[Congressional Record Volume 143, Number 137 (Monday, October 6, 1997)]
[Senate]
[Pages S10339-S10409]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 BIPARTISAN CAMPAIGN REFORM ACT OF 1997

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 25, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 25) to reform the financing of Federal 
     elections.

  The Senate resumed consideration of the bill.
  Pending:

       Lott amendment No. 1258, to guarantee that contributions to 
     Federal political campaigns are voluntary.
       Lott amendment No. 1259 (to amendment No. 1258), in the 
     nature of a substitute.
       Lott amendment No. 1260 (to amendment No. 1258), to 
     guarantee that contributions to Federal political campaigns 
     are voluntary.
       Lott amendment No 1261, in the nature of a substitute.
       Lott amendment No. 1262 (to amendment No. 1261), to 
     guarantee that contributions to Federal political campaigns 
     are voluntary.
       Motion to recommit the bill to the Committee on Rules and 
     Administration with instructions to report back forthwith, 
     with an amendment.
       Lott amendment No. 1263 (to instructions of motion to 
     recommit), to guarantee that contributions to Federal 
     political campaigns are voluntary.
       Lott amendment No. 1264 (to amendment No. 1263), in the 
     nature of a substitute.
       Lott amendment No. 1265 (to amendment No. 1264), to 
     guarantee that contributions to Federal political campaigns 
     are voluntary.

  Mr. REID addressed the Chair.

[[Page S10340]]

  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. REID. Mr. President, I have to applaud the opponents of campaign 
finance reform. They have done a great job. They set out to confuse and 
distract from the real issue of campaign reform, and they have 
succeeded. They have diverted attention from the fact that raising 
money becomes one of the essential items and activities of those of us 
who serve in Congress just to remain competitive. They have done this 
by focusing on extraneous matters like who made phone calls, where did 
they make them from?
  We have not focused, as we should, on the continued increased cost of 
the media in campaigns. Consultants have become more controlling. Self-
financing has become the norm. Opponents, Mr. President, of real 
campaign finance reform are focused on anything to divert attention 
from the fact that campaigns are very expensive and too long. The 
Governmental Affairs Committee hearing has clearly shown, at least in 
this Senator's opinion, that both parties need more constraints, more 
controls, and more attention.
  We must bring attention back to what the real issues are in campaign 
finance--that is, the fact that Senators and Representatives spend 
large amounts of their time and their efforts simply raising money in 
order to pay for escalating media costs. As I have said, we have the 
never-ending, it seems, self-financing of candidates. Take a small 
State like the State of Nevada or one like the Presiding Officer's 
State of Arizona, $4 million, which has a relatively small campaign 
fund in this modern era, sadly. To raise that much money, you have to 
raise about $13,000 or $14,000 a week every year. You don't take a week 
off for Christmas. If you do, you have to raise more money. If you do 
that 52 weeks a year for 6 years, you can raise enough to be 
competitive in a race; you will raise about $4 million. As we know, in 
some States it takes a lot more money. In those States, you have to 
raise twice that much or three times or four times that much. Instead 
of raising $13,000 or $14,000 a week, people have to raise $50,000 a 
week. That is what we should be focusing on, Mr. President--the fact 
that these campaigns are very expensive.
  Eleven years ago, I came to the Senate floor and talked about this 
campaign I had been through, a campaign where corporate money was used. 
Complaints had been filed with the Federal Election Commission. It is 
11 years now, and a number of those complaints have still never been 
disposed of by the Federal Election Commission. They are still pending. 
I thought to myself, I can't believe there would be another election 
with the same rules in effect. We haven't had one election since then; 
we have had six since then where the same rules applied to Members of 
Congress. I, personally, will begin my third campaign using these same 
rules. In fact, I have to say they are not identical rules; they are 
worse, because in the early part of this century Congress decided it 
wasn't appropriate to have corporate money used in campaigns. The 
Supreme Court came back last year and said, oh, well, you can use 
corporate money in campaigns. State parties can virtually use the money 
any way they want. So corporate money is now back into elections for 
the first time in 85 or 90 years. Now corporate money is important.

  I guess we have to be satisfied that there is a debate. I extend my 
appreciation to the majority leader for allowing this debate to take 
place; a debate about campaign financing. I have to say, though, Mr. 
President, that we started out saying, well, McCain-Feingold doesn't do 
it all, but it is not a bad bill. That is why I joined as a sponsor of 
that legislation. But now we are here before the Senate, the original 
McCain-Feingold is long gone, and we are now talking about a mini 
McCain-Feingold, which we are now happy that we have, that even though 
the original bill was lacking in many elements, now we are 
congratulating ourselves for going with a slimmed-down version of 
McCain-Feingold, which we probably won't get a chance to vote on 
because of all the extracurricular, extraneous matters being debated in 
this.
  This watered-down version, I hope, can be passed. But because 
opponents of campaign finance reform have taken it upon themselves to 
expand a Supreme Court decision, the Beck case, I am not sure we are 
going to be able to. I have come to the floor today to remind my 
colleagues that we are not debating campaign finance reform to find out 
if the President had made phone calls from an inappropriate place or 
whether he should have gone to his home. Think about that; he could not 
do that because that is on Federal property. Maybe he should have taken 
Secret Service agents with him and found a pay phone to make those 
calls.
  The fact is, we should be debating that campaigns take too much time 
and campaigns are far too long and take too much money. Since 1992, we 
have had a $900 million election cycle. In 1996, there was a 70-percent 
increase, in just those 4 years. In the last 20 years, congressional 
races have increased their spending by some 700 percent. Both political 
parties, Democrats and Republicans, know that the cost of campaigns is 
the problem. So I think we should bring back the focus on the real 
issue of campaign finance reform, which is that there is too much money 
being spent and campaigns are too long.
  I see my friend from Kentucky on the floor. I have to say to him that 
I appreciate his honesty in this campaign debate. From the very first 
time that he took this as a campaign issue, he hasn't minced any words. 
He has said basically that he is opposed to it. We have a lot of 
people, Mr. President, who don't have the--I won't say courage, but 
that is a decent word--ability to get up and call things the way he 
sees them. I disagree with my friend from Kentucky, but he is willing 
to debate the issues as they stand. He has been willing to do this from 
the first time it was brought up when Senator Byrd was majority leader 
and when Senator Mitchell was majority leader. He doesn't hide how he 
feels about campaign finance reform. I appreciate his approach. Many 
people are hiding between the nuances of campaign finance reform and 
side issues. I say to my friend from Kentucky that I appreciate his 
approach. He says he is against campaign finance reform, and he has 
never hidden that fact; he has spoken out openly and has been very 
candid about it. I appreciate his approach to it.
  I do say, however, that I wish that there were others like my friend 
from Kentucky who would stand up and debate the issue. McCain-Feingold, 
for example, let's debate it, and if there are enough votes to pass it, 
fine. If not, let's go on to another issue. We don't need filibusters 
on either side. We need to debate whether or not we need campaign 
finance reform. We need to go forward.
  I personally believe that campaigns, I repeat, are too long, too 
costly, and we owe an obligation to the American public to do something 
about that.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. Mr. President, this would be a good time, in the 
beginning of the debate, to thank my colleague from Nevada for his kind 
words. I appreciate that very much. Also, Mr. President, I would like 
to insert a number of things into the Record with some explanation, 
just to make the Record complete, before we go to further debate later 
this afternoon. There are a number of Senators on my side of this issue 
who want to speak, and they will be coming over at various times during 
the course of the afternoon's debate.
  First, Mr. President, I would like to submit a sampling of the 
opinion pieces I have authored in the past year. One is from January of 
this year, published by the Washington Times, in which I had a 
premonition that President Clinton, as his own campaign finance scandal 
deepened, would become campaign finance reform's No. 1 fan. Frankly, 
it's not that I am particularly clairvoyant, but rather that they are 
so predictable.
  As the Clinton administration and the Democratic National Committee 
have sunk in a scandalous quicksand of their own making, the more they 
publicly thrashed around groping for a campaign finance bill as if it 
were a life preserver. Unfortunately for America, the President and 
Vice President Gore seek to save themselves from their own embarrassing 
malfeasance in raising money from foreigners and the

[[Page S10341]]

other episodes which have been so much in the newspapers. They want to 
save themselves at the expense of core constitutional freedoms for all 
Americans.
  Mr. President, I ask unanimous consent that an article I wrote for 
the Washington Times be printed in the Record at this point.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Jan. 30, 1997]

                       Keep Campaign Reform Legal

                          (By Mitch McConnell)

       ``Offense is the best defense'' is a cliche and a 
     frequently employed political tactic. Diversion, skillfully 
     applied, also can have great utility in politics. President 
     Clinton is hoping both work for him in deflecting attention 
     from the waves of campaign finance scandals lapping up on the 
     White House lawn. That is why Mr. Clinton strives to become 
     campaign finance reform's No. 1 fan.
       Mr. Clinton's newfound zeal for campaign finance reform is 
     transparent and dangerous. The McCain-Feingold bill around 
     which he belatedly rallies is a convenient fig leaf. It is 
     also a tremendous threat to political freedom, as it would 
     restrict political speech and participation. The president's 
     party hopes it will prevent collateral damage arising from 
     the latest Clinton scandals. They contend, wrongly, that the 
     campaign finance shenanigans making today's headlines merely 
     illustrate a systemic problem solvable only through 
     comprehensive ``reform.'' Never mind that the foreign 
     contributions and contribution-laundering reportedly done on 
     behalf of the Clinton reelection campaign are illegal, under 
     current law.
       Mr. Clinton's ``reform'' agenda, while a clever 
     diversionary tactic, is unconstitutional. It is that element 
     which should disturb us most of all.
       The Constitution's First Amendment is America's premier 
     political reform. It should be the touchstone for campaign 
     finance reform. But the McCain-Feingold bill and the 
     president instead treat it as an impediment to be undermined, 
     circumvented, even diminished. The McCain-Feingold bill, with 
     its coerced campaign spending limits and restrictions on 
     independent speech, is a square peg reformers try in vain to 
     pound into the First Amendment's round hole. In tacit 
     recognition of this, the Democrats' House and Senate leaders 
     recently endorsed a constitutional amendment to narrow the 
     First Amendment so that the unconstitutional (the McCain-
     Feingold bill) could, thus, become constitutional. Audacious, 
     to say the least.
       The Supreme Court has for years ruled, in no uncertain 
     terms, that campaign spending is protected by the First 
     Amendment because communication with voters costs money. 
     Hence, spending limits are speech limits which Congress 
     cannot constitutionally mandate. Congress must also tread 
     lightly on the ability of private citizens and groups to 
     participate in campaigns and affect elections via independent 
     expenditures.
       Regrettably, while striking down mandatory spending limits, 
     the court ruled two decades ago that the government could pay 
     candidates large sums from the U.S. Treasury in exchange for 
     candidates' agreeing to forgo their First Amendment right to 
     unlimited spending (i.e., speech). However, the spending 
     limit system must be purely voluntary. That is the state of 
     play in the billion-dollar presidential campaign finance 
     system, where every major candidate except John Connally and 
     the circa-1992 Ross Perot (in 1996, Perot's campaign received 
     $30 million from the taxpayers) has opted into the taxpayer-
     financed spending limits program. Have the tax dollars 
     limited spending or so-called ``special interests''? No. Like 
     a rock on Jello, the spending limits merely redirect the 
     spending into other, unlimited, channels--including party and 
     labor ``soft'' money. Spending limits promote subterfuge, 
     which the 1996 Clinton reelection campaign may have taken to 
     new lows (or highs, depending on your perspective).
       Just as it seized upon the Keating Five scandal seven year 
     ago, so does Washington's reform industry now exploit the 
     emerging Clinton campaign finance scandal. The media-anointed 
     reformers seek to complete a job they started 20 years ago--
     that is, to put (via the McCain-Feingold bill) the 
     discredited presidential model of spending limits on 
     congressional campaigns. It is an absurd proposition, but 
     reform groups and politicians reap gains--including fawning 
     editorials--from the battle. They are adept at massaging the 
     press with snappy soundbites and voluminous ``studies'' to 
     build a case for creating a bureaucratic regulatory regime of 
     extraordinary proportion to micromanage and ration the speech 
     of candidates and millions of private citizens. Why? Because, 
     they contend that: 1) campaigns spend too much; 2) 
     ``legalized bribery'' is rampant; and 3) special interests 
     influence is pervasive.
       The truth is, Americans spend far more on yogurt than 
     political campaigns, bribery is illegal and the U.S. always 
     has been and will be a teeming cauldron of ``special 
     interests.'' It is government that is pervasive. It is little 
     wonder that virtually every American has a host of 
     ``special'' interests in their government.
       In his State of the Union speech, Mr. Clinton will call for 
     campaign finance reform, specifically, the McCain-Feingold 
     bill. He may be so audacious as to bemoan ``special 
     interest'' influence, leaving unspoken his own culpability in 
     rewarding contributors with White House access and nights in 
     the Lincoln bedroom. It will take great restraint on the part 
     of Congress and the country not to hoot and howl during this 
     brazenly hypocritical call for systemic reform.
       President Clinton can do much to restore confidence in the 
     political process by cleaning up his own act. That is why on 
     the subject of campaign finance I have two words of advice 
     for the president: Reform yourself.

  Mr. McCONNELL. Mr. President, I ask unanimous consent that an op-ed 
of mine which appeared in the Boston Globe in a somewhat altered form 
on Sunday, September 7, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       As with a Rorschach test, different people can view the 
     same campaign finance data and come away with wildly 
     divergent conclusions. Supporters of the McCain-Feingold 
     campaign finance ``reform'' scheme look upon the record 
     spending in the 1996 election cycle and profess to be 
     horrified--hysterically seeing malevolent ``special'' 
     interests at every turn, poised to plunder our democracy. I 
     look upon that same election as the culmination of a fierce, 
     and healthy, philosophical battle over how best to ensure a 
     prosperous future for our nation.
       Where I see a vibrant democracy-in-action, the ``reform'' 
     agitators see chaos crying out for a big government remedy. 
     In the 1996 election cycle, the liberal status quo came 
     roaring back from the 1994 elections in which they had been 
     so profoundly rejected. The conservative insurgents of 1994 
     responded in-kind, fighting to prevail in the 1996 elections 
     with their recently acquired power intact, and the addition 
     of a Republican-held White House. With Democrats desperate to 
     regain control of Congress, Republicans having (after four 
     memorable decades in minority exile) savored majority status, 
     and momentous decisions to be made about the role of 
     government in our society, you may be assured that the next 
     few elections will be similarly boisterous. This political 
     energy should be applauded, not condemned, and certainly not 
     reformed away.
       McCain-Feingold proponents have long believed that there is 
     ``too much'' campaign spending, a notion that finds, at first 
     blush, a receptive audience in cynical times. What makes the 
     task of limiting spending so daunting for the reformers and 
     so dangerous for our nation is that, as the Supreme Court has 
     repeatedly ruled, in political campaigns spending limits 
     function as speech limits of the most undemocratic and 
     nefarious sort. Ergo, what the campaign finance reform debate 
     is really about are First Amendment freedoms of speech, 
     association and the right to petition the government. In our 
     modern society, exercising these freedoms is an expensive 
     endeavor. That is why McCain-Feingold's convoluted provisions 
     to limit the speech of private citizens, groups, candidates 
     and parties would surely be struck down as unconstitutional.
       The Supreme Court has emphatically rejected the goals of 
     McCain-Feingold's proponents. On whether government can 
     intervene to limit spending, the court has said: ``The First 
     Amendment denies government the power to determine that 
     spending to promote one's political views is wasteful, 
     excessive or unwise.'' As to the reformer contention that 
     campaign spending breeds corruption, the Court held that 
     there is ``nothing invidious, improper or unhealthy'' in 
     campaigns spending money to communicate. And on the 
     reformers' appealing argument that McCain-Feingold would help 
     ``level the playing field,'' the Court is contemptuous: ``. . 
     . 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 addition to failing the constitutional test, McCain-
     Feingold cannot, as a practical matter, achieve its stated 
     aims. Level the playing field? What is a famous family name 
     worth? What is the value of incumbency? Spending limits do 
     not take such non-monetary factors into account. Reduce 
     ``special'' interest influence? The reformers cannot even 
     define ``special'' interests (the truth is everyone has 
     ``special'' interests), let alone shoo them out of a 
     democracy. Banish ``legalized bribery?'' That is an oxymoron. 
     Bribery is illegal, period. Restore confidence in government? 
     That is a tall order for any ``reform'' and unlikely to be 
     achieved by a measure such as McCain-Feingold which would 
     necessitate a huge bureaucracy to regulate the political 
     speech of private citizens, groups, parties and thousands of 
     candidates in every election.
       To illustrate the absurdity of the McCain-Feingold approach 
     to reform, consider its bizarre spending limit formula. For 
     Senate general elections, reformer nirvana is achieved by 
     limiting campaigns to spending an amount equal to: 30 cents 
     times the number of the state's voting-age citizens up to 
     four million, plus 25 cents times the number of voting-age 
     citizens over four million, plus $400,000. However, if you 
     are running in New Jersey, 80 cents and 70 cents are 
     substituted for 30 and 25. The formula notwithstanding, for 
     all states, regardless of population, the minimum general 
     election limit would be $950,000 and the maximum, $5,500,000. 
     The primary election limit is set at 67 percent of the

[[Page S10342]]

     general and runoffs are limited to 20 percent. In the 
     unlikely event this atrocity was deemed constitutional, it 
     would be a mess to administrate, a nightmare to comply with, 
     and a blight on the Republic.
       To propel their effort to have the government ration 
     political speech, McCain-Feingold proponents have seized upon 
     the White House-Democratic National Committee campaign 
     finance scandal which centers on violations of existing law. 
     They exploit legitimate outrage over illegal foreign 
     contributions in order to restrict political speech and 
     participation by American citizens. It is a brazen and 
     despicable strategy.
       Curiously, those most associated with the First Amendment--
     the news media--display a callous disregard for the political 
     freedom of private citizens, groups, candidates and parties 
     in McCain-Feingold's cross hairs. Newspapers spew forth reams 
     of editorials endorsing McCain-Feingold. Television's talking 
     heads pontificate on the dire need to limit the political 
     speech of non-media political participants. Why is the media 
     an eager accomplice in advancing this unconstitutional and 
     undemocratic ``reform'' agenda? One might reasonably conclude 
     that media poobahs see an opportunity to fill the void left 
     when the political speech of every other player in the 
     political process is limited by McCain-Feingold. Newspaper 
     editorials and articles, not to mention television, exert 
     tremendous influence on elections. Most media outlets are 
     subsidiaries of corporate conglomerates (i.e. ``special'' 
     interests), yet they would not be limited by McCain-Feingold. 
     On this one point alone is McCain-Feingold sensitive to the 
     First Amendment.
       That there is no media conspiracy to snuff out competitors 
     in the political sphere makes this confluence of support for 
     a legislative assault on their core First Amendment freedom 
     no less lamentable. Those in the media should consider that 
     they are but one ``loophole'' away--a special exemption under 
     the Federal Election Campaign Act--from having their product 
     regulated by the Federal Election Commission (FEC). Assuming, 
     of course, that the Courts did not intervene. Perhaps some 
     experience with the FEC speech police would sensitize 
     editorial writers, reporters and TV talking heads to the 
     insidious effects of regulating election-related speech.
       The Supreme Court astutely observed six decades ago that 
     First Amendment freedom of speech is the ``matrix, the 
     indispensable condition, of nearly every other form of 
     freedom.'' Recognizing this, an extraordinary alliance of 
     citizens groups has coalesced to oppose the McCain-Feingold 
     bill. Ranging from the American Civil Liberties Union and the 
     National Education Association on the left, to the Christian 
     Coalition, National Right to Life and the National Rifle 
     Association on the right, this coalition has little in common 
     except a determination to preserve these core political 
     freedoms for all Americans. In fighting the McCain-Feingold 
     juggernaut, they are doing America a great public service.
       No one is arguing that the current campaign finance system 
     is ideal but like so many things in life, ``reform'' is in 
     the eye of the beholder. I believe the current scandal-ridden 
     presidential system of squandered taxpayer funding and 
     illusory spending limits should be repealed. Circa-1974 
     contribution limits should be updated to make fundraising 
     less time-consuming for all candidates and less formidable 
     for challengers who usually do not have a large base of 
     contributors from which to draw support. All contributions 
     should be purely voluntary which is why union members' 
     compulsory dues should not be diverted to politicking. And 
     more citizens should be encouraged to participate in 
     campaigns through volunteer activities and financial 
     contributions to the candidates and causes of their choosing. 
     Campaign contributions are a laudable and honorable means of 
     participation in campaigns and so long as they are publicly 
     disclosed and continue to be scrutinized by the media, voters 
     can judge for themselves what is appropriate.

  Mr. McCONNELL. Mr. President, this is a piece I authored and which 
appeared in the National Review in its June 30 edition. This op-ed 
starts out with the observation that proponents of spending limits are 
stuck between a rock and a hard place: The Constitution and reality.
  It is my hope that some of the signatories to the Project 
Independence petition drive will read this, and particularly paying 
attention to the McCain-Feingold bill's absurd spending limits 
formula--and refrain from signing such a misleading and shallow 
document in the future.
  I ask unanimous consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                             The Money Gag

                          (By Mitch McConnell)

       Proponents of campaign-spending limits are stuck between a 
     rock and a hard place: the Constitution and reality.
       It is impossible constitutionally to limit all campaign-
     related spending. The Supreme Court has been quite clear on 
     this matter, most notably in the 1976 Buckley v. Valeo 
     decision: ``The First Amendment denies government the power 
     to determine that spending to promote one's political views 
     is wasteful, excessive, or unwise. In the free society 
     ordained by our Constitution it is not the government but the 
     people--individually as citizens and candidates and 
     collectively as associations and political committees--who 
     must retain control over the quantity and range of debate on 
     public issues in a political campaign.''
       For those who do not at first blush see the link between 
     the First Amendment and campaign spending, the Court 
     elaborates: ``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 reached. This 
     is because virtually every means of communicating ideas in 
     today's mass society requires the expenditure of money.''
       The reformers do not care or, in some cases, cannot accept 
     that spending limits limit speech. They believe that spending 
     limits are justified and necessary to alleviate perceived or 
     actual corruption. But the Court slapped that argument aside, 
     holding that there is ``nothing invidious, improper, or 
     unhealthy'' in campaigns spending money to communicate. The 
     reformers cannot that spending limits are essential because 
     campaign spending has increased dramatically in the past two 
     decades, a woefully lame premise the Court easily dispatched: 
     ``The mere growth in the cost of federal election campaigns 
     in and of itself provides no basis for governmental 
     restrictions on the quantity of campaign spending.'' 
     Appealing to Americans' instinct for fairness, the reformers 
     passionately plead for spending limits to ``level'' the 
     political playing field. The Court was utterly contemptuous 
     of this ``level playing field'' argument. ``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.''
       There you have it. The reformers cannot achieve their 
     objectives statutorily. To realize the reformers' campaign-
     finance nirvana would require essentially repealing the First 
     Amendment--blowing a huge hole in the Bill of Rights--via a 
     constitutional amendment. Frightfully undemocratic? Yes. Out 
     of the question? No; 38 United States senators voted to do 
     just that on March 18, 1997. These 38 senators voted, in the 
     name of ``reform,';' for S.J. Res. 18, a constitutional 
     amendment to empower Congress and the states to limit 
     contributions and spending ``by, in support of, or in 
     opposition to, a candidate.'' Thus would the entire universe 
     of political speech and participation be subjected to 
     limitation by congressional edict, and enforcement by 
     government bureaucrats.
       This wholesale repeal of core political freedom registered 
     barely a ripple in the nation's media. Perhaps reporters and 
     editorial writers do not appreciate that their campaign 
     coverage could be construed as spending ``by, in support of, 
     or in opposition to, a candidate'' and, therefore, could be 
     regulated under a Constitution so altered. It is not a 
     stretch. The television networks and most major newspapers 
     are owned by corporate conglomerates (a/k/a ``special 
     interests'' and the blurred distinction is already 
     acknowledged in federal campaign law, which currently exempts 
     from the definition of expenditure ``any news story, 
     commentary, or editorial'' unless distributed by a political 
     party, committee, or candidate.
       I do not advocate regulating newspaper editorials, 
     articles, and headlines. I do not believe that government 
     should compensate candidates who are harmed by television 
     newscasts or biased anchors. However, the political playing 
     field can never be ``level'' without such regulation, and it 
     is the only area of political speech upon which the vaunted 
     McCain-Feingold bill is silent. McCain-Feingold has 
     provisions to enable candidates to counteract independent 
     expenditures by every ``special interest'' in America, except 
     the media industry. This ``loophole'' is the only one which 
     editorial writers are not advocating be closed by the 
     government.
       Such regulation of the media may strike one as an absurd 
     result of the campaign-reform movement, but it is a logical 
     extrapolation of McCain-Feingold's regulatory regime. The 
     McCain-Feingold bill's spending-limit formula for candidates 
     is itself ludicrous. For Senate general elections: 30 cents 
     times the number of the state's voting-age citizens up to 4 
     million, plus 25 cents times the number of voting-age 
     citizens over 4 million, plus $400,000. However, if you are 
     running in New Jersey, 80 cents and 70 cents are substituted 
     for 30 and 25 because of the dispersed media markets. 
     Moreover, the formula notwithstanding, for all states the 
     minimum general election limit is $950,000 and the maximum 
     $5,500,000. McCain-Feingold sets the primary-election limit 
     at 67 per cent of the general-election limit and the runoff 
     limit at 20 per cent of the general-election limit.
       Reading the Clinton-endorsed McCain-Feingold bill, one can 
     only conclude that the era of big government is just 
     beginning. The Courts have repeatedly ruled that 
     communications which do not ``expressly advocate'' the 
     election or defeat of a candidate (using terms such as ``vote 
     for,'' ``defeat,'' ``elect'') cannot be regulated, yet 
     McCain-Feingold would have the Federal Election Commission 
     policing such ads if ``a reasonable person'' would 
     ``understand'' them to advocate election or defeat. Out of 
     260 million Americans,

[[Page S10343]]

     just which one is to be this ``reasonable person''?
       The McCain-Feingold bill seeks to quiet the voices of 
     candidates, private citizens, groups, and parties. Why? 
     Because, it is said, ``too much'' is spent on American 
     elections. The so-called reformers chafe when I pose the 
     obvious question: ``Compared to what?''
       In 1996--an extraordinarily high-stakes, competitive 
     election in which there was a fierce ideological battle over 
     the future of the world's only superpower--$3.89 per eligible 
     voter was spent on congressional elections. May I be so bold 
     as to suggest that spending on congressional elections the 
     equivalent of a McDonald's ``extra value'' meal and a small 
     milkshake is not ``too much?''
       The reformers are not dissuaded by facts. Their agenda is 
     not advanced by reason. It is propelled by the media, some 
     politicians, and the recent infusion of millions of dollars 
     in foundation grants to ``reform'' groups. Fortunately, the 
     majority of this Congress is not ideologically predisposed 
     toward the undemocratic, unconstitutional, bureaucratic 
     finance scheme embodied in McCain-Feingold. Further, a 
     powerful and diverse coalition has coalesced to protect 
     American freedom from the McCain-Feingold juggernaut.
       Ranging from the American Civil Liberties Union and the 
     National Education Association on the left to the Christian 
     Coalition, the National Right to Life Committee, and the 
     National Rifle Association on the right, the individual 
     members of the coalition agree on little except the need for 
     the freedom to participate in American politics. There is 
     perhaps no better illustration of the Supreme Court's 
     observation in 1937 that freedom of speech ``is the matrix, 
     the indispensable condition, of nearly every other form of 
     freedom.'' These groups understand that the First Amendment 
     is America's greatest political reform.
       Where do we go from here? After ten years of fighting and 
     filibustering against assaults on the First Amendment 
     advanced under the guise of ``reform,'' I am heartened by the 
     honest debate in this Congress. In the House of 
     Representatives, John T. Doolittle's bold proposal to repeal 
     government-prescribed contribution limits and the taxpayer-
     financed system of (illusory) presidential spending limits 
     has more co-sponsors than McCain-Feingold's companion bill, 
     the Shays-Meehan speech-rationing scheme. In the Senate, 
     McCain-Feingold's fortunes cling pathetically to the specter 
     that the Government Affairs investigation into the Clinton 
     campaign-finance scandal will fuel public pressure for 
     reform.
       My goal is to redefine ``reform,'' to move the debate away 
     from arbitrary limits and toward expanded citizen 
     participation, electoral competition, and political 
     discourse. McCain-Feingold is a failed approach to campaign 
     finance that has proved a disaster in the presidential 
     system. McCain-Feingold would paper over the fatal flaws in 
     the presidential spending-limit system and extend the 
     disaster to congressional elections. Experience argues for 
     scuttling it entirely.
       The best way to diminish the influence of any particular 
     ``special interest'' is to dilute its impact through the 
     infusion of new donors contributing more money to campaigns 
     and political parties. Those who get off the sidelines and 
     contribute their own money to the candidates and parties of 
     their choice should be lauded, not demonized. The increased 
     campaign spending of the past few elections should be hailed 
     as evidence of a vibrant democracy, not reviled as a 
     ``problem'' needing to be cured.
       My prescription for reform includes contribution limits 
     adjusted, at the least, for inflation.
       The $1,000 individual limit was set in 1974, when a new 
     Ford Mustang cost just $2,700. The political parties should 
     be strengthened, the present constraints on what they can do 
     for their nominees, repealed. These would be steps in the 
     right direction.

  Mr. McCONNELL. Mr. President, this is also an op-ed which I did for 
USA Today--a publication whose word limits force you to distill your 
arguments.
  I ask unanimous consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                         Beware So-Called Fixes

                          (By Mitch McConnell)

       The First Amendment of the Constitution is America's 
     premier political reform. To reformers, it's a ``loophole.'' 
     The Supreme Court has repeatedly ruled that because 
     communication with voters costs money, campaign spending is 
     protected by the First Amendment and cannot be rationed by 
     the government. That does not stop the so-called reformers 
     from trying.
       The presidential system of campaign finance is the monument 
     to reform excess. Thanks to the Democratic National 
     Committee's apparent penchant for illegal foreign 
     contributions, it is also scandal-ridden. A post-Watergate 
     ``reform,'' the presidential system gives candidates tax 
     dollars for which, in exchange, they agree to campaign 
     spending limits. But like a rock placed on Jello, the 
     spending limits merely shift the money into other channels--
     notably party and union ``soft'' money.
       Political parties, unions and newspapers have a 
     constitutional right to spend as much as they choose to 
     affect elections. Some newspapers want to neuter the 
     political parties under the guise of ``reform.'' The parties 
     are vital components of the electoral process, the only 
     entities that will consistently support challengers--of all 
     ideological stripes. Their only litmus test is party 
     affiliation. They do not have a vote in Congress. They are a 
     buffer between so-called ``special interests'' and 
     government.
       The presidential system of taxpayer-funded spending limits 
     is a disaster that should be repealed. But so-called 
     reformers instead want to extend that debacle to 
     congressional elections and exploit the Democrats' scandal to 
     justify eviscerating the political parties.
       Rather than admit spending limits have failed, the 
     reformers want to add even more layers of bureaucracy to 
     police American political speech and participation by 
     candidates, political parties, private citizens and groups. 
     Why? The reformers say ``too much'' is spent on elections. 
     Americans spend more on yogurt. The reformers bemoan 
     ``legalized bribery,'' an oxymoron. Bribery is illegal, 
     period. They say special-interest influence is pervasive. Yet 
     they cannot define ``special interest.''
       Disclosure--not arbitrary, bureaucratic limits--should be 
     the linchpin of reform. Voters can decide for themselves what 
     is appropriate. Taxpayers should not be called upon to fund a 
     campaign-finance scheme in which the First Amendment is 
     regarded as a ``loophole,'' and so long as America is a 
     democracy, the spending limits can never be more than a 
     facade.

  Mr. McCONNELL. Mr. President, further, I submit for the Record four 
illuminating documents from the American Civil Liberties Union. Say 
what you will about this organization--one that Members on my side, 
including me, are infrequently aligned with--they take some gutsy 
positions. It is tough for a liberal group--a label usually given to 
the ACLU--to go against the liberal grain, particularly on an issue 
this high-profile, as this one which we are debating today.
  Particularly, Mr. President, I want to single out Laura Murphy, 
director of the ACLU's Washington office, and no doubt others in that 
organization, have taken a lot of grief for their brave and resolute 
position in defense of political freedom for all Americans--liberals, 
conservatives, and every ideological shade in between. I cannot say 
enough good things about the work that Laura, Joel Gora, Ira Glasser, 
and other folks in the ACLU have done on this issue. Their effort 
against McCain-Feingold has been truly heroic. Two-hundred and sixty 
million American beneficiaries of the first amendment owe these people 
a debt of thanks.
  With a few notable and admirable exceptions, I have been sorely 
disappointed by the willingness of liberal groups to walk off a cliff 
for this blatantly unconstitutional reform effort. I'm told some have 
made the calculated decision that if the McCain-Feingold bill passed, 
liberal causes would benefit.
  I think they are right on that score but it is shameful that so many 
would eagerly jettison 200 years of core political freedom--which 
benefits all citizens and makes America a uniquely free country--in 
order to stick it to conservatives and anyone else who does not support 
the liberal agenda.
  These liberal, Democrat-leaning groups know McCain-Feingold is 
outrageous--that its issue advocacy provisions, to name just a few, are 
unconscionable assaults on the first amendment right of all Americans 
to petition the government as individuals, and as groups, and to weigh 
in on public issues. But still some actively promote McCain-Feingold, 
more simply look the other way--acquiescing on the sidelines of this 
critical debate over core constitutional freedoms they get paid to 
exercise.
  Perhaps they believe, correctly I might add, that Republicans will 
save the Nation from McCain-Feingold. I predict that will be the 
outcome.
  Mr. President, I will now read into the Record some highlights of the 
ACLU's most recent denunciation of the McCain-Feingold bill, dated 
October 1, 1997:

       Ever since the very first version of the various McCain-
     Feingold campaign finance bills was introduced in the Senate, 
     the ACLU has gone on record to assert that each version was 
     fatally and fundamentally flawed when measured against 
     settled First Amendment principles. Now the Senate is 
     debating a new ``revised'' incarnation of the bill. While we 
     are pleased that the sponsors of the new version have 
     abandoned some of the more egregious provisions that appeared 
     in earlier versions, the ``pared down'' bill still cuts to 
     the core of the First Amendment. We once again urge you to 
     reject McCain-Feingold's unconstitutional and unprecedented 
     assaults on freedom of speech and association.
       Although the bill has a number of constitutional flaws, 
     this letter focuses on those

[[Page S10344]]

     that impose restrictions primarily on issue advocacy. It is 
     important to note at the outset that the recent letter from 
     126 law professors, commenting on McCain-Feingold, was silent 
     on the issue advocacy restrictions in the bill, which are the 
     subject of this letter.
       1. The unprecedented restrictions on issue advocacy 
     contained in the McCain-Feingold bill are flatly 
     unconstitutional under settled First Amendment doctrine.

  Last week there was a lot of discussion of a law professor named Burt 
Neumann at the Brennan Center of New York. I believe it is interesting 
that everyone believes Brennan wrote the Buckley case, one of the 
ironies of this debate. Mr. Neumann for 24 years had said the Buckley 
decision was wrong. And he is free to say that. He wishes it were 
otherwise. But his position and the position of the man he presumably 
admires the most, William Brennan, not only prevailed in the Buckley 
case but has been further elaborated on in 21 years of litigation. 
Thus, the ACLU says under settled first amendment doctrine:

       What we are talking about here is not the law as some wish 
     it were but the law as it is. And that is what the ACLU is 
     referring to.

  Further, in another place in the letter, Mr. President, they say:

       The unprecedented and sweeping restraints on the ``soft 
     money'' funding of issue advocacy and political activity by 
     political parties raise severe first amendment problems.

  At another point in the letter, the ACLU says, ``The same principles 
that protect unrestrained issue advocacy by issue groups safeguard 
issue advocacy and activity by political parties.''
  So, if issue advocacy has been well laid out by 21 years of court 
cases for groups, the same thing applies for political parties.
  By the way, Mr. President, this letter was signed by Ira Glasser, 
executive director; Laura Murphy, director, Washington office; Joel 
Gora, professor of law at Brooklyn Law School.
  I might just say a word about Joel Gora. He was cocounsel in the 
Buckley case. So my side in this argument is that they didn't have to 
go out and find somebody to certify that they wish the law were what it 
isn't. These folks know what the law is, were involved in litigating 
these cases, and are simply certifying as to their opinion based upon 
deep experience in this field as to the constitutionality of the 
measure before us.
  So, here is what they say at the end of the letter.
       Accordingly, we submit that McCain-Feingold's sweeping 
     controls on the amount and source of soft money contributions 
     to political parties and disclosure of soft money 
     disbursements by other organizations continue to raise severe 
     constitutional problems. Disclosure, rather than limitation, 
     of large soft money contributions to political parties, is 
     the more appropriate and less restrictive alternative.
       McCain-Feingold's labyrinth of restrictions on party 
     funding and political activity can have no other effect but 
     to deter and discourage precisely the kind of political party 
     activity that the First Amendment was designed to protect.
       . . . While reasonable people may disagree about the proper 
     approaches to campaign finance reform, this bill's restraints 
     on political party funding and issue advocacy raise profound 
     First Amendment problems and should be opposed. The bill has 
     a number of other severe flaws, some old, some new, which we 
     will address in a future communication. But we wanted to take 
     the opportunity to share our assessment of two of the most 
     salient problems with the bill now.

