argue, Mr. President, that is not too much political
speech--not too much political speech.
Then they say, the public is clamoring for this reform. A
comprehensive poll by the Tarrance polling group back in April of 1996
asked that question in a variety of different ways. Suffice it to say,
one person out of the 1,000 interviewed thought this was an important
issue confronting the country. There is no clamoring for this. The
[[Page S6799]]
interest in this all depends on how you ask the question. If you ask
the question: Do you think it is a good idea to restrict my right to
participate in the political process? Obviously, people are not in
favor of that.
There has been some debate about whether this is constitutional. Let
me say maybe the other side has been able to scrape up a few people
with a law degree calling this constitutional, but the heavies in this
field do not think it is. The American Civil Liberties Union--sometimes
we love them; sometimes we hate them, but, boy, do they know a lot
about the first amendment and have had a lot of success over the years
in this country. They believe this matter is clearly and unambiguously
unconstitutional.
Assuming it could get past the constitutional problems, Mr.
President, pushing all these people out of the process and putting a
speech limit on the campaigns, how would those speech limits be
enforced? By, of course, the Federal Election Commission, which would
soon be the size of the Veterans Administration trying to restrict the
free speech of not only 535 additional political races, but also of a
bunch of outsiders who might inadvertently band together and try to
speak. So the FEC is given injunctive relief, so it can go into court
and shut people up who are engaging in speech that the Government does
not want to be expressed.
That is what this bill is about--building a massive Federal
bureaucracy to restrict the speech of candidates and of groups in this
country. This is one of the worst ideas we have debated around here
since the last time a proposal like this was up on the Senate floor.
The Court said very clearly, if you want to try to entice campaigns
into shutting up, and the Government wants to say it is not good for
candidates to speak more than a certain amount--we see that in the
Presidential system and the nightmare that has become. As Senator
Gorton pointed out yesterday, there is only one person in America who
is told to shut up at that point, and that is one of two candidates who
is running for President, Bob Dole. That is what we ought to be
reforming, the Presidential system.
But the Court said, if you want to entice people into shutting up,
not speaking too much, you can offer them some kind of subsidy, a
Federal subsidy. So the Presidential system says to the candidates
running for President: You can only raise $1,000 per person. So, when
looking at that difficult task of trying to put together a nationwide
campaign at $1,000 a person, every candidate virtually, except Ross
Perot and John Connally, has said, ``OK. I'll shut up. You bought me
off. There is no way I can possibly raise enough money to run at $1,000
a person.'' Then they get the Federal subsidy.
In this bill, in order to allow the sponsors to claim that there is
no taxpayer money in it, they shift the subsidy to a couple of private
industries. They say, we are going to call on the broadcasting industry
to reduce the prices for political ads by 50 percent. What will happen?
Why, of course, they will pass on the cost of that to all the other
people advertising. So those taxpayers are going to have to pay more
for their product because of the Government-mandated program.
There is a second industry that is affected by this as well, Mr.
President. That is the people who use the mails. There is a postal
subsidy in here. The Postmaster General wrote me yesterday saying he
opposed this. Of course, the Direct Marketing Association opposes this.
Of course, the National Association of Broadcasters opposes this. They
are not particularly interested in having to reach into the coffers of
their businesses to pay for political views with which they might
disagree.
So getting back to the direct mail subsidy, the rates of everybody
else who uses the Postal Service are going to be increased so a subsidy
can be provided by those taxpayers to support the expression of views
with which they may disagree.
So, Mr. President, spending limits are not free. There is no way to
concoct, under the Buckley case, any effort to shut people up that does
not have some cost. You can shift it around and kind of claim it is not
part of the Treasury. You can assess a business maybe. But they are not
free.
So what is wrong with this bill? Just about everything you can think
of. It is based on the fallacious assumption that too much is being
spent. It is based on the notion that the public is clamoring for it.
Neither of those propositions is true. It assumes there is some way to
level the political playing ground for everyone, which is impossible to
achieve. It is unconstitutional, clearly and obviously. It would create
a gargantuan Federal Election Commission with the mission to shut
people up all across America. It would call upon two industries, the
broadcast industry and the direct mail postal users, to pay for the
price of all of this big Government.
For all of these reasons, obviously, Mr. President, this bill should
be defeated. The way to defeat this bill is to vote ``no'' on cloture.
Mr. President, I have a variety of magazine articles that have come
out against this bill, including Weekly Standard, the Wall Street
Journal, Rollcall, the National Review, and the Baltimore Sun, and I
ask unanimous consent that the editorials be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Nov. 16, 1995]
The Man Who Ruined Politics
So Colin Powell is not running for President. Neither is
Jack Kemp, Bill Bradley, Dick Cheney, Sam Nunn or William
Bennett. Voters are left with the likely choice between two
rather tired war horses, Bill Clinton and Bob Dole. No other
Democrat is challenging an obviously vulnerable incumbent,
and Republican contenders such as Phil Gramm, Pat Buchanan
and Lamar Alexander hover in single digits. In this second
rank we now also have millionaire publisher Steve Forbes, who
started from nowhere to grab the first rung on the ladder.
And of course, billionaire Ross Perot still haunts the scene.
If you don't like the remaining field, blame Fred
Wertheimer and Common Cause, the organization he until
recently ran and still animates, are the principal architects
of the cockamamie financial gauntlet we inflict on our
potential leaders. Common Cause is point-lobby for the goo-
goos, that is, the earnest folks always trying to jigger the
rules to ensure good government. One of their conceits is
that money is the root of all political evil, so they seek
salvation in the Sisyphean task of eliminating its influence.
The chief result of this is a rule outlawing individual
political contributions of more than $1,000, and a
bureaucracy called the Federal Election Commission to count
angels on pinheads in deciding, for example, what counts as a
contribution.
A serious Presidential campaign is likely to cost $20
million. This means a potential Presidential has to start by
persuading 20,000 different people to pony up a grand. Take
an arbitrary but probably generous hit rate of 5%, and he (or
she) has to pass the tin cup 400,000 times. Admittedly these
numbers oversimplify, but they give you the idea. Mr.
Wertheimer's brainstorm means fund-raising is so consuming
that candidates have no time for anything else. Even more
important, it is a process virtually designed to drain a
potential President of any residue of self-respect.
This may not be the only thing General Powell means when he
says running requires a fire he does not yet feel, but it is
certainly a big one. His adviser Richard Armitage explicitly
said, ``Colin Powell going out and asking people for money
and then spending all that money wasn't attractive.'' Mr.
Kemp was similarly explicit in not wanting to undertake the
fund-raising exercise, and it no doubt inhibited Mr. Cheney
as well. On the Democratic side, finding 20,000 donors to
challenge an incumbent is an even more daunting challenge;
Senator Bradley and Senator Nunn decided to quit rather than
fight.
It is no accident that the dropouts are precisely the types
the goo-goo crowd would like to keep in politics, which is to
say, those motivated by principle instead of sheer ambition.
In 1988, to take an earlier example, the exploratory field
included Don Rumsfield, who had been a Congressman, White
House Chief of Staff, Defense Secretary and a spectacularly
successful corporate chief executive. But he threw in the
towel rather than run up possibly unpayable debts--``as a
matter of principle, I will not run on a deficit.''
The doleful effect of such limitations were entirely
predictable; indeed, they were predicted right here. As early
as 1976, when the Supreme Court partly upheld the 1974
Federal Election Campaign Act, we wrote that the law ``will
probably act like the Frankenstein's monster it truly is. It
will be awfully hard to kill, and the more you wound it, the
more havoc it will create.'' In the face of hard experience,
of course, the goo-goos prescribe more of the same, to the
point where ``campaign finance reform'' has become the Holy
Grail.
To be fair, the Wertheimer coven hasn't had its way
entirely. The logic of the goo-goo impulse is public
financing of political campaigns, an idea mostly hooted down
by the same taxpayers who eagerly embrace term limits--though
in Presidential campaigns public finance serves as the carrot
[[Page S6800]]
getting candidates to accept the FEC nit-picking. And the
Supreme Court, while backing away from the obvious conclusion
that limiting political expenditures is prima facie an
infringement of free speech, couldn't bring itself to say
someone can't spend his own money on his own campaign.
Thus the millionaire's loophole. Mr. Perot was able to use
his billions to confuse the last Presidential elections,
going in, out and back in at will. So long as he doesn't
accept public money, he can spend as he likes.
Mr. Forbes is an even more interesting case, since he was
chairman of Empower America, the political roost of both Mr.
Kemp and Mr. Bennett. Who would have guessed a year ago, the
latter asks, that the Empower America candidate would be
Steve Forbes. On the issues Mr. Forbes is perhaps an even
better candidate than his colleagues--backing term limits
where Mr. Kemp opposes them, for example--and without his
message his money wouldn't do much good. Still, to have a
better chance at ultimately winning, it would have been
logical for him to bankroll one of his better-known
colleagues. But that's against the law, thanks to Mr.
Wertheimer, so Mr. Forbes has to hit the stump himself.
With widespread disaffection with the current field, and
especially in the wake of the Powell withdrawal, the lunacy
of the current rules is coming to be recognized. The emperor
has no clothes, think tank scholars are starting to say--
notably Bradley A. Smith of the Cato Institute, whose views
were published here Oct. 6. Following Mr. Smith, Newt
Gingrich said last weekend we don't spend too much on
political campaigns but too little. This heresy was applauded
this week by columnist David Broder, which may herald a
breakthrough in goo-goo sentiment itself.
Formidable special interests, of course, remain opposed to
change in the current rules. Notably political incumbents who
want campaigns kept as quiet as possible and have learned to
milk other special interests who want access. So rather than
having some maverick millionaire funding his pet candidate on
reasons that might relate to ideas and issues, we have all
parties funded by Dwayne Andreas and his sisters and his
cousins and his aunts, better to protect ethanol subsidies.
Finally, of course, we have Mr. Perot and his United We Stand
hell-bent for further restrictions on campaign finance,
better to protect the political process for billionaires like
himself.
Not so, thankfully, Mr. Forbes, who sees campaign spending
limits as an incumbent protection device. He recently told an
Iowa audience, ``If Congress abolished the franking
privilege, then I'd be impressed.'' Lift the caps on giving
and spending, but make sure everything is disclosed, he says.
``That's real reform.''
____
[From the Wall Street Journal, Feb. 2, 1996]
Ruining Politics--II
Not long ago these columns described how the crazy
campaign-finance reforms dreamed up by the likes of Fred
Wertheimer and Common Cause have been ruining politics.
Oregon voters just got another such lesson in their special
Senate election this week.
Democrats are understandably pleased with their narrow
(less than 1% margin) victory, but so too are the Sierra
Club, the League of Conservation Voters (LCV), the Teamsters,
the gay and lesbian lobby, the public-employee unions, NARAL
(the abortion rights outfit), the National Council of Senior
Citizens and the AFL-CIO. All of these liberal groups weighed
in with what campaign finance laws call ``independent
expenditures'' on behalf of Democrat Ron Wyden. Call this the
Common Cause loophole.
In the world of campaign reformers, money is the root of
all evil. So they spend their time denouncing candidates who
raise it for bending to ``special interests.'' Yet what the
reformers won't advertise is that there's 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 says it
devoted 35 full-time professionals and sent out 350,000
pieces of partisan mail for the cause. The Sierra Club and
LCV 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 . . . groundwater
protection, clean air, pesticide limits, recycling.''
The topper 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. ``Gordon Smith owns
companies where workers get hurt and killed. He has
repeatedly violated the law. Those are the facts.''
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 doesn't blame him. An analysis of the
ad in the liberal Oregonian newspaper essentially concluded
that the whole thing was false. (By the way, the ad was the
work of consultant Henry Sheinkopf, who is part of Bill
Clinton's re-election team this year and likes to say he
believes in the politics of ``terror.'' We trust Mr. Clinton
will soon give him his post-Oklahoma City ``civility'' speech
to read.)
Even Mr. Wyden felt compelled to criticize the rhetoric of
the ad, but since it wasn't run by his campaign, he couldn't
be blamed for it, even as it cut up his opponent. That's the
beauty of these ``independent expenditures'': They work for a
candidate without showing his fingerprints. Mr. Wyden even
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!
Now, we understand that Republicans do this, too. The NRA
doesn't play beanbag. And as a millionaire businessman, Mr.
Smith was able to spend enough of his own money to answer
this stuff in his campaign. But candidates who aren't
millionaires have to find money somewhere else, which means
from people and interests that have money. Yet if Mr.
Wertheimer and Common Cause get their way, nonrich candidates
would find their ability to raise that money drastically
limited. The special interests would still be able to sling
their junk, while a candidate would lack the cash to respond.
Something very much like this probably cost Republicans the
governorship last year in Kentucky, where the AFL spent
lavishly for the Democrat but the Republican was hemmed in by
spending limits. And, of course, operations such as the AFL
or the teachers unions have an unlimited supply of money from
forced union dues, while other liberal special-interest
groups get taxpayer subsidies that Republican Senators like
Vermont's Jim Jeffords are refusing to kill. (Question: What
does Mr. Jeffords have against electing other Republicans?)
If Congress tried to restrict such ``independent'' spending
in some new reform, the Supreme Court would probably (and
rightly) strike it down as a violation of the First
Amendment.
The bigger point here is that John McCain, Fred Thompson,
Linda Smith and other Republicans who've joined up with
Common Cause need to rethink their allegiances. They're
lending credibility to an exercise that is sure to backfire
on their party, if not on them, and probably on our
democracy. How ironic it would be if, in the name of
controlling special interests, our sanctimonious reformers
merely made them more powerful.
Mr. McCONNELL. I ask unanimous consent to have printed in the Record
testimony on the constitutionality of the broadcast provisions in the
bill prepared for the National Association of Broadcasters.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Constitutional Infirmities of Pending Political Broadcasting
Legislation
(Prepared for National Association of Broadcasters by P. Cameron
DeVore, Gregory J. Kopta, Robert W. Lofton, of Davis Wright Tremaine)
summary
Pending Congressional campaign finance reform legislation
would substantially expand federal political candidates'
``reasonable access'' to broadcast time, raising fundamental
issues under both the First and Fifth Amendments to the
United States Constitution. Several bills would require
broadcasters to provide free and/or heavily discounted time
to political candidates as an incentive for candidates to
voluntarily comply with campaign spending limits. The goal of
this legislation apparently is to reduce the cost of federal
election campaigns for House and Senate seats and thereby
enhance the integrity of the electoral process.
By requiring broadcasters to finance political candidates,
the pending legislation would compel broadcasters to engage
in protected speech. Such a requirement could only be
justified by compelling necessity, and then only if precisely
tailored to the government's interest. Mandating that
broadcasters, rather than candidates, pay to communicate
partisan political messages would not advance the
government's interest in enhancing the integrity of the
electoral process. In addition, the government could advance
that interest more effectively through numerous alternatives
that do not involve encroachments on First Amendment
freedoms.
Broadcasters historically have been subject to more
restrictions than have other media on their constitutionally
protected editorial discretion, but the traditional rationale
of spectrum scarcity no longer justified singling out
broadcasters for reduced First Amendment protection,
particularly in light of the multiplicity of other outlets
for diverse viewpoints. The pending legislation nevertheless
could not survive even the ``intermediate scrutiny''
requirements of narrow tailoring to a substantial
government purpose. Compelling broadcasters to finance
political campaigns would bear no relationship to
broadcasters' public interest duties, and would upset the
delicate balance between their journalistic freedoms and
their obligations as licensees of the public airwaves. By
singling out broadcasting from other media and usurping
broadcast facilities and time, the proposed legislation
also denies broadcasters equal protection of the law and
takes their property without just compensation, in
violation of the Fifth Amendment.
For all of these reasons, it is our view that those aspects
of the pending legislation that require broadcasters to
provide free or subsidized time for political candidates'
speech would likely be held unconstitutional by the courts.
Mr. McCONNELL. Mr. President, I ask unanimous consent to have printed
[[Page S6801]]
in the Record a constitutional analysis conducted for the National
Right to Life Committee.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Bopp, Coleson & Bostrom,
Attorneys at Law,
Terre Haute, IN, November 7, 1995.
Re: Senate Campaign Finance Reform Act of 1995.
David O'Steen, Ph.D.,
National Right to Life Committee,
Washington, DC.
Dear Dr. O'Steen: You have asked me, as General Counsel for
the National Right to Life Committee (``NRLC''), to evaluate
the proposed Senate Campaign Finance Reform Act of 1995
(``The Act''). We have done so.
Based on our evaluation, we recommend that NRLC oppose the
Act because of the effects it would have on NRLC activities.
These are set forth below.
SECTION 201
Section 201 would abolish connected political action
committees (``PACs''). The Act prohibits membership
corporations, such as National Right to Life, from having a
connected PAC. This would abolish National Right to Life PAC.
This would severely affect the ability of NRLC to influence
federal elections because NRLC would not have a connected
PAC.
