[Congressional Record Volume 143, Number 32 (Thursday, March 13, 1997)]
[Senate]
[Pages S2239-S2273]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             CAMPAIGN FINANCE AMENDMENT TO THE CONSTITUTION

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the pending business.
  The legislative clerk read as follows:

       A joint resolution (S.J. Res. 18) proposing an amendment to 
     the Constitution of the United States relating to 
     contributions and expenditures intended to affect elections.

  The Senate resumed consideration of the joint resolution.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Wisconsin.
  Mr. FEINGOLD. I rise today to oppose the proposed constitutional 
amendment offered by the junior Senator from South Carolina and the 
senior Senator from Pennsylvania.
  Mr. President, first I would like to say a few words about the 
Senator from South Carolina. Our colleague, Senator Hollings, has been 
calling for meaningful campaign finance reform for perhaps longer than 
any other Member of the U.S. Senate. I disagree with this particular 
approach. But I certainly do not question his sincerity or commitment 
to reform.
  Mr. President, when the U.S. Senate last had an extended debate on 
the issue of campaign finance reform back in 1993, the junior Senator 
from South Carolina offered a sense-of-the-Senate amendment to take up 
a constitutional amendment very similar to the one that is before us 
today.
  I remember we had a very short period of time before that vote came 
up, and I made a decision and I voted with the Senator from South 
Carolina on that day. I did so because I believed that other than 
balancing the Federal budget, there was perhaps no more fundamental 
issue facing our country than the need to reform our election laws.
  Such a serious topic I believed at the time merited at least a 
consideration of a constitutional amendment. And I will confess to a 
certain level of frustration at that time with the fact that the Senate 
and the other body had not yet acted to pass meaningful campaign 
finance reform in that Congress.
  But, Mr. President, to be candid, I immediately realized, even as I 
was returning to my office, that that might not have been the best vote 
I ever cast. I started rethinking right away whether I really wanted 
the U.S. Senate to seriously consider amending the first amendment to 
address even this subject of which I and so many other Americans feel 
passionately about.
  Then, 18 months later, my perspective on this question began to 
change even more as I was presented with two new developments here in 
the U.S. Senate.
  First, I was given the privilege of serving on the Senate Judiciary 
Committee, and, second, I would soon learn that the new 104th Congress 
was to become the engine for a trainload of proposed amendments to the 
U.S. Constitution. As a member of the Judiciary Committee, I had a very 
good seat to witness first hand what was being attempted here with 
regard to the basic document of our country, the Constitution.
  It started with a proposal right away for a balanced budget 
constitutional amendment, and we were considering a term limits 
constitutional amendment, and then a flag desecration constitutional 
amendment, then a school prayer amendment, then a supermajority tax 
increase amendment, and then a victims rights amendment. In all, Mr. 
President, 135 constitutional amendments were introduced in the last 
Congress.
  As I saw legislator after legislator suggest that every social, 
economic, and political problem we have in this country could be solved 
merely with enactment of a constitutional amendment, I chose to 
strongly oppose not only this constitutional amendment but others that 
also sought to undermine our most treasured founding principle. I 
firmly believe we must continue this reflective practice of attempting 
to cure each and every political and social ill of our Nation by 
tampering with the U.S. Constitution. Mr. President, the Constitution 
of this country was not a rough draft. We must stop treating it as 
such.
  I want to say, because the Senator from South Carolina has just 
arrived and I know that he is not one who has engaged in such an 
attitude toward the Constitution, I know very well he only makes a 
proposal like this with the most serious consideration and for the goal 
of trying to do something about campaign spending. What I am addressing 
here, what I saw in the last Congress was a wholesale attempt to try to 
amend what seemed to be almost virtually every part of the U.S. 
Constitution.
  We must also understand that even if this constitutional amendment 
were to pass this body today, which it will not, but even if it did, it 
would not take us one single, solitary step closer to campaign finance 
reform. It is not a silver bullet. This constitutional amendment merely 
empowers the Congress to set mandatory spending limits on congressional 
candidates. Those are the same kind of mandatory limits that were 
struck down in the landmark Buckley versus Valeo decision.
  Here is the question I pose for supporters of this amendment: If this 
constitutional amendment were to pass the Congress and be ratified by 
the States, would campaign finance reformers have the necessary 51 
votes--or more likely what would be required would be 60 votes--to pass 
legislation that included mandatory spending limits?
  Mr. President, in January I joined the senior Senator from Arizona in 
introducing the first bipartisan campaign finance reform proposal in 
over a decade. That proposal, unlike the law that was considered in 
Buckley versus Valeo, includes voluntary spending limits. That is to 
say, Mr. President, we offer incentives in the form of free and 
discounted television time to encourage but not require candidates to 
limit their campaign spending. When the Senator from Arizona and I 
bring that legislation to the floor of the Senate, I have no doubt that 
we will be met with strong resistance from a number of Senators. So the 
notion that this constitutional amendment will somehow magically pave 
the way for legislation that includes mandatory spending limits simply 
ignores the reality of the opposition that campaign finance reformers 
face here in the Senate and I think would face in the Senate at the 
time of ratification of any such amendment.
  Mr. President, this amendment certainly, if ratified, would remove 
the obstacle of the Supreme Court. But it will not remove the obstacle 
of those Senators such as the junior Senator from Kentucky who believe 
that we need more money, not less, in our political system.
  Most disconcerting to me, Mr. President, is what this proposed 
constitutional amendment would mean to the first amendment. I find 
nothing more sacred and treasured in our Nation's history than the 
first amendment. It is perhaps the one tenet of our Constitution that 
sets our country apart from every mold of government form and tested by 
mankind throughout history. No other country has a provision quite like 
the first amendment.
  The first amendment is the bedrock of the Bill of Rights. It has as 
its underpinnings the notion that each individual has a natural and 
fundamental right to disagree with their elected leaders. It says that 
a newspaper has an unfettered right to publish expressions of political 
or moral thought. It says that the Government may not establish a 
State-based religion that would infringe on the rights of those

[[Page S2240]]

individuals who seek to be freed from such a religious environment.
  Last year I stood here on the floor of the Senate with a number of my 
colleagues to oppose a proposed constitutional amendment that would 
have prohibited the desecration of the U.S. flag. I did so because that 
amendment as proposed, for the first time in our history, would have 
taken a chisel to the first amendment and said that individuals have a 
constitutional right to express themselves unless they are expressing 
themselves by burning a flag.
  Now, Mr. President, I deplore as much as anyone in this body any 
individual who would take a match to the flag of the United States. And 
I am firmly convinced that unrestrained spending on congressional 
campaigns has eroded the confidence of the American people in their 
Government and their leaders. I believe we should speak out against 
those who desecrate the flag. I believe we should take immediate steps 
to fundamentally overhaul our system of financing campaigns. Mr. 
President, I do not believe, as the supporters of this constitutional 
amendment and other amendments believe, that we need to amend the U.S. 
Constitution to bring reform to our system of financing campaigns.
  Mr. President, sometime in the next day or so, this constitutional 
amendment will lose. That has been predetermined, or the supporters of 
this amendment probably would not have been granted consideration here 
on the floor of the Senate in this manner. This debate has some 
characteristics of a charade. Again, that is not because of the author, 
who is sincerely advancing this provision because he believes in it and 
he thinks it should become part of the Constitution. The ultimate 
outcome of the charade is everyone knows this will not pass. There are 
those who want this to sort of be the campaign finance reform debate 
for this Congress. Have a couple of days of talk, no amendments, have a 
vote, and be done with it. Be done with campaign finance reform.
  Mr. President, believe me, I know the feeling. The Senator from 
Arizona and I have been there. We were there last year, last summer. We 
were allowed to bring our bipartisan campaign finance reform 
legislation to the floor last June, but here was the deal: No 
amendments, just 2 days of debate, and then we had to vote on cloture, 
whether we will filibuster, just after 2 days. That was it. No chance 
to fix the bill up or make it appealing to other Members like we do in 
other things. That is very similar to what is going on here. We were 
only allowed to do that after the votes had been counted and assurances 
given that our bill would suffer a quick and painless death. It was not 
entirely painless, but it was not unanticipated. We did get a majority 
of the votes in this body on the first try, 54 out of the required 60 
votes but, of course, when the process is set up like this, this simply 
with these few options, we know the outcome and we know what will 
happen here.
  Mr. President, I want to point out that things just look a little 
different this year on the issue of campaign finance reform than they 
did a year ago. A few things have happened. The McCain-Feingold bill 
has not been placed on the Senate Calendar this time. It does not 
appear that the majority leader is terribly interested in bringing it 
up before the March recess, the Memorial Day recess, or possibly even 
before the turn of the century. We can speculate about the meaning of 
that, but one thing is clear: This constitutional amendment will not 
pass this body, and until this body makes a commitment to considering 
meaningful, bipartisan campaign finance reform, campaign spending in 
this country will continue to go completely unrestrained.
  Nothing in this constitutional amendment before the Senate today 
would prevent what we witnessed in the last election--the allegation of 
illegality and improprieties, the accusations of abuse, and the selling 
of access to high-ranking Government officials would continue no matter 
what the outcome of the vote we had on this constitutional amendment. 
Only the enactment of legislation, Mr. President, that bans soft money 
contributions and that encourages candidates to voluntarily limit how 
much they spend on their campaigns will make a meaningful difference.
  Mr. President, I see Members of the Senate as having, really, three 
choices. First, they can vote for constitutional amendments and 
partisan reform proposals that basically have predetermined fates of 
never becoming law. That allows you to say you voted for something and 
put the matter aside. Second, they can stand with the junior Senator 
from Kentucky and others who stood here on the Senate floor last June 
and told us all was well with our campaign finance system and we should 
all be thrilled that so much money was pouring into the campaign 
coffers of candidates and parties. That is a second option that some 
folks are still pursuing. A third option, Mr. President, Senators can 
join with the Senator from Arizona and myself and others who have tried 
to approach this problem from a bipartisan perspective and have tried 
to craft a reform proposal that is fair to all.
  We have said on countless occasions that our proposal is open to 
negotiation. We simply have two goals: To encourage Senate candidates 
to spend less on their campaign and to give challengers an opportunity 
to run a fair and competitive campaign against well-entrenched 
incumbents. If you share those goals, we can work together to produce a 
meaningful reform proposal.
  Let me say our proposal is picking up steam. We seem to be adding new 
cosponsors a couple of times a week.
  Three days ago, I was challenged on the floor by a stated opponent of 
our bill as to why I was unwilling to address, he said, a particular 
aspect of our campaign finance system. Now, this surprised me very much 
because, in the 18 months since this legislation was originally 
introduced, this Senator had not approached me one single time to ask 
if I would be willing to address that issue. I told this Senator the 
other night, and I say to all my other colleagues, if you share those 
two basic goals of reducing campaign spending and leveling the playing 
field with the Senator from Arizona and I, we are willing to work with 
you to address those concerns.
  Let's do this in the context of a real effort, a real debate, not a 
charade. That real debate will begin when a comprehensive bipartisan 
campaign finance reform bill is brought to the floor of the U.S. 
Senate. After this amendment fails, and as the Governmental Affairs 
Committee proceeds with the investigation into illegal and improper 
conduct by Presidential and congressional candidates in the last 
election, it is my hope that there will be an opportunity for an open 
and full debate on the issue of campaign finance reform.
  Mr. President, without meaningful bipartisan campaign finance reform, 
the American people will continue to perceive their elected leaders as 
being for sale. Unfortunately, they will continue to distrust and doubt 
the integrity of their own Government.
  So, Mr. President, I urge the Members of the Senate to reject this 
amendment, again, with the understanding that I greatly admire the 
sincerity and commitment that its author brings forward on this issue.
  Mr. HOLLINGS. Mr. President, I have tremendous respect for my 
colleague from Wisconsin. I voted for McCain-Feingold. But in a breath, 
when the Senator says he wants meaningful campaign finance reform, he 
is asking that the only real meaningful campaign finance reform be 
tabled or rejected.
  Let's look, for example, at the Senator's own initiative here. In 
McCain-Feingold, it says that voluntary spending limits are set 
according to a State's population. You get free broadcast time--30 
minutes of prime time--and then you get half-price broadcast discounts 
and reduced postal rates. How much is that going to mean to the 
Huffington-type campaigns that we see, where they are ready to spend 
$30 million, or the Steve Forbes-type campaigner, who is ready to spend 
$35 million? That is not even going to give them a burp in their 
campaign.
  The candidate's individual contribution limits would be raised from 
$1,000 to $2,000, if the opponent does not agree to the voluntary 
limits or declares an intent to spend $250,000 or more of their 
personal funds. But that is just the interest on the money the amounts 
of money we are talking about, were it to be loaned. But they have it 
available. So that really doesn't control the buying of the office. It 
doesn't control the

[[Page S2241]]

buying of the office. It is not meaningful campaign finance reform.
  The Senator wants to ban soft money. Now, here it is. With respect to 
the Colorado Republican Federal Campaign Committee against the Federal 
Election Commission, the Federal Election Commission brought suit 
charging that the Colorado party had violated the party expenditure 
provision of law by buying radio advertisements attacking the 
Democratic Party's likely candidate. This is the evil that you have in 
these decisions. It went on, and the Colorado Republican Party won out. 
Why? On account of a key little word: coordinated. You have to prove 
affirmatively that the candidate himself called up and suggested it or 
coordinated it, as they say, even if it is proven he called up. It has 
to be coordinated.
  Now, I want you all to know the reality of my particular comment. In 
next year's campaign, newspapers have already run a poll where they 
have shown that the former Governor of South Carolina, Carol Campbell, 
if we had the election this afternoon, would beat me. All I have to do 
is tell that friend there to tell that friend over there to get the 
third friend to tell the Democratic Party of South Carolina to start 
running radio advertisements attacking the former Governor as a likely 
candidate. He hasn't announced, but he is a likely candidate.

  But they say everything is fair in love and war and in a political 
campaign. This is the mischief. It is not just the money, it is the 
mischief that this nonsense promotes. You can't get to it, Mr. 
President, without a constitutional amendment. You can't get to it. The 
distinguished Presiding Officer and I went through this yesterday 
afternoon. I read down the 20 to 25 campaign finance initiatives we 
have had over the last 30 years, trying to get a grasp and a grab and a 
handle on this evil, this corruption. We have tried every way in the 
world, from having cloture after cloture vote, to arresting the Members 
and bringing them to the floor. We have tried everything. The best 
offer now, they say, is McCain-Feingold, but I have gone down it. It 
has voluntarism. We know from the campaign in Massachusetts what 
``voluntary'' means in politics; it means temporary. When the two 
gentlemen that ran last year got down to the end of the campaign, they 
said of the public agreement they had agreed to--both of them are 
affluent--they said, ``Let's forget about this limit and let's get 
affluent.'' Then they started spending like gangbusters. There you go, 
voluntary limits and everything else. We have to nail this buzzard with 
a limit, a constitutional authority to limit.
  I hasten to add that I don't prescribe the specific limit. It is 
still up to Senator McConnell, if he has a majority, to prevail. 
Unfortunately, we see the machine. We see the orchestration. When I 
first presented this, we got many Republican cosponsors, and we had a 
majority, bipartisan vote. Again, on two other occasions, we had a 
bipartisan vote and the support of a majority. But I can see right now 
the orchestrated drumbeat of first amendment. And they go back to 
Patrick Henry and James Madison, and every other kind of fanciful 
position, to try to get everybody's mind on ``let's not rip a hole in 
the first amendment.'' And the very authority they are using that money 
is speech, or speech is money, is Buckley versus Valeo, which does 
what? It rips a hole in the first amendment. That is their very holy 
grail that speaks of money. ``The first time in 200 years'' I don't 
know how they have the unmitigated gall to come out and say ``the first 
time in 200 years,'' when in the same breath they are saying, ``Buckley 
versus Valeo, speech is money.'' Buckley versus Valeo limited the 
freedom of speech. It ``ripped a hole,'' as they phrase it, ``in the 
first amendment.'' We can read it.
  I read from Buckley versus Valeo, the majority opinion:

       It is unnecessary to look beyond the actual primary purpose 
     to limit the actuality and appearance of corruption, 
     resulting from large individual financial contributions, in 
     order to find a constitutionally sufficient justification for 
     a $1,000 contribution limitation . . .

  I will read that again.

       . . . resulting from large individual financial 
     contributions, in order to find a constitutionally sufficient 
     justification for a $1,000 contribution limitation on 
     political discourse.

  They limited the freedom of speech of the contributor when they 
equated speech with money in this famous decision. Everybody knows it. 
But they want to totally ignore; like this fellow from South Carolina 
is going to rip a hole for the first time in 200 years in the first 
amendment. What a charade. They are hiding. They do not want to get 
serious. They don't want to limit expenditures. They don't want what 
they overwhelmingly supported 20 years ago with the original Federal 
Election Campaign Practices Act that said you are not going to be able 
to buy the office. Now, with Buckley versus Valeo, and particularly 
with the Colorado decision, you have to buy the office. And they show 
you how to do it. Two years ahead of time you can see a potential 
opponent. Just let the party start savaging him on radio and TV. If the 
gentleman were disposed to announce, by the time he got ready to 
announce he would announce for the State border trying to escape. They 
would make him an outright rascal by that time with money.

  That is not free and open discourse in the political arena. That is 
discourse in the financial arena. The financial marketplace is where we 
are allowing the decision to be made. And everybody in America knows 
it. That is why we had the investigating committee by unanimous vote of 
this body day before yesterday saying we cannot countenance this 
conduct any longer, and we can't dance about on illegalities. We have 
to look at the improper as well as the illegal. So we unanimously voted 
it. But now we are trying to cover up on a party position.
  Someone asked me, ``Senator, how many votes?'' I said, ``Well, I came 
yesterday with hope. But after I saw the particular activity among some 
of the finest Members that you will ever have in this body, and come 
along giving me James Madison, Patrick Henry, and the Founding Fathers, 
they didn't have to get in the horse and wagon and go out and collect 
$14,000 a week in order to get the office. They didn't have to go 
around with their national party asking to cut up the opponent before 
he could even announce. They didn't ask him to spend an average of over 
$4 million.
  The Senator from Kentucky, who just withdrew, said he would have to 
get $5 million. So that is more than $14,000 a week--not a day, a 
week--each and every week between now and election time. Patrick Henry 
had the freedom of speech and a strong democracy trying to counter--of 
course, what the distinguished Senator from Texas commented on, the 
Gephardt remark. The truth of the matter is they had it in those days 
as I had it in my days of the beginning political arena. We went around 
on the stump. You had to get there, or you were embarrassed. ``Why 
weren't you there?'' You had to answer the questions. It wasn't all of 
that expense. It wasn't this third party activity in soft money.
  So don't come now on the floor joining the stonewalling on the other 
side of the aisle that we have an advantage--that we have a financial 
advantage in spite of all the shenanigans that President Clinton and 
Vice President Gore engage in. ``We have $150 million more. Whatever 
they did, we did better.'' You remember that song in the Broadway play. 
Whatever the Democrats did we can do better on money. And do not be 
toying around. Get in there and support that Constitution, and read. 
And they come out and religiously read it. You can't pass any laws, or 
do anything with the freedom of speech. And, in the next breath, they 
say whoopee for Valeo. Money is speech in politics. And we have to 
protect and limit the contributors. That in and of itself sets aside 
their thrust here today.
  I can read on. Maybe, if we have the time, we will read on because I 
would be prepared. Some of the colleagues said they would come. But I 
can see that there is very little interest. I was wondering why the 
majority leader allowed me to get this on an up-and-down vote. I know I 
had the amendment on the balanced budget amendment to the Constitution. 
And the distinguished Senator said, ``Now, look. If you set this aside, 
withdraw your amendment, we will give you an up-and-down vote and 
sufficient time.'' I can see after yesterday afternoon, Mr. President, 
that I have had sufficient

[[Page S2242]]

time because whatever we say here, they are cast now in the sort of 
party preference of spending, spending, spending. I hope we can expose 
it because that wasn't the real opinion over on the other side of the 
aisle. I had Senator Kassebaum from Kansas. I had Senator Roth from 
Delaware. We still have, I am pretty sure, the distinguished Senator 
from Pennsylvania because he had a personal experience. When he comes 
to the floor you ought to listen very carefully because you can see in 
reality what this bifurcation finding that contributions are 
corruptive, or gives rather the appearance of corruption, whereas the 
explosive expenditures in campaigns, ``Oh, that particularly has to be 
allowed to reign free because we have the free public discourse in 
politics.'' You can see the ``free.'' None of this is free when it says 
here--``bought'' radio advertisements. You can bet your boots the word 
``bought'' b-o-u-g-h-t--``bought'' radio advertising; the word 
``free.'' Basically every one knows we are not talking about free 
speech.

  We have to go along with the Supreme Court in our discourse for the 
present time. But if we can come now with this proposed constitutional 
amendment which is stated is needed by a majority of the Senate now 
three times, by the law professors, by the State attorneys general. And 
the gentleman here says he has--that was interesting. He has the 
Washington Post and the New York Times.
  Let's see now. I heard just a minute ago from the Senator from 
Wisconsin. So let's see what the Wisconsin State Journal has to say.
  Our former colleague stood there as sort of the one man on S. 2--that 
supersonic plane that we can all spend billions on, and now the market 
has barely supported it financially. The Europeans with subsidies have 
to support it. But the entire Pentagon with all of their minions over 
here and big budget and everything else, one little Senator, Senator 
Proxmire of Wisconsin, stood there time and time again with a staff. 
And he finally conquered not just the Pentagon but the consciences of 
all of Senators, and we voted along with him.
  Now let's see, on Monday, March 10, the Wisconsin State Journal, and 
I quote:

       Part of the American dream is that any child can grow up to 
     be President. Our Government is of, by and for the people, 
     and ordinary citizens should have the opportunity to attain 
     office by virtue of their ideas, their talent and their 
     integrity.
       Unfortunately, the ideal of self-government has succumbed 
     to rampant special interest money in elections that only an 
     amendment to the U.S. Constitution can restore. Our elections 
     are now auctions, with the average price for a seat in 
     Congress costing more than $500,000.

  In the Senate, the average cost of a seat exceeds $4 million. As 
former Senator Proxmire said:

       Few Americans have the desire or ability to raise that sort 
     of money.

  It is not only the time devoted to fundraising that we take away from 
the people's business, but also the fact that really good candidates 
are deterred from running for public office because they see the 
financial obstacles raised against them. For example, as was the case 
recently in Colorado, the party trying to defend an incumbent can come 
in and start savaging the likely opponent without any announcement and 
without any controls over their spending because there is no way to 
prove coordination. As a result of this flood of money, the regular, 
average, sane and prudent man or woman is deterred from running for 
office and democracy itself is corrupted.
  It is just not family concerns that causes candidates to bow out. It 
is the fact that if candidates get serious, they will get savaged. 
Often I run into friends of fairly good affluence who say, look, I 
can't expose my family to all this complete disclosure.
  People do not want to expose themselves to such public notoriety. If 
you want a free genealogical study of your family, Mr. President, all 
you have to do is announce for public office. Opposition researchers 
will dig up the place you were born, find out what kind of house you 
had, where you bought a washing machine on credit, automobiles, how 
much you contribute to the church, what is in your doctor's records and 
everything else you can think of. Most of it has little to do with 
one's qualifications for public office, but that is the nature of the 
beast--not the issues, not the ideas, not the candidate's integrity, 
but insinuations that can be distorted and used against an individual 
in the court of public opinion.
  But the real corruption is in the amount of money necessary in this 
day and age to run a modern political campaign.
  Let me go back to the quote of our former colleague, former Senator 
Proxmire from Wisconsin.

       The latest headlines focus on Democratic donors buying 
     coffee at the White House and on the Republicans $250,000-a-
     person ``season tickets'' designed to give the largest donors 
     more access to the elected officials. But the problem is not 
     that interested people have given money and in return 
     received access--politicians will always grant audiences to 
     their donors. The problem is that few Americans can play in 
     this big money game. Majority rule takes on a whole new 
     meaning when the majority of campaign cash comes from just 
     one quarter of 1 percent of Americans.
       Well-heeled interests have largely usurped power from the 
     people. Big money determines who runs for public office and 
     who wins elections. Last November, the House candidates who 
     spent the most won their races 96 percent of the time. In 
     Wisconsin, this held true in all but two races.
       We know the solution is to limit what anyone can spend on 
     elections, whether they are running for office themselves or 
     giving money to a candidate, party or independent advocacy 
     campaign. But here we run into the problem of the foxes 
     guarding the chicken coop--incumbents have little incentive 
     to change a system they have mastered.
       However, even incumbents can act when public pressure is 
     high.
  Let me say that again. ``Even incumbents can act when public pressure 
is high.'' We saw a perfect example of that the day before yesterday. 
The Republicans they had it greased; they had a majority in that Rules 
Committee. The leader came out and said this is the scope of the 
hearings that we are going to have, like it or not. We are only going 
to examine alleged illegalities and not the broader question of 
improper campaign financing. But, as they say, public pressure will 
change that, and public pressure did.
  As a result, we had 99 Senators vote on the day before yesterday for 
broader investigation into improper as well as illegal actions.
  After Watergate, Congress took bold steps and set limits on campaign 
cash. But in the now infamous 1976 case, Buckley versus Valeo, the 
Supreme Court struck down most of the law, ruling that unlimited 
spending on campaigns deserves protection as free speech. Again, 
quoting Senator Proxmire:

       When we equate spending money with speech, then speech is 
     no longer free.

  I must read that again, because it is so basic.

       When we equate spending money with speech, then speech is 
     no longer free.
       Moneyed interests can pay the price and the rest of us are 
     free to be silent. The Buckley ruling is simply wrong. 
     Twenty-four State attorneys general have recently called for 
     Buckley to be reversed, as have a host of constitutional 
     scholars. But the current court appears unlikely to do so.
       As in the past democratic struggles to end slavery and give 
     women the vote, the only certain recourse is to amend the 
     Constitution and overturn the Court. We must clearly 
     authorize Congress and the States to limit campaign 
     contributions and expenditures.
       A majority of the Senate has voted to support such an 
     amendment in the past but a two-thirds vote is required. 
     Another vote is likely soon. Senator Russ Feingold, D-Wis., 
     has voted for the constitutional amendment in the past but 
     now says he is against it. Senator Herbert Kohl, D-Wis., also 
     has a mixed voting record. He has voted once for and once 
     against a similar amendment. Let's hope that this time they 
     read the headlines about fundraising scandals and decide to 
     change them by voting for the amendment.

  We must take down the For Sale sign on Capitol Hill by authorizing 
limits on campaign cash with a constitutional amendment. Let us not be 
daunted by how difficult such a task may appear, for the price of 
inaction is far too great.
  Mr. President, I thought that we might be daunted by how difficult 
the task would appear. That argument has been made previously by our 
good friend Lloyd Cutler. He said it would take 4 to 20 years to get a 
constitutional amendment enacted, and therefore we were wasting our 
time. But it has been 20 years since the Buckley decision. Let us not 
talk about wasting time. That is what we have been doing since Buckley.
  How are you going to stop doing that? A constitutional amendment. The 
arguments were, ``It would take

[[Page S2243]]

too long,'' or, ``I don't believe in a constitutional amendment; leave 
it as it is.''
  Now, we know the distinguished Senator from Kentucky, and the 
distinguished Senator from Kansas, Senator Roberts, engaged in their 
little sweetheart exchange on the floor yesterday. They both believe in 
amending the Constitution. They both voted to amend the Constitution in 
order to prevent the desecration of the American flag. In fairness to 
Senator McConnell, he said it was a mistake. Fine business. The Court 
made a mistake when they outlawed the Federal income tax. So, what did 
the body politic do? The Congress passed a joint resolution and the 
people of the United States ratified the 16th amendment. Let us read 
how you can correct a mistake. Amendment 16:

       The Congress shall have the power to lay and collect taxes 
     on incomes from whatever source derived without apportionment 
     among the several States, and without regard to any census or 
     enumeration.

