[Congressional Record Volume 143, Number 113 (Tuesday, September 2, 1997)]
[Senate]
[Pages S8643-S8646]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CAMPAIGN FINANCE REFORM
Mr. SPECTER. Madam President, in the absence of any other Senator on
the floor, I will utilize this time to comment on the subject of
campaign finance reform. I stated earlier that in my travels through
Pennsylvania during part of the month of August, I heard considerable
concern about the necessity for campaign finance reform, and I had
commented about the overtone throughout my open house town meetings
about people of my State being very suspicious of Government, very
distrustful of Government. One of those items was Ruby Ridge, and I
spoke at some length about that. Another item was the subject of
campaign finance reform, where I have found very considerable interest,
disagreeing with some of the pundits and some of the public comments.
[[Page S8644]]
It is my hope, Madam President, that the hearings before the
Governmental Affairs Committee, on which you and I sit, will stimulate
an interest in campaign finance reform. I have said with some frequency
in the past that I do not believe we will have campaign finance reform
until the American people demand it. It is contrary to the interests of
incumbents to have campaign finance reform. This is a matter of
considerable disagreement within this body, and I respect the views of
our colleagues who have disagreed. But I do believe that we are awash
in money. After 6 months of investigation and after 4 weeks of hearings
by our Governmental Affairs Committee during the month of July, it
confirms my conclusion and the view of most Americans that campaign
finance reform is necessary.
Politics is awash in money, corrupting some, appearing to corrupt
others, and making almost everybody in or out of the system uneasy
about the way political campaigns are financed. I compliment our
colleagues, John McCain and Russ Feingold, for providing leadership on
campaign finance reform in Senate bill 25. I believe that the key
provision there, which would give candidates free television
advertising time, does not measure up to the constitutional standard of
the fifth amendment on taking property without due process of law. I
recognize the contention that the airwaves belong to the American
people. But in the context where television stations and networks have
operated, I do not see how you can square, constitutionally, the taking
of that property without compensation.
I voted last year for cloture, to bring the issue to the floor so we
can debate it, consider it, and it would be my hope that it would be
brought to the floor in the month of September. I am aware of the
public statements made by Senator McCain and others that it may be
brought and attached to other bills. So we will wait to see if that
does occur.
My intention is to offer my own bill on campaign finance. I am in the
final stages of the drafting of the bill and the floor statement. It
would target some of the specific abuses and would expand upon what any
other legislation has done in terms of what we have found from our
Governmental Affairs investigation.
My own sense is that the evidence is conclusive that soft money ought
to be eliminated. When you take a look at the millions of dollars which
have been poured into the American electoral system, including
corporate contributions on soft money, it has just totally distorted
the Presidential campaigns--and also congressional campaigns--as that
money moves in and out in a variety of contours. But we have public
financing of Presidential elections. That public financing has been
undertaken on the basis that there will not be private financing. But
somehow soft money is not deemed to be a contribution, so says the
Department of Justice of the United States in an inexplicable
interpretation--inexplicable, in my opinion. And then according to the
reports of both Dick Morris and former chief of staff Leon Panetta, the
President of the United States edited and wrote Democratic National
Committee campaign commercials. That, obviously, is coordination.
There is a constitutional rule that an independent expenditure,
constitutionally may not be limited by a statute. But here you have the
President taking money from the Democratic National Committee that was
raised as soft. And, when I talk about the President, the same thing is
done on the Republican side. So that I think there is bipartisan blame
here.
The specific evidence has been forwarded as to what President
Clinton's personal involvement was. And there are these commercials.
They extol the virtues of one candidate, and they criticize the other
candidate. And for some reason they are not classified as being
advocacy commercials but only issue commercials.
I ask unanimous consent to include illustrations of these commercials
on a letter that I wrote to Attorney General Reno dated May 1, 1997,
her response, and also the response of the Federal Election Commission
on this subject.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S., Senate,
Committee on the Judiciary,
Washington, DC, May 1, 1997.
Hon. Janet Reno,
Attorney General,
Department of Justice, Washington, DC.
Dear Attorney General Reno: Following up on yesterday's
hearing, please respond for the record whether, in your legal
judgment, the text of the television commercials, set forth
below, constitutes ``issue advocacy'' or ``express
advocacy.''