Section 201 also permits only individuals or political
committees organized by candidates and political parties to
solicit contributions or make expenditures ``for the purpose
of influencing an election for Federal office.'' This appears
to do two things.
First, it appears to prohibit independent PACs, so that
persons associated with NRLC couldn't create an independent
PAC to do express advocacy for or against candidates.
Second, it also appears to bar nonprofit, nonstock,
ideological organizations--which under FEC v. Massachusetts
Citizens for Life, 479 U.S. 238 (1986), could do independent
expenditures--from making such independent expenditures on
behalf of or in opposition to candidates.
section 251
Assuming that under the Act independent expenditures can be
done by someone other than an individual,\1\ so that NRLC
still could have a PAC capable of making contributions and
expenditures to influence an election, there remains a
problem. The problem is with the definition of independent
expenditure in the Act.
---------------------------------------------------------------------------
\1\ There is a way this could happen. Apparently due to
concerns about the constitutionality of what Section 201 of
the bill does (Sec. 324 of the FECA), the Act creates a fall-
back position for times when those provisions might not be in
effect, i.e., might be enjoined for unconstitutionality. This
fall-back provision is that during the time when the ban on
connected and independent PACs might be enjoined from
enforcement the total that a candidate can receive from a
``multicandidate'' PAC is ``20 percent of the aggregate
Federal election spending limits applicable to the candidate
for the election cycle.'' Thus, the fallback is that if
connected and independent PACs cannot be abolished
altogether, then the total contributions from such PACs would
be capped. Under this provision, the ability of NRL PAC to
contribute to federal candidates would be severely affected.
---------------------------------------------------------------------------
The Act defines ``independent expenditure'' as an
expenditure containing ``express advocacy'' made without the
participation of a candidate. ``Express advocacy'' is defined
extremely broadly:
``18(A) The term ``express advocacy'' means when a
communication is taken as a whole and with limited reference
to external events, an expression of support for or
opposition to a specific candidate, to a specific group of
candidates, or to candidates of a particular party.
``(B) The term ``expression of support for or opposition
to'' includes a suggestion to take action with respect to an
election, such as to vote for or against, make
contributions to, or participate in campaign activity, or
to refrain from taking action.''
This extremely broad definition of ``express advocacy''
would sweep in protected issue advocacy which NRLC does, such
as voter guides. For example, criticizing a candidate for his
or her proabortion stand near an election time would fall
within the express advocacy definition because it would
constitute ``an expression of . . . opposition to a specific
candidate.'' This phrase goes far beyond what the United
States Supreme Court said was permissible to regulate as
electioneering in the case of Buckley v. Valeo, 424 U.S. 1
(1976). In Buckley, the Supreme Court held that in order to
protect issue advocacy (which is protected by the First
Amendment), government may only regulate election activity
where there are explicit words advocating the election or
defeat of a clearly identified candidate.
In sum, these provisions of the Act would prevent NRLC from
engaging in constitutionally-protected issue advocacy.
section 306
Section 306 of the Act authorizes an injunction where there
is a ``substantial likelihood that a violation . . . is . . .
about to occur.'' Thus, the FEC would be authorized to seek
injunctions against expenditures which, in the FEC's
expansive view, could influence an election. Such a
preemptive action against speech is an unconstitutional prior
restraint and is unconstitutional except in the case of
national security or similarly weighty situations. Prior
restraint should never be allowed in connection with core
political speech. There simply is no governmental interest of
sufficient magnitude to justify the government stopping
persons from speaking. Because prior restraints of speech are
so repugnant to the Constitution, the usual remedy is to
impose penalties after the speech is done, if a violation of
law occurred in connection with the speech.
Therefore, under the Act, the Federal Election Commission
would be authorized to pursue injunctions against the
political speech of persons or organizations suspected of
violating the Act. This means that NRLC would be subject to a
prior restraint of its speech, even issue advocacy, on the
eve of an important election. Given its history of expansive
readings of its powers to regulate constitutionally-protected
speech, the Federal Election Commission should never be
handed the weapon of prior restraint.
As stated at the beginning, there are severe problems with
the Act. The Act would profoundly alter NRLC's ability to
affect federal elections. Therefore, we recommend that
National Right to Life Committee oppose the Act.
Sincerely,
James Bopp, Jr.
Richard E. Coleson.
Mr. McCONNELL. In addition, I have individual columnists like George
Will and David Broder who have expressed opposition to various parts of
this measure, and I ask unanimous consent that those columns be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Newsweek, Apr. 15, 1996]
Civic Speech Gets Rationed
(By George F. Will)
Surveying the constitutional and political damage done by
two decades of campaign finance ``reforms,'' friends of the
First Amendment feel like the man (in a Peter De Vries novel)
who said ``In the beginning the earth was without form and
void. Why didn't they leave well enough alone?'' Reformers
should repent by repealing their handiwork and vowing to sin
no more. Instead, they are proposing additional constrictions
of freedom that would further impoverish the nation's civic
discourse.
The additions would be the Forbes-Perot Codicils, abridging
the right of a rich person to use his or her money to seek
elective office. This will be called ``closing a loophole.''
To reformers, a ``loophole'' is any silence of the law that
allows a sphere of political expression that is not yet under
strict government regulation.
Jack Kemp, Bill Bennett, Dan Quayle, Dick Cheney and
Carroll Campbell are among the Republicans who were deterred
from seeking this year's presidential nomination in part by
the onerousness of collecting the requisite funding in
increments no larger than $1,000. You may or may not regret
the thinness of the Republican field this year, but does
anyone believe it is right for government regulations to
restrict important political choices?
There are restrictions on the amounts individuals can give
to candidates and on the amounts that candidates who accept
public funding can spend. Limits on individuals' giving force
candidates who are less wealthy than Forbes or Perot to
accept public funding. Such restrictions are justified as
necessary to prevent corruption and promote political
equality. But Prof. Bradley A. Smith of Capital University
Law School in Columbus, Ohio, demolishes such justifications
in an article in The Yale Law Journal, beginning with some
illuminating history.
In early U.S. politics the electorate was small, most
candidates came from upper-class factions and the candidates
themselves paid directly what little campaign spending there
was, which went for pamphlets, and for food and whisky for
rallies. This changed with Martin Van Buren's organization of
a mass campaign for Andrew Jackson in 1828. Democratization--
widespread pamphleteering and newspaper advertisements for
the increasingly literate masses--cost money. Most of the
money came from government employees, until civil service
reform displaced patronage.
Government actions--Civil War contracts, then land and cash
grants to railroads, and protectionism--did much to create
corporations with an intense interest in the composition of
the government. Then government created regulations to tame
corporate power, further prompting corporate participation in
politics. Smith says that in 1888 about 40 percent of
Republican national campaign funds came from Pennsylvania
businesses, and by 1904 corporate contributions were 73
percent of Teddy Roosevelt's funds. Democrats relied less on
corporate wealth than on the largesse of a small number of
sympathetic tycoons: in 1904 two of them provided three
quarters of the party's presidential campaign funds. By 1928
both parties' national committees received about 69 percent
of their contributions in amounts of at least $1,000 (about
$9,000 in today's dollars).
Only a few campaigns have raised substantial sums from
broad bases of small donors. These campaigns have usually
been ideological insurgencies, such as Barry Goldwater's in
1964 ($5.8 million from 410,000 contributors), George
McGovern's in 1972 ($15 million from contributions averaging
about $20) and Oliver North's 1994 race for a U.S. Senate
seat from Virginia (small contributors accounted for almost
all of the $20 million that enabled North to outspend his
principal opponent 4 to 1 in a losing effort).
[[Page S6802]]
The aggressive regulation of political giving and spending
began in 1974, in the aftermath of Watergate. Congress,
itching to ``do something'' about political comportment, put
limits on giving to candidates, and on spending by
candidates--even of their personal wealth. Furthermore,
limits were placed on total campaign spending, and even on
political spending by groups unaffiliated with any candidate
or campaign. In 1976 the Supreme Court struck down the limits
on unaffiliated groups, on candidates' spending of personal
wealth and on mandatory campaign spending ceilings. The Court
said these amounted to government stipulation of the
permissible amount of political expression and therefore
violated the First Amendment.
But in a crucial inconsistency, the Court upheld the limits
on the size of contributions. Such limits constitute
deliberate suppression by government of total campaign
spending. And such suppression constitutes government
rationing of political communication, which is what most
political spending finances. Furthermore, in presidential
campaigns, limits on the size of contributions make fund
raising more difficult, which coerces candidates (at least
those less flush than Forbes or Perot) into accepting public
funding. Acceptance commits candidates to limits on how much
can be spent in particular states during the nominating
process, and on the sums that can be spent in the pre- and
post-convention periods.
Now, leave aside for a moment the question of whether the
``reformers'' responsible for all these restrictions remember
the rule that Congress shall make no law abridging the
freedom of speech. But why, in an era in which the United
States has virtually eliminated restrictions on pornography,
is government multiplying restrictions on political
expression? (Here is a thought rich in possibilities: Would
pornographic political expression be unregulatable?)
When reformers say money is ``distorting'' the political
process, it is unclear, as Smith says, what norm they have in
mind. When reformers say ``too much'' money is spent on
politics, Smith replies that the annual sum is half as much
as Americans spend on yogurt. The amount spent by all federal
and state candidates and parties in a two-year election cycle
is approximately equal to the annual sum of a private
sector's two largest advertising budgets (those of Procter &
Gamble and Philip Morris). If the choice of political leaders
is more important than the choice of detergents and
cigarettes, it is reasonable to conclude that far too little
is spent on politics.
The $700 million spent in the two-year election cycle that
culminated in the November 1994 elections (the sum includes
all spending by general-election candidates, and indirect
party-building expenditures by both parties, and all indirect
political spending by groups such as the AFL-CIO and the NRA)
amounted to approximately $1.75 per year per eligible voter,
or a two-year sum of $3.50--about what it costs to rent a
movie. In that two-year cycle, total spending on all
elections--local, state and federal--was less than $10 per
eligible voter, divided among many candidates. And because of
the limits on the size of contributions, much of the money
was not spent on the dissemination of political discourse but
on the tedious mechanics of raising money in small amounts.
Furthermore, the artificial scarcity of money produced by
limits on political giving and spending has strengthened the
incentive for the kind of spending that delivers maximum bang
for the buck--harsh negative advertising.
Does a money advantage invariably translate into political
potency? Try telling that to Forbes, who spent $440 per vote
in finishing fourth in the Iowa caucuses. True, the candidate
who spends most usually wins. But as Smith notes, correlation
does not establish causation. Money often follows rather than
produces popularity: many donors give to probable winners. Do
campaign contributions purchase post-election influence?
Smith says most students of legislative voting patterns agree
that three variables are more important than campaign
contributions in determining legislators' behavior--party
affiliation, ideology, and constituent views. ``Where
contributions and voting patterns intersect, they do so
largely because donors contribute to those candidates who
are believed to favor their positions, not the other way
around.''
Smith argues that limits on campaign giving and spending
serve to entrench the status quo. As regards limits on
giving, incumbents are apt to have large lists of past
contributors, whereas challengers often could best obtain
financial competitiveness quickly by raising large sums from
a few dedicated supporters. If today's limits had been in
place in 1968, Eugene McCarthy could not have mounted his
anti-war insurgency, which depended heavily on a few six-
figure contributions. As regards spending limits, the lower
they are the better they are for incumbents: incumbents are
already well known and can use their public offices to seize
public attention with ``free media''--news coverage.
The rage to restrict political giving and spending
reflects, in part, the animus of liberals against money and
commerce. There are, after all, other sources of political
influence besides money, sources that liberals do not want to
restrict and regulate in the interests of ``equality.'' Some
candidates are especially articulate or energetic or
physically attractive. Why legislate just to restrict the
advantage of those who can make or raise money? Smith notes
that one reason media elites are apt to favor restricting the
flow of political money, and hence the flow of political
communication by candidates, is that such restrictions
increase the relative influence of the unrestricted political
communication of the media elites.
To justify reforms that amount to government rationing of
political speech, reformers resort to a utilitarian rationale
for freedom of speech: freedom of speech is good when it
serves good ends. This rationale is defensible; indeed, it
has a distinguished pedigree. But it has recently been
repudiated in many of the Supreme Court's libertarian
construings of the First Amendment. Those decisions, taking
an expansive view of the First Amendment in the interest of
individual self-expression, have made, for example, almost
all restrictions on pornography constitutionally problematic.
And such libertarian decisions generally have been defended
by liberals--who are most of the advocates of restrictions on
campaign giving and spending.
But liberals of another stripe also advocate campaign
restrictions. They are ``political equality liberals'' rather
than ``self-expression liberals.'' They favor sacrificing
some freedom of speech in order to promote equal political
opportunity, as they understand that. Such liberal
egalitarians support speech codes on campuses in the name of
equality of status or self-esteem for all groups, or to bring
up to equality groups designated as victims of America's
injustices. Liberal egalitarians support restrictions on
pornography because, they say, pornography deprives women of
civic equality by degrading them. And liberal egalitarians
support restrictions on political expression in order to
achieve equal rations of political communication for all
candidates.
Prof. Martin Shapiro of the University of California's Law
School at Berkeley writes that ``almost the entire first
amendment literature produced by liberal academics in the
past twenty years has been a literature of regulations, not
freedom--a literature that balances away speech rights . . .
Its basic strategy is to treat freedom of speech not as an
end in itself, but an instrumental value.'' And Bradley Smith
says that ``after twenty years of balancing speech rights
away, liberal scholarship is in danger of losing the ability
to see the First Amendment as anything but a libertarian
barrier to equality that may, and indeed ought, to be
balanced away or avoided with little thought.
Fortunately, more and more people are having second
thoughts--in some cases, first thoughts--about the damage
done to the political process, and the First Amendment, by
the utilitarian or ``instrumentalist'' understanding of
freedom of speech. Campaign ``reforms'' have become a blend
of cynicism and paternalism--attempts to rig the rules for
partisan advantage or the advantage of incumbents' or to
protect the public from what the political class considers
too much political communication. Any additional ``reforms,''
other than repeal of the existing ones, will make matters
worse.
____
[From the Washington Post, Nov. 14, 1995]
Gingrich's Heresy
(By David S. Broder)
Speaker Newt Gingrich (R-Ga.) knew he was headed into a
test of wills with the president that might force a shutdown
in the government and boost his already high negative
ratings. The last thing he needed was another fight--
especially one in which his position would guarantee
denunciation from all respectable quarters.
Nonetheless, when Gingrich testified the other day at a
congressional hearing on campaign finance, he deliberately
committed heresy. He argued that too little money--not too
much--is going into campaigns.
The editorial pages and columnists issued the predictable
squawks. The speaker also took fire from the rear: The
freshman Republicans who have been his shock troops were in
shock. They wanted to hear him say, as everyone from Common
Cause to Ross Perot regularly intones, that American politics
is ``awash'' in special-interest money.
That is the operative premise of all the favorite
``reforms'': abolition of PACs (political-action committees);
allowing only people from the home state or home district to
contribute to a candidate; getting rid of ``soft-money''
corporate contributions, which pay for political party
facilities and grass-roots operations.
All of this Gingrich challenged in his testimony on Nov. 2.
The total amount spend on House and Senate races in 1994 was
$724 million--a record sum and shocking to many. But the cost
of 435 House races and 33 Senate campaigns was, he pointed
out, roughly double what the makers of the three leading
antacids budgeted for advertising last year. This is a
scandal?
Ah, but it said, the candidates and office-holders were
forced to spend an inordinate amount of time dialing for
dollars, going hat in hand to prospective contributors. True
enough, but the main reason is that contribution limits have
not been adjusted for inflation in 21 years. In 1974 the
limit on individual contributions was set at $1,000. That is
worth $325 today. If you really want politicians spending
less time fund-raising, Gingrich suggested, lift that limit
to $5,000 and index it for inflation.
If this were not heretical enough, the speaker had one
other idea. Instead of thinking of campaign finance as a
separate problem, screaming for solution, think about a way
to pay for the cost of politics that would
[[Page S6803]]
actually serve the interests of voters and of governing.
Do that, he said, and you may find that the best remedy is
not to legislate limits on contributions or spending but to
enable greater activity by the political parties--
Republicans, Democrats and any third force that may emerge to
challenge them.
The biggest problem in our campaign finance system, he
said, is the gross disparity between what House incumbents
can raise and what most challengers can muster. The PACs are
a big part of this problem for they use their contributions
to ensure access to legislators handling their issues. The
PAC system, as Gingrich said, ``has become an arm of the
Washington lobbyists'' and needs to be reduced in
significance.
But limiting PAC contributions is likely to be an empty
gesture. Increasingly, organized interest groups are mounting
independent expenditure campaigns, boosting their friends and
targeting their enemies, which they can do without limit.
Since we cannot effectively stifle these special-interest
voices, Gingrich said, let us submerge them in appeals from
the parties. Increase substantially the limits on what people
can give to political parties, he said. And allow those
parties to contribute far more than they do now to help
challengers offset the many advantages incumbents enjoy--not
only greater leverage on the PACs but all the staff, office
and communications facilities that are provided at taxpayers'
expense.