  That is not what they are talking about now, because we know mistakes 
are corrected; mistakes with respect to elections have been corrected. 
The 21st, 22d, 23d, 24th, and 25th amendments to the Constitution, all 
except the last one, have dealt with elections. So we corrected those 
mistakes. One important mistake, perhaps most significant, was the poll 
tax. The people said, ``Wait a minute, disqualifying people from voting 
through a poll tax--we are not going to allow it.'' So we adopted that 
amendment to the Constitution.
  Now we want to disqualify candidates, parties, and everyone else from 
running for office by allowing the explosive spending of money; 
thousands of dollars, $200,000 for this, $500,000 for that. It is just 
outrageous. Yet, they do not want to recognize it. They want to give me 
Patrick Henry and go back to the first amendment and read it to mean 
that any restriction ``rips a hole'' in our freedom of speech. But it 
is not so when for the safety of people, we prohibit shouting ``fire'' 
in a theater; not when for national security reasons, we prohibit 
disclosure of classified documents; not so in the matter of obscenity 
and false and deceptive advertising. Just the other day, concerning a 
buffer zone around an abortion clinic--the Supreme Court said, oh, no, 
you don't have a freedom of speech in that buffer zone. That 
restriction is constitutional.
  The contention was made that unless people were given the right to be 
heard in that particular area, you were ripping a hole in the first 
amendment. The Supreme Court said no. Get out. Don't get into this 
buffer zone.
  So we have example after example, but none better than the Senate 
itself that says you cannot have unlimited debate here in this body; we 
can get a 60-vote majority and hush you. Over on the House side, they 
have to follow the 3-minute rule; the 5-minute rule. In committees, we 
regularly agree and conform to a 5-minute rule for all the members. We 
know the value of limiting speech. Don't come here with this sanctimony 
about the first amendment and Patrick Henry and talking about ripping a 
hole in the first amendment for the first time in 200 years. Buckley 
versus Valeo--the very basic authority that you use when you come to 
the floor of the U.S. Senate saying speech is money, or money is 
speech--ripped a hole in the first amendment. That is the exact finding 
of Buckley versus Valeo.
  So, that will not wash.
  Mr. President, I have not only the Wisconsin State Journal, I have 
the Cleveland Plain Dealer. I ask unanimous consent to have that 
article printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                 [From the Plain Dealer, Mar. 12, 1997]

        Only a Constitutional Amendment can Limit Campaign Cash

                     (By Seth Taft and Amy Simpson)

       Part of the American dream is that any child can grow up to 
     be president. Our government is to be of, by and for the 
     people, and ordinary citizens should be elected to office by 
     virtue of their ideas, talent and integrity.
       Unfortunately, the ideal of self-government has succumbed 
     to special-interest money in elections and only an amendment 
     to the Constitution will restore it. The average cost of a 
     congressional campaign exceeds $500,000. Few Americans have 
     the desire or ability to raise that sort of money.
       The latest headlines focus on Democratic donors buying 
     coffee at the White House and on the Republicans' $250,000 a-
     person ``season tickets'' designed to give the largest donors 
     more face-to-face time with elected officials.
       But the problem is not that interested people have given 
     money and in return received access; politicians will always 
     grant audiences to their donors.
       The problem is that an extremely small number of Americans 
     can play in this big-money game. Majority rule takes on a 
     whole new meaning when the majority of campaign cash comes 
     from just one quarter of 1 percent (0.25 percent) of 
     Americans.
       Big contributions frequently determine who runs for public 
     office and who wins elections. In Ohio's congressional races 
     last year, the candidates who spent the most succeeded in 
     capturing the House seat 84 percent of the time.
       We know the solution is to limit what anyone can spend on 
     elections, whether he is running for office or giving money 
     to a candidate, a party or an independent advocacy campaign. 
     But current incumbents have little incentive to change a 
     system they have mastered.
       However, even incumbents can act when public pressure is 
     high. After Watergate, Congress took bold steps and set 
     limits on campaign cash. But, in the now infamous 1976 
     decision in Buckley vs. Valeo, the Supreme Court struck down 
     most of the law, ruling that unlimited spending on campaigns 
     deserved protection as free speech.
       Since 1994, voters in five states have passed initiatives 
     to set low contribution limits, $100 in most races, for state 
     elections. These initiatives have been overturned in two 
     states by courts that thought themselves better able than the 
     public to set ``reasonable'' limits. Proposals that would 
     require candidates to raise their funds from within their 
     districts face a similar fate.
       When we equate spending money with speech, then speech is 
     no longer free. Wealthy interests can pay the price, and the 
     rest of us are free to be silent. The Buckley ruling is 
     simply wrong. Twenty-four state attorneys general recently 
     called for its reversal, as have a host of constitutional 
     scholars. But the current court appears unlikely to do so.
       As in the democratic struggles to end slavery and give 
     women the vote, the only certain recourse is to amend the 
     Constitution and overturn the court. We must clearly 
     authorize Congress and the states to limit campaign 
     contributions and expenditures.
       A majority of the U.S. Senate has voted to support such an 
     amendment in the past, but a two-thirds vote is required. 
     Another vote is likely within the next week.
       In the past, Sen. Mike DeWine has voted against and Sen. 
     John Glenn has voted for such an amendment. Let's hope that 
     this time, they read the headlines about fund-raising 
     scandals and decide to change them by voting for the 
     amendment.
       We don't like using the Constitution for this purpose, but 
     the Buckley-Valeo decision makes it necessary. Campaign 
     spending limits that do not apply to independent committees 
     and individuals become meaningless.

  Mr. HOLLINGS. These liberal eastern papers, the Washington Post and 
the New York Times make the argument of free speech. I hope you 
midwesterners do not get bitten by that. I want to see you stay in the 
U.S. Senate. I want to see you all continue to serve. The best way is 
not to get wrapped around and go back to the Midwest and say that the 
ACLU is a wonderful authority. I know how to lose an election. I have 
lost before. I don't know any quicker way to lose one than to run 
around in my backyard or your backyard, Mr. President, quoting the 
ACLU. You folks have to be embarrassed with this kind of argument about 
first amendment and the ACLU. And even more embarrassing is the 
anecdotal nonsense they put up relative to what could happen. The 
Senator from Utah even said Congress might decide not to let anyone 
oppose them.
  He got into a wonderful discourse with the Senator from Kentucky. He 
said if this amendment passed, Congress could put such low limits that 
the opponent's name would never become known and that Congress might 
decide not to let anyone oppose them.
  Of course, in the next breath they say it is vague, because the 
language says ``reasonable,'' ``reasonable limits.''

  The courts said they are going to decide what is reasonable. But they 
put up all kinds of examples about how newspapers might write an 
editorial against someone. And they said that could be a contribution 
for or a contribution against.
  Right now the newspapers do write editorials for and do write 
editorials against. We have the free press. No one has the gall to 
contend that is a contribution in the context of being a violation. No 
one is going to contend that now, and they are not going to contend it 
later on.
  But these are all straw men, because they do not have the argument. 
But they have the frontal assault of Patrick Henry and the first 
amendment.

[[Page S2244]]

And trying to say, as the Senator from Texas said, the simple question 
is ``Do you believe in free speech or not?'' He says if he can answer 
this question, then he is home free. All 100 of us believe in that. 
That is not what we are voting on. The question is, Do you believe in 
limiting spending or not? They know it. And they do not want to hear of 
it. So they bring out the volume and repetition of numerous Senators 
talking about 200 years and the first amendment and Patrick Henry. If 
you pass this, you can go back to what we voted for in 1974 and have 
complete disclosure, rules against bundling, rules against soft money, 
rules against individual wealth buying elections. It would free up the 
speech of the poor. Buckley really freed up the speech of the rich, but 
it has taken away freedom of speech from the poor. That is the actual 
effect of the decision, and we are suffering from it.
  We have lost the confidence of the people in the political 
institutions up here because we do not want to deal with it. We tried 
and tried and tried over a 30-year period without success and now we 
are using the octopus approach. We want to sneak off in the dark ink of 
a charade about Patrick Henry, the first amendment, and what may 
happen.
  Mr. President, let us go back to better times. Let us go back to 
better times.
  What happened was, in better times, we had the orderly process of 
several hearings before the Judiciary Committee. We had several 
witnesses. And I come to the distinguished Mr. Lloyd Cutler, who served 
as Counsel for the President.
  But he says now on the House side:

       An amendment would take too long to adopt, 4 to 10 years.

  He did not testify on behalf of the Commission for the Constitutional 
System heretofore, but he says now that it would take too long. We know 
that is totally wrong. The last five amendments preceding the most 
recent one, which took 200 years, took an average of 20 months to 
ratify.
  The gentleman, I think, is suffering from battle fatigue because he 
said: This could be a camel's-nose-under-the-tent aspect. He did not 
see a camel's-nose-under-the-tent aspect when he was representing the 
Commission for the Constitutional System. He says that the Hollings 
resolution in the Senate authorizes ``reasonable regulation of 
expenditures. Only the Supreme Court can draw the line between 
reasonable and unreasonable.''
  The courts are always directing the jurors in determining if they 
have gotten a reasonable decision, the ``reasonable, sane and prudent 
man,'' in law talk, is the test. We did not have ``reasonable'' when we 
first drafted it, but we put it in there so the amendment will not look 
categorical and result in a legal contest. The Supreme Court is 
certainly going to decide if it is unreasonable, as they have decided 
that the matter of contributions is constitutional, if limited to that 
speech, but unconstitutional if you limit the speech of those who spend 
it.
  Let me read parts of the hearing here that we had before the 
Judiciary Committee some 10 years ago. We had already been on this a 
dog-chasing-its-tail solution for 10 years.

       My name is Lloyd N. Cutler. Along with Senator Nancy 
     Kassebaum of Kansas and Mr. Douglas Dillon, I am a Co-
     Chairman of the Committee on the Constitutional System, a 
     group of several hundred present and former legislators, 
     executive branch officials, political party officials, 
     professors and civic leaders who are interested in analyzing 
     and correcting some of the weaknesses that have developed in 
     our political system.
       One of the most glaring weaknesses, of course, is the 
     rapidly escalating cost of political campaigns, and the 
     growing dependence of incumbents and candidates on money from 
     interest groups who expect the recipient to vote in favor of 
     their particular interests. Incumbents and candidates must 
     devote large portions of their time to begging for money; 
     they are often tempted to vote the conflicting interests of 
     their contributors and to create a hodgepodge of conflicting 
     and indefensible policies; and in turn public frustration 
     with these policies creates cynicism and contempt for the 
     entire political process.
       A serious attempt to deal with the campaign financing 
     problem was made in the Federal Election Campaign Act of 1974 
     and the 1976 amendments, which set maximum limits on the 
     amounts of individual contributions and on the aggregate 
     expenditures of candidates and so-called independent 
     committees supporting such candidates. The constitutionality 
     of these provisions was challenged in the famous case of 
     Buckley v. Valeo, 424 U.S. 1, in which I had the honor of 
     sharing the argument in support of the statute with Professor 
     Archibald Cox. While the Supreme Court sustained the 
     constitutionality of the limits on contributions, it struck 
     down the provision limiting expenditures for candidates and 
     independent committees supporting such candidates. It found 
     an inseparable connection between an expenditure limit and 
     the extent of a candidate's or committee's political speech, 
     which did not exist in the case of a limit on the size of 
     each contribution by a non-speaker unaccompanied by any limit 
     on the aggregate amount a candidate could raise. It also 
     found little if any proven connection between corruption and 
     the size of a candidate's aggregate expenditures, as 
     distinguished from the size of individual contributions to a 
     candidate.
       The Court did, however, approve the Presidential Campaign 
     Financing Fund created by the 1976 amendments, including the 
     condition it imposed barring any presidential nominee who 
     accepted the public funds from spending more than a specified 
     limit. However, it remains unconstitutional for Congress to 
     place any limits on expenditures by independent committees on 
     behalf of a candidate. In recent presidential elections these 
     independent expenditures on behalf of one candidate exceeded 
     the amount of federal funding he accepted. Moreover, so long 
     as the Congress remains deadlocked on proposed legislation 
     for the public financing of Congressional campaigns, it is 
     not possible to use the public financing device as a means of 
     limiting Congressional campaign expenditures.

  Mind you, Mr. President, as I cover this particular testimony, it is 
10 years ago. They are talking about the dilemma, the problem, and how 
it was exacerbating at that particular time. You can tell the 
frustration from the wording of this testimony.
  I go to the quote of Mr. Cutler:

       Accordingly, the Committee on the Constitutional System has 
     come to the conclusion that the only effective way to limit 
     the explosive growth of campaign financing is to adopt a 
     constitutional amendment.

  Now, my colleague from Kentucky says you do not have any authority 
and there is no constituency. The fact of the matter is that this 
particular committee is a group of several hundred present and former 
legislators, executive branch officials, political party officials, 
professors, and civic leaders who are interested in analyzing and 
correcting some of the weaknesses that have developed in our political 
system.
  Not the ACLU. I do not rely on the ACLU for my case. I want to win 
this thing. I do not want to be spreading the dark ink of the ACLU in 
the Washington Post. Go down to the Washington Post and ask them for 
free speech. Say, ``I want a little free speech. Not a whole page, a 
half, maybe a quarter of a page.'' They will not give you a little 
tidbit of a column free.
  Going back to the testimony before the Judiciary Committee:

       The amendment would be a very simple one consisting of only 
     46 words. It would state merely that ``Congress shall have 
     power to set reasonable limits on campaign expenditures by or 
     in support of any candidate in the primary or general 
     election for federal office. The States shall have the same 
     power with respect to campaign expenditures in elections for 
     state and local offices.''

  This was 10 years ago, Mr. President, and those who have been working 
on this particular problem copied the language, adopted the suggestion. 
It was a reasonable thing because here are the best of minds, without a 
particular Republican bent or Democratic bent or interest, who said 
here is the way to do it not only constitutionally but in a 
constitutionally sound manner so that the court could properly 
interpret it.
  Let me go back to the testimony of Mr. Cutler:

       Our proposed amendment would enable Congress to set limits 
     not only on direct expenditures by candidates and their own 
     committees, but also on expenditures by so-called independent 
     committees in support of such a candidate. The details of the 
     actual limits would be contained in future legislation and 
     could be changed from time to time as Congress in its 
     judgment sees fit.
       It may of course be argued that the proposed amendment, by 
     authorizing reasonable limits on expenditures, would 
     necessarily set limits on the quantity of speech on behalf of 
     a candidate and that any limits, no matter how ample, is 
     undesirable. But in our view the evidence is overwhelming by 
     now that unlimited campaign expenditures will eventually grow 
     to the point where they consume so much of our political 
     energies and so fracture our political consensus that they 
     will make the political process incapable of governing 
     effectively.

  Mr. President, I divert here to emphasize just exactly that concern 
that our political consensus will be so fractured that it will make 
``the political process incapable of governing effectively.'' Put that 
on as a test to this

[[Page S2245]]

particular Congress. If you think we have governed effectively, I have 
grave misgivings with that opinion. I think that is exactly where we 
are, and exactly was the concern 10 years ago.
  And I continue to quote the testimony of Mr. Cutler:

       Even Congress has found that unlimited speech can destroy 
     the power to govern; that is why the House of Representatives 
     has imposed time limits on Members' speeches for decades and 
     why the Senator has adopted a rule permitting 60 Senators to 
     end a filibuster. One might fairly paraphrase Lord Acton's 
     famous aphorism about power by saying, ``All political money 
     corrupts; unlimited political money corrupts absolutely.''

  There is no question in this Senator's mind. Quoting further:

       Finally, Mr. Chairman, I would not be discouraged from 
     taking the amendment route by any feeling that constitutional 
     amendments take too long to get ratified.

  You see, Cutler has come over from the other side earlier this year 
and he said it would take too long. He was not worried then, some 10 
years ago, because he knew exactly that. The last five amendments at 
that particular time were all ratified within the 20-month period. Now 
he has misgivings.

  Let me quote further:

       The fact is that the great majority of amendments submitted 
     by Congress to the States during the last 50 years have been 
     ratified within 20 months after they were submitted. All 
     polls show that the public strongly supports limits on 
     campaign expenditures. The principal delay will be in getting 
     the amendment through Congress. Since that is going to be a 
     difficult task, we ought to start immediately. Unlimited 
     campaign expenditures and the political diseases they cause 
     are going to increase at least as rapidly as new cases of 
     AIDS, and it is high time to start getting serious about the 
     problem.
       Mr. Chairman, on three past occasions we the people have 
     amended the Constitution to correct weaknesses in that 
     rightly revered document as interpreted by the Supreme Court. 
     On at least two of these occasions--the Dred Scott decision 
     and the decision striking down federal income taxes, history 
     has subsequently confirmed that the amendments were essential 
     to our development as a healthy, just and powerful society. A 
     third such challenge is now before us. The time has come to 
     meet it.

  That was in March 1988.
  Now, Mr. President, I see my distinguished colleagues on the Senate 
floor. At this time I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from New 
Mexico.
  Mr. DOMENICI. Parliamentary inquiry, are we operating on a time 
agreement now?
  The PRESIDING OFFICER. There is no time agreement.
  The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, let me say that it is not often on 
matters such as this one that I am on the floor in opposition to 
something that Senator Hollings favors. We normally are here on either 
economic matters or budget matters or the like. I want to say right up 
front while I totally disagree that we should adopt this constitutional 
amendment and send it out to the States for ratification, I believe it 
is fair to say that among the Senators who have been talking about 
limiting or dramatically changing the campaign laws of this land, of 
limiting of the amount of money that can be spent, at least this 
amendment is honest.
  It faces the reality right between the eyes, and the Supreme Court of 
the United States has said that you can't do that because you are 
limiting freedom of speech. And the distinguished Senator has said, OK, 
if that is the case, I want to change the Constitution, so we can do 
it. At least that is a straightforward position, instead of coming here 
and trying to get around the Supreme Court decisions and around the 
clause in the U.S. Constitution that protects freedom of speech.
  Having said that, I want to take a couple of minutes to talk with the 
Senate about my views and version of why we should not adopt this 
amendment. First of all, I believe that I should lead off by saying, 
yesterday afternoon, I was in my office when some speeches were being 
delivered on the floor of the Senate. I don't think I am much different 
from most Senators. Normally, if you have your set on and somebody is 
speaking on the floor, even though we all love them dearly and they are 
great speakers and they have great things to say, we don't listen very 
often--at least, if we are busy in the office, and we do other things.
  But I took time out to listen to Senator Phil Gramm of Texas, and I 
tried to tell him this personally so it would precede me saying it on 
the floor, I thought his remarks yesterday afternoon were very 
eloquent. They expressed a very good picture of the history of our 
Constitution and, in particular, of that part of our Constitution that 
we so glibly say is freedom of speech, protected by that wonderful 
document and the Bill of Rights.
  Having said that, I was not prepared to argue that this amendment is 
broad enough to perhaps some day affect the editorial policy of the 
newspapers. I didn't come here particularly prepared to argue that 
point. But over the evening I read it again and read my remarks. I am 
prepared to say that I believe the Congress of the United States, if 
this amendment ever became law, will clearly then be able to determine 
how we can change freedom of speech in the manner described, and to 
what extent and when and who will be affected by our changes. I think 
where this amendment says that the amount of expenditures that may be 
made by, in support of, or in opposition to a candidate for nomination 
for election to a Federal office, and where it is said that you are 
able to put limitations on the amount of contributions that may be 
accepted, I believe it is entirely possible that some time out in the 
future, if this were in fact the law of the land, Congress could decide 
that a newspaper could only write one editorial a week on behalf of its 
favorite U.S. Senate candidate because they might equate that with an 
expenditure. In fact, they might be able to ask, what's the newspaper 
charging for advertising? And then they might say, when you write 
something in that paper about a candidate expressing your views, we are 
going to assume that it is worth at least the advertising costs of the 
paper.
  Now, frankly, I am giving you kind of a shirt-sleeve lawyer's 
opinion. But I can see out there in the future where, under the right 
circumstances, with a Congress that is being beaten up by newspapers, 
or perhaps the majority party being beaten up by newspapers or 
editorials on television, they might indeed decide that they are going 
to determine the expenditures that can be made and attempt to change 
our most protected basic right.
  Now, having said that I believe the first amendment guaranteeing free 
speech is the matrix of every other freedom we have, and the most 
fundamental and urgent application of free speech is to conduct 
campaigns for political office. Elections and campaigns that lead up to 
those elections are how the democratic process works. Therefore, I 
repeat, the amendment guaranteeing freedom of speech is the matrix of 
every other freedom because it is through the democratic process, the 
selection of candidates, perhaps even the selection of the philosophy 
or the ideology of candidates and parties, that decisions are made 
about our lives and are made about our future. And, therefore, freedom 
of speech, if controlled, can control that which affects our lives in a 
most profound way.
  I regret to say that while I am not one who comes to the floor very 
often and chooses to become popular at home by beating up on Congress--
in fact, I don't think I have done that very often in my life--I 
believe it is a mistake to put this power in the hands of a partisan 
Congress, with the potential for a President of the same party with a 
huge majority in the Congress, this absolute power to abridge freedom 
of speech and decide just how much can be spent by whom, what 
organizations can spend how much on which candidates. The power to 
determine how much a right-to-life organization can spend on behalf of 
its candidates or party, or its opposition organization in America, how 
much they can spend, and a myriad of other organizations that are out 
there trying to affect Government and how Government works and how we 
vote--for Congress to be able to regulate that means we are placing in 
the hands of Congress and a President of the party in control the 
absolute and unequivocal future destiny of the election process. They 
will determine it either directly or indirectly, just as certain as you 
write in black ink on white paper so that it will be most legible.

  Mr. McCONNELL. Will the Senator yield for a question?
  Mr. DOMENICI. Yes.
  Mr. McCONNELL. Since independent expenditures and so-called 
legislative

[[Page S2246]]

advocacy ads, which have been so widely condemned by the reformers, are 
constitutionally protected speech, doesn't the Senator think it is 
entirely possible that the Congress, given the power to control that 
speech by those outside groups, might decide to shut it off entirely, 
conclude there is nothing reasonable about any of those kinds of 
expressions, if this amendment were to be passed?
  Mr. DOMENICI. I think, given the right circumstances, that is 
entirely possible. I can dream up a scenario in my mind where it would 
probably be constitutional under this amendment. You could have a 
situation in the country where Congress would make a finding, which may 
be backed up by what's going out in society. Those kinds of 
expenditures could cause harm in America, at least to some major group 
that thought the unlimited use of propaganda --this is they would call 
it--has been harmful to the country, so they will say that we will have 
none of it.
  Let me say, that is one issue, it is clear to me, that in and of 
itself ought to cause us to say no to this amendment. I think there is 
even a more serious one. I guess I will choose to say, as my point No. 
2, that it's hard enough to win a fight with someone who buys paper by 
the ton and ink by the barrel. That leads me to ask, who uses freedom 
of speech most in the United States? Who does? The media of America. 
The media of America, be it the newspapers, radio, television, or 
whatever other media we have. That is the principal use of freedom of 
speech in the United States. They, combined, are the big makers of 
news. They are the ones who write the news, who talk the news, who 
present the issues on TV. Frankly, the media sets the agenda. They have 
even been called the ``fourth estate,'' meaning that we have three 
branches of government, and they are also a branch of government. Well, 
we say: Protect them.
  As a matter of fact, the U.S. Supreme Court, in a very historic case, 
New York Times versus Sullivan, a 1964 case, has even held that for a 
public personage to have a cause of action against the media, which has 
the right to freedom of speech, to have the right to sue because they 
told an untruth, you can't sustain a cause of action unless it is made 
with actual malice, with knowledge that the statement was false or with 
reckless disregard of whether it is false or not. That is how important 
we think that right is.

  Should it surprise anyone that those who use freedom of the speech in 
the press of America--that they have their prejudices? Should it 
surprise anyone that they pick and choose candidates? Should it 
surprise anyone that they have a philosophy? Should it surprise anyone, 
even though they are my good friends, that they are predominantly 
liberal and predominantly Democrats in terms of party affiliation? That 
just happens to be true. If they were without opinion and used no 
discretion, what good would they be as the fourth estate in America? 
For they would be dullsville, and nobody would care what they said. So 
they are not that. And they can really influence a candidate or an 
elected officer's future. They can even do it by neglect, if they 
choose. They can fail to cover what somebody does in their elected 
office because they, either directly or in some other way, are 
prejudiced by what Senator Jones from Kansas says, and so it doesn't 
appear in the newspapers in the State of Kansas. Or, at least in one 
chain perhaps, or at least, if that is too far-fetched, a certain 
reporter won't write about Senator Jones, and he is the reporter that 
writes the front page story all of the time. That is kind of the benign 
neglect of the media.
  What we know is happening in America is that we have moved away from 
editorial writing only appearing on the editorial pages of the paper. 
It now also is appearing in the stories in the media. TV has gone from 
just reporting news to interpreting the news and interpreting 
situations in America. News shows which do that abound. Should it 
surprise anyone that sometimes the media take a position in opposition 
to a President, in opposition to a Senator, in opposition to a party, 
in opposition to a philosophy of government?
  Mr. President, if that is the case, where is the candidate or elected 
officeholder going to get the resources to tell his side of the story? 
I know where they are getting that kind of resource today. They are 
getting it because people contribute to their campaign, and they run 
ads, or they buy time, or they put out brochures, or they get on a 
radio show and pay for the time. And they say, ``If the media and my 
opponent can get on and get free time, I want to get on and pay for 
it.'' Whatever the media puts on is their choice, and they are free to 
do as much as they want.
  I am not going to stand here and be critical of that. In fact, I am 
suggesting that they are important in this society. It leads me to the 
conclusion that they have a right to try to be effective in trying to 
change public opinion. When they do that and exercise that prerogative, 
they create a situation which in the combat over political ideas 
requires that, if you are going to respond and have a chance of being 
heard, you must compete either in ink, or in paper, or in voice over 
the radio network, or in your picture and voice on television. Or else, 
how can you get the message across?
  Having said that, I am absolutely convinced that while I stand here 
and give credence to the United States Congress having great authority, 
and I would even say that over history, I trust its collective wisdom, 
I can already in my time in the U.S. Senate find many occasions when I 
think we weren't very wise and we passed laws that weren't the very 
best. But even if I were to say over time that we perhaps come out on 
the wise side more times than not, I am not prepared to give the United 
States Congress the authority to control the destiny and the lives of 
political figures today or in the future when it comes to how much of 
their resources, or resources that others want to give to them, that 
they can use to make their case.
  I believe it is a greater and more frightening evil to control the 
opportunity for candidates to make their case through the exercise of 
free speech. That is a far more serious problem for America than the 
concern over too much campaign spending.
  We can pass reasonable rules and regulations regarding campaign 
contributions. Clearly we already have. We have limited PAC 
contributions. We have individual contributions limited. But when it 
comes to those things that the U.S. Supreme Court has already said are 
protected because they are political speech, isn't it interesting? Some 
people, including this Senator, had trouble understanding what they 
were talking about when they said that spending is equal to free 
speech. If you want to spend your money on a campaign, the use of that 
money is speech, they said. Well, I understand it now. I hope I have 
expressed it today. It is precisely what I have been talking about. For 
what other way than through the use of resources can you get your 
speech heard and exercise that freedom I speak of? How can you get your 
message out to the public if you are limited as to how much, or when, 
or which organization can spend how much in behalf of your candidacy, 
your position, or your ideology?

  So from my standpoint the issue is really very, very clear and very 
simple. We should not change the Constitution of the United States when 
it comes to that part of this protected speech that has to do with 
candidates and political parties getting their message across through 
the use of resources. Nothing, in my opinion, will suffice other than 
to leave the decision of what is needed and how it will be used in the 
hands of the person claiming the freedom. To place it in the hands of 
somebody else to determine for that person claiming that freedom will, 
in my opinion, render the freedom useless. For the more you try to tell 
somebody how to exercise their right to free speech and when they can 
exercise it, the more the freedom becomes a nonfreedom. It becomes 
control rather than opportunity to enter into combat in a way that is 
equal and able to meet any circumstance. I am fully aware that there 
are many other approaches that we can take to modifying our campaign 
laws. And some of those being discussed will be constitutional without 
this change.
  But I for one want to close today saying to the U.S. Senate, and to 
the people of the United States, do you really want Congress to be the 
one that manages by statute the use of this freedom, political freedom, 
the freedom of political parties and people running for office to use 
resources in a way that they

[[Page S2247]]

think is best to get their message out, their cause, and to exercise 
their rights?
  Mr. President, I want to make 5 points about this resolution and to 
make them clearly, strongly and simply.
  Point one: This is an attempt to make the unconstitutional 
constitutional.
  The first amendment guaranteeing free speech is the matrix of every 
other freedom we have.
  The most fundamental and urgent application of free speech is to 
conduct campaigns for political office.
  Elections and the campaigns leading up to those elections, after all, 
are how the democratic process works.
  Point two: It's hard enough to win a fight with someone who buys 
paper by the ton and ink by the barrel. This amendment would make it 
impossible to win that fight.
  The liberal news media exercises its free speech rights more than any 
other individual or entity in the United States. They are the Big 
Opinion Makers. They compose the editorials, write the news, talk the 
news, present the issues on TV. Frankly, they set the agenda.
  The media are the ones who exercise freedom of speech as it pertains 
to politics. They are on the airwaves every day. It used to be that 
there was political speech on the news at 6 p.m. and 10 p.m. In 1997, 
there is news at 6 a.m., 7 a.m., noon, 4 p.m., 5 p.m., 6 p.m., 10 p.m., 
and 11 p.m. on the regular channels. We also have numerous 24-hour news 
channels.
  No one would tolerate a suggestion that reporting and editorializing 
should be censored or otherwise limited or that there should be--to use 
the language of the proposed amendment --``reasonable limits.''
  All of the political speech contained on the news is protected. In 
New York Times versus Sullivan (1964) the Supreme Court held that 
public officials could maintain defamation actions only upon proof that 
the media's statement was made with ``actual malice'' defined by the 
Court as made ``with knowledge that it [the statement] was false or 
with reckless disregard of whether it was false or not.'' As a result, 
the ``comfort zone of protection'' given to a political figure or 
candidate for public office under the defamation actions for libel and 
slander is very small. Public figures are given little protection.
  Defamation stands virtually alone in the 20th century tort law. Every 
other major substantive area has expanded a plaintiff's right to 
recover, while in defamation the balance has shifted, and quite 
dramatically, in favor of the media defendant.
  Point three: Government rationing of political speech by candidates 
will increase the power of the media, which has an unlimited free 
speech right.
  The makers of the Constitution, influenced not only by their own 
experience but also by theorists such as Montesquieu, consciously 
provided for allocation of national authority among the executive, the 
legislative and the judicial branches. By insisting upon separation of 
powers, the Framers sought to protect against tyranny. Over the years, 
the media has emerged as the fourth branch of Government. Creating an 
elite of those with unlimited free speech will dangerously upset the 
balance of power and make the Fourth Estate the most powerful. This 
runs contrary to our fundamental notions of freedom and effective 
democracy.
  The members of the fourth estate are mere mortals and they have 
strong biases.
  Reporters are opinionated. Arguably, they are the most politically 
homogenous and biased group in American politics today. Most studies of 
media voting behavior show 9 out of 10 reporters and editors voting for 
liberal Democratic candidates. And the media coverage mimics the 
media's voting pattern.
  A study by the Center for Media and Public Affairs, a nonpartisan 
Washington research group, shows that TV coverage overwhelmingly 
favored President Clinton this past election season.
  In September, Clinton received 54 percent positive coverage on the 
networks' evening news programs, compared with only 30 percent for Bob 
Dole. The networks criticized Dole's economic views 81 percent of the 
time, his social policies 78 percent of the time; and his conduct as a 
candidate 81 percent of the time. Yet, voters view the media as 
balanced.
  We have TV commentators who criticize ideology, personalities, and 
lifestyle. Yet, the quantity, quality, and content of the media 
programs and articles are totally protected and unrestricted.
  A paper could editorialize every day of the week, every week of the 
year against a candidate. If an elected official or candidate wants to 
respond, he has to buy an ad. He has to make an expenditure.
  At the other extreme, a Senator could toil tirelessly day in and day 
out in meetings, in committee, on the Senate floor. An unfriendly paper 
could ignore his efforts during his entire term. If that Senator wants 
to let voters know of his accomplishments he has to buy an ad. He has 
to make an expenditure to compensate for the medias' benign neglect of 
his efforts. The Supreme Court is correct, free speech is a fundamental 
right essential to getting reelected. The Constitution is right to 
protect this fundamental right.
  My question to Senators is: Do you really think it is wise to 
exclusively vest the power of unlimited speech in the fourth branch? If 
the Founding Fathers were wise enough to resist tyranny by requiring a 
balance of power among the branches that existed when they wrote the 
Constitution, we should recognize this amendment as a bald-faced 
attempt to shift the balance of power from the candidates involved in 
the legislative and executive branches, over to the media. In practical 
terms this reserves to the media the control of freedom itself.
  The ACLU has called this proposal a recipe for disaster. This 
amendment makes mincemeat out of the first amendment. Mincemeat belongs 
on a menu, not in the Constitution.
  Point four: Being an incumbent is a formidable advantage and this 
amendment would make this advantage insurmountable.
  Spending is the way challengers combat the inherent advantages of 
incumbency, such as name recognition, access to media, and franked 
mail.
  Besides, the most important and plentiful money spent for political 
purposes is call the Federal budget--$1.6 trillion and rising.
  Federal spending--along with the myriad regulations and subsidizing 
activities such as protectionist measures--often amounts to vote-
buying.
  Write a tax bill and wealth is redistributed.
  This amendment will allow incumbents to write limits on campaign 
spending. These limits, when coupled with the inherent advantages of 
incumbency, will make it more difficult for challengers to compete.
  History gave us 40 years of House control by Democrats. If this 
amendment had been law, the ``reasonable'' limits would have been 
written decade after decade in a self-preserving fashion to favor the 
ruling party. Is there any doubt that the spending limits would give 
any challenger a fighting chance?
  Point five: When amending the constitution, err on the side of 
caution--you better be very careful.
  Mr. President, today truly is a remarkable day. In the name of 
``campaign finance reform,'' some of our distinguished colleagues have 
come to the floor to offer a resolution which strikes at the very heart 
of one of the fundamental freedoms the Founding Fathers of this great 
Nation sought to protect. While I agree that our campaign finance laws 
are in need of change, amending the first amendment to allow the 
Government to restrict political speech simply is not the way to reform 
the system.
  The authors of the first amendment were very straightforward: 
``Congress shall make no law * * * abridging the freedom of speech.''
  Mr. President, surely none of us here today agrees with all of the 
``speech'' people in this county make, especially in this town. I don't 
like the fact that pornography exists. I don't like violence on TV But 
regardless of what I like, the first amendment protects this type of 
speech. While the protections of the first amendment are not absolute 
in all circumstances--we all know that the amendment does not protect 
one's right to yell ``fire'' in a crowded theater--the right to free 
speech is nearly