  So, Mr. President, there it is from America's experts on the first 
amendment, one of whom was one of the lawyers in the Buckley case. 
These are people who are experts on this kind of litigation, and that 
is their opinion about the constitutionality of McCain-Feingold, as 
revised.
  Now, Mr. President, a September 25, 1997, letter from the Christian 
Coalition. It says:

       Dear Senator: The Christian Coalition has long supported 
     campaign finance reform that encourages citizen participation 
     and nonpartisan voter education. Any reform of our system of 
     campaign financing should allow for educational tools such as 
     nonpartisan voter guides, issue advertising, congressional 
     scorecards and newsletters. Christian Coalition vigorously 
     opposes the McCain-Feingold legislation which 
     unconstitutionally restricts these types of issue advocacy.

  I will just read one other sentence, Mr. President, from this 
particular letter. This organization says:

       Voter education should be encouraged, not discouraged. An 
     informed electorate is part of the solution, not part of the 
     problem.

  I could not agree more.
  I ask unanimous consent that that letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              Christian Coalition,


                                          Capitol Hill Office,

                               Washington, DC, September 25, 1997.

 Support First Amendment--Free Speech Oppose McCain-Feingold Campaign 
                              Finance Bill

       Dear Senator: The Christian Coalition has long supported 
     campaign finance reform that encourages citizen participation 
     and non-partisan voter education. Any reform of our system of 
     campaign finance should allow for educational tools such as 
     non-partisan voter guides, issue advertising, congressional 
     scorecards, and newsletters. Christian Coalition vigorously 
     opposes the McCain-Feingold legislation which 
     unconstitutionally restricts these types of issue advocacy.
       Issue advocacy is constitutionally protected free speech. 
     Expressing opinions on issues and informing voters where 
     candidates stand on the issues are constitutionally protected 
     free speech, so long as the election or defeat of a candidate 
     is not ``expressly advocated.'' For over 20 years, the 
     Supreme Court has repeatedly ruled that the test must be 
     objective, not subjective. ``Express advocacy'' is defined by 
     using such words as, ``vote against,'' and ``oppose.'' The 
     McCain-Feingold bill imposes an unconstitutional subjective 
     test.
       Voter education should be encouraged, not discouraged. An 
     informed electorate is part of the solution, not part of the 
     problem. Without voter education efforts, our supporters 
     would be forced to rely entirely on slick political 
     advertising and the news media. In fact, newspapers and other 
     media outlets express opinions and even expressly advocate 
     the election or defeat of candidates through editorials. 
     While the media is totally unregulated, as it should be under 
     the First Amendment, some want to prohibit and heavily 
     regulate issue organizations from exercising similar free 
     speech.
       Restrictive speech provisions will not withstand 
     constitutional challenge. Therefore we oppose any proposals 
     which attempt to bring constitutionally protected issue 
     advocacy under the regulatory control of the federal 
     government. Thank you for considering our views.
           Sincerely,
                                                 Heidi H. Stirrup,
                                   Director, Government Relations.

  (Mr. GORTON assumed the chair.)
  Mr. McCONNELL. Mr. President, I will read just a few of the 
highlights from the cover letter. This is dated October 3, 1997.

       Dear Senator McConnell: Thank you for requesting our 
     comments on the revised McCain-Feingold campaign finance 
     bill. . . .
       Much of what the Cato Institute and similar nonprofit 
     research and public policy corporations do could no longer be 
     done or, done only if we are comfortable having research 
     publications, public policy forums, city seminars, 
     conferences and the like classified as ``contributions.'' In 
     this bizarre scenario, these ``contributions'' would have to 
     be paid for out of our ``PAC'' (which, of course, we would 
     never have), and, probably, could not be done at all since 
     much of the ``anything of value'' we produce often costs more 
     than the $5,000 limit on contributions.
       Here is a group, Mr. President, not in politics. They do 
     not go out and create a PAC, they do not do voter guides, and 
     they think that the most recent version of McCain-Feingold is 
     going to make it hard for them to function.

  The Cato Institute goes on:

       For example, if we published a study on the flat tax, or 
     tax reform and ever discussed the issue with Representative 
     Dick Armey--or, heaven forbid, held a policy forum or city 
     seminar with Dick Armey, Steve Forbes, Reps' Paxon, Tauzin, 
     Archer, or any of the other leading proponents of tax 
     reform--under the new McCain-Feingold, these could become 
     contributions.
       I guess the good news is, as Bob Levy says, that ``the 
     September 29 version of McCain-Feingold reduces the first 
     amendment to scrap''--so blatantly unconstitutional that it 
     will never become law. As Bob also says, ``McCain-Feingold is 
     an insidious and destructive piece of legislation. It 
     deserves an ignominious burial. To be blunt, either it dies, 
     or we do.''

  Mr. President, I ask unanimous consent that the communication from 
the Cato Institute be printed in the Record, along with another letter 
from the National Taxpayers Union.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                         Cato,

                                  Washington, DC, October 3, 1997.
     Hon. Mitch McConnell,
     U.S. Senate,
     Washington, DC.
       Dear Senator McConnell: Thank you for requesting our 
     comments on the revised McCain-Feingold campaign finance 
     bill. A copy of Bob Levy's detailed analysis is attached (Bob 
     is a senior fellow in constitutional studies here at Cato.) I 
     think you will find the first two and closing paragraphs 
     succinct and to the point.

[[Page S10345]]

       In summary, much of what the Cato Institute and similar 
     non-profit research and public policy corporations do, could 
     no longer be done or, done only if we are comfortable having 
     research publications, public policy forums, city seminars, 
     conferences and the like classified as ``contributions.'' In 
     this bizarre scenario, these ``contributions'' would have to 
     be paid for out of our ``PAC'' (which of course, we would 
     never have), and, probably, could not be done at all since 
     much of the ``anything of value'' we produce often costs more 
     than the $5,000 limit on contributions. And, of course, if 
     you know anything at all about the Cato Institute and our 
     president, Ed Crane, the last thing we would ever do is allow 
     ourselves to be in a situation that could be interpreted as 
     making contributions to political candidates.
       For example, if we published a study on the flat tax, or 
     tax reform and ever discussed the issue with Rep. Dick 
     Armey--or, heaven forbid, held a policy forum or city seminar 
     with Dick Armey, Steve Forbes, Reps. Paxon, Tauzin, Archer, 
     or any of the other leading proponents of tax reform--under 
     the new McCain-Feingold, these could become 
     ``contributions.''
       I guess the good news is, as Bob Levy says, that ``the 
     September 29 version of McCain-Feingold reduces the First 
     Amendment to scrap''--so blatantly unconstitutional that it 
     will never become law. As Bob also says, ``McCain-Feingold is 
     an insidious and destructive piece of legislation. It 
     deserves an ignominious burial. To be blunt, either it dies, 
     or we do.''
       We hope the above and attached is helpful.
           Sincerely,
     Peggy J. Ellis.
                                                                    ____

       Attachment.


                                     National Taxpayers Union,

                                  Alexandria, VA, October 6, 1997.
     Attention: Campaign Finance Reform Aide.

       Dear Senator: When you took your oath of office you said:
       I, (name), do solemnly swear (or affirm) that I will 
     support and defend the Constitution of the United States 
     against all enemies, foreign and domestic; that I will bear 
     true faith and allegiance to the same; that I take this 
     obligation freely, without any mental reservation or purpose 
     of evasion; and that I well and faithfully discharge the 
     duties of the office on which I am about to enter: So help me 
     God (5 U.S.C. 3331.)
       S. 25, the campaign finance bill by Senators McCain and 
     Feingold, is blatantly unconstitutional under the First 
     Amendment, which says in part that ``Congress shall make no 
     law-.-.-.-abridging the freedom of speech, or of the press; 
     or the right to the people peaceably to assemble, and to 
     petition the Government for a redress of grievances.'' You 
     cannot ``support the Constitution'' by trying the patience of 
     the Courts. Therefore, we believe that every Senator has a 
     constitutional obligation to vote against passage of this 
     bill.
       The restrictions are so absurd that, if the bill were law, 
     it would be illegal for any organization to energetically 
     lobby for or against any legislation within 60 days of any 
     election unless it excluded the names of their lawmakers. So 
     for at least four months of every other year, groups could 
     not pay for ``any paid advertisement that is broadcast by a 
     radio broadcast station or television broadcast station'' if 
     they identified the name of a local lawmaker. If the Congress 
     wants such silly rules, then it should also arrange to be out 
     of session during these 60-day periods, and require that all 
     state congressional primaries he held on the same day.
       The bill also proposes to ban, year-round, so-called 
     express advocacy while going far beyond the Supreme Court's 
     definition of express advocacy. The definitions are so vague 
     that candidates could complain to the Federal Election 
     Commission that many criticisms of their views constitute 
     ``illegal'' activity. Since there would be no cost to 
     complain, complain they will.
       The sponsors of this legislation may claim it would have no 
     cost to taxpayers. We strongly disagree. Since the proposal 
     is so vague and so far-reaching in its application and 
     attempt to regulate speech and political activity, it would 
     take an enormous and costly expansion of the FEC to 
     administer our newly regulated ``free-speech'' rights. 
     Therefore, we will count a vote against this bill as a pro-
     taxpayer vote in our annual Rating of Congress.
       One final note. As a taxpayer organization, we know a thing 
     or two about complex and vague laws such as our tax code. But 
     if this bill becomes law, many of our tax laws will be a 
     model of clarity compared to the election law. And the tax 
     laws will have one advantage. Audits are not set in motion by 
     the frivolous complaints that would be the rule under this 
     legislation.
           Sincerely,
                                                    David Keating,
                                         Executive Vice President.

  Mr. McCONNELL. Preferring substance to petitions, I have a couple of 
constitutional analyses to have printed in the Record. I understand 
from the Government Printing Office that it will cost approximately 
$12,000 to print this material in the Record.
  The first is an outstanding dissertation on the constitutional 
implications of campaign finance reform by law professor and renowned 
legal scholar Lillian R. BeVier of the University of Virginia, and 
again I will just read some of the highlights for the information of 
those listening to the debate.
  Professor BeVier appeared before the Rules Committee on several 
occasions. Her report of September 4, 1997, says:

       The shortcomings of current ``reform'' proposals are no 
     small matter, given the First Amendment's crucial historical 
     role in protecting our right to self-government and its 
     sustaining liberty. For the proposals to pass constitutional 
     muster, the First Amendment would have to be itself 
     ``amended'' by judicial fiat.

  And that, Mr. President, sums up I think quite well what Professor 
BeVier goes on to point out in some greater detail and I ask unanimous 
consent that that dissertation be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Campaign Finance ``Reform'' Proposals--A First Amendment Analysis

                         (By Lillian R. BeVier)


                           executive summary

       In the wake of recent reports of questionable campaign 
     finance practices have come ever more draconian proposals to 
     ``reform'' the campaign finance system. Those proposals pose 
     a disturbing threat to the individual political freedom 
     guaranteed by the Constitution. Under current precedents, 
     none of them could survive a First Amendment challenge.
       In Buckley v. Valeo (1976), the Supreme Court affirmed that 
     giving money to and spending money on political campaigns is 
     a core First Amendment activity. Accordingly, regulations of 
     political contributions and expenditures will not be 
     sustained unless justified by a compelling state interest and 
     crafted to achieve their objective by the least restrictive 
     means.
       Current proposals to regulate campaign finance practices 
     cannot survive the kind of scrutiny that the First Amendment 
     requires. This study demonstrates that the ban on political 
     action committees, the PAC ban fallback provisions, the 
     ``voluntary'' spending limits, the restrictions on soft 
     money, the regulation of issue advocacy, and the proposals to 
     expand the enforcement powers for the Federal Election 
     Commission all substantially infringe on core First Amendment 
     freedoms, but none serves a compelling interest with the 
     least restrictive means. And the proposal that broadcasters 
     be required to provide free TV time to federal candidates is 
     constitutionally insupportable.
       The shortcomings of current ``reform'' proposals are no 
     small matter, given the First Amendment's crucial historical 
     role in protecting our right to self-government and in 
     sustaining liberty. For the proposals to pass constitutional 
     muster, the First Amendment would have to be itself 
     ``amended'' by judicial fiat.


                              introduction

       Since the 1996 elections, campaign finance practices have 
     dominated the news. Reports of unpalatable fundraising 
     strategies, such as renting out the Lincoln bedroom to major 
     donors and using White House telephones to solicit 
     contributions, have appeared with distressing frequency on 
     the nightly news. The media tend to portray those actions not 
     as straightforward individual ethical or legal lapses but as 
     self-evidently symptomatic of the need for stringent new 
     campaign finance ``reforms.'' President Clinton, who claims 
     to have played by the rules in his reelection campaign, also 
     claims to strongly favor ``reform.'' Recently, for example, 
     in a ``stop-me-before-I-kill-again'' move, he petitioned the 
     Federal Election Commission to ban political parties from 
     accepting the ``soft-money'' contributions that provided so 
     much of the fuel for the 1996 presidential contest.
       A chorus of those who advocate increased regulation of the 
     political process is always available to chant the reform 
     mantras, and the mainstream press appears credulously willing 
     to broadcast them: ``Well-heeled [unequivocally self-serving 
     and never public-regarding] special interests'' dominate the 
     political process; challengers and incumbents alike, consumed 
     by the need to raise money for their campaigns, spend ``most 
     of their time . . . scrounging for funds.'' \1\ A Washington 
     Post headline declared, ``The System Has Cracked under the 
     Weight of Cash.'' \2\ ``[F]renized fund-raising and 
     freewheeling spending . . . [of] torrents of cash'' now rule 
     the day, and election contests are conducted principally via 
     expensive ad campaigns that saturate the airwaves.\3\ Money--
     dollars contributed to candidates, given to political 
     parties, and spent on election campaigns--undermines the 
     integrity of and ``defeat[s] the democratic process'' \4\--or 
     so it is said.
       Despite the overheated rhetoric of dysfunctionality and 
     doom, the debate about the nature of the changes that ought 
     to be made in the present system of campaign finance 
     regulations is often framed as though short-term political 
     advantage were the only thing at stake.\5\ Republicans, it is 
     said, are against restricting campaign contributions and 
     expenditures--but only because they are richer and better at 
     raising money. Democrats, on the other hand, favor 
     restrictions--but only because they wish to counter the 
     perceived Republican money-raising advantage. Because 
     Republicans control the present Congress, stringent new 
     giving and spending regulations are thought unlikely.

[[Page S10346]]

     And finally, it is said that because the incumbents of both 
     parties are ``beneficiaries'' of the present system, 
     political reality suggests that those incumbents are unlikely 
     to change the system in any way that might threaten their 
     reelection.
       For all the rhetoric, however, the debate over campaign 
     finance regulation raises issues that genuinely transcend the 
     short run, issues of fundamental and permanent significance 
     that cry out to be acknowledged. Indeed, though they come to 
     us in the benign guise of ``reform,'' many of the campaign 
     finance regulations that have recently been proposed would 
     require us to renege on a central premise of our 
     representative democracy--the individual political freedom 
     our Constitution guarantees.
       This study will examine the constitutionality of current 
     campaign finance regulatory proposals. It will also strive to 
     bring the stakes in the campaign finance debate into the 
     sharpest possible focus--to provide a full accounting of 
     regulation's cost to political freedom so that, if they find 
     themselves tempted to adopt a short-term fix to the campaign 
     finance ``mess,'' legislators will not fatally underestimate 
     the price.


                         the regulatory agenda

       On the agenda of today's proponents of reform are a number 
     of specific, often shifting legislative proposals. Rather 
     than treat each of those proposals in detail, I will proceed 
     in more generic terms, focusing on the broad outlines of the 
     most frequently recurring--and thus most prominent--
     individual suggestions for ``reform.'' I will consider the 
     following proposals:
       The PAC ban: Eliminate political action committees (PACs) 
     from federal election activities by banning all expenditures 
     by and contributions to them for purposes of influencing 
     elections for federal office, broadly defined, except those 
     contributions and expenditures made by political parties and 
     their candidates.
       The PAC ban fallback: If the complete ban if found 
     unconstitutional, lower the permissible amount of PAC 
     contributions to single candidates from the present $5,000 to 
     $1,000 and prohibit any candidate from receiving any PAC 
     contribution that would raise that candidate's PAC receipts 
     above a given percentage (say, 20 percent) of applicable 
     expenditure ceilings; ban the ``bundling'' of individual 
     contributions; ban the receipt by a candidate of PAC monies 
     that exceed 20 percent of the particular election's campaign 
     expenditure ceilings; redefine independent expenditures so as 
     to turn more activities into ``coordinated'' expenditures 
     (thus subjecting them to the contribution limitations); and 
     broaden the definition of ``express advocacy'' so as 
     essentially to prohibit generic partisan communications of 
     any kind (by defining express advocacy to include any 
     ``expression of support for or opposition to a specific 
     candidate, to a specific group of candidates, or to 
     candidates of a particular political party'' and to include 
     suggestions ``to take action with respect to an election * * 
     * or to refrain from taking action'').
       Spending limits and communication discounts: Impose 
     ``voluntary'' spending limits for candidates in House and 
     Senate races and prohibit spending of personal funds in 
     excess of 10 percent of that limit; provide to candidates who 
     agree to be bound by the limits certain amounts of free 
     television time, plus the right to purchase additional time 
     at reduced rates, and give them a reduced rate for mailing to 
     state voters; limit their receipt of out-of-state 
     contributions by requiring them to receive 60 percent of the 
     contributions to their campaign from individuals in their own 
     states or districts; and prohibit candidates who do not agree 
     to be bound by the spending limits from receiving PAC 
     contributions, require them to pay full rates for 
     broadcasting and postage, raise the limits on contributions 
     to their opponents from $1,000 to $2,000, and raise the 
     expenditure limits of their opponents by 20 percent.
       Restrictions on soft money: Bar federal officeholders, 
     candidates, and national political parties from accepting 
     unregulated contributions; subject all election-year 
     expenditures and disbursements by political parties, 
     including state and local parties that ``might affect the 
     outcome of a federal election''--including those for voter 
     registration, get-out-the-vote drives, generic campaign 
     activities, and any communication that identifies a federal 
     candidate--to the full panoply of Federal Election Campaign 
     Act (FECA) restrictions and compliance and regulatory rules.
       Controls on ``issue advocacy'': Regulate communications 
     that do not contain words of ``express advocacy'' as defined 
     by the Supreme Court in Buckley v. Valeo (i.e., 
     communications that do not ``in express terms advocate the 
     election or defeat of a clearly defined candidate for federal 
     office'').\6\ Define ``issue advocacy'' to include a broader 
     range of communications than does ``express advocacy''; 
     regulate it by subjecting groups funding issue advocacy 
     communications to FECA disclosure requirements and 
     controlling the content of issue advocacy communications 
     by requiring disclosure of funding sources and disclaimers 
     of candidate advocacy.
       Free TV: In exchange for, and as a ``public service'' 
     condition of, the allocation to them of spectrum space, 
     require broadcasters to provide substantial amounts of free 
     air time to all candidates for federal office. Require 
     candidates to appear in person in the free time provided to 
     them and to speak for themselves.
       Expand Federal Election Commission enforcement powers: 
     Grant broad new enforcement powers to the Federal Election 
     Commission, including the right to go to court to seek an 
     injunction against potential offenders on the ground that 
     there is a substantial likelihood that a violation is about 
     to occur.


              first amendment analysis: general principles

                         The Buckley Framework

       To be constitutional, the proposals outlined above must not 
     violate principles of political freedom and free political 
     speech as protected under the First Amendment. The 
     cornerstone of the Supreme Court's First Amendment 
     jurisprudence in this area is Buckley. In that case the Court 
     decided several challenges to the FECA amendments of 1974.\7\ 
     FECA was at that time Congress's most ambitious effort at 
     election campaign reform. According to its defenders, the act 
     was designed to equalize access to and purify the political 
     process by ridding it of corruption and the appearance of 
     corruption. Among other things, the plaintiffs in Buckley 
     challenged the act's stringent limitations on the amounts of 
     money individuals could contribute to and spend on campaigns 
     for federal office and the act's provisions for public 
     funding of presidential candidates who agreed to abide by 
     spending limits during their campaigns. The Court sustained 
     the provisions for public funding of presidential campaigns 
     and the contribution limitations. It invalidated the 
     expenditure limitations.
       In resolving the Buckley challenges, the Court correctly 
     took as its central premises that ``a major purpose of [the 
     First] Amendment was to protect the free discussion of 
     governmental affairs'' and that contribution and expenditure 
     limitations ``operate in an area of the most fundamental 
     First Amendment activities.'' \8\ Pursuant to conventional 
     canons of First Amendment review, that meant that 
     contributions and expenditure limitations would be subject to 
     ``strict scrutiny'' by the Court and would not survive unless 
     they were found to serve a ``compelling state interest'' 
     using the ``least restrictive means.'' Due to differences it 
     perceived in the relative magnitudes of the First Amendment 
     interests, the Court distinguished between limits on 
     contributions of money to politicians or their campaigns and 
     limits on campaign expenditures by citizens and candidates. A 
     contribution limit, said the Court, ``entails only a marginal 
     restriction upon the contributor's ability to engage in free 
     communication,'' \9\ because ``the transformation of 
     contributions into political debate involves speech by 
     someone other than the contributor.'' \10\ Hence, such limits 
     could presumably be evaluated using a slightly more lenient 
     standard of review.\11\ Limits on expenditures, on the other 
     hand, ``represent substantial rather than merely theoretical 
     restraints on the quantity and diversity of political 
     speech.'' \12\
       Thus, whereas the Court strongly suggested that limitations 
     on expenditures may well run afoul of the First Amendment 
     regardless of the context or the purported justification for 
     their imposition, it held that limitations on contributions 
     are constitutional if their purpose is the compelling one of 
     preventing corruption (i.e., ``the attempt to secure a 
     political quid pro quo from current and potential 
     officeholders'') \13\ or the appearance of corruption. Of 
     particular importance to today's debate, the Court rejected 
     equalization of political power as even a permissible, much 
     less a compelling, justification for restrictions on either 
     contributions or spending, observing that ``the concept that 
     government may restrict the speech of some elements in our 
     society in order to enhance the relative voice of others is 
     wholly foreign to the First Amendment.'' \14\
       Buckley has proven remarkably robust and has provided the 
     doctrinal framework for all seven of the major campaign 
     finance cases that the Court has since decided. In each of 
     those cases (briefly summarized in the Appendix), the Court 
     has remained committed to Buckley's major conclusions. That 
     is not to say that the Buckley framework has gone 
     unchallenged within the Court itself.\15\ Still, taken as a 
     whole, Buckley and its progeny stand foursquare for the 
     following doctrinal generalizations. Because they represent 
     governmentally imposed constraints on political activity,
       Restrictions on political contributions and expenditures 
     infringe on rights of speech and association. Therefore, the 
     Court will strictly scrutinize such restrictions, even 
     when they are directed at corporations instead of at 
     individuals or groups.
       Limits on independent expenditures by individuals and 
     political groups are likely to be unconstitutional regardless 
     of the context or the purported justification.
       Preventing corruption or the appearance of corruption 
     remains the ``single narrow exception to the rule that limits 
     on political activity'' are contrary to the First 
     Amendment.\16\
       Since a ballot measure offers no opportunity to corrupt 
     elected officials with either contributions or expenditures, 
     the First Amendment probably prohibits restrictions on both 
     contributions and expenditures in the context of ballot-
     measure elections: both kinds of restrictions infringe on 
     First Amendment rights without countervailing benefit since 
     ``there is no significant state or public interest in 
     curtailing debate and discussion of a ballot measure.'' \17\
       Equalization of political influence is not a permissible 
     justification for restrictions. The Court has never wavered 
     in its view that government may not restrict the speech of 
     some to enhance the relative voice of others.

[[Page S10347]]

                      Applying Buckley: In General

       How do the campaign finance regulations that are presently 
     being debated fare when subjected to analysis in light of the 
     Buckley framework and the First Amendment foundation upon 
     which it rests? The first step in the calculus of 
     constitutionality is to determine the extent to which each 
     proposal infringes on established First Amendment rights. 
     That step is doctrinally uncontroversial, its analytical path 
     clearly marked, for Buckley and its progeny unequivocally 
     establish that regulations of campaign contributions and 
     expenditures operate upon fundamental First Amendment rights 
     to free speech and free association.
       Cynically claiming that that central premise of Buckley 
     represents nothing more than capitulation to the idea that 
     ``money talks,'' advocates of regulation mock and demean the 
     premise. In doing so, they miss the point entirely. Buckley 
     was not written on a blank First Amendment slate. Rather, it 
     was firmly grounded upon, and thus was the natural outgrowth 
     of, a long line of cases that affirmed that the core 
     principles of the First Amendment protected citizens' right 
     to speak, to publish, and to associate for political causes, 
     free from government interference or control. Contributing to 
     and spending money on political campaigns--whether to 
     advocate the election of particular candidates or to take 
     positions with respect to particular issues--was protected in 
     Buckley not because money talks but because the central 
     purpose of the First Amendment is to guarantee political 
     freedom. The amendment ensures that individual citizens may 
     exercise that freedom by speaking, discussing, publishing, 
     advocating, and persuading and that they may enhance their 
     individual voices by joining together in groups, 
     organizations, associations, and societies. The specific 
     rights of citizens to contribute to and spend money on 
     political campaigns are merely necessary corollaries of their 
     more general rights to speak freely and to associate with one 
     another to advocate causes in which they believe.
       Having established that regulations of campaign 
     contributions and expenditures impinge on fundamental First 
     Amendment rights, the Court will then apply ``strict 
     scrutiny'' and sustain the regulations only if it finds that 
     they serve a compelling government interest and use the least 
     restrictive means to do so. The analytical task implicit in 
     those second and third steps in the constitutional calculus 
     is the identification and evaluation of the government 
     interests that supposedly support regulation and the 
     appraisal of the means deployed to serve those interests.
       Performing that task is not as easy as its doctrinal 
     formulation suggests. Although the Court has clearly 
     commanded that strict scrutiny is required, it has not always 
     adhered to the implications of that command by engaging in 
     rigorous examination of both proffered ends and the means 
     chosen to achieve them. In fact, the Court has occasionally 
     been highly deferential and credulous in its assessments of 
     ends and means, making prediction in the present case an 
     uncertain undertaking. Still, if the integrity of First 
     Amendment principles is to be preserved, it is critically 
     important that both legislators and judges take great care 
     that rhetoric and assertion not substitute for the careful 
     analysis that truly strict scrutiny requires. For that 
     reason, the analysis that follows will attempt not merely to 
     summarize but to examine skeptically the arguments and the 
     rhetorical strategies of the advocates of regulation.

                  Applying Buckley: Specific Proposals

       The PAC Ban
       In Buckley, the Supreme Court held that the only legitimate 
     and compelling government interest in restricting campaign 
     contributions and expenditures is to prevent corruption or 
     the appearance of corruption. And the Court defined 
     corruption precisely and narrowly as entailing a financial 
     quid pro quo: dollars for political favors.
       Despite that, advocates of the PAC ban offer justifications 
     unrelated to preventing corruption as the Court defined it in 
     Buckely. Instead, such justifications as they offer are 
     directed, in vague terms, at reforming ``an unresponsive 
     government and a political process that has grown 
     increasingly mean-spirited''--a view reformers seem to 
     believe is universally shared. Regarding contribution 
     prohibitions, reformers condemn unspecified ``elected 
     officials who listen more to big money and Washington 
     lobbyists than to their own constituents''; they decry the 
     ``influence-money culture'' and claim that ``our political 
     system is rigged to benefit campaign contributors and 
     incumbent officeholders at the great expense of citizens''; 
     and they see an ``inherent problem''--the nature of which 
     they do not define--``with a system in which individuals and 
     groups with an interest in government decisions can give 
     substantial sums of money to elected officials who have the 
     power to make those decisions.''\18\ At bottom, the 
     justification they offer seems to be that special-interest 
     PAC contributions are a dominant force in the financing of 
     federal election campaigns, that members of Congress are 
     dependent on them and influenced by them, that the giving of 
     PAC money is linked to the particular PAC's legislative 
     agenda, and that PAC money goes overwhelmingly to incumbents. 
     Thus, they justify the PAC expenditure ban not with reference 
     to preventing corruption but on the ground that it is a 
     loophole-closing measure: if independent PAC expenditures 
     continue to be permitted for ``purposes of influencing any 
     election for Federal office,'' they will undermine the 
     ability of the contribution prohibitions to achieve their 
     purpose of preventing PACs from wielding influence.
       Buckley and its progeny signal quite clearly that those 
     ``justifications'' for the PAC contributions and expenditure 
     ban are neither legitimate nor compelling. The rhetorical 
     parade of horribles cited by the advocates of increased 
     regulation simply does not amount to corruption as the Court 
     has defined it; thus, curing the system of them is not 
     corruption prevention. Even if ridding the political system 
     of the influence of big money and Washington lobbyists were 
     somehow transformed into legitimate ends of government, a 
     total ban on PAC contributions could not survive, for it is 
     grossly over inclusive. Eliminating all political committee 
     activity is not narrowly tailored, nor is it the least 
     restrictive means of ridding the system of the influence of 
     the money culture.
       Unless the advocates of increased regulation truly intend 
     to denounce all political alliances--regardless of whether 
     they be ideological, issue driven, or public spirited--on the 
     ground that they are all, in the very nature of things, bound 
     to represent special interests, and unless they think that 
     all attempts by individuals to maximize their political 
     voices by joining together with others of like mind present 
     an inherent problem, it is impossible to imagine how they 
     could justify such a draconian measure as a total ban on PAC 
     giving and spending. Cutting the heart out of the freedom of 
     political speech and association, and conferring what would 
     amount to a permanent monopoly on political parties, is 
     neither necessary nor a narrowly tailored means for attaining 
     even the ill-defined--and probably illegitimate--goal of 
     eliminating the influence of big money and Washington 
     lobbyists.
       The PAC Ban Fallback. The fallback provision--which would 
     lower the permissible amount of PAC contributions from $5,000 
     to $1,000 per election and would go into effect if or, more 
     accurately, when the total ban on PAC contributions was 
     declared unconstitutional--allegedly serves the same interest 
     as the total ban. Since it aims to reduce rather than 
     prohibit permissible contributions, the fallback provision 
     might appear on its face to be less problematic than the 
     total ban. That appearance is deceptive. Although the Court 
     stated in Buckley that contribution limits are easier to 
     defend than expenditure limits, it held that strict scrutiny 
     was appropriate for both. Thus, the contribution limits of 
     the fallback provision must run the same strict scrutiny 
     gauntlet, and their chances of surviving are slim to none.
       First, note again that the advocates have not claimed 
     during the course of recent debates that the interest being 
     served by reducing the contribution limit from $5,000 to 
     $1,000 is that of preventing corruption in the Buckley sense. 
     It seems quite implausible to assert that any politician 
     would be corrupted--or even appear to be corrupted--in the 
     quid pro quo sense by a single contribution of even $5,000. 
     Instead, the interest that the contribution reduction would 
     serve is, again, the diffuse one of ending the ``dominance'' 
     and ``influence'' of PACs. Thus, the problem the fallback 
     limitation confronts at the outset is that, even if precisely 
     defined, it serves an interest that has never been held to 
     be either legitimate or compelling. And second, instead of 
     being narrowly tailored, the limitation appears quite ill-
     suited to serve the interest asserted for it. Indeed, it 
     is difficult to identify any interest that would be served 
     by making it so much more difficut than it presently is 
     for candidates to raise money: candidates will hardly be 
     less distracted by fundraising if they have to raise money 
     from even greater numbers of people because of the smaller 
     amounts that any one individual or PAC may contribute.
       Both the contribution ban and the fallback treat all PACs 
     alike, as though whatever cause they espouse and however 
     great (or limited) their resources, they all pose precisely 
     the same danger--and the same degree of danger--of 
     undermining the integrity of our political process. But given 
     the enormous range and diversity of interests that PACs 
     represent, treating them all alike makes little sense--and 
     certainly fails the narrowly tailored, least restrictive 
     means test. Moreover, it is important to note that even while 
     it was sustaining the particular contribution limits in 
     Buckley, the Court ``cautioned . . . that if the contribution 
     limits were too low, the limits could be unconstitutional.'' 
     \19\ Thus, contribution limits so low as significantly to 
     impair the regulated party's ability to exercise First 
     Amendment rights (as a $1,000 limit on PAC contributions 
     would surely do) or so unreasonably below an amount that 
     would give legitimate rise to a perception that the 
     contributor was acquiring ``undue influence'' (as the $1,000 
     limit would surely be) are constitutionally vulnerable.
       The only interest served by the fallback provision's ban on 
     the bundling of small individual contributions to PACs would 
     be that of preventing evasion of the contribution limitation. 
     The bundling ban, however, represents a different sort of 
     burden on First Amendment rights than does the 
     constitutionally doubtful contribution limitation, which it 
     supposedly serves as a backstop. For the bundling ban 
     directly burdens the associational rights of individual PAC 
     contributors. The Supreme Court recognizes that the right to 
     associate is a ``basic constitutional freedom'' \20\ and has 
     stated repeatedly that ``the practice of persons sharing

[[Page S10348]]

     common views banding together to achieve a common end is 
     deeply embedded in the American political process.'' \21\
       Advocates of the bundling ban claim that it is necessary to 
     forestall PACs' evading the contribution limitations. Thus, 
     whether the ban serves a compelling state interest will 
     depend upon whether the interest served by the contribution 
     limitations survives review and, if so, whether the ban is 
     narrowly tailored--whether the Court sanctions a one-size-
     fits-all prohibition. Since the contribution limitations are 
     unlikely to survive review, and since the one-size-fits-all 
     prohibition is a clumsy solution in any event, the bundling 
     ban is likely to be even more vulnerable than the 
     contribution limitation it serves.
       The fallback's prohibition of PAC contributions that raise 
     any candidate's PAC receipts above 20 percent of campaign 
     expenditure ceilings would also, to a large extent, stand or 
     fall with the contribution limitations themselves, since the 
     prohibition is defended in terms of its ability to strengthen 
     the contribution limitations. The First Amendment burden of 
     the 20-percent-of-expenditure limitation is more onerous than 
     first appears, however, for after the 20 percent limit is 
     reached the so-called limitation has the effect of a total 
     ban. How such a limit would serve a corruption-prevention 
     objective, moreover, is very difficult to discern. Corruption 
     arises when large contributions are exchanged for particular 
     political favors. If PAC contributions are not individually 
     large enough to create a risk of corruption or its 
     appearance, the fact that a candidate receives many of them--
     even were he to receive 100 percent of his campaign funding 
     from them--simply does not increase the risk that he will be 
     corrupted. Thus, the 20-percent-of-expenditure limitation not 
     only is not narrowly tailored to serve a compelling state 
     interest in preventing corruption or its appearance but also 
     is not tailored to serve any identifiable or legitimate 
     interest at all.
       Finally, the attempt to redefine ``independent 
     expenditure''--and, in particular, to redefine ``express 
     advocacy'' so as to include any and all partisan 
     communications--runs flatly counter to the Buckley Court's 
     explicit effort to immunize issue advocacy from regulation or 
     restriction: ``So long as persons or groups eschew 
     expenditures that in express terms advocate the election or 
     defeat of a clearly identified candidate, they are free to 
     spend as much as they want to promote the candidate and his 
     views.'' \22\

                     ``Voluntary'' Spending Limits

       The proposals for voluntary spending limits keyed to 
     relevant voting age populations are said to serve the 
     interest in curbing excessive and even obscene campaign 
     spending. Spending limits will hold down the costs of running 
     for office and thus prevent one candidate from having an 
     excessive advantage over another by reason of spending more. 
     The limits are also touted for their supposed ability to 
     redress the present imbalance in favor of incumbents (who 
     have a grossly unfair advantage in fundraising because 
     most PAC money goes to them).
       Mandatory spending limits confront an impenetrable 
     constitutional wall. The Supreme Court said in Buckley that 
     expenditure limits simply do not serve to prevent corruption 
     or the appearance of corruption in the electoral process, 
     which is the only justification that the Court has ever 
     accepted for limiting political expression. Indeed, the Court 
     went further. It explicitly denounced the other 
     justifications for spending limits that proponents had 
     offered in Buckley, namely equalizing speech resources and 
     stemming the rising cost of political campaigns. Because it 
     represents such an unequivocal endorsement of freedom from 
     government as the underlying conception of the First 
     Amendment, the Court's aversion to restricting the voices of 
     some in order to enhance the voices of others is worth 
     emphasizing. Moreover, because it represents such a clear and 
     definite rejection of the paternalism of those who think they 
     know how much is too much to spend on political campaigning, 
     it is worth quoting the Court's confirmation that ``the mere 
     growth in the cost of federal election campaigns in and of 
     itself provides no basis for governmental restrictions on the 
     quantity of campaign spending and the resulting limitation on 
     the scope of federal campaigns . . . In the free society 
     ordained by our Constitution it is not the government, but 
     the people--individually as citizens and candidates and 
     collectively as associations and political committees--who 
     must retain control over the quantity and range of debate on 
     public issues in a political campaign.'' \23\
       It is, of course, because mandatory spending limits are so 
     clearly unconstitutional that advocates of the proposed 
     spending limits insist that they be voluntary. The 
     transparent objective is to fit the limits into the safe 
     harbor that the Buckley Court provided when it qualified its 
     rejection of expenditure limitations by the following 
     footnote:
       ``Congress may engage in public funding of election 
     campaigns and may condition acceptance of public funds on an 
     agreement by the candidate to abide by specified expenditure 
     limitations. Just as a candidate may voluntarily limit the 
     size of the contributions he chooses to accept, he may decide 
     to forgo private fundraising and accept public funding.'' 
     \24\
       For a number of reasons, all reflecting the magnitude of 
     the benefits and burdens attached to accepting or not 
     accepting the limits, it is pure fiction to call them 
     voluntary. They simply do not fit the Buckley proviso. To be 
     specific, significant benefits are promised to those who 
     accept the voluntary limits: candidates become eligible for 
     free and reduced-rate television time \25\ and reduced 
     mailing rates while their opponents who do not accept the 
     voluntary limits receive neither free time nor reduced rates. 
     Moreover, candidates who agree to voluntary contribution 
     limits when their opponents do not get an added benefit--
     their contribution limits and expenditure ceilings are 
     raised. But burdens come with the benefits as well: 
     candidates who volunteer to comply with the spending limits 
     must demonstrate a threshold level of support (by raising 10 
     percent of the limit) before becoming eligible for the 
     benefits; they must agree to raise 60 percent of their funds 
     from individuals who reside in their own states or districts; 
     and they must agree to limit the use of their own resources. 
     In addition, they cannot use their free air time for 
     commercials of less than 30 seconds in length.
       When the Court in Buckley sustained the exchange of a 
     presidential candidate's right to make unlimited expenditures 
     in his own behalf for the right to receive public funding, it 
     did so because it concluded that the purpose of public 
     funding ``was not to abridge, restrict, or censor speech, but 
     rather to use public money to facilitate and enlarge public 
     discussion and participation in the electoral process.'' \26\ 
     The purpose of the current proposals to impose voluntary 
     spending limitations along with their accompanying burdens 
     and benefits, however, is quite different.
       In the first place, the limits are not imposed in exchange 
     for receipt of public funding and thus could not be defended 
     as necessary to protect the integrity of a government-funded 
     program. Second, the effect of the proposed expenditure 
     limitations--whether they are deemed voluntary or not--will 
     be to reduce substantially the quantity of campaign speech. 
     Indeed, that must be their purpose, since the restrictions 
     are explicitly motivated by the objective of reducing 
     excessive spending. As the Eighth Circuit Court of Appeals 
     recently noted when evaluating analogous provisions of state 
     campaign finance restrictions, one is ``hard-pressed to 
     discern how the interests of good government could possibly 
     be served by campaign expenditure laws that necessarily have 
     the effect of limiting the quantity of political speech in 
     which candidates for public office are allowed to engage.'' 
     \27\
       The spending limitations also do not serve the posited goal 
     of creating a level playing field between incumbents and 
     challengers because the limitations fail to dissipate the 
     already significant advantages of incumbency. Incumbents 
     begin every electoral race with important advantages; 
     equalizing the amount of money that incumbents and 
     challengers can spend would simply make permanent the 
     incumbent advantages that already exist. When the spending 
     limits are combined with the proposed new restrictions on 
     contributions and the increasingly complicated system of 
     fundraising for challengers, they appear narrowly tailored 
     not to level the playing field for challengers but instead to 
     transform a challenger's initial disadvantage into a 
     practically insurmountable barrier. That is the reason the 
     proposals are so susceptible to the charge of being 
     incumbent-protection measures.