Barring such changes, Gingrich rightly said, we are almost
certain to see a continuation of the trend to millionaire
candidates. Because the wealthy are allowed (by Supreme Court
decision) to spend whatever they wish on their own campaigns,
the Senate has become a millionaires' club and the House is
moving in the same direction.
All of this was a challenge to conventional wisdom. But
Gingrich is not, in fact, alone. In the same week that he
testified, the libertarian Cato Institute and the liberal
Committee for the Study of the American Electorate published
essays arguing that the supply of political money should be
increased, not decreased. As Curtis Gans, the author of the
latter study, pointed out, ``The overwhelming body of
scholarly research . . . indicates that low spending limits
will undermine political competition by enhancing the
existing advantages of incumbency.''
Gingrich has been accused of foot-dragging on the handshake
agreement he struck with President Clinton last June to form
a bipartisan commission on campaign finance.* * *
____
[From the Washington Post, Jan. 17, 1996]
A Senate of Millionaires
(By David S. Broder)
Want a perfectly safe bet on the November election results?
Bet that there will be even more millionaires in the U.S.
Senate.
What once was called ``The World's Most Exclusive Club''
increasingly requires personal wealth as a condition for
membership. The combination of rising campaign costs and
foolishly frozen limits on individual contributions has
increased the advantage of self-financed candidates. The 1996
candidate lists are full of them.
In Georgia, for example, all three Republicans seeking
nomination to the vacancy created by the retirement of
Democratic Sen. Sam Nunn are men of substantial means. In
Minnesota, former Republican senator Rudy Boschwitz, a
wealthy retired businessman, is trying to reclaim the seat he
lost to populist professor Paul Wellstone six years ago. And
in a half-dozen other states, Republicans either have or are
trying to recruit challengers who can afford to pay their own
way.
What is more striking is the extent to which the
Democrats--the self-styled party of the people--have begun to
rely on affluence as the criterion for picking their Senate
candidates.
In Colorado, New Hampshire, South Carolina and Virginia,
the favored candidates for the Democratic nomination are all
men of independent means, and in many cases, without wealth
would not be considered to have Senate credentials. In
Illinois, North Carolina, Oklahoma and Oregon, men of similar
backgrounds are given a chance of winning nomination because
of their bankrolls. It is not a new pattern. Among the
Democratic senators seeking reelection this year is John D.
(Jay) Rockefeller IV of West Virginia, who spent more than
$10 million of his own money to be elected in 1984.
Retiring Sen. Bill Bradley (D-N.J.), a banker's son who
earned big money as a New York Knicks basketball star, writes
about the advantage wealth confers on a politician in his
newly published memoir, ``Time Present, Time Past.'' Bradley
recounts how he decided he could afford to give or lend a
quarter-million dollars to his first Senate campaign in
1978--about one-fifth of his budget. ``It assured me that I
could compete even if I didn't raise as much as I had
hoped,'' he says. ``With the existence of that self-generated
cushion, I was able to raise more. When potential
contributors see a campaign with money, they assume it's
well-run, and they are more likely to make contributions.
Everyone likes to be with a winner, whether in basketball or
politics.''
Bradley points out that he was a piker compared with many
of his colleagues. ``Four years later in New Jersey, Frank
Lautenberg, a wealthy computer executive with no elective
experience, would spend over $3.5 million of his own money to
win a U.S. Senate seat. . . . In Wisconsin in 1988, Herb Kohl
promised to spend primarily his own money in his Senate
campaign; $7.5 million later, he won.''
Financial disclosure statements show that at least 28 of
the 100 sitting senators have a net worth of $1 million or
more--many of them much more. Michael Huffington, a Texas oil
man, spent $28 million of his own money in trying for a
California Senate seat in 1994--but still lost. The price is
going up.
Wealth is not a determinant of votes in the Senate. There
are liberals like Rockefeller and Ted Kennedy along with
conservatives. But wealth confers an unfair advantage in the
campaigns for the Senate, and makes it much harder than it
should be for people of talent, but no wealth, to compete.
The main reason for this disadvantage is the
unrealistically low limit on individual contributions. The
law, as Bradley notes, provides that ``whereas a candidate
could contribute as much of his own money as he chose, he
could accept individual contributions of only $2,000 from
others--$1,000 of it for the primary and $1,000 for the
general election.''
The contribution limits were set 22 years ago and never
have been adjusted; inflation has eroded their value by two-
thirds since then. Raising contribution limits is far down
the list of proposals of most campaign finance reformers;
many want to freeze them or reduce them.
But all the contribution limits are accomplishing today is
to create an ever-greater advantage for self-financed
millionaire candidates. Steve Forbes's rivals in the
Republican presidential race are complaining that his wealth
is tilting the odds in the contest, where he is the only one
who is paying his own way and therefore spending as much as
he wants. But the Senate picture is not very different.
If we really want to be ruled by a wealthy elite, fine; but
it is a foolish populism that insists it despises the
influence of wealth, and then resists liberalizing campaign
contribution limits.
Rich men understand that. It's too bad the reformers can't
figure it out.
____
[From the Washington Post, Jan. 31, 1996]
``Frontline's'' Exercise in Exaggeration
(By David S. Broder)
As if the cynicism about politics were not deep enough
already, PBS's ``Frontline'' last night presented a
documentary called ``So YOU Want to Buy a President?'' whose
thesis seems to be that campaigns are a charade, policy
debates are a deceit and only money talks.
The narrow point, made by Sen. Arlen Specter (R-Pa.), an
early dropout from the 1996 presidential race, about
millionaire publisher Malcolm S. (Steve) Forbes Jr., is that
``somebody is trying to buy the White House, and apparently
it is for sale.''
The broader indictment, made by correspondent/narrator
Robert Krulwich, is that Washington is gripped by a ``barter
culture'' in which politicians are for sale and public policy
is purchased by campaign contributions.
The program rested heavily on a newly published paperback,
``The Buying of the President.'' Author Charles Lewis, the
head of the modestly titled Center for Public Integrity, was
a principal witness, and Kevin Phillips, the conservative
populist author who wrote the book's introduction, was also a
major figure in the documentary.
It dramatized the view asserted by Lewis in the conclusion
of his book: ``Simply stated, the wealthiest interests
bankroll and, in effect, help to preselect the specific major
candidates months and months before a single vote is cast
anywhere. . . . We the people have become a mere afterthought
of those we put in office, a prop in our own play.''
Viewers say a number of corporate executives--no labor
leaders, no religious leaders, no activists of any kind, for
some reason--who have raised and contributed money for
presidents and presidential candidates and thereafter been
given access at dinners, private meetings or overseas trade
missions.
It is implied--but never shown--that policies changed
because of these connections. As Krulwich said in the
transcript of a media interview distributed, along with an
advance tape, with the publicity kit for the broadcast, ``We
don't really know whether these are bad guys or good guys. .
. . I'm not really sure we've been able to prove, in too many
cases, that a dollar spend bought a particular favor. All
we've been able to show is that over and over again, people
who do give a lot of money to politicians get a chance to
talk to those politicians face to face, at parties, on
planes, on missions, in private lunches, and you and I
don't.''
If that is the substance of the charge, the innuendo is
much heavier. At one point, Krulwich asked Lewis, in his most
disingenuous manner, ``Do you come out convinced that
elections are in huge part favors for sale, or in tiny
part?''
And Lewis replied that while ``there are a lot of wealthy
people that do want to express broad philosophical issues,''
the ``vested interests that have very narrow agendas that
they want pursued see these candidates as their handmaidens
or their puppets. The presidential campaign is not a horse
race or a beauty contest. It's a giant auction.''
That is an oversimplified distortion that can do nothing
but further alienate a cynical electorate. Of course, money
is an important ingredient in our elections and its use
deserves scrutiny. But ideas are important too, and grass-
roots activism even more so. The Democratic Leadership
Council's Al From
[[Page S6804]]
and the Heritage Foundation's Robert Rector have had more
influence in the last decade than any fund-raisers or
contributors, because candidates have turned to them for
policy advice.
John Rother of the American Association of Retired Persons
and Ralph Reed of the Christian Coalition work for
organizations that are nominally nonpartisan and make no
campaign contributions at all. But their membership votes--so
they have power.
The American political system is much more complex--and
more open to influence by any who choose to engage in it--
than the proponents of the ``auction'' theory of democracy
understand, or choose to admit.
By exaggerating the influence of money, they send a clear
message to citizens that the game is rigged, so there's no
point in playing. That is deceitful, and it's dangerously
wrong to feed that cynicism.
Especially when they have nothing to suggest when it comes
to changing the rules for the money game.
At one point, Phillips said that the post-Watergate reforms
succeeded only in having ``forced them [the contributors and
politicians] to be more devious.'' That is untrue. Those
reforms, which mandated the disclosure of all the financial
connections on which the program was based, also created
publicity which, even Krulwich and Co. admitted, foiled the
``plots'' of some contributors.
And Krulwich, for his part, suggested very helpfully that
``every high-profile politician agrees that some things have
got to change. Change the limits. Change the rules. Change
the primaries. Change the ads. Change enforcement. You gotta
change something.''
How about changing the kind of journalism that tells people
that politicians are bought-and-paid-for puppets and you're a
sucker if you think there's a damn thing you can do to make
your voice heard?
Mr. McCONNELL. Mr. President, over the years working on this issue I
have written several pieces which I ask unanimous consent to have
printed--one in the Washington Post and one in the USA Today--in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Feb. 21, 1996]
Just What Is A Special Interest?
(By Mitch McConnell)
President Clinton, in his State of the Union address,
beseeched Congress to enact campaign finance reform to reduce
``special interest'' influence. Campaign finance reforms that
the president favors would constrict fundamental democratic
freedoms to participate in the political process. In other
words: speech would be limited and some citizens' freedom to
participate in elections beyond voting would be ``reformed''
out of existence based on their alleged status as ``special
interests.'' But if ``special interest'' is not defined, how
are we to know just whose influence should be curbed?
Judging from the fervent bipartisan (and third party) scorn
heaped on ``special interests,'' the casual observer would
logically assume that this scourge of democracy was readily
identifiable. The Congressional Record, newspaper editorials
and campaign speeches are replete with diatribes against the
``special interests.'' A recent search of newspapers on the
Nexis database found more than 60,000 articles and editorials
containing the phrase ``special interest.''
``Special interest'' is the most pejorative phrase in the
American political lexicon since ``communist-pinko.'' Judging
from the reformers' scathing rhetoric, rooting out these
special interests is a job for a new Senate Committee on Un-
American Activities.
In fact, the special interest tag depends on the viewer's
vantage point rather than on any objective criteria. So-
called good government groups would have people believe that
the antonym is ``public'' interest--as defined by them. These
groups usually construe good government to mean big
government and therefore deem big government to be in the
public interest. By this logic, opposition to any government
regulation or tax virtually guarantees a special interest
charge.
Capitalism should not be a dirty word in a free society,
but having observed the enmity directed toward its
practitioners in many quarters, one could reasonably wonder.
Some nonprofit so-called ``good government'' groups readily
pin the special interest label on profit-seeking enterprises.
Yet behind corporate balance sheets are employees, families,
shareholders and communities of which they are part.
Does the special interest connotation extend to employees
and their families? To the legions of Americans whose
retirement funds and investments are keyed to the stock
market? By such extrapolation does the ``special interest''
smear cut a wide swath.
What happens when a purported public interest organization
is funded by a group that is universally regarded as a
``special interest,'' such as the plaintiffs' lawyers? Are we
to conclude that the special interest in this instance is
subsumed in the nobler public interest? Or is the public
interest group simply laundering the special interest
influence money and acting as a front organization? Or is it
merely coincidence when their interests converge on, say,
lawsuit reform?
Most people would probably conclude that a special interest
is contrary to the majority interest. Should special interest
be defined as being not immediately relevant to more than
49.9 percent of American citizens? Must its membership
comprise a majority of the country to be legitimate? If so,
such a qualification should be carefully pondered, as
``special interests'' could be equated with any narrow or
minority interest, thus automatically tarnishing what could
be a very worthy cause.
Being a senator from Kentucky, I regularly go to bat for
Kentucky industries (and their employees, suppliers and
subcontractors) threatened by onerous regulations and
taxation. These industries may, in the minds of some people,
epitomize ``special interest.'' To me, they and the
Kentuckians whose livelihoods depend on them are
constituents, and my assistance to them is in the public's
interest.
Is a Pacific Northwest lumber company automatically a
special interest? The company's employees? How about the
Washington-based environmentalists who would sacrifice jobs
and disrupt human lives for the sake of an owl? Are owls
special interests?
The truth is that the special interest label is a political
weapon utilized, often reflexively and perhaps thoughtlessly,
by people throughout the ideological spectrum. It can be
found in statements I have made in the past. Using it is a
hard habit to break. Nevertheless, in the interest of more
honest and civil public discourse, the invocation of the
``special interest'' mantra to propel a reform agenda or
wound an opponent is a habit that should be broken.
All Americans have a constitutional right to petition the
government and participate in the political process, however
unpopular the cause or narrow its appeal may be. Americans do
not forfeit those rights because they have been tagged with
the special interest label.
The campaign finance reform debate, in particular, is
advanced on the premise that special interest influence is
pervasive, corrosive, and must be abated at all costs. But
the cost of the alleged reforms in terms of constitutional
freedom for all Americans is high. And the special interest
premise is deeply flawed. So the next time you hear someone
hail campaign finance reform as the answer, ask them what is
the question. And when they say special interest influence is
the problem, ask them: What is a special interest?
____
[From USA Today, June 11, 1996]
Disaster for Taxpayers, Candidates
[By Mitch McConnell]
The most talked-about campaign-finance schemes are
unconstitutional, undemocratic, bureaucratic boondoggles.
Further, their sponsors think taxpayers should foot the bill.
And for good measure, these ``reform'' schemes also would
greatly increase the power of the media.
Perhaps that is simply a fortunate happenstance for the
liberal newspapers pushing them. In any event, the media
clearly have a ``special interest'' in campaign finance
``reforms'' which would increase their power by limiting the
speech of every other participant in the political process.
Because political campaigns exist to communicate with
voters, the U.S. Supreme Court ruled two decades ago that
campaign spending must be accorded First Amendment
protection. Ergo, campaign spending limits are
unconstitutional speech limits.
The simple fact is that communication with America's nearly
200 million eligible voters is expensive. For instance, one
full-page color campaign ad in a Friday edition of USA TODAY
would cost $104,400. Television and mail are also essential
means of communicating with voters.
These are expensive venues, but they are the only way to
reach all the voters in large, modern electorates. Limiting
campaign spending would limit political discourse by
candidates, thereby enhancing the power of the media. That is
bad public policy.
For all the whining, the fact is that congressional
campaign spending (less than $4 per eligible voter in 1994)
is paltry relative to what Americans spend on consumer items
like bubble gum and yogurt.
What we should do is adjust the individual contribution
limit for inflation.
The contribution limits candidates must abide by in 1996
were set over two decades ago (when a new Ford Mustang cost
$2,700). These inflation-eroded limits benefit the well-off
(rich candidates who can fund entire campaigns out of their
own pockets) and the well-known (principally incumbents) who
have a large base from which to draw contributions.
Enhanced public disclosure of all campaign-related spending
is also a worthy reform that would enable voters to make
informed decisions on Election Day.
By comparison, the so-called ``good government'' groups'
campaign-finance schemes would be disasters. Delay is
preferable to the enactment of such constitutional
monstrosities.
Mr. McCONNELL. Mr. President, some information about the cost to the
Postal Service, estimated by this postal rate subsidy, and I ask
unanimous consent that be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S6805]]
U.S. Postal Service,
Washington, DC, June 24, 1996.
Hon. Mitch McConnell,
U.S. Senate, Washington, DC.
Dear Senator McConnell: I am writing to voice my concerns
about campaign finance reform legislation, S. 1219, which
would place an unfair financial burden on the Postal Service
and its ratepayers.
Let me first say that the Postal Service takes no position
on the general merits of campaign finance reform. This issue
appropriately rests with the Congress. However, S. 1219, as
well as several other campaign finance reform bills in the
House and Senate, provide for reduced postage rates for
eligible candidates. These bills do not contain a funding
mechanism through which the Postal Service would be
reimbursed for the difference between regular rate postage
and the reduced rate used by the candidates. In essence, the
legislation creates an unfunded mandate, and the costs would
have to be absorbed by our customers, the postal ratepayers.
Testimony at campaign finance reform hearings estimated the
reduced postage costs for S. 1219 to be $50 million per
election. Estimates for other campaign finance bills with
reduced postage provisions range from $50 to $150 million per
election.
