[Congressional Record Volume 143, Number 35 (Tuesday, March 18, 1997)]
[Senate]
[Pages S2382-S2393]
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 Senate will now
resume consideration of S.J. Res. 18, which the clerk will report.
The assistant legislative clerk read as follows:
A joint resolution (Senate Joint Resolution 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.
The PRESIDING OFFICER. There will now be 1 hour equally divided
between the Senator from Kentucky [Mr. McConnell] and the Senator from
South Carolina [Mr. Hollings].
The Senator from South Carolina is recognized.
Mr. HOLLINGS. Mr. President, let me first thank Senator Byrd our
resident Senate historian. I do not say that lightly--because the
distinguished Senator from West Virginia has been masterful in his
analysis and been very, very cautious and careful. He has stood many a
time for not amending the Constitution, that we don't do this, willy-
nilly, for any and every problem. But, after 20 years, thousands of
speeches and hours and effort made, he has given a very masterful
analysis of the need for this amendment. The Senate and the Nation are
indebted to him.
Mr. President, I ask unanimous consent that Senator Dodd, of
Connecticut, be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HOLLINGS. Mr. President, although I commend the efforts of the
minority leader and others seeking to statutorily reform our campaign
finance laws, I am convinced the only way to solve the chronic problems
surrounding campaign financing is reverse the Supreme Court's flawed
decision in Buckley versus Valeo by adopting a constitutional amendment
granting Congress the right to limit campaign spending.
We all know the score--we are hamstrung by that decision and the ever
increasing cost of a competitive campaign. With the total cost for
congressional elections, just general elections, skyrocketing from $403
million in 1990 to over $626 million in 1996, the need for limits on
campaign expenditures is more urgent than ever. For nearly a quarter of
a century, Congress has tried to tackle runaway campaign spending with
bills aimed at getting around the disjointed Buckley decision. Again
and again, Congress has failed.
Let us resolve not to repeat the mistakes of past campaign finance
reform efforts, which have become bogged down in partisanship as
Democrats and Republicans each tried to gore the other's sacred cows.
During the 103d Congress there was a sign that we could move beyond
this partisan bickering, when the Senate in a bipartisan fashion
expressed its support for a constitutional amendment to limit campaign
expenditures. In May 1993, a nonbinding sense-of-the-Senate resolution
was agreed to which advocated the adoption of a constitutional
amendment empowering Congress and States to limit campaign
expenditures.
Now it is time to take the next step. We must strike the decisive
blow against the anything-goes fundraising and spending tolerated by
both political parties. Looking beyond the current headlines regarding
the source of these funds, the massive amount of money spent is
astonishing and serves only to cement the commonly held belief that our
elections are nothing more than auctions and that our politicians are
up for sale. It is time to put a limit on the amount of money sloshing
around campaign war chests. It is time to adopt a constitutional
amendment to limit campaign spending--a simple, straightforward,
nonpartisan solution.
As Prof. Gerald G. Ashdown has written in the New England Law Review,
amending the Constitution to allow Congress to regulate campaign
expenditures is ``the most theoretically attractive of the approaches-
to-reform since, from a broad free speech perspective, the decision in
Buckley is misguided and has worsened the campaign finance
atmosphere.'' Adds Professor Ashdown: ``If Congress could
constitutionally limit the campaign expenditures of individuals,
candidates, and committees, along with contributions, most of the
troubles * * * would be eliminated.''
Right to the point, back in 1974, Congress responded to the public's
outrage over the Watergate scandals by passing, on a bipartisan basis,
a comprehensive campaign finance law. The centerpiece of this reform
was a limitation on campaign expenditures. Congress recognized that
spending limits were the only rational alternative to a system that
essentially awarded office to the highest bidder or wealthiest
candidate.
Unfortunately, the Supreme Court overturned these spending limits in
its infamous Buckley versus Valeo decision of 1976. The Court
mistakenly equated a candidate's right to spend unlimited sums of money
with his right to free speech. In the face of spirited dissents, the
Court came to the conclusion that limits on campaign contributions but
not spending furthered ``* * * the governmental interest in preventing
corruption and the appearance of corruption'' and that this interest
``outweighs considerations of free speech.''
I have never been able to fathom why that same test--the governmental
interest in preventing corruption and the appearance of corruption--
does not overwhelmingly justify limits on campaign spending. The Court
made a huge mistake. The fact is, spending limits in Federal campaigns
would act to restore the free speech that has been eroded by the
Buckley decision.
After all, as a practical reality, what Buckley says is: Yes, if you
have a fundraising advantage or personal wealth, then you have access
to television, radio and other media and you have freedom of speech.
But if you do not have a fundraising advantage or personal wealth, then
you are denied access. Instead of freedom of speech, you have only the
freedom to say nothing.
So let us be done with this phony charge that spending limits are
somehow an attack on freedom of speech. As Justice Byron White points
out, clear as a bell, in his dissent, both contribution limits and
spending limits are neutral as to the content of speech and are not
motivated by fear of the consequences of the political speech in
general.
Mr. President, every Senator realizes that television advertising is
the name of the game in modern American politics. In warfare, if you
control the air, you control the battlefield. In politics, if you
control the airwaves, you control the tenor and focus of a campaign.
Probably 80 percent of campaign communications take place through the
medium of television. And most of that TV airtime comes at a dear
price. In South Carolina, you're talking between $1,000 and $2,000 for
30 seconds of primetime advertising. In New York City, it's anywhere
from $30,000 to $40,000 for the same 30 seconds.
The hard fact of life for a candidate is that if you're not on TV,
you're not truly in the race. Wealthy challengers as well as incumbents
flushed with money go directly to the TV studio. Those without a
fundraising advantage or personal wealth are sidetracked to the time-
consuming pursuit of cash.
The Buckley decision created a double bind. It upheld restrictions on
campaign contributions, but struck down restrictions on how much
candidates with deep pockets can spend. The Court ignored the practical
reality that if my opponent has only $50,000 to spend in a race and I
have $1 million, then I can effectively deprive him of his speech. By
failing to respond to my advertising, my cash-poor opponent will appear
unwilling to speak up in his own defense.
Justice Thurgood Marshall zeroed in on this disparity in his dissent
to Buckley. By striking down the limit on what a candidate can spend,
Justice Marshall said, ``It would appear to follow that the candidate
with a substantial personal fortune at his disposal is off to a
significant head start.''
[[Page S2383]]
Indeed, Justice Marshall went further: He argued that by upholding
the limitations on contributions but striking down limits on overall
spending, the Court put an additional premium on a candidate's personal
wealth.
Justice Marshall was dead right and Ross Perot and Steve Forbes have
proved it. Massive spending of their personal fortunes immediately made
them contenders. Our urgent task is to right the injustice of Buckley
versus Valeo by empowering Congress to place caps on Federal campaign
spending. We are all painfully aware of the uncontrolled escalation of
campaign spending. The average cost of a winning Senate race was $1.2
million in 1980, rising to $2.9 million in 1984, and skyrocketing to
$3.1 million in 1986, $3.7 million in 1988, and up to $4.3 in 1996. To
raise that kind of money, the average Senator must raise over $13,800 a
week, every week of his or her 6-year term. Overall spending in
congressional races increased from $446 million in 1990 to more than
$724 million in 1994--almost a 70-percent increase in 4 short years. I
predict that when the final FEC reports are compiled for 1996, that
figure will go even higher.
This obsession with money distracts us from the people's business. It
corrupts and degrades the entire political process. Fundraisers used to
be arranged so they didn't conflict with the Senate schedule; nowadays,
the Senate schedule is regularly shifted to accommodate fundraisers.
I have run for statewide office 16 times in South Carolina. You
establish a certain campaign routine, say, shaking hands at a mill
shift in Greer, visiting a big country store outside of Belton, and so
on. Over the years, they look for you and expect you to come around.
But in recent years, those mill visits and dropping by the country
store have become a casualty of the system. There is very little time
for them. We're out chasing dollars.
During my 1992 reelection campaign, I found myself raising money to
get on TV to raise money to get on TV to raise money to get on TV. It's
a vicious cycle.
I remember Senator Richard Russell saying: ``They give you a 6-year
term in this U.S. Senate: two years to be a statesman, the next 2 years
to be a politician, and the last 2 years to be a demagogue.''
Regrettably, we are no longer afforded even 2 years as statesmen. We
proceed straight to politics and demagoguery right after the election
because of the imperatives of raising money.
My proposed constitutional amendment would change all this. It would
empower Congress to impose reasonable spending limits on Federal
campaigns. For instance, we could impose a limit of, say, $800,000 per
Senate candidate in a small State like South Carolina--a far cry from
the millions spent by my opponent and me in 1992. And bear in mind that
direct expenditures account for only a portion of total spending. For
instance, my 1992 opponent's direct expenditures were supplemented by
hundreds of thousands of dollars in expenditures by independent
organizations and by the State and local Republican Party. When you
total up spending from all sources, my challenger and I spent roughly
the same amount in 1992.
And incidentally, Mr. President, let's be done with the canard that
spending limits would be a boon to incumbents, who supposedly already
have name recognition and standing with the public and therefore begin
with a built-in advantage over challengers. Nonsense. I hardly need to
remind my Senate colleagues of the high rate of mortality in upper
chamber elections. And as to the alleged invulnerability of incumbents
in the House, I would simply note that well over 50 percent of the
House membership has been replaced since the 1990 elections and just 3
weeks ago we swore in 15 new Senators.
I can tell you from experience that any advantages of incumbency are
more than counterbalanced by the obvious disadvantages of incumbency,
specifically the disadvantage of defending hundreds of controversial
votes in Congress.
Moreover, Mr. President, I submit that once we have overall spending
limits, it will matter little whether a candidate gets money from
industry groups or from PAC's or from individuals. It is still a
reasonable amount any way you cut it. Spending will be under control,
and we will be able to account for every dollar going out.
On the issue of PAC's, Mr. President, let me say that I have never
believed that PAC's per se are an evil in the current system. On the
contrary, PAC's are a very healthy instrumentality of politics. PAC's
have brought people into the political process: nurses, educators,
small business people, senior citizens, unionists, you name it. They
permit people of modest means and limited individual influence to band
together with others of mutual interest so their message is heard and
known.
For years we have encouraged these people to get involved, to
participate. Yet now that they are participating, we turn around and
say, ``Oh, no, your influence is corrupting, your money is tainted.''
This is wrong. The evil to be corrected is not the abundance of
participation but the superabundance of money. The culprit is runaway
campaign spending.
To a distressing degree, elections are determined not in the
political marketplace but in the financial marketplace. Our elections
are supposed to be contests of ideas, but too often they degenerate
into megadollar derbies, paper chases through the board rooms of
corporations and special interests.