The Federal Election Commission defines ``express
advocacy'' as follows:
``Communications using phrases such as `vote for
President,' `reelect your Congressman,' `Smith for Congress,'
or language which, when taken as a whole and with limited
reference to external events, can have no other reasonable
meaning than to urge the election or defeat of a clearly
identified federal candidate.'' 11 CFR 100.22
The text of the television commercials follows:
``American values. Do our duty to our parents. President
Clinton protects Medicare. The Dole/Gingrich budget tried to
cut Medicare $270 billion. Protect families. President
Clinton cut taxes for millions of working families. The Dole/
Gingrich budget tried to raise taxes on eight million of
them. Opportunity. President Clinton proposes tax breaks for
tuition. The Dole/Gingrich budget tried to slash college
scholarships. Only President Clinton's plan meets our
challenges, protects our values.
``60,000 felons and fugitives tried to buy handguns--but
couldn't--because President Clinton passed the Brady Bill--
five-day waits, background checks. But Dole and Gingrich
voted no. One hundred thousand new police--because President
Clinton delivered. Dole and Gingrich? Vote no, want to repeal
`em. Strengthen school anti-drug programs. President Clinton
did it. Dole and Gingrich? No again. Their old ways don't
work. President Clinton's plan. The new way. Meeting our
challenges, protecting our values.
``America's values. Head Start. Student loans. Toxic
cleanup. Extra police. Protected in the budget agreement; the
president stood firm. Dole, Gingrich's latest plan includes
tax hikes on working families. Up to 18 million children face
healthcare cuts. Medicare slashed $167 billion. Then Dole
resigns, leaving behind gridlock he and Gingrich created. The
president's plan: Politics must wait. Balance the budget,
reform welfare, protect our values.
``Head Start. Student loans. Toxic cleanup. Extra police.
Anti-drug programs. Dole, Gingrich wanted them cut. Now
they're safe. Protected in the '96 budget--because the
President stood firm. Dole, Gingrich? Deadlock. Gridlock.
Shutdowns. The president's plan? Finish the job, balance the
budget. Reform welfare. Cut taxes. Protect Medicare.
President Clinton says get it done. Meet our challenges.
Protect our values.
``The president says give every child a chance for college
with a tax cut that gives $1,500 a year for two years, making
most community colleges free, all colleges more affordable .
. . And for adults, a chance to learn, find a better job. The
president's tuition tax cut plan.
``Protecting families. For millions of working families,
President Clinton cut taxes. The Dole-Gingrich budget tried
to raise taxes on eight million. The Dole-Gingrich budget
would have slashed Medicare $270 billion. Cut college
scholarships. The president defended our values. Protected
Medicare. And now, a tax cut of $1,500 a year for the first
two years of college. Most community colleges free. Help
adults go back to school. The president's plan protects our
values.''
Sincerely,
Arlen Specter.
____
Office of the Attorney General,
Washington, DC, June 19, 1997.
Hon. Arlen Specter,
U.S. Senate,
Washington, DC.
Dear Senator Specter: I have received your letter of May 1,
1997, asking that I offer you my legal opinion as to whether
the text of certain television commercials constitutes
``express advocacy'' within the meaning of regulations of the
Federal Election Commission (``FEC''). For the reasons set
forth below, I have referred your request to the FEC for its
consideration and response.
Under the Federal Election Campaign Act, the FEC has
statutory authority to ``administer, seek to obtain
compliance with, and formulate policy with respect to'' FECA,
and exclusive jurisdiction with respect to civil enforcement
to FECA. 2 U.S.C. Sec. 437c(b)(1); see 2 U.S.C. Sec. 437d(e)
(FEC civil action is ``exclusive civil remedy'' for enforcing
FECA). The FEC has the power to issue rules and advisory
opinions interpreting the provisions of FECA. 2 U.S.C.
Sec. Sec. 437f, 438. The FEC may penalize violations of FECA
administratively or through bringing civil actions. 2 U.S.C.
Sec. 437g. In short, ``Congress has vested the Commission
with `primary and substantial responsibility for
administering and enforcing the Act.''' FEC v. Democratic
Senatorial Campaign Comm., 454 U.S. 27, 37 (1981), quoting
Buckley v. Valeo, 424 U.S. 1, 109 (1976).