                          Limits on Soft Money

       Advocates of increased regulation of campaign finance often 
     assert that soft money is the most dangerous and destructive 
     money in the political system today. Soft money is money 
     contributed by individuals, corporations, unions, and the 
     like to the national and state parties for party-building 
     activities, voter registration and get-out-the-vote drives, 
     and generic issue- (rather than candidate-) oriented 
     advertising. It is not subject to contribution limitations 
     imposed by FECA because it is not used to advocate expressly 
     the election of any clearly identified candidate. Reformers 
     want to ban soft money because they believe that even though 
     it does not go to support particular candidates it 
     nevertheless has the unseemly propensity to influence 
     elections. Thus, it invites wholesale evasion of the 
     contribution limits now in place.
       The reformers are right, of course: soft money does 
     influence elections. But the resort to soft-money 
     contributions is exactly what one would expect when people 
     are prohibited from giving more directly.
       Yet a ban on soft-money contributions would amount to an 
     unprecedented restriction on political activity, one whose 
     justification is not compelling and whose scope far exceeds 
     what the First Amendment allows. Advocates of a soft-money 
     ban defend it as a contribution-limitation-loophole-closing 
     device: corporations and unions that would not otherwise be 
     permitted to contribute to candidates' campaigns make large 
     soft-money donations to political parties; and individuals 
     often contribute soft money in excess of the amount they 
     would be entitled to contribute to particular candidates. 
     Such arguments assume, of course, that contribution 
     limitations represent an appropriate and inviolable ceiling 
     on the amount of money that individuals, corporations, and 
     unions should be allowed to contribute to the political 
     process whether or not the contribution funds speech that 
     creates a risk of quid pro quo corruption of particular 
     candidates. Thus, supporters of the ban make no pretense of 
     establishing a link between soft-money contributions and the 
     appearance or reality of candidate corruption that alone

[[Page S10349]]

     provides a constitutional predicate for regulation.\28\
       Calling the soft-money contribution ban a contribution-
     limit-loophole closure does not change the basic fact, 
     however: soft money does not fund speech that ``in express 
     terms advocate[s] the election or defeat of a clearly 
     identified candidate for federal office,'' which is the only 
     kind of speech for which the Court has held that 
     contributions may be constitutionally restricted.\29\ To 
     regulate contributions for speech that is other than express 
     advocacy of the election of particular candidates, the Court 
     said, would create intractable vagueness problems and cause 
     unacceptable chilling of protected, issue-oriented political 
     speech. It would, in other words, thwart speech debating the 
     merits of government policies and addressing the public 
     issues that are at stake in an election--the very kind of 
     speech that the First Amendment was written primarily to 
     protect. Thus, because a ban on soft money aims directly and 
     indiscriminately at core political activity, and because its 
     proponents have not made their case that soft-money 
     contributions pose a danger of quid pro quo corruption, the 
     ban could not pass muster as a finely tuned means of 
     achieving a compelling state interest.
       Also bearing on the First Amendment implications of a ban 
     on soft money is the Court's recent decision in Colorado 
     Republican Federal Campaign Committee v. FEC, which held 
     limits on independent expenditures by political parties--
     expenditures not coordinated with any candidate--to be 
     unconstitutional. The independent expression of a political 
     party's views, the Court affirmed, is core First Amendment 
     activity, and limits on it cannot be justified with reference 
     to a corruption-prevention rationale. Indeed, although the 
     majority of the Court did not reach or address the issue, 
     four justices expressed the further view that, given the 
     practical identity of interests between party and candidate 
     during an election, the corruption-prevention rationale for 
     sustaining limitations on contributions did not support any 
     limits on party spending, whether coordinated with the 
     candidate or not. Although present law makes coordinated 
     spending illegal, Justice Thomas pointedly questioned its 
     rationale: ``What could it mean for a party to `corrupt' 
     its candidate or to exercise `coercive' influence over 
     him?'' \30\ If the Court were to decide, when squarely 
     facing the issue, that party spending on political 
     activity cannot be limited, whether or not coordinated, 
     then contributions to the party to make those expenditures 
     would likewise seem to be protected from regulation. In 
     sum, from constitutional perspective, restrictions on soft 
     money are among the least defensible proposals for 
     campaign finance reform. Indeed, arguments purporting to 
     support such restrictions serve only to raise questions 
     about limits on direct contributions.

                             Issue Advocacy

       Insofar as they entail broadening the reach of campaign 
     speech regulation to include speech that does not ``in 
     express terms advocate the election or defeat of a clearly 
     identified candidate for federal office,'' proposals to 
     control issue advocacy are constitutionally inform for the 
     same reason that the soft-money ban is constitutionally 
     infirm: they would regulate--and thus unacceptably chill--
     core political speech about the merits of policies and the 
     proper resolution of public issues without a corruption-
     prevention rationale for doing so. Proponents of controls on 
     issue advocacy claim that controls are necessary to prevent 
     the acquisition of undue influence by advocates of particular 
     issues. There is, however, no constitutional warrant or means 
     for calibrating what constitutes ``undue'' influence, for the 
     Constitution does not permit, nor does it provide, a metric 
     for discerning how much influence is enough. We have no 
     constitutional Goldilocks to say when the amount of influence 
     possessed by advocates of particular positions is ``just 
     right.'' The inherent payoff for political participation in a 
     democracy is the acquisition of influence, and it is the 
     function of the First Amendment to protect efforts to acquire 
     it, not to limit or constrain them.\31\
       The constitutionality of proposals for regulation, insofar 
     as they require disclosure by groups engaging in issue 
     advocacy, is seriously jeopardized by McIntyre v. Ohio 
     Electrons Commission.\32\ In McIntyre, the Court had before 
     it an Ohio statute that prohibited the distribution of 
     anonymous campaign literature. Because the statute was a 
     regulation of core political speech, the Court subjected it 
     to strict scrutiny; and, because the statute did not serve a 
     compelling state interest using the least restrictive means, 
     the Court proceeded to strike it down. Unpersuaded that the 
     ban was justified by Ohio's asserted interests either in 
     preventing fraudulent and libelous statements or in providing 
     voters with relevant information, the Court also could find 
     no support for the statute in either First National Bank of 
     Boston v. Bellotti \33\ or in arguably relevant portions of 
     Buckley.
       In Bellotti, the Court invalidated a state law that 
     prohibited corporations from spending money on speech 
     designed to influence the outcome of referenda. In the course 
     of doing so, the Court commented in dicta on the possibility 
     that a requirement that the sponsor of corporate advertising 
     be identified might be thought to be permissible on account 
     of its ``prophylactic effect.'' The McIntyre Court realized 
     that the context of the Bellotti statement--expenditures by 
     corporations--was not the same as the context of the Ohio 
     statute, which purported to regulate independent expenditures 
     by an individual. And whereas in Buckley the Court sustained 
     mandatory reporting of independent expenditures in excess of 
     a threshold level, the justices noted in McIntyre that the 
     independent expenditures to which the disclosure requirement 
     applied had been construed to mean only those expenditures 
     that expressly advocate the election or defeat of a clearly 
     identified candidate.\34\ Thus, in Buckley there was a 
     corruption-prevention rationale to support the expenditure-
     disclosure requirement. Such a rationale would lend only the 
     most tenuous possible support to required disclosures of 
     issue advocacy.
       McIntyre does not purport completely to foreclose 
     disclosure or reporting requirements with respect to 
     independent expenditures. It does, however, reaffirm the 
     Court's commitment to scrutinize strictly such requirements 
     in order to preserve the right to engage in issue advocacy 
     unencumbered by regulations that burden speech without 
     producing a reciprocal benefit in corruption prevention.

                                Free TV

       The proposals to require broadcasters to provide ``free'' 
     TV time to federal candidates do not come under the Buckley 
     rubric. Instead, insofar as they apply to broadcasters, their 
     constitutionality is a function of the unique First Amendment 
     jurisprudence that the Court has developed for the electronic 
     media. That jurisprudence had its beginnings in Red Lion 
     Broadcasting Co. v. FCC,\35\ in which the Court, pointing to 
     ``spectrum scarcity,'' upheld the Federal Communication 
     Commission's rule that those attacked editorially by the 
     broadcast media had a right of reply. Thus it denied the 
     broadcasters' First Amendment claim that such an obligation 
     impinged on their editorial freedom.
       It is clear beyond peradventure that Congress could not 
     constitutionally compel the print media to provide free space 
     to similarly situated political candidates.\36\ Red Lion 
     sanctioned a different set of First Amendment rules for the 
     broadcast media because the Court was persuaded that the 
     scarcity of broadcast spectrum warranted content 
     regulation of spectrum licensees' programming in the 
     interests of diversity and fairness.
       Many commentators questioned the rationality of the 
     spectrum scarcity argument even at the time Red Lion was 
     decided.\37\ Regardless of whether it provided a plausible 
     rationale at that time, however, spectrum scarcity has been 
     rendered obsolete by the advent of cable and other 
     technological advances. And courts, too, have increasingly 
     criticized the argument as a justification for government 
     control of the content of broadcast programming.\38\
       There is no longer a factual foundation for the argument 
     that spectrum scarcity entitles the government, in the public 
     interest, to control the content of broadcast speech. Without 
     the spectrum scarcity rationale to support it, the attempt to 
     control broadcasters' speech by requiring them to provide 
     free TV time to candidates for office would seem doomed to 
     constitutional failure. Even were the spectrum scarcity 
     rationale still viable, the Court has never held that Red 
     Lion sanctioned ``government regulations that impose 
     specifically defined affirmative programming requirements on 
     broadcasters.'' \39\ The Court has been suspicious of any 
     government action that ``requires the utterance of a 
     particular message favored by the Government,'' and it has 
     been alert to guard against the ``risk that Government seeks 
     not to advance a legitimate regulatory goal but to suppress 
     unpopular ideas or information or manipulate the public 
     debate through coercion rather than persuasion.'' \40\
       With respect to all speakers except the broadcast media, 
     and most certainly with respect to candidates for political 
     office, it goes almost without saying that any attempt by the 
     government to dictate the format or control the content of 
     speech is constitutionally suspect. In addition to commanding 
     broadcasters to donate time so that political candidates may 
     speak, the free TV proposals contemplate requiring candidates 
     themselves, and not any surrogates, to speak in the donated 
     time, thus dictating the format of their speech; and several 
     suggestions have been made that the candidates must not 
     engage in ``negative'' campaigning if they are to receive the 
     free time, thus controlling the content of their entire 
     speech. Those highly questionable aspects of the free TV 
     proposals cannot be defended on the ground that the 
     government, in pursuit of the public interest, is subsidizing 
     certain candidate speech--thus conditioning receipt of its 
     funds on the candidates' agreement to respect the contours of 
     the government program. Such was the rationale that underlay 
     the Court's holding in Rust v. Sullivan,\41\ where the 
     Department of Health and Human Services' ``gag rule'' 
     prohibited recipients of federal family planning funds from 
     providing abortion information. The Rust rationale could not 
     support the format and content controls envisaged by the free 
     TV proponents for the simple reason that the speech would be 
     subsidized not by the taxpayers but by the broadcasters.\42\
       In fact, what the free TV time proposals contemplate seems 
     to be a bold end-run around traditional and well-established 
     First Amendment principles. The broadcasters have no First 
     Amendment right to resist compliance, proponents say, because 
     spectrum scarcity permits the government to

[[Page S10350]]

     regulate their editorial judgments in the public interest. 
     And the candidates have no First Amendment right to resist 
     compliance with format or content controls because they are 
     being permitted to speak for free. As the analysis above has 
     demonstrated, the First Amendment stands as a more effective 
     defense of freedom than the proponents imagine, and the 
     Supreme Court would surely have little difficulty detecting 
     the constitutional shell game that the free TV proposals 
     epitomize.

        Expanded Federal Election Commission Enforcement Powers

       Many of the proposals for increased regulation of campaign 
     finance envision a hugely enlarged enforcement role for the 
     already overburdened and generally ineffectual Federal 
     Election Commission.\43\ The wisdom of imposing such a 
     monumental burden on any federal agency, much less on this 
     particular one, is questionable; but whether the enforcement 
     mechanisms that Congress devises for implementing particular 
     regulatory strategies are feasible or not does not usually 
     raise First Amendment issues.
       One enforcement proposal does raise such issues, however: 
     the proposal to give the FEC power to seek to enjoin 
     potential offenders on the ground that ``there is a 
     substantial likelihood that a violation is about to occur.'' 
     The proposal is vulnerable to two different First Amendment 
     challenges. The first involves vagueness. Many of the 
     proposed substantive violations are themselves vague, and the 
     ``substantial likelihood'' criterion for FEC action is also 
     vague. The threat of FEC action based on either vague element 
     of that ground would not only have an unacceptable chilling 
     effect on many activities that are not violations; more 
     significantly, it would also invite precisely the kind of 
     arbitrary exercise of government power that the vagueness 
     doctrine is designed to forestall.\44\
       The second First Amendment challenge to giving the FEC 
     power to enjoin campaign activity involves prior restraint on 
     speech. Prior restraints are the ``most serious and the least 
     tolerable infringement of First Amendment rights,'' \45\ and 
     they will not be sustained unless the Court is convinced that 
     ``the gravity of the evil, discounted by its probability, 
     justifies such invasion of free speech as is necessary to 
     avoid the danger.'' \46\ It seems unlikely that the Court 
     would hold that the mere possibility of violating campaign 
     finance regulations poses the kind of threat to the national 
     interest that would justify imposing prior restraints on 
     speech, especially since the kind of speech put at risk by 
     such an injunction--political speech during the course of an 
     election campaign--lies at the very core of the First 
     Amendment.


            the first amendment according to the regulators

       When one looks at Supreme Court precedents--in particular 
     at Buckley and its progeny--the First Amendment case against 
     current proposals for more stringent campaign finance 
     regulations appears impregnable. But, given the vehemence and 
     surety with which those proposals are advocated, perhaps it 
     is well to look more closely both at the precedents for 
     Buckley and related cases and at the conception of the First 
     Amendment the reformers embrace and how that conception 
     differs from the First Amendment that is presently embodied 
     not only in our democratic traditions but in our supreme law.
       An important question to ask is to what extent the 
     precedents--which stand as barriers to so-called reform 
     efforts--are rooted in traditions and ideas of freedom that 
     we wish to preserve. Buckley may be the cornerstone of the 
     Supreme Court's modern campaign finance jurisprudence, but it 
     is important to appreciate that it was not a novel, isolated 
     case. Rather, it was laid upon an already existing, solidly 
     constructed First Amendment foundation. Thus, to appreciate 
     its true significance, and understand what is at stake in the 
     present debate, it helps to see Buckley as sustaining a First 
     Amendment tradition that was already deeply embedded at the 
     time the case was decided. Buckley was one in a long and 
     continuing line of cases that have articulated and upheld, in 
     a wide variety of contexts, the principles of free political 
     speech and individual political freedom that lie at the very 
     heart of the First Amendment.
       The Constitution is the fundamental charter of our 
     representative democracy, the embodiment of our right to 
     self-government and of all our corollary liberties. The First 
     Amendment's specification that ``Congress shall make no law . 
     . . abridging freedom of speech or of the press; or of the 
     right of the people peaceably to assemble, and to petition 
     the Government for a redress of grievances'' plays a crucial 
     role in determining the character of our democracy. ``A major 
     purpose of [the] Amendment was to protect the free discussion 
     of governmental affairs.'' \47\ Accordingly, it guarantees 
     that individual citizens may speak, publish, and join 
     together in groups to engage in political activity to try to 
     achieve the substantive ends they deem desirable.\48\ They 
     may attempt to persuade others and to acquire political 
     influence, and the government may not interfere with, punish, 
     repress, or otherwise impede their efforts.\49\
       That conception of the First Amendment is fleshed out in 
     Supreme Court opinions that both pre- and post-date Buckley. 
     Those opinions make it clear that implicit in the First 
     Amendment guarantee of freedom from government control over 
     what citizens may say and with whom they may associate as 
     participants in the political process is the important 
     corollary that citizens may freely contribute or expend the 
     resources at their command--their intellect, their time, 
     their talent, their organizational or rhetorical skills, 
     their money--to or on political activity.\50\ The government 
     may not interfere in their efforts to persuade their fellow 
     citizens of the merits of particular proposals or of 
     particular candidates,\51\ nor may it disrupt the free 
     communication of their views,\52\ nor penalize them for 
     granting or withholding their support from elected officials 
     on the basis of the positions those officials espouse.\53\ 
     Government may neither prescribe an official orthodoxy,\54\ 
     require the affirmation of particular beliefs,\55\ nor compel 
     citizens to support causes or political activities with which 
     they disagree.\56\ Government may neither punish its critics 
     nor impose unnecessary burdens on their political 
     activity.\57\ Those are the bedrock principles of political 
     freedom with which Buckley and its progeny are consistent; 
     those are the principles that impelled the Buckley Court's 
     conclusion that government may not restrict independent 
     political expenditures and may limit political campaign 
     contributions only in the name of preventing corruption.
       To remain faithful to those principles, one must be 
     vigilant to detect the costs to freedom lurking in reform 
     proposals that come dressed as benign efforts to achieve a 
     healthy politics. In the course of explaining why the First 
     Amendment should be amended, House Minority Leader Richard 
     Gephardt (D-Mo.) baldly stated that formal amendment was 
     needed so that Congress could enact new and 
     stringent campaign finance restrictions because ``[w]hat 
     we have is two important values in direct conflict: 
     freedom of speech and our desire for healthy campaigns in 
     a healthy democracy. You can't have both.'' \58\ That 
     breathtaking assertion performs a real service. It alerts 
     us to the fact that, in the eyes of advocates of reform, 
     freedom as we know it cannot survive an ambitious program 
     of campaign finance regulations. Of equal importance, it 
     begs the all-important questions about what a ``healthy 
     democracy'' would look like and why a healthy democracy is 
     not by definition one, like ours at present, in which 
     freedom of speech reigns.
       Nevertheless, the regulatory proposals that have recently 
     been placed on the legislative agenda do claim to embody a 
     First Amendment vision of sorts. Based not on legal precedent 
     but crafted by legal scholars and judges who adumbrated it in 
     the pages of scholarly journals and treatises, the conception 
     of the First Amendment that animates proposals for campaign 
     finance regulation bears almost no resemblance to the 
     freedom-oriented conception that actual First Amendment 
     doctrine embodies. Indeed, it distorts our traditional 
     understandings of what the very words of the amendment mean 
     and imparts an extraordinary and unprecedented significance 
     to the phrase ``freedom of speech.'' Precisely because it 
     animates the present reform agenda, however, it warrants a 
     brief summary.
       The conception of the First Amendment that underlies the 
     regulatory agenda of proponents of campaign finance reform is 
     best understood as a rejection of the traditional 
     understanding that freedom of speech necessarily implies 
     individual political liberty and the absence of substantive 
     or qualitative regulation of political debate. Proponents of 
     reform do not perceive that they utter a contradiction when 
     they assert that freedom of speech can be ``enhanced,'' \59\ 
     its purposes ``furthered, not abridged,'' \60\ by legislation 
     that regulates and restricts political speech. That is 
     because the proponents of regulation believe that freedom is 
     a quality of political life that can be regulated into 
     existence rather than an aspect of democracy that government 
     regulation necessarily and by definition destroys. They think 
     that the guarantee of freedom of speech is in fact a grant of 
     power to, rather than a withholding of power from, the 
     government. With such power, government can control the 
     content of political debate and fix the political process so 
     that ``political reason-giving'' will prevail. Political 
     influence will be distributed equally among groups so that 
     ``people who are able to organize themselves in such a way as 
     to spend large amounts of cash [will] not [be] able to 
     influence politics more than people who are not similarly 
     able.'' \61\ Then money will no longer play a role in our 
     politics.
       The regulators appear to distrust deeply the American 
     people. They unselfconsciously express the concern that 
     ``completely unregulated [i.e., free] political campaigns 
     will degenerate in such a way that the electorate would be 
     divested of its power to make a reasoned choice among the 
     candidates.''\62\ In other words, they believe that the 
     American people cannot be trusted with the choices and 
     political responsibilities entailed in a free political 
     system; instead, the government must regulate the political 
     process in order to help the people to make appropriate 
     decisions.
       In the First Amendment context, three aspects of the 
     regulators' conception deserve particular emphasis. The first 
     has already been mentioned: the regulators' conception 
     perverts the meaning of the word ``freedom.''
       Second, while decrying the polluting effect of wealth on 
     the democratic process and celebrating spending and 
     contribution restrictions purporting to keep the voices of 
     individual citizens from being drowned out, reformers exempt 
     the press from their reform proposals. In the recent debate, 
     of

[[Page S10351]]

     course, the press has largely bemoaned the vices of the 
     current system, and ``its myth-making has been especially 
     important in the shaping of mass opinion about reform.'' \63\ 
     Simply by virtue of their ability to influence the public 
     agenda, the media distort debate, and the distortion of the 
     political process that results from media treatment of 
     particular candidates or issues is likely to be 
     significant.\64\ The Supreme Court has explicitly eschewed 
     defining the rights of the press more broadly than speech 
     rights of ordinary citizens.\65\ Yet under the reformers' 
     conception of the First Amendment, the media and media 
     corporations enjoy privileges not enjoyed by ordinary 
     citizens.
       The third noteworthy aspect of the reformers' conception of 
     the First Amendment is that the agenda that conception is 
     used to promote is neither premised on empirical analysis, 
     nor derived from established postulates, nor defended in 
     terms of predictions about testable results. Rather, it rests 
     on pejorative and highly charged rhetoric, is formulated in 
     ill-defined but evocative terms, and is defended with 
     extravagant claims about benign effects. Yet upon analysis, 
     the picture the regulators paint--both of political reality 
     and of the goals of reform--is so vague that it begs all the 
     important questions.
       Thus, when the late Judge Skelly Wright, long in the reform 
     camp, surveyed the political process, he was dismayed to find 
     ``the polluting effect of money in election campaigns.'' He 
     worried that ``[c]oncentrated wealth . . . threaten[ed] to 
     distort political campaigns and referenda,'' and he announced 
     that ``[t]he voices of individual citizens are being drowned 
     out'' by the ``unholy alliance of big spending, special 
     interests, and election victory.'' \66\ Similarly, Professor 
     Cass Sunstein of the University of Chicago more recently 
     asserted that ```[m]any people think that the present system 
     of campaign financing distorts the system of free expression, 
     by allowing people with wealth to drown out people without 
     it. . . . [C]ampaign finance laws might be thought to promote 
     the purpose of the system of free expression, which is to 
     ensure a well-functioning deliberative process among 
     political equals.'' \67\
       What do all those words mean? What does the ``pure 
     political process''--the one that is being ``polluted''--
     actually look like? How rich are ``people with wealth''? How 
     poor are ``people without it''? Apart from one person, one 
     vote, what does it mean to be a ``political equal''? If it 
     means that one cannot legitimately attempt to acquire any 
     more political influence than anyone else has, what point is 
     there in participating in even a ``well-functioning 
     deliberative process''? And why isn't the individual 
     political freedom that is guaranteed by present First 
     Amendment doctrine the best means of securing a ``well-
     functioning'' democracy?
       The reason questions like those are important is that the 
     Supreme Court engages in strict scrutiny of legislation that 
     restricts campaign giving and spending. That requires the 
     Court to analyze carefully the asserted relationships between 
     ends and means--a process that can hardly go forward when the 
     ends of the legislation cannot be precisely defined and the 
     means can be rhetorically invoked but not actually spelled 
     out. Moreover, since campaign finance reforms have so often 
     turned out to have unintended--indeed perverse--consequences 
     for the political process, and since past reforms, far from 
     having leveled the political playing field, have only 
     entrenched incumbents, it appears doubly important that the 
     goals of proposed new regulations be precisely specified and 
     that the means chosen to achieve them be persuasively shown 
     to be well targeted and genuinely likely to hit their mark.


                               conclusion

       In conclusion, current proposals for new regulation of 
     federal election campaign finance practices are 
     constitutionally indefensible. In their general conception, 
     they are nothing short of a practically complete rejection of 
     the individual and associational rights of expression and 
     political participation that the First Amendment guarantees. 
     In their specifics, the governmental interests they claim to 
     serve are neither compelling nor even legitimate. And the 
     means they deploy are neither the least restrictive nor 
     finely tailored. If they were to be enacted, and were 
     challenged in court and subjected to genuinely strict 
     scrutiny, none of the proposed regulations could survive 
     review. They could survive only if the Supreme Court decided 
     to amend the First Amendment by judicial fiat.


                      appendix: buckley's progeny

       Bellotti, widely known as the ``corporate speech'' case, 
     invalidated a Massachusetts law that prohibited banks and 
     business corporations from making expenditures to influence 
     the vote on ballot referenda that did not materially affect 
     their business, property, or assets. The Court strictly 
     scrutinized the state interests asserted in behalf of the 
     statute and the relationship between those interests and the 
     spending limitations alleged to be the means of securing them 
     and rather easily concluded that there was an insufficient 
     means-end relationship to justify the limitations.
       Sustaining FEC limits on the amount of money that an 
     unincorporated association is permitted to give to a 
     multicandidate political committee, the Court in California 
     Medical Association v. Federal Election Commission engaged in 
     lenient review. Contributions are ``speech by proxy,'' the 
     Court declared, so limiting them did not ``restrict the 
     ability of individuals to engage in protected political 
     advocacy.'' \68\
       Insisting that ``there is no significant state or public 
     interest in curtailing debate and discussion of a ballot 
     measure,'' the Court in Citizens against Rent Control v. City 
     of Berkeley \69\ strictly scrutinized a limitation on 
     contributions to committees formed to support or oppose 
     ballot measures. It invalidated the limitation.
       Federal Election Commission v. National Right to Work 
     Committee was a challenge to a section of FECA that limited 
     the National Right to Work Committee to solicitation 
     of ``members.'' Declaring that it would not ``second-guess 
     a legislative determination as to the need for 
     prophylactic measures where corruption is the evil 
     feared,''\70\ the Court narrowly construed the section 
     and, as so construed, sustained it against a First 
     Amendment challenge.
       But in the next case, Federal Election Commission v. 
     National Conservative Political Action Committee,\71\ the 
     Court reasserted its intention and authority strictly to 
     scrutinize corruption-prevention justifications, at least 
     when they were offered in support of limitations on 
     expenditures. The decision invalidated Sec. 9012(f) of the 
     Presidential Election Campaign Fund Act, which prohibited 
     political committees from making independent expenditures in 
     excess of $1,000 to support the election of a presidential 
     candidate who had opted to receive public funding. ``When the 
     First Amendment is involved,'' then-Justice Rehnquist said, a 
     ``rigorous'' standard of review is called for and deference 
     to a legislative judgment is appropriate only ``where the 
     evil of potential corruption had long been recognized.''\72\
       Federal Election Commission v. Massachusetts Citizens for 
     Life\73\ was the next major campaign finance reform case. 
     Massachusetts Citizens for Life, a nonprofit, nonstock 
     corporation organized to ``foster respect for human life and 
     to defend the right to life of all human beings . . . through 
     . . . political . . . activities,'' violated FECA 
     restrictions on independent spending by corporations when it 
     financed a special edition of its newsletter in which it 
     identified and advocated the election of ``pro-life'' 
     candidates. The Court held, however, that as applied to 
     MCFL's expenditure in this case FECA was unconstitutional. 
     First, it burdened the right of the organization to make 
     independent expenditures--``expression at the core of our 
     electoral process and of the First Amendment freedoms.''\74\ 
     Second, because ``it was formed to disseminate political 
     ideas, not to amass capital,''\75\ MCFL did not pose a threat 
     of ``unfair deployment of wealth for political purposes,'' 
     nor did it ``pose [a] danger of corruption.''\76\ Thus the 
     ``concerns underlying the regulation of corporate political 
     activity are simply absent with regard to MCFL.''\77\ The 
     commission's argument that it needed a broad prophylactic 
     rule like the one the Court had sustained in National Right 
     to Work Committee did not persuade the Court. National Right 
     to Work Committee involved restrictions on solicitation for a 
     political committee that made contributions to candidates, 
     whereas the regulation at issue in MCFL was a restriction on 
     independent expenditures; moreover, the administrative 
     convenience of a bright-line rule is of insufficient weight 
     to count as a compelling interest in treating two unlike 
     entities--business corporations and groups like MCFL--alike.
       The particular restrictions on independent expenditures at 
     issue in MCFL were held unconstitutional. On the way to 
     reaching that result, however, the Court appeared to suggest 
     that if MCFL had been an ``ordinary'' corporation--one that 
     posed a threat of corruption by ``unfair deployment of wealth 
     for political purposes'' instead of one formed for the 
     particular purpose of engaging in political advocacy--the 
     case might have come out differently.
       That suggestion bore fruit in Austin v. Michigan Chamber of 
     Commerce,\78\ in which the Court sustained a state law 
     prohibiting the use of corporate treasury funds to make 
     independent expenditures in support of or in opposition to 
     candidates in elections for state office. The state defended 
     the expenditure prohibition on the ground that ``the unique 
     legal and economic characteristics of corporations 
     necessitate some regulation of their political expenditures 
     to avoid corruption or the appearance of corruption.'' 
     Justice Marshall's majority opinion upholding the restriction 
     accepted that formulation of the corruption-prevention 
     rationale and in doing so seemingly embraced a conception of 
     legislative power to define and prevent ``corruption'' 
     different from, more expansive than, and much less precise 
     than that which the Buckley court had endorsed. Buckley and 
     its progeny had limited legislative power to define 
     corruption by focusing on corruption's deleterious effect on 
     the integrity of elected officials. Corruption that 
     legislatures may prevent occurs only when ``[e]lected 
     officials are influenced to act contrary to their obligations 
     of office by the prospect of financial gain to themselves or 
     infusions of money into their campaigns. The hallmark of 
     corruption is the financial quid pro quo: dollars for 
     political favors.''\79\ The Austin opinion implied that 
     legislatures could choose to define ``corruption'' to include 
     imprecisely defined untoward effects that spending might have 
     not just on the behavior of elected officials but also on the 
     electoral process itself.\80\
       Although it may signal a departure from Buckley's limiting 
     principles, the precise extent to which Austin undermines 
     Buckley's

[[Page S10352]]

     constraints on legislative power to define corruption remains 
     unclear for at least two reasons. First, the Austin Court 
     made much of the fact that the restriction at issue there was 
     imposed on corporate expenditure of treasury funds, thus 
     hinting that had the prohibition applied to independent 
     expenditures by individuals, or even by separate segregated 
     corporate political action committees, the result would have 
     been different and the prohibition would have been struck 
     down. Second, Justice Marshall's opinion is obscure about 
     the meaning it ascribes to the term ``corruption.'' 
     Although the opinion is larded with prejorative and 
     evocative references to the ``influence of political war 
     chests''\81\ and the ``corrosive and distorting effects of 
     immense aggregations of wealth,''\82\ it does not describe 
     a normative baseline of legitimacy that would permit a 
     disinterested observer to detect a genuine threat of 
     ``corruption'' in any particular campaign finance 
     practice. The most the opinion does in that regard is to 
     suggest that the distortion that is a permissible target 
     of the legislature's concern stems from the fact that 
     ``the resources in the treasury of a business corporation 
     . . . are not an indication of popular support for the 
     corporation's political ideas.''\83\ Unfortunately, the 
     opinion fails to explain the First Amendment principle 
     that gives that fact the power to transform the most 
     highly protected category of core political speech into an 
     activity subject to complete legislative proscription.
       The Supreme Court's most recent pronouncement on the 
     constitutionality of campaign finance regulations came in the 
     1996 case of Colorado Republican Federal Campaign Committee, 
     in which the Court held seven to two that independent 
     expenditures by political parties cannot constitutionally be 
     limited by Congress. Two justices, Stevens and Ginsburg, 
     dissented. They signaled that they were prepared to retreat 
     from Buckley; they would have held that any spending by a 
     political party represents a contribution to a candidate and 
     can accordingly be limited, and they were prepared to defer 
     to Congress's judgment that measures to level the political 
     playing field were necessary and that there was too much 
     spending on political campaigns. The other justices stayed 
     well within the Buckley framework, and four of them would 
     have gone further to safeguard the First Amendment than did 
     Justice Breyer's opinion for the Court. Justice Kennedy, for 
     example, got the support of Chief Justice Rehnquist and 
     Justice Scalia for his position that spending by political 
     parties, even if it is coordinated with candidates, cannot be 
     restricted pursuant to the First Amendment because to 
     restrict party spending is to stifle what parties exist to 
     do. Justice Thomas, in a strongly argued opinion, endorsed 
     abandoning Buckley's dichotomy between contributions and 
     expenditures and advocated treating contribution and 
     expenditure limitations the same for First Amendment 
     purposes, subjecting both to strict scrutiny and not 
     permitting broad prophylactic corruption-preventing measures.