Mr. President, I repeat, campaign spending must be brought under
control. The constitutional amendment Senator Specter and I have
proposed would permit Congress to impose fair, responsible, workable
limits on Federal campaign expenditures and allow States to do the same
with regard to State and local elections.
Such a reform would have four important impacts. First, it would end
the mindless pursuits of ever-fatter campaign war chests. Second, it
would free candidates from their current obsession with fundraising and
allow them to focus more on issues and ideas; once elected to office,
we wouldn't have to spend 20 percent of our time raising money to keep
our seats. Third, it would curb the influence of special interests. And
fourth, it would create a more level playing field for our Federal
campaigns--a competitive environment where personal wealth does not
give candidates an insurmountable advantage.
Finally, Mr. President, a word about the advantages of the amend-the-
Constitution approach that I propose. Recent history amply demonstrates
the practicality and viability of this constitutional route. Certainly,
it is not coincidence that five of the last seven amendments to the
Constitution have dealt with Federal election issues. In elections, the
process drives and shapes the end result. Election laws can skew
election results, whether you're talking about a poll tax depriving
minorities of their right to vote, or the absence of campaign spending
limits giving an unfair advantage to wealthy candidates. These are
profound issues which go to the heart of our democracy, and it is
entirely appropriate that they be addressed through a constitutional
amendment.
And let's not be distracted by the argument that the amend-the-
Constitution approach will take too long. Take too long? We have been
dithering on this campaign finance issue since the early 1970's, and we
haven't advanced the ball a single yard. All-the-while the Supreme
Court continues to strike down campaign limit after campaign limit. It
has been a quarter of a century, and no legislative solution has done
the job.
Except for the 27th amendment, the last five constitutional
amendments took an average of 17 months to be adopted. There is no
reason why we cannot pass this joint resolution, submit it to the
States for a vote, and ratify the amendment in time for it to govern
the 1998 election. Once passed by the Congress, the joint resolution
goes directly to the States for ratification. Once ratified, it becomes
the law of the land, and it is a Supreme Court challenge.
And, by the way, I reject the argument that if we were to pass and
ratify this amendment, Democrats and Republicans would be unable to
hammer out a mutually acceptable formula of campaign expenditure
limits. A Democratic Congress and Republican President did exactly that
in 1974, and we can certainly do it again.
Mr. President, this amendment will address the campaign finance mess
directly, decisively, and with finality.
[[Page S2384]]
The Supreme Court has chosen to ignore the overwhelming importance of
media advertising in today's campaigns. In the Buckley decision, it
prescribed a bogus if-you-have-the-money-you-can-talk version of free
speech. In its place, I urge the Congress to move beyond these
acrobatic attempts at legislating around the Buckley decision. As we
have all seen, no matter how sincere, these plans are doomed to fail.
The solution rests in fixing the Buckley decision. It is my hope that
as the campaign financing debate unfolds, the majority leader will
provide us with an opportunity to vote on this resolution--it is the
only solution.
I now yield 5 minutes to the distinguished colleague from California,
Senator Boxer.
The PRESIDING OFFICER. The Senator from California is recognized to
speak for 5 minutes.
Mrs. BOXER. Mr. President, I am proud to stand with Senator Hollings
and Senator Byrd and many other Senators today in support of Senate
Joint Resolution 18. This measure proposes a constitutional amendment
to allow the Congress to limit the amount of money that is spent on
campaigns. I treasure the Constitution of the United States of America
and never have I stood on the floor of the Congress supporting such a
measure, except for the equal rights amendment and this measure. It is
very rare that I stand to amend this Constitution. But we are about to
lose our democracy. It is that serious. I think what Senator Hollings
has come up with here is a way to save this democracy. So, I am so
proud to be a cosponsor of his measure.
Total campaign spending for general election congressional races has
increased more than sixfold in the past 20 years. The total amount of
money raised by Republicans and Democrats in 1996 was almost $900
million. In my own reelection campaign, I believe that it could cost at
least $20 million. I come from California. We have 33 million people.
And $20 million would actually be less than what was spent several
years ago to win a U.S. Senate seat. It is an unbelievable amount.
So it is undeniable that there is an extraordinary amount of money in
political campaigns. The amounts are growing and unfortunately, in my
view, some partisan observers of our political system do not even see
it as a problem. I have heard responses such as, ``So what?'' Or,
``Money is the American way.'' Or ``The problem isn't too much money,
it is too little money.'' And the most ludicrous I thought, ``We spend
more advertising dollars on yogurt than we do on campaigns.'' I
strongly disagree with the notion that money in politics is not a
problem. It is a serious problem, undermining our democracy, depressing
voter turnout, and, frankly, depressing the American people who should
be depressed that their elected officials have to spend so much time
away from their official duties.
Let me talk about the California race. Today, a Senate candidate in
California can expect to have to raise up to $10,000 a day, including
Saturday and Sunday, 365 days a year, for 6 full years. Imagine,
$10,000 a day, 7 days a week, 365 days a year, for a full 6 years. That
is too much time away from work, too much time away from doing the
kinds of things that we want to do here, making life better for people.
I resent it. And I am so proud to be able to support this
constitutional amendment. Anyone who supports reform, therefore, has to
support this. Because of the Supreme Court decision, we cannot control
spending unless we pass this Hollings amendment. The Supreme Court
decision discriminates against potential candidates who do not have a
lot of personal wealth. The talent pool for the House and Senate is
declining because of the amount of money that is needed to be raised.
I want to talk a minute about the Supreme Court decision--which I
know my colleagues, who are attorneys, who understand it, perhaps, in a
deeper fashion, have already done--but I want to talk about it from a
commonsense point of view, and as someone who loves this Constitution.
I think the Supreme Court was just completely wrong on this Buckley
versus Valeo decision that said that Congress could not put a cap on
campaign spending. Freedom of speech is the most precious and most
important of all the rights guaranteed in our Constitution. But, it
seems to me, if you equate money with speech you are demeaning speech.
You are demeaning speech. Not everything can be equated with the
dollar. Free speech goes far beyond that. And what about the speech of
the candidates who do not have personal wealth? What about their
speech? When someone comes in who is worth $200 million, $300 million,
and throws $30, $40 million into a race--we have had that in
California. What happens to the people who cannot afford to put their
own money in a race? What happens to their speech?
So, it seems to me what the Court has done in Buckley is to support
the speech of the wealthy candidates, not the speech of those of us who
cannot afford to put those millions of dollars into place.
The PRESIDING OFFICER. The time of the Senator from California has
expired.
Mrs. BOXER. Mr. President, I ask for 2 additional minutes.
Mr. HOLLINGS. I so yield.
The PRESIDING OFFICER. The Senator from California is recognized for
2 additional minutes.
Mrs. BOXER. If money is speech, as the Supreme Court says, then more
money must be more persuasive speech, and those ideas with the most
money behind them will tend to prevail.
This is un-American. I am a product of public schools. I go toe to
toe here with people who went to Harvard and Yale and all those
expensive schools. My schooling was free, from kindergarten all the way
through college. It is the American way, to give us all that level
playing field. We do not have a level playing field if we have to live
with Buckley versus Valeo. It is an un-American decision. It is wrong.
It is elitist. Ideas should prevail because of their inherent worth,
not because they were able to be hyped in 30-second commercials.
By the way, sometimes these commercials are not even ideas, they are
terrible attacks on other candidates. So they are not even ideas, but
somehow they are worth so much because an individual may have the
money.
``Money is speech'' subverts the notion that ideas, not commercials,
are the heart of the expression that the first amendment protects.
My colleague, Senator Hollings, who has been so eloquent and so
persuasive in this debate was right when he said--and I quote--``Our
democracy must be saved from this excess.''
Mr. President, it is time to go back to the original meaning of the
first amendment, overturn Buckley versus Valeo and allow Congress to
set spending limits that are fair for all congressional races. I can
think of no more important issue than this one to be dealing with at
this time as the furor swirls around all these large campaign
contributions. Well, folks, those are the rules. Those are the rules.
We allow it in the current system. We need to change the current
system. To do that we need to pass the Hollings resolution.
I thank you very much and I yield the floor.
Mr. HOLLINGS addressed the Chair.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Let me thank the distinguished colleague from
California. She has spoken to the reality of what we really are
confronting.
I do not know how you run a race in the State of California. Mr.
Huffington, of your State, spent $30 million of his own money to run
for Senate and lost. Last week the Senator from Nevada suggested that
all Mr. Huffington needs to do would be come to Nevada. In Nevada he
could run a fine campaign for $10 million. He could move, saving $20
million of his money, down to the State of Nevada and win, so to speak,
with the $10 million. We know we know as in warfare, he who rules the
air controls the battlefield. And he who rules the airwaves in politics
controls the election.
And it is just that cold, hard reality that the Senator from
California has spoken to. I am most grateful for her leadership on this
particular score.
Going right back, Mr. President, to 1974 and the passage of the
Federal Election Campaign Act, in the aftermath of Watergate. We acted
together--Republicans and Democrats and said with a strong vote that we
shall not have the Government up for
[[Page S2385]]
sale and that we had to limit spending in campaigns.
So in the 1974 act we limited the individual amount of a
contribution. In short, we limited the free speech. Congress did that
after a studied debate. We limited the spending of the independent
groups at that particular time. We limited the spending of the
political action committees. We limited the spending of the individual
candidates' own personal wealth, and we limited the overall spending.
So the manifest intent in 1974 was to limit what my opponents now
characterize as free speech.
In the 1976, Buckley decision, the Court went along with Congress'
effort to limit an individual's free speech. When it comes to an
individual's contribution, they said fine, it is constitutional to
limit the spending or free speech of independent groups or of political
action committees.
On the other hand, the Court then said, expenditures, they are not
limited. Any limit on expenditures would be a violation of the first
amendment. Now, that left us with a dilemma, the rich candidate or the
candidate with a fundraising advantage, he has got unlimited speech
because he does not have limits. This and the unlimited spending by
candidates has become a cancer on the body politic. Combined spending
of both political parties has gone up, as the Senator from California
said, to almost a billion dollars.
So, Mr. President, what we have here is a terrible dilemma. We
wrestled with it for 10 years after that 1976 decision until the mid-
1980's when I first introduced a joint resolution to amend the
Constitution and provide Congress the authority to limit campaign
spending. We did not have a Pavlovian kind of reaction of ``Ipso facto,
just run. Let's go ahead and amend the Constitution.'' We did it after
numerous attempts to correct the problem. First it was Common Cause,
they said we ought to publicly finance. Time and time again, Congress
rejected public financing. Opponents characterized it as food stamps or
welfare for politicians. So that is not going to fly.