The legal opinion that you seek is one that is particularly
within the competence of the FEC, and not one which has
historically been made by the Department of Justice.
Determining whether these advertisements constitute ``express
advocacy'' under the FEC's rules will require consideration
not only of
[[Page S8645]]
their content but also of the timing and circumstances under
which they were distributed. The FEC has considerably more
experience than the Department in making such evaluations.
Moreover, your request involves interpretation of a rule
promulgated by the FEC itself. Indeed, it is the standard
practice of the Department to defer to the FEC in
interpreting its regulations.
There is particular reason to defer to the expertise of the
FEC in this matter, because the issue is not as clear-cut as
you suggest. In FEC v. Colorado Republican Federal Campaign
Comm., 839 F. Supp. 1448 (D. Colo. 1993), rev'd on other
grounds, 59 F.3d 1015 (10th Cir. 1995), vacated, 116 S.Ct.
2309 (1996), the United States District Court held that the
following advertisement, run in Colorado by the state
Republican Federal Campaign Committee, did not constitute
``express advocacy'':
``Here in Colorado we're used to politicians who let you
know where they stand, and I thought we could count on Tim
Wirth to do the same. But the last few weeks have been a real
eye-opener. I just saw some ads where Tim Wirth said he's for
a strong defense and a balanced budget. But according to his
record, Tim Wirth voted against every new weapon system in
the last five years. And he voted against the balanced budget
amendment.
``Tim Wirth has a right to run for the Senate, but he
doesn't have a right to change the facts.''
839 F. Supp. at 1451, 1455-56. The court held that the
``express advocacy'' test requires that an advertisement ``in
express terms advocate the election or defeat of a
candidate.'' Id. at 1456. The Court of Appeals reversed the
District Court on other grounds, holding that ``express
advocacy'' was not the appropriate test, and the Supreme
Court did not reach the issue.
Furthermore, a pending matter before the Supreme Court may
assist in the legal resolution of some of these issues; the
Solicitor General has recently filed a petition for
certiorari on behalf of the FEC in the case of Federal
Election Commission v. Maine Right to Life Committee, Inc.,
No. 96-1818, filed May 15, 1997. I have enclosed a copy of
the petition for your information. It discusses at some
length the current state of the law with respect to the
definition and application of the ``express advocacy''
standard in the course of petitioning the Court to review the
restrictive definition of the standard adopted by the lower
courts in that case.
It appears, therefore, that the proper legal status of
these advertisements under the regulations issued by the FEC
is a question that is most appropriate for initial review by
the FEC.
Accordingly, I have referred your letter to the FEC for its
consideration. Thank you for your inquiry on this important
matter, and do not hesitate to contact me if I can be of any
further assistance.
Sincerely,
Janet Reno.
____
U.S. Department of Justice,
Criminal Division,
Washington, DC, June 19, 1997.
Hon. John Warren McGarry,
Chairman, Federal Election Commission,
Washington, DC.
Dear Mr. Chairman: Enclosed for the attention and whatever
further reply the Federal Election Commission (FEC) finds to
be appropriate is a copy of an exchange of correspondence
between the Attorney General and Senator Arlen Specter of
Pennsylvania concerning the application of the Commission's
rules governing issue advocacy by political parties to a
specific advertisement. The Department of Justice regards the
subject matter of this inquiry as properly within the primary
jurisdiction of the FEC.
If we can assist the Commission in any way in this matter,
please let me know.
Sincerely,
Mark M. Richard,
Acting Assistant Attorney General.
Mr. SPECTER. Madam President, that subject came up in Judiciary
Committee oversight with the Attorney General testifying the day
before, on April 30, where the commercials extol one candidate,
criticize another, and, yet, are not considered to be advocacy
commercials.
The first point of the legislation which I am preparing would end
soft money.
The second point would define express advocacy to enforce the intent
of the Federal election laws to prevent coordinated campaigns and to
say where a commercial praises a named candidate or criticizes a named
candidate, that that does constitute express advocacy.