I would also like to point out that it is very unlikely
that the Postal Service and its customers would be made whole
even if a funding mechanism were included in campaign finance
reform legislation. After years of underfunding our annual
appropriation for Congressionally mandated reduced rate
mailings, Congress enacted the 1993 Revenue Forgone Reform
Act. In eliminating future funding for reduced rate mailings,
this law mandates that the Postal Service receive a series of
42 annual appropriations of $29 million as partial
reimbursement for past funding shortfalls. Even this
``partial'' relief is now threatened as our House Treasury,
Postal Service, and General Government Appropriations
Subcommittee proposed that this appropriation be reduced by
over $5 million during their markup of our FY '97
appropriations bill.
I recognize the importance of the campaign finance reform
issue in Congress this year, and it is with reluctance that I
express these concerns to you. Nonetheless, S. 1219, as well
as others, would offer political candidates reduced postage
costs at the expense of the Postal Service and its customers.
I urge you and your colleagues to identify alternate
provisions that would not require postal ratepayers to bear
the burden of campaign finance reform.
Best regards,
Marvin Runyon.
____
Direct Marketing Association, Inc.,
Washington, DC, June 19, 1996.
Hon. Mitch McConnell,
U.S. Senate, Washington, DC.
Dear Senator McConnell: It now appears that S. 1219,
campaign finance legislation sponsored by Senators McCain and
Feingold, is scheduled for debate next week.
We strongly urge you to cast a no vote on the cloture
motion that will be offered during the debate.
As I have written to you before, DMA is opposed to S.1219,
largely because of the provisions for low cost mailings for
Senatorial candidates, without compensation to the Postal
Service for lost revenues.
We estimate that, should the House pass similar
legislation, these provisions could cost the Postal Service
as much as $350 million dollars over a two-year election
cycle. Every penny of this will ultimately come out of the
pocket of the businesses and consumers who use the mails.
The Postal Service finds itself in an increasingly
competitive environment. In order to survive, the Postal
Service must be able to price its products competitively. It
cannot do this if costs are arbitrarily added to its rate
base. Legislation such as this endangers the financial base
of the Postal Service and the service it can provide to
American businesses and consumers.
Again, we urge you to vote no on the cloture motion.
Sincerely,
Richard Barton.
____
National Association of
Broadcasters,
Washington, DC., June 24, 1996.
Hon. Mitch McConnell,
U.S. Senate,
Washington, DC.
Dear Senator McConnell: First, I would like to thank you
for the leadership role you have taken in opposing S. 1219,
the campaign finance reform legislation introduced by
Senators John McCain and Russ Feingold.
As originally introduced, this legislation would require
broadcasters to offer qualified Senate candidates an
additional 50% discount off the discounted television
advertising rates candidates currently receive. The
legislation further requires broadcasters give candidates
free advertising time. We believe these provisions are
unconstitutional and impose significant financial burdens on
local broadcasters and we must oppose the legislation.
We understand Senators McCain and Feingold have introduced
a substitute to S. 1219. At your request we have reviewed the
broadcast provisions of the substitute. We have done so and
have determined that for the most part the broadcast
provisions are the same as those in S. 1219. There is,
however, new language in the broadcast section which causes
us great concern.
The new provision would give to the U.S. Court of Federal
Claims exclusive jurisdiction over challenges to the
constitutionality of the broadcast rate and free time
provisions. Further, by its terms it precludes any injunctive
relief, providing only for money damages. It is unclear
whether this is an attempt to somehow deny us the opportunity
to bring a First Amendment claim against these provisions. No
other section of the bill appears to have the same
requirement and we do not understand why the broadcast
provisions are given a different avenue for judicial review.
We must oppose the substitute to S. 1219, and we continue
to support your efforts in opposing this legislation. If I
can be of further assistance, please do not hesitate to
phone.
Sincerely,
Edward O. Fritts,
President.
Mr. McCONNELL. Mr. President, calling the McCain-Feingold voluntary
does not make it so, its proponents protestations to the contrary.
Anyone who dared not to comply with its voluntary limits would have to:
pay twice as much as their opponent for TV ads and more for postage;
with half the contribution limit; and forgo 30 minutes of free time.
All this and their complying opponent's spending limit would be
increased up to 100 percent to counteract any excessive spending.
Moreover, the complying candidate could spend unlimited amounts to
counteract--dollar-for-dollar--independent expenditures.
So I say again, technically, mugging victims had options, too. That
does not mean that handing over their wallets to muggers were voluntary
acts. And I should stress here that the essential point in regard to
the voluntariness of the candidate spending limits is not--as the
Senator from Wisconsin stated yesterday--that candidates who did not
comply with spending limits would be giving up benefits they do not
currently enjoy such as the 50 percent discount and the free TV time.
What makes the provision unconstitutional is the severe handicapping
candidates would experience if they did not comply with the limits.
This is a crucial distinction from the presidential system. Steve
Forbes did not have to pay twice as much for TV ads as the complying
presidential candidates. He did not forego free time and Bob Dole's
spending limit did not increase when independent expenditures were made
against him. And his spending limit did not increase when Forbes spent
over the limit. Had the presidential system had the inducements of the
McCain-Feingold bill, Steve Forbes might very well have elected not to
get into the race, at all.
It simply would not make sense for a candidate not to comply with the
McCain-Feingold bill unless he or she were so extraordinarily wealthy
they could spend many times the spending limit for their own wallet. So
you could have two extreme types of campaigns under McCain-Feingold--
very low spending ones complying with the limits and extremely
expensive campaigns. What would disappear is the middle ground--not as
cheap as the McCain-Feingold model but not at the extreme high-end,
either.
If you looked long and hard enough and had common cause and public
citizen helping, even a tiny needle in a giant haystack could be found.
And so it is that at long last--after a decade of debate on this
scheme--some people with law degrees have been located to say the
McCain-Feingold/common cause spending limit structure is
constitutional. How expert they are remains to be seen and their
submittals on the subject will certainly be scrutinized.
In any event objective liberals and conservatives can agree that the
American Civil Liberties Union is the repository of expertise on first
amendment issues. The ACLU led, and triumphed, in the fight against
mandatory spending limits 20 years ago in the Buckley versus Valeo
case. And the ACLU will be in front again--along side me--should
anything resembling the McCain-Feingold bill ever become law. The ACLU
is singularly focused on constitutional freedom and has probably
aggravated just about everybody at sometime with unpopular stands. But
they have a remarkable record of success in this area.
At this point I will read excerpts from the ACLU's testimony--given
by professor and Buckley versus Valeo attorney Joel M. Gora--before the
Senate Rules Committee on February 1 of this year.
The provision for ``voluntary'' spending limits in Senate
campaigns violates the free
[[Page S6806]]
speech principles of Buckley v. Valeo. The outright ban and
severe fall back limitations on PACs violate freedom of
speech and association, as do the limitations on
``bundling.'' The unprecedented controls on raising and
spending ``soft money'' by political parties and even non-
partisan groups intrude upon First Amendment rights in a
manner well beyond any compelling governmental interest. The
revised provisions governing the right to make independent
expenditures both improperly obstruct that core area of
electoral speech and impermissibly invade the absolutely
protected area of issue advocacy. The reduced recordkeeping
threshold for contributions and disbursements, from $200 down
to $50, invades associational privacy. And the new powers
given to the Federal Election Commission to go to court in
the midst of a campaign to enjoin ``a violation of this Act''
pose an ominous and sweeping threat of prior restraint and
political censorship.
S. 1219 suffers from many of the same flaws as the original
statute at issue in Buckley v. Valeo. There the ACLU
contended that the Federal Election Campaign Act of 1974 was
bad constitutional law because it cut to the heart of the
First Amendment's protections of political freedom. It
limited the ability of groups and individuals to get their
message across to the voters. The very essence of the First
Amendment is the right of the people to speak, to discuss, to
publish, to join together with others on issues of political
and public concern. This constitutional protection of the
right of the people to join together to form groups and
organizations and societies and associations and unions and
corporations to articulate and advocate their interests is
the genius of American democracy. And this is particularly
vital in connection with political election campaigns when
issues, arguments, candidates and causes swirl together in
the public arena. Yet, the 1974 Act imposed sweeping and
Draconian restraints on the ability of citizens and groups,
candidates and committees, parties and partisans to use their
resources, to make political contributions and expenditures,
to support and embody their freedom of speech and
association.
The ACLU also insisted the Act was poorly crafted
``political restructuring'' rather than real ``political
reform'' because it exacerbates the inequality of political
opportunity, enhances dependence upon money and moneyed
interests in politics and magnifies the power of incumbency
as the single most significant factor in politics. Limits on
giving and spending make it harder for those subject to the
restraints to raise funds and easier for those outside the
restraints to bring their resources to bear on politics.
Limiting individual contributions to $1,000 per candidate,
while allowing PACs, made legitimate by the ``reforms,'' to
contributes $5,000 per candidate, would make it harder to
raise money from individuals and make candidates more
dependent on PACs. And PACs, often representing entrenched
interests, would be more likely, though far from inevitably,
to prefer incumbents to challengers as beneficiaries of their
largesse. The Act would stifle not expand political
opportunity. What you had, we warned, was an unconstitutional
law, enacted by Congress, approved by the President, enforced
by an agency, the Federal Election Commission, beholden to
each, and designed to restrain the speech and association of
those who would criticize or challenge or oppose the elected
establishment. Talk about the powers of incumbency. That's
why we called the Act an ``Incumbents Protection Act.''
In Buckley v. Valeo, the Supreme Court held that any
government regulation of political funding--of giving and
spending, of contributions and expenditures--is regulation of
political speech and subject to the strictest constitutional
scrutiny. The Act's limitations on political expenditures--by
committees, campaigns and candidates, no matter how
wealthy--flatly violated the First Amendment. Nothing can
justify the government telling the people how much they
could spend to promote their candidacies or causes. Not in
this country. Nothing. ``In the free society ordained by
our Constitution it is not the government, but the
people--individually as citizens and candidates and
collectively as associations and political committees--who
must retain control over the quantity and range of debate
on public issues in a political campaign.'' Buckley v.
Valeo, 424 U.S. 1,57 (1976).
Nor could the Congress try to help ``equalize'' political
speech and the ability to influence the outcome of elections
by imposing restraints on some speakers: ``. . . the concept
that government may restrict the speech of some elements of
our society in order to enhance the relative voice of others
is wholly foreign to the First Amendment.'' Buckley v. Valeo,
424 U.S. at 48-49.
Unfortunately, the decision in Buckley upheld the Act's
contribution limits of $1,000 for individuals and $5,000 for
political committees. The Court did this because of its
stated concern that unlimited gifts to candidates was a
recipe for corruption, a ruling that ensured the two decades
of frustration and unfairness that have ensured. With no
limits on overall campaign spending or on wealthy candidates,
and with independent campaign committees, issues groups and
the press free to use their resources to comment on
candidates and causes without limit; but with less well-
funded candidates hampered in their ability to raise money
from family, friends and supporters, the stage was set to
make two factors dominant: the advantages of incumbency and
the dependency on PACs.
The advantages of incumbency meant that public resources
such as franking privileges, government funded newsletters
and free television coverage (C-Span) made it easier for
Members of Congress to communicate with the voters, while
challengers have to spend restricted amounts of money in
order to achieve the same visibility.
The dependency on PACs resulted from severe limitations on
the amounts of money that individuals can contribute directly
to candidates, coupled with the markedly increased cost of
campaigning, which made PAC contributions a very important
source of campaign funding. And the individual contribution
limit was kept at $1,000, which, adjusted for inflation, is
probably worth about $400 in real dollars today.
That is why for twenty years candidates have had to look
more to PACs order to raise funds and incumbents, in
particular, have had an easier ability to do so.
And for twenty years, the ACLU has suggested the way to
solve these various disparities and dilemmas is to expand
political participation, by providing public financing or
support for all legally qualified candidates, without
conditions and restrictions, not to restrict contributions
and expenditures which enable groups and individuals to
communicate their message to the voters.
Unfortunately, in all of its critical aspects, S. 1219, The
Senate Campaign Finance Reform Act of 1995 fails to
facilitate broader political participation and it also
unconstitutionally abridges political expression.
Mr. President, the proponents of this bill are very mistaken if they
believe the spending limits are constitutional. The ACLU differs:
Title I of the bill, providing ``spending limits and
benefits'' for Senate election campaigns, is an attempt to
coerce what the law cannot command: limitations on overall
campaign expenditures and on the use of personal funds for a
candidate's own campaign. It is a backdoor effort to impose
campaign spending limits--which inevitably benefit
incumbents--in violation of the essential free speech
principles of Buckley v. Valeo and the doctrine of
unconstitutional conditions. And it should be observed
that what triggers benefits for some candidates and
burdens for others is not that a candidate approaches or
exceeds relevant spending limits, but simply refuses to
agree to be bound by them.
The ACLU believes that the receipt of public subsidies or
benefits can never be conditioned on surrendering
constitutional rights. To do so would be to penalize the
exercise of those rights. See Perry v. Sindermann, 408 U.S.
593, 597 (1972); FCC v. League of Women Voters, 468 U.S. 364
(1984). Since candidates have an unqualified right to spend
as much as they can to get their message to the voters, and
to spend as much of their own funds as they can, and to raise
funds from supporters all over the country, they cannot be
made to surrender those rights in order to receive public
benefits.
In Buckley the Court suggested that Congress could
establish a system whereby candidates would choose freely
between full public funding with expenditure limits and
private spending without limits, ``as long as the candidate
remains free to engage in unlimited private funding and
spending instead of limited public funding.'' Republican
National Committee v. Federal Election Commission, 487 F.
Supp. 280, 284 (S.D.N.Y.), aff'd mem., 445 U.S. 955 (1980).
See Buckley at 57, n. 65. Contrary to its supporters' claims,
S. 1219 does not establish such a regime of voluntary
campaign spending limits. Rather, the bill denies significant
benefits to and imposes burdens on those candidates who
refuse to agree to limit their campaign expenditures, while
conferring a series of advantages upon those candidates who
agree to the limits.
First, by banning PAC contributions entirely, the bill
makes it more difficult for candidates to raise and spend
money at all, which will make them more susceptible to
accepting the expenditure and other limitations. Candidates
who refuse to accept spending limits have to work harder to
raise funds because the limits on contributions to their
opponents are raised automatically from $1,000 to $2,000. And
then such disfavored candidates have to pay full rates for
broadcasting and postage. Finally, the expenditure ceilings
of their opponents are raised by 20% to make it easier to
counter the messages of ``non-complying'' candidates.
In short, this scheme does everything possible to help the
candidate who agrees to spending limits to overwhelm the
candidate who does not. That is not a level playing field.
Indeed, in Buckley the Court upheld public funding of
Presidential campaigns because its purpose was ``not to
abridge, restrict or censor speech, but rather to use public
money to facilitate and enlarge public discussion and
participation in the electoral process, goals vital to a
self-governing people.'' 424 U.S. at 92-93. S. 1219 fails
this test, for its purposes and effect are to limit speech,
not enhance it. Recent cases have invalidated other schemes
for making candidates ``voluntarily'' agree to expenditure
and other restraints by penalizing those who do not, see
Shrink Missouri Government PAC v. Maupin,--F.3d--, 64 Law
Week 2409 (8th Cir. 1995) (restricting funding sources of
those who refuse to agree to abide by expenditure limits
violates the First Amendment) (``We are hard-pressed to
discern how the interests of good government could possibly
be served
[[Page S6807]]
by campaign expenditure laws that necessarily have the effect
of limiting the quantity of political speech in which
candidates for public office are allowed to engage.'' Id.
at--);
Moreover, even if the Act did create a level playing field,
the incumbent starts the game 10 points ahead because of
greater fund-raising ability, name recognition, access to the
news media and other benefits of incumbency. All things being
equal, the incumbent starts out ahead. Any law which imposes
financial penalties and disincentives on speech because of
the interaction between the status of the speaker and the
content of the speech is constitutionally suspect. See
Simon & Schuster, Inc. v. Members of the New York State
Crime Victims Board, 502 U.S. 105 (1991) (law improperly
escrowed profits from writings about a criminal's crime);
United States v. National Treasury Employee's Union, 516
U.S.--(1995) (invalidating overbroad honorarium ban on
moonlighting speeches and articles by federal employees).
Schemes of public benefits for political action which are
structured in such a fashion that the government seems to
be showing favoritism to certain categories of candidates
and penalizing others also have been held to be a form of
unconstitutional political discrimination, violative of
both free speech and equality principles. See Greenberg v.
Bolger, 497 F. Supp. 756, 774-78 (E.D.N.Y. 1980)
(preferential mailing rates for major parties struck down
as violative of the First Amendment); Rhode Island Chapter
of the National Women's Political Caucus v. Rhode Island
State Lottery Comm'n, 609 F. Supp. 1403, 1414 (D.R.I.
1985) (allowing major parties but not other groups to
conduct fundraising lottery events violated the First
Amendment); McKenna v. Reilly, 419 F. Supp. 1179, 1188
(D.R.I. 1976) (state parties' allocation of tax check off
funds to endorsed candidates and exclusion of funds to
unendorsed candidates violated First Amendment).