We tried individual voluntary restrictions. If we voluntarily
limited, then you can get free time, free television time, free
mailings and other benefits.
We were never able to come to grips with reform largely because of
the Buckley decision. As Chief Justice Burger said in his dissenting
opinion, expenditures and contributions were two sides of the same
coin, and to try to limit the one and not the other would not wash.
That was Chief Justice Burger's characterization of the decision.
So we are not coming here as just politicians, but with the support
of the best of jurists who have come over the years and criticized the
Buckley decision. J. Skelly Wright in the Yale Law Journal said that
there was nothing in the first amendment that commits us to the dogma
that money is speech.
So after trying for 10 years I introduced a constitutional amendment.
At that time, we believed perhaps the Court itself saw the practical
and the scandalous effect the decision had had and that they would
reverse their own decision.
But please, my gracious, Mr. President, they shot that idea with last
years Colorado Republican Party versus FEC decision and now ``Katie,
bar the door. The sky is the limit.''
Now what do we have? We have the practical effect of absolutely no
limits. Business leaders now say, ``Senator, you know, we thought that
we sort of had done our part when we gave our $1,000. Now after that
Colorado decision the telephone rings off the hook. Now I want
$100,000.'' ``What in the world has happened to you all here in
Washington?''
They think this is the result of a congressional decision.
Back in 1974 the Congress agreed, in a bipartisan fashion--not
partisan-- that we could only ask for that $1,000. That is no longer
the case.
I refer to an article in the Monday Washington Post, `Parties'
Congressional Campaign Committees Took in Millions in `Soft Money' in
1995-96.'' This is the practical effect of the Colorado decision.
This soft money represents independent contributions that, under the
Colorado decision, can be spent on congressional campaigns so long as
you cannot prove categorically it was coordinated--even though it went
for the benefit an individual candidate. In that case, they just
started savaging a potential candidate way ahead of time on the radio.
Even though the Court is limiting the individual contributions, the
PAC contributions, and right on down the line, now they say, ``Well,
after all, just go ahead with the so-called soft money,'' so that
practically congressional committees have no limits. As the chart shows
the committees received ``donations of as much as $735,000 from a
single corporation, $310,000 from a union, and $250,000 from an
individual from January 1, 1995, through December 31, 1996.''
The National Republican Senatorial Campaign Committee
raised near $27 million in these unregulated donations in the
election year, about three times the total 4 years earlier.
The Democratic Senatorial Campaign Committee actively
solicited soft money for the first time in the 1995-96
campaign, collecting about $14 million compared with the
$566,111 in 1991-1992.
So, you see, both parties just went running amok.
In response to my distinguished friend from Texas, who last week said
on this floor that the Republican Party was the poor party and the
Democrats were rich, I suggest a look at this chart.
Mr. President, I ask unanimous consent that the article and the chart
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Mar. 17, 1997]
Parties' Congressional Campaign Committees Took in Millions in ``Soft
Money'' in 1995-96
(By Charles R. Babcock)
While congressional and public attention has been focused
on the large donations the Democratic National Committee
solicited for the 1996 elections, the congressional arms of
both parties--whose stated purpose is helping to elect
federal officials--were busy raking in unlimited ``soft
money'' as well.
Corporations and labor unions may not give directly to
federal candidates, and individuals are limited to giving
$1,000 to a candidate per election and $20,000 a year to a
party committee. But most national party committees have been
raising money outside the federal limits, often in $50,000
and $100,000 chunks. This soft money is supposed to be used
toward administrative costs and party-building activities
such as get-out-the-vote drives.
Federal Election Commission records, analyzed by Common
Cause, which is pushing to ban soft money as part of
reforming the way federal campaigns are financed, show the
congressional committees had donations of as much as $735,000
from a single corporation, $310,000 from a union and $250,000
from an individual from Jan. 1, 1995, through Dec. 31, 1996.
The National Republican Senatorial Committee raised nearly
$27 million in these unregulated donations in the election
cycle, about three times the total four years earlier. The
Democratic Senatorial Campaigns Committee actively solicited
soft money for the first time in the 1995-96 campaign,
collecting about $14 million, compared with $566,111 in 1991-
92.
On the House side, the National Republican Congressional
Committee raised nearly $19 million in soft money, three
times as much as it raised four years earlier. The Democratic
Congressional Campaign Committee raised nearly $12 million,
compared with $4.4 million in 1991-92.
FEC rules require that a percentage of the soft money the
committees raised be transferred to state and local
candidates. The practice has caused some controversy, with
Sen. Dianne Feinstein (D-Calif.) complaining that the DSCC
shouldn't be in that business after she learned it had spent
more than $1 million on state candidates in California.
The NRSC transferred $2.7 million to New York state
candidates and committees, with state Democrats complaining
that committee Chairman Alfonse M. D'Amato (R-N.Y.) did so to
shore up the party structure for his reelection run in 1998.
------------------------------------------------------------------------
To DSCC To DCCC
------------------------------------------------------------------------
Gave $75,000 or more to one of the Democratic
committees:
American Federation of State County &
Municipal Employees.......................... $310,000 $272,500
Federal Express Corp.......................... 250,125 7,500
Philip Morris Cos............................. 237,500 192,768
Peter B. Lewis (Progressive Corp.)............ 225,000 0
Connell Rice & Sugar Co....................... 200,000 207,000
Association of Trial Lawyers of America*...... 193,500 32,800
Loral Corp.*.................................. 155,500 75,000
Bernard L. Schwartz......................... 155,500 70,000
Archer Daniels Midland Co..................... 155,000 80,000
RJR Nabisco Inc.*............................. 143,353 97,550
RJ Reynolds Tobacco......................... 75,853 51,300
Mashantucket Pequot Tribe*.................... 139,000 105,000
American Airlines............................. 121,333 97,033
MCI Telecommunications Corp................... 110,193 94,950
Sullivan & Liapakis PC*....................... 100,000 125,000
Pamela Liapakis............................. 75,000 0
AT&T Corp..................................... 99,980 20,500
Walt Disney Co.*.............................. 92,500 60,050
Summit Technology Inc......................... 88,599 0
Orin Kramer (Kramer Spellman LP).............. 82,500 0
Joseph E. Seagram & Sons Inc.*................ 80,000 95,000
Edgar M. Bronfman Sr........................ 80,000 80,000
MacAndrews & Forbes Holding Inc.*............. 76,000 10,000
NHCG Management Corp........................ 50,000 0
Time Warner Inc.*............................. 69,918 75,000
Eli Lilly & Co................................ 61,500 113,100
[[Page S2386]]
AFL-CIO....................................... 52,000 122,500
Michael Bloomberg (Bloomberg Financial
Markets)..................................... 50,000 100,000
SBC Communications............................ 43,792 122,798
Flo-Sun Sugar Co.*............................ 40,000 92,000
United Food & Commercial Workers.............. 35,000 171,500
Laborers' International Union of North America 35,000 75,000
American Federation of Teachers............... 30,000 85,500
Atlantic Richfield Co......................... 19,000 126,800
Wade E. Byrd (Berry & Byrd)................... 10,000 75,000
E. & J. Gallo Winery.......................... 7,500 80,700
Don Henley (musician)......................... 0 150,000
Charles N. Davenport (SeaWest Inc.)........... 0 110,000
Service Employees International Union......... 0 100,000
------------------------------------------------------------------------
*Includes contributions from executives and/or affiliates.
Source: Common Cause from Federal Election Commission records.
------------------------------------------------------------------------
To NRSC To NRCC
------------------------------------------------------------------------
Gave $75,000 or more to one of the Republican
committees:
Phillip Morris Cos............................ $735,338 $353,432
News Corp.*................................... 518,200 201,500
Anna M. Murdoch............................. 250,000 0
DLO Corp.................................... 125,000 0
News America Publishing Inc................. 65,000 150,000
RJR Nabisco Inc.*............................. 287,500 175,950
R.J. Reynolds Tobacco Co.................... 107,500 19,500
Foster Friess (Friess Associates Inc.)........ 259,900 30,000
Atlantic Richfield Co.*....................... 217,000 180,400
Union Pacific Corp.*.......................... 191,500 49,500
Anschutz Corp............................... 50,000 0
Tobacco Institute............................. 187,100 84,000
Brown & Williamson Tobacco Corp............... 170,000 282,500
Federal Home Loan Mortgage Corp............... 165,000 85,000
Flo-Sun Sugar Co.*............................ 164,500 59,500
American Financial Group *.................... 160,000 270,000
Carl Lindner.................................. 0 150,000
Bear Stearns & Co............................. 160,000 10,000
Archer Daniels Midland Co..................... 155,000 50,000
MacAndrews & Forbes Holding Inc.*............. 150,000 10,000
Revlon Group Inc............................ 100,000 10,000
924 Bel Aire Corp........................... 50,000 0
Chevron Corp.................................. 145,200 133,850
Glaxo Wellcome Inc.*.......................... 141,100 0
CSX Corp...................................... 139,712 42,500
Association of Trial Lawyers of America....... 138,600 37,500
MBNA Corp.*................................... 135,000 0
AT&T Corp.*................................... 133,295 78,545
Joseph E. Seagram & Sons Inc.*................ 130,000 140,000
Walt Disney Co.*.............................. 130,000 25,250
BankAmerica Corp............................ 128,700 105,500
U.S. Tobacco Co............................... 121,000 82,900
Time Warner Inc............................... 120,000 100,000
NYNEX Corp.*.................................. 119,600 191,750
Circus Circus Enterprises Inc................. 115,000 25,000
United Technologies Corp...................... 115,000 95,500
Schering-Plough Corp.......................... 112,585 135,000
Stephens Inc.*................................ 112,500 47,500
PaineWebber Group Inc.*....................... 110,000 50,000
Beneficial Corp............................... 109,500 15,000
TECO Energy................................... 105,100 0
WMX Technologies Inc.......................... 103,900 59,000
John J. Cafaro (Cafaro International)......... 103,200 0
Federal Express Corp.......................... 103,000 46,900
Gateway 2000 *................................ 100,000 0
Ronald S. Lauder (Estee Lauder Cosmetics)..... 100,000 100,000
Loews Corp. *................................. 100,000 120,000
CNA Financial Corp.......................... 52,500 62,500
Lorillard Tobacco........................... 47,500 57,500
Mirage Resorts Inc............................ 100,000 150,000
Blue Cross & Blue Shield Association *........ 96,500 115,658
Exxon Corp.................................... 95,000 45,000
British Petroleum (BP Oil) *.................. 94,000 55,829
BP Exploration & Oil Inc.................... 56,000 29,000
Public Securities Association................. 94,000 118,200
Goldman Sachs *............................... 91,390 2,250
Merrill Lynch & Co............................ 90,000 61,000
Sprint Corp. *................................ 89,673 41,400
Viacom International Inc.*.................... 82,700 10,000
Great Western Financial Corp.................. 82,000 40,000
MCI Telecommunications Corp................... 82,000 44,718
Prudential Insurance Co. of America *......... 78,100 103,950
Prudential Securities Inc................... 55,000 48,000
Occidental Petroleum Corp. *.................. 77,000 67,750
Federal National Mortgage Association......... 75,000 10,000
Forstmann Little & Co.*....................... 73,000 162,000
Theodore J. Forstmann....................... 50,000 150,000
Smokeless Tobacco Council Inc................. 72,100 112,500
National Association of Realtors.............. 67,200 93,000
Enron Corp.*.................................. 55,000 115,000
US West Inc................................... 53,000 98,400
Textron Inc................................... 51,500 134,700
Pfizer Inc.................................... 50,000 71,000
Ashland Oil Inc............................... 48,000 88,810
Boeing Co..................................... 47,000 115,700
Amgen Inc..................................... 40,000 95,000
Pacific Telesis Group......................... 37,200 75,200
American Insurance Association................ 36,100 75,250
SBC Communications *.......................... 35,000 153,100
Anheuser-Busch Co............................. 27,500 107,750
Interface Group Inc........................... 20,000 100,000
Chemical Manufacturers Association............ 17,000 84,500
------------------------------------------------------------------------
Note: This list includes contributions to the Republican Senate-House
Dinner Committee and the Democratic Congressional Dinner Committee,
which split their proceeds between their parties' House and Senate
campaign committees.
