[Congressional Record Volume 143, Number 35 (Tuesday, March 18, 1997)]
[Senate]
[Pages S2394-S2397]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




[[Page S2394]]



             CAMPAIGN FINANCE AMENDMENT TO THE CONSTITUTION

  The Senate continued with the consideration of the joint resolution.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask for up to 10 minutes to speak on 
the joint resolution under the control of the distinguished Senator 
from South Carolina.
  Mr. HOLLINGS. I yield to my cosponsor.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. SPECTER. I understand the majority leader is on his way to the 
floor. Apparently there is a unanimous-consent request. As soon as he 
gets here, I will be glad to yield to him at that time.
  Mr. President, I support this constitutional amendment for campaign 
finance reform and for overturning Buckley versus Valeo because I am 
convinced that only if we have such a constitutional amendment will we 
be able to have meaningful campaign finance reform. And that is 
urgently needed.
  Those who oppose the amendment do so on a claim that there would be 
an invasion of inviolate first amendment protections. I suggest those 
arguments are not well founded as a matter of constitutional law or 
constitutional history.
  The first amendment of the U.S. Constitution has been limited where 
there are important reasons for doing so. Perhaps the most famous 
decision is by Oliver Wendell Holmes on what is called the ``clear and 
present danger'' which would warrant limiting freedom of speech. The 
famous example was given of crying ``fire'' in a crowded theater.
  And, Mr. President, I suggest that there is a clear and present 
danger today to America's political system if we do not have effective 
campaign finance reform.
  The ``fighting words'' exception to freedom of speech is well 
recognized in a distinguished opinion by Justice Murphy. If someone 
says to another a racial slur or religious slur, that person may punch 
the speaker in the nose and not be charged with assault and battery, so 
that freedom of speech is limited by fighting words.
  You have the examples of obscenity and moral standards, especially 
with children. There are limits as to what may be spoken or what may be 
put into printed context on obscenity.
  It is my view, and really a prevailing view in America today, that 
there is an urgent necessity for campaign finance reform. It simply 
cannot be done if you have the Supreme Court decisions standing in the 
way, because they say that an individual may spend as much of his or 
her money as he or she may choose as a matter of freedom of speech but 
others cannot do so. Others are limited to $1,000.
  I have cited a rather forceful example from my point of view of my 
own personal experience running in the primary in 1976 for the U.S. 
Senate when the 1974 law was in effect limiting expenditures for a 
candidate in the primary with the population size of Pennsylvania to 
$35,000. And my opponent in that race--who later was one of my very 
best friends and closest colleagues in the U.S. Senate, Senator John 
Heinz--we were opposing each other in that Senate primary.
  The Supreme Court of the United States held that an individual could 
spend millions, and Senator Heinz did that, spent more than $3 million 
in that primary and general election. But at the same time, the Supreme 
Court upheld the limitation of $1,000 on what my brother could spend. 
Where was Morton Specter's freedom of speech if he was limited by the 
campaign finance law to $1,000?
  What sense does it make to say that a candidate has more freedom of 
speech than some other contributor? But that is what the Buckley versus 
Valeo decision did.
  Then you have this rule or exception on campaign expenditures which 
are independent. That has become a practical impossibility to define 
what is an independent expenditure.
  You have the 1996 Presidential election. You have an enormous amount 
of soft money raised on both sides by Republicans as well as Democrats, 
but the Democrats did it with more finesse, more direction, and more 
success, when President Clinton used millions of dollars in soft money 
for advertising in 1995, which so set the stage to make it impossible 
or at least virtually impossible to regain that ground. In this 
situation you had President Clinton personally editing the commercials 
which went over. Yet, they were supposed to be somehow immune from the 
Federal election laws, notwithstanding the fact that when a candidate 
runs for President there is a pledge that there will be no funds used 
on expenditures in addition to what the Federal Government is 
providing.