Finally, some of the strings attached to the benefits
offered would impose unprecedented controls on political
speech by dictating the format of campaign speech. The
requirement that free air time cannot be used for campaign
commercials of less than 30 seconds is an impermissible
interference with the content of political speech. See
McIntyre v. Ohio Election Commission, 115 S. Ct. 1511, 1518
(1995). The only conceivable purpose for this restriction is
that Congress thinks 10 second spot commercials are
politically objectionable. That is the kind of content-based
judgment that Congress cannot make, even when it is
conferring a benefit; nor can Congress compel the structure
of speech in that fashion. See McIntyre, supra; Wooley v.
Maynard, 430 U.S. 705 (1977); Riley v. National Federation of
the Blind, 487 U.S. 781, 797 (1988).
The McIntyre and Riley decisions also call into question
the provisions of the Bill (Section 302, Campaign
Advertising) that mandate certain specific identifications
and disclosures in the text of print, display or broadcast
political advertisements. In McIntyre the Court reaffirmed
the historic right of political anonymity and invalidated a
requirement that leaflets on referenda issues state the name
of the person responsible for the publications. And in Riley,
the Court struck down a compulsory disclosure statement on
charitable solicitation literature, finding a violation of
the settled principle that the First Amendment encompasses
``the decision of both what to say and what not to say.'' 487
U.S. at 797.
2. The complete ban on, as well as the ``fallback''
restrictions of, Political Action Committees are invalid
under clear Supreme Court precedent.
Subtitle A of Title II, the Draconian provision which
proudly proclaims that it enacts ``Elimination of Political
Action Committees from Federal Election Activities'' and
which bans PAC political activity, is flatly
unconstitutional. In outlawing all political expenditures and
contributions ``made for the purpose of influencing an
election for Federal office''--except those made by political
parties and their candidates,--Section 201 of the bill cuts
to the heart of the First Amendment's protection of freedom
of political speech and association. It gives a permanent
political monopoly to political parties and political
candidates, and would silence all those groups that want to
support or oppose those parties and candidates.
``PACs'' of course have become a political dirty word. We
tend to think of the real estate PACs or the Trial Lawyers'
PAC or the insurance and medical PACs or the tobacco-related
PACs. But the ACLU's first encounter with a ``PAC'' was when
we had to defend a handful of old-time dissenters whom the
government claimed were an illegal ``political
committee.'' The small group had run a two-page
advertisement in The New York Times, urging the
impeachment of President (and re-election candidate)
Richard Nixon for bombing Cambodia and praising those few
hardy Members of Congress who had voted against the
bombing. In the summer of 1972, before the ink was dry on
the brand new Campaign Act of 1971, the Justice Department
used that ``campaign reform'' law to haul the little group
into court, label them a ``political committee'' and
threaten them with injunctions and fines unless they
complied with the law--all for publicly speaking their
minds on a key political issue of the day. The Court of
Appeals quickly held that the group was an ad hoc issue
organization, not a covered ``political committee.'' But
we got an early wake-up call on what ``campaign reform''
really meant.
Of course, ``real'' PACs, i.e., those that give or spend
money to or on behalf of federal candidates, come in all
sizes and shapes. They can be purely ideological or primarily
self-interested, or both simultaneously. And they span the
political spectrum. Labor PACs were organized first, in the
1940's, usually to provide funds, resources and personnel to
assist political candidates, usually Democrats. Corporate
PACs came on line in the early 1970's, usually on the
Republican side. And both corporate and labor PACs were
legitimized and liberated by the ``reforms'' of the FECA,
which allowed those and all other PACs to contribute five
times as much money to federal candidates as individuals
could. All this turned the Federal Election Campaign Act into
the PAC Magna Carta Act.
We think all that PAC activity is simply a reflection of
the myriad groups and associations that make up so much of
our political life. And so many of them are an effective way
for individuals to maximize their political voice by giving
to the PAC of their choice. While many PAC contributors and
supporters probably do fit the stereotype of the glad-
handing, Washington-based influence peddler, millions of PAC
supporters contribute less than $50 and expect nothing from
the candidates in return. Indeed, for millions of Americans,
writing a check to the candidate, committee or cause of their
choice is a fundamental political act, second in importance
and meaning only to voting.
Proposals to restrict, restrain or even repeal PACs would
suppress the great variety of political activity those PACs
embody. Most of those proposals are doomed to defeat as
unconstitutional. All of them are doomed to defeat as futile.
Banning PAC Contributions
There is not a word in Buckley v. Valeo or any of the other
relevant cases on regulation of PACs which suggests that the
Court would uphold a total ban on PAC contributions to
federal candidates. Political contributions are fundamentally
protected by the First Amendment, as embodiments of both
speech and association. PACs do amplify the political voices
of their contributors and supporters across the entire
spectrum of American politics, and the Court is not likely to
let you still all those voices.
Moreover, banning PAC contributions is futile as a reform.
All the PAC money that cannot be contributed directly to
candidates will go instead into an upsurge of independent
expenditure campaigns for favored or against disfavored
candidates.
Banning PAC Expenditures
The Supreme Court made it clear that independent PAC
expenditures are at the core of the First Amendment and
totally off limits to restrictions. Federal Election
Commission v. National Conservative Political Action
Committee, 470 U.S. 480 (1985). It may be a little less
tidy to run an independent campaign, than to write a check
to your favored candidate, but PACs will adapt. They're
good at that. And little will have been gained-except
making it harder for candidates to raise money since you
will have deprived them of a major source of resources,
without providing any alternatives. Candidates of moderate
means will be particularly vulnerable to campaigns by
personally wealthy opponents.
reducing pac contributions
The ``fallback'' provision, which goes into effect when the
flat ban is ruled unconstitutional, as it surely will be,
would lower PAC contributions from $5,000 to $1,000 per
candidate per election. This might be a closer constitutional
question. But the Court threw out a $250 limit on
contributions to a referendum campaign committee. See
Committee Against Rent Control v. Berkeley, 454 U.S. 290
(1981). Indeed, just recently the Eighth Circuit likewise
invalidated a $300 contribution limitation for donations to
statewide candidates. Carver v. Nixon, -- F.2d -- ,64 Law
Week 2407 (8th Cir. 1995). And Meyer v. Grant, 486 U.S. 414
(1988) held that people had a right to spend money to hire
others to gather election petition signatures, strongly
reaffirming the right of a person to use his or her resources
to enlist others to advance their causes. In any event, this
provision is fatally overbroad because it treats all PACs
alike, even those made up only of small contributors.
Finally, apart from the First Amendment issues, what
purpose is served by reducing the ability of candidates to
raise money without providing alternatives?
Mr. President, earlier I mentioned Col. Billie Bobbit (USAF), the
EMILY's List member who is quiet certain the first amendment protects
her right to participate in elections via bundling. Colonel Bobbitt's
instincts are right on the mark as the ACLU testimony observes:
bundling
The same objections pertain to the ban on ``bundling'' of
individual PAC contributions. This fallback proposal would
abridge freedom of association which the Supreme Court has
recognized as a ``basic constitutional freedom.'' Kusper v.
pontikes, 414 U.S. 51, 57 (1973). And the Court has pointedly
observed that ``the practice of persons sharing common views
banding together to achieve a common end is deeply embedded
in the American political process.'' Citizens Against Rent
Control v. Berkeley, 454 U.S. 290, 294 (1981). The practice
of bundling reflects broad issue support to a candidate,
indicating that continued support is dependent on
[[Page S6808]]
continued adherence to the views represented by the group.
The proposed bill would severely restrict ideological groups
like Emily's List, which have made a critical contribution to
expanding political opportunity and opening up political
doors to candidates and groups so long excluded.
receiving pac contributions
The fallback provision would also prohibit any PAC from
making a contribution which raises a candidate's PAC receipts
above 20% of the campaign expenditure ceilings applicable to
that election. But this restraint also seems overbroad. The
corruption concern becomes very attenuated in this setting,
and the rationale for the overall 20% limit seems weak
against First Amendment standards. Once the limit is reached,
candidates and PACs, in effect, would be banned totally from
political interaction with one another, which would seem as
constitutionally vulnerable as a total ban and have the
effect of a limitation on campaign expenditures. And what of
new groups that wanted to support a candidate after the
candidate's PAC quota had been reached, especially if the
campaign turns on an issue--abortion for example--of great
moment to that group?
Finally, all of this begins to resemble yet another
backdoor effort to limit overall campaign expenditures, in
violation of Buckley's core principles.
limiting out-of-state political contributions
Somehow, I have always found particularly troublesome those
proposals to limit the amount of out-of-district or out-of-
state contributions to candidates. Section 241 does not seem
to operate as a direct ban on out-of-State contributions.
Rather it provides that a candidate must receive not less
than 60% of their overall contributions from in-state
individuals in order to remain in compliance with the
spending limits and receive the statutory benefits.
Obviously, this is a backdoor effort to limit PAC
contributions to candidates, since so many PAC contributors
come from States different from the candidates their PACs
contribute to, as do the PACs themselves. It also seems to be
an effort to insulate incumbents from well-funded challenges
supported from another State.
Any potential justification for this ban seems highly
unlikely to pass constitutional muster. Analogizing this
restriction to a voter's residency requirement falls short
after McIntyre v. Ohio Board of Elections,--US--(1995) which
held that restrictions on political speech about candidates
or referenda cannot be upheld on the grounds that they are
merely ballot or electoral regulations, because, in reality,
they are free speech limitations. Indeed, a federal court in
Oregon recently so held in overturning a requirement that
state and local candidates had to raise all their campaign
funds from individuals who resided within their election
districts. Vannatta v. Keisling,--F. Supp.--(D. Ore. 1995).
Moreover, in-state limitations could deprive particular
kinds of underfinanced, insurgent candidates of the kind of
out-of-state support they need. Just as much of the civil
rights movement was funded by contributors and supporters
from other parts of the nation, so, too, are many new and
struggling candidates supported by interests beyond their
home states. This proposal would severely harm such
candidacies. Perhaps, that is its purpose.
Finally, Congress is our national legislature, and although
its representatives come and are elected from separate
districts and states, the issues you deal with are, by
definition, national issues that transcend district and state
lines and may be of concern to citizens all over the nation.
When such issues become central in certain campaigns, people
and groups from all over the country should be entitled to
have their views and voices heard on those issues. Any other
approach takes a disturbingly insular and isolated view of
political accountability and the obligations of a Member of
Congress.
3. The new controls on ``soft money'' contributions and
expenditures are unprecedented and unjustified restraints on
political parties.
The new sweeping controls on ``soft-money'' contributions
to and disbursements by political parties and other
organizations, federal, state or local, would expand the
reaches of the FECA into unprecedented new areas and far
beyond any compelling interest would require.
For the first time, any amounts expended or disbursed by a
political party in an election year ``for any activity which
might affect the outcome of a Federal election, including but
not limited to any voter registration and get-out-the-vote
activity, any generic campaign activity and any communication
that identifies a Federal candidate. . .'' would be subject
to regulation. See Section 212. The full panoply of FECA
compliance and control would be brought to bear on the
enormous amount of political party activity which heretofore
has been exempt from controls because it was not directly and
explicitly focused on specific federal candidates. And even
beyond that, ``soft money'' spending by persons other than
political parties is also for the first time subject to
comprehensive regulation, with reporting, disclosure and
notification requirements mandated as well as a required
certification of whether the disbursement ``is in support
of, or in opposition to, one or more candidates or any
political party.''
The reach of these new proposals is breathtaking. Starting
with Buckley v. Valeo, the Court has recognized a fundamental
constitutional distinction between candidate-focused
expenditures and contributions, which can be subject to
certain specific regulation, and all other non-partisan,
political and issue-oriented speech, advocacy and
association. See Buckley v. Valeo, 424 U.S. at 14-15, 78-80,
First National Bank of Boston v. Bellotti, 435 U.S. 765
(1978); FEC v. Massachusetts Citizens For Life, 479 U.S. 238,
249 (1986). The reason for this First Amendment Continental
Divide is to insure that the permissible regulation of
candidate-focused political campaign funding remains confined
to that area, and does not expand to encompass all the
funding of all political issues and groups. These regulations
of funding which is not candidate-focused transgresses this
boundary and requires, at the very least, the demonstration
of the most compelling governmental interests, necessarily
and narrowly achieved by the sweeping new controls.
Moreover, any regulation of political parties is a
regulation of a quintessential First Amendment
instrumentality and likewise requires compelling
justification, at a minimum. See Tashjian v. Republican
Party, 479 U.S. 208 (1986); Eu v. San Francisco Democratic
Party, 489 U.S. 214 (1989). Political parties play a vital
role in galvanizing the political life of the nation. Indeed,
many political scientists have expressed mounting concern
that one consequence of the current regime of candidate-
focused political funding and activity is unfortunately to
undermine the role of parties, special interest groups or ad
hoc coalitions as instruments for political activity and
vitality. For that reason, an expanded amount of party
spending on voter registration, party identification, get-
out-the-vote drives, and partisan-based issue discussion
(``The Republicans want to cut Medicare and Medicaid. Don't
let them do it.'' or, ``The Democrats support a welfare
state. Say no to government dependents.'') should be a
welcome development, rather than the target for new and
overbearing regulatory restrictions. It is also a
constitutionally-derived right: ``. . . Discussion of public
issues and debate on the qualifications of candidates are
integral to the operation of the system of government
established by our Constitution . . . In a republic where the
people are sovereign, the ability of the citizenry to make
informed choices among candidates for office is essential.''
Buckley v. Valeo, 424 U.S. at 14-15.
Finally, to some extent the motivations for the new
restraints on party activity may reflect a concern about the
source of the ``soft money'' funding, namely, from
corporations and large individual donors. In that regard, it
should be observed that Buckley upheld the $1,000 limit on
individual contributions to candidates in part because there
would be so many other ways in which people and organizations
could bring their financial resources to bear on politics.
See 424 U.S. at 28-29, 44-45. The bill would block avenues of
advocacy that the Buckley Court assumed would remain open.
These issues are presently before the Supreme Court in an
important case in which certiorari was granted in early
January. See Colorado Republican Federal Campaign Committee
v. Federal Election Commission, O.T. 1995, No. 95-489,
reviewing, 59 F.3d 1015 (10th Cir. 1995). At the very least,
any action on this section of the bill should await the
Court's resolution of the Colorado case. For your
information, the ACLU plans to file an amicus curiae brief in
support of the Colorado Republican Federal Campaign
Committee.
4. The new provisions governing the right to make
independent expenditures improperly intrude upon that core
area of electoral speech and impermissibly invade the
absolutely protected area of issue advocacy.
Two basic truths have emerged with crystal clarity after
twenty years of campaign finance regulations. First,
independent electoral advocacy by citizen groups lies at the
very core of the meaning and purpose of the First Amendment.
Second, issue advocacy by citizen group lies totally outside
the permissible area of government regulation.
In Buckley the Court upheld the speech and association
rights of individuals to engage in independent campaign
expenditures expressly advocating the election or defeat of
political candidates. In Federal Election Commission v.
National Conservative Political Action Committee, 470 U.S.
480 (1985), the Court assured the same rights to political
action committees. And in Federal Election Commission v.
Massachusetts Citizens for Life, Inc., 470 U.S. 238 (1986)
the same right of express electoral advocacy was extended to
certain kinds of non-profit advocacy groups despite their
corporate form, although a later case held that other
corporate entities could be restricted in this regard. See
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).
S. 1219 abridges these rights in two ways. First, Section
201 of the bill completely bans independent expenditures by
PACs, which is flatly unconstitutional, as noted above. On
the ``fallback'' assumption of such likely invalidation,
Section 251 redefines independent expenditures so narrowly
and ``coordinated'' expenditures so broadly that the area of
freedom of speech and association is drastically reduced and
abridged in the process.
Under current law, an independent expenditures is one made
without the knowledge or permission of a candidate, his or
her agent or campaign committee. See 2 U.S.C. section 431(17)
(``The term `independent expenditure' means an expenditure by
a person expressly advocating the election or defeat of a
clearly identified candidate which is made without
[[Page S6809]]
cooperation or consultation with any candidate, or any
authorized committee or agent of such candidate, and which is
not made in concert with, or at the request or suggestion of,
any candidate or any authorized committee or agent of such
candidate.''). Coordinated expenditures are treated like and
limited like contributions to a candidate.
The proposed bill, however, so broadly defines coordination
that virtually any person who has had any interaction with a
candidate or any campaign official, in person or otherwise,
is barred from making an independent expenditure. For
example, under Section 251, any expenditure is deemed
coordinated, and not independent, if the person making it
``has advised or counseled'' the candidate or his agents on
any matter relating to the campaign or election. If you use
the same political consultant or firm as the candidate you
are likewise deemed coordinated.
These restrictions embody a new and impermissible version
of ``guilt by association,'' and a new kind of ``gag rule''
by association. See De Jonge v. Oregon, 299 U.S. 353 (1937)
(A speaker cannot be punished for organizing a meeting and
appearing on the same public platform where radicals were
also speaking). Indeed, it could have some perverse effects.