                                 notes

     1. John V. Lindsay, ``Free TV for Political Candidates? Yes, 
     to Cleanse the System,'' New York Daily News, February 20, 
     1996.
     2. Ruth Marcus and Charles R. Babcock, ``The System Cracks 
     under the Weight of Cash: Candidates, Parties and Outside 
     Interests Dropped a Record $2.7 Billion,'' Washington Post, 
     February 9, 1997, p. A1.
     3. Ibid, pp. 20-21.
     4. Frank J. Sorauf, ``Politics, Experience, and the First 
     Amendment: The Case of American Campaign Finance,'' Columbia 
     Law Review 94 (1994): 1350 (citing the amicus brief of Common 
     Cause that was filed in Buckley v. Valeo).
     5. Helen Dewar and Guy Gugliotta, ``In Campaign Finance, One 
     Party's `Level Playing Field' Is Another's Shaky Ground.'' 
     Washington Post, April 7, 1997, p. A6.
     6. Buckley v. Valeo, 424 U.S. 1, 44-45 (1976) (per curiam).
     7. Pub. L. no. 93-443, 88 Stat. 1263 (1974).
     8. Buckley at 14 (quoting Mills v. Alabama, 384 U.S. 214, 218 
     (1966)).
     9. Ibid. at 20.
     10. Ibid. at 21. The different treatment accorded to 
     contributions and expenditures has been subjected to scathing 
     criticism both on and off the Court, most recently in 
     Colorado Republican Federal Campaign Committee v. Federal 
     Election Commission, 116 S. Ct. 2309, 2325 (1996) (Thomas, 
     J., concurring in the judgment and dissenting in part).
     11. Buckley at 25 (Contribution limitations may be sustained 
     if the state demonstrates a sufficiently important interest 
     and deploys means closely drawn to avoid unnecessary 
     abridgment).
     12. Ibid. at 19.
     13. Ibid. at 26.
     14. Ibid. at 48-49.
     \15\ The Appendix to this study contains a more detailed 
     analysis of how the cases decided since Buckley have 
     implemented the Buckley framework.
     \16\ Citizens against Rent Control v. Berkeley, 454 U.S. 290, 
     296 (1981).
     \17\ Ibid. at 299.
     \18\ Ann McBride, president of Common Cause, Testimony before 
     the Senate Rules Committee, February 1, 1996. See also, to 
     the same effect, Joan Claybrook, president of Public Citizen, 
     Testimony before the Senate Rules Committee; and Becky Cain, 
     president of the League of Women Voters, Testimony before the 
     Senate Committee on Rules and Administration, March 13, 1996.
     \19\ Carver v. Nixon, 72 F.3d 633, 637 (1995) (citing Buckley 
     at 30).
     \20\ Kusper v. Pontikes, 414 U.S. 51, 57 (1973).
     \21\ Citizens against Rent Control at 294.
     \22\ Buckley at 45.
     \23\ Ibid. at 57.
     \24\ Ibid. at 57n. 65.
     \25\ ``Free'' in the sense of no cost to them, but not free 
     in the sense of ``costless.'' The cost would be borne by the 
     broadcasters.
     \26\ Buckley at 92-93.
     \27\ Shrink Missouri Government PAC v. Maupin, 71 F.3d 1422, 
     1426 (8th Cir. 1995).
     \28\ People who favor increased regulation indulge in a 
     rhetorical strategy that implicitly equates big money with 
     corruption and undue influence. It is thus important to 
     recall that seeking to influence policy is what political 
     activity--and free speech--is all about. We have no metric to 
     tell us when influence is undue. And the Court has squarely 
     held that only activities that create a danger of quid pro 
     quo corruption can be constitutionally regulated.
     \29\ Buckley at 44-45.
     \30\ Colorado Republican Federal Campaign Committee at 2330-
     31 (Thomas, J., concurring in the judgment and dissenting in 
     part).
     \31\ See Douglas Johnson and Mike Beard, ``'Campaign Reform': 
     Let's Not Give Politicians the Power to Decide What We Can 
     Say about Them,'' Cato Institute Briefing Paper no. 31, July 
     4, 1997.
     \32\ McIntyre v. Ohio Elections Commission, 514 U.S. 334 
     (1995).
     \33\ First National Bank of Boston v. Bellotti, 435 U.S. 765 
     (1978).
     \34\ McIntyre at 445.
     \35\ Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
     \36\ See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 
     241 (1974).
     \37\ See, for example, David Lange, ``The Role of Access 
     Doctrine in the Regulation of the Mass Media: A Critical 
     Review and Assessment,'' North Carolina Law Review 52 (1973): 
     1. See also Scot Powe, ``Or of the [Broadcast] Press,'' Texas 
     Law Review 55 (1976): 39.
     \38\ See, for example, Turner Broadcasting System Inc. v. 
     FCC, 512 U.S., 622, 637-38 (1996) (noting that both courts 
     and commentators have questioned the validity of the scarcity 
     rationale for disparate treatment of broadcast and print 
     media); Telecommunications Research & Action Center & Media 
     Access to Project v. FCC, 801 F.2d 501 (DC Cir. 1986).
     \39\ Rodney A. Smolla, ``The Culture of Regulation,'' CommLaw 
     Conspectus 5 (1997): 193, 199.
     \40\ Turner Broadcasting at 641.
     \41\ Rust v. Sullivan, 500 U.S. 173 (1991).
     \42\ Cf. CBS, Inc. v. FCC, 453 U.S. 367 (1981), in which the 
     Supreme Court sustained the FCC's reading of Sec. 312(a)(7) 
     of the Communications Act of 1943, to the effect that the 
     section created an affirmative, promptly enforceable right of 
     reasonable access to the use of broadcast stations for 
     individual candidates seeking federal office. CBS v. FCC 
     provides no comfort to the proponents of free TV, however, 
     since Sec. 312(a)(7) required only that networks provide 
     access for which candidates were willing and had offered to 
     pay.
     \43\ Benjamin Weiser and Bill McAllister, ``The Little Agency 
     That Can't: Election Law Enforcer Is Weak by Design, 
     Marginalized by Division,'' Washington Post, February 12, 
     1997, p. A1.
     \44\ See, for example, Smith v. Goguen, 415 U.S. 566, 572-73 
     (1974) (The vagueness doctrine ``requires legislatures to set 
     reasonably clear guidelines for law enforcement officials and 
     triers of fact in order to prevent `arbitrary and 
     discriminatory enforcement.' Where a statute's literal scope, 
     unaided by a narrowing state court interpretation, is capable 
     of reaching expression sheltered by the First Amendment, the 
     doctrine demands a greater degree of specificity than in 
     other contexts.'') (Citation omitted.)
     \45\ Nebraska Press Association v. Stuart, 427 U.S. 539 
     (1976). See also New York Times Co. v. U.S., 403 U.S. 713 
     (1971) (``Any system of prior restraint of expression comes 
     to this Court bearing a heavy presumption against its 
     constitutional validity.'')
     \46\ Nebraska Press Association at 561. (Citations omitted).
     \47\ Mills v. Alabama, 384 U.S. 213, 218 (1966).
     \48\ NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama, 
     357 U.S. 449 (1958).
     \49\ Hague v. CIO, 307 U.S. 496 (1939).
     \50\ Meyer v. Grant, 496 U.S. 414 (1988).
     \51\ Pickering v. Board of Education, 391 U.S. 563 (1968).
     \52\ Mt. Healthy City School District Board of Education v. 
     Doyle, 429 U.S. 274 (1977).
     \53\ Elrod v. Burns, 427 U.S. 347 (1976).
     \54\ West Virginia Board of Education v. Barnette, 319 U.S. 
     624 (1943).
     \55\ Wooley v. Maynard, 430 U.S. 705 (1977).
     \56\ Communication Workers of America v. Beck, 487 U.S. 735 
     (1988); Abood v. Detroit Board of Education, 431 U.S. 209 
     (1977).
     \57\ Village of Schaumburg v. Citizens for a Better 
     Environment, 444 U.S. 620 (1980).
     \58\ Quoted in Nancy Gibbs, ``The Wake-Up Call: Clinton Makes 
     Serious Noises about Campaign Reform, But That May Not Be 
     Enough to Change a Cozy System That Loves Special Interest 
     Money,'' Time, February 3, 1997, p. 22.
     \59\ Laurence H. Tribe, American Constitutional Law, 1st ed. 
     (Mineola, N.Y.: Foundation Press, 1978), Sec. 13-27, pp. 802-
     3.
     \60\ Daniel Hays Lowenstein, ``Campaign Spending and Ballot 
     Propositions: Recent Experience, Public Choice Theory, and 
     the First Amendment,'' UCLA Law Review 29 (1982): 581-82.
     \61\ Cass R. Sunstein, ``Political Equality and Unintended 
     Consequences,'' Columbia Law Review 94 (1994): 1392.
     \62\ Tribe, Sec. 13-26, p. 798.
     \63\ Frank J. Sorauf, ``Politics, Experience, and the First 
     Amendment: The Case of American Campaign Finance,'' Columbia 
     Law Review 94 (1994): 1356.
     \64\ Cf. Sanford Levinson, ``Electoral Regulation: Some 
     Comments,'' Hofstra Law Review 18 (1989): 412 (``I am 
     unpersuaded by any analysis that expresses justified worry 
     about the impact of money on the behavior of public officials 
     and, at the same time, wholly ignores the power of the media 
     to influence these same public officials in part through the 
     media's ability to structure public consciousness.'')
     \65\ Cf. Pell v. Procunier, 417 U.S. 817, 834 (1974) (``The 
     Constitution does not . . . require government to accord the 
     press special access to information not shared by members of 
     the public generally.'')
     \66\ Skelly Wright, ``Money and the Pollution of Politics: Is 
     the First Amendment an Obstacle to Political Equality?'' 
     Columbia Law Review 82 (1982): 614, 622.
     \67\ Cass R. Sunstein, The Partial Constitution (Cambridge, 
     Mass.: Harvard University Press, 1993), p. 84.
     \68\ California Medical Association v. Federal Election 
     Commission, 453 U.S. 182, 196, 199n. 20 (1981).
     \69\ Citizens against Rent Control at 291.
     \70\ Federal Election Commission v. National Right to Work 
     Committee, 459 U.S. 197, 210 (1982).
     \71\ Federal Election Commission v. National Conservative 
     Political Action Committee, 470 U.S. 480 (1985).
     \72\ Ibid. at 500.
     \73\ Federal Election Commission v. Massachusetts Citizens 
     for Life, 479 U.S. 238 (1986).
     \74\ Ibid. at 251 (citations omitted).
     \75\ Ibid. at 259.
     \76\ Ibid. at 260.
     \77\ Ibid. at 263.
     \78\ Austin v. Michigan Chamber of Commerce, 494 U.S. 652 
     (1990).
     \79\ Federal Election Commission v. National Conservative 
     Political Action Committee at 497.
     \80\ Austin at 659-60.
     \81\ Ibid. at 659 (quoting Federal Election Commission v. 
     National Conservative Political Action Committee at 500-501).
     \82\ Ibid. at 660.
     \83\ Ibid. at 659 (quoting Federal Election Commission v. 
     Massachusetts Citizens for Life at 258).


[[Page S10353]]


  Mr. McCONNELL. Mr. President, I will ask to have printed in the 
Record an excellent treatise on campaign finance reform and the 
Constitution by Professor of Law Kathleen M. Sullivan of Stanford which 
was recently published in the law journal published by the University 
of California at Davis.
  Professor Sullivan examines and dismisses what she terms the 
reformers' ``Seven Deadly Sins'' of political money. This is must 
reading for anyone desiring a better understanding of the first 
amendment's role in this debate.
  Mr. President, I ask unanimous consent that that treatise be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   [From the University of California, Davis Winter Law Review, 1997]

                 Political Money and Freedom of Speech

                       (By Kathleen M. Sullivan)

       [Stanley Morrison Professor of Law, Stanford University. 
     This Essay was originally the Edward L. Barrett, Jr. Lecture 
     on Constitutional Law, delivered at the University of 
     California, David School of Law on February 13, 1997. The 
     author is grateful for the hospitality of Dean Bruce Wolk and 
     the Law School on that occasion. For helpful comments, the 
     author thanks Alan Brownstein, Floyd Feeney, and participants 
     in a GALA workshop organized by Sanford Kadish at the 
     University of California, Berkeley. For research assistance, 
     the author thanks Matthew Shors.]


                              introduction

       There is much talk about political money in the wake of the 
     1996 election. Some find the sheer volume of money spent 
     impressive: an estimated $3 billion on all elections, $660 
     million on electing the Congress, and $1 billion on the 
     presidential election. Others focus on the questions raised 
     about alleged fund-raising activities that are forbidden by 
     existing laws, such as contributions to political parties by 
     foreign nationals. Still others focus on ``loopholes'' in the 
     existing laws that allow their nullification as a practical 
     matter. Nearly all focus on the presumed special influence of 
     large contributors on political outcomes.\1\
---------------------------------------------------------------------------
     \1\ Footnotes at end of article.
---------------------------------------------------------------------------
       Against this backdrop has arisen a hue and cry for campaign 
     finance reform. Senators McCain and Feingold have revived a 
     proposed Senate campaign finance reform bill that withered 
     under filibuster in the 104th Congress; \2\ Representatives 
     Shays and Mechan have introduced comparable bipartisan 
     legislation in the House. President Clinton has endorsed 
     those bills.\3\ Newly retired Democratic Senator Bill Bradley 
     has called the McCain-Feingold proposal timid and advocates 
     more sweeping reforms; he favors a constitutional amendment 
     to overrule Buckley v. Valeo,\4\ the 1976 Supreme Court 
     decision holding that some campaign finance limits violate 
     the right of free speech.\5\ Other prominent advocates of the 
     overrule of Buckley include twenty-six legal scholars led by 
     Ronald Dworkin,\6\ and twenty-four state attorneys general 
     who argue that political money threatens the integrity of 
     elections that it is their job to defend.\7\ Countless 
     newspaper editorial pages have opined that the time is ripe--
     while public outrage is high--to finally do something about 
     campaign finance reform. Voters in states such as California 
     and Oregon have adopted ballot measures imposing limits on 
     the financing of state election campaigns.\8\
       In short, the view that political money should be limited 
     has become mainstream orthodoxy. Against this formidable 
     array of thoughtful opinion, I offer here a contrary view. 
     This Essay first lays out briefly the current law of 
     political money and the current landscape of proposals for 
     its reform. It then offers a critical guide to the reformers' 
     arguments by examining the political theories that more or 
     less explicitly underlie them. It concludes that the much 
     belittled constitutional case against campaign finance limits 
     is surprisingly strong, and that the better way to resolve 
     the anomalies created by Buckley v. Valeo may well be not to 
     impose new expenditure limits on political campaigns, but 
     rather to eliminate contribution limits.
     I. The law of political money
       In our political system, political campaigns are generally 
     funded with private money--the candidates' own resources plus 
     contributions of individuals, political parties, and 
     organized groups. The presidential campaign is an exception, 
     funded publicly since the 1976 campaign.\9\ In our system, 
     candidates also communicate primarily through entities that 
     are privately owned--the print and electronic press that 
     provide candidates free news coverage and opportunities for 
     paid political advertisements. One could imagine alternate 
     systems, such as public funding of parties and candidate 
     elections or public ownership of the communications media, 
     but such systems are not our own, nor likely to be our own 
     any time soon.
       In the 1976Buckley decision, the Court held that 
     restrictions on political spending implicate freedom of 
     speech. Invalidating some portions of the post-Watergate 
     amendments to the Federal Elections Campaign Act but 
     upholding others, the Court held thatcontributions to a 
     candidate could constitutionally be limited, butexpenditures 
     could not, except as a condition of receiving public 
     funds.\10\ Thus, afterBuckley, candidates may spend all they 
     want, unless they are presidential candidates who have taken 
     public money; so may political parties, individuals, and 
     organized groups such as political action committees (PACs)--
     as long as they act independently of the candidate.\11\ But 
     direct donations to a candidate's campaign may be limited in 
     amount. Under current federal law, an individual is limited 
     in each election to contributing one thousand dollars to a 
     candidate, five thousands dollars to a PAC, and twenty 
     thousand dollars to a national party, and must keep the grand 
     total to twenty-five thousand dollars. PACs may give only 
     five thousand dollars to a candidate, five thousand dollars 
     to another PAC, and fifteen thousand dollars to a national 
     party.\12\ Political parties, too, face spending limits when 
     they contribute to the campaigns of their candidates, though 
     these are higher than those for PACs.\13\
       The split regime ofBuckley thus authorizes government to 
     limit thesupply of political money, but forbids it to 
     limitdemand. Why the distinction?Contributions, the Court 
     said, implicate lesser speech interests; they merely 
     facilitate or associate the contributor with speech. They 
     also raise the specter of ``corruption'' or the appearance of 
     corruption--that is, the danger of a quid pro 
     quo.\14\Expenditures, the Court said, are more directly 
     expressive, and involve no corruption--a candidate cannot 
     corrupt herself, and those who spend independently of the 
     candidate's campaign cannot reasonably expect a pay-back.\15\ 
     Nor, held the Court, could spending limits be justified by 
     the alternative rationale of equalizing political speaking 
     power, because that rationale, the Court said, is ``wholly 
     foreign to the First Amendment.'' \16\ Thus, the Court held, 
     the only way government may bring about political expenditure 
     limits is through a quid pro quo of its own: government may 
     induce a candidate to accept expenditures limits in exchange 
     for public subsidies.
       Various cogent criticisms have been leveled at the 
     contribution/expenditure distinction. First, both 
     contributions and expenditures may equally express political 
     opinions. As Justice Thomas wrote last summer:
       ``Whether an individual donates money to a candidate or 
     group who will use it to promote the candidate or whether the 
     individual spends the money to promote the candidate himself, 
     the individual seeks to engage in political expression and to 
     associate with likeminded persons. A contribution is simply 
     an indirect expenditure.'' \17\
       This argues for protecting both expenditures and 
     contributions alike. Second, an ``independent'' expenditure 
     may inspire just as much gratitude by the candidate as a 
     direct contribution. This argues for regulating them both 
     alike. Finally, it has been objected, it is unclear why 
     expenditure limits may be induced with carrots if they may 
     not be compelled with sticks.\18\ This argues for precluding 
     private expenditure limits even as a condition of public 
     subsidies.
       These inconsistencies arise from theBuckley Court's attempt 
     to solve an analogical crisis by splitting the 
     difference.Buckley involved nothing less than a choice 
     between two of our most powerful traditions: equality in the 
     realm of democratic polity, and liberty in the realm of 
     political speech. The Court had to decide whether outlays of 
     political money more resemble voting, on the one hand, or 
     political debate, on the other. The norm in voting is 
     equality: one person, one vote. The norm in political speech 
     is negative liberty: freedom of exchange, against a backdrop 
     of unequal distribution of resources (it has been said that 
     freedom of the press belongs to those who own one \19\). 
     Faced with the question of which regime ought to govern 
     regulation of political money, the Court in effect chose a 
     little of both. It treated campaign contributions as more 
     like voting, where individual efforts may be equalized, and 
     campaign expenditures as more like speech, where they may 
     not.
     II. Leading reform proposals
       Currently on the table are three type of reform proposals 
     to impose new restrictions on political money. One advocates 
     further limiting campaign contributions. The second proposes 
     more conditioning of benefits upon corresponding 
     ``voluntary'' limits on private spending. The third would 
     place outright restrictions on campaign expenditures. The 
     first two seek to operate within theBuckley framework; the 
     third would overruleBuckley in part.
       The first type of reform proposal would ``close loopholes'' 
     in the existing regulatory scheme by extending the reach of 
     contribution limits. For example, there are currently no 
     restrictions on contribution ``bundling'' by intermediaries. 
     One political entrepreneur may collect several individual 
     contributions of one thousand dollars each and turn over the 
     entire sum to the candidate, PAC, or party--taking political 
     credit for a much larger amount than she personally could 
     have contributed. Some reform proposals, such as McCain-
     Feingold, would treat such ``bundled'' contributions as 
     contributions by the intermediary, and therefore subject to 
     the otherwise applicable contribution limits.\20\ In other 
     words, no more bundling.\21\
       Other such proposals would impose contribution limits on 
     so-called ``soft money''--

[[Page S10354]]

     those sums that now may be given without limit by 
     individuals, PACs, and even corporations and labor unions 
     (who are forbidden to give directly to candidates) to 
     political parties for purposes of grass-roots ``party-
     building'' activities. Since the 1988 campaign, use of soft 
     money to finance de facto campaign advertisements has 
     proliferated. Advertisements celebrating one's party, its 
     stand on issues, or the accomplishments of its leadership, 
     after all, do serve to build party loyalty; but to the 
     untutored eye, they may be difficult to distinguish from 
     campaign ads. The same is true of soft money ads attacking 
     the other party. The amount of soft money raised by the two 
     major parties combined has increased from $89 million in 1992 
     to $107 million in 1994 to roughly $250 million in 1996.\22\ 
     Some reform proposals, again including McCain-Feingold, would 
     limit soft money contributions.\23\ The Democratic National 
     Committee has announced its intention to limit annual soft 
     money contributions from an individual, corporation, or union 
     to one hundred thousand dollars, and President Clinton said 
     that the Democratic Party would stop taking any soft money if 
     the Republicans would do the same.\24\
       Would such new contribution limits be constitutional under 
     the Buckley regime? Any limit on party expenditures of soft 
     money would likely be struck down by the current Court in 
     light of its recent decision that political parties may make 
     unlimited independent expenditures on behalf of a particular 
     candidate.\25\ But limits on contributions, under Buckley, 
     are another matter. The Court has previously upheld ceilings 
     on individual contributions to PACs on the ground that such 
     restrictions prevent end runs around limits on contributions 
     to candidates.\26\ Bundling and soft money contribution 
     limits might be defended along similar lines, although they 
     also raise novel and questionable burdens on the right of 
     association.\27\
       The second category of reform proposal would find new means 
     to use public funds or other public benefits to induce 
     candidates to agree to ``voluntary'' spending limits--a 
     practice that Buckley held constitutional, at least as to 
     full public financing of presidential campaigns. Extending 
     full public funding with attached spending limits from 
     presidential to congressional campaigns would be the most 
     obvious version of such reform, but is probably politically 
     infeasible. Some proposals seek to offer smaller carrots, 
     including ones that would not directly incur public expense. 
     For example, the McCain-Feingold Senate bill would extract 
     from broadcasters free and discounted broadcast time. The 
     bill would in turn give the time, as well as postage 
     discounts, to those Senate candidates who complied with 
     specified spending limits.\28\ California's Proposition 208 
     would give free space in the ballot statement and allow 
     higher contributions to candidates who adopted spending 
     limits.\29\
       Such proposals too raise First Amendment questions despite 
     the public funding ruling in Buckley. For example, while a 
     private funding ban might reasonably further the goal of full 
     public financing of an election--in order to level the 
     playing field--it is hardly clear that private spending 
     limits are equally justified by the relatively trivial 
     communications subsidies proposed in these bills. And of 
     course, the broadcasters might object to the extraction of 
     ``free'' air time as an unconstitutional compulsion of 
     speech.\30\
       The third, most dramatic type of proposal would overrule 
     the expenditure holding in Buckley and permit spending limits 
     outright. Since the current Court seems quite uninterested in 
     overruling Buckley, the most plausible vehicle for such a 
     reform would be some type of constitutional amendment. Most 
     advocates of such a reform support an amendment authorizing 
     Congress to reimpose expenditure limits as under the pre-
     Buckley status quo, while leaving the authority to impose 
     contribution limits intact.
     III. The political theory of campaign finance reform, or the 
         supposed seven deadly sins of political money
       What political theory supports arguments for campaign 
     finance reform? Arguments for greater limits on political 
     contributions and expenditures typically suggest that any 
     claims for individual liberty to spend political money ought 
     yield to an overriding interest in a well-functioning 
     democracy. But what is meant by democracy here? The answer is 
     surprisingly complex; several distinct arguments that 
     democracy requires campaign finance limits are often lumped 
     together. I will try to disaggregate them and critically 
     assess each one. The reformers might be said to have 
     identified seven, separate, supposedly deadly sins of 
     unregulated political money.
       A. Political inequality in voting
       The first argument for campaign finance limits is that they 
     further individual rights to political equality among voters 
     in an election. This argument starts from the principle of 
     formal equality of suffrage embodied in the one person, one 
     vote rule that emerged from the reapportionment cases.\31\ 
     Each citizen is entitled to an equal formal opportunity, ex 
     ante, to influence the outcome of an election. Moreover, each 
     person's vote is inalienable; it may not be traded to others 
     for their use, nor delegated to agents. Literal vote-buying 
     is regarded as a paradigm instance of undemocratic conduct. 
     We no longer countenance gifts of turkeys or bottles of 
     liquor to voters on election day, nor the counting of dead 
     souls. These qualities of voting distinguish the electoral 
     sphere from the marketplace, where goods and services, unlike 
     votes, are fungible, commensurable, and tradeable.
       Reformers often proceed from the premise of equal suffrage 
     in elections to the conclusion that equalization of speaking 
     power in electoral campaigns is similarly justifiable in 
     furtherance of democracy. The most radical of such proposals 
     would bar expenditures of private campaign funds altogether, 
     and limit candidates to spending public funds allocated to 
     each voter equally in the form of vouchers that could be used 
     solely for election-related speech.\32\ The principle here 
     would be one person, one vote, one dollar.\33\
       More commonly, however, the analogy to voting is meant to 
     be suggestive, not literal; few go so far as to say that 
     campaign finance limits are constitutionally compelled, as 
     equipopulous districts are. Nor do most advocates of campaign 
     finance reform argue for literal equality in electoral 
     expenditures; the asserted right to equal political influence 
     on the outcome of electoral campaigns is usually depicted as 
     aspirational. But reformers argue that the goal of equal 
     citizen participation in elections at least helps to justify 
     campaign finance limits as constitutionally permissible.\34\ 
     On this view, campaign finance amounts to a kind of shadow 
     election, and unequal campaign outlays amount to a kind of 
     metaphysical gerrymander by which some votes count more than 
     others in that shadow election.
       Such arguments from formal equality of the franchise to 
     campaign finance restrictions, however, often fail to 
     articulate a crucial intermediate step: that political 
     finance sufficiently resembles voting as to be regulable by 
     the equality norms that govern voting. There is an 
     alternative possibility: that political finance more 
     resembles political speech than voting. That is the analogy 
     drawn by the Buckley Court, at least with respect to 
     expenditures. The choice of analogy is crucial. In the formal 
     realm of voting--like other formal governmental settings, 
     such as legislative committee hearings and trials in court--
     speech may be constrained in the interest of the governmental 
     function in question. For example, at a town meeting, 
     Robert's Rules of Order govern to ensure that orderly 
     discussion may take place; at a trial, witnesses testify not 
     to all they know but to what they are asked about, subject to 
     rules of evidence and the constraints of relevant rights of 
     the parties. Likewise, one voter does not get ten votes 
     merely because he feels passionately about a candidate or 
     issue.
       By contrast, in the informal realm of political speech--the 
     kind that goes on continuously between elections as well as 
     during them--conventional First Amendment principles 
     generally preclude a norm of equality of influence. Political 
     speakers generally have equal rights to be free of government 
     censorship, but not to command the attention of other 
     listeners. Under virtually any theory of the justification 
     for free speech, legislative restrictions on political speech 
     may not be predicated on the ground that the political 
     speaker will have too great a communicative impact, or his 
     competitor too little. Conventional First Amendment norms of 
     individualism, relativism, and antipaternalism preclude any 
     such affirmative equality of influence--not only as an end-
     state but even as an aspiration. Indeed, such equality of 
     participation as speakers in political debate is foreign even 
     under the more collectivist approach to political speech 
     outlined by Alexander Meiklejohn, who famously noted that the 
     First Amendment ``does not require that, on every occasion, 
     every citizen shall take part in public debate. . . . What is 
     essential is not that everyone shall speak, but that 
     everything worth saying shall be said.'' \35\
       A few perceptive reform advocates have noticed this problem 
     and sought to fill in the missing step--the analogy between 
     political finance and voting that would make equality norms 
     relevant to both. For example, Ronald Dworkin, who largely 
     accepts arguments for unfettered political speech in other 
     contexts, rests his argument for campaign finance limits on 
     the proposition that the right to equal participation as 
     voters must be understood to entail a corollary right to 
     equal participation as advocates in the electoral campaigns 
     that precede and determine the vote:
       ``Citizens play two roles in a democracy. As voters they 
     are, collectively, the final referees or judges of political 
     contests. But they also participate, as individuals, in the 
     contests they collectively judge: they are candidates, 
     supporters, and political activists; they lobby and 
     demonstrate for and against government measures, and they 
     consult and argue about them with their fellow citizens. . . 
     .  [W]hen wealth is unfairly distributed and money dominates 
     politics, . . . though individual citizens may be equal in 
     their vote and their freedom to hear the candidates they wish 
     to hear, they are not equal in their own ability to command 
     the attention of others for their own candidates, interests, 
     and convictions.\86\
       In other words, formal equality of voting power implies a 
     corollary right to equality in the opportunity to speak out 
     in politics--at least in the particular subset of political 
     speech that is made in connection with electoral 
     campaigns.\87\
       But what are the boundaries of an electoral campaign? 
     Dworkin does not suggest that equalization of speaking power 
     is a satisfactory justification for limitations of political 
     speech in other contexts. Yet his own examples belie any easy 
     distinction between

[[Page S10355]]

     the formal realm of electoral discourse, which he would 
     regulate, and the informal realm of ongoing political 
     discourse, which he presumably would not. For example, he 
     lists ``lobbying'' and ``demonstrations'' as examples of 
     relevant forms of citizen participation. But lobbying and 
     demonstrations could not, without great alteration in 
     ordinary First Amendment understandings, be regulated on the 
     ground that their leaders had amassed too many resources. 
     Further, elections are seamlessly connected to the informal 
     political debates that continue in the periods between them. 
     The more electoral campaign speech is continuous with such 
     ordinary informal political discourse, the less campaign 
     finance resembles voting, and the more it partakes of a realm 
     of inevitable inequality.\88\
       The reformers might answer that the equality principle 
     could be confined to speech made expressly by candidates or 
     their committees during formal electoral campaigns, defined 
     by reference to some particular period in relation to 
     elections. But now practical difficulties arise even as 
     analytical difficulties subside. Such an approach would leave 
     unregulated advocacy that redounds to the benefit of 
     candidates by persons, parties, and organizations independent 
     of them. To the extent such independent speech operates as a 
     substitute for express candidate speech--even if an imperfect 
     one--the principle of equality of voter participation 
     advanced by the limits on formal campaign expenditures will 
     be undermined.
       An alternate response by reformers might be to question 
     conventional First Amendment principles generally, and to 
     assert political equality as a justification for regulating a 
     wide range of informal political discourse. Such an approach 
     raises large questions that go beyond the topic here. The key 
     point for now is simply that, short of major revision of 
     general First Amendment understandings, campaign finance 
     reform may not be predicated on equality of citizen 
     participation in elections unless electoral speech can be 
     conceptually severed from informal political discourse. But 
     formal campaign speech has so many informal political 
     substitutes that this proposition is difficult to sustain.
       B. Distortion
       A second argument against unregulated private campaign 
     finance is related to the first, but focuses less on 
     individual rights than on collective consequences. This 
     argument says that the unequal deployment of resources in 
     electoral campaigns causes the wrong people to get elected, 
     distorting the true preferences of voters.\89\ Good 
     candidates who cannot surmount the high financial barriers to 
     entry never get to run, and the choice among those who do is 
     influenced by spending power that is not closely correlated 
     to the popularity of the candidate's ideas. On this view, 
     unequal funding leads both candidates and voters to 
     misidentify the electorate's actual preferences and 
     intensities of preference.
       The Supreme Court has accepted such an argument as 
     sufficient to justify some administrative burdens on the 
     deployment of political money. In Austin v. Michigan Chamber 
     of Commerce,\40\ the Court upheld a state requirement that 
     corporations (except nonprofit corporations organized solely 
     for ideological purposes \41\) make political expenditures 
     solely from separate segregated political funds, not from 
     their general treasuries.\42\ The Court reasoned that the 
     government's interest in preventing the ``distortion'' of the 
     apparent strength.\43\ A corporation that spent, for 
     political purposes, money raised for investment purposes, 
     would make it appear that there was more enthusiasm for the 
     ideas it backed than was warranted. Funds raised for 
     expressly political purposes and segregated in a separate 
     political fund or corporate PAC, by contrast, would represent 
     a more accurate proxy for the popularity of the ideas they 
     supported.
       Campaign finance reformers would extend this antidistortion 
     principle beyond the particular problems of the corporate 
     form at issue in Austin. They suggest that the ability to 
     amass political funds in general does not correlate closely 
     with voter preferences. Rather, the unequal distribution of 
     campaign resources leads to misrepresentation of 
     constituents' actual preferences and intensities of 
     preference. The wealthy (or those who are good at fund-
     raising) can spend more money on a candidate they care 
     relatively little about than can the poor (or those who are 
     inept at fundraising) on a candidate to whom they are 
     passionately committed. To the extent such ``distorted'' 
     campaign speech influences voting, candidates will be elected 
     and platforms endorsed that differ from what voters would 
     otherwise choose.
       This argument has both practical and conceptual 
     difficulties. First, a candidate's ability to attract funds 
     is at least to some extent an indicator of popularity.\44\ 
     Money may flow directly in response to the candidate's ideas 
     or indirectly in response to the candidate's popularity with 
     others as reflected in poll numbers and the like.\45\ To the 
     extent that fundraising accurately reflects popularity, the 
     reformers exaggerate the degree of distortion. Second, there 
     are limits to how far private funding can permit a candidate 
     to deviate from positions acceptable to the mass of 
     noncontributing voters; the free press will to some extent 
     correct information provided in the candidate's 
     advertisements, and polls will discipline the candidate to 
     respond to preferences other than those of his wealthiest 
     backers.\46\
       A third and deeper problem is that the concept of 
     ``distortion'' assumes a baseline of ``undistorted'' voter 
     views and preferences. But whether any such thing exists 
     exogenously to political campaigns is unclear. Popular 
     attitudes about public policy do not exist in nature, but are 
     formed largely in response to cues from political candidates 
     and party leaders. Moreover, the institutional press--itself 
     owned by large corporations commanding disproportionate power 
     and resources--plays a large role in shaping public opinion. 
     Any attempt to equalize campaign spending would still leave 
     untouched any ``distortion'' from the role of the press.\47\
       C. Corruption, or political inequality in representation
       A third argument for limiting political contributions and 
     expenditures is often made under the heading of fighting 
     political ``corruption.'' This is a misnomer. Properly 
     understood, this argument is a variation on the political 
     inequality argument.\48\ But unlike the first argument above, 
     it focuses not on the unequal influence of voters on 
     elections, but on the elected legislators' unequal 
     responsiveness to different citizens once in office. The 
     charge against unregulated political money here is that it 
     makes citizens unequal not in their ability to elect the 
     candidates of their choice, but in their ability to affect 
     legislative outcomes.\49\
       The Court in Buckley held contribution limits permissible 
     to prevent ``corruption'' or the appearance of corruption of 
     legislators by contributors of significant sums. Popular 
     rhetoric about political money often employs similar 
     metaphors: polls show substantial majorities who say that 
     Congress is ``owned'' by special interests or ``for sale'' to 
     the highest bidder. It is important to note, however, that 
     the ``corruption'' charged here is not of the Tammany Hall 
     variety. There is no issue of personal inurement; the money 
     is not going into candidates' pockets but into television 
     advertisements, the earnings of paid political consultants, 
     and various other campaign expenses that increase the chances 
     of election or reelection. This is true a fortiori for 
     expenditures made independent of the candidate's campaign.
       The claimed harm here is not, as the term ``corruption'' 
     misleadingly suggests, the improper treatment of public 
     office as an object for market exchange, but a deviation from 
     appropriate norms of democratic representation. Officeholders 
     who are disproportionately beholden to a minority of powerful 
     contributors, advocates of finance limits say, will shirk 
     their responsibilities to their other constituents, altering 
     decisions they otherwise would have made in order to repay 
     past contributions and guarantee them in the future. Thus, 
     properly understood, the ``corruption'' argument is really a 
     variant on the problem of political equality; unequal outlays 
     of political money create inequality in political 
     representation.
       Again, the difficulties with the argument are both 
     practical and conceptual. First, political money is not 
     necessarily very effective in securing political results. The 
     behavior of contributors provides some anecdotal support: 
     Many corporate PACs, to borrow Judge Posner's phrase, are 
     ``political hermaphrodites'';\50\ they give large sums to 
     both major parties. This hedging strategy suggests a weak 
     level of confidence in their ability to obtain results from 
     any particular beneficiary of their contributions.
       President Clinton captured the same point at a press 
     conference where he said that he gives major donors an 
     opportunity for a ``a respectful hearing'' but not a 
     ``guaranteed result.'' \51\ While this comment might elicit 
     skepticism, the proposition that campaign donations are a 
     relatively unreliable investment has empirical support. 
     Various studies of congressional behavior suggests that 
     contributions do not strongly affect congressional voting 
     patterns, which are for the most part dominated by 
     considerations of party and ideology.\52\ Of course, such 
     evidence may be countered \53\ by noting that contributors 
     may be repaid in many ways besides formal floor votes--for 
     example, by relatively invisible actions in agenda-setting 
     and drafting in committees. Furthermore, the few votes 
     that are dominated by contributions may occur when there 
     is the greatest divergence between contributors' and other 
     constituents' interests. Still, the case that 
     contributions divert representative responsiveness is at 
     best empirically uncertain, and not a confident basis for 
     limiting political speech.
       A second and deeper problem with the ``corruption'' 
     argument, once it is properly recast as an argument about 
     democratic representation, is conceptual. The argument 
     supposes that official action should respond to the interests 
     of all constituents, or to a notion of the public good apart 
     from the aggregation of interests, but, in any event, not to 
     the interests of a few by virtue of their campaign outlays. 
     But legislators respond disproportionately to the interests 
     of some constituents all the time, depending, for example, on 
     the degree of their organization, the intensity of their 
     interest in particular issues, and their capacity to mobilize 
     votes to punish the legislator who does not act in their 
     interests. On one view of democratic representation, 
     therefore, there is nothing wrong with private interest 
     groups seeking to advance their own ends through electoral 
     mobilization and lobbying, and for representatives to respond 
     to these targeted efforts to win election and reelection.\54\ 
     It is at least open to question why attempts to achieve the 
     same ends through amassing campaign