Mr. HOLLINGS. Mr. President, according to the Federal Election
Commission, the total amount of money raised overall, hard and soft
money, in 1996, by the Republicans was $548.7 million and by the
Democrats was $332.3 million.
So, the Democrats scramble everywhere. To the embarrassment of all of
us both Democrat and Republican, but my opponents do not want to
recognize that.
I got a call from my distinguished colleague, the Senior Senator from
Alabama. I understand he took the floor yesterday. Five times he has
been a cosponsor of this particular joint resolution for a
constitutional amendment. Now he is worried about the freedom of
speech. You see now, the Senator from Alabama seems to have lost his
freedom of speech. It is a sad, sad, commentary, Mr. President, but
that is exactly what is happening. The other side says, look, here we
have the advantage of money overwhelmingly, and that is our advantage
in politics, and we are not going to give it up, so let us hide behind
the First Amendment. It is a very shameful performance, a dog-and-pony
show, coming up here and saying we should not amend the Constitution,
we should not think of it. The very people saying that and quoting
Patrick Henry have voted to amend the Constitution relative to the
burning of the flag--the very speakers that have taken the floor. I
have seen hypocrisy before, but not like this.
Then they come saying ``Well, you know, we are not spending enough
money in campaigns. What could happen,'' under this amendment is, ``the
Congress could legislate us into incumbency, whereby you would never be
opposed.''
They use Patrick Henry to defend their actions. He once cried,
``Peace, peace, there is no peace.'' Here today we cry ``Free speech,
free speech, there is no free speech.'' In politics it is paid speech
we are talking about. As for me, give me this constitutional amendment
to save democracy.
Justice Jackson said that the Constitution is not a suicide pact, Mr.
President. In that context, I will review several of the most recent
constitutional amendments and show their relative significance to the
pending amendment. Amendment No. 27 has to do with the compensation of
Senators and Representatives. Certainly, this is more important than
the 27th amendment. The 26th amendment has to do with the voting age.
If they can change the voting age, they can certainly change the money
limit. This is more important than the 26th amendment. The 25th
amendment had to do with the succession in office. This is far more
important a problem. We deal with this each and every day--day in and
day out, exacerbating, getting worse and worse, turning elections into
auctions. And going right to the 24th amendment, the poll tax. Well, we
said in the 24th amendment that you cannot separate voters financially.
That is exactly what Buckley has done. Those who have the money can
shout to the rooftops. Those without money can get lockjaw--just hush,
you cannot compete. The last five or six amendments, Mr. President, we
have shown have been adopted in about a 20-month period. You can bet
your boots that this could easily be adopted in 1998.
What we have here is an amendment that is neutral. We do not say
limit spending or not limit. We merely authorize the States and the
Federal Government to limit spending. Here we are asking for a right.
Here this devolution crowd that keeps coming up here and saying,
``return government to the states, return government to the people, let
the people act,'' that is what I am trying to do. Pass my amendment,
send it to the States and let the American people make the decision. We
do not say ``limit.'' We do not say ``not limit.'' We just say give the
people's representative body--namely, the Congress of the United
States--the authority to limit. My opponents do not want to give the
people a chance to vote on it.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Chair advises the Senator from South
Carolina he has 5 minutes 45 seconds remaining. Senator McConnell has
30 minutes.
The Senator from Utah.
Mr. HATCH. Mr. President, there is a right way and a wrong way of
reforming our system of campaign finance. The Hollings proposal to
amend our Constitution is simply the wrong way. It would, in effect,
amend the first amendment to our Constitution to allow any reasonable
restrictions to be placed on independent campaign expenditures and
contributions. Why does he propose that we amend the first amendment?
Because the Supreme Court of the United States has held that
restrictions on independent expenditures violate the first amendment's
free speech protection and that such restrictions could only be
justified upon a showing of a compelling--as opposed to any
reasonable--reason.
The Hollings amendment would gut the free speech protections of the
first amendment. It would allow the curtailing of independent campaign
expenditures that could overcome the natural advantage that incumbents
have. It would, thus, limit free speech and virtually guarantee that
incumbents be reelected. Thus, the Hollings amendment could change the
very nature of our constitutional democratic form of Government by
establishing what the Founders of the Republic feared most: A permanent
elite or ruling oligarchy that dominates us all. Let me explain.
The very purpose of the first amendment's free speech clause is to
ensure that the people's elected officials effectively and genuinely
represent the public. For elections to be a real check on Government,
free speech must be guaranteed--both to educate the public about the
issues, and to allow differing view points to compete in what Oliver
[[Page S2387]]
Wendell Holmes called the market place of ideas.
Simply put, without free speech, Government cannot be predicated
upon, what Thomas Jefferson termed, ``the consent of the governed.''
Without free speech, there can be no government based on consent
because consent can never be informed.
The Supreme Court of the United States recognized this fundamental
principle of democracy in the 1976 case of Buckley versus Valeo, 424
U.S. 1 (1976). The Court in Buckley recognized that free speech is
meaningless unless it is effective. In the words of Justice White,
``money talks.'' Unless you can get your ideas into the public domain,
all the homilies and hosannas to freedom of speech are just talk. Thus,
the Supreme Court held that campaign contributions and expenditures are
speech--or intrinsically related to speech--and that regulating of such
funds must be restrained by the prohibitions of the first amendment.
The Buckley Court made a distinction between campaign contributions
and campaign expenditures. The Court found that free speech interests
in campaign contributions are marginal at best because they convey only
a generalized expression of support. But independent expenditures are
another matter. These are given higher first amendment protection
because they are direct expressions of speech.
Consequently, because contributions are tangential to free speech,
Congress has a sizeable latitude to regulate them in order to prevent
fraud and corruption. But not so with independent expenditures. In the
words of the Court:
A restriction on the amount of money a person or group can
spend necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of
their exploration, and the size of the audience reached. This
is because virtually every means of communicating in today's
mass society requires the expenditure of money.
The Hollings amendment's allowance of restrictions on expenditures by
Congress and State legislatures would impose direct and substantial
restraints on the quantity of political speech. It would permit placing
drastic limitations on both individuals and groups from spending money
to disseminate their own ideas as to which candidate should be
supported and what cause is just. The Supreme Court noted that such
restrictions on expenditures, even if neutral as to the ideas
expressed, limit political expression at the core of our electoral
process and of the first amendment freedoms.
Indeed, even candidates under the Hollings proposal could be
restricted in engaging in protected first amendment expression.
Justice Brandeis observed, in Whitney versus California, that in our
Republic, ``public discussion is a political duty,'' and that duty will
be circumscribed where a candidate is prevented from spending his or
her own money to spread the electoral message. That a candidate has a
first amendment right to engage in public issues and advocate
particular positions was considered by the Buckley Court to be of
``particular importance. . . candidates [must] have the unfettered
opportunity to make their views known so that the electorate may
intelligently evaluate the candidates' personal qualities and their
positions on vital public issues before choosing among them on election
day.''
Campaign finance reform should not be at the expense of free speech.
This amendment, in trying to reduce the costs of political campaigns--a
noble goal, I can say--could cost us so much more; it could cost us our
heritage of political liberty. Without free speech, our Republic could
become a tyranny. Even the liberal American Civil Liberties Union
opposes Senator Hollings-type approaches to campaign reform and calls
such approaches a ``recipe for repression.''
Mr. President, the simple truth is that there are just too many on
the other side of the aisle that believe that the first amendment is
inconsistent with campaign finance reform. That is why they are pushing
the Hollings proposal. To quote House minority leader Richard Gephardt,
``[w]hat we have is two important values in direct conflict: freedom of
speech and our desire for a healthy campaign in a healthy democracy.
You can't have both.''
Well, I strongly disagree. You can have both. We have to have both.
Without both, the very idea of representative democracy is imperiled.
That is why I oppose the Hollings amendment. I think the distinguished
Member of the House, Mr. Gephardt, is just absolutely wrong. I think if
we change the Constitution to denigrate the first amendment, we would
be absolutely wrong and it would fly in the face of what really ought
to be done in campaign finance reform, which all of us would like to
have. But until it can be done in a balanced, reasonable way that
doesn't prefer one side over the other, it will never be done. That is
one of the problems. We cannot get it done in a balanced, decent way
that really evens the odds for everybody in our society, rather than
stacking them in favor of one side or the other.
Having said all this, I want to pay tribute to my colleague, our
floor leader on this matter. He has taken a lot of flack from the media
that always seems to stand up for first amendment rights and freedoms,
until it comes to this issue. Frankly, I have a lot of respect for our
colleague from Kentucky and the guts he has had to stand up for free
speech and for first amendment rights more than any other single Member
of Congress. He did it in his campaign when they made this a major
focal effort of the campaign, and he still won by a considerable margin
over the opponent who was making this a focal point.
I think we can have campaign finance reform, but we won't have it
until it is fair, balanced, until it effects all parties and
candidates. And we won't have it, as far as I am concerned, unless we
protect free speech rights the way they ought to be protected.