A disaffected campaign worker or volunteer, who leaves a
campaign because he or she thinks a candidate has acted
improperly, is barred from making independent expenditures
against that candidate, for, ironically, they will be deemed
a contribution.
The other way in which the provision governing independent
expenditures is fatally flawed is in its expanded definition
of ``express advocacy,'' which is defined as a communication
that ``taken as a whole and with limited reference to
external events'' communicates ``an expression of support for
or opposition to'' a specific candidate or groups of
candidates. ``Expression of support'' includes ``a
suggestion to take action with respect to an election,''
including ``to refrain from taking action.'' ``Throw the
rascals out'' has just become express advocacy.
This broadened definition of ``express advocacy'' would
sweep in the kind of essential issue advocacy which Buckley
and cases predating Buckley by a generation, see Thomas v.
Collins, 323 U.S. 516 (1945), have held to be immune from
government regulation and control. It seems to be targeted
exactly against the kind of voting record ``box score''
discussion that emanates from the hundreds and thousands of
issue organizations that enrich our public and political
life. In Buckley, the Court adopted a bright line test of
express advocacy (words that in express terms advocate the
election of defeat of a candidate) in order to immunize issue
advocacy form regulation: ``So long as persons or groups
eschew expenditures that in express terms advocate the
election or defeat of a clearly identified candidate, they
are free to spend as much as they want to promote the
candidate and his views.'' Id. at 45. Indeed, the 1975 Act
contained a similar provision regulating issue groups and
their ``box score'' activities, and that section was
unanimously held unconstitutional by the en banc Court of
Appeals, without any further appeal by the government. See
Buckley v. Valeo, 519 F.2d 817, 832 (D.C. Cir. 1975). The
expanded definition of ``express advocacy'' is similarly
flawed.
5. The bill gives unacceptable new powers of prior
restraint and political censorship to the Federal Election
Commission.
With all of these problems with the bill, particularly
those that pertain to issue advocacy and independent
expenditures, giving the Federal Election Commission sweeping
new powers to go to court to seek an injunction on the
allegation of a ``substantial likelihood that a violation . .
. is about to occur'' is fraught with First Amendment peril.
As indicated earlier in this testimony, the very first suit
brought under the brand spanking new campaign reforms in 1972
was against a small group of dissenters who sponsored an ad
in The New York Times criticizing the President and praising
a handful of his Congressional critics. Reminiscent of some
of the language in the bill before you, the government's
claim was that the advertisement was an electioneering
message because it was ``in derogation of'' candidate Nixon
and ``in support of'' the praised Members who were also up
for re-election. While the courts quickly and sharply
rebuffed those efforts to use political campaign laws to
control issue advocacy, see United States v. National
Committee for Impeachment, 469 F.2d 1135 (2d Cir. 1972);
American Civil Liberties Union v. Jennings, 366 F. Supp. 1041
(D.D.C. 1973), the Commission's record of sensitivity to
First Amendment values in the area of issue advocacy was once
described as ``abysmal.'' See National Committee for
Impeachment, supra, 469 F.2d at 1141-42 (Kaufman, C.J.
concurring). And ever since then, non-partisan, issue-
oriented groups like the ACLU, the National Organization for
Women, the Chamber of Commerce, Right-to-Life Committees and
many others, have had to defend themselves against charges
that their public advocacy rendered them subject to all of
the FECA's restrictions, regulations and controls. And the
problem persists. See Federal Election Commission v. Survival
Education Fund, 65 F.3d 285 (2d Cir. 1995) (holding, 2 to 1,
that 1984 fund-raising mailings critical of President
Reagan's foreign policies constituted a solicitation of a
contribution subject to FECA requirements).
The kind of ``chilling effect'' that such enforcement
authority generates in the core area of protected speech
makes the strongest case against giving the Commission
additional powers to tamper with First Amendment rights.
The PRESIDING OFFICER. The Senator has 16 seconds remaining.
Mr. McCONNELL. Mr. President, I thank my staffers, Tamara Somerville
and Lani Gerst for their good work on this most important issue. Tam
and I have been through these battles a few times, including staying up
all night, a couple years ago. She has been a great help. I have
enjoyed working with her on this and thank her for her service to the
Nation.
The PRESIDING OFFICER. The Senator from Wisconsin has 9 minutes.
Mr. FEINGOLD. Mr. President, I thank Andy Kutler, Susan Martinez, and
Larry Murphy.
I ask unanimous consent that a letter from President Clinton, a
longtime supporter of campaign finance reform, urging the Senate to
pass this legislation be printed in the Record.
There being no objection, the material was ordered to be printed in
the record, as follows:
The White House,
Washington, DC, June 24, 1996.
Hon. Thomas A. Daschle,
Democratic Leader, U.S. Senate, Washington, DC.
Dear Mr. Leader: Just over a year ago, I shook hands with
Speaker Gingrich and publicly affirmed my commitment to
reforming the nation's campaign finance laws. Now I call on
Congress to send me legislation that will address the
American public's desire for real change in our political
process, and in so doing renew our democracy and strengthen
our country. I support the legislation now being considered.
In particular, I approve of several reforms such as placing
limits on spending, curbing PAC and lobbyist influence,
discounting the cost of broadcast time, and reforming the
soft money system.
Organized interests have too much power in the halls of
government. Oftentimes, representatives from such interest
groups operate without accountability and are granted special
privileges that ordinary Americans don't even know exist. In
addition, elections that represent an opportunity in which
ordinary voters should have the loudest voice have become so
expensive that these voices are sometimes drowned out by big
money.
Let us capitalize on the progress made in the last three
years. In 1993, we repealed the tax loophole that allowed
lobbyists to deduct the cost of their activities. In 1994, I
signed a law that applies to Congress the same laws if
imposes on the general public. Last year, Congress answered
my call to stop taking gifts, meals, and trips from
lobbyists, and I signed the Lobbying Disclosure Act into law.
We now have an opportunity to finish the job by addressing
campaign finance reform.
As we work to reform campaign finance, we must do
everything in our power to ensure that we open, not limit,
the political process. Our goal is to take the reins of our
democracy away from big special interests, from big money,
and to return them to the hands of those who deserve them--
ordinary Americans. Real reform is now achievable. I urge the
Senate to pass this legislation and give the American people
something we can all be proud of.
Sincerely,
Bill Clinton.
broadcast provisions
Mr. FEINGOLD. Mr. President, it has been suggested that the broadcast
provisions in this bill may adversely affect the broadcast industry and
I would like to respond to that point.
First, with respect to the free time provision, it is important to
understand that this is really a limited free time benefit. It is
limited to 30 minutes of free time. Second, the free time is only
available to general election candidates--not primary election
candidates. And third, of the general election candidates, it is only
available to those general election candidates who agree to limit their
spending.
We have also carefully crafted this provision to have as minimal
effect on the broadcasters as possible. First, no one candidate can
request more than 15 minutes of their free time from any one broadcast
station. Second, use of the free time must occur in intervals between
30 seconds and 5 minutes. This will ensure that the requirement to
provide free time will not interfere with the normal programming of the
broadcast station.
And finally, the bill clearly states any broadcast station that can
demonstrate that providing such free time will cause the station
significant economic hardship is exempt from the free time requirement.
So clearly, the free time provision is not going to have a
significantly burdensome effect on the broadcasters.
[[Page S6810]]
With respect to the 50-percent discount, it should be noted that this
provision is really the linchpin of the legislation. Without public
financing, there must be some alternative incentive to encourage
candidates to voluntarily limit their campaign spending. Such an
incentive had to have an effect similar to that of public funding in
the Presidential system--that is, to lower campaign costs so the
candidate can spend less time on the phone raising money and more time
running a statewide grassroots campaign.
As we all know, the great proportion of a Senate candidate's campaign
budget is devoted to broadcast advertising. And therefore, the most
sensible solution for lowering campaign costs is to cut the costs of
running television advertisements.
Keep in mind, Mr. President, current law already recognizes a public
trustee standard with respect to broadcasters. Under current law,
broadcasters must provide all Federal candidates with the lowest price
they charge to commercial advertisers for similarly run advertisements.
That is current law. All we are doing is providing an additional
discount to that special price.
This is entirely consistent with the Supreme Court's 1969 ruling in
Red Lion Broadcasting Company versus Federal Communications Commission
decision. In the Red Lion decision, the Court upheld the congressional
determination made in 1934 that the airwaves belong to the American
people, and this decision has subsequently been used to require the
broadcasters to provide services such as lowest unit rate and equal
time to qualifying Federal candidates.
To suggest that the provisions embodied in the McCain-Feingold bill
are somehow a violation of the broadcasters first amendment rights is a
proposition that has already been tossed out by the courts.
Let me quote from the legal analysis of this issue prepared by Law
Professor Fred Schauer of Harvard University. Professor Schauer writes,
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.
So it is clear that what we are requiring in this campaign finance
reform bill is not only sound public policy, but completely within the
confines of first amendment principles.
So now we come to the question of how this provision will affect the
financial viability of the broadcast industry. Mr. President, when we
talk about what sort of costs the broadcasters are going to incur as a
result of this legislation, there are several important factors to keep
in mind.
First, with respect to the free time provision, we are only talking
about general election candidates who agree to voluntarily limit their
spending. In any given State, where only two Senate elections occur
every 6 years, this will have a nominal impact on broadcasters. Even if
all general election candidates do agree to comply with the bill and
receive the benefits, that means that all of the broadcasters in a
particular State will only have to provide 2 hours of free time over a
6-year period.
It may interest my colleagues to know that the Congressional Research
Service has analyzed the broadcast provisions of the McCain-Feingold
proposal, and prepared a cost-estimate of how much these provisions
might cost the broadcast industry.
I ask unanimous consent that the text of this report be placed in the
Record at the conclusion of my remarks.
According to CRS, assuming all general election candidates were
eligible for and used the free time benefit, this provision would cost
the broadcast industry a maximum, a maximum Mr. President, of about $6
million per Senate election.
Figures provided by the National Association of Broadcasters [NAB]
show that total political television advertising revenues in 1994 for
the broadcast industry were $355 million. That is just political
advertising revenues.
Total television advertising revenues in 1994 were $24.7 billion.
That means that the free time provision in the McCain-Feingold
proposal, scored at a maximum of $6 million by CRS, would cost the
broadcasters about 1.6 percent of their annual political advertising
revenues, and less than three-hundredths of 1 percent (.025 percent) of
their total annual advertising revenues. And of course, this would only
occur in a brief period of time every 2 years.
And what about the 50-percent discount provision, that has been
purported to be potentially catastrophic for the broadcast industry.
According to CRS, the total cost of the 50-percent discount provision
in the primary and general election would be $48 million, again,
assuming all candidates were eligible for the discount.
So the most this provision would cost the broadcast industry
according to CRS's independent analysis is less than $50 million.
Again, how does this compare as a percentage of the industry's
revenues, both political and commercial?
Using the NAB's numbers on political advertising revenues and all
other advertising revenues, this $48 million provision in S. 1219 would
cost broadcasters, at most, about 13 percent of their political
advertising revenues, and less than half of 1 percent (.19 percent) of
their total advertising revenues. And again, this would only be every 2
years.
Mr. President, we are talking about less than one-half of 1 percent
of the industry's revenues. And that is a maximum, it is likely to be
much less than this.
And as you can see from this chart, the broadcast provisions in the
McCain-Feingold proposal would cost the broadcast industry less than
two-tenths of 1 percent of their total advertising revenues in 1994.
And again, these nominal costs would only have to be incurred twice
every 6 years.
So I think it is clear, Mr. President, that not only does the
broadcast industry have a legal obligation to contribute to the
political process, such a contribution would have a minimal effect on
their overall revenues. The benefit to the public of cleaning up our
congressional elections, in contrast, would be enormous.
Mr. President, it has been suggested that the bipartisan proposal put
forth by myself and the Senators from Arizona and Tennessee would
somehow further entrench incumbents and make it more difficult for
challengers to run for office.
Mr. President, this is yet another argument put forth by the
defenders of the status quo that does not pass the straight face test.
First of all, let us remember what sort of campaign finance system we
currently have and how it affects challengers and incumbents. I don't
think that anyone can dispute that the current campaign finance system
confers significant benefits on incumbent Senators that provides
incumbents an overwhelming advantage over challengers.
Incumbents start out with more name recognition. Incumbents are
permitted to send out free mass mailings to the voters of their States,
which often are little more than thinly disguised campaign newsletters.
And most importantly, as virtually every legitimate study has shown,
the campaign cash overwhelmingly flows to incumbents. Whether it is PAC
money, soft money, bundled money--you name it. The campaign money
always flows to incumbents.
To suggest that spending limits will somehow make it more difficult
for challengers to run for office is to suggest that challengers have
access to the kind of money that incumbents have access to.
That assertion is just factually false.
Challengers cannot raise millions of dollars as incumbents can. The
few challengers that are able to mount credible campaigns are those few
challengers that are millionaires, and that is why more and more Senate
campaigns are turning into races between an incumbent and a
millionaire.
As this first chart demonstrates, money does matter. In 1990, 1992,
and 1994, the Senate average winning candidate not only outspent the
loser in that particular race, but far outdistanced them.
In fact, in most cases, the winning candidate doubled--doubled--Mr.
President, what the losing candidate spent. That means that for every
television
[[Page S6811]]
spot the losing candidate was able to run, the winning candidate was
able to run two television spots--in some cases, three or four or five
times as many spots.
Now the fact that money is clearly the most determining factor in
influencing the outcome of Senate elections is troubling by itself. It
is a harsh indictment of the current limitless-spending campaign
spending that the junior Senator from Kentucky is defending.
But if we know that the candidate who spends the most money is likely
to be the winning Senate candidate, the next logical question is, who's
getting the money?
As you can see, Mr. President, incumbents are getting the money. Not
only are they getting the money, they are blowing challengers out of
the water.
That is the current campaign finance system--a system in which the
candidate who spends the most money is the likely winner, and a system
in which the money flows overwhelmingly to incumbents. The current
system is rigged to protect incumbents, and our proposal, for the first
time ever, will provide challengers who do not have access to millions
and millions of dollars to run a fair and competitive campaign.
We have spending limits in the Presidential system, Mr. President.
Have they protected incumbents? They didn't protect President Ford.
They didn't protect President Carter. And they didn't protect President
Bush. The Presidential system, thanks to voluntary spending limits, has
produced fair and competitive elections for 20 years now. The
congressional system, with unlimited campaign spending, has produced
the opposite.
The evidence is clear, Mr. President and I am hopeful my colleagues
will see through the phony and absurd argument that spending limits
hurt challengers.
the constitutional argument
Mr. President, I have listened to the arguments of the Senator from
Kentucky, the Senator from Washington, and others, with respect to the
constitutionality of this campaign reform proposal.
I share his concern that we should not pass legislation that would be
a clear violation of the first amendment.
I stand behind no one when it comes to defending the first amendment
and the principles it stands for. That is why I will not support a
constitutional amendment that would allow us to impose mandatory
spending limits. At one time, I did vote for a sense of the Senate
resolution regarding such an amendment but I have come to believe that
we should respect the Supreme Court's rulings on this issue, and that
these rulings have provided enough guidance and direction that we can
write a constitutional proposal that would be upheld by the Supreme
Court.
I have to say that what the Senator from Kentucky is suggesting, that
the voluntary spending limits might be found by the courts to be
unconstitutional, is unfounded. Mr. President, this argument is a giant
red herring meant to divert attention away from the real issues.
Let us be very clear about what the Supreme Court held in the Buckley
versus Valeo decision in 1976. The Court said two very important things
in the Buckley decision;
First, the Court made a distinction between mandatory limitations on
expenditures by candidates, and mandatory limitations on contributions
to candidates. The Court said that we cannot place mandatory spending
limits on all candidates, because that would infringe on the first
amendment rights of those candidates who may wish not to abide by the
spending limits.
Second, the Court upheld mandatory limitations on campaign
contributions, declaring that such contributions could have, or appear
to have, a corrupting influence on the recipient of those
contributions, and contributions could therefore be limited.
Now, I have heard the Senator from Kentucky say on many occasions
that the Supreme Court has said that money equals political speech and
that since we cannot limit political speech, we cannot limit the flow
of money. As the Senator from Kentucky just asserted, money, in his
view, equals speech and we can't limit it.
However, Mr. President, the Supreme Court did not, in fact, say that
money is speech and cannot be limited, and saying it over and over
again doesn't make it any more true.
The Court did say that money is a form of speech, and can only be
limited by the Government in certain circumstances. And as I said, one
of those circumstances is in the form of limits on campaign
contributions. If the Supreme Court had held that money equals absolute
speech, then they would not have upheld limitations on campaign
contributions.
Besides contribution limits, the Supreme Court has said that there
are other ways we can constitutionally limit the flow of campaign
money, including campaign expenditures.
As the Court said in the Buckley decision:
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.