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     money are more suspect, at least in the absence of personal 
     inurement.\55\
       But the question whether disproportionate responsiveness to 
     contributors is ultimately consistent with democratic 
     representation need not be answered to see the problem with 
     the reformers' argument. That problem is that selecting one 
     vision of good government is not generally an acceptable 
     justification for limiting speech, as campaign finance limits 
     do. Rather, what constitutes proper representation is itself 
     the most essentially contested question protected by freedom 
     of speech. The ban on seditious libel, the protection of 
     subversion advocacy, and the general hostility to political 
     viewpoint discrimination illustrate that free speech, under 
     current conceptions, protects debates about what constitutes 
     proper self-government from ultimate settlement by 
     legislatures. To be sure, legislatures are often permitted or 
     compelled to select among democratic theories, or to 
     privilege one version of representation over its competitors 
     in setting up the formal institutions of government. ``One 
     person, one vote,'' for example, privileges egalitarian 
     conceptions over various alternatives--such as the 
     inegalitarian representation provided by the United States 
     Senate. But the right to speak--and, it might be added, to 
     petition--includes the right to challenge any provisional 
     settlement a legislature might make of the question of what 
     constitutes appropriate democratic representation.
       In other words, the ``anticorruption'' argument for 
     campaign finance reform claims the superiority of a 
     particular conception of democracy as a ground for limited 
     speech. As a result, it runs squarely up against the 
     presumptive ban on political viewpoint discrimination.\56\ 
     Campaign finance reformers necessarily reject pluralist 
     assumptions about the operation of democracy and would 
     restrict speech, in the form of political money to foster 
     either of two alternative political theories. First, they 
     might be thought to favor a Burkean or civic republican view, 
     in which responsiveness to raw constituent preferences of any 
     kind undermines the representative's obligation to deliberate 
     with some detachment about the public good. Alternatively, 
     they might be thought to favor a populist view in which the 
     representative ought be as close as possible to a transparent 
     vehicle for plebiscitary democracy, for the transmission of 
     polling data into policy. Either way, they conceive democracy 
     as something other than the aggregation of self-regarding 
     interests, each of which is free to seek as much 
     representation as possible.\57\ But surely the endorsement of 
     civic republicanism or populism--or any other vision of 
     democracy--may not normally serve as a valid justification 
     for limiting speech. Legislators may enforce an official 
     conception of proper self-government through a variety of 
     means, but not by prohibiting nonconforming expression.
       Campaign finance reformers might object that, after all, 
     campaign finance limits in no way stop would-be pluralists 
     from advocating pluralism, but only from practicing it. The 
     utterances being silenced are performative, not 
     argumentative. Such a response, however, is in considerable 
     tension with a long tradition of First Amendment protection 
     for symbolic and associative conduct.\58\ A further objection 
     might be that this argument extends only to legislative 
     campaign finance reform, and not to a constitutional 
     amendment such as Senator Bradley and others have 
     proposed.\59\ That is surely correct, as an amendment could 
     obviously revise the existing First Amendment conceptions on 
     which the argument rests. But, apart from general reasons to 
     tread cautiously in amending the Constitution, it might well 
     be thought especially risky to attempt by amendment to 
     overrule a constitutional decision that is part of the 
     general fabric of First Amendment law, as the anomaly created 
     by the new amendment might well have unanticipated effects on 
     other understandings of free speech.\60\
       D. Carpetbagging
       A fourth strand of the reform argument is a variant of the 
     third, with special reference to geography. Except in 
     presidential elections, we vote in state or local 
     constituencies. The fundamental unit of representation is 
     geographic. But money travels freely across district and 
     state lines. Thus, political money facilitates 
     metaphysical carpetbagging. Contributions from or 
     expenditures by nonconstituent individuals and groups 
     divert a legislator's representation away from the 
     constituents in his district and toward nonconstituents, 
     whether they are foreign corporations or national lobbies. 
     Various reform proposals seek to limit carpetbagging by 
     localizing funding: McCain-Feingold, for example, would 
     require candidates not only to limit expenditures but also 
     to raise a minimum percentage of contributions from 
     residents of their home state in order to receive public 
     benefits, such as broadcast and postage discounts.\61\
       Again, this seeks to decide by legislation a question of 
     what constitutes proper representation. To some, it might be 
     legitimate for a legislator to consider the views of national 
     lobbies. For example, those lobbies might share strong 
     overlapping interests with her own constituents. Or the 
     legislator might conceive her obligation as running to the 
     nation as well as a particular district. For the reasons just 
     given, a privileged theory of what constitutes proper 
     political representation cannot serve as an adequate ground 
     for limitation of speech, for free speech is itself the 
     central vehicle for debating that very question.
       E. Diversion of legislative and executive energies
       A fifth critique of the current role of political money, 
     made often by politicians themselves and sometimes elaborated 
     as an argument for campaign reform, is that fundraising takes 
     too much of politicians' time.\62\ Many think that incumbents 
     spend so much time fundraising that governance has become a 
     part-time job.
       This argument supposes a sharp divide between the public 
     activity of governing and the private role of fundraising. 
     But this distinction is hardly clear. The ``marketing'' 
     involved in fundraising consists principally of conveying and 
     testing response to information about past and future policy 
     positions. How this differs from the standard material of all 
     political campaigning is unclear, and it may well be 
     continuous with governing. If the need for fundraising were 
     eliminated, legislators would still have to nurture their 
     constituencies in various ways between elections. Some might 
     think that nurturing grass roots is a more wholesome activity 
     than nurturing fat cast; but in that case, the diversion of 
     energies problem simply collapses back into the problem of 
     inequality in political representation discussed earlier.\63\ 
     To the extent the candidate makes secret promises to PACs or 
     wealthy individuals that would be unpopular with the mass of 
     the electorate, there are strong practical limits to such 
     strategies, such as the danger of press exposure and 
     constituent retaliation.
       However serious the problem of incursion on the candidate's 
     time might be, one thing is clear: the split regime of 
     Buckley exacerbates it. Contribution limits mean that a 
     candidate has to spend more time chasing a larger number of 
     contributors than she would have to do if contributions could 
     be unlimited in amount. Concern about time, therefore, may 
     involve a tradeoff with concern about disproportionate 
     influence.
       F. Quality of debate
       A sixth critique of the unregulated outlay of political 
     money arises on the demand side rather than the supply side. 
     The problem, in a word, is television. Where does all this 
     political money go? The biggest expense is the cost of 
     purchasing advertising time on television (though 
     increasingly, political consultants take a hefty share). The 
     critics regard repetitious, sloganeering spot advertisements 
     as inconsistent with the enlightened rational deliberation 
     appropriate to an advanced democracy. It is not clear what 
     golden age of high-minded debate they hark back to; the 
     antecedent of the spot ad is, after all, the bumper sticker. 
     Nonetheless, these critics clearly aspire to something wiser 
     and better. Ronald Dworkin's lament is representative: ``The 
     national political `debate' is now directed by advertising 
     executives and political consultants and conducted mainly 
     through thirty-second, `sound bite' television and radio 
     commercials that are negative, witless, and condescending.'' 
     \64\ Political expenditure limits, some suggest, would cut 
     off the supply of oxygen to this spectacle and force 
     candidates into less costly but more informative venues such 
     as written materials and town hall debates.
       To the extent this rationale for campaign finance reform is 
     made explicit, it would appear flatly precluded by 
     conventional First Amendment antipaternalism principles. 
     Permitting limitations on speech because it is too vulgar or 
     lowbrow would wipe out a good many pages of U.S. Reports. 
     Surely a judgment that speech is too crass or appeals to base 
     instincts is a far cry from Robert's Rules of Order or other 
     principles of ordered liberty consistent with government 
     neutrality toward the content of speech.
       In any event, the indirect means of limiting expenditures 
     may not do much to solve this problem. Why not directly ban 
     political advertising on television outright? Then everyone 
     could campaign on smaller budgets. British politicians, for 
     example, are barred from taking out paid spots on the 
     airwaves. But Britain has strong parties and small districts; 
     we have neither. Banning television advertising in our 
     political culture would impair politicians', especially 
     challengers', ability to reach large masses of the 
     electorate. Banning television advertisements might make us 
     more republican, but it is hardly clear that it would make us 
     more democratic. Moreover, the special First Amendment 
     dispensation the Court has shown for broadcast regulation is 
     increasingly tenuous, and has not been extended to other, 
     increasingly competitive media. To be fully effective, a ban 
     on television advertising might have to extend to cable and 
     the internet, where the constitutional plausibility of 
     regulation is even more dubious.
       G. Lack of competitiveness
       Finally, a last argument would locate the key problem in 
     current campaign finance practices in the advantage it 
     confers on incumbents over challengers. Here the claim is 
     that a healthy democracy depends on robust political 
     competition and that campaign finance limits are needed to 
     ``level the playing field.'' The reformers contend that 
     unfettered political money confers an anticompetitive 
     advantage upon incumbents. This advantage arises because 
     incumbents participate in current policymaking that 
     affects contributors' interests. Thus, they enjoy 
     considerable fundraising leverage

[[Page S10357]]

     while in office, and indeed, incumbents received on 
     average four times as much in contributions than 
     challengers in the 1996 congressional election.\65\ This 
     incumbent advantage, reformers argue, limits turnover and 
     makes challengers less effective at monitoring and 
     checking incumbents' responsiveness. It is no accident 
     that, for such reasons, some prominent supporters of 
     campaign finance reform, such as Republican Senator Fred 
     Thompson of Tennessee, a cosponsor of the McCain-Feingold 
     bill, are also prominent supporters of term limits.
       But there is some practical reason to think this argument 
     gets the competitiveness point backwards. Campaign finance 
     limits themselves may help to entrench incumbents in 
     office.\66\ Incumbency confers enormous nonfinancial 
     advantages: name recognition, opportunity to deliver 
     benefits, publicity from the free press, and the franking 
     privilege. To offset these advantages, challengers must amass 
     substantial funds. Challengers' lack of prominence may make 
     it more difficult for them to raise funds from large numbers 
     of small donations. They may therefore depend more than 
     incumbents on concentrated aid from parties, ideologically 
     sympathetic PACs, or even wealthy individual private 
     backers.\67\ Of course, once again, contribution limits under 
     the split regime of Buckley exacerbate the problem, as 
     incumbents are more likely to be able to raise a large number 
     of capped contributions than challengers can.
       The effect of regulation or nonregulation on the 
     competitiveness of elections is a difficult empirical 
     question.\68\ But any prediction that campaign regulation 
     will increase electoral competitiveness and turnover is, by 
     virtue of its very empirical uncertainty, at least a 
     questionable ground for limiting political speech.


                               conclusion

       The discussion to this point has sought to disentangle the 
     separate elements of the campaign finance reformers' 
     arguments about the evils of unregulated political money and 
     to suggest why the proposed cure for the seven deadly sins 
     might be worse than the disease, even on the reformers' own 
     assumptions.\69\ I have sought also to show why limits on 
     political money are in deeper tension with current First 
     Amendment conceptions than is often supposed. Buckley's 
     declaration of the impermissibility of redistribution of 
     speaking power has been widely criticized; \70\ the effort 
     here has been to show alternative reasons why the 
     justifications for campaign finance reform might trigger 
     First Amendment skepticism. These reasons include the 
     inseverability of campaign speech from ordinary political 
     discourse and the viewpoint basis inherent in campaign 
     finance reform's selection of one conception of democratic 
     representation over its competitors as a basis for curtailing 
     speech.
       If these alternative reasons have any force, then it is 
     easier to see why campaign finance reform is especially prone 
     to following the law of unintended consequences: for example, 
     limits on individual contributions helped to increase the 
     number of PACs; limits on hard money contributions stimulated 
     the proliferation of soft money contributions; and limits on 
     contributions generally spurred the growth of independent 
     expenditures.\71\ The reason is not just that the demand for 
     political money is peculiarly inelastic and thus, like the 
     demand for other addictive substances, likely to create black 
     markets in the shadow of regulation. The reason is that grim 
     efforts to close down every ``loophole'' in campaign finance 
     laws will inevitably trench unacceptably far upon current 
     conceptions of freedom of political speech. Even if formal 
     campaign expenditures and contributions are limited, the 
     reformers' justifications attenuate as the law reaches the 
     informal political speech that serves as a partial substitute 
     for formal campaign speech. Without altering conventional 
     free speech norms about informal political discourse, there 
     are outer limits on the ability of any reform to limit these 
     substitution effects.
       What scenario are we left with if both political 
     expenditure and contribution limits are deemed 
     unconstitutional? Will political money proliferate 
     indefinitely, along with its accompanying harms? Not 
     necessarily, provided that the identity of contributors is 
     required to be vigorously and frequently disclosed. Arguments 
     against compelled disclosure of identity, strong in contexts 
     where disclosure risks retaliation,\72\ are weaker in the 
     context of attempts to influence candidate elections, as the 
     Buckley decision itself recognized in upholding the 
     disclosure requirements of the 1974 FECA amendments.\73\ 
     Weekly disclosure in the newspapers, or better, daily 
     reporting on the internet, would be a far cry from earlier 
     failed sunshine laws. If the lists of names and figures 
     seemed too boring to capture general attention, enterprising 
     journalists could ``follow the money'' and report on any 
     suspect connections between contributions and policymaking.
       Under this regime--in which contributions and expenditures 
     were unlimited, but the identities of contributors were 
     made meaningfully public--there would be at least three 
     reasons for modest optimism that the harms the reformers 
     fear from unlimited political money would in fact be 
     limited.
     A. Increased supply
       If contributions, like expenditures, could not be limited 
     in amount, the total level of contributions might be expected 
     to increase as there might be a net shift from expenditures 
     to contributions. The supply of political money to candidates 
     would be increased. This might be expected to lower the 
     ``price'' to the candidate of a political contribution. With 
     more quids on offer, a politician has less reason to commit 
     to any particular quo. In this politicians' buyers' market, 
     concerns about unequal political influence that arise under 
     the misleading ``corruption'' heading would arguably 
     attenuate, and contributors might curtail their outlays in 
     response to their declining marginal returns.
     B. Decreased symbolic costs from subterfuge
       If contributions could be made in unlimited amounts, would-
     be contributors would not have to resort to the devices of 
     independent advertisements or party contributions as 
     substitutes. Public perception of a campaign finance system 
     gone out of control rests at least in part on the view that 
     politicians, parties, and donors skirt existing laws by 
     exploiting evasive ``loopholes.'' To the extent that all 
     functional contributions are made as explicit contributions, 
     the symbolic costs of the current split regime of Buckley 
     would decrease.
     C. Voter retaliation
       With contributions fully disclosed and their effects on 
     political outcomes subject to monitoring by the free press, 
     voters would be empowered to penalize candidates whose 
     responsiveness to large contributors they deemed excessive. 
     Voters could do retail what campaign finance reform seeks to 
     do wholesale: encourage diversification in the sources of 
     campaign funding. Political challengers could capitalize on 
     connections between political money and incumbents' official 
     actions. A striking demonstration of this point arose in the 
     1996 presidential election, when the Dole campaign's attack 
     on alleged Democratic fund-raising scandals drove President 
     Clinton's poll numbers into a temporary freefall.\74\ 
     Political money would itself be an election issue; a 
     candidate would have to decide which was worth more to her--
     the money, or the bragging rights to say that she did not 
     take it.
       Of course, the harms of political money cannot be expected 
     to be entirely self-limiting. The deregulation outlined here 
     is only partial; compelled disclosure avoids a regime of 
     absolute laissez-faire. Even this partial deregulation might 
     have unintended consequences. Some of the reformers' goals 
     are widely shared and might require market intervention. For 
     example, achieving adequate competitiveness in elections 
     might require some public subsidies for challengers who can 
     demonstrate certain threshold levels of support--floors but 
     not ceilings for political expenditures.\75\ But the 
     possibilities outlined here at least suggest some hesitation 
     before deciding which way the split regime of Buckley ought 
     to be resolved.


                               footnotes

     \1\ See generally David E. Rosenbaum, In Political Money 
     Game, the Year of Big Loopholes, N.Y. Times, Dec. 26, 1996, 
     at Al (discussing amounts of money on political campaigns).
     \2\ See Bipartisan Campaign Reform Act of 1997, S. 25, 105th 
     Cong. (reintroducing proposed measures to reform campaign 
     financing); Senate Campaign Finance Reform Act of 1996, S. 
     1219, 104th Cong. (proposing measures for campaign finance 
     reform).
     \3\ See Excerpts From the First News Conference of Clinton's 
     Second Term, N.Y. Times, Jan. 29, 1997, at B6 [hereinafter 
     Press Conference Excerpts].
     \4\ 424 U.S. 1 (1976).
     \5\ See id. at 143; Bill Bradley, Congress Won't Act, Will 
     You?, N.Y. Times, Nov. 11, 1996, at A15 [hereinafter Bradley, 
     Congress Won't Act]; Bill Bradley, Perspectives on Campaign 
     Finance; Money in Politics, Ants in the Kitchen, L.A. Times, 
     Jan. 31, 1997, at B9.
     \6\ See Leslie Wayne, After the Election: Campaign Finance; 
     Scholars Ask Court to Backtrack, Shutting Floodgates on 
     Political Spending, N.Y. Times, Nov. 10, 1996, at Sec. 1, 30 
     (describing scholars' letter advocating demise of Buckey v. 
     Valso).
     \7\ See David Stout, State Attorneys General Urge Limits on 
     Campaign Spending, N.Y. Times, Jan. 28, 1997, at A14 (stating 
     that campaign spending threatens integrity of elections).
     \8\ California's 1996 ballot measure is under court 
     challenge. See California Political Reform Act of 1996, 
     Proposition 208, Cal. Gov't Code Sec. 85600 (West Supp. 
     1997). Many provisions of Oregon's 1995 ballot measure, 
     Measure 9, including contributions limits, were invalidated 
     under the free expression provision on the Oregon 
     Constitution in Vannatta v. Keisling, No. SC 542506, 1997 
     Ore. LEXIS 5, at *42*53 (Or. Feb. 6, 1997).
     \9\ Some states have also experimented with public funding of 
     state elections. See generally Kenneth R. Mayer & John M. 
     Wood, The Impact of Public Financing on Electoral 
     Competitiveness: Evidence from Wisconsin, 1964-1990, 20 
     Legis. Stud. Q 69 (1995) (finding that Wisconsin's public 
     subsidies did not increase electoral competitiveness).
     \10\ See Buckley, 424 U.S. at 145-11 (sustaining individual 
     contribution limits but invalidating limits on campaign 
     expenditures).
     \11\ See FEC v. National Conservative Political Action Comm., 
     470 U.S. 480, 501 (1985) (invalidating limits on independent 
     expenditures by PACs); Colorado Republican Fed. Campaign 
     Comm. v. FEC, 116 S. Ct. 2309, 2310-20 (1996) (invalidating 
     limits on independent expenditures by political parties).
     \12\ See Federal Election Campaign Act of 1971, 2 U.S.C. 
     Sec. Sec. 431-455 (1994) (defining campaign contribution 
     limits).
     \13\ For explication of campaign expenditure limitations on 
     political parties, see Colorado Republican, 116 S. Ct. at 
     2313-14.
     \14\ See Buckley, 424 U.S. at 26 (discussing potential 
     corruption that large contributions may bring).
     \15\ See id. at 46-48 (stating that independent expenditures 
     are not as likely to lead to abuse as large contributions).
     \16\ See id. at 49.
     \17\ Colorado Republican, 116 S. Ct. at 2327.
     \18\ See Daniel D. Polsby, Buckley v. Valeo; The Special 
     Nature of Political Speech, 1976 Sur. Ct. Rev. 1, 26-31 
     (arguing that ``the Court made a mistake in allowing 
     expenditure ceilings to ride in on the coattails of public 
     financing'').
     \19\ See, e.g., Mark Tushnet, Corporations and Free Speech, 
     in The Politics of Law 253, 256-57 (David

[[Page S10358]]

     Kairys ed., 1982) (discussing free-speech rights available to 
     powerful and, most specifically, corporations).
     \20\ See Bipartisan Campaign Reform Act of 1997, S. 25, 105th 
     Cong. Sec. 231 (providing for treatment of bundled 
     contributions).
     \21\ For a critique of bundling, see Fred Wertheimer & Susan 
     Weiss Manes, Campaign Finance Reform: A Key to Restoring the 
     Health of Our Democracy, 94 Colum. L. Rev. 1126, 1140-42, 
     1155-56 (1994). Note that the ultimate antibundling measure 
     would be a ban on PAC contributions to political campaigns. 
     However, even ardent reformers regard such a measure as a 
     probable infringement of the right of association. See id. at 
     1155.
     \22\ See Rosenbaum, supra note 1, at Al (reporting statistics 
     on campaign expenditures).
     \23\ See S. 25, Sec. Sec. 211-213 (limiting soft money 
     contributions).
     \24\ See James Bennet, Clinton Announces New Limits on Fund-
     Raising by Democrats, N.Y. Times, Jan. 22, 1997, at AI.
     \25\ See Colorado Republican Campaign Comm. v. FEC, 116 S. 
     Ct. 2309, 2317 (1996) (invalidating limits on independent 
     expenditures by political parties).
     \26\ See California Med. Ass'n v. FEC. 453 U.S. 182, 197-98 
     (1981) (upholding $5000 limit on contributions to multi-
     candidate committees because without such limits, 
     contribution limits upheld in Buckley ``could be easily 
     evaded'').
     \27\ See, e.g., NAACP v. Alabama ex rel. Patterson, 457 U.S. 
     449, 460-61 (1958) (holding that freedom of association is 
     indispensable aspect of liberty protected by Fourteenth 
     Amendment), rev'd, 360 U.S. 240 (1959).
     \28\ See S. 25, Sec. Sec. 101-104 (setting forth benefits for 
     political candidates who limit their campaign expenditures).
     \29\ See CAI. Gov't Code 85600 (West Supp. 1997). Section 
     85600 was enacted by the California Political Reform Act of 
     1996, Proposition 208.
     \30\ Compelled carriage of unwanted speech normally triggers 
     strict First Amendment scrutiny. See Pacific Gas & Elec. Co. 
     v. Public Utils. Comm'n, 475 U.S. 1 20-21 (1986) 
     (invalidating forced inclusion of environmentalist statements 
     in public utility's billing envelope). The Court does not 
     apply strict scrutiny where the government's reason for the 
     compulsion bears no relation to the content of the compelled 
     speech. See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 
     622, 641-42 (1994) (reviewing content-neutral law requiring 
     cable operators to carry unwanted broadcast stations under 
     intermediate scrutiny). Broadcasters, however, have been held 
     subject to compelled carriage requirements that would be 
     unconstitutional if applied to non-broadcast speakers. 
     Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 400-
     01 (1969) (upholding mandatory reply obligations applicable 
     to broadcasters), with Miami Herald Pub. Co. v. Tornillo, 418 
     U.S. 241, 256 (1974) (invalidating mandatory reply 
     obligations applicable to newspapers). With the obsolescence 
     of the spectrum scarcity argument on which Red Lion was 
     premised, it is unclear whether broadcasters would have a 
     compelled-speech objection to the extraction of free or 
     discounted air time for candidates as a condition of their 
     receipt of public licenses.
     \31\ See Reynolds v. Sims, 377 U.S. 533, 561-68 (1964) 
     (holding that state's legislative apportionment scheme 
     violates Equal Protection Clause); Baker v. Carr, 369 U.S. 
     186, 208-37 (1962) (concluding that such claims of equal 
     protection violations are jusiticiable).
     \32\ See Bruce Ackerman, Crediting the Voters: A New 
     Beginning for Campaign Finance, Am. Prospect, Spring 1993, at 
     71, 72 (stating that voucher is an alternative to campaign 
     finance reform).
     \33\ See generally Edward B. Foley, Equal-Dollar-Per-Voter: A 
     Constitutional Principle of Campaign Finance, 94 Colum. L. 
     Rev. 1204 (1994) (arguing that each voter should be 
     constitutionally guaranteed equal financial resources for 
     expenditures on electoral speech).
     \34\ See, e.g., David A. Strauss, Corrpution, Equality, and 
     Campaign Finance Reform, 94 Colum, L. Rev. 1369, 1383 (1994) 
     (suggesting that ``one person, one vote' is indeed the 
     decisive counterexample to the suggestion that the aspiration 
     [of equalizing political speech] is foreign to the First 
     Amendment''); Cass R. Sunstein, Political Equality and 
     Unintended Consequences, 94 Colum. L. Rev. 1390, 1392 (1994) 
     (stating that ``the `one person-one-vote' rule exemplifies 
     the commitment to political equality'' and that ``[l]imits on 
     campaign expenditures are continuous with that rule'').
     \35\ Alexander Meiklejohn, Free Speech and Its Relation to 
     Self-Government 25 (1948).
     \36\ Ronald Dworkin, The Curse of American Politics, N.Y. 
     Rev. Books, Oct. 17, 1996, at 19, 23.
     \37\ For a similar argument by an advocate of the overrule of 
     Buckley and campaign finance reform, see C. Edwin Baker, 
     Limits on Campaign `Speech' Are Just an Extension of Existing 
     Rules, Philadelphia Inquirer, Jan. 28, 1997, at A11. Baker 
     distinguishes between the aspects of politics, such as 
     voting, that are ``legally created and structured'' and 
     ``specially designed to fairly achieve certain results,'' in 
     which speech may be limited, and the realm of informal 
     political debate and dialogue that ``occurs as much between 
     elections as during them,'' in which speech ought to be 
     ``unbounded.'' See id. Like Dworkin, Baker allocates 
     political finance to the formal rather than the informal 
     realm, and hence regulable by norms of equality. See id. But 
     like Dworkin, Baker does not explain how campaign speech may 
     be severed for informal political speech.
     \38\ See, e.g., Sanford Levinson, Regulating Campaign 
     Activity: The New Road to Contradiction?, Mich L. Rev. 939, 
     945-48 (1985) (book review) (noting financial inequalities in 
     political influence, including disproportionate political 
     influence of media conglomerates); id, at 948-49 (noting 
     nonfinancial inequalities in campaign resources, including 
     leisure time and celebrity status); see also Lillian R. 
     BeVier, Campaign Finance Reform: Specious Argument, 
     Intractable Dilemmas, 94 Colum. L. Rev. 1258, 1267 (1994) 
     (cataloguing nonfinancial inequalities in campaigning).
     \39\ See generally Daniel Hays Lowenstein, On Campaign 
     Finance Reform: The Root of All Evil is Deeply Rooted, 18 
     Hofstra L. Rev. 301 (1989) (proposing reform package for 
     legislative general elections).
     \40\ 494 U.S. 652 (1990).
     \41\ See FEC v. Massachusetts Citizens for Life, Inc., 479 
     U.S. 238, 256-65 (1986) (invalidating funding segregation 
     requirement for ideological corporations formed for political 
     purposes).
     \42\ Similar federal requirements govern corporations and 
     labor unions. Since 1907, corporations have been barred from 
     spending corporate treasury funds in federal election 
     campaigns, and, since 1947, so have labor unions. See 2 
     U.S.C. Sec. 441b (1994) (prohibiting use of general funds). 
     Thus, separate political funds are their only vehicle for 
     contribution. See id. (allowing use of segregated funds). 
     Since enactment of the 1974 FECA amendments, even government 
     contractors have been permitted to form segregated political 
     funds. See id. Sec. 441c(b) (permitting government 
     contractors to establish and use separate funds).
     \43\ See Austin, 494 U.S. at 657-60 (examining reasons behind 
     state regulation of corporate expenditures).
     \44\ See, e.g., Janet M. Grenzke, PACs and the Congressional 
     Supermarket: The Currency Is Complex, 33 Am. J. Pol. Sci. 1, 
     19-20 (1989) (concluding that in most cases, PACs do not 
     substantially affect candidates' actions in office, absent 
     popular approval); see also Bruce E. Cain, Moralism and 
     Realism in Campaign Finance Reform, 1995 U. Chi. Legal F. 
     111, 127 (noting that money signals intensity of support in 
     ways voting cannot).
     \45\ See Bradley A. Smith, Faulty Assumptions and 
     Undemocratic Consequences of Campaign Finance Reform, 105 
     Yale L.J. 1049 1065 (1996) (stating that ``[t]he ability to 
     raise money is evidence of political prowess and popularity 
     that would normally translate into votes, regardless of 
     spending'').
     \46\ See Grenzke, supra note 44, at 20 (stating that PACs do 
     not ``distort'' politics because politicians primarily act 
     based on popularity of legislation).
     \47\ See Sanford Levinson, Frameworks of Analysis and 
     Proposals for Reform: A Symposium on Campaign Finance: 
     Electoral Regulation: Some Comments, 18 Hofstra, L. Rev. 411, 
     412-13 (1989) (criticizing campaign finance reformers' lack 
     of attention to role of press).
     \48\ See David A. Strauss, What Is the Goal of Campaign 
     Finance Reform?, 1995 U. Chi. Legal F. 141, 144 (noting that 
     ``once inequality is removed,'' corruption argument has 
     little independent merit).
     \49\ Cf. Pamela S. Karlan, The Rights To Vote: Some Pessimism 
     About Formalism, 71 Tex. L. Rev. 1705, 1712-18 (1993) 
     (distinguishing voting as aggregation of preferences for 
     candidates in an election from voting as means of controlling 
     ongoing governance).
     \50\ LaFalce v. Houston, 712 F.2d 292, 294 (7th Cir. 1983), 
     cert. denied, 454 U.S. 1044 (1984).
     \51\ See Press Conference Excerpts, supra note 3, at B6.
     \52\ See, e.g., Grenzke, supra note 44, at 19-20 (observing 
     that while money gives PACs access to legislators, it is 
     insufficient to garner support for legislation absent popular 
     approval); John R. Wright, Contributions, Lobbying and 
     Committee Voting in the U.S. House of Representatives, 84 Am. 
     Pol. Sci. Rev. 417, 433-35 (1990) (finding that lobbying, not 
     money, affects committee behavior).
     \53\ For a review and critique of this evidence, see 
     Lowenstein, supra note 39, at 306-35.
     See generally Frank J. Sorauf, Inside Campaign Finance: Myths 
     and Realities (1992) (discussing history of campaign finance 
     reform); Frank J. Sorauf, Money in American Elections (1988) 
     (exploring methods of election campaign financing).
     \54\ See Cain, supra note 44, at 115-16 (conducting that so-
     called ``inappropriate motives,'' such as desire to be 
     reelected, are both permissible and necessary in modern 
     elections).
     \55\ See Strauss, supra note 34, at 1371-75 (discussing 
     relationship between campaign finance and other techniques of 
     legislative influence).
     \56\ Indeed, the mere fact that campaign contributions may be 
     consistent with some notions of democratic theory clearly 
     demonstrates the content basis of campaign finance laws. See 
     Cain, supra note 44, at 120-40 (examining private 
     contributions under procedural view of democracy).
     \57\ On the distinctions between these pluralist, populist, 
     and Burkean (or civic republican or trustee) models of 
     political influence in the campaign finance context, see 
     BeVier, supra note 38, at 1269-76 (1994); Cain, supra note 
     44, at 112-22; Stephen E. Gottlieb, The Dilemma of Election 
     Campaign Finance Reform, 18 Hofstra L. Rev. 215, 232-37 
     (1989); Daniel Hays Lowenstein, Political Bribery and the 
     Intermediate Theory of Politics, 32 UCLA L. Rev. 784, 805-42, 
     (1985).
     \58\ See generally United States v. O'Brien, 391 U.S. 367 
     (1968) (addressing draft-card burning); NAACP v. Button, 371 
     U.S. 415 (1963) (addressing constitutionality of Virginia 
     statute limiting litigation rights).
     \59\ See Bradley, Congress Won't Act, supra note 5, at A15 
     (noting that reform will depend on concerned citizens).
     \60\ See generally Kathleen M. Sullivan, Constitutional 
     Constancy: Why Congress Should Cure Itself of Amendment 
     Fever, 17 Cardozo L. Rev. 691, 691-704 (1996) (discussing 
     reasons why Congress should hesitate before proposing 
     constitutional amendments).
     \61\ See Bipartisan Campaign Reform Act of 1997, S. 25, 105th 
     Cong. Sec. 101 (1997).
     \62\ See Vincent Blasi, Free Speech and the Widening Gye of 
     Fund-Raising: Why Campaign Spending Limits May Not Violate 
     the First Amendment After All, 94 Colum. L. Rev. 1281, 1281 
     (1994) (stating that candidates spend too much time fund-
     raising).
     \63\ See Strauss, supra note 48, at 156-57 (concluding that 
     time-diversion argument has little force independent of 
     inequality argument).
     \64\ Dworkin, supra note 36, at 19.
     \65\ See Rosenbaum, supra note 1, at Al (comparing historical 
     campaign fund amounts with those of 1996).
     \66\ See Lillian R. BeVire, Money and Politics: A Perspective 
     on the First Amendment and Campaign Finance Reform. 73 Cal. 
     L. Rev. 1045, 1069-78 (1985) (arguing that, given 
     legislators' inherent interest in maintaining incumbency 
     advantages, courts should be suspicious of campaign finance 
     reform adopted purportedly to equalize speech opportunities).
     \67\ See generally Gottlieb, supra note 57, at 232-37 
     (discussing inequality in election campaigns between 
     incumbents and challengers).
     \68\ See Grenzke, supra note 44, at 19-20 (concluding that 
     contributions generally reflect preexisting support for 
     candidates): Gary C. Jacobson, Campaign Finance and 
     Democratic Control: Comments on Gottlieb and Lowenstein's 
     Papers, 18 Hofstra L. Rev. 369, 371-74 (1989) (discussing 
     arguments that campaign finance regulation hurts 
     competitiveness): Gary C. Jacobson, The Effects of Campaign 
     Spending in House Elections: New Evidence of Old Arguments, 
     34 Am. J. Pol. Sci. 334, 356-58 (1990) [hereinafter Jacobson, 
     House Elections] (concluding that, in determining electoral 
     outcomes, amounts raised by challengers are far more 
     important than amounts raised by incumbents); Mayer & Wood, 
     supra note 9, at 70 (concluding that public financing had 
     ``no effect at all'' on competitiveness of elections in 
     Wisconsin).
     \69\ For further argument that campaign finance reform may be 
     ineffective in promoting its own asserted goals, see Smith, 
     supra note 45, at 1071-86.
     \70\ See, e.g., Sunstein, supra note 34, at 1397-99 (arguing 
     that Buckley may be modern analogue of discredited case of 
     Lochner v. New York, 198 U.S. 45 (1905)).
     \71\ See id., at 1400-11 (cataloguing such efforts).
     \72\ See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 
     462-54 (1958) (shielding NAACP membership lists from 
     compelled disclosure to prevent economic and physical 
     retaliation against its members), rev'd, 360 U.S. 240 (1959); 
     McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342-43 
     (1995) (invalidating Ohio's ban on anonymous campaign 
     literature).
     \73\ See Buckley v. Valeo, 424 U.S. 1, 60-84 (1976) 
     (discussing reporting and disclosure requirements).
     \74\ See Dole Cuts Clinton Lead in One Poll, Orange County 
     Reg., Nov. 2, 1996, at A27 (stating Clinton dropped in polls 
     because of Dole's attacks on his campaign financing methods).
     \75\ See Jacobson, House Elections, supra note 68, at 356-58 
     (concluding that, because amounts raised by challengers are 
     more important than those raised by incumbents, once 
     threshold requirement of popularity has been met, floors 
     without ceilings might increase competitiveness).