The third provision on legislation that I am preparing would require
affidavits on so-called independent expenditures. In Buckley versus
Valeo, the Supreme Court of the United States said that as a matter of
constitutional law Congress could not limit what an individual wanted
to spend on the campaign--for example, Senator X or Presidential
candidate Y--if they were truly independent. But the reality of many of
these independent expenditures, if not most, is that they are not
independent at all.
After surveying the scene and thinking about it, my legislation would
require an affidavit to be taken by the individual who is making the
independent expenditure, or the head of the committee making
independent expenditure, that the expenditure is truly independent. If
someone sits down and reads an affidavit, takes an oath and understands
that person is subject to the penalties of perjury, there may be a
little more credibility or more attention paid to what is said. If you
go to jail for 5 years, that may make someone pause on a representation
that an expenditure is independent.
Then my legislation would provide 48 hours after that affidavit is
filed, the individual making the independent expenditure would have 24
hours to file the affidavit, and then within 48 hours file the
affidavit with the Federal Election Commission. And then within 48
hours the Federal Election Commission would give that affidavit to the
campaign on whose behalf the expenditure was made. And then the
candidate and the campaign treasury would have to take an affidavit
that the expenditure in question is truly independent. If people are
prepared to take affidavits, both the person making the expenditure and
the person committing on whose behalf the expenditure is made, we might
see some independent expenditures which are truly independent.
The fourth provision in the bill, which I intend to offer and
hopefully becomes statute, would eliminate foreign transactions which
funnel money into the U.S. campaigns. This would be along the line of--
we heard the testimony as to what happened in the famous transaction
where the former Republican National Chairman, Mr. Haley Barbour,
testified. There, if you collapse the transaction, money did come from
a foreign source into the Republican National Committee. I think that
Mr. Barbour got bad advice as to what was going on there, and details
of that evidence show that when advice of counsel was obtained that the
transaction was lawful. It was on the condition that the money not go
to a political committee. But, in fact, that is what happened. The
attorney who received that letter, saying that the legitimacy of the
transaction would depend upon the money not going to a political
committee, testified at our Governmental Affairs Committee that he
didn't notice that provision, even though a letter was to him, or read
that provision. The letter was, in fact, going to someone else. So
that, if we tighten up on that provision so that the transaction is
viewed as a whole, those kinds of foreign contributions would be
eliminated.
A fifth provision of the legislation which I will propose would seek
to deter massive spending of personal wealth which adopts a new standby
financing framework similar to the one recently enacted in Maine, the
State represented by our distinguished Presiding Officer at the moment.
Buckley versus Valeo provides as a constitutional matter that an
individual may spend as much of his or her money as he or she chooses.
For many years, Senator Hollings and I have sought to have a
constitutional amendment. That split decision by the Supreme Court of
the United States, in my opinion, does not accurately state what is
meant by ``freedom of speech.'' Freedom of speech does not give, in my
judgment, the right of an individual to spend as much of his or her
money as he or she may choose when the Supreme Court acknowledges at
the same time that any other individual may be limited by what that
individual may give to a Senator's campaign--$1,000 in the primary, or
$1,000 in a general election.
I personally was running against Senator Heinz for the U.S. Senate
seat in 1976 on a campaign which started with a limitation as to how
much money an individual could spend. For a State the size of
Pennsylvania it was $35,000, which was close to my amassed wealth. I
was prepared to spend it. In the middle of that campaign, on the end of
January 1976, the Supreme Court of the United States said that an
individual could spend as much of his or her money as he or she chose
but that my brother, Morton Specter, who could have financed my
campaign rather generously had he chosen to do so, and I think was
prepared to do so, was limited to $1,000. Where were Morton Specter's
constitutional rights for freedom
[[Page S8646]]
of speech contrasted with the rights of a candidate? But that is the
constitutional law.
But Maine has a very interesting way of handling excessive spending
by providing matching funds to candidates when an opponent exceeds
certain spending limits. I personally oppose public financing of
Federal elections. But I think in a situation where a wealthy
individual knew that a multimillion-dollar expenditure would be matched
by the State, it would be a deterrence, and, in fact, the State would
not have to put up that money. I think that provision is well worth
considering.