In short, the Presidential system is a completely voluntary system
that offers incentives in the form of public financing to candidates
who agree to limit their spending. That, the Court said, was perfectly
constitutional.
And that sort of voluntary system, specifically upheld by the Supreme
Court in the Buckley decision, is what the McCain-Feingold-Thompson
legislation is modeled after. We provide a voluntary system of spending
limits and benefits. No one is forced to participate, no one is coerced
into participating, and there are no penalties, not a single one, for
candidates who choose not to voluntarily comply.
Just like the Presidential system that has been specifically upheld
by the Supreme Court.
The assertion that the Senator from Kentucky is making, that
voluntary spending limits tied to the offering of cost-saving benefits
is unconstitutional, is a challenge that has been specifically rejected
by the courts. Let me repeat that Mr. President. The argument that the
Senator from Kentucky is making, that voluntary spending limits tied to
benefits is unconstitutional, has specifically been rejected by the
Federal courts.
The case was Republican National Committee versus Federal Election
Commission, and in that case a three-judge Federal panel specifically
upheld the constitutionality of voluntary spending limits and rejected
the argument put forth by the Senator from Kentucky. That decision was
summarily affirmed by the U.S. Supreme Court.
It is true that unlike the Presidential system, the McCain-Feingold-
Thompson proposal does not have public financing. It would have been my
preference to have public financing, but I agreed to forgo public
financing as a part of this compromise proposal.
Instead, we offer broadcast and postage discounts that will
substantially reduce the costs of running for a Senate seat. And the
outlandish suggestion has been made by a few--very few indeed--that
this distinction, between public financing and advertising discounts,
is what makes our legislation unconstitutional.
Mr. President, that is an absurd proposition. The only way such a
voluntary system could possibly be unconstitutional is if the system
were not truly voluntary, or in other words, if candidates were
essentially coerced into participating. How do you coerce a candidate
into participating? By making the benefits so incredibly valuable and
by imposing tough penalties against those who choose not to comply, so
that there really is not choice for a candidate to participate or not.
And this is where the Senator from Ketucky's--Senator McConnell--
argument completely falls apart. The court ruled in the Buckley case
that public financing was not coercive. So for our bill to be
unconstitutional, the benefits would have to be even more valuable than
direct public financing.
Mr. President, the benefits in our bill are very valuable. The 50-
percent broadcast discount alone will cut a candidate's advertising
costs in half. But these benefits do not even come close to the value
of direct public financing.
Suppose you are a Federal candidate running a $1 million campaign.
And
[[Page S6812]]
suppose you had a choice of two benefits; you could either have a 50-
percent discount on your broadcast advertising, or you could have a
check for $1 million. Which benefit are you going to take?
The question is obvious, Mr. President. Every candidate in America
faced with such a choice would clearly favor the public financing.
Public financing is a far more valuable benefit, and for the Senator
from Kentucky to suggest otherwise flies in the face of the reality of
our campaign system.
I find it interesting that during the course of the many hearings
that have been held in the Senate Rules Committee, much testimony was
heard from several constitutional experts. However, only one of those
experts, Law professor Fred Schauer of Harvard University, made it
clear that he had no position on the policy aspects of the McCain-
Feingold bill. Every other expert called by the committee--on both
sides of the issue--made clear that in addition to their legal views,
they also has a bias as to either being in favor or opposition to the
reform bill.
And how did Professor Schauer respond to the Senator from Kentucky's
claim that the voluntary structure of spending limits in our bill was
unconstitutional? After pointing out that the arguments asserted by the
Senator from Kentucky were the same arguments rejected in the RNC
decision, a decision that was summarily affirmed by the Supreme Court,
Professor Schauer said:
If we stick to the question * * * and separate the
constitutional questions from the policy question * * *
voting against the bill on the assumption that it is clearly
inconsistent with existing Supreme Court and federal court
precedent is not an accurate characterization of the
precedent.
Mr. President, the Schauer testimony is just a move in a chorus of
objective analyses from constitutional experts around the country who
have held that the voluntary spending limits in the McCain-Feingold-
Thompson bill does pass constitutional muster. Without asking for
anyone's view on the policy implications of our proposal, we asked
several authorities in the legal and academic community for their
opinions about the constitutionality of this proposal.
We asked the nonpartisan American Law Division of the Congressional
Research Service to prepare a constitutional analysis of our proposal.
The analysis, prepared by Paige Whitaker, a well-respected attorney
with CRS who has prepared a number of reports for Congress on this
issue and who has been called to testify before Congress on campaign
reform, states very clearly that the voluntary system created in our
bill of offering incentives in exchange for compliance with spending
limitations is wholly consistent with the Court's ruling in Buckley
versus Valeo.
In addition to CRS, my office contacted some of the most well-known
and respected first amendment authorities in the country.
These authorities include Professor Daniel Hays Lowenstein of the
UCLA Law School, Professor Cass Sunstein of the University of Chicago
Law School, Professor Fred Schauer of Harvard University, Professor
Jamin Raskin of the Washington College of Law at American University
and Professor Marlene Arnold Nicholson of the DePaul University College
of Law.
These experts, among the most widely respected first amendment and
constitutional scholars in the country, all agree that the voluntary
structure of spending limits tied to broadcast and postage discounts is
fully consistent with the Constitution.
Now, Mr. President, some have also suggested that the provision in
our proposal to prohibit Political Action Committee contributions to
Federal candidates may not pass constitutional muster. I, for one, am
skeptical that you can constitutionally prohibit a group of individuals
from banding together, pooling their resources and contributing to a
Federal candidate any more than you can prohibit any single individual
from contributing to a Federal candidate.
However, we must remember that the Supreme Court has taken a
favorable position with respect to the Government limiting campaign
contributions, and indeed, the Supreme Court has upheld the
constitutionality of absolute prohibits on specific entities making
campaign contributions, such as labor unions and corporations.
Nonetheless, our proposal contemplates such a legal challenge, and
contains specific fall-back provisions if the Supreme Court ruled a PAC
contribution ban unconstitutional. These fall-back provisions would
reduce allowable PAC contributions from $5,000 to $1,000, and stipulate
that no candidate could receive more than 20 percent of the applicable
spending limits in aggregate PAC contributions.
Where did this fall-back proposal come from, Mr. President? It is the
exact same proposal, word for word, that was contained in the Pressler-
Durenberger amendment offered to S. 3, the campaign finance reform bill
considered in the 103d Congress.
That amendment, which not only banned PAC contributions, also banned
all PAC expenditures in a Federal election including independent
expenditures, included these very fall-back limitations on PAC
contributions if the Supreme Court ruled such a ban unconstitutional.
The Pressler-Durenberger amendment passed the U.S. Senate by a vote of
86 to 11.
Yes, 86 to 11, Mr. President. I voted for it. Most of the Members of
this body, including the Senator from Kentucky, voted for it.
Our provisions dealing with PAC contributions are actually far more
permissive than the provisions contained in the Pressler-Durenberger
amendment which 86 Senators voted for.
I should also say, Mr. President, that a proposal to not only ban PAC
contributions, but also to prohibit PAC's from engaging in independent
expenditures as the Pressler-Durenberger amendment did, can actually be
found in another reform bill--a bill introduced by the junior Senator
from Kentucky. I am somewhat surprised that the junior Senator from
Kentucky, who has condemned such a proposal as unconstitutional and a
blatant violation of the first amendment, would include such a
provision in the reform bill he wrote.
So, Mr. President, just a couple of years ago, 86 Senators went on
record in favor of a PAC ban coupled with fall-back limitations in case
of an unfavorable Supreme Court ruling. The provision in our proposal
is actually far less restrictive than that included in the Pressler-
Durenberger amendment, as we only limit PAC contributions, not their
independent expenditures. If 86 Senators, including the Senator from
Kentucky, believed a complete PAC prohibition to be constitutional
enough that they could vote for it, I see no reason why the same
number, or even more Senators now could not support a far less
restrictive regulation.
In closing, Mr. President, I want to assure my colleagues that I
believe, and the Senator from Arizona believes, that the key provisions
of this legislation would be upheld by the courts. Moreover,
nonpartisan experts from around the country, including the
Congressional Research Service, who do not have a prejudice one way or
the other on this proposal, have told us that these provisions are
constitutional.
I ask unanimous consent that a statement designating that the
broadcast provisions in the bill would have only a relatively nominal
impact in the broadcast industry be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Congressional Research Service,
Library of Congress,
Washington, DC, February 8, 1996.
To: Honorable Russell Feingold, Attention: Andy Kutler.
From: Joseph E. Cantor, specialist in American National
Government, Government Division.
Subject: Estimated value of free and discounted TV time under
S. 1219--the Senate Campaign Finance Reform Act of 1995.
This memorandum provides information relevant to estimating
the dollar value of the free and discounted TV air time that
would be offered to Senate candidates under S. 1219, the
Senate Campaign Finance Reform Act of 1995.
S. 1219, introduced by Senator McCain and you, establishes
a system of voluntary expenditure limits for Senate
candidates, in exchange for three cost-reduction benefits:
(1) 30 minutes of free TV time; (2) additional TV time at 50
percent of the lowest unit rate (LUR); and (3) a reduced
postal rate for two mailings per eligible voter. This
memorandum focuses on estimating the value of the first two
benefits, dealing with TV time.
[[Page S6813]]
As I have explained to you, and as has been reinforced in
my conversations with all my sources, both these tasks are
highly speculative, and the resulting estimates I have
derived are subject to challenge on any number of grounds. I
have used different methodology and sources for each of the
two tasks, relying in both cases on a combination of actual
cost figures, published estimates, and educated guesses and
assumptions by appropriate authorities. While these
assumptions can legitimately be challenged, I believe this
effort to represent a reasonable, logical attempt at a rough
approximation of the dollar value of the proposed benefits.
Appropriate caveats and sources are noted herein.
benefit no. 1: free tv time
proposal
The bill would provide 30 minutes of free television air
time to participating candidates, to be used: (1) in the
general election period (i.e., once the candidate has
qualified for the general election ballot); (2) on Mondays-
Fridays, between 6 PM and 10 PM (unless the candidate elects
otherwise); (3) in segments of between 30 seconds and 5
minutes; and (4) on stations within the State or an adjacent
State, but with no more than 15 minutes on any one station.
methodology
Our goal was to make a reasonable determination of the
dollar value of 30 minutes of television advertising time
which Senate candidates would use during a general election
period.
At the outset, one is faced with the fact that there are
enormous variations in costs of TV time. First of all, there
are 211 media markets in the U.S., with substantial
differences in costs among them. Second, the broadcast market
is a commodity market, subject to the laws of supply and
demand. Hence, there are wide variations in costs within a
single market or broadcast station, even for comparable
periods of time on comparable TV shows. Furthermore, there
are no sources on the exact cost of TV ads, because of the
extremely complex system for buying and setting rates for TV
time. Finally, our task was compounded by the uncertainties
involved in a political campaign setting, with the number of
candidates eligible for the benefit unknown and with the way
in which candidates might use the benefit (within the
parameters outlined in your legislation) unknowable.
In undertaking this project, I was fortunate in obtaining
assistance from two Washington-area media buyers who are
substantially involved in campaign work.\1\ Despite their
cautionary notes about the nature of this task (as outlined
above), they understood the value of devising an
intellectually defensible estimate and provided essential
guidance in the process.
---------------------------------------------------------------------------
\1\ Footnotes appear at end of letter.
---------------------------------------------------------------------------
Our effort first focused on devising an average cost of a
TV spot, based on the following assumptions: the 30 minutes
would be used by the Senate candidate in the form of 60 spots
of 30 seconds each; the candidate would seek to place all
free spots in prime time (your bill covers the early news (6
PM--7 PM) and prime access (7 PM--8 PM) periods, as well as
most of the prime time (8 PM--11 PM) period; and the
candidate would place the ads on as many of the most popular
(i.e., highly rated) shows as possible.
According to the Media Market Guide \2\ for the fourth
quarter of 1995 (which covers the months relevant to a
general election), the national average cost per rating point
for a 30-second spot in prime time (aimed at an audience of
all adults over the age of 18) was $25,403.\3\ As this
represents the cost for a commercial advertiser, we
subtracted 15 percent to reflect the rate most stations
charge to political advertisers (this political rate, not
required by law, should not be confused with the lowest unit
rate which Federal law requires broadcasters to offer
candidates). We arrived at a national political rate per
point of $21,593. I then calculated a national average cost
per rating point, by dividing $21,593 by 211 (the number of
U.S. media markets), yielding an average political cost per
point of $102.
In order to get a cost figure for an actual 30-second spot,
one must multiply the cost per point by the number of points
which a particular program (or TV show) commands. We chose
five popular TV shows in Monday through Friday prime time,
and then averaged their national rating point numbers. The
shows (and their national rating points) were: NYPD Blue, ABC
(15.90); 20/20, ABC (17.10); Law and Order, NBC (12.80);
Frasier, NBC (14.70); and Chicago Hope, CBS (14.90).\4\ The
average national rating points of these shows came to 15.1.
Hence, the average 30-second spot on a popular prime time
show is 15.1 multiplied by $102, or $1,540.
If 60 of these 30-second spots are used, the benefit equals
$92,400 per candidate, on average. Obviously, a New York area
candidate's benefit would be much higher, while a Montana
candidate's benefit would be much lower.
Estimated Total
To derive a national figure, we made a simple calculation,
based on the assumption of 66 major party general election
candidates, with no qualifying minor party candidates. Of
course, it is a considerable assumption that all major party
nominees would participate in this system, just as it is that
no minor party candidates would qualify. But as your bill
calls for an hour of free time per State, having minor
parties qualify would not change the total. Hence,
multiplying $92,400 by 66 candidates yields a national total
of $6,098,400, rounded to $6 million.\5\
BENEFIT NO. 2: DISCOUNTED TV TIME
PROPOSAL
Your bill also provides participating Senate candidates the
benefit of buying additional broadcast time at 50 percent of
the lowest unit rate. This benefit would be available during
the last 60 days of the general election (when the LUR
requirement is in effect) and the last 30 days of the primary
election (the LUR is now available to candidates in the 45
days before a primary, but your bill would change that to 30
days).
METHODOLOGY
Whereas the first benefit involves a specified amount of
time in specific time periods, this provision would affect an
indeterminate amount of broadcast purchases. Also, rather
than involving a new form of candidate activity (i.e., a free
service), this second benefit involves one candidates already
use, but with a prospectively lower cost. Hence, whereas the
first exercise was more theoretical, the second can be based
more on what we know about current behavior among Senate
candidates.\6\
Specifically, by estimating the current level of campaign
air time, one can make a reasonable assessment of the dollar
value of the reduced cost benefit to candidates. This
exercise involves deriving a percentage estimate of the share
of overall campaign expenditures that can be attributed to TV
time buys during the periods affected by your bill, and then
extrapolating this percentage onto campaign expenditure data.
There is no official source for data on broadcast
expenditures in Federal elections. While campaign
expenditures are required to be disclosed with the Federal
Election Commission (FEC), payments to broadcast stations
usually are not itemized and are often included among other
payments to media consultants; nor do the reports group
expenditures by category for easier retrieval of desired
information. Furthermore, the Federal Communications
Commission does not systematically compile data of this
nature from the broadcast stations. Until very recently,
observers were forced to rely on anecdotes, surveys, or
estimates of the amount of campaign money that was directed
specifically to broadcast time purchases.
Following the 1990 congressional elections, two reporters
for The Los Angeles Times undertook a massive, systematic
study of congressional campaign expenditures in that
election--based on candidates' disclosure filings--and
arranged the data into categories.\7\ Comparable studies were
done following the 1992 and 1994 elections, by Dwight Morris
(one of the original authors) and Murielle Gamache.
Because of their exhaustive efforts and professional
skill, these studies are widely accepted by campaign
finance experts as containing the most reliable,
authoritative data on campaign expenditures by type of
service. Consequently, my estimates are based heavily on
the data in the most recent published study: Handbook of
Campaign Spending: Money in the 1992 Congressional Races,
By Dwight Morris and Murielle E. Gamache (Washington,
Congressional Quarterly, Inc., 1994. 592 p.). (The 1994
edition will be published later in 1996.)
The summary tables, copies of which are attached, reveal
that in 1992, major party Senate candidates who ran in the
general election spend $86.8 million on ``electronic media
advertising.'' This category was defined on page xiv of
Handbook of Campaign Spending as including: All payments to
consultants, separate purchases of broadcast time, and
production costs associated with the development of radio and
television advertising.
Because the data unavoidably include production costs and
consultant fees (which are irrelevant to the benefits in S.
1219 concerning air time), it is necessary to estimate the
percentage solely for air time. The authors report that most
media consultants add a 15-percent charge to media buys for
their services (which include producing the ads). Hence, I
would subtract this 15 percent, or $13.0 million, and assume
the remaining 85 percent of the ``electronic media
advertising'' total went for air time purchases. This leaves
$73.8 million for air time costs.