  We have myriad rules on soft money. We have rules that are really 
impossible to apply on what is issue advocacy, where you can spend 
money, as opposed to advocacy for a candidate. Those commercials not 
only go right to the line, they really cross the line, with no 
enforcement possible, with a commercial saying everything but ``vote 
for candidate John Doe.''
  The realism is that in the absence of an opportunity for Congress to 
legislate in this field, without this constitutional inhibition, 
campaign finance reform may not be achieved.
  Then you had the recent decision of the Supreme Court of the United 
States in 1996 on the Colorado legal party where there are four 
opinions written and not one of the opinions commands the consent or 
concurrence of five Justices. So when you finish reading that opinion, 
it is absolutely impossible to say what the law is on the important 
campaign issues taken up in that case. The Supreme Court Justices are 
frequent in their criticism of what we pass in the Congress where they 
cannot find a clear-cut statement on our legislation and then they look 
to legislative intent. Some of the Justices say they cannot find 
legislative intent or they do not recognize legislative intent.
  Our statutes are a model of clarity, and the worst of the statutes 
ever passed by the Congress of the United States is a model of clarity 
compared to what you had in the Supreme Court decision in the Colorado 
case, where you cannot possibly figure out what the law is, because 
among four opinions no five Justices have agreed on any set rationale 
to give guidance as to what the law should be.
  In conclusion, Mr. President, since the majority leader has arrived, 
it is my view, after studying the Constitution for more than 40 years, 
that the decision of Buckley versus Valeo simply is not good 
constitutional law to equate speech with campaign spending. It impedes, 
obstructs, and prevents Congress from legislating in this important 
field. That is why I urge this amendment be adopted.
  I have no doubt, Mr. President, about the outcome of today's vote. I 
say as a matter for the future we ought to build a record, one day, so 
that we will overturn Buckley v. Valeo, and then have some sensible 
legislation in this very critical area.
  I thank the Chair and yield the floor.


  Unanimous Consent Agreements--Senate Joint Resolution 22 and Senate 
                          Joint Resolution 18

  Mr. LOTT. Mr. President, I ask unanimous consent that during the 
pendency of Senate Joint Resolution 22, no amendments or motions be in 
order other than a motion to table, and at the conclusion of the vote 
on passage of Senate Joint Resolution 18 at 2:45, approximately, today, 
there then be 90 minutes for remaining debate, to be equally divided 
between the two leaders or their designee, with an additional 10 
minutes allocated to Senator Specter.
  I further ask unanimous consent that following the use or yielding 
back of debate time for Senate Joint Resolution 22 on Tuesday, the 
joint resolution be temporarily laid aside, and Senator Leahy or his 
designee be recognized to offer a joint resolution relative to the 
independent counsel, and no amendments or motions will be in order, 
other than a motion to table, and that there then be 90 minutes of 
debate to be equally divided between the two leaders or their 
designees, and an additional 30 minutes under the control of Senator 
Feingold, 20 minutes under the control of Senator Byrd, 30 minutes 
under the control of Senator Levin, 20 minutes under the control of 
Senator Nickles, and 40 minutes under the control of Senator Coats.

[[Page S2395]]