[[Page S2248]]

absolute when that speech is directed toward the political process.
  Throughout its jurisprudence, the Supreme Court has reaffirmed this 
notion time and time again. In recounting the history of the first 
amendment, the Court in the past has observed that: ``there is 
practically universal agreement that a major purpose of the first 
amendment was to protect the free discussion of governmental affairs * 
* * of course including discussions of candidates.'' The Court also has 
noted that: ``It can hardly be doubted that the constitutional 
guarantee [of the right to free speech] has its fullest and most urgent 
application precisely to the conduct for campaigns for political 
office.''
  The Court extended these principles to campaign spending in the 
Buckley case and held that restrictions on campaign expenditures are 
improper under the first amendment. The Court's decision can be summed 
up very simply: restrictions on the resources needed to make political 
speech heard are restrictions on political speech itself. As the Court 
has said, ``the distribution of the humblest handbill'' costs money and 
the Court consistently and properly has refused to make a distinction 
between the humble handbill and other forms of political speech. They 
all deserve first amendment protection.
  The authors of this proposal are not so straightforward. It will 
regulate who may speak, when, where, for how long, and for what 
purpose.
  For some, this debate will be about the wisdom of the Supreme Court's 
decision in the Buckley case and those decisions which followed it. 
Supporters of this amendment believe that, if spending equals speech, 
then only those with a lot of money will be able to participate in the 
political process.
  I look at the problem from a different perspective: is it at all 
proper to amend the organic law of this land to allow the Government to 
begin regulating the political speech of individuals and groups? It 
runs contrary to the spirit of the entire Constitution to answer that 
question in the affirmative.
  Thomas Jefferson once wrote that ``there are rights which it is 
useless to surrender to the government, and which governments yet have 
always sought to invade. Among these are the rights of thinking and 
publishing our thoughts by speaking and writing.'' This amendment would 
be the first step toward surrender, the first step toward putting the 
Federal Government in control of all political speech in America.
  Let us take a look at the language of the proposed amendment, because 
there are two areas which I believe need to be mentioned.
  First, the resolution gives Congress the power to set reasonable 
limits on campaign contributions and expenditures. Proponents of this 
amendment and campaign finance reform bills like McCain-Feingold claim 
that the current system favors wealthy candidates and protects 
incumbents able to raise large amounts of money because of their name 
recognition, seniority or membership on important committees.
  Yet--under this amendment--who would be responsible for making the 
initial determination of what is ``reasonable''? Incumbents. Members of 
Congress. Setting aside whether it is at all wise to allow the 
Government to regulate political speech, I also wonder whether this 
amendment would accomplish the goals many of its supporters would hope 
for. Government micromanagement of political speech, particularly by 
those already entrenched in government, to me seems like a recipe for 
more of the same problems we currently face.

  The proposed amendment also allows Congress to regulate contributions 
and expenditures ``made by, in support of, or in opposition to'' a 
candidate. Under this language, Congress can regulate the political 
speech of candidates, parties, individuals and groups. One group that 
apparently remains unregulatable is the media. By limiting all 
political speech, except that by the media, the role and importance of 
the media in the political process would grow exponentially. I have 
already discussed that. Yet despite the power it would provide to the 
press, the Washington Post and New York Times oppose this amendment. I 
think I know why.
  The first amendment is at the heart of the basic freedoms all 
Americans enjoy, including the freedom to promote one's political 
views. If we amend the first amendment to limit the political speech of 
candidates and parties, what is to stop us from amending the press's 
free speech rights if we become unhappy with their role?
  While we all have felt the sting of a harsh editorial on the pages of 
a State or national newspaper, I do not believe that any of us feel 
comfortable with the possibility that Congress could be in the business 
of regulating the content of newspapers. Yet that seems like the 
logical next step if this amendment were to pass.
  I understand my colleagues on the other side of this issue who seek 
to ``level the playing field'' or make the campaign finance system more 
equitable for all participants in the political process. We all would 
like to see candidates unburdened by the ``money chase'' and campaigns 
free of excessive negative ads. But this is not the way for us to get 
our house in order.
  President Eisenhower once told Congress that ``freedom has been 
defined as the opportunity for self-discipline * * * Should we 
persistently fail to discipline ourselves, eventually there will be 
increasing pressure on government to redress the failure. By that 
process freedom will step by step disappear.'' I think that comment 
sums up where we are headed with this amendment.
  As politicians, we have failed to bring discipline to the campaign 
process. Rather than give in to the pressure to redress our failure by 
restricting the freedoms offered by the first amendment, I believe that 
we should look to other, less onerous, means to achieve our goals. I 
support reasonable campaign finance reform legislation, and have done 
so in the past. But this proposal goes way beyond reform. It makes 
mincemeat of the first amendment.
  If the concern is that money corrupts and a lot of money corrupts 
absolutely, there are steps that can be taken that don't require 
amending the Constitution. Full disclosure is a good way to provide 
good government.
  I urge my colleagues to reject this amendment.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I thank my distinguished colleague from 
New Mexico for an outstanding speech. I think he is right on the mark. 
The issue here is who is going to control political discourse in this 
country. And the Supreme Court has said no one may do that. That is 
protected first amendment speech.

  I just wish to thank my good friend from New Mexico for his thoughts 
on the first amendment and say I agree with him entirely.
  Mr. DOMENICI. Might I ask the Senator a question?
  Mr. McCONNELL. Yes.
  Mr. DOMENICI. I alluded to a couple of organizations that are openly 
engaged in trying to get their points across with the electorate and 
with those seeking election. Are there a number of groups that are 
involved in that kind of activity with the American people and with 
candidates that have expressed their views on this amendment?
  Mr. McCONNELL. There certainly are, I say to my friend from New 
Mexico. There are periodic meetings in my office with a coalition in 
defense of the first amendment that includes a set of groups that have 
never met each other before. On the left, the American Civil Liberties 
Union and the National Education Association; on the right, Right to 
Life, Christian Coalition, and all shades of philosophies in between, 
all of whom have one thing in common--they do not want Congress to push 
them out, do not want them to push them off the playing field and keep 
them from participating in American elections.
  So this coalition is very active. You would think, listening to the 
broadcast media and reading the Washington Post, that there was nobody 
on the other side of this debate, that Common Cause was the only 
conscience out there pressing for these kinds of reforms. Ironically, 
Common Cause is against the Hollings constitutional amendment as well. 
But there is a broad coalition, I would say to my friend from New 
Mexico. They are very active, very involved, and do not intend to be 
taken off the playing field.

[[Page S2249]]

  Mr. DOMENICI. Does the Senator have any idea why they would be 
opposed to it? Can the Senator express what they said to him?
  Mr. McCONNELL. What they say is they believe the Supreme Court was 
correct when it said they had a right to support or oppose whomever 
they choose in the American political system. They know that if 
Congress is given the power, either through a constitutional amendment 
or through a measure such as McCain-Feingold, their voices will be 
quieted, their ability to participate will be capped, limited. They are 
quite concerned about that and feel that this is not a step in the 
right direction, that in fact it is the worst possible thing you can 
do. If you look out at America, we are a seething cauldron of 
interests. The Founding Fathers envisioned that. The Supreme Court has 
made it clear that all those interests have an opportunity, a right, a 
constitutional right to participate in the American political system, 
and these groups don't want to be pushed out. They think their causes 
are important. They want to be able to advocate them. They want to be 
able to support whomever they choose.
  Mr. DOMENICI. So it seems to me that if the National Education 
Association opposes this amendment and the National Rifle Association 
opposes this amendment, then they must be saying that if this were the 
law of the land, that some Congress in the future could do violence to 
one or the other of them in terms of their promoting their cause with 
the American people and with candidates. In fact, they must be worried 
about whether there might be some picking and choosing among those who 
might have the right to promote or to participate in the process of 
trying to influence candidates and elections. Is that not correct?
  Mr. McCONNELL. That is absolutely the case, I say to my friend from 
New Mexico. They fear that a Congress, that a future Congress, will try 
to quiet their voices, to push them out of the process, to make it 
impossible for them to support candidates of their choice. We know that 
there are schemes around to do that. There is a bill that we will be 
debating this year absolutely designed to put a limit on how many 
people can participate. So their fear is well-founded, I say to my 
friend from New Mexico.
  Mr. DOMENICI. Mr. President, I just want to continue for a couple 
more minutes. I thought I was finished but I am prompted to say I am 
not.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Am I recognized, Mr. President?
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. I thank the Chair.
  I am not here saying that Congress absolutely would do this, that 
this would be something that we could just expect in ordinary times, 
but I believe bad laws are made in unordinary times. I believe bad laws 
are made when things are not going well and somebody decides that they 
know why they are not going well. That is why I am reluctant to say 
Congress, over the scheme of history, would not act in some almost 
aberrational way to limit speech if things just were not going right 
and it was their decision there was just too much going on out there in 
the political arena. Those kinds of things have happened in our 
history. They have happened and you look back and say, how could it 
have happened? Historians say all of these different things came 
together at the same time and, of course, some people thought they knew 
precisely why and they acted accordingly.
  Now, I also commented about the media collectively as being the big 
user of this freedom and, indeed, I think that is a fair statement. 
Frankly, I do not think anybody individually within that collective 
media would question this statement. They are not always right either. 
They are not always right in their conclusions, individually and 
collectively. Even if they are not disposed to be philosophically one 
way or another, they are frequently wrong. And yet their wrongness is 
protected by the Constitution. The quantity of that is protected in 
that if they have enough money and own enough papers, they can be as 
big as they want. Or if they happen to be a personality that now gets 
on the nightly news and has reached an esteemed position, then clearly 
they can say what they like and it becomes kind of what people think, 
what people talk about the next day. And they might be wrong.
  So it seems to me that when you put all that together, you do not 
want to change that. That is a great part of America. We want to live 
with that. Some of us do not think that Congress ought, with that being 
the reality, to have the authority to say how much you can spend in a 
campaign to tell your side of those same facts that others are pushing 
on the public either through the exercise of their right or by 
campaigning and being in the political arena.
  I yield the floor.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. Mr. President, I thank the Senator from New Mexico for 
a very important contribution to this debate.
  Mr. HOLLINGS addressed the Chair.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. I thank the distinguished Presiding Officer.
  Mr. President, the Senator from Rhode Island has been in the Chamber 
waiting to be recognized, so I will just take a few moments and ask 
unanimous consent to insert in the Record the ``American Constitutional 
Law Restatement on the Freedom of Speech,'' by Laurence Tribe, Ralph S. 
Tyler, Jr. Professor of Constitutional Law at Harvard University.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Excerpt From ``American Constitutional Law''

(By Laurence H. Tribe)

                           *   *   *   *   *



                      COMMUNICATION AND EXPRESSION

     Sec. 12-2. The Two Ways in Which Government Might ``Abridge'' 
       Speech--And the Two Corresponding ``Tracks'' of First 
       Amendment Analysis

       Government can ``abridge'' speech in either of two ways. 
     First, government can aim at ideas or information, in the 
     sense of singling out actions for government control or 
     penalty either (a) because the specific message or viewpoint 
     such actions express, or (b) because of the effects produced 
     by awareness of the information or ideas such actions impart. 
     Government punishment of publications critical of the state 
     would illustrate (a), as would government discharge of public 
     employees found in possession of ``subversive'' literature. 
     Government prohibition of any act making consumers aware of 
     the prices of over-the-counter drugs would illustrate (b), as 
     would a ban on the teaching of a foreign language or a 
     prohibition against discussing a political candidate on the 
     last day of an election. Second, without aiming at ideas or 
     information in either of the above senses, government can 
     constrict the flow of information and ideas while pursuing 
     other goals, either (a) by limiting an activity through which 
     information and ideas might be conveyed, or (b) by enforcing 
     rules compliance with which might discourage the 
     communication of ideas or information. Government 
     prohibitions against loudspeakers in residential areas would 
     illustrate (a). Governmental demands for testimony before 
     grand juries notwithstanding the desire of informants to 
     remain anonymous would illustrate (b), as would ceilings on 
     campaign contributions. The first form of abridgment may be 
     summarized as encompassing government actions aimed at 
     communicative impact; the second, as encompassing government 
     actions aimed at noncommunicative impact but nonetheless 
     having adverse effects on communicative opportunity.
       Any adverse government action aimed at communicative impact 
     is presumptively at odds with the first amendment. For if the 
     constitutional guarantee means anything, it means that, 
     ordinarily at least, ``government has no power to restrict 
     expression because of its message, its ideas, its subject 
     matter, or its content * * *.'' And if the constitutional 
     guarantee is not to be trivialized, it must mean that 
     government cannot justify restrictions on free expression by 
     reference to the adverse consequences of allowing certain 
     ideas or information to enter the realm of discussion and 
     awareness. Whatever might in theory be said either way, the 
     choice between ``the dangers of suppressing information and 
     the dangers of its misuse if it is freely available'' is, 
     ultimately, a choice ``that the First Amendment makes for 
     us.''
       A government action belonging to the second category is of 
     a different order altogether. If it is thought intolerable 
     for government to ban all distribution of handbills in order 
     to combat litter, for example, the objection must be that the 
     values of free expression are more important constitutionally 
     than those of clean streets at low cost; if a ban on noisy 
     picketing in a hospital zone is acceptable, the reason must 
     be that the harmful consequences of this particular

[[Page S2250]]

     form of expressive behavior, quite apart from any ideas it 
     might convey, outweigh the good. Where government aims at the 
     noncommunicative impact of an act, the correct result in any 
     particular case thus reflects some ``balancing'' of the 
     competing interests; regulatory choices aimed at harms not 
     caused by ideas or information as such are acceptable so long 
     as they do not unduly constrict the flow of information and 
     ideas. In such cases, the first amendment does not make the 
     choice, but instead requires a ``thumb'' on the scale to 
     assure that the balance struck in any particular situation 
     properly reflects the central position of free expression in 
     the constitutional scheme.
       The Supreme Court has evolved two distinct approaches to 
     the resolution of first amendment claims; the two correspond 
     to the two ways in which government may ``abridge'' speech. 
     If a government regulation is aimed at the communicative 
     impact of an act, analysis should proceed along what we will 
     call track one. On that track, a regulation is 
     unconstitutional unless government shows that the message 
     being suppressed poses a ``clear and present danger,'' 
     constitutes a defamatory falsehood, or otherwise falls on the 
     unprotected side of one of the lines the Court has drawn 
     to distinguish those expressive acts privileged by the 
     first amendment from those open to government regulation 
     with only minimal due process scrutiny. If a government 
     regulation is aimed at the noncommunicative impact of an 
     act, its analysis proceeds on what we will call track two. 
     On that track, a regulation is constitutional, even as 
     applied to expressive conduct, so long as it does not 
     unduly constrict the flow of information and ideas. On 
     track two, the ``balance'' between the values of freedom 
     of expression and the government's regulatory interests is 
     struck on a case-by-case basis, guided by whatever 
     unifying principles may be articulated.
       A recurring debate in first amendment jurisprudence has 
     been whether first amendment rights are ``absolute'' in the 
     sense that government may not ``abridge'' them at all, or 
     whether the first amendment requires the ``balancing'' of 
     competing interests in the sense that free speech values and 
     the government's competing justifications must be isolated 
     and weighed in each case. The two poles of this debate are 
     best understood as corresponding to the two approaches, track 
     one and track two; on the first, the absolutists essentially 
     prevail; on the second, the balancers are by and large 
     victorious. While the ``absolutes''--``balancing'' 
     controversy may have been ``unfortunate, misleading and 
     unnecessary,'' it has generated several important 
     observations. First, the ``balancers'' are right in 
     concluding that it is impossible to escape the task of 
     weighing the competing considerations. Although only the 
     case-by-case approach of track two takes the form of an 
     explicit evaluation of the importance of the governmental 
     interests said to justify each challenged regulation, similar 
     judgments underlie the categorical definitions on track one. 
     Any exclusion of a class of activities from first amendment 
     safeguards represents an implicit conclusion that the 
     governmental interests in regulating those activities are 
     such as to justify whatever limitation is thereby placed on 
     the free expression of ideas. Thus, determinations of the 
     reach of first amendment protections on either track 
     presuppose some form of ``balancing'' whether or not they 
     appear to do so. The question is whether the ``balance'' 
     should be struck for all cases in the process of framing 
     particular categorical definitions, or whether the 
     ``balance'' should be calibrated anew on a case-by-case 
     basis.
       The ``absolutists'' may well have been right in believing 
     that their approach was better calculated to protect freedoms 
     of expression, especially in times of crisis. If the judicial 
     branch is to protect dissenters from a majority's tyranny, it 
     cannot be satisfied with a process of review that requires a 
     court to assess after each incident a myriad of facts, to 
     guess at the risks created by expressive conduct, and to 
     assign a specific value to the hard-to-measure worth of 
     particular instances of free expression. The results of any 
     such process of review will be some ``famous victories'' for 
     the cause of free expression, but will leave no one very sure 
     that any particular expressive act will find a constitutional 
     shield. When the Supreme Court draws categorical lines, 
     creating rules of privilege defined in terms of a few factors 
     largely independent of context, judicial authority speaks 
     directly to the legislature by means of a facial examination 
     of laws without regard to the context in which they are 
     applied. And categorical rules, by drawing clear lines, are 
     usually less open to manipulation because they leave less 
     room for the prejudices of the factfinder to insinuate 
     themselves into a decision. The jury after all is a 
     majoritarian institution, and judges historically have been 
     drawn from more conservative groups. Categorical rules thus 
     tend to protect the system of free expression better because 
     they are more likely to work in spite of the defects in the 
     human machinery on which we must rely to preserve fundamental 
     liberties. The balancing approach is contrastingly a slippery 
     slope; once an issue is seen as a matter of degree, first 
     amendment protections become especially reliant on the 
     sympathetic administration of the law.
       On track two, when government does not seek to suppress any 
     idea or message as such, there seems little escape from this 
     quagmire of ad hoc judgment, although a few categorical rules 
     are possible. But on track one, when the government's concern 
     is with message content, it has proven both possible and 
     necessary to proceed categorically.

  Mr. HOLLINGS. Mr. President, this explains the subjects outside our 
first amendment protections. It mentions the Sullivan case, New York 
Times, and others.
  One. We are not talking here about free speech. We are talking about 
paid speech. My amendment reads ``expenditures.'' It has nothing to do 
with the free press. The very horrors that are mentioned could happen 
today, and in fact, happened to this particular Senator in his race for 
reelection back in 1992 with the Wall Street Journal.
  I will get into that in depth, but I am delighted at this time, Mr. 
President, to yield, and I hope the Senator from Rhode Island can be 
recognized.
  Mr. REED addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Rhode 
Island.
  Mr. REED. Mr. President, I rise this afternoon in support of the 
Hollings amendment which I think is a wonderful first step to begin to 
reform our campaign finance system. As many of my distinguished 
colleagues have mentioned in the course of this debate, at any time 
when you attempt to amend the Constitution of the United States, you do 
so with trepidation. This is the fundamental organic document of our 
Government. It deserves great respect and reverence, and we do not do 
this lightly.
  But today we are facing a crisis of public confidence in the 
democratic order in the United States with respect to campaign finance 
reform. If the Constitution and the Court had remained silent on this 
issue, we would not be here today. But the Court has spoken, first in 
the case of Buckley versus Valeo, several years ago, and in its 
progeny. Their voice has concluded, and some would argue not correctly, 
but concluded that the first amendment prevents Congress from imposing 
limits on campaign expenditures.
  If the Court refuses to reassess its ruling, we have no choice but to 
propose to the people of the United States that in their wisdom they 
consider an amendment to the Constitution of the United States, and 
that is why we are here today. We are not doing this in a vacuum. We 
are doing this because of a crisis in confidence by the public.
  To be kind, the public is disenchanted with the American political 
system, particularly the American political campaign finance system. 
They see far too much money going to campaigns. They are concerned that 
this money is extracting special interest favors. All of this 
undermines a sense of democracy, a sense of participation, a sense of 
what it is to be a citizen in this great country. Last year's election 
saw record fundraising and record expenditures. An unprecedented $2.7 
billion was spent in Federal elections last year, three times the 
amount that was spent the year the Buckley versus Valeo case was 
decided. As this money is poured in, the public is becoming 
increasingly disenchanted and increasingly disenfranchised from the 
process.
  In a 1992 poll, 84 percent of the electorate stated that Congress was 
owned by special interests, a direct reflection, I think, of the 
perception of how the campaign finance system may work. For the first 
time in decades, last year's Presidential elections saw less than half 
of the eligible voters going to the polls to register their votes. The 
American public sees a great problem. Months ago, in the Washington 
Post, 80 percent of those surveyed indicated there was too much money 
in campaigns and favored the adoption of campaign spending limits.
  For the well-being of our democracy, for the confidence we must have 
of its citizens, as we go about doing our work, I feel this amendment 
is in order and indeed must be enacted.
  As I mentioned before, the great stumbling block to effective limits 
on campaign expenditures is the Supreme Court decision in Buckley 
versus Valeo. At the core of that 1976 decision, there is this 
language:

       The first amendment denies Government the power to 
     determine that spending to promote one's political views is 
     wasteful, excessive, or unwise. 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.


[[Page S2251]]


  That seems to be the core sense of why the Court decided it. But I 
suggest the notion that citizens and even candidates are controlling 
the system today has been overwhelmed by events, overwhelmed by an 
avalanche of money coming into political campaigns. In fact, the system 
that was created under Buckley versus Valeo has collapsed, in effect, 
inundated by independent expenditures, special interest expenditures, 
money by the torrent coming into campaigns. It is not surprising, then, 
that the Washington Post detailed that the special interests coming 
into a campaign in Pennsylvania's 21st Congressional District outspent 
either one of the candidates. In effect, the candidates control neither 
the dialog nor the issues; it was outside forces, some of them 
anonymous or at least ambiguous.

  All of this contributed not to what we think an election should be 
about, two candidates or several candidates presenting their ideas, 
arguing eloquently, reaching out to people. In effect, the candidates 
became a sideshow. It was the battle between special interests. That is 
not what the American people want to see in their elections, and if we 
are to control that and constrain that, we must have, in this 
particular moment, a constitutional amendment to do so.
  The issue about the Buckley versus Valeo decision is one that 
constrained our thought about campaign financing for many, many years. 
My colleagues in this body have offered many proposals, legislatively, 
to correct it. There is the Feingold-McCain bill. There is other 
legislation. Leader Daschle has introduced legislation. I support all 
of these. But my fear is if we adopt any one of them, and I hope we do 
adopt campaign finance reform legislatively, the ingenuity and 
creativity of lawyers and consultants will find ways around it, simply 
because ultimately we cannot control the amount of money going into 
campaigns. This amendment will give us that authority.
  The concept, also, that unlimited spending is good, I think, has to 
be looked at very skeptically. Unlimited spending can drown out free 
speech, can squelch someone who does not have the resources to compete. 
It may not, in fact, always advance the concept of a free exchange of 
ideas in an electoral campaign.
  Many of our leading constitutional scholars, in fact, have reached 
this conclusion. Paul Freund, the distinguished professor at Harvard 
Law School wrote:

       Campaign contributors are operating vicariously through the 
     power of their purse, rather than through the power of their 
     ideas. I would scale that relatively lower in the hierarchy 
     of First Amendment values. We are dealing here not so much 
     with the right of personal expression or even association, 
     but with dollars and decibels, and just as the volume of 
     sounds may be limited by law, so may the volume of dollars, 
     without violating the First Amendment.

  Judge Skelly Wright, one of our most distinguished jurists wrote:

       Nothing in the First Amendment commits us to the dogma that 
     money is speech. Far from stifling First Amendment values, 
     campaign limits actually promote them. In place of unlimited 
     spending, limits encourage all to emphasize less expensive, 
     face-to-face communications, exactly the kind of activities 
     that promote real dialogue and leave much less room for 
     manipulation and avoidance of the issues.

  In the words of a distinguished New York School of Law professor, 
Ronald Dworkin:

       The Buckley decision was a mistake, unsupported by 
     precedent and contrary to the best understanding of prior 
     first amendment jurisprudence. It misunderstood not only what 
     free speech really is, but what it really means for free 
     people to govern themselves.

  All these experts would conclude that Buckley versus Valeo in effect 
is wrong. But Buckley versus Valeo as it stands today is the law and, 
recognizing that, we are attempting to give the people of this country 
a chance, through the amendment process, to change that decision, that 
position of the Court.
  If you look at Buckley versus Valeo, though, perhaps the best 
argument I found against it was contained within the very confines of 
the decision. It was the dissenting opinion of Justice White. I do not 
think anyone has to vouch for Justice White's fidelity to the first 
amendment and the values that it holds that are dear to us all. First 
of all, time has proven Justice White to be very perceptive, indeed 
prophetic. Because he wrote:

       Without limits on total expenditures, campaign costs will 
     inevitably and endlessly escalate, pressure to raise funds 
     will constantly build, and with it the temptation to resort 
     to those sources of large sums, who, history shows, are 
     sufficiently confident of not being caught to risk flouting 
     contribution limits.

  This is in 1976. Again, recall, since he wrote those words, campaign 
spending has tripled.
  He also went on to add:

       I have little doubt that limiting the total that can be 
     spent will ease the candidate's understandable obsession with 
     fundraising and so free him and his staff to communicate in 
     more places and ways unconnected with the fundraising 
     function. I regret that, by rejecting a limit, the Court has 
     returned them all to the treadmill.

  I would argue there is no one here in this body who would suggest 
that that treadmill is not still there.
  I have heard in the debate notions about how this would infringe on 
treasured values of the first amendment. But Justice White, in his 
opinion, pointed out that this is not a unique issue, that the limiting 
of the quantity of speech is done routinely.
  As he said:

       Compulsory bargaining and the right to strike, both 
     provided for or protected by Federal law, inevitably have 
     increased the labor costs of those who publish newspapers. 
     Federal and State taxation directly removes from company 
     coffers large amounts of money that might be spent on larger 
     and better newspapers. But it has not been suggested, nor 
     could it be successfully, that these laws, and many others, 
     are invalid because they siphon off or prevent the 
     accumulation of large sums that would otherwise be available 
     for communicative activities.

  We do on a routine basis require newspapers, the great champions of 
the first amendment, the most vociferous defenders of the first 
amendment, to comply with laws that effectively limit the quantity of 
speech that they can put out. So this notion that what we are doing 
today trods on the sacred core of the first amendment, I do not think 
is right.
  Indeed, I think we would be better off to have the Court reassess its 
opinion of Buckley and find that these limits are appropriate under the 
first amendment. But today, we are left with presenting to the American 
people the opportunity to make that judgment. I hope that, as I said, 
Buckley could be reviewed and indeed be recognized by the Court to be 
inappropriate based on the facts today. They have the authority to do 
that.
  We have the authority to present to the American public this 
constitutional amendment. I urge that we do so.
  I want to commend the sponsor, Senator Hollings, for his leadership, 
for his perception of the issue, and for his unflinching commitment to 
develop a campaign finance system that is fair to all.
  One last point. I have also heard in this debate the notion that this 
Congress would impose irresponsible and reckless limits. In reality, 
any limits we impose we would all have to recognize and work within. 
They would be the same as applied to Republican candidates or 
Democratic candidates. They would limit the amount of money that right-
wing, special-interest groups could put in or left-wing, special-
interest groups could put in.
  They would, in effect, return our elections to the democratic process 
that our citizens believe we should have, a process by which they can 
listen to the voices of the candidates, they can communicate their 
views, they can, in effect, not be drowned out by an avalanche of money 
and 30-second sound bites. In fact, an election can be a dialog about 
democracy and not about who raises how much money. I urge my colleagues 
to support this amendment.
  Again, I commend the Senator for his great leadership.
  Mr. HOLLINGS addressed the Chair.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from South 
Carolina.
  Mr. HOLLINGS. I will yield in a second to the distinguished Senator 
from Washington.
  I want to thank the distinguished Senator from Rhode Island. He was 
tortured with the same problem as a Member of the House. As a good old 
West Point graduate and with the discipline and the analytical approach 
that he has learned over the many years in public service, we really 
appreciate his contribution here today.

