[Congressional Record Volume 142, Number 117 (Friday, August 2, 1996)]
[Senate]
[Pages S9471-S9473]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         THE COLORADO DECISION

  Mr. FEINGOLD. Mr. President, just a month ago we had a discussion 
here on the Senate floor about the issue of campaign finance reform. I 
think a lot of us worked hard on the effort. We have taken a bit of a 
breather for the last month and assessed the situation, and we are 
ready to consider resuming the fight for this very important issue. 
Although the debate was abbreviated, it was a pretty good debate. We 
certainly did not suffer from any shortage of speakers offering their 
ideas on how we could best reform our campaign finance laws. In the 
end, I was pleased the bipartisan reform bill offered by myself and the 
senior Senator from Arizona was able to receive the support of the 
majority of this body, actually a bipartisan vote, obtaining 54 votes. 
So I feel very strongly, although we did not complete the task, we are 
well on our way.
  And even though we fell 6 votes short necessary to ward off a well-
staged filibuster, I think it is clear that there is a bipartisan 
majority in favor of acting on campaign reform, and many of us intend 
to press forward on this issue in the coming months and into the 105th 
Congress.
  The vast, vast majority of the American people want the Congress to 
act on campaign finance reform and we cannot allow a small minority of 
Senators to thwart the will of the American people and wage a stealth 
attempt to sweep this issue under the rug.
  Interestingly, less than 24 hours after the Senate voted against 
further debating the issue of campaign finance reform, the Supreme 
Court handed down a much anticipated decision that will undoubtedly 
affect the Federal election landscape.
  The case was Colorado Republican Federal Campaign Committee versus 
Federal Election Committee. It arose out of a 1986 incident in 
Colorado, in which the Colorado State Republican Party made some 
$15,000 worth of expenditures on radio advertisements attacking the 
likely Democratic candidate for a Senate seat.
  The FEC had charged that this expenditure had violated the Federal 
limits on so-called coordinated expenditures and the tenth Circuit 
Court of Appeals agreed with the FEC's assessment.
  The Federal coordinated expenditure limit is the amount of money the 
national and State parties are permitted to spend on express advocacy 
expenditures for the purpose of influencing a Federal election. The 
coordinated expenditure limit is based on the size of each State.
  It is important to understand what the litigants were arguing before 
the Court, because many people have tried to interpret this decision as 
something other than what it is.
  The Colorado Republican Party, joined by the Republican National 
Committee, argued that the Federal limits on coordinated expenditures 
were unconstitutional on their face and an infringement on the First 
Amendment rights of the political parties to participate in the Federal 
election process.
  In other words, these parties wanted the Federal spending limits on 
coordinated expenditures tossed out completely, not just the narrow 
ruling that was handed down.
  The FEC, on the other hand, argued that the Federal spending limits 
helped prevent both actual corruption and the appearance of corruption.
  In short, the FEC argued that these spending limits were necessary 
and valid for the same reasons that the Supreme Court found Federal 
contribution limits constitutional and necessary in the Buckley 
decision some 20 years ago.
  Who won, Mr. President? Really, no one won. The Court, in a 7 to 2 
decision, found that this particular case out in Colorado was a unique 
situation. At the time the expenditures in question were made, there 
was neither a Democratic nor Republican nominee for the open Senate 
seat. Moreover, the expenditures were made some 6 months before the 
date of the general election.
  And finally, and perhaps most importantly in the Court's eyes, there 
was no demonstrable evidence that there was any coordination between 
the Colorado State party and any of the Republican candidates vying for 
that party's nomination.
  That is the key.
  That, Mr. President, is what these Federal limits on coordinated 
expenditures are supposed to be about. The word ``coordinated'' implies 
that there is some sort of cooperation between the party and the 
candidate in making the expenditure, and in this particular case the 
Court found that there had been virtually no coordination whatsoever.
  The lack of any coordination led the Court to decide that this was an 
express advocacy, independent expenditure, much like the independent 
expenditures we see so often made by organizations such as the National 
Rifle Association, the National Right to Life Committee, and the AFL-
CIO.
  In the landmark Buckley decision and subsequent decisions such as the 
1986 decision in FEC versus Massachusetts Right to Life, the Supreme 
Court has ruled that the Government cannot limit independent 
expenditures which the Court found to be pure expressions of political 
speech protected by the first amendment.
  These rulings are the basis for the absence of Federal limits on 
independent expenditures made by individuals, organizations, and 
political action committees.
  The key determination in the Colorado decision was that the Court 
found that this particular expenditure was an independent expenditure, 
and an independent expenditure made by a political party is entitled to 
the same constitutional protections as an independent expenditure made 
by anyone else. In short, political parties may make unlimited 
independent expenditures in Federal elections in the same manner other 
organizations are free to make such expenditures.
  In addition, the Supreme Court, unfortunately, did leave certain key 
questions unanswered. For example, the Court found the Colorado 
expenditure to be an independent expenditure largely because it was 6 
months before the general election and there was no Democratic nominee 
and no Republican nominee, to make an express, coordinated attack on.
  What would happen if the same expenditure was made 1 month before 
election day, when both the Democratic and Republican nominees had been 
chosen?
  The Court did not address this question.
  Instead, the Court elected to issue an extremely narrow ruling by 
focusing on the peculiar circumstances relevant in the Colorado 
decision.
  The Court simply ruled that an expenditure made without coordination, 
made far in advance of an election and before there are any nominees of 
either party must be treated as an independent expenditure and is 
therefore not subject to limit.
  Mr. President, for the 80 percent of the American people who want us 
to reduce the role of money in congressional elections, this is not the 
best news.
  What it means is that the parties are free to independently pour 
millions and millions of dollars into each State months and months 
before the voters are to go the polls. It will open the door to more 
expensive campaigns, longer campaigns and if current trends continue, 
increasingly negative campaigns.
  It can mean a proliferation in everything that repulses Americans 
about our campaign finance system.
  That is bad news Mr. President. But it must be understood and the 
reason I