  Finally, I ask unanimous consent that following the conclusion or 
yielding back of time today, the second joint resolution be laid aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. For the information of all Senators, this agreement would 
call for two rollcall votes on the independent counsel issue. However, 
the votes have not been ordered by consent yet. I hope to discuss 
further with the Democratic leader today exactly when that will occur 
so that we can schedule those two votes.
  I should note that we have one Senator who had a death in the family. 
We want to make sure that he is able to be back here for that vote.
  In light of this agreement, there will be no further votes after the 
2:45 vote today. Members should be prepared to vote tomorrow around 10 
o'clock on the independent counsel issue.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, I listened with considerable interest 
to the observations of my friend from Pennsylvania, Senator Specter, 
about the, as he put it, ill-advised Buckley decision.
  Let me say, Mr. President, I think the Buckley decision was an 
outstanding decision. Obviously, the Supreme Court feels it was because 
they have had a number of opportunities in the last 20 years to revisit 
it, refine it, cut it back, restrict it, and in each instance they have 
expanded it further in the direction of more and more freedom to speak 
in the political process in this country.
  The essence of the Buckley decision was in several passages that bear 
repeating as we move here toward the vote on this constitutional 
amendment to, in effect, overturn the Buckley case. The Court said with 
regard to spending limits, ``The first amendment denies Government the 
power to determine that spending to promote one's political views is 
wasteful, excessive, or unwise. In a free society ordained by our 
Constitution, it is not the Government,'' said the Court, ``not the 
Government, but the people individually as citizens and candidates, and 
collectively as associations and political committees who must retain 
control over the quantity and range of debate on public issues in a 
political campaign.''
  Now, Mr. President, that really sums it up here. Who will control the 
political discourse? The Court had that issue directly before it in the 
Buckley case, and the Court said the Government is not going to control 
political speech in this country consistent with the first amendment.
  Now, Senator Hollings understands that, and he is offering this 
constitutional amendment to allow the Government to control political 
discourse for the first time in the history of our country. It leads 
you to ask the question: Who will feel more comfortable if we, the 
Congress, are in charge of regulating and controlling political speech 
in this country? Well, I do not think our citizens will feel more 
comfortable with that. That is clearly the end result of this debate, 
because this amendment says, in effect, the Buckley case will be 
overridden so that the amount of expenditures that may be made by, that 
is, by the campaigns, in support of the campaigns or in opposition to 
the campaigns shall be regulated by the Government.
  All of us in here will have the last word on just how much speech is 
allowed, not only the quantity of it but the range of it.
  Now, the Buckley case went on to say that a restriction on the amount 
of money a person or group can spend on political communication during 
a campaign necessarily, Mr. President, reduces the quantity of 
expression. So what we have after this amendment is the Government with 
the power to control how much we get to speak.
  The Court said: ``* * * reduces the quantity of expression by 
restricting the number of issues discussed, the depth of their 
exploration, and the size of the audience reached.'' That pretty well 
says it all. Under the Hollings amendment, the Government will be able 
to decide how much we get to speak, how big an audience we get to 
reach. In short, the Government would control political discourse in 
this country. The Court went on to say that ``this is because''--
referring to their opposition to spending restrictions--``virtually 
every means of communicating ideas in today's mass society requires 
expenditure of money.'' It is a fact, whether we like it or not, to the 
extent that the Government defines what your financial outlays can be, 
if you are a candidate or if you are a group in support of or in 
opposition to a candidate, the Government is saying, in effect, you 
only get so much speech, a rationing of speech. And we here in the 
Congress get to determine how much everybody talks.
  I don't think it is much of a reach to suggest that we are going to 
want to shut down those who criticize us. We don't like these 
independent expenditures in particular. We certainly don't like what 
our opponents are saying about us. So what we would do in the aftermath 
of the Hollings amendment is shut those people up. We would probably--
in terms of independent groups--shut them entirely up. In terms of our 
opponents, we would set the spending limit so low they would not have a 
chance and never will be able to get the message across, because 
virtually every incumbent starts off ahead, and if the other fellow 
can't get resources, he is going to stay ahead.
  The Court went on to say, in Buckley, ``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 expensive modes of communication indispensable 
elements of effective political speech.'' Indispensable elements of 
effective political speech.
  Now, the Buckley case was right on the mark. They understood what it 
takes to speak in today's modern American society. It is not a question 
of whether we like it or not. This is a fact. It is as certain as the 
Sun is going to come up tomorrow. It is as certain as the Sun is going 
to come up tomorrow. Without the resources to market the message in 
this society, your speech is quieted--under the Hollings amendment 
quieted by the Government, which will control your discourse.
  The Court in the Buckley case further said, ``There is nothing 
invidious, improper, or unhealthy in a campaign spending money to 
communicate.'' There is nothing unhealthy about that. Nothing is 
inherently unhealthy about that. With regard to the growth in campaign 
spending, which was anticipated in 1976 and certainly has occurred, the 
Court said, ``The mere growth in the cost of Federal election campaigns 
in and of itself provides no basis for Government restrictions on the 
quantity of campaign spending.''
  In other words, the Court was saying a lot of speaking is not bad, 
and an effort to try to restrict the amount of speaking to some 
Government-prescribed formula is a clear violation of the first 
amendment, which is why we are now voting on the amendment of the 
Senator from South Carolina to give the Government the power to control 
political discourse in this country.
  The Court also addressed the issue of the level playing field. We 
often hear that. Proponents of bills, for example, like McCain-
Feingold, say they want to ``level the playing field.'' This is what 
Buckley had to say about leveling the playing field. The Court said, 
``The concept that Government may restrict the speech of some elements 
of our society in order to enhance the relative voice of others is 
wholly foreign to the first amendment.'' In other words, the notion 
that the Government is wise enough to level the playing field is 
abhorrent to the first amendment.

  After all, if you think about it, it would be impossible to level the 
playing field. How is the playing field leveled if you only leveled the 
amount of money? I would say that in my State of Kentucky, in order to 
have a remotely level playing field, you would have to get 600,000 
people to change their registration and two major newspapers to leave 
the State. Then you might have, in some ways, a level playing field.