[[Page S2252]]

  Mr. REED. Thank you.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Washington.
  Mr. GORTON. Mr. President, Senate Joint Resolution 18 almost 
certainly represents the most serious and fundamental attack on first 
amendment rights of free speech in the 210-year history of that first 
amendment.
  Senate Joint Resolution 18 is not aimed at the entire ambit of free 
speech rights. It in no way grants Congress authority over obscenity, 
over beer advertising, over fine arts. It is focused solely on allowing 
the Congress sweeping authority over the freedom of political speech, 
not just of politicians but of all citizens and of the news media that 
serve those citizens.

  The first Congress of the United States responded to the most serious 
objection to the ratification of our Constitution that was presented 
during those ratification debates--the absence of a bill of rights and, 
most particularly, the absence of a constitutional guarantee of free 
speech.
  When James Madison and his colleagues drafted the first amendment and 
worked on its protection of free speech, they were not concerned, Mr. 
President, about defending obscenity. They were not concerned with 
limitations on beer advertising. They were not concerned with 
playwrights. They were concerned with debate over the political future 
of the people of the United States of America.
  They believed, as did almost all of the citizens who worried about a 
new Constitution, that the new Government might, like its British 
predecessors, attempt to gag newspapers and individuals in their 
pursuit of a free and open debate over matters political. So they wrote 
a first amendment that was unconditional in that respect. They wrote a 
first amendment that said, ``Congress shall make no law . . . abridging 
the freedom of speech . . .'' They did not write, as this resolution 
would, in paraphrase, ``Congress shall make no law abridging the 
freedom of speech except such restrictions as Congress may deem 
reasonable.''
  Mr. President, you and I and all the other Members of this body and 
every American who has ever run for office recognizes that, other than 
that vitally important meeting of people as individuals on a one-to-one 
basis, doorbelling, canvassing, and the like, important even to those 
of us who run for the U.S. Senate but obviously an impossible tactic 
when one represents hundreds of thousands or millions of voters, that 
there are fundamentally four ways in which we can communicate political 
ideas in the course of the campaign to the people who are constituents 
or whom we seek to represent.
  The first of those, Mr. President, is through our own campaign 
committees. ``Gorton '94,'' ``McConnell '96,'' ``Hollings '98,'' 
formally organized and set up, receiving campaign contributions, 
writing advertisements, scheduling the candidates, doing so in a fairly 
transparent fashion. That is the first one.
  The second way which our ideas can be communicated to those whom we 
seek to represent is through the party organizations with which we are 
affiliated. All candidates for Federal office are members of organized 
political parties. Most candidates for State office and many for local 
office are as well. In fact, in almost every State the only identifier 
on the ballot in addition to the name of the candidate is the political 
party that candidate identifies with. So the Republican Party and the 
Democratic Party, and the Socialist Worker Party also, involves itself 
in campaigns communicating en mass in the ways that they consider to be 
most effective with the voters.
  The third way of communicating political ideas, Mr. President, is by 
the independent activity of individuals or organizations who are not, 
under most circumstances, directly connected with either the candidate 
or with any political party but who have a vital interest, on behalf of 
themselves as individuals or as members of organizations in which they 
are a part in the political future of the country, in who is elected to 
particular offices.
  As I say, they may be individuals, they may be very wealthy 
individuals, they may be organizations from one end of the political 
spectrum to another, but they communicate quite freely and without any 
censorship from Congress their ideas about political elections, their 
support for candidates, their opposition to candidates.
  Finally, the fourth way in which political ideas about elections get 
to the voters is through our mass media--through radio, television and 
the newspapers--many of which are vitally interested in these ideas, 
many of which literally editorialize and endorse, but even when they 
don't, they communicate such ideas as they deem relevant in explaining 
the positions of the various candidates.
  Senate Joint Resolution 18 is, I must say, philosophically consistent 
and intellectually honest in that it permits Congress to regulate all 
four of those activities. It allows Congress to put reasonable limits 
on contributions or expenditures by, in support of, or in opposition to 
candidates for Federal office. That covers the candidates' committees, 
that covers the political parties, that covers the totally independent 
individuals and groups, and that covers the newspapers and television 
stations and radio stations that participate in these political 
campaigns.
  I say, Mr. President, that this proposal is philosophically 
consistent and logical and principled in making no real distinction 
among those four methods of contribution, because, of course, the 
present campaign law does not. The law under which we operate today 
puts very real limits on candidates' campaign organizations, limits 
which, by the operation of inflation, have grown smaller in each 
successive election cycle on contributions from organizations or from 
individuals to those candidates, significant disclosure requirements on 
the source of those contributions, so significant that on many 
occasions, it would seem that our newspapers spend more time and more 
column inches reporting contributions than they do on reporting ideas.
  The 1974 law imposes some, but vaguer, restrictions on contributions 
to and expenditures by political parties. It was unable, as a matter of 
constitutional law, to impose any significant restrictions on 
independent expenditures, and it made no attempt to impose any 
restrictions on the news media, recognizing even then the 
unconstitutionality of doing so.
  What has been the net impact of the set of restrictions that we have 
today? In almost direct ratio to the restrictions on the amount of 
money that individuals and organizations can contribute to candidates, 
it has caused those individuals and organizations, when they feel 
passionately about a candidate, either for or against, to funnel their 
contributions to the political parties whom they know would support 
those candidates. And so we have the challenge of soft money today, 
largely because those who contribute soft money to political parties 
cannot contribute that money in hard form to the candidates themselves.
  This, all by itself, has made political campaigns less satisfactory 
and candidates less responsible. Each of us as a candidate is 
responsible directly for the way in which he or she conducts his or her 
campaign. When our name is on the disclaimer of a television ad, we 
cannot disown it. When we have reported a contribution from an 
individual or a group, we cannot disown it. But even when that 
advertisement or that political activity comes from our political 
party, we can, to a certain extent, disassociate ourselves from the 
ideas or the messages involved. We may very well, we hope, benefit from 
it when they support us, but we cannot guarantee that we will gain such 
a benefit.
  Now we have waiting in the wings, subject to validation only, I 
believe, if we adopt this constitutional amendment, a set of similar 
restrictions on political parties. If we adopt such a system of 
restrictions on political parties, Mr. President, it seems to me we 
know clearly what will happen, because it is already happening. Those 
same groups, those same individuals who feel passionately about Federal 
elections today and who are barred from providing the support they want 
to provide to the candidate directly, are barred from providing that 
support to the candidate's political party, will simply do it on their 
own.
  Last Sunday's Washington Post had an interesting article about the 
1996

[[Page S2253]]

campaigns, the headline of which is: ``For Their Targets, Mystery 
Groups' Ads Hit Like Attacks From Nowhere.'' The airwaves were filled 
with this kind of activity at the end of 1996--organizations with 
fictional names engaged mostly in negative advertising against 
particular candidates, the source of support for which was unknown and, 
therefore, the responsibility for the content of which was unknown. But 
as long as we have a Congress that impinges on every aspect of our 
social and individual and economic lives, we will have individuals who 
wish to participate and will participate in that fashion if they are 
not allowed to participate more directly and more openly.
  So Senate Joint Resolution 18 very clearly will allow Congress to put 
limits on that kind of political participation. So it will say, in the 
ultimate analysis, we can do whatever we think is reasonable to shut 
people up when it comes to political debates.
  Now, that still leaves the fourth element of communication: the 
radio, television stations, and the newspapers of this country. Very 
likely, the first bill that went through Congress after this 
constitutional amendment passed would not affect them, but they would 
sure be in clover, Mr. President, because then, with the candidate and 
the candidate's supporters and the candidate's proponents all muzzled, 
the only source of information would be the mass news media.
  But now this passionately devoted and wealthy individual or this 
passionately devoted organization would soon find the answer to that 
question: Buy a newspaper; buy a television station. Then you are 
entirely free to spend all the money you want on political 
communication, totally divorced from any responsibility on the part of 
the candidate at all.
  So the next law, Mr. President, will limit what the newspapers and 
the television stations and radio stations can do.
  Mr. McCONNELL. Will the Senator yield?
  Mr. GORTON. I am happy to yield to the Senator.
  Mr. McCONNELL. There is a bill we will be discussing later this year 
called McCain-Feingold, which seeks, in this Senator's judgment, to 
essentially shut down legislative-advocacy-type independent expressions 
and to make almost impossible the ability of outside groups to engage 
in independent expenditures.
  My question to my friend from Washington is, given the fact that we 
have bills that go that far now, given this authority under this 
constitutional amendment to set ``reasonable limits,'' is it not 
possible that Congress might decide such expenditures should be shut 
down entirely, that there is nothing reasonable about them, and that 
those voices should be quieted altogether?
  Mr. GORTON. Congress, if this should be part of the Constitution, 
might well make just such a decision on the relatively rational grounds 
that all political speech they want to be directly attributable to 
candidates and not to permit anyone to engage in a partisan political 
debate except through the candidate's committees.
  Now, I must say to my friend from Kentucky, I doubt that would happen 
in the Congress immediately after the adoption of a constitutional 
amendment like this. The sponsors of this constitutional amendment are 
all supporters of the McCain-Feingold proposal, and my inclination is 
that they would be content with the passage of that legislation with 
this constitutional provision in effect.
  They know, or at least the most thoughtful and principled of them 
know, that McCain-Feingold is blatantly unconstitutional under the 
first amendment as the first amendment exists today. I rather imagine 
they would be satisfied with this reform as their predecessors were 
satisfied with the 1974 reforms. As soon as this reform showed itself 
to be as ineffective as 1974 has, as soon as it had pushed 
communication into another channel, they would be back to close off 
that channel.
  At the present time, their frustration stems almost entirely from the 
fact that they are only permitted to dam one channel of the river, and 
all the water just goes around the other side of the island and flows 
into the political system to the same extent or to a greater extent 
than it does at the present time. This constitutional amendment allows 
them to dam the whole river for good and permanently.
  It is for exactly that reason that I say, Mr. President, this is 
certainly the most fundamental attack on the most fundamental of 
American freedoms that has taken place in this body in the 14-plus 
years during which I have served and, I think, probably in the 210 
years since the first amendment was adopted by the first Congress.
  Mr. McCONNELL. Will the Senator yield?
  Mr. GORTON. I am happy to yield to the Senator.
  Mr. McCONNELL. Since the Congress composed entirely of incumbents has 
the power to determine what is a reasonable limit directly on 
campaigns, would it not be entirely conceivable, I ask my friend from 
Washington, in the very near future, if not in the very same Congress, 
after this became part of the Constitution, that these incumbents might 
seek to limit spending in campaigns directly by the candidates 
themselves standing for reelection and a challenger, quite 
dramatically?
  Most incumbents start out with a pretty substantial lead unless they 
are running against a famous athlete, a movie star, or sitting 
Governor. It has often been described as the incumbent looking at it as 
a football field, and the incumbent at the beginning of the campaign is 
at the 40-yard line and sprinting toward the goalline; the challenger 
is back on the 5-yard line with 95 yards to go. Might not this Congress 
composed entirely of incumbents decide to set a spending limit of, say, 
$50,000 per House of Representatives race and declare that reasonable?
  Mr. GORTON. Congress would certainly have the authority to pass just 
such a law, I say, Mr. President, to my friend from Kentucky. I think 
as a former State attorney general, he has argued a number of cases in 
the Supreme Court. I would probably be willing to take that challenge 
on a reasonable basis to the Supreme Court of the United States, and I 
might well win at that $50,000 figure.

  But the vice of this constitutional amendment is that I would have to 
do that in the first place, and there would be an argument that that 
was a reasonable limitation. When we start down this road, we put the 
right of free speech and political matters of the people of the United 
States into the hands of Congress.
  As the Senator from New Mexico said earlier, each of us believes 
sufficiently in this system to hold the opinion that most of the time 
we do the right thing and that almost all of the time we try to do the 
right thing. We are probably least likely to do the right thing when it 
affects our own individual fates and our own individual careers. Even 
when we are, we sometimes, at least, can make mistakes. That, I must 
say, is obviously the reason that Madison and the first Congress wrote 
the first amendment in unequivocal terms with a primary focus on 
political speech. They simply did not wish to give this authority to 
Congress, and they were right.
  The Supreme Court of the United States, in dealing with the 1974 law 
in Buckley versus Valeo, I think put the issue in the simplest and 
clearest fashion when it says,

       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.

  That is the central issue here. Is this a matter that is up to the 
judgment of the people as individuals and as members of organizations? 
Or is it up to the Government--in this case a self-interested 
Government--to say what is reasonable? You and I, Mr. President, and 
the Senator from Kentucky and I believe that this is a matter for 
people as individuals and as members of voluntary associations. The 
proponents of this constitutional amendment believe this is a matter 
for the Government. Between us, there is a great gulf fixed which 
cannot be bridged. We stand on the Constitution as it was written by 
the Founding Fathers. We stand on a faith in the people, and we reject 
the interference of the Federal Government on this question.
  Mr. McCONNELL. Mr. President, I want to thank the distinguished 
Senator from Washington for his eloquent

[[Page S2254]]

defense of the first amendment. He certainly encapsulated, better than 
I could ever, exactly what the heart of this debate is. I thank him 
very much for his support and contribution.
  I yield the floor.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER (Mr. Kempthorne). The Senator from Arizona.
  Mr. McCAIN. Mr. President, daily we are learning of new allegations 
and revelations regarding how last year's elections were financed. Just 
yesterday, we learned that the Chinese Government created a $1.8 
million fund with which it sought to influence up to 30 Members of 
Congress with campaign contributions.
  The Congress now faces a monumental task. How can the system be 
effectively and fairly changed? The answer is both simple and daunting: 
by passing comprehensive, bipartisan campaign finance reform. Some 
openly oppose campaign finance reform. One of the leaders, if not the 
leader, my friend, Senator McConnell, is there. I admire him and 
respect the fact that he is a standup guy. He does not hide that fact. 
Others have said to me, ``I am for campaign finance reform, just not 
yours.'' I challenge my colleagues and say that every aspect of Senator 
Feingold's and my bill is open for debate. Everyone is welcome at the 
table. I believe there is no excuse for inaction.
  Real reform must do two things. It must limit the influence of money 
in campaigns, and it must level the playing field between challengers 
and incumbents. I believe those two principles cannot be compromised, 
but the rest is up for negotiation.
  I find that there are fewer and fewer Americans--in fact, recent 
polls show that 9 out of 10 Americans believe that we must repair this 
system and that it is out of control. I just heard my colleagues 
talking about how in 1974 it didn't work, and if we passed further 
campaign finance reform, somehow that would be bad, as it was bad in 
1974.
  Now, Mr. President, I wasn't in Congress in 1974, but I am very aware 
that, in 1972, there were people walking around this town with valises 
full of hundred dollar bills. The stories I have heard concerned people 
being asked to contribute 1 or 2 percent of their gross income. Somehow 
to allege that the changes made in 1974 didn't help reform the system I 
think, frankly, flies in the face of facts. The facts are that, as a 
result of the 1974 reforms, we did fix the system for quite a while. 
Mr. President, when I was elected to Congress in 1982, there was a far 
different environment than exists today in fundraising. The fact is, it 
worked for quite a while, and then loopholes were exploited, Supreme 
Court decisions gave additional avenues for the funneling of so-called 
``soft money'' into campaigns, and it is out of control again.
  Mr. President, in 1986, we reformed the tax system in this country--
supported overwhelmingly here in Congress--and closed some tax 
loopholes. We took several million people off the tax rolls, and it was 
generally applauded. We fixed the system to a significant degree. We 
all know now, in 1997, we need to fix the tax system again. I say to 
you, in 1974, much needed reforms were enacted by an overwhelming 
majority of Congress. They did some good things. It did clean up the 
system dramatically.
  Now circumstances and times have changed. We all know the problems, 
Mr. President. We all know the problems. They are made abundantly clear 
by picking up any newspaper today. The pursuit of funds and money has 
become a full-time occupation, and the average citizen no longer has 
the same voice in Washington, DC, that they did years ago.
  Earlier this week, a man who I have not only grown to respect and 
admire enormously, but I have also become a good friend with over the 
many years I have been here and worked very closely with, is Senator 
Ford from the other side of the aisle. I think many would describe 
Senator Ford, with admiration, as a partisan member of his party. I 
also know that there are many others of us who have had the opportunity 
of working with him for many, many years. If you want to reach a 
legislative result and you want to reach it in a nonpartisan and, if 
necessary, bipartisan fashion, you sit down with Wendell Ford, along 
with, by the way, my friend from South Carolina, Senator Hollings. 
Example: At the end of last year, we were able to pass legislation 
which was the most massive change in aviation, how we fund and 
structure it, since 1978 when we deregulated the airline industry. 
Wendell Ford, acting in a bipartisan fashion, made that legislation 
possible. I intend, as is appropriate, when the time comes, to 
elaborate on my feelings of affection and respect for Senator Ford.

  One of the things Senator Ford mentioned as the reason why he was not 
going to seek reelection was because he was going to have to raise 
$100,000 a week between now and election day. He also added, in his own 
inimitable style, that his wife would not allow him to rent out the 
spare bedroom. But the fact is, Mr. President, that every time one of 
our Members leaves this body, they cite the money chase. They cite the 
problem that money has become the overriding factor in the 
determination of candidacy and outcome. That should not be, Mr. 
President.
  Ask anyone who is considering running for public office. They come 
here to Washington, DC, because they need the support of the party 
people and the money and the PAC's and the interest groups, and they 
will tell you they are only asked one question when they announce they 
are going to seek election, and one question only. It's not, ``How do 
you stand on taxes?'' or ``on the role of Government,'' or ``how do you 
feel about national defense?'' There is only one question they are 
asked, Mr. President: ``Where are you going to get the money?''
  When we get into a full-blown debate on this issue--which I hope we 
will because I still hold the fervent hope and belief that we will 
address campaign finance reform on this floor in one way or another 
before this year is out, and I don't know when that will be--I suggest 
that it will only be done in a meaningful fashion when there is 
sufficient anger and outrage on the part of the American people who 
demand that we fix this broken system, and not until.
  I don't think we really ought to debate this until we are ready to 
achieve a legislative result. I don't know when that will be, Mr. 
President. But I can tell you, we are a heck of a lot closer to that 
point than we were, say, 6 months ago. I believe 3 months from now, or 
2 months from now--after the hearings Senator Thompson is going to be 
holding--there will be a much greater impetus and desire on the part of 
the American people that we more thoroughly and completely address this 
issue and try to fix the broken system. I believe that we can and 
should and will. It used to be that we waged a battle of ideas between 
candidates. The battle was well fought and hard won on the election 
battlefield. Now it is the battle of the bucks.

  Again, at an appropriate time, I will talk about the well-known 
public facts and how much campaign costs have risen, how much it costs 
to run a Senate race, how much it costs in order to buy television, and 
how much soft money has grown in exponential numbers to the point 
where, according to the Washington Post not long ago, the cost of 
Federal campaigns was well over $2 billion, whether they be small 
States or large States.
  Mr. President, I do not believe that the constitutional amendment is 
the answer. We can enact campaign finance reform without a 
constitutional amendment. S. 25, the McCain-Feingold bill, is fully 
consistent with the law. I can point out many more constitutional 
scholars, including a former chief counsel of the ACLU, as to 
constitutionality because it is based primarily on voluntary spending 
limits.
  The Supreme Court has ruled that we cannot stop someone who is 
willing to spend an unlimited amount of money to campaign for a Federal 
office from doing so.
  This bill provides strong incentives for candidates to voluntarily 
comply with spending limits regardless of personal wealth. Candidates 
who choose to spend unlimited amounts of their own money receive none 
of the benefits under our legislation.
  Mr. President, there is an argument that is being bandied about that 
somehow we cannot place a limit on soft money, that it would be 
unconstitutional to do so. I find that curious. I find that curious 
because the courts

[[Page S2255]]

have clearly allowed the Congress to place limits on contributions to 
campaigns. We have placed an individual limit of $2,000. We placed a 
PAC limit of $10,000. We do not allow a corporation or a union to 
provide any direct contributions. Yet somehow people on this floor are 
saying somehow it would be unconstitutional to place limits on soft 
money. There is no rational constitutional argument there in my view. 
There is no justifiable need for soft money. All contributions made to 
the party should be done using hard, fully traceable, fully disclosed 
dollars. There is no constitutional right to soft money. The courts 
have stated that any contribution can be limited.
  I will submit for the Record those court decisions that have stated 
that any contribution can be limited.
  As you know, Mr. President, my good friend Paul Taylor has worked 
tirelessly to promote the idea of free broadcast time. Broadcasters use 
spectrum that is owned by the American people. As such, the Congress 
and the courts have agreed that when the Government gives out licenses 
to the broadcasters--enabling them to operate--that such licenses may 
be conditioned on certain activities deemed to be in the public 
interest.
  When each broadcaster receives a license, they sign on that license 
that they agree to act in the public interest.
  Some of the opponents of the McCain-Feingold legislation complain 
incorrectly that the bill will limit individuals free speech. As I have 
just explained, the bill is compatible with the Constitution. But there 
is even a greater question that must be asked. If spending is akin to 
free speech, then how much speech does an individual without means 
have? If money is free speech, how much free speech does a person 
without money have?
  On March 2, on CNN a woman from Bartlesville, OK, called in, and, 
said, ``I have a question for you. I'm a Republican, supposedly. I'm 
more Independent than anything else. But I want to ask you something. 
At $735 a month, how much freedom of speech do I have? I cannot 
contribute to these big campaigns.''
  Mr. President, men and women all over America ask in response to the 
equation of money and free speech about how much freedom of speech they 
have if they are a moderate- or low-income American. Where is her 
voice? Where is the voice of the woman from Bartlesville, OK? What can 
be done to ensure that her voice is not overwhelmed by the voices of 
monied special interests?
  Spending limits will do more to both level the playing field between 
challengers and incumbents and give a voice to individuals who either 
give little or can afford to give nothing at all.
  The most money tends to win elections. And this is the incumbent 
protection system. The reality is that the current, perverse system 
under which the richest takes all has resulted in entrenched 
incumbents.
  The Congressional Research Service has compiled an analysis of 
congressional races in recent years, and the conclusion of that study 
is that the candidate who raises and spends the most money, even if 
that money is his or her own, usually wins the elections. As I have 
said before, elections should be about message and ideas. I do not 
believe it was an accident that in the last election we had the lowest 
voter turnout in any time in the history of Presidential elections in 
this century.
  Mr. President, I have a letter from Common Cause. I quote:

       Dear Senator: The Senate is expected to vote later this 
     week on a proposed constitutional amendment to provide 
     Congress with the ability to impose mandatory limits on 
     campaign spending, thus overriding a portion of the Supreme 
     Court's 1976 decision in Buckley v. Valeo.
       Common Cause opposes the constitutional amendment because 
     it will serve as a diversionary tactic that could prevent 
     Congress from passing campaign reform this year. We believe 
     that a constitutional amendment is not necessary in order to 
     achieve meaningful and comprehensive reform.
       Congress needs to act now to address the growing scandal in 
     the campaign finance system. Congress can act now--and 
     constitutionally--to adopt major reforms. Congress need not 
     and should not start a reform process that will take years to 
     complete by pursuing campaign finance reform through a 
     constitutional amendment. Instead, the Senate should focus 
     its efforts on enacting S. 25, comprehensive bipartisan 
     legislation that represents real reform. It is balanced, 
     fair, and should be enacted this year to ensure meaningful 
     reform of the way congressional elections are financed.

  Mr. President, I ask unanimous consent that this letter be made part 
of the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 Common Cause,

                                   Washington, DC, March 12, 1997.
       Dear Senator: The Senate is expected to vote later this 
     week on a proposed constitutional amendment to provide 
     Congress with the ability to impose mandatory limits on 
     campaign spending, thus overriding a portion of the Supreme 
     Court's 1976 decision in Buckley v. Valeo.
       Common Cause opposes the constitutional amendment because 
     it will serve as a diversionary tactic that could prevent 
     Congress from passing campaign finance reform this year. We 
     believe that a constitutional amendment is not necessary in 
     order to achieve meaningful and comprehensive reform.
       Under existing Supreme Court doctrine, Congress has 
     significant scope to enact tough and effective campaign 
     finance reform consistent with the Court's interpretation of 
     the First Amendment in Buckley.
       The McCain-Feingold bill, S. 25, provides for significant 
     reform within the framework of the Buckley decision. The 
     legislation would: ban soft money; provide reduced postage 
     rates and free or reduced cost television time as incentives 
     for congressional candidates to agree to restrain their 
     spending; close loopholes related to independent expenditures 
     and campaign ads that masquerade as ``issue advocacy''; 
     reduce the influence of special-interest political action 
     committee (PAC) money; strengthen disclosure and enforcement.
       A recent letter to Senators McCain and Feingold from 
     constitutional scholar Burt Neuborne, the Legal Director of 
     the Brennan Center for Justice and a past National Legal 
     Director of the ACLU, sets forth the case that the McCain-
     Feingold bill is constitutional. Professor Neuborne finds 
     that the key provisions of the bill are within the Court's 
     existing interpretation of the First Amendment, and he thus 
     demonstrates that a constitutional amendment is not necessary 
     to enact reform.
       Professor Neuborne concludes that the voluntary spending 
     limits in the McCain-Feingold bill are consistent with the 
     Supreme Court's ruling in Buckley. He further concludes that 
     ``Congress possesses clear power to close the soft money 
     loophole by restricting the source and size of contributions 
     to political parties. . . .'' He also concludes that efforts 
     to close loopholes relating to independent expenditures and 
     so-called ``issue ads'' are also within Congress' existing 
     authority.
       It is, therefore, not necessary to amend the Constitution 
     in order to enact meaningful campaign finance reform. 
     Congress has the power, consistent with the First Amendment, 
     to enact comprehensive reform by statute.
       A constitutional amendment for campaign finance reform 
     should not be used as a way to delay reform legislation. 
     Typically, amending the Constitution takes years. After both 
     Houses of Congress adopt an amendment by a two-thirds vote, 
     it has to be approved by three-quarters of the state 
     legislatures. Even then, the Congress would still have to 
     take up enacting legislation. This is a lengthy and arduous 
     process.
       Congress needs to act now to address the growing scandal in 
     the campaign finance system. Congress can act now--and 
     constitutionally--to adopt major reforms. Congress need not 
     and should not start a reform process that will take years to 
     complete by pursuing campaign finance reform through a 
     constitutional amendment. Instead, the Senate should focus 
     its efforts on enacting S. 25, comprehensive bipartisan 
     legislation that represents real reform. It is balanced, 
     fair, and should be enacted this year to ensure meaningful 
     reform of the way congressional elections are financed.
           Sincerely,
                                                      Ann McBride,
                                                        President.

  Mr. McCAIN. Mr. President, I also would like at this time to have 
printed in the Record by unanimous consent a letter that is by Mr. Burt 
Neuborne who is the Legal Director at the Brennan Center for Justice.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                   Brennan Center for Justice,

                                      New York, NY, March 3, 1996.
     Hon. John McCain,
     Hon. Russell Feingold,
     U.S. Senate,
     Washington, DC.
       Dear Senators McCain and Feingold. I am writing in response 
     to a letter to Senator Mitch McConnell, dated February 20, 
     1997, from the American Civil Liberties Union, arguing that 
     critical provisions of S.25, the Bipartisan Campaign Reform 
     Act of 1997, are unconstitutional under existing Supreme 
     Court precedent. I am the John Norton Pomeroy Professor of 
     Law at New York University and Legal Director of the Brennan 
     Center for Justice. I served as National Legal Director of 
     the American Civil Liberties Union during the 1980's, and 
     remain active in defense of the First Amendment. I

[[Page S2256]]

     continue to serve as an ACLU volunteer counsel. I believe, 
     however, that the ACLU letter on S.25 is simply wrong in a 
     number of assertions, despite the fact that it was written by 
     an able lawyer whom I respect and admire.
       In assessing the ACLU's views on the constitutionality of 
     S.25, it is important to recall that the ACLU believes that 
     an restriction on campaign financing is unconstitutional, 
     even those restrictions upheld by the Supreme Court in 
     Buckley v. Valeo. The only Justice on the current Court who 
     accepts the ACLU's position is Justice Clarence Thomas. Thus, 
     the ACLU is quite right in predicting that Justice Thomas 
     would find S.25 unconstitutional--but quite wrong in claiming 
     that a majority of the Court would condemn critical parts of 
     the statue.


     I. Efforts to Persuade Candidates to Limit Campaign Spending 
   Voluntarily By Providing Them With Valuable Inducements Like Free 
                   Television Time Are Constitutional

       The ACLU argues that Title I of S.25, which asks candidates 
     to limit campaign spending in return for free or subsidized 
     broadcast time and subsidized mailing rates, is 
     unconstitutional. But, in Buckley, the Court approved 
     precisely such an approach when it upheld the offer of 
     campaign subsidies to Presidential candidates in return for a 
     promise to limit campaign spending.
       The fact is that the ACLU still believes the Buckley Court 
     was wrong when it upheld Congress right to condition public 
     campaign subsidies on a promise to limit campaign spending. 
     But the ACLU lost that argument. It is, to say the least, 
     difficult for the ACLU to argue that a far lesser set of 
     inducements in S.25 would violate the First Amendment. In 
     effect, the ACLU argues that virtually any inducement offered 
     to a candidate to persuade her to limit campaign spending is 
     unconstitutional as a form of indirect ``coercion''. But the 
     Buckley Court clearly distinguished between inducements 
     designed to elicit a voluntary decision to limit spending, 
     and coercive mandates that impose involuntary spending 
     ceilings. If giving a Presidential candidate a $60,000,000 
     subsidy is a constitutional inducement, surely providing free 
     television time and reduced postal rates falls into the same 
     category of acceptable inducement. Merely because a deal is 
     too good to pass up does not render it unconstitutionally 
     ``coercive''.