[[Page S9472]]

am speaking today, so that this is clarified, this decision could have 
been far worse.
  The Colorado Republican Party had advocated that the Court strike 
down the actual Federal limits on coordinated expenditures, and in 
fact, many of the so-called legal experts had predicted that this 
conservative court would do just that. But they did not.
  But the Supreme Court specifically refused to strike down these 
limits. The Court ruled that this issue needed to be addressed further 
by the lower courts before the high court could adequately issue a 
determination of whether such limits are constitutional.
  That, Mr. President, is why this was such a narrow ruling. It only 
affects a certain type of expenditure made by a political party. The 
Federal limits on coordinated expenditures were left in place and are 
still a part of the current election system.
  Some have suggested that this decision will allow the parties to play 
a greater role in the election process. I agree. The question is, in 
the end, will this have a positive or negative effect on our political 
system.
  I think it could go either way. For example, the parties may decide 
to use this decision to run negative television ads against a 
particular candidate 8 months before election day.
  I do not think that is a positive contribution to the process, and in 
fact, I think it is exactly the type of activity that has turned the 
American people against our current political system. I am hopeful, Mr. 
President, that the American people will reject those kinds of tactics, 
if they are, in fact, used by the parties.
  On the other hand, on a brighter note, there is a possibility that 
this decision could have a positive impact on the system. If, for 
example, a challenger is severely underfunded and is facing an 
incumbent with a colossal war chest, expenditures made by the parties 
could aid the challenger in running a competitive race.
  But I do not think this is the best approach to the very real problem 
of an uneven electoral playing field.
  Why shouldn't we instead empower the challenger to make such 
reasonable expenditures in this situation in his or her own favor? Why 
not, in this particular situation, allow the candidate, rather than the 
party, to play a somewhat greater role in the election process?
  That is precisely the approach advocated by the senior Senator from 
Arizona and myself and many others and was embodied in the bipartisan 
legislation we offered just a couple of weeks ago. Our proposal created 
a mechanism that offered candidates who agreed to a reasonable set of 
limits on their campaign spending the tools to run an effective, 
credible, and competitive campaign for the U.S. Senate.
  I want to make something very clear, Mr. President. The effect of the 
Colorado decision on the McCain-Feingold legislation, or any 
legislation like that legislation, is, at best, nominal. I realize that 
many have tried to say just the opposite, somehow suggesting that the 
Colorado decision contradicts everything in the McCain-Feingold bill or 
other reform bills. Mr. President, that is not true. It is wishful 
thinking on the part of those very same people who have done everything 
they can to kill campaign finance reform.
  The Colorado decision has nothing to do with any of the key 
components of our proposal, whether it is the voluntary spending 
limits, the broadcast and postage discounts, the PAC restrictions, 
bundling restrictions, franking reforms or any other provision. None of 
these are affected by the Colorado decision.
  Some have said that the spending limits in our bill will prevent a 
complying candidate from responding to an attack made by these new 
party-independent expenditures.
  There is concern expressed that a candidate who has agreed to abide 
by the voluntary spending limits who is then hit with $100,000 worth of 
television ads bought by the national party will be unable to respond 
effectively. That is a fair concern to raise. But, Mr. President, the 
answer is the same as it was when we debated the proposal 2 weeks ago.
  There is a provision in our bill that provides that if any complying 
candidate is the target of an independent expenditure, that candidate's 
spending limits are raised in proportion to the amount of independent 
expenditures made against them. So candidates would not be restrained 
from reasonably responding to an independent expenditure by the 
voluntary spending limits that they have agreed to. It is really that 
simple.
  So, Mr. President, I am confident that this legislation will be 
debated again, if not this year, then early in the 105th Congress. It 
doesn't matter whether the Senate is under Republican or Democrat 
control next year, but the American people will surely reject what I 
like to call the two escape hatches of campaign finance reform, in 
addition to saying the Supreme Court has foreclosed the matter.
  The first escape hatch, which will allow the Congress to talk the 
talk without walking the walk, is to create yet another commission to 
study this problem. I say ``another'' because it has already been done 
a few years ago. Commissions are meritorious when a relatively new 
issue needs to be studied, but that is not the situation when it comes 
to campaign finance reform. In fact, this issue has been the subject of 
more congressional hearings and testimony than the vast majority of the 
issues debated on the Senate floor.
  Clearly, at a time when so much is known about the issue and when so 
many creative ideas have been offered, establishing another commission 
to study the problem is unwarranted and nothing more than a dodge.