Again, I compliment my colleague and express my support for his
position on the floor at this time. I express regret to my friend from
South Carolina that I can't support him on this constitutional
amendment.
I yield the floor.
(Mr. ALLARD assumed the chair.)
Mr. McCONNELL. Mr. President, I thank my good friend from Utah for
his wonderful contribution to this debate we have had. It has been a
good debate about the first amendment. I also thank him very much for
his kind remarks about my work on this issue.
The Senator from Utah is right. It hasn't been easy from time to time
because, as he pointed out, our friends in the press sometimes think
the first amendment only applies to them. The first amendment was not
crafted just for the press. It was crafted for all Americans. The free
speech provisions of the first amendment apply to individuals,
candidates, parties, groups; it applies to all of these people.
What we have before us today, Mr. President, is an effort to cut a
chunk out of the first amendment and say that political discourse in
this country is entitled to less freedom than all other kinds of
speech, all other kinds of speech. Why, Mr. President, even pornography
and flag burning would have more protection--more protection--than
political discourse after this amendment. Because this amendment would
grant to Congress the power to shut everybody up, Congress being
composed of incumbents, it is reasonable to assume that Congress would
want to shut up all those people who are criticizing Congress.
This amendment gives Congress the power to set reasonable limits--
whatever that is--on expenditures made, presumably, by the candidates,
in support of--by people outside the campaigns--in support of the
candidate, or in opposition to the candidate, and the American Civil
Liberties Union said it could apply to the press as well.
In short, this is a complete reversal of the kind of speech the
Founding Fathers were the most concerned about. Mr. President, I am
confident they were most concerned about political discourse, political
discussion, political speech. They were beginning to have experiences
with free press at that time. But I am confident that what they were
mostly thinking about, when crafting the first amendment, was political
discourse in the course of political campaigns.
So the question is, as the Senator from Utah and others have pointed
out, it is not whether you are for reform, but whether you are for the
first amendment. That is what is before us here today. This ought to be
a no-
[[Page S2388]]
brainer. Even Common Cause is against this proposal. Even the
Washington Post is against this proposal. Even Senator McCain and
Senator Feingold, I believe, are going to oppose this.
In short, this proposal doesn't have any constituency. Even the
reform groups are not for it. Of course, it has many opponents. There
is a coalition--in fact, I had a press conference with a coalition just
Friday in opposition not only to this amendment, but also to McCain-
Feingold. The coalition spans the American political spectrum. At this
press conference Friday, we had the ACLU and the National Education
Association on the left, and the Christian Coalition, Right to Life,
and the NRA on the right, and all other groups in between. What did
they all have in common? These people had never met each other before.
They didn't want the Government shutting them up. They didn't want the
Government taking them off the playing field in political discussion in
this country. That is what they all had in common. They want to be free
to criticize us. They think they have a constitutional right to do
that. They believe this amendment begins to eliminate that right, and
proposals like McCain-Feingold do the same.
So, Mr. President, this is a very, very important issue. This vote
will be about whether you support the first amendment or not, whether
you support political free speech in this country, not just by
candidates, but by groups, individuals, and parties as well. This is at
the core of our democracy, and we are having a legitimate discussion
here about whether to carve that out and change that after 210 years.
Mr. President, this is a very, very significant step in the wrong
direction. I hope that it will be defeated later this afternoon
overwhelmingly. It deserves to be defeated overwhelmingly. The goal
here is to reverse the Buckley decision, a well-thought-out, well-
reasoned decision.
In the Buckley case, the Supreme Court said, ``The first amendment
denies Government''--that is us in here--``the Government the power to
determine that spending to promote one's political views is wasteful,
excessive, or unwise.''
The Court went on, ``In a free society ordained by our Constitution,
it is not the Government but the people, individually as citizens,
candidates, and collectively as associations and political committees,
who must retain control over the quantity''--how much we speak--``and
the range of debate on public issues in a political campaign.''
That pretty well says it all, Mr. President. At least Senator
Hollings, my good friend from South Carolina, understands that in order
to change that ruling you really do have to change the first amendment.
That is what is before us--to change the first amendment for the first
time in 200 years to give the Government the power to shut up
individuals, candidates, associations, and political committees; tell
them how much they may speak, and maybe even what they may say. Who is
to say how far the Government would go in seeking to quiet the voices
of those who may oppose what we are trying to do?
The Court went on. It said, ``A restriction on the amount of money a
person or group can spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting the
number of issues discussed, the depth of their exploration, and the
size of the audience reach. This is because virtually every means of
communicating ideas in today's mass society requires the expenditure of
money.''
The Court was recognizing the obvious, recognizing reality. The Court
went on. It said, ``Even distribution of the humblest handbill costs
money.'' Further, the Court stated, ``The electorate's increasing
dependence on television and radio for news and information makes these
`expenditures' of modes of communication indispensable instruments of
effective political speech.''
The Court further said, ``There is nothing invidious, improper, or
unhealthy in a campaign spending money to communicate.'' Further, the
Court said, ``The mere growth in the cost of Federal election campaigns
in and of itself provides no basis''--they didn't equivocate here, Mr.
President--``provides no basis for government restrictions on the
quantity of campaign spending.'' The Court further addressed the old
level-playing-field argument that we hear so frequently. The Court said
about the level playing field, ``The concept that the government may
restrict the speech of some elements of our society in order to enhance
the relative voice of others is wholly foreign to the first
amendment.''
The Buckley case was good in 1976, and it is good in 1997. In fact,
the Supreme Court in virtually every case in this field since 1976,
since the Buckley case, has moved further in the direction of more and
more openness in political discourse in this country. In other words,
they have reaffirmed Buckley time and time again over the last 20
years. This is a position the Court isn't going to change. And the
Senator from South Carolina, to his credit, understands that. He
understands the Court is not going to shut up these individuals,
groups, candidates, and parties. He understands the Court realizes that
this kind of debate is at the heart of what makes America a great
democracy.
The Senator from South Carolina looks at that and finds it
unappetizing. He finds all of this political discourse offensive and
says we ought to carve a chunk out of the first amendment for the first
time in 210 years and give to us here in the Government the power to
control all of this discourse. It makes us uncomfortable. We don't like
being criticized. We certainly do not like these campaigns against us
by our opponents. But we don't like these outside groups either. It
makes us uncomfortable. They sometimes say bad things about us. This is
a terrible condition, that anybody other than the press could actually
muster the resources to criticize. We had better do something about it.
We had better shut those folks up. So we will just amend the first
amendment, and we will decide that political speech is somehow less
worthy than other kinds of speech, and we will take those people off
the playing field, or we will make them report to the Government in
advance and salute before they get permission to speak.
That is what this is about, Mr. President. That is what this is
about. This constitutional amendment ought to be defeated resoundingly.
It is certainly my hope that it will be. As I said earlier, it has
essentially no constituency even among those clamoring the loudest for
some form of campaign finance reform.
So later this afternoon when we vote on amending the first amendment
for the first time in 200 years, I hope the Senate will defeat it
overwhelmingly.
Mr. ROTH. Mr. President, there's an old joke that might help us put
the current activity surrounding campaign finance reform into some
perspective. The joke concerns two men who hire a small plane to go
hunting bear. The pilot, as he drops the hunters off, insists that the
plane can only carry two passengers and one bear on its return trip.
With that warning ringing in their ears, the hunters go off and
eventually return with two bears.
The pilot protests that the huge second animal will overload the
plane. The hunters remind him that that was just what he told them last
year. They reminded him that they had given him an extra $100 the year
before, and that he had let them load both bears. ``So here's another
$100,'' they say and then they pack both carcasses into the rear of the
plane. The plane struggles down the runway and lifts uncertainly into
the sky. It gets halfway home but then crashes in the forest. The
hunters crawl from the wreckage and ask the bruised pilot, ``Where are
we?'' The pilot looks around and replies, ``Same place we crashed last
year.''
Today, the debris of scandal associated with campaign financing is
strewn all about us. The White House is under siege as one news report
after another brings new information about suspected improprieties. The
Governmental Affairs Committee has now been asked to probe into the
illegal and improper financial practices that may have taken place in
this last election.
What I want to remind my colleagues is that this is not the first
time we have addressed this issue. In fact, this is, as Yogi Berra
would say, deja vu all over again.
More than two decades ago, Congress passed legislation on campaign
finance
[[Page S2389]]
reform. That legislation included limits on all contributions and on
candidate expenditures. It placed limits on independent expenditures,
required disclosure, and set limits on the amount of personal wealth a
candidate could spend on his campaign.
This was done, Mr. President, in 1974. Following that legislation,
however, the Supreme Court stepped in and decimated the reforms with
its decision in Buckley versus Valeo.
While the courts upheld limits on campaign contributions, it struck
down the limits on independent expenditures and on the use of personal
wealth. This, in effect, increased the disparity between the wealthy
and the not-so-wealthy in campaigns. It also increased the power and
impact of independent expenditures, much of which focuses on negative
advertising.
Each of these serious consequences of the Supreme Court's decision
created conditions that were exactly opposite of what Congress had
intended. For example concerning independent expenditures, this means
that person or group has unlimited ability to spend money for or
against any candidate, as long as they do not coordinate their efforts
with the candidates.
Because of the Supreme Court's decision, and the rising costs of
political campaigns--costs that can be prohibitive and exclusionary--I
remained active in trying to find a remedy, a remedy that would result
in the kind of real reform that Congress had intended. Because of
Buckley versus Valeo, it was clear that such reform could not be
achieved by statute, but that it required a constitutional amendment.
In four consecutive Congresses, Senator Hollings and I introduced
constitutional amendments that would achieve Congress' goal of complete
reform.
In this Congress, Senator Hollings has reintroduced his
constitutional amendment, and once again I intend to support it. I
intend to support it because anything short of an amendment will fail
to achieve the conditions necessary for real reform. Statutory reforms
without a constitutional amendment will create even greater problems as
political money will flow elsewhere to get around the statutory
limitations.
In other words, as restrictions are placed on certain channels, money
will find its way into other channels--it will flow through independent
expenditures and unlimited personal contributions, which are protected
by the Supreme Court's decisions.
Needless to say, this would further damage the ability of a sharp,
qualified candidate to win office if he or she did not have the kind of
money that a wealthy candidate--a candidate who may even come from out
of State--can bring into a race. Small States like Delaware would be
extremely vulnerable to the inequities created by these restrictions.