[[Page S10359]]


  Mr. McCONNELL. Mr. President, no discussion of the issue advocacy 
provisions in the McCain-Feingold bill can be complete without the 
input of James E. Bopp, Jr., who is perhaps the most experienced lawyer 
in America in this area of the law and the bane of the FEC's 
irresponsible battalion of lawyers who have made it their mission in 
life to harass citizen groups. For that worthy accomplishment, Mr. Bopp 
deserves special commendation.
  I ask unanimous consent to have printed in the Record Jim Bopp's 
recent law review article entitled, ``The First Amendment Is Not the 
Loophole,'' which he coauthored with Richard E. Coleson.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 [Reprinted from University of West Los Angeles Law Review, Volume 28, 
                                 1997]

 The First Amendment Is Not a Loophole: Protecting Free Expression In 
                     The Election Campaign Context

             (By James Bopp, Jr.* and Richard E. Coleson**)

       ``Congress shall makes no law. . . abridging the Freedom of 
     Speech. . . .''\1\


                              INTRODUCTION

       The First Amendment plainly states that Congress is to 
     ``make no law'' which would ``abridg[e] the freedom of 
     speech,''\2\ yet Congress enacted the Federal Election 
     Campaign Act of 1971 (FECA), as amended in 1974,\3\ precisely 
     to abridge certain forms of speech in election campaigns. In 
     the landmark case of Buckley v. Caleo,\4\ the United States 
     Supreme Court struck down many FECA provisions on free 
     expression grounds.
       For the two decades since Buckley, the Federal Election 
     Commission (FEC) has fought to close the perceived loopholes 
     created by Buckley in the federal election laws, so that the 
     agency could regulate all speech relating in any way to 
     federal elections. Throughout this period, the Supreme Court 
     has repeatedly proclaimed that the First Amendment is not a 
     loophole--free expression must be protected amidst the rush 
     to impose campaign finance restrictions.
       Undeterred, the FEC has created new theories in an attempt 
     to bypass Supreme Court holdings and pursued regulation of 
     constitutionally-protected expression. On June 26, 1996, the 
     United States Supreme Court decided the case of Colorado 
     Republican Federal Campaign Committee v. FEC (Colorado 
     Republican),\5\ again rejecting the FEC's creative efforts to 
     regulate political speech protected by the First Amendment. 
     This article discusses the Colorado Republican case in its 
     historical context of conflict between federal court 
     protection of free expression and attempts, by the FEC and 
     various states, to regulate protected expression in the name 
     of campaign finance reform.
       The article is written from a practical perspective, i.e., 
     what the courts have held, not what certain theoreticians 
     would like the courts to hold.\6\ In Part I, ``A Primer on 
     Protected Political Expression,'' the authors will summarize 
     briefly some of the key theoretical debates, but will 
     primarily focus on the principles undergirding free political 
     expression, discuss some terms of art, and explain the sorts 
     of activity over which litigation usually arises. The robust 
     First Amendment protection of issue advocacy will be the 
     topic of Part II, ``Supreme Court Defense of Issue 
     Advocacy Through Buckley,'' and Part III, ``FEC Efforts to 
     Stifle Issue Advocacy.'' Part IV will focus on ``Other 
     Protection for Free Political Expression,'' discussing (1) 
     MCFL-type organizations, (2) members, (3) anonymous 
     literature, (4) caps on contributions and expenditures, 
     (5) political committees, (6) burden of proof, and (7) 
     prior restraint of speech. In Part V, ``A Proposal for 
     Speech-Enhancing Campaign Reform,'' the article will 
     conclude with a proposal for constitutionally-permissible 
     campaign finance reforms which would enhance, rather than 
     suppress, the free flow of speech about candidates and 
     issues of public concern which is essential to our 
     democratic Republic.
---------------------------------------------------------------------------
     See footnotes at end of article.
---------------------------------------------------------------------------


             i. a primer on protected political expression

       Our political system is based on the model of an open and 
     free marketplace of ideas. The Framers of our Constitution 
     believed that good ideas will triumph over bad ideas if the 
     People are free to debate and to champion the ideas they find 
     convincing. Free speech is not only valuable intrinsically as 
     a personal liberty, but it is a necessary prerequisite for 
     limited representative government, particularly in free 
     elections.\7\ This has been well stated by the District of 
     Columbia Circuit: ``If popular elections form the essence of 
     republican government, free discourse and political activity 
     formed the prerequisite for popular elections. As Madison 
     wrote, a government which is `elective, limited and 
     responsible' to the people requires `a greater freedom of 
     animadversion' than one not so structured.''
       In our day, the Supreme Court has recognized that ``debate 
     on the qualifications of candidates [is] integral to the 
     operation of the system of government established by our 
     Constitution.'' Because the electoral process plays so 
     central a role in our conception of a free government, ``it 
     can hardly be doubted that the constitutional guarantee [of 
     the First Amendment] has its fullest and most urgent 
     application precisely to the conduct of campaigns for 
     political office.'' \8\

                           *   *   *   *   *

       This effort goes by the innocuous name of campaign finance 
     reform. While ``reform'' is generally considered a salutary 
     goal, ``reform'' is not good when it is a euphemism for 
     silencing the voice of the People at election time.
       The Supreme Court and lower courts have repeatedly had to 
     protect the First Amendment rights of the People against 
     misguided ``reform'' efforts which impinge on essential 
     liberties.\24\ Truly beneficial ``reform'' would enhance 
     the power of the People to communicate and promote their 
     ideas, not repress it. Proper reform would return power to 
     the People, not enhance the power of media elite, wealthy 
     candidates, and Washington insiders to influence 
     elections--which is the ultimate outcome if the People's 
     voice through their political parties and political 
     committees is muffled or silenced.\25\
       Bopp writes that this fight against unconstitutional 
     political speech restrictions advanced under the guise of 
     ``reform'' is bipartisan. That may be the case in the outside 
     world but, regrettably, that is not the situation in the 
     Senate where it appears Democrats are going to join hands in 
     delivering a crushing blow to First Amendment freedom that 
     Americans have savored for two hundred years.
       The battle to preserve free speech rights in the election 
     context is bi-partisan and non-ideological, as evidenced by 
     the existence of the Free Speech Coalition. This Coalition is 
     co-chaired by Ellie Smeal of the Fund for the Feminist 
     Majority and David Keene of the American Conservative Union 
     and is made up of approximately 50 public interest advocacy 
     groups ranging ideologically from the left to the right, from 
     environmental activist groups to pro-business organizations, 
     and from gun control enthusiasts to the National Rifle 
     Association. The broad-based agreement on protecting free 
     expression rights in the election context was symbolized 
     recently when James Bopp, Jr., General Counsel for the 
     National Right to Life Committee (NRLC) and co-author of the 
     present article, presented testimony on behalf of the Free 
     Speech Coalition before the U.S. Senate Committee on Rules 
     and Administration considering campaign finance reform.\26\ 
     These public policy groups agree on little else, but they 
     agree that the First Amendment protects their right to 
     advocate on issues on public concern. This is the marketplace 
     of ideas at work, with opposing groups vying for the blessing 
     of public opinion on their issue. It is America working at 
     its best.\27\
       This battle for First Amendment liberty is being fought 
     over several types of activities. It will be helpful to 
     consider some of them briefly and note some terms of art.
       A ``political action committee'' (PAC) (also sometimes 
     known as a ``political committee'' in statutes) is nothing 
     more than individuals uniting to promote issues and 
     candidates more effectively than they could do on their own. 
     \28\ A PAC may lawfully engage in ``express advocacy,'' i.e., 
     expressly advocate the election or defeat of a clearly 
     identified candidate, \29\ and make contributions to 
     candidates. First Amendment rights do not diminish in any way 
     because persons associate to advocate for their cause more 
     effectively; in fact, the right of citizens to band together 
     in PACs is specifically protected by the First Amendment's 
     freedom of association protections.\30\ Thus, pejorative 
     references to PACs as ``special interests'' which need to be 
     stifled are actually misguided attacks on the core First 
     Amendment rights of free political expression and 
     association. The marketplace-of-ideas response to a PAC 
     message one opposes is not to silence PACs but to form one's 
     own association of persons to advocate an opposing message in 
     the marketplace. \31\ The cacophony of competing 
     communications may sometimes be deafening and disquieting, 
     but that is the way of liberty. The road to serfdom is the 
     quiet and quiescent road. Recognizing free speech as an 
     inherent good and the necessity of free political debate and 
     association in a democratic republic, the Supreme Court has 
     permitted only limited regulation of PACs. \32\
       Litigation often arises over the scope of a state's 
     definition of a political committee or PAC. Often states try 
     to channel all individuals and groups, who advocate on issues 
     in a manner which would in any way ``influence'' an election, 
     into the political committee category so that they will have 
     to register and report as if they were a political committee. 
     \33\ However, an organization cannot constitutionally be 
     required to register and report as a political committee 
     unless it ``major purpose'' is the nomination or election of 
     candidates. Imposing the relatively burdensome reporting 
     requirements which may be imposed on PACs on issue-advocacy 
     groups is simply too heavy a burden on free expression to be 
     permitted. \34\ There is no compelling governmental interest 
     to justify such a burden on First Amendment rights.
       An ``independent expenditure'' is an expenditure made for a 
     communication which contains ``express advocacy'' and is made 
     without any prior consultation or coordination with a 
     candidate. An entity which makes an independent expenditure 
     may be required to report that expenditure, even if it is not 
     required to register and report as a political committee. 
     \35\

[[Page S10360]]

       ``Issue advocacy'' is advocacy of issues without engaging 
     in express advocacy. \36\ For example, if a pro-life group 
     publishes a newletter on the eve of an election describing 
     Candidate D as pro-life and Candidate C as pro-abortion 
     rights in an article about the two candidates, that is issue 
     advocacy, not express advocacy, because there have been no 
     explicit words expressly advocating the election or defeat of 
     a clearly identified candidate for public office. \37\ The 
     candidates have been clearly identified, they are running for 
     public office, but saying that Candidate D is pro-life is not 
     express advocacy, it is issue advocacy. This is so even 
     though the statement is made in a pro-life newsletter, in a 
     discussion of candidates, on the eve of an election. \38\
       A ``voter guide'' is a table showing the positions of 
     candidates on various issues. If it does not expressly 
     advocate the election or defeat of any of the identified 
     candidates, the voter guide is pure issue advocacy and may 
     not be regulated by the FEC or any state. The voter guide may 
     even indicate what is the response preferred by the 
     organization publishing the guide, e.g. by indicating a 
     favorable answer (from the perspective of the publisher) with 
     a (+) and an unfavorable response with a minus (-). Or the 
     voter guide can word the questions in such a way that a 
     candidate giving favored responses will have a ``yes'' answer 
     for every question, while a candidate giving disfavored 
     responses will have all ``no'' answers.\39\ These voter 
     guides may be paid for and distributed by any individual or 
     organization.\40\
       Because they discuss candidates, are distributed at 
     election time, and may actually influence elections, voter 
     guides have been the target of intense efforts by the 
     FEC,\41\ state legislatures,\42\ and the Democrat Party \43\ 
     in an effort to force voter guide activity into the 
     definition of express advocacy and, thereby, prohibiting 
     citizens groups which publish them from doing so unless they 
     register and report as political committees. Such efforts 
     have been repeatedly rejected as courts have followed the 
     bright-line express advocacy test set out by the United 
     States Supreme Court to protect issue advocacy.
       Advocates of McCain-Feingold cling to a groundless belief 
     that the Supreme Court is going to do a 180 and suddenly 
     retreat on decades of jurisprudence blasting such gross 
     government intrusion into First Amendment speech. A notion 
     Bopp dispels.


      II. supreme court defense of issue advocacy through buckley

       The United States Supreme Court has long and carefully 
     watched over efforts to regulate political speech in order to 
     ensure that the guarantees of the First Amendment \44\ are 
     not denied. This is because such restrictions ``limit 
     political expression `at the core of our electoral process 
     and of First Amendment freedoms.' '' \45\ All political 
     speech, including communications which expressly advocate 
     election or defeat of Supreme Court has declared: ``[T]he 
     First Amendment right to `speak one's mind . . . on all 
     public institutions' includes the right to engage in `` 
     `vigorous advocacy' no less than `abstract discussion.' '' 
     Advocacy of the election or defeat of candidates for federal 
     office is no less entitled to protection under the First 
     Amendment than the discussion of political policy generally 
     or advocacy of the passage or defeat of legislation.'' \46\
       Not only has the Court afforded strong constitutional 
     protection for political speech in general, but it has 
     afforded exceptionally strong constitutional protection for 
     issue-oriented speech. As a result, the Court has repeatedly 
     given a narrowing construction to statutes regulating 
     political speech, so as to permit regulation of only express 
     advocacy, in order to shield the statutes from constitutional 
     attack. Moreover, the Supreme Court has established two 
     bright-line tests to protect the advocacy of issues in the 
     election context: (1) the ``express advocacy test'' and (2) 
     the ``major purpose test.'' \47\ These will be discussed in 
     turn.


                a. the bright-line express advocacy test

       In a series of cases, the United States Supreme Court has 
     drawn a distinction between express advocacy, which may be 
     regulated, and issued advocacy, which may not be regulated. 
     As shall be seen, both enjoy full First Amendment protection, 
     but the compelling interest in preventing corruption (or its 
     appearance) in the election process is only sufficiently 
     compelling to warrant some regulation of express 
     advocacy.\48\ No governmental interest is sufficiently 
     compelling to regulate issue advocacy.
       In 1948, the Supreme Court considered the case of United 
     States v. Congress of Industrial Organizations (C.I.O).\49\ 
     C.I.O. concerned a federal statute prohibiting a corporation 
     or labor organization from making ``any expenditure in 
     connection with a federal election.'' \50\ Under this 
     provision, an indictment was returned against the C.I.O. and 
     its president for publishing, in The CIO News, a statement 
     urging all members of the C.I.O. to vote for a particular 
     candidate for Congress in an upcoming election.\51\ In 
     affirming a dismissal of the indictment, the Court observed: 
     ``If Sec. 313 were construed to prohibit the publication, by 
     corporations and unions in the regular course of conducting 
     their affairs, of periodicals advising their members, 
     stockholders or customers of danger or advantage to their 
     interests from the adoption of measures, or the election to 
     office of men espousing such measures, the gravest doubt 
     would arise in our minds as to its constitutionality.'' \52\
       A lengthy footnote appended to this statement set forth 
     several passages from case law wherein the Court had declared 
     the specially protected nature of free speech concerning 
     public policy and political matters:
       ``Free discussion of the problems of society is a cardinal 
     principle of Americanism--a principle which all are zealous 
     to preserve. Penekamp v. Florida, 328 U.S. 331, 345 [(1946)].
       ``The case confronts us again with the duty our system 
     places on this Court to say where the individual's freedom 
     ends and the State's power begins. Choice on that border, now 
     as always delicate, is perhaps more so where the usual 
     presumption supporting legislation is balanced by the 
     preferred place given in our scheme to the great, the 
     indispensable democratic freedoms secured by the First 
     Amendment. Thomas v. Collins, 323 U.S. 516, 529-30 [(1945)].
       ``For the First Amendment does not speak equivocally. It 
     prohibits any law `abridging the freedom of speech, or of the 
     press.' It must be taken as a command of the broadest scope 
     that explicit language, read in the context of a liberty-
     loving society, will allow, Bridges v. California, 314 U.S. 
     252, 263 [(1941)].'' \53\
       In 1976, the Supreme Court considered a successor statute 
     to the one discussed in C.I.O., the Federal Election Campaign 
     Act of 1971, as amended in 1974.\54\ This new statute was 
     reviewed in Buckley v. Valeo.\55\
       Buckley dealt, inter alia, with a provision which limited 
     ``any expenditure . . . relative to a clearly identified 
     candidate.' '' \55\ The provision placed a limit on the 
     amount of an independent expenditure on behalf of a 
     candidate. However, this provision was considered to be 
     unconstitutionally vague.\57\ Therefore, the Court construed 
     it with another provision of the same statute to require `` 
     `relative to' a candidate to be read to mean `advocating the 
     election or defeat of' a candidate.'' \58\
       However, as the Buckley Court noted, this construction 
     merely refocused the vagueness problem. The real problem, the 
     Court noted, as that: ``the distinction between discussion of 
     issues and candidates and advocacy of election or defeat of 
     candidates may often dissolve in practical application. 
     Candidates, especially incumbents, are often intimately tied 
     to public issues involving legislative proposals and 
     governmental actions. Not only do candidates campaign on the 
     basis of their positions on various public issues, but 
     campaigns themselves generate issues of public interest.\59\
       Because of the problem described, the Supreme Court settled 
     on the express advocacy test as marking the line of 
     demarcation between the permitted and the forbidden. This 
     test is constitutionally mandated because only a statute 
     regulating the express advocacy of a clearly identified 
     federal candidate has a sufficiently bright line of 
     distinction to make it constitutionally defensible. The 
     Supreme Court, in Buckley, explained the problem with a 
     quotation from Thomas v. Collins: ``[W]hether words intended 
     and designed to fall short of invitation would miss the mark 
     is a question both of intent and of effect. No speaker, in 
     such circumstances, safely could assume that anything he 
     might say upon the general subject would not be understood by 
     some as an invitation. In short, the supposedly clear-cut 
     distinction between discussion, laudation, general advocacy, 
     and solicitation puts the speaker in these circumstances 
     wholly at the mercy of the varied understanding of his 
     hearers and consequently of whatever inference may be drawn 
     as to his intent and meaning. Such a distinction offers no 
     security for free discussion. In these conditions it blankets 
     with uncertainty whatever may be said. It compels the speaker 
     to hedge and trim.\60\''
       Thus, the Supreme Court, in Buckley, said that ``[t]he 
     constitutional deficiencies described in Thomas v. Collins 
     can be avoided only by reading Sec. 608(e)(1) [placing a 
     ceiling on independent expenditures] as limited to 
     communications that include explicit words of advocacy of 
     election or defeat of a candidate.'' \61\
       Without such a clear line of demarcation, then, a speaker 
     is forced to ``hedge and trim'' comments made on issues of 
     public importance for fear he will be charged with forbidden 
     electioneering. This is too heavy a burden on First Amendment 
     Rights to be constitutionally permitted.\62\
       The Buckley Court concluded that ``[t]he constitutional 
     deficiencies'' of such unclear statutory language could only 
     be cured by reading the statute ``to apply to expenditures 
     for communications that in express terms advocate the 
     election of a clearly identified candidate for a public 
     office.'' \63\ The Court added that ``[t]his construction 
     would restrict the application of Sec. 608(e)(1) to 
     communications containing express words of advocacy of 
     election or defeat, such as `vote for,' `elect,' 
     `support,' `cast your ballot for,' `Smith for Congress,' 
     `vote against,' `defeat,' `reject.' '' \64\
       The Buckley Court then proceeded to determine whether the 
     statute, ``even as thus narrowly and explicitly construed, 
     impermissibly burdens the constitutional right of free 
     expression.'' \65\ The Court determined that the government 
     could not advance an interest in support of the statute 
     sufficient to ``satisfy the exacting scrutiny applicable to 
     limitations on core First Amendment rights of political 
     expression.'' \66\
       In sum, the Court established the express advocacy test as 
     a bright-line rule to distinguish political advocacy, which 
     could be regulated, from issue advocacy, which may not.

[[Page S10361]]

                 b. the bright-line major purpose test

       In Buckley, the Supreme Court also established the bright-
     line ``major purpose'' test. In practical application, this 
     test means that government may not require an organization 
     which makes contributions and independent expenditures to 
     register and report as a political committee unless the 
     ``major purpose'' of the organization is the election or 
     nomination of candidates for political office.\67\ Government 
     may, however, require that the independent expenditures be 
     reported by the organizations making them and that 
     contributions be reported by the candidate receiving them. 
     However, there is no sufficiently compelling interest to 
     justify imposing the onerous burdens imposed on a political 
     committee on an issue advocacy group.\68\
       This test was set forth in the Buckley Court's discussion 
     of 2 U.S.C. Sec. 434(e), which required ``[e]very person 
     (other than a political committee or candidate) who makes 
     contributions or expenditures'' aggregating over $100 in a 
     calendar year ``other than by contribution to a political 
     committee or candidate'' to file a statement with the 
     Commission. Unlike the other disclosure provisions, this 
     section does not seek the contribution list of any 
     association. Instead, it requires direct disclosure of what 
     an individual or group contributes or spends.'' \69\
       ``In considering this provision,'' the Court wrote, ``we 
     must apply the same strict standard of scrutiny, for the 
     right of associational privacy developed in NAACP v. Alabama 
     derives from the rights of the organization's members to 
     advocate their personal points of view in the most effective 
     way.'' \70\
       The Court continued:
       ``When we attempt to define `expenditure' . . . . 
     [a]lthough the phrase, `for the purpose of . . . influencing' 
     an election or nomination, differs from the language used in 
     Sec. 608(e)(1), it shares the same potential for encompassing 
     both issue discussion and advocacy of a political result. The 
     general requirement that `political committees' and 
     candidates disclose their expenditures could raise similar 
     vagueness problems, for `political committee' is defined only 
     in terms of amount of annual `contributions' and 
     `expenditures,' and could be interpreted to reach groups 
     engaged in purely issue discussion. . . . To fulfill the 
     purposes of the Act they need only encompass organizations 
     that are under the control of a candidate or the major 
     purpose of which is the nomination or election of a 
     candidate. Expenditures of candidates and `political 
     committees' so construed can be assumed to fall within the 
     core area sought to be addressed by Congress. They are, by 
     definition, campaign related.
       ``But when the maker of the expenditure is not within these 
     categories--when it is an individual other than a candidate 
     or a group other than a `political committee'--the relation 
     of the information sought to the purposes of the Act may be 
     too remote. To insure that the reach of Sec. 434(e) is not 
     impermissibly broad, we construe `expenditure' for purposes 
     of that section in the same way we construed the terms of 
     Sec. 608(e)--to reach only funds used for communications that 
     expressly advocate the election or defeat of a clearly 
     identified candidate.'' \71\
       So construed, the reporting of independent expenditures is 
     justified by the substantial governmental interest in 
     ``sched[ding] the light of publicity on spending that is 
     unambiguously campaign related,'' \72\ i.e., an interest in 
     preventing corruption in the political process.
       After the Supreme Court's 1976 Buckley decision, the 
     express advocacy test and the major purpose test were clearly 
     deployed as twin defenses against governmental encroachment 
     on issue advocacy. However, as shown in the next section, the 
     FEC and some state legislatures have spent the next two 
     decades trying to evade the Court's pronouncements.
       Before proceeding, however, comment needs to be made on the 
     recent case of Akins v. FEC.\73\ That case held that the 
     major purpose test applied when an organization engaged in 
     independent expenditures, but not when it made contributions. 
     The decision, however, was wrongly decided because the court 
     did not engage in the most basic First Amendment analysis, 
     which would have led to a different result.
       The case involved a complaint to the FEC that the American 
     Israel Public Affairs Committee (AIPAC) was a ``political 
     committee'' subject to the broad disclosure requirements and 
     limits imposed on political committees. The FEC dismissed the 
     complaint because the Committee did not met its definition 
     for a political committee. The definition required that a 
     committee (1) meet the $1,000 expenditure threshold and (2) 
     have as its major purpose the nomination or election of 
     candidates. The FEC ``determined that AIPAC likely had made 
     campaign contributions exceeding the $1,000 threshold, but 
     concluded that there was not probable cause to believe AIPAC 
     was a political committee because its campaign-related 
     activities were only a small portion of its overall 
     activities and not its major purpose.''\74\ The FEC argued 
     that Buckley required it to include a major purpose exception 
     for such contributions in its rules implementing 2 U.S.C. 
     Sec. 431(4)(A) (the definition of ``political 
     committee'').\75\ Ironically, as the FEC properly followed 
     and defended the Buckely major purpose test in this instance, 
     it was overruled.
       The D.C. Circuit's analysis reviewed the language of 
     Buckley and decided that the major purpose test was only 
     established by the Court in the context of expenditures.\76\ 
     The Akins court similarly dismissed the language about the 
     major purpose test in MCFL \77\ as only applying in the 
     context of independent expenditures, so that ``the Court's 
     rationale in MCFL and Buckely is simply inapplicable to the 
     present case.'' \78\ The Akins court proceeded with some 
     policy arguments about how the FEC's interpretation ``would . 
     . . allow a large organization to contribute substantial sums 
     to campaign activity, as long as the contributions are 
     a small portion of the organization's overall budget, 
     without being subject to the limitations and requirements 
     imposed on political committees.'' \79\ Of course, that is 
     so and is as it should be. The very idea of the major 
     purpose test is that the heavy limits and disclosure 
     requirements imposed on political committees are too great 
     a burden on the First Amendment rights of organizations 
     whose major purpose is not campaign advocacy. It is 
     sufficient that the details of each independent 
     expenditure or contribution to a candidate be disclosed to 
     the FEC as matters of public record.
       What was glaringly absent from the Akins opinion was a 
     constitutional analysis.\80\ A proper constitutional analysis 
     would have begun with the strong First Amendment protection 
     for all forms of political expression, including 
     contributions. Next, the analysis would have asked whether 
     there was any compelling governmental interest sufficient to 
     override the First Amendment's protection. A proper analysis 
     would have noted that the only interests found sufficiently 
     compelling by the Court are the interests in preventing 
     corruption and its appearance in the political process. The 
     analysis would have then asked whether contributions to 
     candidates from an organization whose major purpose is 
     education and lobbying posed such a threat of corruption to 
     the political system that is could only be cured by imposing 
     on the organization the heavy burdens imposed on PACs. The 
     answer, of course, would be that fully disclosed 
     contributions, which are a small fraction of an 
     organization's activities, pose not credible threat of 
     corruption or the appearance thereof. Therefore, imposing the 
     limitations and broad disclosure requirements, which are 
     placed on political committees, on an organization whose 
     major purpose is not the nomination or election of candidates 
     would violate the First Amendment in the same way that the 
     Constitution is violated in the context of such organizations 
     making independent expenditures.
       It may safely be assumed that, at such a time as the United 
     States Supreme Court has the opportunity to review the issue 
     raised in Akins, the major purpose test will be reasserted in 
     the context of contributions, as well as independent 
     expenditures. Meanwhile, it is clearly in force with respect 
     to independent expenditures and with respect to contributions 
     in all but the D.C. Circuit. The FEC filed a petition for a 
     writ of certiorari on April 7, 1997.\81\


            iii. failed fec efforts to stifle issue advocacy

       The FEC apparently did not like the answers the Supreme 
     Court gave in Buckley \82\ because it soon began challenging 
     the decision with enforcement actions and rulemaking that did 
     not follow the express advocacy and major purpose tests. This 
     resulted in a long string of litigation, traced below, 
     highlighted by judicial rebuffs and rebukes.
       In this twenty-year effort to suppress political speech by 
     circumventing Buckley, the FEC has treated the First 
     Amendment as a loophole in the Federal Election Campaign Act 
     which it is the FEC's duty to close, and the FEC has treated 
     United States Supreme Court decisions against it as 
     inconveniences to be overcome. As a result, the FEC has 
     engaged in a sustained and unprecedented assault on the First 
     Amendment, consuming enormous FEC resources. Rather than 
     enforce the many uncontroversial and clearly constitutional 
     provisions of the FECA, the FEC has used its limited 
     resources to launch a series of regulatory changes and 
     enforcement actions with the intent of expanding its 
     powers to regulate free speech. This effort has resulted 
     in a series of court cases striking down these regulations 
     \83\ and defeating the FEC's enforcement actions.\84\
       The courts have, therefore, frustrated the unlawful efforts 
     of the FEC to impinge on free speech, but at an enormous cost 
     in taxpayer funds and in attorney fees for successful victims 
     of the FEC's enforcement actions. The cost to the free speech 
     of those intimidated by the heavy hand of the FEC, however, 
     cannot be calculated. Instead of enforcing the important and 
     uncontroversial provisions of the Act, the FEC has focused 
     its attention on ``grassroots groups and citizens who want to 
     take part in the political debate, too--groups far less well-
     funded and less capable of extricating themselves from the 
     tangle of FEC regulations.'' Thus, the FEC has functioned 
     ``more and more as a censor of political expression, 
     especially by issue-oriented, grassroots activists.'' \85\ 
     Some of the most significant cases are reviewed below.


                        A. FEC v. AFSCME (1979)

       In FEC v. American Federation of State, County and 
     Municipal Employees (AFSCME),\86\ the District of Columbia 
     district court rejected the FEC's contention that a poster 
     qualified as express advocacy because it contained a clearly 
     identified candidate, ``may have tended to influence 
     voting,'' and ``contain[ed] communication on a public issue 
     widely debated during the campaign.'' \87\ The AFSCME union 
     had printed a

[[Page S10362]]

     poster with a caricature of President Ford wearing a button 
     reading ``Pardon Me'' and embracing President Nixon, but it 
     did not report the expenditure as express advocacy. The 
     district court held that this was issue advocacy, not express 
     advocacy, because it contained no express words urging the 
     election or defeat of a clearly identified candidate.\88\ The 
     AFSCME court noted that ``[t]he Buckley analysis of the 
     limits of political activity is based on long recognized 
     principles: (1) political expression, including discussion of 
     candidates, is afforded the broadest protection under the 
     first amendment; and (2) discussion of public issues which 
     are also campaign issues unavoidably draws in candidates and 
     tends to inexorably exert influence in voting at elections.'' 
     \89\


                        B. FEC V. CLITRIM (1980)

       Undeterred, the FEC brought suit against the Central Long 
     Island Tax Reform Immediately Committee for the 
     Organization's failure to report funds expended to publish 
     and distribute a leaflet advocating lower taxes and smaller 
     government. The Second Circuit, in FEC v. Central Long Island 
     Tax Reform Immediately Committee (CLITRIM),\90\ adhered to 
     the express advoacy test set forth in Buckley and, therefore, 
     ruled against the FEC.
       The first provision at issue required ``any `person . . . 
     who makes contributions or independent expenditures expressly 
     advocating the election or defeat of a clearly identified 
     candidate' '' in excess of one hundred dollars to file a 
     report with the FEC.\91\ The second provision required ``any 
     person who `makes an expenditure for the purpose of financing 
     communications expressly advocating the election or defeat 
     of a clearly identified candidate' . . . through media, 
     advertising or mailing to state whether the communication 
     is authorized by a candidate. . . .'' \92\
       The CLITRIM court noted ``the broad protection to be given 
     political expression,'' \93\ as indicated by the Supreme 
     Court in Buckley, and observed that: ``[t]he language quoted 
     from the statutes was incorporated by Congress in the 1976 
     FECA amendments to conform the statute to the Supreme Court's 
     holding in Buckley v. Valeo that speech not by a candidate or 
     political committee could be regulated only to the extent 
     that the communications ``expressly advocate the election or 
     defeat of a clearly identified candidate.'' \94\
       The court further observed that limiting the statutes to 
     reach only express advocacy ``is consistent with the firmly 
     established principle that the right to speak out at election 
     time is one of the most zealously protected under the 
     Constitution.'' \95\
       The CLITRIM court held that: ``[t]he history of 
     Sec. Sec. 434(c) and 441d thus clearly establish that, 
     contrary to the position of the FEC, the words ``expressly 
     advocating'' mean[ ] exactly what they say. The FEC, to 
     support its position, argues that `[t]he TRIM bulletins at 
     issue here were not disseminated for such a limited purpose' 
     as merely informing the public about the voting record of a 
     government official. Rather the purpose was to unseat `big 
     spenders.' Thus, the FEC would apparently have us read 
     `expressly advocating the election or defeat' to mean for the 
     purpose, express or implied, of encouraging election or 
     defeat. This would, by statutory interpretation, nullify the 
     change in the statute ordered in Buckley v. Valeo and adopted 
     by Congress in the 1976 amendments. The position is totally 
     merit-less.'' \96\
       From the CLITRIM decision, it seemed clear that the express 
     advocacy test was firmly ensconced as black-letter 
     constitutional law. Nevertheless, the FEC continued its 
     campaign to eliminate freedom of speech on issues at election 
     time.


                        C. FEC. v. NCPAC (1985)

       In 1985, the Supreme Court considered FEC v. National 
     Conservative Political Action Committee (NCPAC).\97\ This 
     case involved a declaratory judgment action seeking to have a 
     provision of the Presidential Election Campaign Fund Act \98\ 
     declared constitutional. It was originally initiated by the 
     Democrat National Committee in hopes that it could prevent 
     NCPAC and another conservative PAC (Fund For A Conservative 
     Majority) from implementing their expressed intent to spend 
     large sums of money to aid the 1984 reelection of President 
     Ronald Reagan.\99\
       The disputed provision made it a criminal offense for an 
     independent political committee ``to expend more than $1,000 
     to further [a] . . . candidate's election,'' if the 
     ``Presidential candidate elects public financing.'' \100\ The 
     Supreme Court declared the $1,000 cap on independent 
     expenditures unconstitutional because such independent 
     expenditures enjoyed full First Amendment protection and 
     there was no compelling state interest to override this right 
     of free expression.\101\
       In NCPAC, the Supreme Court stated the only interest 
     sufficiently compelling to justify regulation of political 
     speech in the form of contributions and expenditures:
       ``We held in Buckley and reaffirmed in Citizens Against 
     Rent Control that preventing corruption or the appearance of 
     corruption are the only legitimate and compelling government 
     interests thus far identified for restricting campaign 
     finances. . . .
       ``Corruption is a subversion of the political process. 
     Elected officials are influenced to act contrary to their 
     obligations of office by the prospect of financial gain to 
     themselves or infusions of money into their campaigns. The 
     hallmark of corruption is the financial quid pro quo: dollars 
     for political favor.'' \102\
       The Court went on to state that: ``The fact that candidates 
     and elected officials may alter or reaffirm their own 
     positions on issues in response to political message paid for 
     by PACs can hardly be called corruption, for one of the 
     essential features of democracy is the presentation to the 
     electorate of varying points of view.'' \103\
       The implication of these statements should have been clear, 
     even to the FEC. For years the FEC has maintained the 
     position that it ought to be able to regulate issue advocacy 
     in the form of voter guides which tell where candidates stand 
     on issues, on the theory that issue-advocacy groups were 
     actually engaging in express advocacy or making a 
     contribution to the candidates who favored their issues.\104\ 
     Voter guides might have the effect, the argument would go, or 
     persuading candidates to support the organization's views on 
     an issue.
       However, if the only compelling interest for restricting 
     speech at election time is corruption (or its appearance), 
     and if persuading politicians to a different viewpoint of 
     advocacy of issues is not corruption, then there can be no 
     compelling governmental interest which would permit 
     restriction of issue advocacy. If this is true of PACs, then 
     a fortiori there can be no corruption or appearance of 
     corruption resulting from issue advocacy by any issue 
     advocacy groups. Undeterred, the FEC rejected the clear 
     teaching of the Supreme Court in Buckley, CLITRIM, and NCPAC 
     and continued its efforts to attempt to regulate issue 
     advocacy.


                         D. FEC v. MCFL (1986)

       In 1986, the Supreme Court again considered the 
     constitutional protection afforded issue advocacy in the case 
     of FEC v. Massachusetts Citizens for Life (MCFL),\105\ The 
     FEC had brought an enforcement action against MCFL, alleging 
     that the organization had violated 2 U.S.C. Sec. 441b, a ban 
     on corporate expenditures ``in connection with any 
     election,'' by publishing a voter guide.
       The voter guide, published by MCFL, was contained in a 
     ``Special Edition' newsletter which encouraged readers to 
     ``Vote Pro-Life'' and identified the pro-life 
     candidates.\106\ A complaint was filed with the FEC alleging 
     that MCFL had violated the ban on corporate expenditures 
     found at 2 U.S.C. Sec. 441b.\107\ The Supreme Court decided 
     that this ``Special Edition'' did not qualify for the 
     newspaper exemption found in the FECA,\108\ and that MCFL had 
     engaged in express advocacy, but that the First Amendment 
     required a special exemption from Sec. 441b's prohibitions 
     for MCFL-type corporations.\109\
       Under the FECA, ``expenditure'' means to provide anything 
     of value ``for the purpose of influencing any election for 
     Federal office.'' \110\ This ``influencing'' language was the 
     same terminology construed by the Supreme Court in Buckley to 
     mean only express advocacy, in order to save a different 
     provision of the FECA from unconstitutionality for 
     sweeping issue advocacy within its ambit.
       In MCFL, the Supreme Court considered the contention of 
     MCFL ``that the definition of an expenditure under Sec. 441b 
     necessarily incorporates the requirement that a communication 
     `expressly advocate' the election of candidates,'' relying on 
     Buckley.\111\ The FEC argued that the express advocacy test 
     should not be extended to this provision barring corporate 
     expenditures.
       The MCFL Court held, however, that the express advocacy 
     rationale must be extended to restrictions on expenditures by 
     corporations.\112\ The Court said that, if a ceiling on 
     independent expenditures, at issue in Buckley, had to be 
     construed to apply only to express advocacy of the election 
     or defeat of a clearly identified candidate (in order to 
     eliminate the constitutional deficiencies described in 
     Buckley), ``this rationale requires a similar construction of 
     the more intrusive provision [at issue in MCFL] that directly 
     regulates independent spending.'' \113\
       The Supreme Court rejected the FEC's argument that 
     extending the express advocacy protection to corporations and 
     labor unions ``would open the door to massive undisclosed 
     political spending.'' \114\ Nevertheless, the FEC continued 
     to treat constitutionally-protected issue advocacy as a 
     loophole which ought to be closed because it limited the 
     FEC's ability to regulate anything that might possibly 
     influence an election.\115\


                       E. FEC v. FURGATCH (1987)

       In 1987, the United States Court of Appeals for the Ninth 
     Circuit decided the case of FEC v. Furgatch.\116\ This case 
     contained obiter dicta suggesting that the court was applying 
     a broadened express advocacy test to the FECA's requirement 
     that independent expenditures by an individual over $250 must 
     be reported to the FEC \117\ and must contain a 
     disclaimer.\118\
       Buckley held that only ``explicit words'' ``expressly 
     advocating the election or defeat of a clearly identified 
     candidate,'' constitute express advocacy.\119\ However, the 
     Ninth Circuit wrote that a court could look beyond the 
     explicit words of the communication to consider the context 
     in which the words were communicated.\120\ Furgatch 
     considered newspaper advertisements which made a number of 
     allegations about President Jimmy Carter followed by the 
     phrases, ``And we let him,'' ``And we let him do it again,'' 
     ``We are letting him do it,'' and following paragraphs:
       ``He continues to cultivate the fears, not the hopes, of 
     the voting public by suggesting the choice is between `peace 
     and war,' `black or white,' `north or south,' and `Jew vs. 
     Christian.' His meanness of spirit is divisive and reckless 
     McCarthyism at its worst. And from a man who once asked, `Why 
     Not the Best?'

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       ``It is an attempt to hide his own record, or lack of it. 
     If he succeeds the country will be burdened with four more 
     years of incoherences, ineptness and illusion, as he leaves a 
     legacy of low-level campaigning.
       ``DON'T LET HIM DO IT.''\121\
       Noticeably absent from this communication are any words of 
     express advocacy. Nowhere does the communication contain 
     explicit words such as ``vote for'' or ``defeat.'' The Ninth 
     Circuit, however, decided that the context should be 
     consulted: ``We conclude that speech need not include any of 
     the words listed in Buckley to be express advocacy under the 
     Act, but it must, when read as a whole, and with limited 
     reference to external events, be susceptible of no other 
     reasonable interpretation but as an exhortation to vote for 
     or against a specific candidates.'' \122\
       Applying its contextual standard, the Ninth Circuit 
     determined that Mr. Furgatch had engaged in express advocacy.
       Four key facts should be noted about Furgatch. First, 
     although the MCFL decision was issued on December 15, 1986, 
     and the Furgatch decision was issued just days later on 
     January 9, 1987, Furgatch made no mention of the newly 
     announced MCFL decision, which clearly reaffirmed the bright-
     line Buckley approach. Second, as discussed below, the 
     Furgatch contextual approach has not been followed by other 
     courts and has, in fact, been expressly repudiated by 
     some.\123\
       Third, the broader test was employed in a case which 
     involved only a failure to report an expenditure to the 
     FEC.\124\ Fourth, the Fourth Circuit has recently 
     demonstrated in a careful exegesis of Furgatch that the Ninth 
     Circuit did not go to the extreme to which the FEC has tried 
     to stretch it and that the actual holding of Furgatch 
     conforms quite closely to Buckley and MCFL.\125\
       Thus, the Furgatch test was decided in, and only logically 
     applies to, the very narrow context of disclosure provisions. 
     The Furgatch court noted the Supreme ``Court's directive 
     that, where First Amendment concerns are present, we must 
     construe the words of the regulatory statute precisely and 
     narrowly, only as far as is necessary to further the purposes 
     of the Act.'' \126\ The court then devoted a full page to 
     discussing the importance of disclosure, the purposes served 
     thereby, and the minimal burden imposed by disclosure.\127\ 
     Because it concluded that disclosure ``serves an important 
     Congressional policy and a very strong First Amendment 
     interest,'' and, because the burden imposed would be 
     ``minimally restrictive,'' the Ninth Circuit adopted a 
     totality of the circumstances test.\128\ Therefore, if 
     Furgatch is good law, it should be limited to its context.
       Moreover, as mentioned, the Fourth Circuit's careful 
     analysis has demonstrated that the core Furgatch holding 
     closely conforms to the Buckley and MCFL express advocacy 
     test and that any more broadly worded language was both dicta 
     and contrary to Supreme Court precedent,\129\ a fact the FEC 
     clearly understood at the time.\130\ In fact, the Fourth 
     Circuit has recently excoriated the FEC, and awarded 
     attorneys' fees against it, for bad faith prosecution in 
     duplicitous reliance on a broad interpretation of Furgatch 
     when the FEC had demonstrated its clear understanding of the 
     true narrowness of the Furgatch holding in its Brief for 
     Respondent in Opposition to Mr. Furgatch's petition for a 
     writ of certiorari to the U.S. Supreme Court.\131\ The Fourth 
     Circuit's censure of the FEC for its duplicity and 
     dissembling with regard to Furgatch is discussed at greater 
     length below.
       Nevertheless, energized by its success in opposing Supreme 
     Court review of Furgatch and preserving the broadly-worded 
     Furgatch dicta, which was useful for expanding FEC power, the 
     FEC launched a campaign to apply its totality-of-the-
     circumstances ``express advocacy'' test in a wide range of 
     contexts.