        II. Ceilings on Contributions by PACS Are Constitutional

       The ACLU argues that a $1,000 cap on contributions from 
     PACs, and a 20% limit on PAC contributions to a particular 
     candidate violate the First Amendment. Once again, the ACLU's 
     constitutional position is traceable to an issue that it lost 
     in Buckley, but continues to re-argue in Congress.
       In Buckley, the ACLU challenged the $1,000 ceiling on 
     campaign contributions, arguing that campaign contributions 
     were entitled to the same level of free speech protection as 
     campaign expenditures. The Supreme Court rejected the ACLU's 
     argument, and upheld the ceiling on contributions. Indeed, in 
     the years since Buckley, the Supreme Court has upheld every 
     contribution limit that has come before it in an election 
     context. California Medical Ass'n v. FEC, 453 U.S. 182 
     (1981); FEC v. National Right to Work Committee, 459 U.S. 197 
     (1982). If Congress may limit contributions from individuals 
     to $1,000, surely the First Amendment does not require 
     preferential treatment of PACS. If individuals can be 
     restricted to $1,000, so can PACS.
       Moreover, Congress may surely determine that the greatest 
     risk of corruption occurs in connection with campaign 
     contributions from self-interested, interest PACS. 
     Accordingly, placing a 20% ceiling on PAC contributions in 
     well within Congress' power to prevent corruption, or the 
     appearance, or the appearance of corruption, by placing 
     limits on overtly self-interested campaign contributions.


  III. Limits on Enormous Campaign Contributions to Political Parties 
     from Corporations, Labor Unions, and Wealthy Contributors Are 
                             Constitutional

       The ACLU argues that the First Amendment prevents Congress 
     from closing the notorious ``soft money'' loophole that 
     threatens to destroy the integrity of the Presidential 
     campaign process. In the most recent Presidential campaign, 
     donors poured more than $250 million through the soft money 
     loophole to political parties, ostensibly for use in building 
     local parties, registering voters, and increasing voter 
     turnout. The vast bulk of soft money contributions came from 
     corporations and labor unions, barred by law from 
     participating directly in federal campaigns, or from wealthy 
     individuals anxious to contribute in excess of existing 
     contribution ceilings.
       The ACLU argues that the First Amendment prohibits Congress 
     from closing the loophole. But, once again, the ACLU's 
     constitutional position is simply a reprise of arguments it 
     has lost in the Supreme Court. In Buckley, the ACLU argued 
     that any effort to limit campaign contributions violated the 
     First Amendment, an argument the Court rejected. In later 
     cases, the Court also dismissed the argument that 
     corporations and labor unions have a right to use their money 
     to influence federal elections. See, e.g., Austin v. Michigan 
     Chamber of Commerce, 494 U.S. 652 (1990); FEC v. Nat'l Right 
     to Work Comm., 459 U.S. 197 (1982).
       In 1978, the FEC, reversing an earlier ruling, opened a 
     seemingly modest loophole in the contribution rules by 
     allowing corporations, labor unions, and wealthy individuals 
     to contribute funds directly to a political party free from 
     the usual restrictions on contributions, as long as the funds 
     were to be used in connection with local party building, 
     voter registration or other activity not directly connected 
     to a federal election. In the years since, the soft money 
     loophole has become a threat to the integrity of the 
     regulatory system. Hundreds of millions of dollars pour 
     through the loophole each year to both major political 
     parties from contributors who are barred from contributing 
     directly to a federal campaign. The funds are often solicited 
     by federal candidates and spent in ways designed to advance 
     their candidacies. More ominously, the forbidden donors, if 
     their contributions are large enough, are rewarded by both 
     parties with preferred access to public officials, creating 
     precisely the appearance of corruption that justifies 
     restricting large campaign contributions in the first place. 
     Thus, unless one accepts the ACLU's premise that 
     contributions can never be limited no matter what the size 
     and no matter what the source (and even Justice Thomas has 
     not gone that far), Congress possesses clear power to close 
     the soft money loophole by restricting the source and size of 
     contributions to political parties just as it does for 
     contributions to candidates.
       The ACLU's suggestion that the recent Supreme Court 
     decision in Colorado Republican Party provides First 
     Amendment support for a soft money loophole is flatly wrong. 
     Colorado Republican Party was an ``expenditure'' case, not a 
     ``contribution'' case, and it involved hard money, not soft. 
     It held, merely, that when a political party makes an 
     expenditure attacking the candidate of another party six 
     months before selecting its own candidate, the expenditure 
     should be treated as an independent expenditure, as long as 
     the funds come in small amounts from donors who are eligible 
     to contribute to a federal campaign. The Court did not hold 
     that ineligible donors, like corporations, labor unions and 
     wealthy individuals, have a constitutional right to buy 
     preferred access to public officials by pouring unlimited 
     amounts of cash into a political party's coffers.
       The most relevant Supreme Court decision is not Colorado 
     Republican Party, but Austin v. Michigan Chamber of Commerce, 
     where the Supreme Court held that corporations can be walled 
     off from the electoral process by forbidding both corporate 
     contributions and corporate independent expenditures because 
     they have the capacity to distort the democratic process. 
     Surely, the law cannot be that Congress has the power to 
     prevent corporations from giving money directly to a 
     candidate, or from expending money on behalf of a candidate, 
     but lacks the power to prevent the corporation from pouring 
     unlimited funds into the candidate's political party in order 
     to buy preferred access to him after the election.


IV. The Narrow Limits on Coordinated Expenditures By Political Parties 
                  Imposed by S. 25 Are constitutional

       Colorado Republican Party holds that political parties are 
     entitled to make truly independent expenditures on the same 
     terms and conditions as other entities. Since the expenditure 
     at issue in Colorado Republican Party was made six months 
     before the party's candidate was selected, there obviously 
     was no coordination between the party and the candidate. The 
     case says nothing, however, about coordinated expenditures. 
     Indeed, the critical swing Justices--Justices Breyer, Souter, 
     and O'Connor--explicitly refused to decide how to treat 
     coordinated expenditures, noting that if coordinated 
     expenditures were treated like independent expenditures, the 
     critical line between contribution and expenditure would be 
     destroyed, since every forbidden contribution could be 
     recycled as a coordinated expenditure.
       S. 25 attempts to deal with coordinated expenditures by 
     providing that once a political party makes contributions, 
     and engages in coordinated activities with its candidate, it 
     can no longer be said to be making truly independent 
     expenditures. The provision is merely a common sense effort 
     to police the distinction between truly independent and 
     coordinated expenditures. Since the ACLU rejects the critical 
     distinction between expenditures and contributions put forth 
     in Buckley, it believes that any restriction on the party's 
     right to spend money, even a de facto contribution made in 
     the form of a coordinated expenditure, is absolutely 
     protected. But, if you accept the Supreme Court's ruling in 
     Buckley that contributions may be regulated, it becomes 
     critical to decide when an expenditure is truly independent, 
     and when it turns into a de facto contribution. Thus, once 
     again, the ACLU's opinion on the effort in S. 25 to draw a 
     careful line between truly independent expenditures and 
     coordinated contributions is an exercise in wishful 
     thinking, not an accurate description of existing law.


     V. the effort in S. 25 to distinguish between an independent 
 expenditure designed to affect the outcome of an election, and issue 
       advocacy designed to inform the public, is constitutional

       Independent expenditures designed to affect the outcome of 
     a federal election are subject to one important restriction--
     funds contributed to finance the expenditure must come from 
     sources that would be lawful if contributed directly to the 
     candidate and in limited amounts. Issue advocacy designed to

[[Page S2257]]

     inform the public is, on the other hand, subject to no 
     restrictions, either as to funding or disclosure.
       The last election was characterized by numerous groups 
     purporting to engage in public education outside the reach of 
     the campaign laws. For example, both major parties spent 
     substantial sums on so-called ``issue ads'', paid for by 
     donors who were barred from contributing directly to a 
     federal election campaign. Numerous private groups targeted 
     close races and poured funds into them in the guise of issue 
     education, even though the funds came from forbidden sources 
     and in amounts that could not be contributed. S. 25 attempts 
     to close that loophole by setting forth two tests to 
     differentiate between campaign speech and genuine issue 
     advocacy. Throughout most of an election cycle, the test is 
     whether the speaker's purpose and effect was to advocate the 
     election or defeat of an identified candidate. Within 60 days 
     of the election, however, the test dispenses with an 
     examination of the speaker's purpose and looks only to 
     whether, applying certain enumerated criteria, a reasonable 
     person would understand the ad to be advocating the election 
     or defeat of a named candidate.
       It is, in my opinion, unclear whether the latter test is 
     sufficiently precise. I believe that the better approach 
     would be to apply throughout the election cycle a purpose-
     and-effect test along the lines of the first one described 
     above, but perhaps slightly more demanding. Speech should be 
     viewed as campaign speech only if the speaker's predominant 
     intent was to affect the outcome of a specific election, and 
     the FEC should be required to establish the relevant intent 
     by clear and convincing evidence, or, even, beyond a 
     reasonable doubt before labeling speech as campaign-related. 
     Such an approach would prevent egregious evasion of the rules 
     governing campaign contributions, while providing ample space 
     for genuine public education.


 VI. the effort in S. 25 to enhance the enforcement capability of the 
                          FEC is long overdue

       The FEC is currently powerless to cope with massive 
     violations of existing law. For example, the last campaign 
     saw both major parties accept illegal donations, and engage 
     in blatantly illegal spending activities, like running phony 
     ``issue ads'', or making phony ``independent'' expenditures 
     in order to evade contribution restrictions. The FEC stood by 
     like a helpless spectator while the law was turned into a 
     mockery. S. 25 provides needed authority to seek injunctive 
     relief against blatant violations. I would, however, tighten 
     the enforcement provisions to permit injunctive relief only 
     for clearly established violations. I would place a 
     significant burden on the FEC in order to permit action 
     against egregious violations, while preventing undue 
     intrusion into the electoral process.
       Finally, I would break the FEC's monopoly on enforcing the 
     campaign funding laws. The FEC's current structure permits 
     either major party to veto the enforcement activities of the 
     FEC. The result has been an enforcement history that harasses 
     minor parties and independents, but rarely challenges the 
     questionable activities of the major parties. We will, I 
     predict, never see an FEC proceeding against either or both 
     major parties for their activities during the last campaign.
       The solution is a private cause of action for violating the 
     FEC. Abuse of such a private right of action could be 
     minimized by provisions for attorneys fees and Rule 11 
     sanctions for frivolous claims.
       Reasonable people can disagree over the merits of S. 25. 
     Some believe that efforts to regulate campaign financing are 
     misguided and doomed to failure. But opposition to the wisdom 
     of S. 25 should not take the form of distorted descriptions 
     of existing constitutional law. The complexity of existing 
     campaign financing law in the Supreme Court makes it 
     impossible to state with certainty what path the future Court 
     will follow. But I believe that the best reading of existing 
     precedent renders the foregoing provisions of S. 25 
     constitutionally defensible. Only Justice Thomas has embraced 
     the ACLU's absolutist refusal to permit any regulation of 
     campaign financing.
           Respectfully submitted,
                                                    Burt Neuborne,
                       Legal Director, Brennan Center for Justice.

  Mr. McCAIN. Mr. President, the reason I asked that the letter be 
included in the Record is that he says:

       I am writing in response to a letter to Senator Mitch 
     McConnell, dated February 20, 1997, from the American Civil 
     Liberties Union, arguing that critical provisions of S. 25, 
     the Bipartisan Campaign Reform Act of 1997, are 
     unconstitutional under existing Supreme Court precedent. I am 
     the John Norton Pomeroy Professor of Law at New York 
     University and Legal Director of the Brennan Center for 
     Justice. I served as National Legal Director of the American 
     Civil Liberties Union during the 1980's, and remain active in 
     defense of the First Amendment. I continue to serve as an 
     ACLU volunteer counsel. I believe, however, that the ACLU 
     letter on S. 25 is simply wrong in a number of assertions, 
     despite the fact that it was written by an able lawyer whom I 
     respect and admire.

  Mr. President, I think it is an interesting rebuttal to the position 
that the ACLU has taken on S. 25.
  I would also like to point out that I have great respect for the 
ACLU. But there are very few occasions on which I have agreed with the 
positions that the ACLU has taken on a broad variety of issues.
  We can argue the constitutionality of this issue, and, if we win, we 
will get into the major debate. But I will have a very large body of 
constitutional opinion--not just the ACLU--as to the constitutionality 
of the McCain-Feingold bill.
  I also suggest again that we have to clean up this system. It is 
broken. It is out of control. Almost every American agrees with that. 
Poll after poll after poll is telling us that the American people are 
cynical about us, the way we are selected, and the system under which 
money seems to be the determinant factor in the selection of our public 
servants.
  I will continue to seek support both inside the Halls of Congress and 
outside the beltway, and I and Senator Feingold fully intend to bring 
this bill up this year. The ideal way that we would seek to do that 
would be us all sitting down together and coming up with a package as 
we did on the gift ban, as we did on lobbying reform, as we did on the 
line-item veto, as we have on a broad variety of reforms we have 
enacted by near unanimous if not total unanimous agreement.
  My message to those who say I am now in favor of campaign finance 
reform is, as you know, so am I, so are many others, so are most 
Americans. So let us sit down adhering to principles and recognize what 
the problems are and sit down as mature individuals and move forward 
and reform this system for the benefit not only of those of us who have 
the honor and opportunity to serve today but provide an opportunity for 
dedicated and outstanding young men and women to serve this Nation in 
the future in elected office.
  I intend to continue to conduct this debate with respect and 
appreciation for the views of my colleague from Kentucky, Senator 
McConnell, who disagrees with me, my colleague from the State of 
Washington, Senator Gorton, and others. I believe that we can strongly 
disagree on this issue and respect each other's views, and I think the 
American people deserve a debate that is conducted in an environment of 
mutual respect. I am happy to say that at least in my view we have 
conducted this debate on that level during this period of time, 
recognizing that it is a very emotional issue on both sides. But I 
think the American people will be far better off if we continue to 
conduct this debate on the Hollings bill today as well as our overall 
debate on campaign finance reform in that vein in the future, and I 
commit to my colleagues that I will conduct it in that fashion.
  Mr. President, I yield the floor.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I am honored to be here today with two 
great Senators who have been leading the discussion on a very important 
matter to this country.
  During my campaign last fall, I was involved in a campaign in which I 
had two opponents spend over $1 million of their own money on a primary 
election, two others spent over half a million dollars--$5 million was 
spent really against me in the primary, which I eventually won, and we 
had a very contested race in the fall.
  I know how difficult it is to raise money, how distasteful it is, how 
frustrating it is to have to deal with that problem. I came here with 
an idea that I would be quite willing to consider whatever reforms we 
could undertake to improve that system. I have given it thought. The 
results of my thoughts are that I have concluded that we are at a point 
where we have to admit the primacy of the first amendment and free 
speech and I have come down on that side.
  We had in my general election campaign the trial lawyers association 
that spend hundreds of thousands of dollars, maybe over $1 million, 
opposing my candidacy. That frustrated me. Some of it was not properly 
reported. It was not required to be reported in a timely fashion to the 
public. So it was difficult to know where that money was coming from, 
and I do not think that was correct.
  I ask, after having given it a lot of thought, how can we say that a 
group

[[Page S2258]]

of trial lawyers, a group of business people, a group of union people 
cannot get together and go on television and speak at the time of an 
election about candidates or issues in which they believe deeply. This 
is so fundamental. Some say, well, you can talk about issues; you just 
cannot do it at the election cycle.
  Well, when else do we want to talk about it? When is it 
more important than when we are trying to decide the direction this 
country is going, when we are facing it during an election cycle. I do 
not see how we can avoid that.

  The amendment of the Senator from South Carolina I think is an honest 
attempt to deal with the problem because I do not believe under the 
present constitutional structure we can make many of the changes that 
have been suggested to date. So I respect him for that. But I consider 
that it would be an astounding, a thunderous, a remarkable change of 
policy for America to adopt this proposed amendment.
  It says Congress shall have the power to limit expenditures made by a 
candidate in an election. That is a remarkable thing to say, that a 
person cannot go out and say to the people, through their own resources 
or the resources of others, why they ought to vote for them or against 
their opponent. I think that is a fundamental alteration of the great 
democratic trends or tendencies of this Nation.
  I do not think it is a complicated case. We can have professors and 
scholars, and they can write briefs and all this stuff, but look at 
this. This is a restriction on free debate in America. It is a 
fundamental issue that this country is dealing with, and I must say 
that I do not believe we should support it. I think it would be one of 
the most regressive actions, one of the greatest retreats from the 
democratic ideal that would have occurred in my lifetime, maybe in the 
history of this Nation.
  I just wanted to take a few minutes to share those comments. I yield 
the floor.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Before the Senator from Alabama leaves the floor, I 
want to commend him for his statesmanship when he made the observation 
that our first inclination after a campaign is to think, boy, I would 
sure like to have shut up those people who were out there trying to 
beat me; wouldn't it have been easy if I could have just quieted those 
voices who were against what I was trying to do?
  But as the Senator from Alabama has pointed out so well, America is a 
seething cauldron of voices, either individually or in groups who take 
an interest in the future of this country and try to sway our free 
elections one way or the other.
  That is exactly what the founders of this country envisioned. And so 
what the amendment before us seeks to do is to take a big hunk out of 
the first amendment, which when it was passed over 200 years ago was 
almost entirely about political speech, and say that the Government now 
has the power to control how much not only we get to speak in our own 
campaigns but the Senator from Alabama knows, because he was referring 
to this amendment, not just the campaign that we are conducting against 
our opponent but this says in addition Congress may set reasonable 
limits on those in support of us or in opposition to us.
  Given all the discussion that we have observed here in the last few 
months about the expressions of outside groups, whether it was through 
legislative activity or independent expenditures, I would just ask my 
friend from Alabama, does he not think it is conceivable that Congress 
might decide that kind of speech is unreasonable and eliminate it 
entirely in this environment?
  Mr. SESSIONS. I think that is a very realistic possibility, and it is 
so incapable of enforcement or definition. Do you say that a private 
group that believes deeply in interests like pro-life or pro-choice 
cannot raise money and say don't vote for John Doe because he is 
opposed to our views? I think that is what America is all about. We 
have to be able to take the heat and defend our positions as best we 
can, and we should not turn that over just to the news media to do so.
  Mr. McCONNELL. I say to my friend from Alabama, I agree with him; we 
should not do that, but I think under this amendment we could do it.
  Mr. SESSIONS. It troubles me greatly. I have read that language in 
this proposed amendment. I consider it frightening. That is the reason 
I felt obligated to come and express my opinions today, not for any 
other reason. I think we should not amend the Constitution in this 
fashion, and I want to be on record opposing it.

  Mr. McCONNELL. I thank my friend from Alabama.
  The only other point I will make, now that he is an incumbent, like 
the Senator from Kentucky, and since all of us incumbents would get to 
decide what is reasonable, is it not, I ask my friend from Alabama, 
conceivable to think that Congress might decide it was reasonable to 
shut up all the outside groups and have such a low spending ceiling 
that a challenger to us could never get off the ground? All in the name 
of getting that nasty money out of the system; we want to get rid of 
that, want to control all that spending, stop the money chase. We could 
all stand up here in a chorus of 100 of us and say we are going to stop 
the money chase. Each of us here are going to set the spending limit in 
our respective States exactly where we think it is reasonable.
  The Senators from Alabama would set the spending limit in Alabama, 
the Senators from Kentucky would set the spending limit in Kentucky, 
and the Senators from Idaho would set the spending limit in Idaho. I 
bet you we would all come up with just the right amount to make sure 
that nobody had a shot at us. I mean nobody. We would make sure the 
groups could not talk at all. We would make sure our opponent could not 
talk much. And, of course, under this, you could tell somebody they 
could not spend their own money to express themselves, the difficulty 
with which the Senator from Alabama was confronted in the primary. We 
could shut them all up under this. This in the name of healthy 
democracy?
  The Democratic leader of the House--I just happened to have it 
posted. I do not want to detain the Senator from Alabama, but several 
people have mentioned this. I just wanted those who might be viewing to 
see it. The Democratic leader in the House, in support of an amendment 
like this, said, with a straight face, apparently--apparently with a 
straight face:

       What we have is two important values in direct conflict: 
     Freedom of speech [on the one hand] and our desire for 
     healthy campaigns in a healthy democracy. You cannot have 
     both.

  I am told he did not snicker when he said that. Everyone who heard it 
broke out laughing. This is one of the most astonishing comments in the 
history of American politics, made in behalf of a constitutional 
amendment, similar to the one before us today, to carve a niche out of 
the first amendment and give the Government, us, the Congress, the 
power to shut everybody up. That is what is before us today. This is 
about free speech. It is about political discourse in this country.
  I thank the distinguished Senator from Alabama for a very important 
contribution to this most important debate.
  Mr. SESSIONS. I thank the Senator from Kentucky. I agree with the 
Senator, the statement as printed behind him there on that chart is an 
astounding and very troubling statement. I think it reflects 
accurately, though, what thicket we get into when we attempt to pass 
laws to regulate speech in the campaign. I do not see how we can get 
out of this.
  I think we need to make sure people report what they give so the 
public can know who is supporting whom. But I think this would be a 
historic retreat, the greatest retreat from free speech since the 
founding of this Nation, if we were to adopt it. It is bad policy, and 
I must speak in opposition to it.
  I thank the Senator from Kentucky for his leadership in this effort.
  Mr. McCONNELL. I thank the Senator from Alabama.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, I ask unanimous consent that the Senator 
from Oregon, Senator Wyden, be added as a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S2259]]

  The Senator from South Carolina has the floor.
  Mr. HOLLINGS. I thank the Chair. I had hoped, when I see the 
distinguished Senator, that he and others on the other side would have 
an open mind. I know there was a time when that occurred. But, 
obviously, you can see from their strategy here that they are taking 
the party position. It is unfortunate when you do that and try to hide 
behind free speech, which is not at issue. We are talking about paid 
speech. But instead, they hide behind James Madison and Patrick Henry 
and do not want to recognize the truth.

  I would be ready to vote this afternoon. I can see at a glance that 
time and again we face a false charge. Time and again my opponents come 
up with the same false representation. And time and again we met with 
anecdotal ``could be's,'' and ``what would happen's.''
  For example, the distinguished Senator from Alabama just said, ``This 
is remarkable. This goes to a fundamental issue. Congress should not be 
amending the Constitution.''
  And under my amendment, Congress is not. Instead, it will be up to 
the people of America. This amendment simply is a joint resolution 
giving authority to the Congress to limit expenditures, should the 
States approve this. We have to get 34 States to approve of this joint 
resolution, and this joint resolution only gives to the people an 
opportunity to vote. I wrote the first version of this resolution 10 
years ago with, ``The Congress is hereby authorized to regulate or 
control expenditures in Federal elections.'' The States and the 
Governors and everyone else said, ``Include us.'' So we amended the 
joint resolution giving the people a chance to vote. So it is not 
Congress that is running around amending the Constitution.
  Then the Senator from Washington, Senator Gorton, ``When we put the 
rights of free speech in the hands of Congress''--we have done it. But 
we did it with respect to false and deceptive advertising. On 
television and radio, we gave Congress the right to regulate free 
speech when Congress acted in controlling obscenity. We told the 
Federal Communications Commission, as the administrative arm of the 
Congress, ``We want you to watch these programs and rule out 
obscenity.'' And then in Buckley, in a 5-to-4 decision by the Supreme 
Court, they held--as the Senator from Washington says, if we put the 
rights of free speech in the hands of Congress, oh, that would be a 
terrible thing. But if we look closely at the Buckley decision, it has 
been put there and has been found constitutional by none other than the 
U.S. Supreme Court.
  When the Congress acted in 1974 to control expenditures in Federal 
elections, the U.S. Supreme Court, in Buckley v. Valeo, to use the 
opposition's expression, took a big hunk out of the first amendment. 
And there are those who would, in political discourse, see their 
freedom of speech to contribute as they choose limited. So don't come 
around here with the call of horrors--``this is fundamental''; ``this 
is so terrible''; or, ``this is remarkable.''
  Their conduct in the treatment of this joint resolution is what is 
remarkable. They don't want to admit that what is involved here is 
limiting spending, not freedom. There is nothing free here at all but 
our chance to limit expenditures in political campaigns. If you want to 
limit spending, if you want to excise the cancer on the body politic 
that has grown so now that we can't even do our business except in a 
party fashion, so be it.
  We have tried over the years in every way. I don't want to clutter 
the Record with the entire article in Congressional Quarterly a few 
years back discussing the need for campaign finance reform, but it I 
will read part of it:

       Most Democrats supported spending limits which would allow 
     challengers to spend on a level equal to incumbents. Under 
     the 1976 Supreme Court decision in Buckley v. Valeo, spending 
     limits had to be voluntary. The Court said that public 
     financing was a legitimate carrot to encourage compliance 
     with those voluntary limits, a concept some Democrats 
     supported anyway, calling public funding ``clean money.'' 
     Most Republicans, however, strenuously oppose taxpayer 
     financing of congressional campaigns which they liken to 
     welfare for politicians. Many Republicans also argued that 
     spending limits locked in incumbent advantages. They said 
     challengers needed the option to outspend incumbents to make 
     themselves equally viable to voters.

  Then, Mr. President, going along:

       In 1987, debate over these issues threw the Senate into a 
     virtually unprecedented procedural fit. Consideration of a 
     bill that included spending limits and Federal funding 
     stretched over 9 months and forced a record 8 cloture votes 
     in an effort to break a Republican filibuster, a 53-hour-24-
     minute session and a Senator injured and dragged to the floor 
     under arrest highlighted the episode. In the end, the Senate 
     failed to overcome partisan divisions, and the bill succumbed 
     to the process.

  The article goes on to talk about a bill in 1992. They wrote:

       In the years that followed with a Republican in the White 
     House pledging to veto any bill approved by the Democratic 
     Congress, neither party showed much interest in restaging the 
     drama. Instead, when an ethics scandal broke, such as the 
     Keating Five affair in 1990 and 1991, in which five Senators 
     were accused of accepting favors from a savings and loan 
     magnet, campaign finance legislation was trotted out as a 
     symbol of reform. The two Chambers reached agreement on a 
     bill in 1992, after the House came under siege over the House 
     bank scandal. That bill stapled a plan House Democrats had 
     crafted for their campaigns to an entirely different plan 
     Senate Democrats had sanctioned. Both plans, however, 
     included spending limits and public finance and, as promised, 
     President Bush vetoed the bill.

  I only mention this because it has been a long, hard road, and I 
hoped, as that article said, that we would have another fit here. I 
thought that we would get a fit of conscience here and really do away 
with the partisanship stonewalling, because they know that is what is 
involved. They have the advantage, in spite of all that the White House 
did in the last Presidential race. Just mark it down in Senator 
Thompson's hearing that the Republicans got $150 million more. So 
whatever the Democrats did, the Republicans did better. We all know it, 
and you can ask anybody in the public.
  We have been in the game, we have watched it, we have read about it, 
everybody knows about it, and we have tried over the years to correct 
it. In 1966, Congress adopted public financing for Presidential 
elections, and then in 1967, they repealed public financing for 
Presidential elections.
  In 1971, there was the passage of the Federal Election Campaign Act.

  In 1974, the amendments to that.
  In 1976, a further amendment.
  In 1979, another amendment.
  By 1985, we had the Boren-Goldwater amendment--we had bipartisanship 
then--to change the contribution limits and eliminate the PAC bundling, 
but that was tabled.
  Then, in 1986, the Boren-Goldwater amendment was adopted, but then it 
didn't go far.
  In 1988, Senator Byrd forced nine votes on the motion to instruct the 
Sergeant at Arms and request the attendance while trying to get a vote 
on S. 2. That is when they arrested a Senator, only the second time in 
history, dragging him in.
  In 1988, we had the Hollings constitutional amendment to limit 
campaign expenditures, and we got a 53 to 47 vote on cloture. Of 
course, we needed 60 votes at that particular time, and the majority 
didn't control.
  In 1989, S. 139, a comprehensive reform passed the Senate but never 
made it out of the conference.
  In 1991, of course, as I just mentioned, a comprehensive reform 
passed, which President Bush vetoed.
  In 1993, we had a sense of the Senate by this Senator that Congress 
should adopt a constitutional amendment limiting campaign expenditures 
which passed 52 to 43.
  In 1993, we had a comprehensive reform pass the Senate but it never 
made it out of conference.
  In 1995, again the Hollings constitutional amendment to limit 
campaign expenditures offered as amendment to the balanced budget 
amendment. That was tabled by a vote of 52 to 45.
  And, in 1995, the Senate passed the sense-of-the-Senate amendment to 
address the campaign finance reform during the 104th Congress. Again, 
we got a majority vote.
  Then, in 1996, we had cloture on the McCain-Feingold campaign finance 
reform, and that cloture vote failed by a vote of 54 to 46.
  So we keep hammering and hammering and trying every kind of which 
way. But we know that the intent in 1974 was to prevent individuals 
from buying their way into office. And now

[[Page S2260]]

we are continuing our fight in trying to overturn the Buckley decision 
that held the office must be bought. We are trying to remove that 
requirement, because the money in campaigns has gone up, up, and away. 
Good people are being withheld from public service, and the public is 
losing confidence in the democratic process.
  The only way to save this democracy is amend the Constitution. And 
rather than recognize this fact, the opposition simply raises strawman 
after strawman.
  The distinguished Senator from Kentucky and the Senator from New 
Mexico, Senator Domenici, say, ``Might a Congress not come up and cut 
off speech entirely?'' The Senator from New Mexico says, ``I could 
dream up a scenario where that would be constitutional.'' He said he 
did not think it was going to happen, but he could think of that later 
on at a time when Congress would act in an inordinate fashion.
  Then he turns to the Senator from Washington. He asks, ``Can't you 
think of a Congress that may shut down entirely any opposition that 
just comes?'' Well, Senator Gorton, the Senator from Washington, said, 
``I doubt that that would happen, but it is the most fundamental attack 
on the freedom of speech since the adoption of the Constitution.''
  So they continue the same rhetoric about the freedom of speech. But 
if Buckley says that freedom of speech can be limited with respect to 
those contributing in politics, then why not for those spending? They 
do not want to answer that question.
  Chief Justice Burger, in the better of the opinions in that case, 
said they are two sides of the same coin, contributions and 
expenditures.
  To quote exactly, he said, ``The Court's attempt to distinguish the 
communication inherent in political contributions from the speech 
aspects of political expenditures simply will not wash.''
  But, no, we come here with the Senator from Alabama, ``Congress 
should not amend the Constitution.'' I agree with him. It cannot. But 
instead, we let five Justices of the Supreme Court--over the opposition 
of four individuals--amend the Constitution whereby they limit freedom 
of speech as to contributions.
  I put it word for word in this particular joint resolution. I wanted 
to show how we had come and aimed right down the barrel of the U.S. 
Supreme Court on the so-called freedom of speech. ``Congress shall have 
power to set reasonable limits on the amount of contributions that may 
be accepted by * * *.'' That is word for word the Buckley versus Valeo 
decision. You can limit the amount of contributions.
  That is what Congress did in the 1974 act. It is a frustrating thing 
that is going on today because we try and try over a 30-year period. We 
arrest people, get into a 9-month debate, and have cloture resolutions.
  But now they ignore the need for action. They go in the back room and 
say, we are going to vote as a party so do not worry about it. We let 
it go on over the weekend, discuss it maybe on Friday or Monday, and 
vote on Tuesday, because no one is going to listen. All that is 
required is for someone to come out from time to time, mention freedom 
of speech, and talk about how remarkable, how untoward, how drastic 
this amendment is.
  Then they have the Senator from Kentucky get up and say, ``Don't you 
think the Congress could do all these horrible things?'' Well, it has 
already occurred. Congress passed the 1974 act, and the Supreme Court 
has held it binding. Our mistake was in figuring that conscience and 
common sense would say, as Chief Justice Burger said: two sides of the 
same coin.
  We say, ``Congress shall have power to set reasonable limits on the 
amount of contributions that may be accepted * * *.'' We have done it, 
and we are doing it. Then we add ``* * * and the amount of 
expenditures''--which is what we try to get--``that may be made in 
these campaigns.'' That is all it is. And it is said, let the people 
vote on it.