[[Page S2396]]

 Then, of course, what happens when your opponent is famous, maybe a 
well-known athlete or a war hero, or somebody who has a special place 
in the hearts of the American people? How is the playing field leveled 
then? The Government has prescribed how much you can speak in the 
campaign. Your opponent starts off 5 yards from scoring a touchdown, 
and you're way back on your own 20, and the Government says this is how 
much you get to communicate with the constituents. In what way is that 
a level playing field? In fact, the Court rejected out of hand the 
level playing field argument.
  So the Buckley decision was a sound decision. The Supreme Court 
believes it is a sound decision. They have reinforced it time and time 
again over the last 20 years. This amendment basically has no 
constituency. Common Cause, the principal group supporting various 
kinds of campaign finance reform, opposes the Hollings amendment. The 
American Civil Liberties Union opposes the constitutional amendment. 
Even our dear colleague, Senator McCain, who differs with me on this 
issue, opposes this amendment. This is an amendment without a 
constituency. The Washington Post, who is certainly interested in its 
version of campaign finance reform, opposes this amendment.
  In short, Mr. President, regardless of how you may feel about which 
kind of campaign finance reform might be appropriate, amending the 
first amendment for the first time in 200 years to give the Government 
the power to control the political discourse in this country by 
individuals, groups, candidates, and parties is a substantial 
overreaching and a dangerous step in the wrong direction. I think it 
could probably be argued persuasively that this is the kind of speech 
that the Framers of our Constitution had most in mind when they were 
writing the first amendment. They were just beginning the process of 
having elections and dealing with the issue of campaigning. Certainly 
at the heart of what they had in mind when they talked about free 
speech was free political speech.
  After this amendment, pornography and flag burning would have more 
protection under the first amendment than political discourse. 
Political discourse would be singled out among all the other kinds of 
expression that we are free to engage in in this country under the 
first amendment; political discourse would be singled out and handed 
over to Government control. Mr. President, this is clearly a step we 
should not take. I hope the amendment will be substantially defeated.
  Mr. HOLLINGS addressed the Chair.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, it is rather amusing to hear my 
distinguished colleague say that this particular initiative is 
``without a constituency.'' The constituency started 10 years ago with 
the Commission on the Constitutional System. I have quoted a group of 
several hundred present and former legislators, executive branch 
officials, political party officials, professors, and civic leaders who 
are interested in analyzing and correcting the weaknesses that have 
developed under our political system since the Buckley case.
  We have the support of 44 law professors, which I have inserted into 
the Record, as well as 24 State attorneys general. When I introduced 
this joint resolution in some 10 years ago, it was only relevant and 
pertaining to the Federal Government. The States came and begged and 
said, ``Amend the Buckley ruling and include protection for us also.'' 
The cities came and said, ``Amend it, please, and include the 
protection for the cities also.''
  Yet, my distinguished colleague says that he has the endorsement of 
the Washington Post and the ACLU. He had better not let many on his 
side of the aisle hear that or they will start changing their votes. I 
know that crowd over there. I can tell you, Mr. President, we need to 
examine the very authority that the distinguished Senator from Kentucky 
uses--the Buckley case--which he said was good. He said it was good 
1976 it is good in 1997. He says it's good and that ``we don't want, 
need the Hollings resolution.'' Incidentally, it is the Hollings-
Specter. I don't know whether they are ashamed to have a Republican 
cosponsor it. They don't mind saying ``McCain-Feingold,'' but they 
don't want to say ``Hollings-Specter.'' But I do appreciate the 
distinguished Senator from Pennsylvania joining in. I understand also 
that my colleague from Delaware, Senator Roth, has asked for time. I 
was waiting to make sure he had a moment. But in any event, I admire 
their courage for joining me because apparently they have made this 
into a party position. When I lose my good friend, the Senator from 
Alabama, Senator Shelby, who cosponsored this three times and now comes 
and says he is worried about the freedom of speech, I know the pressure 
is on. But, after saying Buckley is good, they then say vote against 
the Hollings initiative. They argue that my amendment would be the 
first time in 200 years we have limited the freedom of speech, whereby 
there is no question that this is exactly what the Buckley decision 
does. The Buckley decision limits the freedom of speech of those who 
wish to contribute in political campaigns. The Buckley decision limits 
to this very moment the freedom of speech of political action 
committees. He talks about this being the first time in 200 years, yet 
he has to acknowledge that their authority shows the spurious nature of 
their defense.