                          F. FEC v. NOW (1989)

       In the case of FEC v. National Organization for Women 
     (NOW),\132\ the FEC again brought an enforcement action 
     employing its broadly defined express advocacy test. The FEC 
     charged that membership solicitation letters discussing 
     issues to pay inequality, abortion, and the Equal Rights 
     Amendment (ERA) constituted express advocacy. The letters at 
     issue expressly criticized the Reagan Administration and the 
     Republican Party, including the following phrase which the 
     FEC found damming: ``Politicians listen when they think an 
     organized group of citizens can help elect or defeat them.'' 
     Another letter criticized by name Senators Helms, Hatch, and 
     Thurmond and spoke of ``a renewed effort now being launched 
     by New Right reactionary groups in preparation for the 1984 
     elections,'' which phrase the FEC condemned as 
     electioneering. A third letter made the case for the ERA and 
     condemned President Reagan and named several senators ``up 
     for reelection in 1984,'' who ``must be made to understand 
     that failure to pass the ERA will result in powerful 
     campaigns to defeat them''\133\ As a result of these 
     statements, the FEC claimed that NOW has violated the 
     corporate prohibition on candidate-related speech.
       The NOW court referred to both the Buckley test \134\ and 
     the Furgatch ``broad test.''\135\ However, the NOW court held 
     that there simply was no express advocacy under any 
     test,\136\ tying its holding explicitly to the Buckley 
     principles: ``At issues in this case is political speech, 
     which lies at the core of the First Amendment. Discussion of 
     public issues and the qualifications of candidates for public 
     office is integral to a system of government in which the 
     people elect their leaders. In order to make informed choices 
     about its leaders, the citizenry needs to hear the free 
     exchange of ideas. The First Amendment affords the broadcast 
     protection to such political expression.'' \137\


                        G. FAUCHER v. FEC (1991)

       It should have been clear to the FEC that the Supreme Court 
     meant what it said in Buckley about issue advocacy being 
     sacrosanct when the Court reaffirmed the test in a new 
     context in MCFL. However, the FEC continued to press ahead 
     with its efforts to regulate issue advocacy. Included in its 
     effort was the promulgation of new rules regulating voter 
     guides.
       In Faucher v. FEC,\138\ the First Circuit struck down the 
     Federal Election Commission's regulations of voter guides as 
     being beyond the authority of the FEC under 2 U.S.C. 
     Sec. 441b as interpreted by the Supreme Court in MCFL. The 
     regulation at issue, 11 C.F.R. Sec. 114.4(b)(5), required 
     that a voter guide by ``nonpartisan,'' which the FEC defined 
     by reference to six factors. These factors included whether 
     ``the wording of their questions presented . . . suggest or 
     favor any position on the issues covered'' and whether ``the 
     voter guide expressed (any) editorial opinion concerning the 
     issues presented.'' \139\
       The United States District Court for the District of Maine 
     struck the regulations down for trespassing upon 
     constitutionally protected issue advocacy and for reaching 
     beyond the authority of the Federal Election Commission under 
     Sec. 441b, which bars corporate political speech.\140\ The 
     First Circuit affirmed the decision of the District 
     Court,\141\ declaring that ``[t]he first amendment lies at 
     the heart of our most cherished and protected freedoms. Among 
     those freedoms is the right to engage in issue-oriented 
     political speech.'' \142\
       The First Circuit expressly applied the ``bright-line'' 
     test of Buckley in accordance with the speech-protective 
     rationale of that case: ``In our view, trying to discern when 
     issue advocacy in a voter guide crosses the threshold and 
     becomes express advocacy invites just the sort of 
     constitutional questions the Court sought to avoid by 
     adopting the bright-line express advocacy test in Buckley.'' 
     \143\


                h. fec v. survival education fund (1994)

       In FEC v. Survival Education Fund,\144\ the U.S. District 
     Court for the Southern District of New York rejected an FEC 
     attempt to broaden the express advocacy test of Buckley and 
     MCFL. The case involved letters sent four months before an 
     election by Dr. Benjamin Spock that were hostile to President 
     Reagan and condemned his policies. The FEC argued that the 
     letters constituted express advocacy and, therefore, were 
     prohibited political communications by a corporation. The 
     court, however, pointed to the ``express words'' formula in 
     Buckley and held that: ``It is clear from the cases that 
     expressions of hostility to the positions of an official, 
     implying that that official should not be reelected--even 
     when the implication is quite clear--do not constitute the 
     express advocacy which runs afoul of the statute. Obviously, 
     the courts are not giving a broad reading to this statute.'' 
     \145\


               i. fec v. christian action network (1995)

       In FEC v. Christian Action Network,\146\ a Virginia 
     district court considered advertisements, run during the 1992 
     election campaign, which the FEC considered to be express 
     advocacy of the defeat of presidential candidate Clinton. 
     Because the ads did not contain ``explicit words or imagery 
     advocating electoral action,'' the court held that they 
     constituted protected issue advocacy and not 
     electioneering.\147\ The Court followed the ``strict 
     interpretation'' of the express advocacy test: ``In the 
     nineteen years since the Supreme Court's ruling in Buckley v. 
     Valeo, the parameters of the `express advocacy' standard have 
     been addressed by several federal courts in a variety of 
     circumstances. * * * Acknowledging that political expression, 
     including the discussion of public issues and debate on the 
     qualifications of candidates enjoys extensive First Amendment 
     protection, the vast majority of these courts have adopted a 
     strict interpretation of the `express advocacy' standard.'' 
     \148\
       On August 2, 1996, the United States Court of Appeals for 
     the Fourth Circuit issued a brief per curiam opinion 
     affirming the district court.\149\


                         j. fec v. gopac (1996)

       FEC v. GOPAC,\150\ the FEC's much ballyhooed enforcement 
     action against GOPAC (which Newt Gingrich served as 
     chairman), amply demonstrates the FEC's refusal to recognize 
     the constitutional protection afforded issue advocacy by the 
     bright-line express advocacy test and the major purpose test. 
     Despite the fact that GOPAC did not have as its major purpose 
     the election or nomination of candidates for federal office, 
     the FEC pushed for a test that would make an organization a 
     political committee if it ``engage[s] in `partisan politics' 
     or `electoral activity.' '' \151\ The court rejected this 
     approach and granted GOPAC summary judgment because the test 
     proposed was not that of the Supreme Court in Buckley.\152\


                k. new fec regulations (october 5, 1995)

       After the Faucher decision in 1991, which struck down FEC 
     regulations prohibiting voter guides from expressing a 
     position on an issue,\153\ the FEC needed to revise or delete 
     its regulation dealing with voter guides. All that was needed 
     to bring the regulation into compliance with the First 
     Amendment was a

[[Page S10364]]

     small excision in the definition of ``nonpartisan,'' so that 
     the factors for what constituted ``nonpartisan'' would not 
     include whether a question is worded in a way that supports 
     the position of a candidate on the issue covered.\154\
       The FEC took from 1991 to late 1995 to promulgate its new 
     rules.\155\ When the new rules were published, there was no 
     mere excision or minimal editing to fix the First Amendment 
     problem with issue advocacy. Rather, the new FEC 
     regulations were an expansive effort to bypass the First 
     Amendment jurisprudence of the federal courts. The rules 
     were a transparent attempt to incorporate the FEC's 
     interpretation of the Furgatch totality of the 
     circumstances test into the FEC rules in the hope that the 
     FEC could sell the federal courts on the notion that 
     deference should be granted to the agencies interpretation 
     in federal law in this area.\156\
       If such deference were forthcoming, the FEC would have 
     accomplished by rulemaking what it had failed in years of 
     litigating enforcement actions to achieve, i.e., imposing its 
     broad interpretations of the Furgatch test in place of the 
     Supreme Court's bright-line express advocacy test. As shall 
     be seen, the deference was not forthcoming.
       The FEC issued its copious new post-Faucher rules in two 
     sets in late 1995. The first set was to take effect on 
     October 5, 1995. The revision of the FEC voter guide 
     regulations necessitated by Faucher four years before 
     occurred in a later set of rules to take effect March 13, 
     1996.
       The October 5 set of rules contained a new definition of 
     express advocacy, tracking the FEC's broad interpretation of 
     Furgatch:
       ``Expressly advocating means any communication that--
       ``(a) uses phrases such as `vote for the President,' `re-
     elect your Congressman,' `support the Democratic nominee,' 
     `cast your ballot for the Republican challenger for U.S. 
     Senate in Georgia,' `Smith for Congress,' `Bill McKay in 94,' 
     `vote Pro-Life' or `vote Pro-Choice' accompanied by a listing 
     of clearly identified candidates described as Pro-Life or 
     Pro-Choice, `vote against Old Hickory,' `defeat' accompanied 
     by a picture of one or more candidate(s), or communications 
     of campaign slogan(s) which in context can have no other 
     reasonable meaning than to encourage the election or defeat 
     of one or more clearly identified candidate(s), such as 
     posters, bumper stickers, advertisements, etc. which say 
     `Nixon's the One,' `Carter 76,' `Reagan/Bush' or `Mondale!'; 
     or
       ``(b) when taken as a whole and with limited reference to 
     external events, such as the proximity to the election, could 
     only be interpreted by a reasonable person as containing 
     advocacy of the election or defeat of one or more clearly 
     identified candidate(s) because--
       ``(1) The electoral portion of the communication is 
     unmistakable, unambiguous, and suggestive of only one 
     meaning; and
       ``(2) Reasonable minds could not differ as to whether it 
     encourages actions to elect or defeat one or more clearly 
     identified candidate(s) or encourages some other kind of 
     action.\157\''
       While the first part of subsection (a) generally followed 
     Buckley, specifying explicit and express words of advocacy in 
     the communication itself, the second part of subsection (a) 
     added a contextual factor, relying on Furgatch. Subsection 
     (b) was wholly patterned after the FEC's broad interpretation 
     of Furgatch. Of course, such a definition of express advocacy 
     would leave the speaker uncertain whether the FEC would find 
     a communication to constitute express advocacy, consequently 
     chilling protected speech. Such a definition would abandon 
     the bright-line test Buckley said was essential to safeguard 
     protected issue advocacy in this arena, and it would afford 
     the FEC great latitude in its enforcement.\158\


             L. MAINE RIGHT TO LIFE COMMITTEE v. FEC (1966)

       The FEC's new express advocacy definition took effect on 
     October 5, 1995. On November 22, 1995, Maine Right to Life 
     (also a plaintiff in the Faucher case) filed a complaint and 
     motions seeking declaratory and injunctive relief.\159\ On 
     February 13, 1996, the United States District Court for the 
     District of Maine declared the latest regulations of the FEC 
     seeking to define express advocacy\160\ to be ``invalid as 
     not authorized by the Federal Election Campaigns Act of 1971, 
     as interpreted by the United States Supreme Court in 
     Massachsuetts Citizens for Life, and by the United States 
     Court of Appeals for the First Circuit in Faucher, because it 
     extends beyond issue advocacy.''\161\ The district court 
     struck down a definition of ``[e]xpressly advocating,'' \162\ 
     which ``comes directly from'' Furgatch.\163\ The district 
     court relied on the fact that, contrary to the Ninth 
     Circuit's decision in Furgatch, the Supreme Court in 
     Buckley and MCFL created a bright-line protection of issue 
     advocacy, ``even at the risk that it is used to elect or 
     defeat a candidate.'' \164\
       On October 18, 1996, the First Circuit issued a brief per 
     curiam opinion affirming ``for substantially the reasons set 
     forth in the district court opinion.''\165\
       The FEC, however, has obstinately taken the position that 
     these regulations are still in effect in all other 
     jurisdictions than the First Circuit, even though the action 
     was brought under the Administrative Procedure Act and the 
     First Circuit held that the FEC was without authority to 
     promulgate these regulations and, thus, they are void.\166\


                M. NEW FEC REGULATIONS (MARCH 13, 1996)

       After releasing the regulations which were struck down in 
     Maine Right to Life Committee, the FEC next released revised 
     rules setting forth the FEC's requirements for ``voter 
     guides'' and ``voting records.'' \167\ They became effective 
     on March 13, 1996.\168\ Under the new voter guide 
     regulation,\169\ the amount of contact that a corporation had 
     with a candidate regarding the voter guide severely affected 
     the content of the voter guide.
       First, if the corporation had any oral communications with 
     a candidate regarding the voter guide, the publication of the 
     voter guide was absolutely prohibited. A prohibited oral 
     communication would even include contacting the candidate to 
     clarify a candidate's position on an issue.\170\ As a result 
     of the oral communication, the publication of the voter guide 
     was considered by the FEC to be an in-kind contribution to 
     the candidate and, thus, a prohibited corporate contribution 
     under Sec. 441b.
       However, if the corporation had no oral or written contact 
     with the candidate,\171\ the corporation retained its right 
     to state a position on the issues of the voter guide (a First 
     Amendment right recognized in the Faucher case). Of course, 
     it is very difficult to prepare a voter guide without sending 
     a written questionnaire to the candidates asking them to 
     state their positions on the issues, so written 
     questionnaires are the common practice.\172\ Because the use 
     of a questionnaire is so important to an effective voter 
     guide, most organizations would feel compelled to at least 
     contact the candidate in writing, resulting in severely 
     limiting their issue advocacy.
       If an organization had written contact with the 
     candidate,\173\ the content of the voter guide was severely 
     restricted.\174\ First, ``all of the candidates for a 
     particular seat or office shall be provided an equal 
     opportunity to respond . . . .'' \175\ Second, ``no candidate 
     may receive greater prominence in the voter guide, than other 
     participating candidates, or substantially more space for 
     responses.''\176\ Voter guides shall not contain an 
     ``electioneering message.''\177\ Finally, the regulation 
     mandates that a ``voter guide and its accompanying materials 
     shall not score or rate the candidates' responses in such a 
     way as to convey an electioneering message.'' \178\ Thus, to 
     do a voter guide after written contact with a candidate, the 
     corporation had to surrender its constitutionally-protected 
     right to engage in issue advocacy in voter guides.
       Having been repeatedly frustrated by the courts in its 
     attempt to regulate voter guides as expenditures because of 
     the express advocacy test, the FEC based its new voter guide 
     regulations on a new ``contribution'' theory. This theory 
     attempted to avoid the express advocacy test by 
     labeling\179\ expenditures for a voter guide as ``in-kind 
     contributions'' to the candidate, which are also 
     prohibited by corporations under Sec. 44lb. The FEC's hope 
     was that, if an expenditure for a communication was 
     labeled as an ``in-kind contribution,'' then the courts 
     would not require that the communication contain express 
     advocacy but merely influence an election. Furthermore, 
     this theory took a very expansive view of when an 
     expenditure was requested by or coordinated with a 
     candidate, which is an essential element to make an 
     expenditure into an ``in-kind contribution.'' In both 
     respects, however, the FEC violated existing court 
     precedents.
       The FECA made it unlawful for any corporation or union ``to 
     make a contribution or expenditure in connection with any 
     election''\180\ The FECA defines ``contribution or 
     expenditure'' to include ``any direct or indirect payment, . 
     . . or gift of money, or services, or anything of value . . . 
     to any candidate . . . in connection with any 
     election.''\181\ Of course, it was this language that the 
     Court in MCFL held must contain ``express advocacy,'' if an 
     expenditure were to be considered an independent expenditure. 
     However, the FEC is shifting from the word ``expenditure'' to 
     the word ``contribution,'' which encompasses both direct and 
     indirect contributions. A direct contribution is made by 
     actually giving money to the candidate. An in-kind 
     contribution occurs when something of value (like a mailing 
     list) is given to the candidate or when a person pays, at the 
     request of the candidate or an agent of his campaign, for an 
     expense that the campaign itself would otherwise pay (like a 
     billboard) in lieu of a direct contribution to the candidate. 
     However, Congress did not intend for ``in-kind 
     contributions'' to be a broad category. In adopting the 
     concept of an ``in-kind contribution,'' the Senate Report 
     described an ``in-kind contribution'' as ``the use of an 
     individual's resources to aid a candidate in a manner 
     indistinguishable in substance from the direct payment of 
     cash to a candidate.''\182\
       Thus, an ``in-kind contribution'' has two elements. The 
     first element is the nature of the expenditure. According to 
     the courts, an expenditure for a communication must contain 
     ``express advocacy'' to be an independent expenditure. The 
     logic of the courts' analysis suggests that this extends to 
     in-kind contributions. According to the FEC, however, an in-
     kind contribution may exist where there is only issue 
     advocacy. The second element is whether it is made with the 
     consent or in coordination with the candidate. Here, the FEC 
     also has a very expansive view of coordination.
       Ironically, the FEC had previously adopted the correct 
     position that express advocacy is necessary in order to 
     transform a protected expenditure into a prohibited 
     contribution. In Orloski v. Federal Election Commission,\183\ 
     a political opponent of an incumbent Congressman challenged 
     the FEC's failure to

[[Page S10365]]

     find ``reason to believe'' that the Act had been violated. 
     The case concerned a senior citizens' picnic at which the 
     Congressman spoke and to which several corporations had 
     provided food and services such as transportation.
       At issue was the FEC's interpretation of what constituted a 
     corporate contribution under Sec. 441b(a). The FEC had 
     previously ``interpreted the Act to mean the corporate 
     funding of events sponsored by congressmen who are candidates 
     for reelection is not prohibited by Sec. 441(b)(a) if those 
     events are non-political.''\184\ In order to determine 
     whether an event is non-political, the FEC adopted the 
     following test: ``An event is non-political if (1) there is 
     an absence of any communication expressly advocating the 
     nomination or election of the congressman appearing or the 
     defeat of any other candidate, and (2) there is no 
     solicition, making, or acceptance of a campaign contribution 
     for the congressman in connection with the event.'' \185\
       Because the FEC found that there was no express advocacy at 
     the picnic in question, it found that the event was ``non-
     political'' and, thus, that it did not entail a violation of 
     the corporate contribution prohibition of Sec. 441b. As the 
     Orloski court explained: ``the mere fact that corporate 
     donations were made with the consent of the candidate does 
     not mean that a `contribution' within the meaning of the Act 
     has been made. Under the Act this type of `donation' is only 
     a contribution if it first qualifies as an `expenditure' and, 
     under the FEC's interpretation, such a donation is not an 
     expenditure unless someone at the funded event expressly 
     advocates the reelection of the incumbent or the defeat of an 
     opponent . . .''\186\
       In its new regulations, however, the FEC now sought to 
     repudiate its former, reasonable position that corporate 
     expenditures are not political contributions which can be 
     prohibited under Sec. 441(b) unless they involve express 
     advocacy. The new regulations governed the 
     ``electioneering message'' of voter guides on the 
     porported authority derived from converting expenditures 
     for voter guides into contributions.
       The new regulations also adopted an expansive view of what 
     constitutes ``coordination.'' The FEC apparently has two 
     theories: (1) the contact coordination theory, and (2) the 
     presumed coordination theory.\187\ The contact coordination 
     theory was employed in the new voter guide regulations. As 
     the structure of the voter guide regulation made clear, the 
     FEC viewed any contact between the corporation publishing the 
     voter guide and a candidate to constitute coordination of the 
     voter guide and the greater the contact the greater the 
     taint. Thus, oral communications resulted in an absolute 
     prohibition on publishing a voter guide; written 
     communication forfeited the corporation's right to engage in 
     issue advocacy in their voter guide.


                        N. Clifton v. FEC (1996)

       In response to these newly-issued FEC regulations 
     restricting voter guides, Maine Right to Life Committee \188\ 
     again filed suit under the Administrative Procedure Act to 
     have the regulations declared beyond the authority of the FEC 
     under 2 U.S.C. Sec. 441(b), as construed by the Supreme Court 
     in MCFL.\189\ The case, Clifton v. FEC,\190\ challenged the 
     regulations,\191\ which ``restrict(ed) contact or 
     coordination between a corporation and a candidate when the 
     corporation publishes candidate voting records or voter 
     guides.'' \192\
       On May 20, 1996, the district court granted Plaintiffs' 
     request for a declaration that the regulations were void as 
     beyond the statutory authority of the FEC. The district court 
     found that the voter guide regulation restricted not only 
     ``express advocacy'' but also ``issue advocacy.'' As the 
     Court stated, ``[t]he new regulations go far beyond the 
     language of section 441(b) as interpreted by MCFL. Under the 
     provisions for voter guides, the FEC test is not whether a 
     corporation is engaging in issue advocacy `on behalf of a 
     candidate' (a test which MCFL would support), but whether it 
     has had any 'contact' with the candidate. The regulations 
     permit unrestricted issue advocacy only if there is no 
     contact, oral or written in connection with a voter guide. 
     Any oral contact concerning the content of a voter guide--
     questions to clarify a candidate's position for example--
     results in outright prohibition of corporate issue advocacy 
     through use of the guide. Even written contact with 
     candidates results in severe constraints on issue advocacy 
     otherwise entitled to broad First Amendment protection under 
     the teachings of Buckley and MCFL.'' \193\
       Also under the ostensible statutory authority of 2 U.S.C. 
     Sec. 441(b), the FEC promulgated 11 C.F.R. Sec. 114.4(c)(4) 
     which purported to govern corporate preparation and 
     distribution of the ``voting records'' of Members of Congress 
     to the general public. That regulation provided that ``the 
     decision on content and the distribution of voting records 
     shall not be coordinated with any candidate, group of 
     candidates or political party.''
       The district court agreed with Plaintiffs' contention that 
     the ``voting record'' regulation also impermissibly 
     restricted issue advocacy. Noting that the regulation 
     provided that the decision on ``content'' could not be 
     ``coordinated'' with a candidate, the Court asked: ``Does 
     that prohibit discussion with the candidate of what a 
     particular vote meant and a summary of the outcome in the 
     published voting record? If there are three apparently 
     inconsistent votes and the MRLC asks the candidate for a 
     explanation in the publication, is that prohibited 
     coordination of a decision on content? These are exactly the 
     types of issue advocacy undertaken by the MRLC and, as I 
     understand the FEC's counsel at oral argument, such 
     activities are indeed prohibited by the new regulations.'' 
     \194\
       Because the district court found that both regulations 
     restricted issue advocacy, not just express advocacy, it held 
     that they were invalid under Faucher, MCFL and Buckley: ``It 
     is equally clear after Buckley and MCFL that corporate 
     expenditures in connection with a federal election or primary 
     cannot constitutionally be limited except when they are 
     devoted to express advocacy of the election or defeat of a 
     particular candidate or candidates.'' \195\
       The FEC has appealed the decision to the First 
     Circuit.\196\


        O. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE v. FEC

       While there has been a great deal of ongoing litigation in 
     state and federal courts over election laws, the 1996 case of 
     Colorado Republican Federal Campaign Committee v. FEC \197\ 
     is significant as the most recent word from the Supreme Court 
     on election law issues. The case revealed steadfast support 
     on the Court for protecting First Amendment rights in the 
     election law context.
       Significantly, the case completely undercut the FEC's 
     presumed coordination theory. Colorado Republican did not 
     involve Sec. 441(b) (barring corporate campaign expenditures 
     and contributions), but its rejection of the presumed 
     coordination theory is a clearly transferable concept 
     relevant to the FEC's efforts to regulate corporate political 
     speech under Sec. 441(b).\198\ Moreover, the opinions in the 
     case revealed strong support for the express advocacy test in 
     this context as well.
       The case involved FEC allegations that the Colorado 
     Republican Party had exceeded FECA limits on what a party 
     could spend to promote a candidate in a U.S. senatorial 
     race.\199\ The case arose as a result of advertisements 
     purchased in April 1986 by the Federal Campaign Committee of 
     the Colorado Republican Party. The radio advertisements 
     attacked Democrat Timothy Wirth, who was then a U.S. 
     Congressman and the most likely Democrat candidate for the 
     open Senate seat.\200\ He had announced in January 1986 that 
     he would run for the Senate.\201\ At the time of the 
     advertisements, the Republican Party had not chosen its 
     nominee from among the three persons competing for the 
     nomination.\202\
       The record revealed how the expenditure for the 
     advertisements was made. The GOP state chairman arranged for 
     the script on his own initiative.\203\ He approved it without 
     input from others.\204\ In sum, he did not actually 
     coordinate the expenditure with any candidate. It was what 
     normally would be considered an independent expenditure.
       However, the FEC argued that, because of the relationship 
     between a party and its candidates, ``coordination with 
     candidates is presumed,'' \205\ even though there was 
     factually none in this case.\206\ The lead opinion of Justice 
     Breyer, joined by Justices O'Connor and Souter, rejected this 
     presumed coordination approach, declaring that, because ``the 
     record shows no actual coordination as a matter of fact,'' 
     \207\ ``we therefore treat the expenditure, for 
     constitutional purposes, as an `independent' expenditure, not 
     an indirect campaign contribution.'' \208\ This rejection of 
     presumed coordination in the context of expenditures by a 
     political party to attack an opposing candidate for office 
     makes it highly unlikely that a presumption of coordination 
     will be permitted in situations where there is less basis for 
     a presumption. Coordination will have to be actual before an 
     expenditure will be considered a contribution.\209\
       Because Justices Breyer, O'Connor, and Souter rejected the 
     notion of presumed coordination, they also rejected the 
     notion that the expenditures at issue were actually 
     contributions. Therefore, they decided it would be prudential 
     not to reach the issue of whether a cap on coordinated 
     expenditures by a political party is constitutional, as urged 
     by the Colorado Republican Party. However, an opinion by 
     Justice Kennedy, joined by Chief Justice Rehnquist and 
     Justice Scalia, opined that the party contribution limit to 
     candidates was unconstitutional on its face, but concurred in 
     a judgment vacating the court of appeals decision and 
     remanding the case,\210\ as did Justice Thomas.\211\
       From the Colorado Republican case, it seems clear that any 
     theory that presumed coordination can convert independent 
     expenditures into contributions must fail. Only actual 
     coordination will achieve such a result. Of course, this 
     is also true where a voter guide merely contains issue 
     advocacy.

                    FEC v. Christian Action Network

       After the Fourth Circuit affirmed the district court's 
     dismissal of FEC charges in FEC v. Christian Action 
     Network,\212\ the Christian Action Network filed a petition 
     for attorneys' fees and costs under the Equal Access to 
     Justice Act, which permits fee awards for enforcement actions 
     that are not ``substantially justified.'' \213\ The Fourth 
     Circuit determined that the FEC's enforcement in reliance on 
     its broad interpretation of Furgatch was not ``substantially 
     justified,'' but was in ``bad faith.'' \214\
       The Fourth Circuit cataloged the reasons why the express 
     advocacy test, as set forth in Buckley and MCFL, was so clear 
     that failure to follow it constituted bad faith.\215\ The 
     court focused especially on the Furgatch decision, on which 
     the FEC had based its authority to prosecute the Christian 
     Action

[[Page S10366]]

     Network.\216\ After carefully analyzing Furgatch, the Fourth 
     Circuit summarized the holding of that case: ``Indeed, the 
     simple holding of Furgatch was that, in those instances where 
     political communications do include an explicit directive to 
     voters to take some course of action, but that course of 
     action is unclear, `context'--including the timing of the 
     communication in relation to the events of the day--may be 
     considered in determining whether the action urged is the 
     election or defeat of a particular candidate for public 
     office.'' \217\
       The fourth Circuit then pointed out that the FEC had fully 
     understood that explicit words expressly advocating the 
     election or defeat of a clearly identified candidate were 
     essential to ``express advocacy'' when it opposed Supreme 
     Court review of the Furgatch case:
       ``That the commission knows well the Court's holdings in 
     Buckley and MCFL is further confirmed by the agency's 
     subsequent action in Furgatch. . . . Because Furgatch, 
     despite its narrow holding, does include broad dicta which 
     can be read (or misread) to support the FEC's expansive view 
     of its authority, the agency vigorously opposed certiorari in 
     the case.
       ``Wishing to have the opinion preserved intact, the 
     Commission in its submissions there, in contrast to its 
     submissions before this court, quoted Buckley as `requir[ing] 
     ``explicit words of advocacy of election or defeat of a 
     candidate.''' The Commission even took the position that 
     Furgatch did . . . interpret the Federal election Campaign 
     Act's corporate disclosure statutes as `narrowly limited to 
     communications containing language ``susceptible to no other 
     reasonable interpretation but as an exhortation to vote'' ' . 
     . . .
       ``Moreover, the FEC argued to the Supreme Court that 
     Furgatch was fully consistent with Buckley and MCFL precisely 
     because the opinion focused on the specific language of 
     Furgatch's advertisement and concluded that express advocacy 
     existed only because the advertisement `explicitly exhorted' 
     voters to defeat then-President Carter. Thus, there is no 
     doubt the Commission understands that its position that no 
     words of advocacy are required in order to support its 
     jurisdiction runs directly counter to Supreme Court 
     precedent.'' \218\
       The fourth Circuit took the FEC to task for ``dissembling 
     before th[e] court'' for ``quot[ing] the very sentence from 
     page 80 of Buckley in which the Court uses the phrase 
     `express advocacy,''' but leaving out ``the sentence's 
     footnote 108'' (which defined express advocacy ``to mean 
     `express words of advocacy,'') without ``any reference, by 
     parenthetical or otherwise to the fact that footnote 108 
     appears in that sentence.\219\
       The Fourth Circuit concluded that the FEC had acted in bad 
     faith by bringing an enforcement action against the Christian 
     Action network in the face of absolutely clear precedent on 
     the express advocacy test: ``In the face of the unequivocal 
     Supreme Court and other authority discussed, an argument such 
     as that made by the FEC in this case, that `no words of 
     advocacy are necessary to expressly advocate the election of 
     a candidate,' simply cannot be advanced in good faith (as the 
     disingenuousness in the FEC's submissions attests), much less 
     with `substantial justification.''' \220\
       The Fourth Circuit further concluded that, even if the 
     precedent were not unequivocally clear, the court ``would 
     bridle at the power over political speech that would reside 
     in the FEC under'' the FEC's interpretation of the express 
     advocacy test.\221\ The FEC's interpretation, said the court 
     boils down to ``an argument that the FEC will know `express 
     advocacy' when it sees it.'' \222\ The court summarized the 
     clarity of the precedent and the danger of FEC's 
     overreaching as follows: ``[T]he Supreme Court has 
     unambiguously held that the First Amendment forbids the 
     regulation of our political speech under such 
     indeterminate standards. `Explicit words of advocacy of 
     election or defeat of a candidate,' `express words of 
     advocacy,' the Court has held, are the constitutional 
     minima. To allow the government's power to be brought to 
     bear on less, would effectively be to dispossess corporate 
     citizens of their fundamental right to engage in the very 
     kind of political issue advocacy the First Amendment was 
     intended to protect--as this case well confirms.''\223\
       In summary, as this section has shown, there has been a 
     long and relentless effort by the FEC to close what it has 
     perceived to be a loophole with respect to issue advocacy--
     the First Amendment. The Supreme Court's express advocacy 
     test and major purpose test remain as the twin bulwarks 
     against this encroachment of liberty.


           iv. other protection for free political expression

       In addition to its zealous safeguarding of issue advocacy 
     in the election context, the United States Supreme Court has 
     provided safeguards for other forms of speech related to 
     political matters. The seven key protections have to do with 
     (1) MCFL-type organizations, (2) members, (3) anonymous 
     literature, (4) caps on contributions and expenditures, (5) 
     political committees, (6) the burden of proof, and (7) prior 
     restraint of speech. These topics will be dealt with in turn.


                       a. mcfl-type organizations

       In FEC v. Masschusetts Citizens for Life,\224\ the Supreme 
     Court did two important things: (1) it reasserted the bright-
     line express advocacy test for protecting issue advocacy, and 
     (2) it also created an exemption to the ban on corporate 
     express advocacy found in 2 U.S.C. Sec. 441b for nonprofit, 
     nonstock, ideological corporations. Other cases have refined 
     this test for MCFL-type organizations. As would be expected, 
     the FEC has attempted to overrule the case law with new 
     regulations, which have promptly been declared 
     unconstitutional. These developments will be considered in 
     turn.
       Section 441b of the Federal Election Campaign Act of 1971 
     prohibits corporations from making ``expenditures'' in 
     connection with a federal election.\225\ The United States 
     Supreme Court, however, has limited the scope of Sec. 441b's 
     corporate expenditure prohibition. In MCFL, the Supreme Court 
     held that the prohibition on corporate expenditures could not 
     constitutionally be applied to certain nonprofit ideological 
     membership corporations because they did not pose a threat of 
     corruption to the political system.\226\
       Specifically, the ``MCFL exemption'' from the prohibition 
     on corporate political speech applies to those nonprofit 
     corporations which were established to promote political 
     ideas, have no shareholders or members with economic 
     disincentives to disassociate with the corporation if they 
     disagree with its position on an issue, were not established 
     by a business corporation or labor union, and do not act as 
     `'conduits'' for funneling money from such organizations into 
     the political marketplace.\227\
       In Day v. Holahan,\228\ the Eighth Circuit held that the 
     MCFL exemption applied to Minnesota Citizens Concerned for 
     Life (MCCL), despite the face that the organization received 
     some corporate contributions. The court held that MCCL was 
     the type of corporation which did not pose a threat of 
     corruption to the political marketplace and, therefore, under 
     the Constitution, was entitled to the MCFL exemption. As a 
     result, the Eighth Circuit held that a Minnesota state 
     statute that narrowed the MCFL exemption to such an extent 
     that it did not apply to MCCL was unconstitutional. This 
     case, therefore, established a de minimis test with respect 
     to MCFL-type organizations which receive some minimal 
     corporate contributions.
       Subsequent to Day, the FEC promulgated regulations at 11 
     C.F.R. Sec. 114.10, purporting to define the circumstances 
     under which the MCFL exemption is available to nonprofit 
     ideological corporations under the FECA. In it's 
     ``Explanation and Justification'' for the regulation, the FEC 
     explicitly admitted that its regulation was in direct 
     conflict with Day v. Holahan: ``In that case, the Eighth 
     Circuit decided that a Minnesota statute that closely tracked 
     the Supreme Court's three essential features was 
     unconstitutional as applied to a Minnesota nonprofit 
     corporation. The Commission believes the Eighth Circuit's 
     decision, which is controlling law in only one circuit, is 
     contrary to the plain language used by the Supreme Court in 
     MCFL, and therefore is of limited authority.'' \229\
       Thus, the FEC promulgated 11 C.F.R. Sec. 114.10 despite its 
     recognition that the regulations would directly violate the 
     Eighth Circuit's holding in Day.
       The FEC's regulations disallowed an exemption unless, inter 
     alia, each of the following criteria were met: (1) the 
     corporation's ``only express purpose is the promotion of 
     political ideas,'' \230\ (2) the corporation ``cannot engage 
     in business activities,'' \231\ (3) the corporation has 
     ``[n]o persons who are offered or who receive any benefit 
     that is a disincentive for them to disassociate themselves 
     with the corporation on the basis of a political issue.'' 
     \232\ and (4) the corporation can ``demonstrate through 
     accounting records'' that it ``does not . . . accept 
     donations or anything of value from business corporations'' 
     or that it ``has a written policy against accepting donations 
     from business corporations. . . .'' \233\
       The FEC regulations further required \234\ that a 
     corporation which is not a political committee file a 
     certification that it complied with the provisions of the 
     regulations \235\ and, therefore, was eligible for an 
     exemption from the prohibition on corporate expenditures. The 
     regulations also required that ``[w]henever a qualified 
     nonprofit corporation solicits donations, the solicitation 
     shall inform potential donors that their donations may be 
     used for political purposes, such as supporting or opposing 
     candidates.'' \236\
       The FEC's new regulations were clearly unconstitutional. 
     They constituted another transparent effort by the FEC to 
     expand its power and to limit political speech, as set out 
     below.