For over two decades now, reformers in Congress have been seeking to
overturn Supreme Court decisions by simple statute even though the
decisions were based on the first amendment. That effort is a waste of
time for anyone seeking comprehensive reform. Of course, if one's goal
is to incapacitate all candidates who are not wealthy and to allow the
wealthy and the special interests to determine the outcomes of
elections, then perhaps such statutory reforms will do. But if one's
goal is to level the playing field, then the solution must effectively
address all the players and not only the candidates.
So unlike some of my colleagues who support the pending
constitutional amendment, I cannot support statutory proposals whose
effect would be to weaken the role of candidates and to strengthen the
role of those whose spending is constitutionally protected. No statute
can limit what the Constitution, as interpreted by the Supreme Court,
protects.
The Constitution gives us, in these circumstances, a simple choice:
we can overturn the Supreme Court so that we can reenact the 1974
campaign finance law or we can live under the Supreme Court decision,
powerless to enact comprehensive reform.
I am glad to see that this basic constitutional fact of life has now
been embraced by the minority leaders in both Houses. But we need more
support than theirs to achieve the supermajority in both Houses
required to propose ratification. And that will happen when those
organizations espousing reform stop blocking the only path to real
reform.
Last week on the floor, opponents of the pending constitutional
amendment argued that adoption of the proposal would allow Congress to
do all sorts of unreasonable things, such as outlawing all campaign
expenditures so that incumbents would be reelected. It may be helpful
to recall that 10 years ago the Hollings proposal did not include the
important word ``reasonable'' modifying the limits Congress could
impose on campaign expenditures. At that time, I argued that adding the
word ``reasonable'' would make clear that judicial review of
congressional limits was intended.
Opponents seem to suggest that the pending proposal would give
Congress unlimited discretion. That's not true. Courts now under the
fourth amendment review what is ``unreasonable'' search and seizure.
Under the pending proposal, courts would review what is or is not a
``reasonable'' limit on campaign expenditures.
Opponents also raised the question whether the proposal would
authorize Congress to limit editorials. I must say that I never viewed
editorials as campaign expenditures, and I believe that most people
have the same view. If that point needed further clarification, I would
think legislative history could make clear that editorial coverage is
not intended to be included within the pending proposal.
Mr. President, campaign finance reform must be fair. A constitutional
amendment will allow us to make it fair. Campaign finance reform must
also look at making races less expensive and more accessible to fine
candidates who are deterred from running because of money.
Campaigns can be made less expensive by shortening the campaign
season, and by requiring television stations to grant free advertising
time as a condition of their Federal licenses.
It's no secret that the major expense in the electoral process is
buying media time. I have long been an advocate of free TV for
campaigns--going back to the 1970's--and I have introduced legislation
toward this end.
In 1993, I wrote to President Clinton seeking his support, and I'm
now delighted to see that he has suggested requiring broadcasters to
provide free time for candidates in exchange for new licenses to
provide high-definition television.
This will be no easy feat. When I first broached this idea, I could
only find three Senators who would support me. One was Majority Leader
Mike Mansfield. That was many years ago, and I must admit we have seen
some progress. The last time I brought this legislation to the floor, a
few years ago, I received six votes. But perhaps, in light of the
scandal plaguing the White House, as well as the outcry from our
constituents, this is an idea whose time has come.
I have talked to my constituents, Mr. President. I know their
feelings on campaign finance reform. They want reasonable limitations
on campaign expenditures. They want reasonable limits placed on
independent expenditures. And they want shorter campaigns.
It is my sincere hope that as we move forward in this important
debate, we will achieve these three very basic objectives, and, unlike
our bear hunters, we will not, in the years to come, find ourselves in
the same situation we are in now.
Mr. CONRAD. Mr. President, I rise today in support of Senate Joint
Resolution 18, the campaign finance reform constitutional amendment
sponsored by Senators Hollings and Specter. This constitutional
amendment gives Congress and the States the power to limit campaign
spending. Although I've supported similar constitutional amendments in
the past, this is the first time I've cosponsored such an amendment.
Amending the Constitution is not something I take lightly. The
Constitution is the basic law of our land, and the guarantor of our
country's most precious rights and liberties. The Constitution has only
been changed 27 times--only 17 times since the first 10 amendments, the
Bill of Rights, were adopted in 1789. Voting to amend the Constitution
is perhaps the most important vote I can cast as a U.S. Senator.
However, it seems to me we have reached a crisis point with our current
campaign finance system. To put it simply, campaign spending is out of
[[Page S2390]]
control. It is my belief that this constitutional amendment will help
us address in a fair and reasonable manner the chronic problems
plaguing our current campaign finance system.
In 1974, 23 years ago, Congress passed the Federal Election Campaign
Practices Act in response to the controversy surrounding the Watergate
scandal. The Federal Election Campaign Practices Act required greater
disclosure by candidates and parties, restricted cash contributions,
and limited campaign expenditures. In 1976, the Supreme Court reviewed
the constitutionality of the act in Buckley versus Valeo. In reviewing
the case, the Court struck down the limits on campaign expenditures as
an unconstitutional restriction on freedom of speech. The effect of
this decision is that it equated the unlimited expenditure of campaign
money with the exercise of free speech. In my view, this decision was a
mistake.
Since that time, Congress has made numerous attempts at addressing
this decision, particularly during the last 10 years, by putting forth
various comprehensive campaign finance reform initiatives. Most of
these bills attempted to address the campaign expenditure problem
either by providing a system of public financing or providing
inducements for voluntary spending limits. During my 10 years in the
Senate, I have supported most of these proposals. Unfortunately, all of
these initiatives were defeated.
The campaign spending problem was further exacerbated by the Supreme
Court's decision last June in the Colorado Republican Party versus FEC.
In that decision, the Court struck down the spending limits of
political parties in congressional campaigns. This decision virtually
wiped out the remaining Federal campaign spending limits.
Last year, we saw record amounts of money spent on campaigns.
Republican and Democratic committees alone spent $881 million and it
has been estimated that more than $4 billion was spent on campaigns at
all levels during the last election cycle. There is every indication to
believe that the costs of campaigns will continue to skyrocket. Some
argue that the amount of money spent on campaigns is insignificant when
compared with the amount we spend on other facets of our economy. I
think this is a specious comparison.
The current campaign finance system is out of control and it
threatens to push average Americans out of the process. Voter cynicism
and apathy are on the increase. In the last election, voter turnout
fell below 50 percent. Most people understand the corrosive effect the
current campaign finance system has on our democracy.
The time has come for us to fix this system by placing reasonable
limits on the amount of money that can be spent on campaigns. We must
restore confidence in our political system. Voting for this
constitutional amendment will allow us to do just that. I urge my
colleagues to vote in favor of Senate Joint Resolution 18.
Mr. FAIRCLOTH. Mr. President, I rise in strong opposition to the
constitutional amendment we are debating today.
Frankly, I think this amendment is very dangerous.
It is dangerous anytime you tinker with the first amendment, our
right to freedom of speech.
I suppose what is most appalling to me is that we have the tenacity
to even consider this amendment. Two weeks ago, the Senate could not
muster the fortitude to pass a constitutional amendment to control
Federal spending.
Now, here we are debating an amendment to limit an individual's
spending.
Mr. President, this demonstrates just how backward our priorities
are.
We can't control how much the Federal Government will spend--but we
will presume to tell an individual how much he or she can spend on
political campaigns.
That is simply unacceptable.
Also, Mr. President, I am not a lawyer. But the term ``reasonable''
limits used in this amendment appears to be pretty loose.
How can we reasonably restrict what someone can spend?
How can we reasonably restrict political speech?
And the very thought that the Federal Government--the Congress--would
be setting a reasonable standard is troubling.
Further, Mr. President, we should call this for what it really is--
the incumbent protection constitutional amendment.
Everyone knows that if you limit your opponent's spending--the better
known incumbent has an advantage. And under this amendment, we can
limit opposition spending.
This is absurd--the Congress setting how much our opponents can spend
against us.
Who can possibly hope to challenge an incumbent if he or she is not
allowed to use their own money--however little or much--in the
campaign.
Of course, this amendment probably puts us on the path to Federal
funding of political campaigns.
Mr. President, I cannot abide the fact that not only do we pay a
politician's salary. Now some politicians expect the citizens to spend
their tax dollars paying for the campaign as well.
We can't ask the working men and women of this country to do that.
Further, I would remind my colleagues that we have full Federal
funding for Presidential races--and has this stopped the President from
shamelessly raising money? The answer is no.
President Clinton didn't need to sell the Lincoln bedroom to pay for
his campaign. The taxpayers of this country paid for every penny of his
campaign. We did this so that the President wouldn't have to be
bothered or be influenced by the fundraising process.
But that apparently did not matter. His goal was to raise as much
money as possible--beyond that legally permissible for himself--to buy
misleading ads on Medicare.
Federal funding has failed at the Presidential level--and it won't
work at the congressional level.
Mr. President, I also have to question why the minority and the
President is in such a hurry to enact campaign finance reform.
During 1996, they used the White House and the executive branch to
squeeze money out of everyone from banks to Indian tribes.
Now the American public is finding out about it.
Suddenly, the No. 1 priority of the Democratic Party is campaign
finance reform.
When the horse is out of the barn, a horsethief running down the
street telling everyone about it isn't going to do any good.
If the front pages weren't covered in negative stories about the
sordid tales of DNC and White House fundraising, I don't think we would
be out here rushing to clutter the Constitution with supposed campaign
reform.
Finally, Mr. President, we never seem to question why there is so
much money in politics. One reason we have overlooked is because the
Government is in everyone's business.
If we weren't threatening to legislate and regulate businesses on a
daily basis, perhaps they wouldn't feel compelled to give large
donations.
The best campaign finance reform we can make here is to get out of
Americans' daily lives. They shouldn't have to buy access for the
purpose of making their views heard on legislation that would be
ruinous to the free enterprise system.
If we would stop the bad legislation and regulation--we could stop
the bad campaign finance practices we don't like.
Mr. President, I have great respect for Senator Hollings and Senator
Bryan, they are both fine Senators from the other party, but I believe
that on this issue, they have taken a very dangerous approach by
suggesting that we amend the Constitution.
Thank you, Mr. President.
Mr. McCONNELL. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 8 minutes.
Mr. McCONNELL. I retain the remainder of my time.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, I yield our remaining time to the
distinguished Senator from Connecticut.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair. I thank my distinguished colleague
from South Carolina.
Mr. President, I am here to express my support for Senate Joint
Resolution 18, introduced by the Senator from
[[Page S2391]]
South Carolina and the Senator from Pennsylvania.
If I may, let me just briefly respond to the statement made by my
friend from Kentucky that there are not any interest groups supporting
this amendment on the left or on the right. I am not surprised by that.