The final provision of the statute which I have in mind would subject
contributions for legal defense funds to be reported. And our
Governmental Affairs Committee has heard incredible testimony about
moneys brought in by Mr. Yah Lin ``Charlie'' Trie, something in the
neighborhood of $639,000. He brought it in to the trustees of the
President's legal campaign fund. Those moneys were not subject to any
reporting requirements. And an article, which appeared in yesterday's
Philadelphia Inquirer, points out how these suspect funds were known,
and that reporting was delayed.
I ask unanimous consent that the text of this article be printed in
the Congressional Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Philadelphia, Inquirer, Sept. 1, 1997]
Clinton and Wife Reportedly Knew of Suspect Funds
Questionable donations to the Clinton defense fund were hidden until
after the election, a paper says
Los Angeles.--Trustees of President Clinton's legal defense
fund acted with the knowledge of the President and Hillary
Rodham Clinton in hiding $639,000 in contributions funneled
through Democratic fund-raiser Yah Lin ``Charlie'' Trie, the
Los Angeles Times reported yesterday.
The trustees of the Presidential Legal Expense Trust in
June 1996 used accounting measures that would allow them to
refund the money from a Taiwan-based religious sect Suma
Ching Hai, without reporting the transactions until after the
November election, the newspaper reported.
A month earlier, the Times said, the trustees met to
discuss the contributions with six administration officials
including presidential aides Bruce Lindsey and Harold Ickes
and White House attorneys.
The Clintons were informed last spring about the delivery
of Trie's checks, as well as the decision not to inform the
public, the Times reported.
The trust--which was established in 1994 to raise money for
the Clinton's legal bills from Whitewater investigations and
a sexual harassment suit brought by Paula Corbin Jones--is
supported to operate independent of political influence.
When the donations and refunds were revealed in December,
the defense funds and the White House said trustees needed
nine months to scrutinize the contributions.
However, confidential congressional records, defense-fund
papers and meeting notes show an effort by the White House to
deal with the issue months earlier, the Times reported.
White House special counsel Lanny Davis said there was no
attempt to withhold information about Trie's activities. And
the executive director of the trust, Michael Cardozo, said
its decisions were never influence by the White House or
steered by political motivations.
Although the private trust is not subject to federal laws
governing political contributions, the Clintons imposed their
own rules, Individuals were limited to contributing $1,000 a
year, and foreigners, corporations, labor unions, political
organizations, lobbyists, and federal employees were
prohibited from making donations.
Between March and May of last year, Trie made three trips
to the trust to deliver a total of $789,000 mostly in $1,000
and $500 checks and money orders. Some money was rejected
after some of the money orders were found to be in sequential
order and written in the same handwriting, the Times said,
and many contributors who appeared to be of Asian descent
shared the same surname.
In May, a trust official told White House aides that the
Trie-related donors appeared to belong to Suma Ching Hai.
Officials at the meeting were concerned about media
coverage of the origin of the donations, the Times reported.
Still, Davis insisted ``there was no discussion about whether
to disclose return of the checks or the effect of disclosure
on the election.''
Trustees decided to return the money in June, settling on
two steps to keep the donations out of the public eye.
First, the trust eliminated the line ``Less Ineligible
Contributions'' on the fund's public disclosure form released
last August. Notes taken by Ickes show a reference to ``Less
ineligibles,'' indicating the accounting procedure may have
been discussed as early as April 4.
Second, if any sect members wanted to re-donate to the
legal fund, their names would not be disclosed until the next
reporting period---in early 1997, the Times reported.
Mr. SPECTER. I thank the Chair.
That, in a fairly abbreviated statement, Madam President, is the
substance of legislation which I propose to offer.
It is my hope that the hearings of the Governmental Affairs Committee
will bring substantial public interest to this subject. I know that the
Presiding Officer has cosponsored the McCain legislation, is very much
in favor of campaign finance reform, and perhaps, if our hearings
generate enough public interest, that kind of public demand will be
created.
It is worth noting that at an early stage in the Watergate hearings
people were disinterested in campaign finance reform at that time. But
as those hearings progressed more public interest was stimulated, and
campaign finance reform was enacted in 1974. But I believe that this is
very, very important if we are to bring back public confidence with
what is done in Washington, DC.
Madam President, in the absence of anyone on the floor seeking
recognition, I again suggest the absence of quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KYL. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________