  I wish I could get enough publicity to get the people focused on what 
is involved here and break down the stonewall thrown up by most on the 
other side of the aisle against limiting expenditures. We tried in a 
bipartisan way in 1974 to limit expenditures, and we said so much per 
our votes at that particular time.
  After Watergate, Congress did not say, ``Heavens above, let's limit 
the campaigns to $50,000,'' or any such thing. We had limits in a small 
State like South Carolina where we could spend $510,000, and inflate 
that over the 20-year period. That is not $50,000. But no, they come up 
and say what Congress could do and how the U.S. Supreme Court, under 
the mandate of being reasonable, would agree with them.
  You know and I know that is a straw man. It should not even be 
considered seriously. But they come here with a very analytical 
argument about, ``The media sets the agenda, the fourth branch,'' and 
try add to their parade of horribles as to what the media could do. 
Well, look at this particular joint resolution. It has nothing to do 
with the freedom of the press, absolutely nothing to do with the 
freedom of the press. And on the other hand, you have that freedom of 
the press right now.
  I related in the debate yesterday that I was running along with a 
nice little lead going into the election in 1992, and along comes the 
Wall Street Journal and Paul Gigot. We had not heard of him before and 
we have not heard of him since. But it was coordinated with the London 
Economist and Robert Novak and others. Articles started being written 
about the right to work. They know South Carolina is a right-to-work 
State. And they said, by cracky, I was opposed to it, but in fact I 
voted for it as a member of the State legislature and have stuck with 
it throughout my political career. Organized labor knows that.
  My opponents try to make the claim that I could say that the 
editorial was a contribution against me or a contribution for my 
opponent and therefore set it aside. Nonsense. They know that.
  If you get a violent, caustic, scavenging editorial against you as a 
politician, wake up, because you are in the game. As Harry says, you 
have to take the heat or get out of the kitchen. If you are in the 
kitchen of politics, that is going to happen. There is no such thing as 
stopping it under our Constitution. Certainly not this amendment, which 
is to limit campaign expenditures, not the free press.
  But they try to distort and stretch with this strawman exercise and 
charade that we have been going through here all day today. Here and 
now, and I have experienced it, that kind of activity has already 
occurred.
  What we say here, and it is as simple as was testified before the 
Judiciary Committee in 1988, is 43 very simple, very clear-cut, words 
to limit expenditures in Federal, State, and local elections. That is 
all it is. Shall we do it? Shall we have the authority? It does not 
address those questions. It does not say how you do it or that you must 
do it.
  The Senator from Kentucky, Senator McConnell, has been forthright. He 
says we have not spent enough money on politics. He talks about how we 
spend way more money on cat food and dog food and Kibbles 'n Bits and 
yogurt. You would think that there would be some kind of dignity in the 
silly things they put out as real arguments against this particular 
mission. But the Senator from Kentucky has come forward and said we are 
not spending enough. Well, that is forthright. Maybe he can persuade 
others, as he has persuaded the stonewalling opposition here today, and 
he might get it increased. Then we can all get out and let the idle 
rich come in here and make the laws for the people of America, because 
we will not have any regular folks that are willing to listen to the 
people, who demand we get this money out of politics, that we limit 
this thing, that we get this corruption out of politics.
  Everybody admits to it and everybody says, ``I am for reform, reform, 
reform, campaign finance reform.'' But you cannot get reform unless you 
have the authority. This has been proven over the last 30 years by all 
of these failed attempts. So if you want new authority, which does not 
say whether or not to do it, does not try to limit newspapers, does not 
say what it is expenditures, vote for this amendment. As a politician, 
you are not going to get anything free from the free press. Go to them 
and ask them for a quarter- or half-page ad and they will laugh at

[[Page S2261]]

you. They just do not give free coverage. I have not ever heard of a 
newspaper doing it yet.
  The same with the radio and the TV advertisements. Go tell them how 
much you want to buy, and we are couched in a very sinister way into 
these 30-second ads. You cannot discuss intelligently the issues before 
the American people. That is the real burden on an incumbent. They say, 
``Well, Hollings, you voted in 1974 one way and now in 1994 you are 
voting another way.'' Well, you come forward and try to explain that, 
but you cannot explain that in a 20-second bite on TV. And try to buy 5 
minutes. They will say, ``No, we are not selling that, and there is 
nothing you can do about it. Nothing you can do about it. We control 
the prime time that you need to do it. We control that freedom of your 
speech.''
  It is already controlled here in the U.S. Senate with the filibuster 
rules, and over on the House side with the 1-minute, 2-minute, 5-minute 
rules, and in the committee with 5 minutes per Senator to examine the 
witnesses. We all agree and understand and know the reason for the 
limits, but then they bring on the dog and pony show, saying 
``remarkable, fundamental, never heard of it before.'' Who believes 
that?
  Mr. President, for 21 years Buckley versus Valeo has been on the 
books and we have abided by it, as the distinguished Senator from 
Arizona says. We have the PAC limits and individual contribution 
limits. But there is no limit on the individual candidate. That is what 
we were after back in 1974. I was there. I voted. We said, ``Mr. Rich 
Man, you cannot buy this office.'' Now with this half a haircut 
solution, what we have is the ones who contribute are totally limited, 
but the ones with the wealth are totally unlimited. In reality, then, 
you have taken away the speech of the poor. You have indirectly limited 
the speech of the poor in spending.

  The Supreme Court, five individuals against four, have amended that 
Constitution. You know it and I know it, but yet you come up here and 
talk about what is remarkable and fundamental and ``the first time in 
200 years'' and on and on and on. Congress was given the authority to 
prohibit false and deceptive advertising and it has been upheld by the 
Court. Congress has amended the right of free speech with respect to 
obscenity. It has been exercised, and in the decision of the U.S. 
Supreme Court upheld. In a sense, we now have the rights of free speech 
in the hands of Congress. They said that is fundamental, and do not 
ever do that. Like this is something new, putting the right of free 
speech in the hands of Congress. But Congress has done it, and it has 
been upheld in Buckley versus Valeo. To use their expression, the Court 
``took a big hunk'' out of the first amendment, and found that among 
those who want to exercise their free speech by contributing, free 
speech is limited.
  So we should get the real facts out about what we have here. We have 
a bottom line. Do not come here congratulating on a misdescription by 
the Senator from Texas as to whether or not you are for free speech. We 
say expenditure. We do not say anything about ``free'' in this 
amendment. It has nothing to do with free. It has to do with paid 
speech, paid expression.
  I was really moved by the Senator from Texas, who tried to change the 
debate. That is what you have constantly with the stonewall against 
limiting spending on the other side of the aisle. That is what we have. 
They do not want to limit spending. They will say, ``Well, you have the 
advantages of people. You have the AFL-CIO, the organization labor 
fellows, but we have the banks and we have the money and you expect us 
to give up our money.''
  Well, well, well, I think that both sides have the cancer of money. 
They ought to be able to recognize the reality that faces us after the 
30-year trying. They ought to give the people of America the right to 
vote and amend the Constitution.
  When my Southern State and a lot of other Southern States had the 
poll test, we amended the Constitution. I told the story about the poor 
minority that presented himself to the polls in the early years and we 
had the literacy test. They said to the poor minority, ``Boy, read that 
paper.'' They gave him a Chinese newspaper. What goes around comes 
around; we are back to China. And the poor individual just looked at it 
and he said, ``Yes, sir, I can read it.'' He said, ``You can? What does 
it say?'' ``It says, 'Ain't no poor minority fellow going to vote in 
South Carolina today.' '' Yes, he could get the message. There were all 
kinds of devices to prevent some from voting. However, we have amended 
the Constitution to fix that.
  If Madison, Patrick Henry, and Jefferson and all that crowd that the 
other side has been celebrating were so good, with their slaves, why 
did we have to pass the 14th amendment? We didn't agree with what they 
found, so we had the discrimination cases and the civil rights 
movement. In my lifetime, we have had the poll test. We changed the 
Constitution to fix that.
  We changed the Constitution when we made a mistake in Prohibition. We 
changed the Constitution when we made a mistake with respect to the 
Federal income tax law.
  Now, professors, all the studied minds, jurists, attorneys general, 
and the like have, said the Supreme Court made a mistake in Buckley 
versus Valeo, and the only way to correct it is with a forthright, 
restricted, limited kind of constitutional amendment. An amendment that 
says expenditures are limited in Federal, State, and local elections. 
It is not free speech, it is paid speech. We are just as assiduous as 
any other Senator in the protection of the freedom of speech. We know 
its value, but we know it must have exceptions.
  I put in the Record, Mr. President, a statement by Prof. Lawrence 
Tribe of the freedom of speech and some of its exceptions that have 
developed over the years. So don't come here on the floor of the Senate 
with the act about fundamental, how remarkable this is. Egads, the U.S. 
Senate has voted for a constitutional amendment to grant Congress the 
authority to limit campaign spending three times. We just voted 4 years 
ago for a Sense of the Senate Resolution. Is there any sense of history 
and experience around here that we can finally come to grips with the 
fundamental--yes, it is a fundamental--money is a cancer on the body 
politic.
  If money corrupts in political campaigns, then unlimited money 
corrupts absolutely in political campaigns. We know that, in warfare, 
he who controls the air controls the battle. We know and understand and 
appreciate that, in campaigns, he who controls the airwaves controls 
the campaign.
  What you have here is the rich, as we saw 2 years ago in California, 
spending $30 million to be a Senator, and we think that is legitimate. 
It is a disgrace. It is buying the office, and everybody knows it.
  The rich who walk in and say, ``I am making so much money, but I need 
another tax cut, a flat tax,'' and they sell it by controlling the 
airwaves with their millions of dollars in a Presidential race--they 
ought to hang our heads in shame. That kind of activity is going on and 
is even covered by the free press. They ought to understand that 
freedoms really are in jeopardy when we allow the rich to come along 
and buy the office.
  My amendment says reasonable limits on expenditures, not on speech.
  Mr. President, if others want to be heard, I will be glad to yield 
the floor, but I have plenty here with respect to the authorities and 
the witnesses that appeared before the Judiciary Committee. We have had 
hearings. The former Senator from Illinois, Paul Simon, was on the 
other side. He withheld in that committee for a long time. I had to 
struggle to get a majority vote. But we had the witnesses. They were 
heard, and a majority of the Judiciary Committee voted the amendment 
out and to the floor.

  Please, my gracious, they reported it out. Once out, we didn't get it 
passed, but we got a sense of the Senate that it should be passed. 
Senators want to get that political credit. It's a pollster politician 
that says, ``I am for reform and that is what we ought to do.'' ``Yes, 
sir, I believe we ought to limit this financial cancer.'' ``Yes, I 
voted reform when it was only a Sense of the Senate.'' And then when 
they get to real reform, they put on this big show here trying to quote 
Mr. Gephardt and saying, ``You can't have a strong democracy and 
freedom of speech.'' They know and I know, this democracy is strong 
because of free speech--none of us believe otherwise. I think it is a 
distortion. I think it is a distortion perhaps

[[Page S2262]]

of what the gentleman said, but be that as it may, no one ascribes to 
that in this particular body.
  Everybody knows how we got here. Incidentally, we all got here not 
through free speech--unless somebody was appointed, and I can't think 
of any appointments now that we have had the election--but every one of 
the 100 have had to pay through the nose to be heard on the TV, to be 
covered in the newspapers, to be heard on the radio, and seen on the 
television, billboards, and yard signs. So we know all about the paid 
speech.
  That is what we are trying to do, put an ultimate limit on it 
because, once done, then we can get a handle on some of the real 
abuses. Then we control all of the monkeyshines that go on.
  Once you get it limited and fully disclosed, like in the 1974 act 
where every dollar that I receive in a campaign is recorded in the 
secretary of the senate's office in my State capital and with the 
Secretary of the Senate, then you get it under control. With that limit 
and disclosure, you can see from whence they come, and who has, if at 
all, tried to buy or has been subject to undue influence.
  After all, it is the people who are the ultimate jury. They decide on 
election day. You can refer to that public record and say, see, he is 
bought and paid for by such and such an industry or such and such an 
interest, whatever it is that comes out in the campaign. That is what 
the disclosure requires. You can't receive huge sums and have it 
obscured.
  We ran it the right way back in 1974. But the justices who amended 
the Constitution in that Buckley decision, they created the system we 
have been tortured with now for the past 20 years. And every time we 
make the good college try to fix it, they come out here, and I am 
surprised, frankly, at this particular charade because they got a lot 
of good conscientious Members that have come to the Senate, and they 
say we will not fix it.
  Some of those Members have run on the proposition of trying to limit 
spending. Here is the one opportunity to ask the American people if 
that is what they want to do. Hollings is not amending the 
Constitution. The Senate is not amending the Constitution. The Congress 
is not amending the Constitution. We simply, in a little closely worded 
amendment, said the people will have a chance to vote on it in the 
several States.
  The last amendment to the Constitution took 200 years to pass. That 
is the 27th amendment. ``No law varying the compensation for the 
services of the Senators and Representatives shall take effect until an 
election of Representatives shall have intervened.''
  Congress submitted the text of the 27th amendment to the States as a 
part of the proposed Bill of Rights on September 25, 1789. The 
amendment was not ratified with the first 10 amendments, which became 
effective on December 15, 1791. The 27th amendment was ratified on May 
7, 1992, by the vote of the State of Michigan.
  Just like the 27th amendment, you can put this Hollings-Specter 
amendment up and let the people decide. You don't have to talk about 
this amendment being so remarkable. It is not remarkable to let the 
people decide. Only the people will change our fundamental rights. 
Don't believe those who say it is going to guarantee incumbency or any 
other of those parade of horrors that they bring up. Just remember, we 
are just giving the people, the good, commonsense American people, the 
chance to vote.
  When the people looked at the 27th amendment, it wasn't until 203 
years later, in 1992, that they finally got the State of Michigan to 
ratify it and the people decided. So there you are. It is just a chance 
to give the people chance to clear up this Buckley versus Valeo 
decision.
  The distinguished Chief Justice said, ``The Court's result does 
violence to the intent of Congress.'' There isn't any doubt about it. I 
was there. Chief Justice Burger,

       The Court's result does violence to the intent of Congress 
     in this comprehensive scheme of campaign finance. By 
     dissecting the act bit by bit and casting off vital parts, 
     the Court fails to recognize the whole of this act is greater 
     than the sum of its parts. Congress intended to regulate all 
     aspects of Federal campaign finances.

  I read again Chief Justice Burger:

       Congress intended to regulate all aspects of Federal 
     campaign finances. But what remains after today's holding 
     leaves no more than a shadow of what Congress contemplated.

  This decision, a 5-to-4 decision, and they are talking about what 
Congress might do. Look at what those five individuals have done.
  Look what Justice White said in dissent,

       The judgment of Congress was that reasonably effective 
     campaigns could be conducted within the limits established by 
     the act and that the communicative efforts of these campaigns 
     would not seriously suffer. In this posture of the case, 
     there is no sound basis for invalidating the expenditure 
     limitations so long as the purposes they serve are legitimate 
     and sufficiently substantial, which in my view they are.

  So there is Justice White finding them ``substantial'' back 20 years 
ago, long before any kind of Keating Five, long before the Lincoln 
Bedroom, long before the soft money scourge with the Colorado decision. 
Long before all these things, there was ``substantial'' then, and they 
are more than ``substantial'' today. ``Expenditure ceilings reinforce 
the contribution limits and help eradicate the hazard of corruption.''
  Justice Byron ``Whizzer'' White couldn't be more correct. He couldn't 
be more on target. We know it. The American people outside this Chamber 
know it. They have asked for a chance to correct it. Let me read 
further from Justice White.

       I have little doubt, in addition, that limiting the total 
     that can be spent will ease the candidate's understandable 
     obsession with fundraising and so free him and his staff 
     to communicate in more places and ways unconnected with 
     the fundraising function. There is nothing objectionable, 
     indeed, it seems to me, of weighing the interest in favor 
     of the provision in the attempt to insulate the political 
     expression of Federal candidates from the influence 
     inevitably exerted by the endless job of raising 
     increasingly large sums of money. I regret that the Court 
     has returned them all to the treadmill.

  Mr. President, when you talk of that treadmill, you can't ignore the 
description that was used by the distinguished writer some 15 years 
ago, Elizabeth Drew, in the New Yorker when she described, if you 
please, the same situation with respect to that treadmill in her 
article ``Politics and Money.'' And I read:

       Until the problem of money is dealt with, it is unrealistic 
     to expect the political process to improve in any other 
     respect. It is not relevant whether every candidate who 
     spends more than his proponent who wins--though in races that 
     are otherwise close, this tends to be the case. What matters 
     is what the chasing of money does to the candidate and to the 
     victor's subsequent behavior. The candidates' desperation for 
     money and the interests' desire to affect public policy 
     provide a mutual opportunity. The issue is not how much is 
     spent on elections but the way the money is obtained. The 
     point is what raising money, not simply spending it, does to 
     the political process. It is not just that the legislative 
     product is bent or stymied. It is not just that well-armed 
     interests have a head start over the rest of the citizenry--
     or that often it is not even a contest . . .
       It is not even relevant which interest happens to be 
     winning. What is relevant is what the whole thing is doing to 
     the democratic process. What is at stake is the idea of 
     representative Government, the soul of this country.

  That was written in 1982, some 15 years ago. We were worried then 
about Buckley versus Valeo. That was 6 years after everybody had looked 
at it and seen the treadmill, exactly as Justice White called it, and 
the damage to the soul of the country as a result of this treadmill. It 
was an injury to our democracy, according to Elizabeth Drew.
  There is no question that this has to be dealt with. They might run, 
as Joe Louis said, but they can't hide. I am not going to let them hide 
behind this freedom of speech babble. I have it in here word for word. 
Mr. and Mrs. American people, you are given the authority to vote. You 
are not controlling it unless you vote yea, allowing Congress to have 
the power to set reasonable limits on the amount of contributions.
  That is already in place under the Buckley versus Valeo 
constitutional decision. We have that limit on the freedom of speech 
which is so remarkable and so fundamental that they inaccurately 
continue to caterwaul about. Now, we are attempting to limit the amount 
of expenditures, not freedom of speech. It is limits on the amount of 
contributions, limits on the amount of expenditures, nothing free. It 
is contributions and it is expenditures, and it is limits thereof, and 
it is

[[Page S2263]]

whether or not the American people shall have the right to vote on it 
after this 30-year trial.
  Otherwise, as Justice Thurgood Marshall in another one of the 
distinguished dissenting opinions stated, and I quote:

       It would appear to follow that the candidate with the 
     substantial personal fortune at his disposal is off to a 
     significant head start. Of course, the wealthy candidate can 
     potentially overcome the disparity in resources through 
     contributions from others, but ability to generate 
     contributions may itself depend upon a showing of a financial 
     base for the campaign or some demonstration of preexisting 
     support, which in turn is facilitated by expenditures of 
     substantial personal sums. Thus, the wealthy candidate's 
     immediate access to a substantial personal fortune may give 
     him an initial advantage that his less wealthy opponent can 
     never overcome. And even if the advantage can be overcome, 
     the perception that personal wealth wins elections may not 
     only discourage potential candidates without significant 
     wealth from entering into the political arena but also 
     undermine public confidence in the integrity of the electoral 
     process.

  There it is, that last phrase--``not only discourage potential 
candidates without significant personal wealth, but also undermine 
public confidence in the integrity of the electoral process.'' That is 
exactly what is occurring
  That is the trouble. As Marshall said:

       Large contributions are the less wealthy candidate's only 
     hope of countering the wealthy candidate's immediate access 
     to substantial sums of money. With that option removed, the 
     less wealthy candidate is without the means to match the 
     large initial expenditures of money of which the wealthy 
     candidate is capable. In short, the limitation on 
     contributions puts a premium on a candidate's personal 
     wealth.

  Think about that. This is, as expressed, ``a big hunk of the first 
amendment,'' as expressed by my distinguished colleague from Kentucky. 
We are capable of limitation on contributions. And that is sustained 
here by the U.S. Supreme Court in the Buckley case. That puts a premium 
on a candidate's personal wealth because the only way that a less 
wealthy candidate can catch up is with large expenditures. But the 
Court, has ``limited the freedom of speech for the first time in 200 
years.'' I will use their expression and see if anybody believes it. 
This happened in 1976. It happened after many other times the Court has 
upheld limits, but let us use their expression if that is what 
everybody wants to believe. The Supreme Court, in Buckley versus Valeo, 
for the first time in 200 years, limited a contributor, his expression, 
and his freedom of speech in politics and therefore has put a premium 
on the candidate's personal wealth. He is penalized. The speech of the 
less affluent candidate is taken away because the less affluent 
candidate can only make it up, if he has no personal wealth, by larger 
contributions. But the Court, in limiting contributions, limited free 
speech for the first time in 200 years.

  Maybe that is the way they will understand it. I do not know how to 
get their attention and get them out from this stonewalling on limiting 
spending in political campaigns.
  Everywhere we go, they all say, what about campaign finance reform, 
Senator? I say, ``Oh, yeah, I am for reform.'' And then one chance we 
get here this week to vote for it, we decide to put it off until next 
week. We hope it does not appear on the Sunday programs or anything of 
that kind so the people will never know we had that chance. And once we 
have done that, then they will tell Senator Feingold and Senator 
McCain, ``Well, you had your vote; you can see Congress does not want 
to limit it. We cannot spend a whole year on reform. You have had your 
chance, and the majority voted against that chance. You did not pass 
the joint resolution of Hollings-Specter so let's go on to something 
else.'' Thereby, the entire thing is supposed to be swept under the 
rug. Well, it was almost swept under the rug on Monday. On Monday, they 
had it greased. They had a majority vote out of that Rules Committee, 
Mr. President, to just look at the illegal and not look at the 
improper, and they thought they had a majority vote along party lines. 
But Senator Thompson of Tennessee won out. He said we had a fit of 
conscience of at least eight or nine on that side. They were going to 
have egg on their faces. They were going to lose to a Democratic 
amendment.

  ``My gracious, we cannot ever let that happen. We are so bipartisan 
around here,'' they said. My Aunt Ida. Instead they said, ``we just 
cannot have a Democratic amendment prevail in this particular score. 
So, we will just all join in, then, and vote the 99 votes and adopt 
it.'' They had a fit of conscience.
  Maybe we will get a fit of conscience. Maybe not today, maybe not 
tomorrow or next week, but we will keep coming back. We have had it 
three other times. We will get this the fourth time. We keep picking up 
steam.
  My difficulty over the years has been in trying to put up an 
amendment again and again, because they tell me at the desk, that 
according to parliamentary rules, you cannot amend a simple bill--three 
readings in the House, three in the Senate, signed by the President--
because this is a joint resolution. It is not to be signed by the 
President, but to go directly to the people for their ratification in 
the several States.
  So, if I bring it up on any and every bill--which I am prepared to 
do, because I know the people are demanding it, and we will finally 
make a breakthrough--I have to wait for a joint resolution. That is why 
I finally got it up on the balanced budget amendment to the 
Constitution, for the simple reason that last year Senator Dole would 
not let me up. He just would not bring up a joint resolution on 
anything. When he got his unanimous consent to bring up the balanced 
budget amendment, I told them that I had an amendment to offer. They 
said later on, ``Oh, that is not relevant and our agreement meant 
relevant amendments on the balanced budget amendment to the 
Constitution.''
  So I struggled all last year, 1996, and could not even get it up. I 
am going to look for any joint resolution that quietly comes by, and I 
will draft my resolution so that it is separate and apart from the 
other resolution, so that it would not interrupt it, and we, maybe we 
can get an up or down vote at that particular time again. But I can 
tell what the strategy is here, now. It is to get an arguable reason to 
stonewall McCain-Feingold. We can say, ``Well, we have had enough 
debate. We debated it 3 or 4 days, and everything else. Everybody has 
considered it. They are not going to limit campaign expenditures, so 
why do McCain-Feingold? If you do this, you are going to limit it. If 
you do that, we are going to limit it. We have already voted on limits 
in the Hollings amendment and that is it. Forget about it and let us 
all go home and say we all tried. We were all for reform.''
  Oh, yes, we are all for limiting it any time it is in a sense of the 
Senate. It is kind of hard to hide behind that. Maybe that is what I 
will continue to do, on every bill, get a sense-of-the-Senate 
resolution. I think you have to get 25--we can get 25 Senators to 
cosponsor that right easily, and keep bringing it up until they get 
that fit of conscience.
  They do not have it now. They are not interested in the soul of 
democracy. They are not proud to be in public service. What they are 
proud to do is outmaneuver; what they are proud to do is avoid and 
evade; what they are proud to do is finesse, in a clever, parliamentary 
way. What they are proud of is parliamentary maneuver. So, then they 
all vote up or down on this. They smile at each other. And they will 
give that praise to the Senator from South Carolina. They will say, 
``We know he is sincere, but he is so misdirected, the poor fellow. He 
has tried hard. We respect him for trying so hard, but, bug off, son. 
You are not going to pass anything here that has to do with limiting 
expenditures in Federal elections.''
  That is what we have considered, time and time and time again. And it 
is not freedom of speech--it is the protection of speech. But if they 
want to say it is the freedom of speech, then we have drafted it after 
Buckley versus Valeo, which said that part of the speech is already 
limited. Let us give a neat little other side. There are two sides to 
the Buckley coin, as Justice Burger said. Let us take care of the 
expenditures themselves and not dance around the mulberry bush with 
Patrick Henry and James Madison and anybody else from the time that 
they believed in slavery.