Do you know who is supporting this amendment? The unorganized mass of
the American people who do not belong to special interest groups of the
left or the right and who know that something fundamentally wrong is
happening in our democracy that is depriving them of their equal and
individual right to affect their government. What is happening is the
unlimited, and I am afraid corrupting, use of money in America
politics.
Mr. President, I do not come to supporting a constitutional amendment
of any kind, certainly one affecting the first amendment, lightly. I do
not believe that I have ever supported any other amendment to the
Constitution that would alter the first amendment. But I think that the
threat to our democracy from the excess of money in politics is so
serious that it merits--in fact, it calls out for--support of this
constitutional amendment.
Let's remember what we are doing here when we talk about the Buckley
decision. To pass this constitutional amendment is not to contradict
what the Framers of the Constitution did in their great work more than
200 years ago. It is to contradict five of the Members of the U.S.
Supreme Court, who gave a rendering of the first amendment that I
cannot imagine the Framers of our Constitution had in mind, which is
that money is speech. It is hard to believe. The consequences are
serious.
So it is only by supporting this amendment and giving us the right to
limit the amount of money in politics that I think we can restore a
sense of integrity and sanity to our campaign finance system and, if I
do say so, to our democracy.
Mr. President, much of the debate over this proposed constitutional
amendment has centered on this question of the threat to the principle
of free speech. Of course, we all hold that principle dear. But free
speech is not what is at issue here. Free speech is about the
inalienable God-given right of all of us to express our points of view
without governmental interference. That simply is not at issue here in
this proposed amendment, or in our campaign finance system.
Mr. President, nothing in this amendment or in any campaign finance
reform package that I have seen that could be passed here would
diminish or threaten individual Americans' rights to express their
views about candidates running for office, or about any problem or
issue in American life. What would be threatened by this constitutional
amendment is what should be threatened by it, and that is something
entirely different--the ever-increasing and disproportionate power that
those with money have over our political system. As everyone in this
Chamber knows, the spiraling costs of running for office require all of
us to spend more and more time raising money and more and more time
with those who give it.
Barely a day goes by in which we do not learn of an event or a
meeting with elected officials attended only by those who could afford
to give $5,000 or $10,000 or $100,000 or more--sums of money that are
obviously beyond the capacity of the overwhelming majority of the
American people. And that is threatening a principle all of us also
hold dear, as dearly as the principle of free speech, which is the
fundamental underlying principle of our democracy. It is a sacred
principle. I say it is sacred because of that line in the beginning of
the Declaration of Independence: All men are created equal and we, men
and women of America, are endowed not by Congress, not by some
committee but by our Creator with the inalienable right to life,
liberty and the pursuit of happiness.
That principle guarantees that every person has one vote and each and
every one of us, rich or poor or in between, has an equal right and an
equal ability to influence the workings of our Government. As it stands
now, it is that sacred principle, the underlying principle of all of
the rights expressed in the Bill of Rights in the Constitution, that is
under attack from our campaign finance status quo system, and that
sacred principle that promises to remain under attack until we do
something to save it and protect it, and that something, I submit, is
quite simply to limit the influence of money in politics. I do not see
a way to do that without limiting the amount of money spent in
political campaigns, and I do not see a way to do that constitutionally
without passing this constitutional amendment.
Mr. President, nothing less than the future of our great democracy is
at stake here. Unless we act to reform our campaign finance system,
people with money will continue to have disproportionate influence in
our system. People who are not even citizens of the United States will
try to influence our Government's decision by their use of money. And
the genius of America--that our citizenship based on our common
creation by God, not our pocketbook, gives us each equal power to play
a role in our governance--that genius will continue to be under seige.
Mr. President, I support the constitutional amendment. I thank the
Chair.
The PRESIDING OFFICER. The Senator's time has expired. The Senator
from Kentucky has the remaining time, 8 minutes.
Mr. McCONNELL. Mr. President, my good friend from Connecticut
acknowledged that there were no groups agitating for a constitutional
amendment but the unorganized mass of people were.
Well, America is a seething cauldron of special interests. We all
belong to one group or another, many of which have legitimate issues
before the Government. And, of course, we do not think the group we
belong to is a special interest. That is the other guy's group that is
trying to do something I do not like. But the fact is, the Founders of
this country envisioned that we would be a seething cauldron of
interest groups all banding together to petition the Government, which
is another part of the first amendment. These people do not want to be
pushed off the playing field. They do not want to be pushed off the
playing field. They think that their involvement in issues is
important. They think it helps create a better America. They do not
view themselves as pursuing some evil goal. After all, who is it that
is going to have the wisdom to sort of sanitize America of all these
special interests and who are we to be so arrogant as to preach to
these groups that their interests are somehow evil. Who is not suspect?
Whose interests are above reproach?
This amendment says we get to determine that right in here; we, the
Government, get to decide what is reasonable speech. And you know what
we will do, Mr. President. We will shut up all the people who are
criticizing us. We will pull them off the playing field altogether. We
will set a spending limit so low that all of us are guaranteed to be
reelected. We will control the game all right.
This is a preposterous suggestion, with all due respect to those who
will vote for it. It guts the first amendment. It takes citizens off
the playing field and out of the process. This is exactly the wrong
thing to do.
George Will, in a column in the Washington Post February 13, referred
to this as a ``Government Gag''--a ``Government Gag.'' I ask unanimous
consent that George Will's column be printed in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Washington Post, Feb. 13, 1997]
Government Gag
(By George F. Will)
To promote the fair and effective functioning of the
democratic process, Congress, with respect to elections for
federal office, and States, for all other elections,
including initiatives and referenda, may adopt reasonable
regulations of funds expended, including contributions, to
influence the outcome of elections, provided that such
regulations do not impair the right of the public to a full
and free discussion of all issues and do not prevent any
candidate for elected office from amassing the resources
necessary for effective advocacy.
Such governments may reasonably define which expenditures
are deemed to be for the purpose of influencing elections, so
long as such definition does not interfere with the right of
the people fully to debate issues.
No regulation adopted under this authority may regulate the
content of any expression of opinion or communication.--
Proposed amendment to the Constitution
[[Page S2392]]
Like the imperturbable Sir Francis Drake, who did not allow
the Spanish Armada's arrival off England to interrupt a game
of bowling, supposed friends of the First Amendment are
showing notable sang-froid in the face of ominous
developments. Freedom of speech is today under more serious
attack than at any time in at least the last 199 years--since
enactment of the Alien and Sedition Acts. Actually, today's
threat, launched in the name of political hygiene, is graver
than that posed by those acts, for three reasons.
First, the 1798 acts, by which Federalists attempted to
suppress criticism of the government they then controlled,
were bound to perish with fluctuations in the balance of
partisan forces. Today's attack on free speech advances under
a bland bipartisan banner of cleanliness.
Second, the 1798 acts restricted certain categories of
political speech and activities, defined, albeit quite
broadly, by content and objectives. Today's enemies of the
First Amendment aim to abridge the right of free political
speech generally. It is not any particular content but the
quantity of political speech they find objectionable.
Third, the 1798 acts had expiration dates and were allowed
to expire. However, if today's speech-restrictors put in
place their structure of restriction (see above), its anti-
constitutional premise and program probably will be
permanent.
Its premise is that Americans engage in too much
communication of political advocacy, and that government--
that is, incumbents in elective offices--should be trusted to
decide and enforce the correct amount. This attempt to put
the exercise of the most elemental civil right under
government regulation is the most frontal assault ever
mounted on the most fundamental principle of the nation's
Founders.
The principle is that limited government must be limited
especially severely concerning regulation of the rights most
essential to an open society. Thus the First Amendment says
``Congress shall make no law . . . abridging the freedom of
speech,'' not ``Congress may abridge the freedom of speech
with such laws as Congress considers reasonable.''
The text of the proposed amendment comes from Rep. Richard
Gephardt, House minority leader, who has the courage of his
alarming convictions when he says: ``What we have is two
important values in conflict: freedom of speech and our
desire for healthy campaigns in a healthy democracy. You
can't have both.''
However, he also says: ``I know this is a serious step to
amend the First Amendment. . . . But . . . this is not an
effort to diminish free speech.'' Nonsense. Otherwise
Gephardt would not acknowledge that the First Amendment is
an impediment.
The reformers' problem is the Supreme Court, which has
affirmed the obvious: Restrictions on the means of making
speech heard, including spending for the discrimination of
political advocacy, are restrictions on speech. It would be
absurd to say, for example: ``Congress shall make no law
abridging the right to place one's views before the public in
advertisements or on billboards but Congress can abridge--
reasonably, of course--the right to spend for such things.''
Insincerity oozes from the text of the proposed amendment.
When Congress, emancipated from the First Amendment's
restrictions, weaves its web of restraints on political
communication, it will do so to promote its understanding of
what is the ``fair'' and ``effective'' functioning of
democracy, and ``effective'' advocacy. Yet all this
regulation will be consistent with ``the right of the people
fully to debate issues,'' and with ``full and free discussion
of all issues''--as the political class chooses to define
``full'' and ``free'' and the ``issues.''
In 1588 England was saved not just by Drake but by luck--
the ``Protestant wind'' that dispersed the Armada. Perhaps
today the strangely silent friends of freedom--why are not
editorial pages erupting against the proposed vandalism
against the Bill of Rights?--are counting on some similar
intervention to forestall today's ``reformers'' who aim not
just to water the wine of freedom but to regulate the
consumption of free speech.
Mr. McCONNELL. In addition to that, Mr. President, the American Civil
Liberties Union in a letter to me dated March 6, 1997, also expressed
their opposition to this constitutional amendment to amend the first
amendment for the first time in 200 years. I ask unanimous consent that
it be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
American Civil Liberties Union,
Washington, DC, March 6, 1997.
Dear Senator: The American Civil Liberties Union strongly
opposes S.J. Res. 18, the proposed constitutional amendment
that permits Congress and the states to enact laws regulating
federal campaign expenditures and contributions.
Whatever one's position may be on campaign finance reform
and how best to achieve it, a constitutional amendment of the
kind here proposed is not the solution. Amending the First
Amendment for the first time in our history in the way that
S.J. Res. 18 proposes would challenge all pre-existing First
Amendment jurisprudence and would give to Congress and the
states unprecedented, sweeping and undefined authority to
restrict speech protected by the First Amendment since 1791.
Because it is vague and over-broad, S.J. Res. 18 would give
Congress a virtual ``blank check'' to enact any legislation
that may abridge a vast array of free speech and free
association rights that we now enjoy. In addition, this
measure should be opposed because it provides no guarantee
that congress or the states will have the political will,
after the amendment's adoption, to enact legislation that
will correct the problems in our current electoral system.