  The other escape hatch, which has turned into the escape hatch for 
seemingly every other issue that the Senate has debated in the 104th 
Congress, is to call again for yet another constitutional amendment. 
This particular constitutional amendment would allow Congress to set 
mandatory spending limits on campaign expenditures.
  Mr. President, I have no doubt that the people who are supporting 
this concept are sincere. At one brief moment, I supported such a 
constitutional amendment before I realized that the 103d Congress will 
be followed by a 104th Congress that seems to be trying to turn the 
Constitution into a billboard for every imaginable campaign slogan.
  Let's be honest here. A constitutional amendment requiring 67 votes 
is not going to pass before the turn of the century and, frankly, I 
don't think would pass by the turn of the next century. We could not 
even get 60 votes for a modest bipartisan and bicameral bill that had 
an unprecedented level of public support.
  Moreover, even if such a proposal were to somehow miraculously 
receive 67 votes in the Senate and 291 votes in the House of 
Representatives, then it has to be ratified by three-fourths of the 
States.
  So I think it is clear that anyone who suggests that a constitutional 
amendment is the solution to our campaign finance problems must also 
admit that sort of solution is years and years and years away from 
realistically coming into play.
  We just cannot put off a decision any longer, Mr. President. No 
games, no side shows. The American people are tired of campaigns in 
which issues and ideas have become secondary to dollars and cents. They 
view our electoral system not as part of the American dream, but just 
another chapter in the ``lifestyles of the rich and famous.''
  The voters have become inherently mistrustful of any individual 
elected to public office because they know that individual is now part 
of the Washington money chase, where their principal goal as an elected 
official sometimes looks like not representing their communities but, 
instead, raising the requisite millions of dollars for their reelection 
efforts.
  Those are the trademarks of a dysfunctional campaign finance system 
that is crying out for meaningful bipartisan reform. I remain 
optimistic that early next year, this Senate can come together on a 
bipartisan basis and pass the sort of comprehensive reforms that the 
American people have been demanding for so many years.
  I thank the Chair, and I yield the floor.
  Mr. PELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. PELL. Mr. President, I ask unanimous consent that I may proceed 
as in morning business for 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator is recognized for 15 minutes.

[[Page S9473]]

  Mr. PELL. I thank the Chair.

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