  Mr. President, what we have is what the Senator from Utah, Senator 
Hatch, said would gut the freedom-of-speech provision for the first 
time. Yet, we have already had it gutted in the Buckley decision. 
Thereupon, as the Chief Justice said in his dissenting opinion, it is 
half a haircut. You can't deal with the contributions without dealing 
with the expenditures of those contributions--both sides of the same 
coin, as he expressed it.
  So we have been at this now for 20 years. We have had over 240 votes 
in Congress on campaign finance reform. What we have finally come to is 
not the question of how but the question of whether or not we are going 
to really limit. Heretofore, for 20 years we have had Common Cause say 
that this measure is public financing. We have had McCain-Feingold say, 
if you will voluntarily limit yourself, you can get free time, free TV 
time, free mailing time, and everything. All of those initiatives were 
dealing with how to limit. But now, my good friend from Kentucky says 
really we should not limit it at all.
  That is the vote. If you want to limit, this is the way to give the 
authority to the national Congress to limit it. If you do not want to 
limit it, then vote against it. If you want reform, if you want to 
really get on top of this problem, we don't tell you how to do it. But 
you have to have the authority within the people's national Congress to 
actually limit it. That is the resolution. A constitutional amendment 
which is just as significant--in fact, more important than-- five of 
the last six amendments to the national Constitution dealing with 
elections. Adopt it, if you please, and in 18.5 months--the average of 
those five--I would dare say that with the constituency we have of the 
cities, the States, the interest, and the people, this would be 
ratified in the 1998 November election.
  They have worked it pretty good in a partisan fashion to try to bring 
in the freedom of speech, by saying money is speech. But it can't be. 
But what we are talking about is paid speech, not free speech. You go 
down to the Washington Post, which he says endorses this, and ask them 
for a quarter page or half page, and see how much free speech you get 
out of that newspaper.
  What we are talking about is the right to control the election. The 
war in the field of battle, as the distinguished Senator Inouye knows, 
is won by those who control air over the battlefield. Those who control 
the airwaves win political elections. There isn't any question about 
it. Money talks here. If we can't get on top of this monster, as 
Elizabeth Drew has said, we will never be able to save the process. We 
will never be able to save the democracy itself. Chief Justice Jackson 
said that the Constitution is not a suicide compact. We can move after 
20 years to address this important problem facing our nation. We should 
move.
  I thank the Chair.
  The PRESIDING OFFICER. All time has expired.
  Mr. McCONNELL. Mr. President, I ask for the yeas and nays.

[[Page S2397]]

  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the joint resolution.
  The joint resolution was ordered to be engrossed for a third reading 
and was read the third time.
  The PRESIDING OFFICER. The joint resolution having been read the 
third time, the question is, Shall the joint resolution pass? On this 
question, the yeas and nays have been ordered, and the clerk will call 
the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Montana [Mr. Burns] is 
necessarily absent.
  The yeas and nays resulted--yeas 38, nays 61, as follows:

                      [Rollcall Vote No. 31 Leg.]

                                YEAS--38

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Cochran
     Conrad
     Daschle
     Dodd
     Dorgan
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kerry
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Mikulski
     Murray
     Reed
     Reid
     Robb
     Roth
     Sarbanes
     Specter
     Wellstone
     Wyden

                                NAYS--61

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bumpers
     Campbell
     Chafee
     Coats
     Collins
     Coverdell
     Craig
     D'Amato
     DeWine
     Domenici
     Durbin
     Enzi
     Faircloth
     Feingold
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kempthorne
     Kennedy
     Kerrey
     Kohl
     Kyl
     Leahy
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Moseley-Braun
     Moynihan
     Murkowski
     Nickles
     Roberts
     Rockefeller
     Santorum
     Sessions
     Shelby
     Smith, Bob
     Smith, Gordon H.
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner

                             NOT VOTING--1

       
     Burns
       
  The PRESIDING OFFICER. On this vote, the yeas are 38, the nays are 
61. Two-thirds of the Senators voting, a quorum being present, not 
having voted in the affirmative, the joint resolution is rejected.
  Mr. McCONNELL. Mr. President, I move to reconsider the vote, and I 
move to lay that on the table.
  The motion to lay on the table was agreed to.
  Mr. McCONNELL. Mr. President, just a couple of observations about the 
vote just completed.
  The constitutional amendment to strip political speech out of the 
first amendment and give the Government the power to control said 
speech was just defeated 61 to 38. We have had previous votes on the 
Hollings amendment in other years.
  I would just like to mention for the benefit of my colleagues this is 
the biggest vote against the Hollings amendment yet achieved in the 
Senate. The opponents of this amendment included all but 4 Republicans 
and 11 Democrats. So I think it was a very encouraging indication of 
growing support for protecting the first amendment.
  I want to thank my colleagues for this overwhelming vote against the 
amendment. Also I thank Tamara Somerville and Lani Gerst for their 
continuing good work on this issue. They are both members of my staff.
  I yield the floor.

                          ____________________