Several other factors must be taken into account in making
the data in this study applicable to our purposes. First, the
electronic media figure includes radio advertising; our
interest is solely in television. In a telephone discussion
on February 1 with Dwight Morris, one of the authors, we
agreed that it would be reasonable to assume that 95 percent
of the total went for television. Hence, subtracting another
5 percent, or $3.7 million, leaves $70.1 million for TV air
time cost.
Second, the data include spending by the candidates in the
primary as well as the general election period, as FEC data
unavoidably does. The benefits in S. 1219 would apply to both
periods, but only for the last 30 days in the primary and the
last 60 days in the general election. In our phone
discussion, Dwight Morris and I agreed that it would be
reasonable to assume that 90 percent of the media
expenditures occurred in the general election period. Taking
10 percent of $70.1 million yields $7.0 million for primary
TV air time spending and $63.1 million for TV air time in the
general election.
The final estimation involved the extent to which the air
time in the primary is bought in the last 30 days and the air
time in the
[[Page S6814]]
general election is bought in the last 60 days. Morris and I
agreed (as did some of the media buyers I worked with in the
first estimate) that at least 95 percent of the air time
would be used in those periods. Hence, subtracting an
additional 5 percent in each case leaves an estimated $6.7
million for TV air time in the last 30 days of a primary
and $59.6 million for TV air time in the last 60 days of a
general election.
General Election Benefit
Step 1. Starting with $86.8 million total for electronic
media advertising, I subtracted the estimates of $13.0
million for consultant fees, $3.7 million for radio time,
$7.0 million for primary spending, and $3.5 million for time
purchased before the final 60 days of the general election.
The resulting $59.6 million (for TV air time in the final 60
days of the general election) represents approximately 69
percent of the ``electronic media advertising'' figure and 27
percent of the $219.1 million in total Senate candidate
expenditures in the Morris/Gamache study.
Step 2. Although the comparable 1994 data are not yet
available, it may be instructive to apply the 27 percent
figure cited above to the total expenditures reported to the
FEC by 1994 Senate candidates. The FEC reported that $270.7
million was spent by major party Senate general election
candidates in the 1993-1994 election cycle.\8\ Because the
Morris/Gamache study included data for the six-year period
leading up to and including 1992, I added the $12.6 million
1994 Senate candidates spent from 1989 to 1992 (which I
calculated from the same press release). Hence, I arrived at
a total of $283.3 million spent by major party Senate general
election candidates in the entire six-year period. Assuming
the same 27 percent of total spending went for TV air time in
the last 60 days of the general election, I got an estimated
1994 figure of $76.5 million.
Step. 3. The 1992 estimated cost of TV air time of $59.6
million and the 1994 estimate of $76.5 million can be
averaged (in case one of the years was an anomaly in the
context of overall spending trends), to yield $68.1 million,
rounded to $68 million for convenience. While this is just an
estimate, subject to all the caveats inherent therein, I
would be fairly comfortable using this as the basis for any
further estimates you may wish to make, specifically that the
value of the broadcast discount would be 50 percent of this,
or roughly $34 million.
Primary Election Benefit
The process for estimating the benefit in the primary
period is complicated by the fact that our primary data
source not only does not distinguish between primary and
general spending, but it leaves out candidates who lost the
nomination contest. Hence, I added a fourth and fifth step to
the process: (1) use the Morris/Gamache 1992 data on cost
breakdowns, apportioning amounts to specific functions; (2)
apply the same percentage to 1994 FEC data; (3) average the
1992 and 1994 figures; (4) examine 1992 and 1994 FEC data on
primary losers, apply an appropriate percentage, and average
the two dollar figures; and (5) add the average from step 4
to the figure in step 3.
Step 1. To apportion the share of primary election
candidates expenditures that were spent on TV air time in the
last 30 days of the primary, I started with the $86.8 million
total for electronic media advertising in the Morris/Gamache
study. I subtracted the estimates of: $13.0 million for
consultant fees, $3.7 million for radio time, $63.1 million
for general election spending, and $.35 million in time
purchased before the final 30 days of the primary election.
This left an estimate of $6.7 million as being spent by 1992
major party Senate candidates for TV air time in the final 30
days of the primary election. This figure represents
approximately 8 percent of the figure listed for electronic
media advertising and 3 percent of the $219.1 million in
total Senate candidate expenditures in the Morris/Gamache
study.
Step 2. I next applied the 3 percent figure cited above to
the total expenditures reported to the FEC by 1994 Senate
candidates. Again, I started with the $270.7 million spent by
major party Senate general election candidates in the 1993-94
election cycle, and then added the $12.6 million these
candidates spent from 1989 to 1992. Applying the 3 percent
figure from 1992 to the resulting total of $283.3 million, I
got a 1994 figure of $8.5 million for the cost of TV air time
in the last 30 days of the primary election.
Step 3. I averaged the 1992 estimated TV cost of $6.7
million and the 1994 estimate of $8.5 million, to yield $7.6
million, rounded to $8 million for convenience. This
represents estimated spending on TV air time during the last
30 days of the primary by candidates who went on to compete
in the general election.
Step 4. Major party Senate candidates who were defeated in
primary elections spent a total of $75.9 million in 1992 \9\
and $45.9 million in 1994.\10\ Because all of this money was
spent on the primary election, we adjusted only for
consultant fees, radio time, and time purchased before the
final 30 days. I assumed the same total percentage of money
went for TV time by the primary losers as by all candidates
in this six year study. Starting with the $86.8 million total
for electronic media advertising, I subtracted the estimates
of: $13.0 million for consultant fees, $3.7 million for radio
time, and $.35 million for time purchased before the final 30
days of the primary. This left $69.8 million, which is
approximately 32 percent of the $219.1 million in total
expenditures reported in the Morris/Gamache study.
Applying this 32 percent to the $75.9 million spent by 1992
primary losers yields $24.3 million; applying the same
percentage to the $45.9 million spent by 1994 primary losers
yielded $14.7 million. Averaging the 1992 and 1994 figures
gave us $19.5 million, rounded to $20 million; this
represents an estimate of TV air time purchases in the last
30 days of the primary election by Senate primary losers.
Step 5. Finally, I added the $8 million from step 3 for
party nominees to the $20 million for primary losers,
yielding an estimated total of $28 million as being spent on
TV air time by Senate candidates in the final 30 days of the
primary.\11\ Reducing this by half left us with $14 million,
as the estimated value of the 50 percent LUR reduction to
Senate primary candidates.
estimated primary and general total
Using the methodology in this memorandum, I estimate the
value of the 50 percent broadcast rate reduction to be worth
$34 million to Senate candidates in the general election and
$14 million in the primary--a total of $48 million.
I trust that this memorandum and the accompanying material
meet your needs in this matter. Please feel free to contact
me 7-7876 if I can be of further assistance.
footnotes
\1\ Carole Mundy, of Fenn-King-Murphy-Putnam Communications,
Inc. in Washington, D.C., assisted in developing the
methodology and obtaining source material. Gail Neylan, of
Neylan & Roy--an independent media buying service, provided
guidance in corroborating and finetuning the approach
developed with Ms. Mundy.
\2\ Media Market Guide, 4th Quarter 1995 (October-December).
NY, Bethlehem Publishing, Inc. 1995.
\3\ Those cost per (rating) point is the standard unit used
by advertisers and media buyers in evaluating relative costs
of delivering one percent of the audience share in different
markets.
\4\ Ratings based on: A.C. Nielsen Company, Network Programs
by DMA, November 1995.
\5\ A more thorough effort might involve looking at each
State's media dynamics, given the variations in media market
configurations. A candidate in New Jersey, for example, has
to buy time in both the New York and Philadelphia markets,
while more than 90 percent of California voters are reached
by seven markets, all within that State's boundaries. These
types of calculations, while yielding perhaps a more accurate
estimate, involved undue time investment and raised
significant, complex additional questions.
\6\ One caveat, of course, is that this approach is based on
current candidate behavior, not taking into account
prospective increased TV air time purchases because of the
lower cost. While this could well occur, this tendency would
be clearly circumscribed by the overall campaign spending
limits to which participating candidates must agree.
\7\ Fritz, Sara, and Dwight Morris. Handbook of Campaign
Spending: Money in the 1990 Congressional Races. Washington,
Congressional Quarterly, Inc., 1992. 567 p.
\8\ U.S. Federal Election Commission. 1994 Congressional
Fundraising Sets New Record (press release): November 1995.
\9\ U.S. Federal Election Commission. 1991-92 Congressional
Spending Soars to $680 Million (press release): January 1994.
\10\ U.S. Federal Election Commission. 1994 Congressional
Fundraising Sets New Record (press release): November 1995.
\11\ It may seem counterintuitive that primary losers would
spend twice as much on TV as primary winners, and this may
point up a flaw in our estimation process. But it is often
the case that well-funded primary candidates (often wealthy
individuals) spend large sums of money in losing attempts at
nomination, while in perhaps the majority of cases, Senate
party nominees (especially incumbents) have little or no real
opposition in the primary.
Mr. FEINGOLD. I yield the remainder of my time to my friend and a
leader today in the future on campaign finance reform, the Senator from
Arizona.
Mr. McCAIN. I yield 30 seconds to the Senator from California.
Mrs. BOXER. Mr. President, I thank my friend for yielding. I thank
him for his leadership, as well as that of Senator Feingold. Let me
say, as one of the two Senators from California, we need to raise at
least $20 million--that is obscene--to win a Senate seat. That means a
candidate running for Senate for California must raise $10,000 a day, 7
days a week, for each day of the 6-year term. This is unconscionable. I
will support cloture. I will support campaign finance reform.
I intend to vote for campaign finance reform and for this measure
cutting off debate so we can have the opportunity to discuss this
crucial issue. We must pass campaign finance reform this year.
I feel we must limit the influence of special economic interests so
that the public has no fear that Senators are representing those
interests instead of the people of their State and the Nation.
As a Senator from the largest State in the Union, I am particularly
aware of the need for reform. Candidates for the U.S. Senate in
California must raise at least $20 million. This means that a candidate
running for the Senate must raise at least $10,000 a day, 7 days a
week, for each day of a 6-year term. This is obscene.
For me it is more important to meet with constituents here and in the
[[Page S6815]]
State, write legislation, and participate in debates like this one, let
alone read as much as I can.
There are several important aspects of campaign finance reform.
First, to establish limits on campaign spending. The root of our
problems with the current system is that campaigns spend too much. To
me limits are one of the most important elements of reform.
Second, we must end the practice of using soft money to evade
contribution limits. Soft money originally was intended to be used for
party building activities, but in many cases, it has turned into a
negative campaign apparatus.
There are many approaches to campaign finance reform. I favor the
Feinstein bill because it recognizes the rights of organizations of
every political persuasion to participate in the political process by
gathering small donations to candidates.
I speak from the heart when I say that we must pass campaign finance
reform this year and begin to restore the faith and confidence of the
American people.
Mr. McCAIN. Mr. President, the Senate is about to determine whether
bipartisan campaign finance reform will be an accomplishment of this
Congress or not. As I noted yesterday, the Members of the 104th
Congress can point with pride, well-earned pride, to the substantial
institutional reforms that were passed by this Congress. But the reform
which the public believes to be most necessary and most urgent--
campaign finance reform--is not yet among the accomplishments of this
reform-minded Congress.
Today, the Senate has an opportunity to begin remedying that
deficiency, and take a giant step toward becoming one of the most
important reform Congresses in American history. Invoking cloture
cannot guarantee this legislation will be enacted into law, but we will
be well on the way, Mr. President. Momentum toward final passage may
well prove irresistible in the wake of a successful cloture vote.
But should we fall short of that goal today, it will not mean a
permanent end to this effort. Mr. President, we will have campaign
finance reform; if not this year, then next; if not the 104th Congress,
then the 105th. We will have campaign finance reform because the people
demand it. The people have perceived in the manner in which we finance
our reelection a profound inequity between incumbent and challenger; an
inequity which serves to distance Members of Congress from the will of
the people; to further estrange us from our employers, and indebt us to
an array of monied interests. The people's will cannot be forever
denied no matter how well inoculated we are by the financial advantages
we claim as incumbents. The people will have this reform, if not by our
work, then by the work of our replacements.
Some may see in that statement a contradiction. If current campaign
financing laws so greatly advantage incumbents then we should prove
immune to public pressure for reform. We are indeed greatly advantaged
by the current system, Mr. President, but no one, no matter how
abundant his or her campaign coffers, can forever disregard a demand
for reform that is supported by three-quarters or more of the American
public. No one.
Not all campaigns are waged in such clear opposition to the public
will. In most elections, candidates generally avoid giving great
offense to the voters. It is in most elections that incumbents are
undeniably, unmistakably, and overwhelmingly advantaged over
challengers.
Opponents of this measure, who are my friends, argue eloquently that
we who propose this reform are the enemies of the first amendment; that
we are engaged in that most un-American of activities--the attempted
abridgement of every American's right to free speech. I believe we have
effectively refuted that serious charge, in part because we have had an
ample body of opinion by constitutional scholars to rely on. For the
record, let me state the obvious: I did not seek public office so that
I might violate the Constitution. In my life, I have taken no oath more
seriously than my oath to defend the Constitution. I hope my colleagues
will accept that I am their equal in my love of our Constitution.
Mr. President, we proponents of campaign finance reform do not seek
to curtail the free speech of incumbents. We seek to give voice--a
greater voice--to challengers than is usually the case under the
present system of campaign financing. These are voluntary spending
limits we have proposed. Yes, there are incentives in this bill to
encourage candidates to abide by these limits, and disincentives to
discourage candidates from exceeding them. But if a candidate feels
that circumstances necessitate campaign expenditures in excess of these
voluntary limits, he or she is free to make those expenditures.
Their opponent, however, should not be unfairly disadvantaged by the
other candidate's refusal of spending limits. So, we have included
provisions in our legislation to help a candidate who abides by the
limits keep pace with the campaign of the candidate who rejects the
limits.
Implicit in the arguments of this bill's opponents is the definition
of free speech as more speech. They argue that if an incumbent does not
spend more money on advertising than the challenger, either because of
voluntary limits or because the challenger is allowed more discounted
advertising and postage rates, then somehow the incumbent's free speech
has been curtailed. In reality, Mr. President, our legislation does not
abridge the incumbent's right to free speech; it advances the free
speech of challengers. It refutes the notion that for speech to be
free, one candidate must have more of it than another.
Again, these are voluntary spending limits. They are voluntary and
they are fair.
Mr. President, the opponents of campaign finance reform are as
passionate in their opposition as we are in our support. I do not doubt
the sincerity of their conviction that too little money is spent on
campaigns today. I disagree, of course, but I cannot challenge their
earnestness nor resent the passion with which they advance their
argument. On a few occasions, I have been known to invest my arguments
with a little heated rhetoric, and it would be unfair of me to begrudge
the genuine ardor our opponents hold for their cause, as unsound as
that cause might be.
I commend them for their willingness to extensively and openly debate
this legislation, so that the public may judge from our arguments who
has carried the day. The cloture vote will indicate legislative failure
or success today. But it will not necessarily indicate whose argument
has prevailed. Nor, as I noted at the beginning of my remarks, will
this vote, should we fail to reach cloture, signal an end to this
campaign for reform. We will be back next year. We will ultimately
prevail.
Before I conclude, Mr. President, I want to again commend the
Republicans and Democrats who sponsored and helped to craft this first
genuinely bipartisan campaign finance reform bill. They have all
distinguished themselves in this debate, and in this crusade to keep
faith with the people's just demands for reform. First among these
friends is my partner, the Senator from Wisconsin, Russ Feignold. The
Senator is a man of honor, and his sense of honor prevails over his
sense of politics. That is a virtue, Mr. President, a sometimes
inexpedient virtue, but a virtue nonetheless, and one which I greatly
admire.
Mr. President, the Senator from Wisconsin and I came to the Senate to
argue with one another. We came to the Senate with different ideas
about the proper size and role of Government in this country.
We came here to serve our constituents by serving those ideas, and we
want to spend our time here in open, fair, and honest debate over whose
ideas are the most sound. We did not come here to spend the majority of
our time raising vast funds to ensure our reelection. Nor did we come
here to incur obligations to a few narrowly defined segments of this
country. All Americans deserve fair representation by their Congress.
Mr. President, despite our philosophical and political differences,
Senator Feingold and I have made a common cause in our pursuit of
genuine campaign finance reform. To do so, we both knew that we would
have to relinquish all partisan advantages that had undermined previous
legislative attempts at reform. We were determined to be fair, Mr.
President, and on no occasion--no occasion--did Senator Feingold, or
[[Page S6816]]
any of the cosponsors, attempt to seed into this legislation an
advantage for one party or the other. We were fair, we were committed
to genuine reform, and we were and are determined.
I have found the experience liberating, and I commend it to all of my
colleagues. I urge all of my colleagues to join us in this necessary
endeavor, to accept the public will and restore the public's respect
for the institutions that are derived from their consent. Vote for
cloture. Vote for reform.
____________________