Congressional Record, Volume 143 Issue 32 (Thursday, March 13, 1997)

[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

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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

[[Page S2273]]

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.

____________________