  That is the forefathers. I think we have come a long way. They did 
not have to go down the road in the wagon and solicit $14,000 every 
week. They did

[[Page S2264]]

have freedom of speech and free elections.
  They did a pretty good job, though. We got a good Constitution, 
generally. But we have had to amend it because they did believe in 
slavery and we have outgrown that particular cancer. We are trying this 
afternoon to outgrow this particular cancer. We can get elections back 
to the issues and the confidence of the people back in their Congress 
and their democracy. And we can get participation. But why did less 
than 50 percent come out to vote? The votes say, ``What is the reason? 
The money controls the whole blooming thing.''
  Look at what is in the headlines, that is all we have had--January, 
February, down into March. There is another shoe that falls every day. 
They begin to think this political contribution character is a 
centipede. I have never seen so many shoes falling.
  We go from Indonesia to China to all these different countries to 
everything else of that kind. It would be helpful to me if they all 
would say: ``Look, we tried to compete. We stretched every law. We 
intentionally stretched every law. We asked Philadelphia lawyers, `Can 
you do it?' And when the Philadelphia lawyers said, `You can do it,' 
then we said, `We have to do it, because that Republican crowd is going 
to outraise us anyway you look at it.' '' And they did. They raised 
over $150 million more than the Democrats were able to raise.
  So, why don't they admit to what exactly occurred and then let us 
pass this amendment and give the people an opportunity to vote on what 
they have been asking for 30 years now. I went down the litany of 
failed reforms, Senator, from 1966 right on.
  But when we get the distinguished former chairman of the Judiciary 
Committee, and now ranking member of the Foreign Relations Committee, 
to come to the floor, the Senator from South Carolina knows when to 
hush. I yield the floor.
  The PRESIDING OFFICER (Mr. Hagel). The Senator from Delaware.
  Mr. BIDEN. Mr. President, I want to apologize to my friend from South 
Carolina because, as usual, he has been carrying the heavy load here. 
He has been carrying the water for all of us. I do apologize for not 
being here, to be more engaged in this debate. Frankly, I say to my 
friend from South Carolina, everything else we talk about--all the 
other talk about what we are going to do about campaign financing and 
campaign finance reform, and who has more money and who has less money, 
and how to avoid the stain and stink of money--ultimately, cannot make 
a difference until, we do what you have been telling us we need to do 
for the last decade or more.
  We have a Supreme Court that has interpreted the first amendment in a 
bizarre way. This is not only with regard to the Buckley case. Take, 
for example, all this talk about soft money. We would not be in the 
spot we are in with soft money in terms of both political parties had 
it not been for the Supreme Court decision last year. At least there 
used to be a couple of veils left in this dance of seven veils. Now, 
you have major, major contributors who can come in and just change the 
whole dynamic of Senate and House races.
  I just came from a meeting on chemical weapons. This is sort of the 
biological agent of politics that we are trying to eliminate here. Two 
years ago, in the last cycle, if somebody wanted to come in and put up 
$100,000, $500,000, $1 million, $5 million--if they did it all by 
themselves, did not coordinate it with a political party, put up 
billboards and advertisements and did not collude with the one or the 
other political parties against a specific candidate, then they could 
spend all the money they wanted. But there was this little veil that 
sat there. It did not allow the multimillionaire to pick up the phone 
and call the chairman of the Democratic Party or Republican Party in 
Delaware and say, look, I want to defeat Biden or I want to defeat the 
other guy and I have a million bucks; how do you want me to spend it?
  The Supreme Court came along--a fellow I voted for, a brilliant guy--
and wrote an opinion and said in effect, ``Oh, no, there's no 
distinction between you going out and spending it yourself, in first 
amendment terms, and giving it to and coordinating with a political 
party.''
  What happened? We have a thousand dollar limit on individual 
contributions. But what does that mean? In my campaign this last time 
out, all of a sudden I find--I assume in coordination with the 
political party; by the way, I am not saying Democrats would do the 
same thing if they had the money--all of a sudden, I am finding all 
these ads on the radio with our good friend Malcolm Wallop. He was a 
good friend; he is a good man. He was heading up Americans for Freedom 
or some organization with a name like that.
  He said, ``This is Americans for Freedom. Do you realize Senator Joe 
Biden is taking away your freedom?'' Another group came in and did 
specific radio ads against me, coordinated by the Republicans.
  All of a sudden, my opponent had money. When he had to go out and get 
little pieces at a time, he had a hard time convincing people to give 
him the money. But, you get a couple of those big guys, they come 
along, and here is 10, 20, 50, 70, 100,000 bucks.
  The point I am making is, all that is legal now. So what are we going 
to do? We can pass all the laws. I support McCain-Feingold. I am going 
to vote for it. But, I am reminded of that person who once said, ``You 
know, moderate reform is like moderate chastity.'' That is about what 
we are getting here with legislation.
  When I arrived here, one of the first things I did, to the best of my 
recollection--it was Dick Clark and Joe Biden--was propose Federal 
funding of elections, congressional elections, because I wanted to get 
the private money out of this deal. I wanted to challenge incumbents, 
to let challengers have the same money incumbents had. I did not want 
public officials to be beholden to anybody but the American taxpayer.
  I will never forget, some Democratic Senators, God bless their souls, 
like Warren Magnuson--``Maggie,'' as we used to call him--from 
Washington State, and some very prominent Republicans, looked at me and 
said, ``Kid, do you know what you're doing here? Do you understand 
this?'' I am not joking about this. ``Do you understand this?''
  One Senator I will not name but has long since passed, called me into 
the Cloakroom, pulled me aside and said, ``Joe, come here.'' I was 30 
years old at the time. I walked in and said, ``Yes, sir?''
  He said, ``Enough of this stuff now, all right?''
  I said, ``Enough of what?''
  He said, ``This thing about giving the other guy the same amount of 
money we get.'' He said, ``I worked too''--I won't quote him 
precisely--``I worked too darn hard to get to the point where some 
little sniveling brat will get the same money I have to run against 
me.''
  Well, that is why nobody in here wants to have it that way. I am not 
crazy about the fact. I have been around longer now. I am a senior 
Senator, so I can raise more money than the other guy. But, the other 
guy should have as much money as me to run, and neither of us should 
have to go around with our hats in hand saying, ``Will you help me?'' 
because it is a corrosive process, especially for a new guy and a new 
woman.
  The reason I am saying that is this. I believe the vast majority of 
people who contribute to campaigns contribute to campaigns because 
they, in fact, find a Senator who already has a position they agree 
with. The problem I worry about is the young person who decides to run 
for the first time.
  I will repeat this story. I told it in a hearing once, and I paid for 
it. But I will repeat it again and probably will pay for it again.
  Toward the end of my first campaign, when I was 29 years old, I had 
no money, didn't have a thing--no television money--and all of a 
sudden, the guy that couldn't possibly be beaten, I am within a point 
of him, the polls said.

  About 10 days before the election, I get a phone call from a group of 
men I never heard from before in an area of my State, I say to the 
Presiding Officer, where we used to only ride through and say, ``My 
God, look at the size of those houses.'' I get a phone call. They were 
decent men, by the way, decent, honorable men. They called me, and we 
went out to this place they call ``the hunt country'' in my area. You 
know it. You know some of the people. I was just so flattered they 
invited me.

[[Page S2265]]

  I was thinking, 10 days. My brother, who is 6 years younger than me, 
was my campaign finance chairman. You can tell how effective we were. 
We had no money. He was 24 years old. The Senator from South Carolina 
knows my brother. Jimmy says, while driving me out there, ``You know, 
Joe, we got a call from the radio stations. If tomorrow we don't have 
the check for next week, we're off the air.'' Now, like anybody who is 
running for office, you pour your heart, your soul, everything into 
this.
  Mr. HOLLINGS. That's what they call free speech.
  Mr. BIDEN. Right, free speech. You pour everything into it. So I was 
sitting there, and I was within a point, according to the polls, of 
pulling off at that time, that year, what was viewed as the upset of 
the year. I wasn't even old enough, Mr. President, to be sworn in the 
day I got elected.
  So I was riding out there. I walked into this room with nice big 
leather couches. I get offered, like we do in the Foreign Relations 
Committee, a sherry. That is a kind of foreign relations thing, sherry. 
I get offered a sherry. I don't drink, so I politely said, ``No 
thanks.''
  These guys are real nice guys, five or six of them, and most of them 
made a living, God bless them--I don't begrudge them this--by clipping 
coupons. They came from wealthy families with a lot of money, and they 
are decent guys. Two of them had already been helping me. They thought 
this was a nice little revolution, this kid coming up doing this.
  They sat there and looked at me. The one guy who was the older of 
this group--I say I was 29, so they were probably between the ages of 
32 and 40. One guy looks at me and says, ``Joe, can you tell us your 
position on capital gains?'' Now, Mr. President, I knew the right 
answer for $30,000. I knew the right answer. Capital gains had not been 
an issue in the campaign. I had never spoken out on capital gains. No 
one had talked about it, but I am not stupid.
  I was sitting there--and this is the God's truth--I was sitting in 
that room seeing what I worked for for 2 years about to go down the 
drain because I don't have $20,000 to keep my radio ads on the air. 
$20,000 wouldn't get you anything these days, but it would have kept me 
on the air for 10 more days with my radio ads, which were very 
effective, as it turned out.
  I sat there, and I don't know why I did it--not because I am so 
honorable and brave or anything--I just blurted out, ``I don't think we 
have to change the capital gains structure.'' That was the end of the 
conversation. Everybody was very polite to me, said, ``Great idea,'' 
and talked about a few other things. They said, ``Joe, lots of luck in 
your senior year.'' I got up and left. I didn't raise any money from 
them.
  I could have said, ``You know, gentlemen, I think the capital gains 
rate should be reduced.'' I knew that is how they all made their 
living. By the way, there is a legitimate, serious argument that 
capital gains should be reduced. It is not like it is something that is 
immoral or bad. I just happen to disagree with it. The truth is, I had 
not even thought that much about it, so it would not have been like I 
was selling my soul had I changed a position. But, the contrariant 
instinct got the better of me. I heard the words come out of my mouth 
and I thought, ``Oh, my God, what did I just say?''
  Maybe I should not be so honest, but I have been around here too 
long. I have been here 24 years. And, this story illustrates the 
corrupting nature of the process. I have never known anybody I have 
worked with where a contributor says, ``Here, I got some money for you 
if you go ahead and take a certain position.'' That is not how it 
works. That is not the corruption. The corruption is sort of an 
insidious thing. It is insidious. But, in the public's mind, it is all 
bad now, even when we get support from people for positions we die for 
politically--whether somebody contributed to us or not, we would hold 
them dear, we would go down.
  I always say to young people when they say they want to run for 
office, answer one question: Is there something you are willing to lose 
over? If you are not willing to lose over something, you should not get 
involved in politics; you should go do something else.
  And for all the women and men in the Senate, there are positions over 
which they are willing to give up their seats rather than yield on. 
Somebody who contributes to them, who happens to share their view on 
that issue--now it is tainted in the public's mind. When we get support 
from people who are supporting us because we are of like mind, not 
because we changed our mind to get their support, we are viewed in a 
way that we must have done it because of the contribution. That is how 
bad it has gotten.
  So what I do not understand, I say to my friend from South Carolina, 
is, you would think out of mere self-preservation and our own honor----
  Mr. HOLLINGS. Right.
  Mr. BIDEN. You would think we would want to change the system. I 
would say, to the best of my knowledge, all 100 Senators here are 
honest and decent people. But the perception out there is that there 
must be--must be--something wrong because all this money is in here.
  So, it seems to me, I say to my friend from South Carolina--and I am 
not being solicitous--as usual, you have cut to the quick of the 
matter. Nothing can fundamentally change--fundamentally change--with 
regard to the way in which the process works until we have the ability 
under the law to limit the amount of money we spend, to determine how 
we can raise it, and to limit certain outside excesses that presently 
exist. If we did the things that we all would agree privately we have 
to do, the Supreme Court, I believe, would rule under their recent case 
law that it was a violation of the first amendment.
  So what I am saying to my friend from South Carolina is, besides 
thank you, that you are dead, dead, dead right. I am going to vote for 
things in addition to this amendment, but not because I think without 
this amendment they are going to work, but because I think they are the 
only things we can do. And, I hope that I am wrong in terms of my 
reading of the Court's assessment of the first amendment.
  My colleagues sometimes kid me, Mr. President, because they know I 
teach constitutional law in law school now. I think it must send 
shutters through Justice Scalia and others that I have been teaching 
the last 5 years a course on constitutional law and separation of 
powers issues. But you know what they say, if you want to learn a 
subject, teach it. If you want to learn a subject, teach it.
  I am an adjunct professor at Widener University Law School, and I 
have taught a seminar on constitutional law for the past 5 years on 
Saturday mornings. I might add for the record, I do it without any 
conflicts to my job in the Senate. I do it Saturday mornings, on my 
time. Nobody helps me with it.
  I am telling you, Senator Hollings, you are right. Without changing 
the Constitution and giving us the power to determine what parameters 
we set or how we raise money for elections or how much we can spend, 
then anything we do here is subject to significant change by the 
Supreme Court.
  Twenty-one years ago the Supreme Court ruled that spending money was 
the same thing as speech. The Court said that writing a check for a 
candidate was speech, but writing a check to a candidate was not 
speech.
  The Supreme Court made a supremely bad and, I believe, supremely 
wrong decision. By saying that Congress shall make no law abridging the 
freedom to write a check, the Court is saying that Congress cannot take 
the responsible step of limiting how much money politicians can spend 
in trying to get elected. And we have to start putting limits on this 
because money is just permeating the system.
  I am sure I am going to repeat a few things here that have been said 
by others, but I think they are worth being repeated.

  In just the last 4 years, the total amount of money given to the 
political parties has increased 73 percent--73 percent. The total 
amount of money spent on races for Congress has increased 600 percent 
in the last 20 years. These are in real dollars--600 percent.
  I ask you, how do these young pages, some of whom hopefully have 
dreams and aspirations of standing where I am right now--hopefully, a 
number of you have that aspiration--how do they get started.
  When I started to get involved in public office, I had to raise the 
awful

[[Page S2266]]

sum of $150,000 to make the race credible, $250,000 to be in the game, 
and $350,000 to win in little old Delaware.
  Today, somebody who wants to beat an incumbent, me or Bill Roth, they 
better be able to raise a minimum of $2 million. But guess what? We 
only have 700,000 people in my whole State. But you know why they need 
so much money in Delaware? The reason is, we are in the fourth most 
expensive media market in the country. And as everybody knows, just to 
get to the point where 60 percent of the people in your State know 
enough about you to make a judgment whether they should vote for you or 
not, costs a lot of money. Just to get to know you--nothing else, not 
even to get to the point where they have any idea what your views are. 
Just to get to the point you are known. You know what it costs, I say 
to my friends who are from States much bigger than mine but in places 
where it is a lot cheaper to buy television? You know what it costs to 
air one 30-second ad at a good time on Philadelphia television on one 
of the network stations? It is $30,000 for 30 seconds.
  Mr. HOLLINGS. You do not have a TV station.
  Mr. BIDEN. I do not have a TV station. I believe we are the only 
State in the Nation that does not have its own commercial television 
station. That is not because we are good, bad, or indifferent. It is 
because it would make no economic sense. I live within 22 miles of the 
antennae of every one of the major stations--every one of the major 
networks in America. They are located in Philadelphia. I live in 
Delaware.
  And so what happens when I buy an ad or my opponent buys an ad on 
television? For every 100 people who see the ad, 96 of them live in New 
Jersey, Maryland, or Pennsylvania and are unable to vote for or against 
me. But I have to pay for them all. Now I am not complaining because I 
have an advantage. I am an incumbent. It is an advantage and a 
disadvantage. The disadvantage is that you are an incumbent. People do 
not like incumbents. The advantage is that people know your name.
  If you are an unknown person running, like I was the first time, how 
do you get to the point where even enough people know your name--unless 
you have a lot of money? And, my goodness, what it must be in the State 
of Michigan or Pennsylvania or South Carolina. Nevada is a little 
bigger now, but when I got here we were bigger than Nevada. Those 
States are bigger in population than Delaware.
  I can speak knowledgeably only about one of our colleagues who did 
not run the last time. I will not mention his name. I know why he did 
not run. He would have won, and most people say he would have won. The 
State he happened to represent required him to raise at least, he 
thought, $12 million. He did not want to do that anymore--did not want 
to do that.
  Look, the way we can raise the money is we can raise it at $1,000 a 
shot. That is the most we can raise from an individual. How many phone 
calls--from non-Federal property--do you make to be able to raise, in 
$1,000 increments, $12 million? That is a lot of money.
  But guess what that does now? It means that you have to go from a 
circle of people who you know--and you know you do not have to worry 
about their backgrounds, their circumstances, where they came from, 
what their objectives were--to the universe. And, I want to tell you 
there is not a single U.S. Senator, myself included, who, I believe, 
could vouch for the character or motive or motivation of all the people 
who contributed to them unless they have the FBI working for them. We 
would have to spend more money than we raise to do background checks.

  You know what I always think of, I say to my friend from South 
Carolina? I think of the guy who was probably more chaste than Caesar's 
wife, Jimmy Carter. I will never forget when he was running for 
President. He showed up at a fundraiser, and there was a guy named John 
Gacy--remember him, the mass murderer? Seriously, I am not joking. This 
literally happened. Gacy walks in and he contributes to Carter. And he 
is standing between Rosalynn Carter and Jimmy Carter. Then, later, we 
find out that the guy is a mass murderer. I say that not just because 
it is kind of humorous and we all laugh about it. But, I say that 
because there is no way, no matter how thorough you are as a candidate, 
that you can know about all your contributors. And I would have thought 
by now that we would all be worried about how it reflects on our 
reputation if a contributor turns out to be somebody that should not 
have contributed.
  For example, recently there was a name of somebody who was an 
unsavory contributor, as it turned out, in the newspaper. It was a 
Chinese man. One of my guys said, ``My God, we have a man by that name 
that contributed to you,'' and I said, Oh, my God, find out who this 
guy is. It is a name that is a relatively common Chinese name, I found 
out later, like Smith or Jones. Guess what? It turns out the guy with 
that name who contributed to me was a librarian with the Library of 
Congress. I will never forget sitting in my seat going, Oh, thank God, 
thank God. Because, really and truly, what would have happened if it 
turned out to be the guy everybody was writing about? If I were up for 
election I would have to spend $100,000 in television ads to prove I 
did not know the guy.
  Now, maybe we are counting on the people being so cynical that they 
will not hold anybody accountable for this. But I just think for pure 
self-preservation--not self-preservation of our jobs, self-preservation 
of our reputations and our integrity--that we would very much like the 
system to change.
  I might add, you know how they kid around here. We joke when we have 
colleagues who announce they are not running again and they have been 
here for some time. We always joke and say things like, Well, now you 
will be able to tell them what you think. There was a guy that my 
friend from South Carolina knows well, and I will never forget him. 
Remember Steve Young--Senator Young from Ohio? Senator Young had been 
out of office about 2 or 4 years, but he was a guy I think who was 
widowed at that time, a man in his eighties, if I am not mistaken. And, 
he hung around here. He did not lobby anybody but he hung around, in 
the gym, in the dining room.
  You may remember this story, Senator Hollings, and I apologize for 
being so personal. But, the reason I am telling these stories is I want 
to communicate to the American people who are listening in real 
personal terms how this system works. I will never forget the effort of 
the distinguished Senator from South Carolina who took me under his 
wing when my first wife was killed in an automobile accident. When I 
got remarried and wanted to introduce my new wife, Jill, to the people, 
he had a reception for me up in the famous caucus room and everyone 
from the Vice President, President, the Supreme Court, really laid it 
out to welcome my wife. And, I might add, as they say, a point of 
personal privilege, I still appreciate that.
  I will never forget there was a reception line and, Senator Hollings, 
you introduced me to people. Later in the night the reception line was 
still going on but you were having to entertain some of the people you 
brought along. Old Steve Young came in the line, Senator Young was 
being nice, welcoming people who were coming in. This is a true story. 
And, a guy walked up to Senator Young--he was to my left--put out his 
hand, and said, ``Senator, I bet you don't know my name.'' I can't 
quote what Senator Young said exactly because I am on the Senate floor 
and it would be inappropriate, but Senator Young turned to me and said, 
``Joe, will you tell this horse's tail his name? He has forgotten it.''
  All of us would like to say that once in a while. So we joke and we 
say when someone leaves this place, Well, guess you will be able to 
tell them what you think now. The implication in that comment is that 
how nice would it be if you were totally unfettered, even indirectly, 
totally unfettered? I envy, and I mean this sincerely, the women and 
men in here who have close to unlimited wealth, and I do not begrudge 
that. I mean that sincerely. I would love nothing better than to be 
able to run for office and say I do not want anybody's money. I do not 
want one single penny from anybody, thank you very much, because then I 
know people would look at me and no one would be able to even think or 
imply that anything I did was because of anything anybody contributed 
to me.
  I do not know why there is not a stronger instinct on this floor for 
that

[[Page S2267]]

notion of not having to be beholden to any contributors--and more 
support for public funding. We may never get to the point where we even 
get television time made available to challengers. We may never get to 
the point, and I am a distinct minority, where we have public 
financing, so the taxpayers are deciding whether they in fact, support 
a candidate. But, at least we could get to the point, if we have the 
Senator's amendment, where we could limit the amount of money in the 
process for everybody across the board, for everybody. Boy oh boy, do 
you not think it would be nice not to have to go out and do all those 
fundraisers?

  Let me say what our friend from Nebraska, Senator Kerrey, says. The 
danger in having this kind of discussion is that we imply that the 99 
percent of the honorable people who contribute to us are somehow 
motivated by a bad reason. The vast majority of people who contribute 
to both political parties are people who contribute because it is their 
way of participating in the system and they want to promote the person 
whose ideas they agree with. That sounds naive to say after all these 
years, but it is true. I understand why the public does not believe any 
of it. I understand why the public does not believe any of that.
  I will conclude, Mr. President, because I see there are others here 
who wish to speak. I will never forget thinking as a young man when I 
arrived here that the best thing to do, and I still think it is, is to 
bring everything out in the cold light of day. That is why I have spent 
time explaining how the system works. I am often reminded of that 
phrase, that saying, that comment attributed to Bismarck in Germany. 
Bismarck allegedly said there are two things you should never watch 
being made. One is sausage and the other is legislation. I would amend 
that slightly. Once the American people got a chance to see exactly how 
this worked, with all the disclosures which I think are necessary and 
good in the long run, I think the thing that suffered was our 
collective integrity--our collective integrity.
  To the average person like my dad, anybody who was able to contribute 
$1,000 to a public official for a campaign must be doing it for a 
reason, and maybe is not so altruistic.
  So, what does it say now that they pick up the paper and realize that 
individuals and corporations and unions and anybody else can contribute 
$20,000, $30,000, $50,000, $100,000, $1 million? Why do we expect them 
to say, ``Well, it must be nobly motivated, it is not for selfish 
reasons.'' In many cases it probably is totally nobly motivated.
  Mr. President, I think that the single most important thing that has 
to be done from a purely practical sense is to amend the Constitution 
and give us the right to limit the amount of money that candidates are 
able to spend. I lay you 8 to 5 that if you ask every Senator to stand 
up and say whether or not they thought too much money was being spent 
in public elections, 90 out of 100 would say yes. I bet that if you 
asked them, do you think we should limit the amount of money that is 
spent, at least 70 would say yes. But if you asked them, ``Will you or 
your party lose political advantage if you do that?'' they may change 
their views. The truth is that it is not just the Republicans who don't 
want this reform; it is some Democrats, too. And, the truth of the 
matter is, if we do what you and I, Senator Hollings, talked about a 
long time ago--essentially make it available for everybody to have the 
same amount of money, either by establishing a limit so that everybody 
would be able to be equal, or by providing public funding--every one of 
us would have a race every time. None of us like having those races.

  Mr. HOLLINGS. Will the Senator yield?
  Mr. BIDEN. Yes.
  Mr. HOLLINGS. I know others want to be recognized, and I am hopeful 
to hear from them. As usual, you are unfettered, and you don't wait 
until you get out of office to do that. You have been masterful, 
because in this exchange we have had, talking about charades, there is 
no charade in your presentation here this afternoon; it is right on 
target. I thank the Senator for yielding and for his talk today.
  Mr. BIDEN. I thank the Senator. I must tell you that there is a piece 
of me that says keep the system the way it is, because it is awful hard 
to beat me the way the system is. There is a Senator we used to know 
who was very powerful here. I would say, ``Senator, how in the Lord's 
name did you get that person to contribute to me?'' He said he told 
them, ``It's not so much what Biden can do for you; it's what Biden can 
do to you.''
  The truth of the matter is, if you are here and you have gained 
seniority and you are in a good position--better in the majority than 
the minority--it is a lot easier for you to stay if you are challenged. 
So I have to admit to you that I know if I ever prevail in making sure 
everybody running has the same amount of money, or by practically 
making it low enough so everybody could raise the same amount of 
money--I might say, ``Oh, my God, what have I done?'' But it is the 
right thing to do. I don't have a lot of hope that we can do it.
  I thought when I got here in the midst of Watergate that maybe that 
episode would shock us into doing something serious--and we did it, 
until the Supreme Court overruled it. I hope we take advantage of the 
current situation and have the courage to act at a time when the 
spotlight is going to be on not only potentially illegal, but clearly 
unseemly, aspects of how these funds are raised.
  I want to make it clear that I am not suggesting that I am any better 
or worse than anybody else in this body. I am merely suggesting that we 
should change, for our own safety's sake and for our reputations, the 
way we do it now. I don't know how to really do it unless you first 
have the authority under the Constitution to be able to do it.
  I thank the Chair and yield the floor.
  Mrs. HUTCHISON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. I thank the gentleman for yielding, and I appreciate 
the opportunity to speak on this issue because I think it is so 
important. When we are talking about amending the Constitution, and 
especially the first amendment to the Constitution, which is, in 
effect, what this would do, I suggest that we think very carefully 
about the ramifications.
  So what are we doing here? We are actually considering an amendment 
that would open the door for restriction on first amendment political 
speech and freedom of association of many kinds. It seems to me, if we 
are rating the amendments, the free speech amendment is one of if not 
the most revered in our country. If we are going to dissect the freedom 
of speech that we have known for over 200 years in our country and 
effectively establish various levels of free speech, I think we must 
examine the impact this would have. By allowing restrictions on 
political speech, as this amendment would do, but not other forms of 
speech, we are opening the door to rendering political speech secondary 
to commercial advertising or even pornography. What could we be 
thinking? Of all of the rights we have, the ability to have freedom of 
political expression is perhaps the greatest, and must be preserved at 
least as vigorously as other rights.
  Additionally, Mr. President, I would suggest that this amendment 
might also be called the Incumbency Protection Act of 1997. If we 
unduly restrict the ability of people to spend money to support the 
candidate of their choice and to likewise have the ability to raise 
adequate funds to run against incumbents in political office, as this 
amendment would allow, what we are doing is saying that, forever more, 
incumbents will have an advantage that challengers will not have. In 
fact, the reason we have the ability to have relatively free access to 
campaign funds or free access to the news media by challengers is so 
our democracy will work. Our democracy will only work if everyone gets 
a fair chance to do his or her very best to run against an incumbent or 
anyone else for political office. The idea that we would allow for 
almost limitless restrictions on that fundamental right is unthinkable.

  Mr. President, many of us believe that campaign reform is essential, 
that we would look at our system and that we would make sure that there 
is accountability, openness, and transparency--that whoever contributes 
to campaigns would be known to the voting public. We need to make sure 
that

[[Page S2268]]

is the case. But to say that we would open the door to allowing 
restrictions on free access to the media or that we would require the 
media to, in effect, give access to anyone who might decide that they 
are going to pay a filing fee is really an inhibition not only of free 
speech but of the right of free press, which is also a crucial element 
of our first amendment. This resolution raises this as a real 
possibility and encroaches unacceptably on our hallowed Bill of 
Rights--that document that has made our democracy work and has kept our 
Government in the hands of the people. Our democracy will simply not be 
as strong if we do not preserve the freedom to be able to go out into 
the news media, or the sidewalk, or anyplace else and proclaim why we 
are running and what cause we care about for public office.
  So I applaud Senator McConnell for standing up for the first 
amendment, for making sure that we do not do something that would amend 
our Constitution without careful consideration.
  I know that many in this body are frustrated. They are frustrated 
with our campaign system. I am sure that Senator Hollings is frustrated 
and is clearly trying to fix a system that has problems. I would just 
say to my colleague from South Carolina that I think we need to address 
campaign reform, but this is not the vehicle. Amending the Constitution 
to provide for the ability for any State legislature or any Congress in 
the future to limit access to the airwaves or freedom of speech or 
association or of any organization to lawfully contribute to a campaign 
is simply not the way to go.
  Let us in Congress come together on real campaign finance reform so 
that the people of America will be informed voters. But whatever we do, 
we should never relegate political speech to second-class status. 
Rather, we must work to ensure that the basic right to speak one's mind 
in the political marketplace of ideas remains the most protected of all 
of our rights.
  Thank you, Mr. President.
  Mr. McCONNELL. Mr. President, I want to congratulate the Senator from 
Texas for a very important contribution to this important debate. We 
have finally gotten on to the real subject. The real subject is the 
first amendment, free speech, and protecting political discourse in 
this country. I just wanted to congratulate the Senator from Texas for 
her contributions today.
  Mrs. HUTCHISON. Mr. President, I appreciate the opportunity to speak 
today, and I appreciate the Senator from Kentucky managing this 
amendment in opposition because we are exercising that free political 
speech that we enjoy. I think the ability for us to disagree while not 
being disagreeable is very important in the process.
  I thank the Senator from Kentucky for leading the opposition.
  Thank you, Mr. President. I yield the floor.
  Mr. KENNEDY. Mr. President, I oppose the amendment offered by my 
friend Senator Hollings. I respect his leadership on campaign finance 
reform, but it is a mistake to write it into the Constitution.
  The current system of financing elections clearly needs reform. 
Something must be done to curtail excessive spending on the campaign 
trail. The billions of dollars spent by candidates and the massive 
exploitation of loopholes in current law have led to a growing cynicism 
and distrust of our system of government. We must act on reform, but 
amending the Constitution is the wrong way to do it.
  In the entire history of the Constitution, we have never amended the 
Bill of Rights, and now is no time to start. It would be wrong to carve 
an exception in the first amendment. Campaign finance reform is a 
serious problem, but it does not require that we twist the meaning of 
the Constitution.
  Campaign finance reform is clearly possible without a constitutional 
amendment. The Buckley decision does not make it impossible for 
Congress to pass legislation achieving far-reaching reform. In fact, a 
large number of experts believe that the Supreme Court's 1976 decision 
in Buckley versus Valeo went too far, and that the Court is likely to 
reconsider it in an appropriate case. Over 50 prominent lawyers have 
said that the Buckley decision is ``a mistake, unsupported by precedent 
and contrary to the best understanding of prior first amendment 
jurisprudence.''
  These lawyers and other constitutional scholars believe that Congress 
should pass campaign finance reform legislation and give the Supreme 
Court the opportunity to revise the Buckley decision.
  The McCain-Feingold legislation provides us with that opportunity. As 
President Clinton commented during his State of the Union Address, 
Senator McCain and Senator Feingold have reached across party lines to 
develop a solution to uncontrolled campaign spending. Contrary to what 
Majority Leader Lott believes, this legislation is not, ``food stamps 
for politicians.'' It is a serious bipartisan effort to solve this 
problem, and the Senate should make it a priority.
  The constitutional amendment before us today--unlike statutory 
reform--will not make a difference. It merely empowers Congress to pass 
legislation that would place mandatory limits on campaign spending in 
Federal elections. After the long ratification process, Congress would 
still have to actually pass legislation setting those limits. Though 
well-intended, this constitutional amendment is simply a distraction. 
We should get on with the business of enacting reform, without waiting 
for ratification of a constitutional amendment, and certainly without 
tampering with the Bill of Rights.