This amendment misleads the American people because it tells
them that only if they sacrifice their First Amendment
rights, will Congress correct the problems in our system. Not
only is this too high a price to demand in the name of
reform, it is unwise to promise the American people such an
unlikely outcome.
Rather than assuring that the electoral processes will be
improved, a constitutional amendment merely places new state
and federal campaign finance law beyond the reach of First
Amendment jurisprudence. All Congress and the states would
have to demonstrate is that its laws were ``reasonable.''
``Reasonable'' laws do not necessarily solve the problems of
those who are harmed by or locked out of the electoral
process on the basis of their third party status, lack of
wealth or non-incumbency. The First Amendment properly
prevents the government from being arbitrary when making
these distinctions, but S.J. Res. 18 would enable the
Congress to set limitations on expenditures and contributions
notwithstanding current constitutional understandings.
Once S.J. Res. 18 is adopted, Congress and local
governments could easily further distort the political
process in numerous ways. Congress and state governments
could pass new laws that operate to the detriment of dark-
horse and third party candidates. For example, with the
intention of creating a ``level playing field'' Congress
could establish equal contribution and expenditure limits
that would ultimately operate to the benefit of incumbents
who generally have a higher name recognition than their
opponents, and who are often able to do more with less
funding. Thus, rather than assure fair and free elections,
the proposal would enable those in power to perpetuate their
own power and incumbency advantage to the disadvantage of
those who would challenge the status quo.
S.J. Res. 18 would also give Congress and every state
legislature the power, heretofore denied by the First
Amendment, to regulate the most protected function of the
press--editorializing. Print outlets such as newspapers and
magazines, broadcasters, Internet publishers and cable
operators would be vulnerable to severe regulation of
editorial content by the government. A candidate-centered
editorial, as well as op-ed articles or commentary printed at
the publisher's expense are most certainly expenditures in
support of or in opposition to particular political
candidates. The amendment, as its words make apparent, would
authorize Congress to set reasonable limits on the
expenditures by the media during campaigns, when not strictly
reporting the news. Such a result would be intolerable in a
society that cherishes the free press.
Even if Congress exempted the press from the amendment,
what rational basis would it use to distinguish between
certain kinds of speech? For example, why would it be
justified for Congress to allow a newspaper publisher to run
unlimited editorials on behalf of a candidate, but to make it
unlawful for a wealthy individual to purchase an unlimited
number of billboards for the same candidate? Likewise, why
would it be permissible for a major weekly news magazine to
run an unlimited number of editorials opposing a candidate,
but impermissible for the candidate or his supporters to
raise or spend enough money to purchase advertisements in the
same publication? At what point is a journal or magazine that
is published by an advocacy group different from a major
daily newspaper, when it comes to the endorsement of
candidates for federal office? Should one type of media
outlet be given broader free expression privileges than the
other? Should national media outlets have to abide by fifty
different state and local standards for expenditures? These
are questions that Congress has not adequately addressed or
answered.
Moreover, the proposed amendment appears to reach not only
expenditures by candidates or their agents but also the truly
independent expenditures by individual citizens and groups--
the very kind of speech that the First Amendment was designed
to protect.
If Congress or the states want to change our campaign
finance system, then it need not throw out the First
Amendment in order to do so. Congress can adopt meaningful
federal campaign finance reform measures without abrogating
the First Amendment and without contravening the Supreme
Court's decision in Buckley v. Valeo.
* * * * *
Rather than argue for these proposals, many members of
Congress continue to propose unconstitutional measures, such
as the McCain/Feingold bill that are limit-driven methods of
campaign finance reform that place campaign regulation on a
collision course with the First Amendment. . . .
The ACLU urges Senators to oppose S.J. Res. 18.
Sincerely,
Laura W. Murphy.
[[Page S2393]]
Mr. McCONNELL. Mr. President, just today the Washington Times
editorialized, saying ``Save the First Amendment,'' very strongly in
opposition to the Hollings amendment. I ask unanimous consent that this
editorial be printed in the Record.
There being no objection, the editorial was ordered to be printed in
the Record, as follows:
[From the Washington Times, Mar. 18, 1997]
Save the First Amendment
``The First Amendment denies government the power to
determine that spending to promote one's political views is
wasteful, excessive or unwise.'' So said the U.S. Supreme
Court in what some now refer to as its ``infamous'' 1976
ruling in the landmark case Buckly vs. Valeo. The high
court's decision struck down as unconstitutional post-
Watergate reforms restricting campaign expenditures, and
critics have been trying to get around the decision ever
since.
Today, the U.S. Senate is scheduled to take up a proposed
constitutional amendment to override the ruling and, in
effect, reform the reforms. South Carolina Sen. Ernest
Hollings, the amendment's chief backer along with
Pennsylvania Sen. Arlen Specter, calls it the only ``rational
alternative'' to a system that awarded public office to the
highest bidder.'' Among other things it states Congress can
set ``reasonable'' limits on contributions to and
expenditures by candidates for federal office. It gives
states similar powers to control state campaign spending.
The proposed amendment is but the first shot in a battle
over campaign finance reform that gets hotter with each new
story about the golden handshakes Mr. Clinton got from
contributors during the last presidential campaign. Still to
come is the McCain-Feingold bill to put ``voluntary'' limits
on campaign contributions and an effort to provide for
taxpayer financing of campaigns or, as critics refer to the
idea, food stamps for politicians.
Arrayed against the Hollings amendment is a formidable
coalition of interest groups ranging from the American Civil
Liberties to the National Rifle Association, who have little
in common other than the principle that limiting
contributions and expenditures will restrict the right of
their members to free speech. These days, some speech costs a
lot, whether in the form of commercials, mailings or bumper
stickers. Cutting off funds in this case inevitably means
cutting off your ability to disseminate your message--free
speech, in other words.
At the head of the coalition is Kentucky Sen. Mitch
McConnell, whom Ellen Miller of Public Campaign calls the
Darth Vader of campaign-finance reform, so successful has
he been in blocking the proposed changes. Mr. McConnell is
an unapologetic defender of the political debate that
comes of campaign spending. Indeed, he considers such
spending to be evidence of the robust debate indispensible
to the well-being of the country.
If such a position makes him the Darth Vader of campaign
reform, then here's hoping the force, so to speak, is with
him. Campaign spending is one measure of the power government
has to manipulate political and economic ends to the benefit
of one group or another. If you want to limit spending, limit
the power and watch how quickly the fund-raisers dissipate.
Short of that, there is a danger that tightened regulations
may tilt campaign laws to benefit one group or other. If you
limit soft-money contributions to political parties, for
example, you may end up giving an edge to organized labor,
which favors candidates with in-kind and off-the-books
contributions in the form of get-out-the-vote drives and
phone banks.
There are also free-speech concerns with government
campaign financing. Why should taxpayers have to see their
hard-earned dollars go to support candidates with whom they
disagree?
Does the current system really favor those candidates with
deep pockets? Ask Oliver North, Michael Huffington and Steve
Forbes, all of whom raised and spent huge sums of money, in
some cases their own, without winning office.
The best kind of reform, long advocated here, would drop
spending limits and increase disclosure. As University of
Virginia professor Larry Sabato has put it, ``Let a well-
informed marketplace, rather than a committee of federal
bureaucrats, be the judge of whether someone has accepted too
much money from a particular interest group or spent too much
to win an election. Reformers who object to money in politics
would lose little under such a scheme, since the current
system--itself a product of reform--has already utterly
failed to inhibit special-interest influence.''
Congress shouldn't aggravate the problem by gutting the
First Amendment.
Mr. McCONNELL. I referred earlier to a press conference that I
happened to have had Friday with various groups opposed to this
amendment and also opposed to McCain-Feingold. The press conference was
really about both. Among the groups organized in opposition: the
National Taxpayers Union, the National Right to Life Committee, the
National Rifle Association, the American Civil Liberties Union, the
Christian Coalition, the Direct Marketing Association, the National
Association of Broadcasters, the National Assocation of Business PAC's,
the National Education Association, the National Association of
Realtors.
All of these groups, which represent over 15 million American
citizens, are saying in effect to the Congress, do not amend the first
amendment for the first time in 200 years. Do not pass a measure like
McCain-Feingold. Do not shut us up. We are not part of the problem. We
are busily at work expressing our point of view, arguing for the causes
that we think are important. This is totally American. This is the
essence of America.
And so those groups came together last Friday in an effort to express
themselves about this proposal to amend the first amendment and also
McCain-Feingold. I think one of the most interesting speakers was from
an organization with which I am seldom aligned, the National Education
Association. Don Morabito, who is from the NEA, was at the press
conference, and he said, ``The fact is,'' referring to the groups in
the room, ``We don't represent the same people, don't contribute to the
same candidates and don't believe in the same things,'' with one
exception. We agree on the first amendment. We agree on the first
amendment.
The ACLU, in referring to the proposal before us, said the
constitutional amendment is ``truly an abhorrent proposal,'' with
``breathtaking implications, and McCain-Feingold is draconian
regulation.'' ``And if you want to talk `unseemly,' added ACLU
Washington director Laura Murphy, what about the current reform
proposal's efforts to `demonize' special interests and political action
committees that follow the law?''
So I think it is important to remember what the current feeding
frenzy is all about. We all thought it was about illegal, illegal
activity, and there seems to have been a good deal of that particularly
at the White House and in the Democratic campaign for President last
year, but now the effort is to switch, change the subject and to pass
either a constitutional amendment or some legislation to take American
citizens out of the game.
Mr. GORTON. Mr. President, will the Senator from Kentucky yield for a
question.
Mr. McCONNELL. Yes, I yield to the Senator from Washington.
Mr. GORTON. Mr. President, would it be appropriate to say, I ask my
friend from Kentucky, that at the present time under the first
amendment the American people are free to participate in their
political system and in public affairs pretty much in any way they
wish, that their freedom of speech is entirely unlimited?
And would it be fair also to say that the thrust of this
constitutional amendment is that its sponsors are asking the American
people to give the Congress of the United States the right to devise,
to knit together a gag which is then to be applied to the American
people themselves, not just candidates but to any American who wishes
to express his views about a candidate, any organization that wishes to
express its views about a candidate, for that matter, any newspaper or
television station that wishes to express its view about a candidate;
that this constitutional amendment says that what has been entirely
free, an entirely free process, we now ask that you allow us to impose
whatever we consider to be a reasonable gag upon your exercise of that
right?
Mr. McCONNELL. I would say to my friend from Washington, he is
absolutely correct. He describes the constitutional amendment with
precision. And that is exactly what the sponsors of this proposal have
in mind.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. McCONNELL. I thank the Chair.
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