                      Unanimous Consent Agreement

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
resume consideration of Senate Joint Resolution 18 at 11:30 a.m. on 
Tuesday, March 18, and that there be 1 hour remaining for closing 
remarks to be equally divided between myself and Senator Hollings; that 
the Senate then resume consideration of the resolution at 2:15 p.m. on 
Tuesday for 30 minutes equally divided; and, finally, following that 
time on Tuesday, the joint resolution be read for the third time and 
the Senate proceed to vote on passage of S.J. Res. 18 with no 
intervening action or debate with paragraph 4 of rule XII being waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, as a reminder to all Senators, this 
consent agreement allows for a rollcall vote on the measure currently 
before us at approximately 2:45 on Tuesday, March 18.
  I yield the floor.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER (Mr. Abraham). The Senator from Nevada.
  Mr. REID. Mr. President, I am a sponsor of Senate Joint Resolution 
18. I am proud to be a sponsor of that resolution.
  What we have to understand is that the present system must change. It 
is hard for me to comprehend that since I was first elected to Congress 
more than 14 years ago the system is still the same as it was. It has 
not gotten better. It has gotten worse. Ten years ago when I was 
elected to the Senate, I came to this floor, and one of the first 
speeches I gave was about the need for campaign finance reform. It is 
hard for me to really believe that here it is 10 years later and it has 
not gotten better. It has gotten worse. I thought it might stay the 
same. In my most pessimistic thoughts I thought there was a possibility 
that the system would remain the same. It has gotten worse.
  What our friend from Delaware just talked about in this very 
remarkable good speech is what other abuses take place. Independent 
expenditures--we didn't have independent expenditures when I was first 
elected to Congress. What is an independent expenditure? That is a good 
question. No one really knows. But they are legal. They are legal. They 
are not illegal. If a group gets together, they don't have to identify 
themselves. They can make up a name. Senator Bryan, for example, was 
Governor of the State Nevada, and he ran for the Senate. A group of 
individuals got together and they represented the automobile industry. 
They ran a bunch of ads, hundreds of thousands of dollars' worth of 
ads, tens of thousands. I don't know how much money. There is no way to 
know. They do not have to list how much they spent against Senator 
Bryan, using Social Security as their issue. It had nothing to do with 
their field of interest. But it was a way to embarrass my friend, the 
Governor of the State of Nevada, who was running for the Senate. That 
is an independent expenditure.
  In my race the last time I ran for the Senate, a wealthy person from 
Las

[[Page S2269]]

Vegas ran ads against me dealing with something about the military on 
submarines and aircraft carriers because I didn't visit with one of his 
grandchildren when they came to Washington. I was busy. I don't know 
what it was. I didn't visit with his grandchild when they came to 
Washington to visit me. He is a rich man who spent money trying to 
defeat me. He doesn't have to list where the money comes from. That is 
an independent expenditure.
  Early this century Congress outlawed corporate money in Federal 
elections. They are not illegal anymore. The Supreme Court ruled last 
year that you can give unlimited amounts to State parties, and they can 
spend the money any way they want. That is what happened this election. 
That is what all this campaign mess is about--State parties spending 
all of their money.
  So things have gotten worse; they have not gotten better since I have 
been in the Congress. It is really too bad that the system has reached 
a point where it is.
  I have heard a lot of speeches here today about our Founding Fathers 
and about the first amendment. Well, the Founding Fathers who drew up 
this little instrument, the Constitution of the United States, would 
turn over in their graves if they saw how money was being used in 
campaigns. The first amendment wasn't meant to allow unlimited spending 
of money in campaigns. Should we wind up in this Congress with 535--it 
can't just be a millionaire--multimillionaires? The answer is no, that 
isn't the way it should be.

  When I first was elected to the House of Representatives, we had a 
plumber, a tradesman, who represented a congressional district from 
Missouri. He ran and he won. He could not win working on those wages 
anymore; he couldn't win.
  We cannot let what has now become the status quo--which is worse than 
the status quo of the election before--continue. Under the current 
campaign finance laws, Government is restricted from regulating 
campaign spending. This is a result, as we have heard here several 
times, of a U.S. Supreme Court in a 5 to 4 decision equating spending 
money in a campaign to free speech.
  There are all of these speeches here about first amendment rights. If 
the resolution of the Senator from South Carolina passes, there is 
nothing that will violate the first amendment. Every day that we come 
on this floor to pass legislation we have to be aware of the first 
amendment. We are not going to do anything to denigrate the first 
amendment rights. The Supreme Court struck down the expenditure limits 
imposed by the Federal Campaign Practices Act of 1974 as an 
unconstitutional restriction on free speech. The intent of that 
legislation which restricted campaign spending was to equalize the 
ability to run for office between persons of differing wealth. The 
Supreme Court, through their decision, made the playing field not 
level.
  What happens in a relatively small State like Nevada is, if someone 
wants to come in and spend, it will cost now $4 million to run in the 
State of Nevada, or more. What if somebody wants to come in and spend 
$10 million, a third as much as was spent in the California race an 
election ago where a man came in and spent $30 million of his own 
money--$30 million. He could save $20 million if he decided to move to 
Nevada.
  I have to say, as popular as the present Governor is in the State of 
Nevada, as popular as my friend, the junior Senator from Nevada is, $10 
million would test their ability. The airwaves would be drowned with TV 
messages, radio, and, of course, newspapers throughout the State. Is 
that fair? I really do not think it is. I think that we need to be able 
to stop that. The playing field is not level.
  Most Americans believe that the current system is flawed. Their 
central concern is special interest influence. It is ironic that the 
Court equated free speech with money. Their decision has the opposite 
effect. It actually ensures that those with money can talk and those 
without money cannot talk.
  I want to also spread across the record of this Senate my 
appreciation for the courage of the Senator from South Carolina for 
continuing on this issue. We are only here today as a result of the 
persistence of the Senator from South Carolina. We are here by virtue 
of a unanimous consent agreement that was entered into sometime ago 
saying we are going to debate this issue or I am not going to let 
something else move forward on the Senate floor. That is what the 
Senator from South Carolina did. And it took someone with experience, 
prestige, and abilities to get us to the point where we can at least 
talk about it.
  I also say to my friend from South Carolina, I think we know we are 
not going to get 67 votes. I am disappointed. And maybe a miracle will 
happen. But that does not mean we are not right. That does not mean 
what the Senator from South Carolina is leading is not right. And we 
are going to win some day. It is only a question of when. I say thank 
you from the people of the State of Nevada to the Senator from South 
Carolina for allowing us to have the opportunity to talk about this.
  Campaign finance is a sore that is festering in the body politic of 
America, and we have to do something to change it. We may not change it 
with this resolution passing, but we are going to change it because we 
are going to keep talking about it, because what is going on now is 
wrong. It is wrong you have independent expenditures, somebody spending 
money against people because they refused to see their grandchild. And 
in the middle of the night they go to the TV station and run these ads 
because they are wealthy. Is that the way to conduct business in this 
country? I say no.
  I say people can stand up and say, well, it is free speech; they can 
do what they want. But they can play by the rules everybody else plays 
by. If somebody wants to contribute to my campaign under the Federal 
law that I thought existed when I came here--you have to list how much 
they give and they cannot give more than $1,000 an election, their 
occupation, where they live--why shouldn't they have to do the same. 
You do not know who these groups are that come in the middle of the 
night. I did not learn until after the election someone was mad at me 
because I did not see their grandchild.
  I repeat, the Supreme Court equated free speech with money. Their 
decision has the opposite effect. It actually ensures that those with 
money can talk and those without money cannot talk.
  Over the last decade we have seen an unsettling trend in American 
politics. Most of our candidates for Federal office have money. There 
are some estimates which say $1.6 billion was spent on campaigns this 
past year. And campaigns have become more expensive with each election. 
You can call it free speech; call it whatever you want. That is wrong. 
You cannot make something wrong right by saying it is wrong enough 
times. It is wrong to have the ability to be elected depend on how much 
money you have.
  Thomas Jefferson was a bad speaker. He could not be elected today. As 
much of a genius as Thomas Jefferson was, he could not be elected today 
unless we change these rules.
  The skyrocketing costs are prohibitive and serve as a deterrent for 
average Americans who want to participate in the political process. As 
long as costs continue to rise, so will the need for more money. 
Limiting spending is the only way of keeping the cost of campaigns 
down.
  I wish we had a way of shortening the election cycle. The 
Presidential election just finished and people are already beginning to 
run for President.
  Over the past 10 years, Congress has tried to get around the Buckley 
decision with at least 100 different proposals. There are numerous 
proposals now pending. But we are never going to slow the amount of 
money associated with campaigns until we address the Buckley decision 
head on. That is what the Senator of South Carolina has done.
  Congress must undo the Buckley decision and reinstate campaign 
spending limits. This legislation amends the Constitution to authorize 
Congress to cap campaign expenditures in Federal elections. I do not 
take lightly amending the Constitution or our precious freedom of 
speech, but it is the only way to undo the Buckley decision.
  No one is in favor of free speech more than I am, and I think I have 
the record to indicate that. I represented newspapers before I came 
here. Some of my clients went to court on first amendment cases. But 
equating free speech with campaign spending simply

[[Page S2270]]

creates a constitutional protection for wealthy candidates to buy 
Federal elections.
  An alternative to this amendment is to continue to spin our wheels, 
working on hundreds of different initiatives designed to provide public 
financing, financial inducements in exchange for voluntary spending 
limits or one of the other failed proposals we have debated over the 
years.

  I have been in the Senate 10 years, so I do not want to go back 
further than that, but let me read to my friend, the prime sponsor of 
this resolution this year and the years gone by: During the years I 
have been in the Senate, we have had 6,742 pages of hearings. We have 
had 3,361 speeches, 62 now with this one, 1,063 pages of committee 
hearings, 113 Senate votes on campaign finance reform, and we even had 
one bipartisan Federal commission which went nowhere. The vast majority 
of those votes, I would say 90 of the 113 votes were for cloture--stop 
debate so we could get to vote on one of the issues.
  Now, I am a cosponsor of McCain-Feingold, an imperfect piece of 
legislation, but I say I do not know how we could make things worse 
than what they now are. I support McCain-Feingold; I hope it passes, 
but I think the chances of passing are pretty remote. I have to tell 
you that. I hope it passes. I am a sponsor of it. But until we do what 
the Senator from South Carolina suggests we do--and I am cosponsoring 
the amendment, an original cosponsor--I think we are just going to add 
to this. We are going to have probably by the time this year is over 
7,500 pages of hearings, maybe 500 floor speeches, maybe 1,300 pages of 
committee reports, and probably 125 votes rather than 113, and 
accomplish nothing.
  So I think we have to stop talking about limiting spending and look 
for a way to hit Buckley head on. We cannot enact powerful campaign 
spending limitations as long as this is the law.
  Overall funding for the Democratic and Republican Parties totaled 
almost $1 billion last year, a 73 percent increase over the same period 
during the 1992 cycle. We can get up and say all we want that this is 
just part of free speech. I do not buy that. I do not think we can be 
whipsawed into cowering because the free speech argument is raised. I 
am not going to be. I am going to talk about this issue every chance I 
get.
  I would like to be able to spend more of my time debating issues 
dealing with education, dealing with the trade deficit, dealing with 
juvenile crime, adult crime; I have some environmental things I would 
like to come here and talk about. That is one of my prime 
responsibilities on the Environment and Public Works Committee. I would 
like to come here and talk about that. I would like to spend some time 
talking about the ISTEA bill. But, frankly, a lot of us have to spend a 
lot of time making phone calls to raise money.
  It is too bad, isn't it.
  Mr. HOLLINGS. Yes, siree.
  Mr. REID. The public believes that escalating cost of elections puts 
a price tag on our democracy. So why is there this call for campaign 
finance reform? Let us go over the issues.
  No. 1, record-breaking spending. As I said, we hear all kinds of 
estimates, but just the parties spent over $1 billion; in overall 
spending, $1.6 billion at least.
  No. 2, Americans feel shut out. Americans, more than ever, believe 
that the emphasis on money in elections excludes them from meaningful 
participation. They believe that special interests who contribute large 
sums of money have more influence on elected officials and that 
candidates are forced to spend too much time raising funds and too 
little time listening to voters' concerns.
  No. 3, campaigns are too expensive. Campaigns have become more 
expensive with each election. The skyrocketing costs are prohibitive 
and serve as a deterrent to the average American who wants to 
participate in the political process. As long as the costs continue to 
rise, so will the need for more money. Limiting spending is the only 
way of keeping these costs down.
  My friend, the Senator from Delaware, talked about these pages. We 
have serving in the U.S. Senate today a fine senior Senator from the 
State of Connecticut who was a page. I am sure, years ago, he sat where 
you young people are sitting and heard speeches delivered by various 
Senators. I am almost embarrassed to stand here and talk to you four 
young people about this issue. It is embarrassing to me, to admit the 
system is failing. I don't like to talk about the system failing. I 
started last summer coming on this floor talking about how good 
Government was, that we should be proud of Government. And I do believe 
that. There are many things we should be proud of: Our National Park 
System, how well FEMA reacts to crisis, our Consumer Safety Products 
Commission--many, many things we should be very proud and happy over. 
But this is one thing I am not proud of. I am embarrassed to come here 
and admit a Government failure, and that is what this is. I hope you 
young people are not so turned off by the speeches that are relating to 
this proposed constitutional amendment that you turn against 
Government, because you should not.
  No. 4, comprehensive reform is the only lasting solution, and 
comprehensive reform can only come about as a result of our amending 
the Constitution to allow us to get around the 5-4 decision made by the 
Supreme Court.
  We need bipartisan action. I say to my friend, the junior Senator 
from South Carolina, that we have a sponsor on this resolution, Mr. 
Specter, who is second in line. The second sponsor of this amendment is 
the Senator from Pennsylvania, the senior Senator from Pennsylvania 
[Mr. Specter]. I commend and applaud his courage for stepping out on 
this issue. We need more bipartisanship. This is a bipartisan 
resolution. I wish we had a few more from the other side of the aisle, 
but this is bipartisan and I, again, want to congratulate my friend 
from the State of Pennsylvania for having the guts to step forward and 
say he also believes that this resolution should pass.
  No one can say anything about his ability to analyze the law. I have 
heard him give hours of speeches here, with detailed legal analysis. I 
am sure he has spent time, recognizing we are not violating any free 
speech. If there is no other reason that we should feel good about 
this, it would be because we have bipartisan support from a Senator who 
has joined us who has great qualifications as a legal scholar. So we 
need bipartisan action and I think we need to move forward now and pass 
this resolution.

  I hope that I am wrong. I hope that over the weekend--we are going to 
vote on this early next week--I hope that people get the idea that this 
is the only way to go and that we are surprised and get 67 votes, 
enough to pass this constitutional amendment. I hope so.
  The time to act is now. Over the next 2 years, Congress will deal 
with changes in regulations and programs that affect virtually every 
American, from clean air and water to education programs for our 
children and Medicare and Medicaid for our Nation's elderly. In order 
to address these concerns, Congress must first act to reform itself. 
That is what we are talking about. We talk about reforming everybody 
else, why don't we reform ourselves? Why don't we reform ourselves? 
Because the present system is pretty comfortable. We, who have access, 
have the ability to raise money and, unless you are independently 
wealthy, access is really, really important. Why don't we do something 
that would level the playing field, like we tried to do in 1974?
  So I close with the plea that we can reform the way we handle 
campaigns in this country. The only way we can reform the way we handle 
campaigns in this country is if we follow the admonition and the 
courageous activities of the junior Senator from South Carolina, Ernest 
F. Hollings, who has worked so hard and so long on this issue. I am 
proud to be a cosponsor of this resolution.
  Mr. HOLLINGS. Would the distinguished Senator yield? I know others 
want to be recognized, so before you yield the floor, let me take this 
opportunity to thank the distinguished Senator from Nevada. He has 
really given a very, very cogent analysis of the dilemma that we face, 
the real-life experience, now, that we have all engaged in, and what we 
are trying, in the best of our ability, to reform, and reform 
ourselves, as you so sincerely pointed out.

[[Page S2271]]

  So I cannot thank you enough for your presentation and joining with 
us. I have been delighted to work, over the many years that we have 
been here, together. This is one more time. I, again, admire the 
Senator from Nevada. He has sincerity and bipartisanship. I have seen 
him work with the other side of the aisle so often. So he is looking at 
getting something done and making headway rather than headlines. It is 
with that knowledge, listening again this afternoon to your sincerity 
of purpose, that I truly thank you for your support and your 
cosponsorship.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Iowa is recognized.
  Mr. GRASSLEY. I thank the Chair.
  (The remarks of Mr. Grassley pertaining to the introduction of S. 438 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER (Mr. Bennett). The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I have sought recognition to speak in 
support of the pending business, the constitutional amendment which 
will authorize the Congress or State legislatures to control campaign 
finance spending. I believe it is a matter of great urgency that the 
Congress of the United States deal with the subject of campaign finance 
reform.
  Day after day we have seen disclosures about very serious violations 
of existing Federal law and disclosures of very substantial 
improprieties which call for additional Federal legislation. 
Regrettably, the opportunities for Federal legislation are sharply 
restricted by decisions of the Supreme Court of the United States which 
have limited Congress' ability to act on the stated grounds that such 
action would violate the first amendment relating to freedom of speech.
  The case of Buckley versus Valeo, decided on January 30, 1976, 
equated speech with money in a very curious manner. It said that an 
individual could spend as much of his or her money as he or she chose, 
but upheld congressional limitations on what others could spend in 
support of a person's candidacy.
  The Court also left an exception on what is called the independent 
expenditure. That decision was a very forceful one for me personally, 
because at that time I was a candidate for the Republican nomination 
for U.S. Senate. I was running against John Heinz, who later became a 
colleague of mine in the U.S. Senate and a very, very close personal 
friend. At that time, we were friends, too, but we were political 
opponents.
  Senator Heinz at that time was a Congressman. I had been district 
attorney of Philadelphia, and we entered that race in April looking 
forward to the primary. The Federal election provided that someone 
running in a primary in Pennsylvania would be limited to spending 
$35,000, computed on a per capita basis for the size of the State. That 
was about as much money as I had, having been in the practice of law 
for a short time after having been district attorney of Philadelphia. 
So it was an even playing field.
  On January 30, the Supreme Court of the United States said that an 
individual could spend as much of his money as he chose, and John Heinz 
chose to spend millions. I was limited to my own bank account which was 
$35,000. As a matter of fact, I spent that.
  At that time, I had a brother who could have financed my campaign, 
although not on the size perhaps of some others. But my brother, Mort 
Specter, was limited by law to contributing $1,000 to my campaign.
  It struck me then, and strikes me now, as being curious. Mort 
Specter's speech was limited to $1,000 in support of his brother, but 
John Heinz' speech was unlimited. There have been cases of others 
having come to this body after having spent into the millions of 
dollars and overwhelming their opponents. Last year, we saw a 
Presidential election where Steve Forbes came into the field and 
declined to be bound by Federal spending limits and spent in excess of 
$30 million, as the reports have demonstrated.
  I believe that there ought to be authority in the Congress to 
regulate campaign expenditures. The Supreme Court in Buckley and a 
number of my colleagues here in the Senate have stated that limiting 
campaign spending would violate first amendment protection of freedom 
of speech. I take second place to no one in defense of the first 
amendment and the freedom of speech clause, as well as freedom of 
religion, freedom of right to assembly, freedom of right to petition 
the Government. But I believe, as someone who studied the Constitution 
in depth for some years, that the Buckley decision was wrong as a 
matter of legal interpretation.
  There are many who agree with that. In fact, on November 10, 1996 
some 26 scholars joined together to urge the Supreme Court to 
reconsider and reverse the decision in Buckley versus Valeo. Among them 
are some of the most prominent constitutional scholars in the United 
States, including Pro. Bruce Ackerman of the Yale Law School, Pro. 
Ronald Dworkin of the New York University Law School, Pro. Peter 
Arenella of the University of California Law School, Pro. Robert 
Aronson of the University of Washington Law School, and many, many 
others.
  Following the statement of the professors, the attorneys general of 
24 States called for the reversal of the Buckley decision in January 
1997.
  The simple fact is that the Buckley decision makes no sense as a 
matter of law. Why should an individual be able to spend an unlimited 
amounted of money when an individual's brother is limited to $1,000 in 
speech? If freedom of speech applies to a candidate, why does not the 
same freedom of speech apply to a candidate's brother?
  Freedom of speech has traditionally been limited by Supreme Court 
decisions. It is not an unlimited, absolute right. You have the famous 
decision by Oliver Wendell Holmes on clear and present danger. If there 
is a clear and present danger, speech may be limited.
  The most famous example of limiting free speech is the rule that you 
cannot cry ``fire'' in a crowded theater. If you cry ``fire'' in a 
crowded theater that endangers other people who would be injured in the 
stampede for the exits.
  Likewise, you are not free to use a racial or religious slur against 
somebody. There is a famous Supreme Court opinion on this issue by 
Justice Murphy. An individual had uttered a racial slur and the target 
of the slur punched the speaker in the nose. The speaker then sued the 
individual who hit him for assault and battery. Justice Murphy ruled 
that the person who had uttered the slur and was punched could not sue. 
He held that racial slurs were fighting words, and you cannot utter 
fighting words even within the context of freedom of speech.
  We know from very complex decisions by the Supreme Court that there 
is a limit as to what you can say in the way of obscenity. If material 
appeals to the prurient interest, if it is contrary to accepted moral 
standards, it can be restricted.
  In addition, this body has gotten involved in some very controversial 
issues in the effort to protect children's viewing on television. So 
there are clearly limits to first amendment protection.
  As I say, I take second place to no one in wishing to safeguard the 
first amendment. But I have heard a lot of talk in the U.S. Senate that 
this amendment would be an invasion of cherished freedoms of speech. I 
disagree. Money is not speech. Just on its face it is not speech. And 
to enable the wealthy to, in effect, buy elections is not sound public 
policy. Congress ought to have the authority to make that change.
  We have seen the most recent decision of the Supreme Court of the 
United States on the subject in Colorado Republican Campaign Committee 
versus Federal Election Commission, a 1996 decision which defies logic, 
defies reason, and defies reading to understand what this opinion 
means.
  There is an opinion by Justice Kennedy concurring in the judgment and 
dissenting in part with Chief Justice Rehnquist, and Justice Scalia 
joining.
  There is an opinion by Justice Thomas, concurring in the judgment and 
dissenting in part, in which Chief Justice Rehnquist and Justice Scalia 
joined in part.

[[Page S2272]]

  There is an opinion by Justice Stevens with a dissenting opinion, 
with Justice Ginsburg joining.
  There is another opinion by Justice Breyer joined by Justice O'Connor 
and Justice Souter.
  All that to the viewing audience on C-SPAN sounds extraordinarily 
complicated, but you ``ain't heard nothing yet.'' It is a lot more 
complicated than that.

  In order to have an opinion of the Supreme Court, you have to have 
five Justices who state a judgment and then articulate an opinion so 
you know what the ruling of the Court is. There is no opinion which 
five Justices joined in. You have four Justices saying they have one 
conclusion, which leads them to the judgment that results, and other 
Justices saying they have different reasons leading to a judgment. In 
other words, you have a majority of the Justices agreeing on the 
conclusion but not agreeing on the reasons.
  You hear the Supreme Court often criticize legislative intent, 
criticize what the Congress of the United States does because it is not 
clear. Some Justices, Justice Scalia in particular, say they do not pay 
any attention to legislative intent because they cannot find it.
  We spend a lot of time on the floor of this Senate seeking to clarify 
legislative intent: stating what we are trying to accomplish and asking 
the managers if they agree with that and expect that to be followed, 
trying to give some guidance because we cannot anticipate every last 
conclusion and every last consequence when we have legislated. But our 
muddled congressional activities and actions are clear as crystal 
compared to what the Supreme Court does frequently as illustrated in 
this Colorado case.
  By the time you finish reading this case about what parties can do 
and about what soft money can do, there is absolutely no guidance. That 
guidance ought to be presented by the Congress of the United States. If 
we had a constitutional amendment on campaign spending, all of the 
confusion of the Buckley opinion and the Colorado opinion would be 
eliminated.
  You have an extraordinary situation where the President of the United 
States is reported, in the book by his campaign director, Dick Morris, 
as sitting down and editing the campaign commercials paid for by 
millions of dollars of soft money collected by the Democratic National 
Committee.
  Federal election law provides that soft money must be spent on 
independent expenditures. But money is certainly not being spent 
independently of President Clinton's campaign if President Clinton sits 
and edits the commercials. But that is precisely what President Clinton 
did.
  Some have argued that President Clinton did not violate the election 
law because the DNC spent soft money and the soft money was used for 
issue advocacy instead of express advocacy on behalf of a specific 
candidate.
  The general rule of what constitutes express advocacy for a specific 
candidate is ``vote for Senator Bennett.'' That would be express 
advocacy. Or ``vote against Senator Bennett.'' But if someone engages 
in issue advocacy and lists all the votes which Senator Bennett has 
made which they claim are undesirable and mentions all of the good 
qualities of Senator Bennett's opponent, that is often considered issue 
advocacy. That is often not controlled by the Federal election laws. 
Let's face it, the line between issue advocacy and express advocacy is 
impossible to draw.
  We are approaching the issue of campaign finance reform in the 
activities of the Governmental Affairs Committee. This was the subject 
of heated discussion on this floor, though maybe not as heated as it 
was in the Republican caucus. The distinguished Presiding Officer was 
there. I might say, parenthetically, it is very troublesome to have our 
deliberations among Republican Senators in the caucus reported to the 
press. I was called by the press. My standard answer is, ``I will tell 
you what I said, but I won't tell you what anybody else said.'' Then 
the reporter says, ``Well, do you mind confirming this?'' And they 
repeat exactly what happened in the Republican caucus, which was 
limited to Republican Senators. Very distressing. That really is a 
confidential communication that ought to be respected.
  But when we looked at that issue, we came to the conclusion that we 
have to have a wider scope which includes not only illegal but improper 
activities. That is because we want to correct what has gone on, and 
not only with the use of these millions of dollars in soft money, but 
what has gone on in foreign expenditures. We have seen very substantial 
moneys contributed illegally by foreigners. We know it is illegal 
because the Democratic National Committee has returned the money.

  When I talk about the Democratic National Committee, I do not wish to 
be unduly partisan. I favor an inquiry which would take in not only the 
Democratic Presidential campaign, but the Republican Presidential 
campaign, and not only the Presidential campaigns but congressional 
campaigns, so that we would take a look across the board and not with a 
limited scope.
  But the foreign contributions as disclosed to the media have been 
received by the Democratic National Committee. And we know they are 
illegal because the Democratic National Committee has returned a great 
many. We do not know if they returned them all. This is a matter that 
we ought to look into.
  Although contributions by foreigners, noncitizens, are illegal, maybe 
we ought to extend our laws beyond the bounds which we have now. If we 
are to really be able to regulate campaign money, we are going to have 
to have the authority to do it without having the Supreme Court hand 
down the Colorado case and without having loopholes virtually as broad 
as the planet.
  These are issues of great importance. We have really seen our 
democracy, our Republic, on the line in terms of what has happened on 
campaign irregularities. This is something that the Congress ought to 
take up. The Congress cannot take it up realistically unless we have a 
constitutional amendment.
  I see my distinguished colleague, Senator Hollings, has come back to 
the floor. I am happy to start again. I am not sure where he came in.
  Mr. HOLLINGS. If the Senator will yield, I came in at the very 
beginning. I could not repeat it better than what the distinguished 
Senator from Nevada said when he congratulated the Senator from 
Pennsylvania not just on the guts to be able to cosponsor this, because 
he takes it from his side--there is no more erudite attorney and legal 
scholar within this body. I would not miss a word of it.
  Mr. SPECTER. I am glad I know that Senator Hollings was here. 
Otherwise, he would not have made those flattering, complimentary 
statements.
  I know Senator Hollings has been here all day today and all day 
yesterday, because I came over to look for an opportunity to speak 
yesterday and the floor was taken, and earlier today I was looking for 
a chance to speak, and I came out of hearings on the Agriculture 
Subcommittee where we have a major problem with dairy pricing in 
Pennsylvania, which occupied me all afternoon.
  As I was about to say, Senator Hollings has been the leader on this, 
and it has been the Hollings-Specter constitutional amendment for the 
better part of a decade. Senator Hollings asked me to join him in the 
news conference Tuesday morning at 11:30 where we talked about this 
amendment and campaign finance reform generally, and then questions 
from the media got into the issue of what the Governmental Affairs 
Committee would be doing, more broadly than the constitutional 
amendment. Some of that got on to the wires and stimulated some of the 
discussion we had later at the Republican caucus. It was synergistic 
and moved the issue right along.
  It is very difficult to pass this amendment because it takes a two-
thirds vote. There is no doubt about that. On May 27, 1993 the Senate 
adopted by a vote of 52-43 a sense-of-the-Senate resolution that this 
amendment should be passed, and my sense is that one day this 
constitutional amendment will pass. It will take a lot of effort. I am 
not optimistic about its chances at the present time. I do not believe 
there will be campaign finance reform until the Congress has to act.
  We have in here a conflict of interest in passing campaign finance 
reform because it benefits incumbents. Some say that the absence of 
campaign finance reform benefits the Republican Party. I disagree with 
that. I believe the Republican Party would do just fine with

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campaign finance reform. I think it would be tougher on incumbents, but 
we are not going to get it until we do overturn Buckley versus Valeo.
  The Supreme Court has often reversed itself when the Court was wrong, 
and there have been constitutional amendments when the Court was wrong. 
We have an amendment process where two-thirds of the House of 
Representatives and the Senate, and three-fourths of the States, can 
change the Constitution--because the U.S. Supreme Court is not the last 
word. They can be overturned.
  There have been proposals to overturn Supreme Court decisions by a 
two-thirds vote of the Senate. I would hate to see that happen because 
we muster two-thirds of the Senate sometimes on issues which may not 
really reflect long-range interests of the United States. I think it is 
important to have a high barrier to have a constitutional amendment. I 
think one day the public alarm, the public dismay, the repugnance of 
the public will reach a level which will motivate the Congress to have 
campaign finance reform and to have a constitutional amendment.
  I think it is a solid constitutional principle that money ought not 
to be equated with speech, and we ought to overturn Buckley versus 
Valeo and then Congress ought to have sensible legislation to ensure 
that democracy is protected and our Republic is protected.

  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The majority leader.

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