  1. MCFL's Test for an Exemption from Sec. 441b Must Be Read in the 
            Context of That Case's Protection of Free Speech

       The Supreme Court's decision in MCFL is essentially a 
     speech-protective holding. The Court's fashioning of the 
     ``MCFL exemption'' was rooted in the very principles of 
     public policy and governance which animate the First 
     Amendment, and which bear brief reiteration. The Court stated 
     that ``[f]reedom of speech plays a fundamental role in a 
     democracy. . . .'' \237\ As the Court had previously stated 
     in Buckley: ``Discussion of public issues and debate on the 
     qualifications of candidates are integral to the operation of 
     the system of government established by our Constitution. The 
     First Amendment affords the broadest protection to such 
     political expression in order to assure [the] unfettered 
     interchange of ideas for the bringing about of political and 
     social changes desired by the people.'' \238\

[[Page S10367]]

       Freedom of speech, particularly political speech, is thus 
     necessary to the functioning of a representative democracy. 
     As such, it is also ``the matrix, the indispensable condition 
     of every other form of freedom.'' \239\ That is, because 
     freedom of speech protects our very form of government, it 
     necessarily plays a pivotal and essential role in protecting 
     the other freedoms which are safeguarded by the Constitution. 
     Finally, as the MCFL Court pointed out, ``First Amendment 
     speech is not necessarily limited to such an instrumental 
     role.'' \240\ In other words, the First Amendment protects 
     speech not only because it fosters free government, but 
     because it fosters the development of the individual by 
     protecting freedom of thought and conscience. Quoting Justice 
     Brandeis, the Court stated: ``Those who won our independence 
     believed that the final end of the State was to make men free 
     to develop their faculties; and that in its government the 
     deliberative forces should prevail over the arbitrary. They 
     valued liberty both as an end and as a means.'' \241\
       Thus, free speech plays a vital role in protecting 
     democracy itself, thereby making possible the other freedoms 
     we enjoy and allowing people to develop their faculties to 
     the fullest extent possible.
       Given the centrality of free speech, it is not surprising 
     that the Supreme Court has been extremely solicitous to 
     protect it. The MCFL Court explained that, because free 
     speech is fundamental, ``we must be as vigilant against the 
     modest diminution of speech as we are against the mode3st 
     diminution of speech as we are against its sweeping 
     restriction.'' \242\ The Court's solicitude for free speech, 
     in turn, caused it to fashion the fundamental principle which 
     both mandates and explains the Court's holding in MCFL: 
     ``Where at all possible, government must curtail speech only 
     to the degree necessary to meet the particular problem at 
     hand, and must avoid infringing on speech that does not pose 
     the danger that has prompted regulation.'' \243\
       The quoted statement is, in reality, a reformulation of the 
     ``strict scrutiny'' test (i.e., speech regulation must be 
     narrowly tailored to serve a compelling state interest) which 
     the Supreme Court applies in all cases where a regulation is 
     challenged as a content-based restriction on speech.\244\ In 
     essence, the Court was saying that, because as a Nation we 
     value free speech so highly, our government is permitted to 
     regulate it only where the government's interest is 
     compelling and only to the extent absolutely necessary to 
     achieve that interest.
       The burden of demonstrating the existence of such an 
     interest is squarely on the government. As the Supreme Court 
     explained in First National Bank v. Bellotti, ``where, as 
     here, as a prohibition is directed at speech itself, and the 
     speech is intimately related to the process of governing, the 
     State may prevail only upon showing a subordinating interest 
     which is compelling and the burden is on the Government to 
     show the existence of such an interest. Even then, the State 
     must employ means closely drawn to avoid unnecessary 
     abridgement. . . .'' \245\
       The MCFL Court pointed out the danger which looms whenever 
     speech is sought to be regulated, i.e., the incremental loss 
     of freedom which may begin when we first allow speech to be 
     restricted in pursuit of other governmental goals. ``Our 
     pursuit of other governmental ends, however, may tempt us to 
     accept in small increments a loss that would be unthinkable 
     if inflicted all at once.'' Thus, courts should, wherever 
     possible, avoid the slippery slope of speech regulation 
     altogether--for although a particular restriction on speech 
     may appear to be ``modest,'' no restriction of speech is ever 
     ``minor.''
       The import of the above discussion is that the specific 
     legal rules which the Supreme Court has developed (such as 
     the MCFL exemption) have not been fashioned in a vacuum. 
     Rather, they have a discernible origin in the public policies 
     which inform the First Amendment. Those policies, in turn, 
     are determinative of the rationales upon which the specific 
     holdings are based.
       However, in fashioning its ``MCFL exemption'' regulations, 
     the FEC read MCFL as if those policies and rationales did not 
     give meaning to its holdings. The FEC, therefore, justified 
     its regulation almost completely by reference to the eight 
     sentences toward the end of the MCFL opinion which contain 
     a summary of the Court's specific holding,\247\ while 
     largely ignoring the lengthy discussion of the rationale 
     for the holding which comprises the previous eight pages. 
     However, it is rudimentary that ``black letter law'' 
     cannot be understood without reference to the judicial 
     reasoning which undergirds it.
       In sum, the FEC sought a ``modest diminution'' in speech 
     based on ``government ends'' other than the protection of 
     free speech. However, the FEC has been unable to meet its 
     heavy burden of demonstrating that its asserted interests are 
     compelling and that its speech restriction is narrowly 
     tailored.

    2. The Scope of Each of the MCFL Features Was Determined by the 
                     Rationales Which Underlaid It

       The Court in MCFL identified ``three features essential'' 
     to its holding that MCFL could not be prohibited from 
     independent political spending: ``First, it was formed for 
     the express purpose of promoting political ideas, and cannot 
     engage in business activities. Second, it has no shareholders 
     or other persons affiliated so as to have a claim on its 
     assets or earnings. Third, MCFL was not established by a 
     business corporation or labor union, and it is its policy not 
     to accept contributions from such entities.'' \248\
       As will be seen, the FEC took these ``essential features'' 
     literally and provided in its regulations that, if a 
     corporation did not have these identical features, it was 
     denied the ``MCFL exemption.'' As will be demonstrated, 
     however, each of these features was explicitly tied to a 
     rationale which both explained the feature and defined its 
     scope.

 a. The first MCFL feature assured that political resources reflected 
                           political support

       The first feature which mandated an exemption from 
     Sec. 441(b) was that the corporation in question was ``formed 
     for the express purpose of promoting political ideas, and 
     cannot engage in business activities.'' \249\ As the Supreme 
     Court stated, this feature ``ensures that political resources 
     reflect political support.'' \250\ The underlying reason for 
     this concern was ``to protect the integrity of the 
     marketplace of political ideas'' from ``the corrosive 
     influence of concentrated corporate wealth.'' \251\
       In fashioning this feature, the Court was concerned that 
     ``[d]irect corporate spending on political activity raises 
     the prospect that resources amassed in the economic 
     marketplace may be used to provide an unfair advantage in the 
     political marketplace.'' \252\ As the Court later clarified 
     in Austin v. Michigan Chamber of Commerce, the danger was not 
     simply the infusion of money into the political marketplace, 
     but infusion of funds amassed in the economic marketplace 
     which were unrelated to support for the corporation's 
     political ideas.\253\
       However, as the FEC's broad prohibition of ``business 
     activities'' \254\ demonstrated, the FEC misconstrued this 
     rationale as prohibiting any business income by the 
     corporation. The FEC regulation reached ``any provision of 
     goods or services which results in income to the 
     corporation'' and which is not ``expressly described'' as 
     donations for political purposes, as well as any 
     ``advertising or promotional activity which results in income 
     to the corporation.'' \255\ The Supreme Court, however, was 
     concerned solely with the impact on the political marketplace 
     caused by the use of funds which are unrelated to the 
     corporation's political ideas.\256\
       The MCFL Court recognized that Sec. 441b took account of 
     this distinction by allowing corporations to make political 
     expenditures through a separate segregated fund or PAC. 
     Expenditures by a PAC are permitted precisely because they 
     come from voluntary contributions and, therefore, reflect 
     political support: ``the money collected is that intended by 
     those who contribute to be used for political purposes and 
     not money diverted from another source.'' \257\ The FEC 
     failed to recognize that, just as PACs do not pose the 
     problem sought to be addressed by Sec. 441b, i.e., ``that 
     substantial general purpose treasuries should not be diverted 
     to political purposes,'' \258\ neither do ideological 
     corporations such as MCFL.
       As the MCFL Court explained, ``the power of a corporation 
     may be no reflection of the power of its ideas.'' \259\ 
     Unlike business corporations, however, the resources of which 
     ``are not an indication of popular support,'' the resources 
     available to corporations such as MCFL exist precisely 
     because of their political support, i.e., the fact that the 
     ideas that they propound are considered to be important to 
     those who, for example, patronize its bake sales.
       The Supreme Court could not have been clearer about its 
     rationale in this regard: ``[r]egulation of corporate 
     political activity thus has reflected concern not about the 
     use of the corporate form per se, but about the unfair 
     deployment of wealth for political purposes. Groups such as 
     MCFL do not pose that danger of corruption.'' \260\
       In its ``Explanation and Justification'' for the challenged 
     regulation, the FEC demonstrated its complete 
     misunderstanding of the above-quoted language: ``[i]n order 
     to pose no such threat, a corporation must be free from 
     resources obtained in the economic marketplace. Only those 
     corporations that cannot engage in business activities are 
     free from these kinds of resources.'' \261\ However, as 
     demonstrated, the Court's rationale in this regard did not 
     constitute a condemnation of the political use of ``resources 
     obtained in the economic marketplace''; rather, it was only 
     concerned with the diversion of funds acquired in the 
     economic marketplace to the political marketplace where those 
     funds were acquired in a manner which was unrelated to the 
     political purposes of the corporation.
       Groups such as MCFL, however, do not pose a threat of the 
     danger that funds unrelated to the corporation's political 
     goals will be funneled into the political marketplace of 
     ideas. This is so because ``[t]he resources it has available 
     are not a function of its success in the economic 
     marketplace, but its popularity in the political 
     marketplace.''\262\ Contributors give money to such groups 
     precisely because they wish to further the groups' political 
     goals, i.e., ``because they regard such a contribution as a 
     more effective means of advocacy than spending the money 
     under their own personal direction.''\263\ Likewise, a person 
     who engages in ``business activities'' with such an 
     organization does so with the same underlying motivation. He 
     does not spend money at a bake sale or a flower sale 
     primarily to get cookies or carnations. Rather, he does so to 
     benefit the organization and to further its political goals, 
     which he realizes are better served by concerted action than 
     by his individual efforts. Thus, the money which changes 
     hands is directly related to the political purposes of the

[[Page S10368]]

     organization and does not come within the permissible 
     rationale for restricting all corporate expenditures.
       The FEC, however, ignored the distinction between business 
     activities which are unrelated to political ideas and those 
     which are related to political ideas in their regulations. 
     Through its denial of the exemption to any corporation which 
     engages in any ``business activities'' (so broadly defined as 
     to include such insensibly politically-motivated transactions 
     as purchases made at bake sales and sales of an ad in a 
     newsletter), the FEC had extended its regulation to ``speech 
     that does not pose the danger that has prompted 
     regulation.''\264\

   b. The Second MCFL Feature Assured That Members Would Not Have a 
    Disincentive to Disassociate With a Corporation With Which They 
                                Disagree

       The second MCFL feature was that a corporation ``has no 
     shareholders or others associated so as to have a claim on 
     its assets or earnings.''\265\ Like the other MCFL features, 
     this one cannot be understood apart from the rationale for 
     its formulation. The Supreme Court explained that the absence 
     of such persons ``ensures that persons connected with the 
     organization will have no disincentive for disassociating 
     with it if they disagree with its political activity.''\266\ 
     In developing this feature, the Supreme Court was concerned 
     with situations which may arise with respect to the ordinary 
     business corporation or labor union. It is conceivable that 
     people who are associated with such entities would not want 
     their dues or investment funds used for political purposes. 
     As the Court explained: ``such persons . . . contribute 
     investment funds or union dues for economic gain, and do not 
     necessarily authorize the use of their money for political 
     ends. Furthermore, because such individuals depend on the 
     organization for income or for a job it is not enough to tell 
     them that any unhappiness with the use of their money can be 
     redressed simply by leaving the corporation or the 
     union.''\267\
       Based on this reasoning, the MCFL Court concluded that, 
     although it was reasonable for Congress to require the 
     establishment of separate segregated funds to which such 
     persons could make voluntary contributions, ``[t]his 
     rationale for regulations is not compelling with respect to 
     independent expenditures by [MCFL].''\268\ This is because, 
     as explained above, MCFL had no stockholders or members who 
     could share in the corporation's assets or earnings.
       In fashioning its new regulation, however, the FEC again 
     failed to take account of the underlying rationale and how it 
     affects the scope of the feature. In denying the exemption to 
     corporations who offer any benefit, no matter how de minimis 
     to its members,\269\ the FEC failed to recognize that the 
     primary purpose of the feature was to protect those who 
     ``depend on the organization for income or for a job,'' that 
     is, those who may have a ``claim on its assets or 
     earnings.''\270\ Thus, as with the first MCFL feature, the 
     scope of this feature can only be understood by reference to 
     the rationale for its creation.

c. The Third MCFL Feature Assured That Exempt Corporations Did Not Act 
   as Conduits for the Type of Spending That Created a Threat to the 
                         Political Marketplace

       The third MCFL feature concerned the fact that ``NCFL was 
     not established by a business corporation or labor union, and 
     it was its policy not to accept contributions from such 
     entities.''\271\ In Austin, the Court described this feature 
     as ensuring ``the organization's independence from the 
     influence of business corporations.''\272\ The rationale for 
     this feature is that such independence ``prevents such 
     corporations from serving as conduits for the type of direct 
     spending that creates a threat to the political 
     marketplace.''\273\
       In its regulation, however, the FEC not only required that 
     corporations be in fact independent of the influence of 
     business corporations, but also that they either have a 
     policy against accepting any donations from business 
     corporations or do not accept, either directly or indirectly, 
     donations from business corporation. As the Second Circuit 
     recognized in FEC v. Survival Education Fund (SEC),\274\ 
     however, the rationale of this feature does not depend on 
     whether a corporation has a policy against accepting 
     corporate donations, but upon whether it is, in fact, 
     independent of the influence of corporate donations. That 
     Court explained:
       ``To be sure, an express policy against accepting corporate 
     or union contributions is clear proof that no such danger 
     exists, as the Court in MCFL duly found. But a nonprofit 
     political advocacy corporation, which in fact receives no 
     significant funding from unions or business corporations, 
     does not surrender its First Amendment freedoms for want of 
     such a policy.
       ``Under MCFL, a nonprofit political advocacy corporation 
     having no shareholders or members with financial 
     disincentives to disassociate from the corporation if they 
     disagree with its views is exempt from Sec. 441b as long as 
     it is independent in fact from significant business or labor 
     influence. The existence of a policy against accepting 
     contributions from business corporations or unions is 
     relevant to, but not dispositive of, the issue of 
     independence.''\275\
       In addition, it is not necessary that the corporation 
     receives no business contributions. As the court in Day v. 
     Holahan found, ``the key issue here is the amount of for-
     profit corporate funding a nonprofit receives, rather than 
     the establishment of a policy not to accept significant 
     amounts.''\276\
       Thus, the Eight Circuit in Day recognized, like the Second 
     Circuit in SEF, that ``the factual findings of MCFL [did not] 
     translate into absolutes in legal application.''\277\ The 
     scope of each of these features can be understood only by 
     understanding the particular evil that the Supreme Court in 
     MCFL sought to avoid. For that reason, governmental 
     regulation is permissible only to the extent ``necessary to 
     meet the particular problem at hand,''\278\ However, the FEC 
     overstepped the zone of permissible regulation and has sought 
     to regulate speech which is protected by a proper 
     understanding of the purposes and rationales which account 
     for the MCFL exemption.

3. Minnesota Citizens Concerned for Life v. FEC Held the FEC's New MCFL 
                          Regulations Unlawful

       A challenge, under the Administrative Procedures Act, to 
     the new FEC regulations of MCFL-type organizations was 
     brought in the Eighth Circuit case of Minnesota Citizens 
     Concerned for Life v. FEC.\279\ The district court declared 
     the new regulations void as beyond the statutory authority of 
     the FEC as construed by the federal courts.
       The court based its rejection of the regulations on the 
     ``functional interpretation'' of Day rather than the ``formal 
     interpretation'' of the FEC.\280\ In examining the 
     regulations, the District Court specifically found that the 
     ``prohibition against any `business activities' '' and the 
     ``prohibition against the receipt of corporate donations 
     [are], unquestionably, too restrictive.'' \281\
       In addition, the district court also implied that the third 
     and fourth provisions were of questionable validity under the 
     approach taken by the Eight Circuit in Day. As the district 
     court states, ``Day rejected a `bright-line' approach to 
     implementing the MCFL exemption, and instead looked to the 
     particular characteristics of the nonprofit as they relate to 
     the purpose of Sec. 441(b) and the members' First Amendment 
     rights. Thus, Day casts serious doubt on Sec. 114.10(c)(1)'s 
     requirement that a qualified nonprofit's `only' express 
     purpose be the expression of political ideas and 
     Sec. 114.10(c)(3)(ii)['s] requirement that a qualified 
     nonprofit not have members which receive `any' benefit which 
     is disincentive to associate themselves from the 
     corporation.'' \282\
       The FEC appealed the decision to the Eighth Circuit, which 
     decided Day, apparently on the hope that the circuit would 
     change its mind about its understanding of the MCFL 
     exemption.\283\ On May 7, 1977, the Eighth Circuit affirmed 
     the decision of the district court.\284\


                               B. MEMBERS

       Another protection for speech about political matters by 
     organizations is the First Amendment guarantee that 
     organizations may communicate with their members unencumbered 
     by governmental regulation. This protection was recognized in 
     1948 by the Supreme Court in United States v. Congress of 
     Industrial Organizations (CIO).\285\ As noted earlier in this 
     article, this case involved a prohibition on ``any 
     expenditure in connection with a federal election'' by a 
     corporation or labor organization.\286\ Charges were brought 
     against the CIO for publishing in its membership newsletter a 
     statement urging members to vote for a particular federal 
     candidate.\287\ The Court cited several authorities about the 
     sacrosanct nature of free expression and dismissed the 
     indictment, stating that: ``If Sec. 313 were construed to 
     prohibit the publication, by corporations and unions in the 
     regular course of conducting their affairs, of periodicals 
     advising their members, stockholders or customers of danger 
     or advantage to their interests from the adoption of 
     measures, or the election to office of men espousing such 
     measures, the gravest doubt would arise in our minds as to 
     its constitutionality.'' \288\
       In 1982, the Supreme Court revisited the subject in FEC v. 
     National Right to Work Committee (NRWC).\289\ This case 
     involved solicitation by NRWC to ``some 267,000 persons for 
     contributions to a separate segregated fund [a PAC] that it 
     sponsored.'' \290\ NRWC was a nonstock corporation.\291\ The 
     issue was whether NRWC had limited its solicitations to 
     ``members'' within the meaning of 2 U.S.C. 
     Sec. Sec. 441b(b)(4)(A) and (C), which provide that a 
     nonstock corporation may solicit contributions to its PAC 
     only from ``members'' of the corporation.\292\ The organic 
     documents of NRWC stated that it would have no members.\293\ 
     Although NRWC had mailed millions of letters promoting its 
     opposition to compulsory unionism and soliciting donations, 
     none mentioned membership.\294\ When NRWC created its PAC 
     (because corporations could not contribute to candidates 
     under 2 U.S.C. Sec. 441(b)), it solicited persons who had 
     made donations to NRWC. Upon examining the brief legislative 
     history of Sec. 441(b), the Supreme Court decided that the 
     congressional intent was ``that some relatively enduring and 
     independently significant financial or organizational 
     attachment is required to be a `member' under 
     Sec. 441b(b)(4)(C).'' \295\ As a consequence, the Court 
     held that NRWC did not have members ``under any reasonable 
     interpretation of the statute.'' \296\ The Court 
     reiterated the high constitutional protection accorded 
     associational rights,\297\ holding that, in this case, 
     ``the associational rights asserted by respondents may be 
     and are overborne by the interests Congress has sought to 
     protect in enacting Sec. 441(b).'' \298\
       Not content with the statutory definition of ``member,'' 
     with the new gloss of NRWC,

[[Page S10369]]

     the FEC set about to define ``member'' in new regulations. As 
     usual, the FEC pursued a speech and association suppressing 
     approach, attempting to define ``member'' as narrowly as 
     possible in order to limit as much as possible the class of 
     persons to whom the corporation may communicate its political 
     messages and from whom it may solicit PAC funds.
       An older definition of ``member'' had been promulgated by 
     the FEC in 1976. The regulation defined the term as: ``all 
     persons who are currently satisfying the requirements for 
     membership in a membership organization, trade association, 
     cooperative, or corporation without capital stock. . . . A 
     person is not considered a member under this definition if 
     the only requirement for membership is a contribution to a 
     separate segregated fund.'' \299\
       The new definition of ``member,'' promulgated in 1993, 
     defined the term much more restrictively:
       ``Members means all persons who are currently satisfying 
     the requirements for membership in a membership association, 
     affirmatively accept the membership association's invitation 
     to become a member, and either:
       ``(i) Have some significant financial attachment to the 
     membership association, such as a significant investment or 
     ownership stake (but not merely the payment of dues);
       ``(ii) Are required to pay on a regular basis a specific 
     amount of dues . . . and are entitled to vote directly either 
     for at least one member who has fully participatory and 
     voting rights on the highest governing body of the membership 
     association, or for those who select at least one member . . 
     .; or
       ``(iii) Are entitled to vote directly for all those on the 
     highest governing body of the membership association.'' \300\
       The U.S. Chamber of Commerce and the American Medical 
     Association were both affected by the new regulation and 
     ``ceased making their traditional political solicitations'' 
     to persons they had considered their members.\301\ They filed 
     suit seeking a declaration that the FEC had violated their 
     First Amendment rights by ignoring the disjunctive ``or'' in 
     the Supreme Court's statement quoted above,\302\ treating it 
     rather as a conjunctive ``and.'' \303\
       The United States Court of Appeals for the District of 
     Columbia Circuit found fatal flaws in the new FEC 
     regulations. The court faulted the notion that dues to a 
     nonstock corporation were less of a financial attachment to 
     the organization than was ownership of a single share of 
     stock in a public corporation.\304\ The court also faulted 
     the requirement that a ``member'' who paid dues must vote 
     directly for a member of the highest governing body, noting 
     that this excluded without justification many hierarchical 
     organizations.\305\ As a result, the court declared the 
     regulations void under the Administrative Procedures Act.
       Based on the case law, therefore, to be a ``member'' of a 
     nonstock organization to receive a corporation's or labor 
     union's political communications and to be solicited for PAC 
     purposes, one must have some financial connection with the 
     organization (usually done with dues payments) and have a 
     right to vote at least at a local level for persons who will 
     chose the voting representative of a local organization to 
     the larger governing body of the organization (typically done 
     by allowing local members to vote for the local delegate to 
     the state-wide governing body of the organization.\306\


                        C. ANONYMOUS LITERATURE

       In McIntyre v. Ohio Election Commission,\307\ the United 
     States Supreme Court declared that a broadly worded 
     requirement that there be a mandated disclaimer identifying 
     the author or any writing intended to ``influence'' an 
     election is unconstitutional. Indeed, the Supreme 
     Court upheld the right of an individual or organization to 
     publish anonymously concerning the advocacy of political 
     causes.
       In McIntyre, the Court considered an Ohio election 
     practices statute in the context of an enforcement action 
     against a woman, Margaret McIntyre, who distributed flyers 
     generated on a home computer and printed at her own expense 
     relating to a referendum on a proposed school tax levy.\308\ 
     Some of her handbills identified her as the author, while 
     others contained the identifier ``CONCERNED PARENTS AND TAX 
     PAYERS.'' \309\ Margaret was fined $100 by the Ohio Election 
     Commission for failure to use the required disclaimer.\310\ 
     On appeal of the case, the U.S. Supreme Court struck down the 
     Ohio statute imposing a state-mandated disclaimer on 
     literature intended to ``influence the voters in any 
     election.'' \311\
       Noting that the statute was a content-based ``limitation on 
     political expression'' at ``the core of the protection 
     afforded by the First Amendment,'' the Court applied 
     ``exacting scrutiny.'' \312\ The Court noted that in addition 
     to ``exacting scrutiny'' such a restriction on ``core 
     political speech'' must be ``narrowly tailored to serve an 
     overriding state interest.'' \313\
       Ohio asserted two interests to justify its disclaimer: (1) 
     an ``interest in preventing fraudulent and libelous 
     statements'' and (2) an ``interest in providing the 
     electorate with relevant information.'' \314\ The High Court 
     noted that free expression includes the right to release what 
     information one desires and that the name of a private 
     citizen would be meaningless to most readers anyway with 
     regard to the reader's ability to evaluate the message.\315\ 
     The Court dismissed the interest in informing the public as 
     ``plainly insufficient to support the constitutionality of 
     its disclosure requirements.'' \316\
       The Court gave more weight to Ohio's interest in preventing 
     fraud and libel, noting that this interest ``carries special 
     weight during election campaigns when false statements, if 
     credited, may have serious adverse consequences for the 
     public at large.'' \317\ The Court, noted, however, that Ohio 
     had a statute setting forth penalties for false statements 
     during political campaigns, so that the disclaimer provision 
     was ``not its principal weapon against fraud.'' \318\ The 
     Court noted that the disclaimer provision served as an ``aid 
     to enforcement'' and a ``deterrent to the making of false 
     statements by unscrupulous prevaricators,'' but these 
     ``legitimate'' benefits did not justify the ``extremely 
     broad'' disclaimer mandate.\319\
       This is so the Court said, inter alia, because the broad 
     prohibition ``encompasses documents that are not even 
     arguably false or misleading. It applies not only to the 
     activities of candidates and their organized supporters, but 
     also to individuals acting independently and using only their 
     own modest resources. . . .'' \320\
       The Court distinguished its upholding in Buckley of a 
     requirement that expenditures in excess of a certain amount 
     be reported to the FEC, declaring that the Ohio disclaimer 
     requirements is ``more intrusive than the Buckley disclosure 
     requirement'' and ``rests on different and less powerful 
     state interests.'' The Court noted that the FECA ``regulates 
     only candidate elections, not referenda or other issue-based 
     ballot measures; and we construed `independent expenditures' 
     to mean only those expenditures that `expressly advocate the 
     election or defeat of a clearly identified candidate.' '' 
     \321\
       Reporting requirements, like disclaimers, are a type of 
     disclosure mechanism.\322\ Buckley approved reporting 
     requirements for express advocacy; it did not approve 
     disclaimers on this type of speech. Indeed, McIntyre 
     recognized that Buckley did not even address the issues of 
     disclaimers or anonymous speech: ``Ohio vigorously argues 
     that our opinions in First National Bank of Boston v. 
     Bellotti, . . . and Buckley v. Valeo, . . . amply support the 
     constitutionality of its disclosure requirements [i.e., 
     disclaimer]. Neither case is controlling: . . . [Buckley] 
     concerned mandatory disclosure of campaign-related 
     expenditures [i.e., reporting requirements]. Neither case 
     involved a prohibition of anonymous campaign literature. 
     ''\323\
       McIntyre went on to recognize that Buckley upheld reporting 
     requirements for express advocacy, and unlike disclaimers, 
     such requirements advance the interest in obtaining 
     information without unduly impinging upon protected speech: 
     ``True, in another portion of [Buckley] we [approved] a 
     requirement that even independent expenditures in excess of a 
     certain threshold level be reported. * * * But that 
     requirement entailed nothing more than an identification * * 
     * of the amount and use of money expended in support of a 
     candidate [through a report]. Though such mandatory reporting 
     undeniably impedes protected First Amendment activity, the 
     intrusion is a far cry from compelled self-identification 
     [i.e., disclaimers] on all election-related writings.'' \324\
       The Court concluded that ``the Ohio statute's infringement 
     on speech [disclaimers,] [is] more intrusive than the Buckley 
     disclosure requirement [reporting].'' \325\ Both means 
     provide the State with information; however, reporting 
     requirements are more narrowly tailored to do so.\326\


                   d. contribution & expenditure caps

       Another protection afforded political speech by the First 
     Amendment and recognized by the United States Supreme Court 
     is the limitation on the extent to which government may place 
     caps on contributions and expenditures. While the Court 
     permits some caps on contributions, there are limits as to 
     how low the caps may go. No caps are permitted on independent 
     expenditures.
       Buckley's point of departure is the principle that any 
     restriction of the amount of money that can be spent in 
     campaigns is suspect. The Supreme Court stated that [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 reached.\327\
       Thus, a regulation which seeks to regulate political 
     spending is subject to a presumption of invalidity. In 
     Buckley, the Supreme Court did, however, enunciate a 
     constitutional distinction between ``expenditures'' and 
     ``contributions.'' The Court stated that: ``although the 
     Act's contribution and expenditure limitations both implicate 
     fundamental First Amendment interests, its expenditures 
     ceilings impose significantly more severe restrictions on 
     protected freedoms of political expression than do its 
     limitations on financial contributions.'' \328\
       Expenditures could not be regulated unless they constituted 
     ``express advocacy'' of the election or defeat of a clearly 
     identified candidate (and if they were ``independent 
     expenditures'' they could not be limited even if they did 
     constitute express advocacy).\329\ On the other hand, 
     contributions were, under the reasoning of Buckley, more 
     susceptible of regulation.
       The Court's reasons for making a distinction of 
     constitutional dimension in this regard were essentially 
     twofold. First, the Court found that contribution limitations

[[Page S10370]]

     did not place significant burdens on protected speech and 
     associational freedoms. Second, the Court found that 
     contributions could be limited because, unlike expenditures, 
     they posed the danger of quid pro quo corruption (and the 
     appearance thereof) to the political system. Unless both of 
     these rationales are satisfied, contributions cannot be 
     limited.

 I. Contributions Can Only be Limited Because They Threaten Corruption 
                        to the Political System

       As noted above, the Buckley Court began its analysis with 
     the proposition that limits on spending in connection with 
     campaigns are presumptively invalid. It did, however, permit 
     the government to limit contributions to candidates or 
     campaigns. One of the two fundamental rationales for allowing 
     such restrictions was that, unlike expenditures, 
     contributions pose a threat of corruption to the political 
     system. The Court stated that ``[t]o the extent that large 
     contributions are given to secure a political quid pro quo 
     from current and potential office holders, the integrity of 
     our system of representative democracy is undermined.'' \330\
       In addition, the Court was concerned with ``appearance of 
     corruption stemming from public awareness of the 
     opportunities for abuse inherent in a regime of large 
     individual financial contributions.'' \331\ Therefore, the 
     Court permitted governmental limitations on contributions 
     \332\ because of the governmental interest ``in the 
     prevention of corruption and the appearance of corruption 
     spawned by the real or imagined influence of large 
     financial contributions on candidates' positions and on 
     their actions if elected to office.'' \333\
       The Supreme Court in Buckley then proceeded to approve an 
     aggregate contribution cap of $1,000 for each election by any 
     person to any candidate for federal office.\334\ The Court 
     found that the interest in limiting ``the actuality and 
     appearance of corruption resulting from large individual 
     financial contributions'' justified ``the limited effect upon 
     First Amendment freedoms caused by the $1000 contribution 
     ceiling.'' \335\ More precisely, the Court found that in 1976 
     a $1,000 limit on contributions was sufficiently high to be 
     narrowly tailored to limit corruption, while allowing 
     individuals and organizations to assist to a ``substantial 
     extent in supporting candidates and committees with financial 
     resources.'' \336\
       However, contribution caps are not one of those things 
     where, if a little is good, more is better. Efforts to set 
     lower limits have been routinely struck down. In several 
     post-Buckley decisions, courts have upheld contribution 
     limits above $1,000,\337\ but have struck down those below 
     it. In Carver v. Nixon,\338\ the Eighth Circuit struck down a 
     $300 limit on direct contributions in state elections on the 
     ground that it was not narrowly tailored to advance the 
     state's interest in combating corruption.\339\ It noted that 
     Buckley upheld a $1,000 limit twenty years ago because such a 
     limitation focused precisely on the problem with large 
     campaign contributions without unduly impinging on protected 
     speech, i.e., it was narrowly tailored to achieve its 
     goal.\340\ Similarly, in Day v. Holahan,\341\ the Eighth 
     Circuit struck down a $100 limit on contributions to and from 
     political committees.\342\

 2. Expenditures, However, Cannot be Limited Because Doing So Imposes 
  Restrictions on the Freedoms of Speech and Association That are Not 
                   Justified by a Compelling Interest

       As the Buckley Court explained, independent expenditures 
     are entitled to full constitutional protection: ``Advocacy of 
     the election or defeat of candidates for federal office is no 
     less entitled to protection under the First Amendment than 
     discussion of political policy generally or advocacy of the 
     passage or defeat of legislation.'' \343\
       In contrast to contributions, however, ``expenditures'' 
     which are not coordinated with a candidate or campaign do not 
     pose a danger of corruption or its appearance. Thus, there is 
     no compelling interest in their limitation. This is so 
     because a candidate does not necessarily benefit from (and 
     may well even be harmed by) an expenditure which is made 
     independently of his campaign. As the Supreme Court 
     recognized, ``[u]nlike contributions, such independent 
     expenditures may well provide little assistance to the 
     candidate's campaign and indeed may prove counterproductive. 
     The absence of prearrangement and coordination of an 
     expenditure with the candidate or his agent not only 
     undermines the value of the expenditure to the candidate, but 
     also alleviates the danger that expenditures will be given as 
     a quid pro quo for improper commitments from the candidate.'' 
     \344\
       Thus, because as a practical matter the candidate may well 
     not benefit from an expenditure made without coordination, 
     the danger of quid pro quos is obviated. This results not 
     only in alleviating the danger of corruption, but the 
     appearance of corruption as well.
       In addition, in contrast to limits on contributions that 
     ``entail[s] only a marginal restriction on the contributor's 
     ability to engage in free communication,'' \345\ the Court 
     reasoned that, ``because virtually every means of 
     communicating ideas in today's mass society requires the 
     expenditure of money,'' the ``expenditure limitations 
     contained in the Act represent substantial rather than merely 
     theoretical restraints on the quantity and diversity of 
     political speech.'' \346\ Whereas a contribution to a 
     candidate merely ``serves as a general expression of 
     support for the candidate and his views, but does not 
     communicate the underlying basis for the support,'' \347\ 
     ``a restriction on the amount of money a person or group 
     can spend on political communication during a campaign 
     necessarily reduces the quality of expression by 
     restricting the number of issues discussed, the depth of 
     their exploration, and the size of the audience reached.'' 
     \348\
       As a result, the Court has struck down limits on 
     independent expenditures by individuals \349\ and political 
     committees.\350\


                        e. political committees

       As noted by the Court in Buckley,\351\ ``the First 
     Amendment protects political association as well as political 
     expression.'' As a result, citizens have the ``freedom to 
     associate with others for the common advancement of political 
     beliefs and ideas.'' \352\ ``Governmental action which may 
     have the effect of curtailing the freedom to associate is 
     subject to the closest scrutiny.'' \353\
       Political action committees (PACs) are associations 
     organized to enhance the political expression of citizens by 
     joining individual contributions with those of others so that 
     they may more effectively participate in political 
     speech.\354\ As a result, the Supreme Court has ``reject(ed) 
     the notion that the PACs form of organization or method of 
     solicitation diminishes their entitlement to First Amendment 
     protection,'' \355\ and expressly held that they are 
     protected by the First Amendment freedom of association.\356\ 
     Furthermore, any disparate treatment of a political 
     committee, such as lower contribution limits for PACs as 
     opposed to individuals, would violate the PACs freedom of 
     association.\357\


                           f. burden of proof

       A final protection for free political speech and 
     association is the burden of proof placed on legislatures 
     which enact a ``law . . . abridging the freedom of speech.'' 
     \358\ Because free expression and association are such 
     cherished American rights, they are protected as fundamental 
     rights against infringement. To be valid, a law burdening or 
     chilling these rights must serve a compelling interest and be 
     narrowly tailored to effect only that interest.\359\
       Once a plaintiff has demonstrated that a statute infringes 
     the exercise of his or her First Amendment rights, the burden 
     is on the state to justify this infringement. As the United 
     States Supreme Court declared in 1978: ``The 
     constitutionality of Sec. 8's prohibition of the `exposition 
     of ideas' [a ban on corporate contributions or expenditures 
     to influence the outcome of a referendum] by corporations 
     turns on whether it can survive the exacting scrutiny 
     necessitated by a state-imposed restriction of freedom of 
     speech. Especially where, as here, a prohibition is directed 
     at speech itself, and the speech is intimately related to the 
     process of governing, `the State may prevail only upon 
     showing a subordinating interest which is compelling' `and 
     the burden is on the Government to show the existence of such 
     an interest.' Even then, the State must employ means `closely 
     drawn to avoid unnecessary abridgment. . . .' '' \360\
       The state's effort to carry its burden must be done under 
     ``the closest scrutiny.'' \361\ As the U.S. Supreme Court has 
     stated: ``When the government defends a regulation on speech 
     . . . it must do more than simply ``posit the existence of 
     the disease sought to be cured.'' . . . It must demonstrate 
     that the recited harms are real, . . . and that the 
     regulation will in fact alleviate these harms in a direct and 
     material way.'' \362\
       In Carver v. Nixon,\363\ a case involving campaign 
     contribution caps, the Eighth Circuit declared that the 
     government must produce ``evidence to demonstrate that the 
     limits were narrowly tailored to combat corruption or the 
     appearance of corruption. . . .'' \364\ ``The record is 
     barren of any evidence of a harm or disease that needed to 
     be addressed,'' the court proclaimed.\365\
       In Shrink Missouri Government PAC v. Maupin,\366\ the U.S. 
     District Court for the Eastern District of Missouri observed 
     that ``[d]efendants wholly failed to adduce any evidence of 
     actual corruption taking place. . . . The harm that the 
     defendants seek to eradicate must exist and its cure must 
     specifically be directed toward the elimination of that harm. 
     . . . . The defendants fail to point to one incident wherein 
     a[n] . . . official . . . has cast a vote or agreed to 
     influence a vote, during the general assembly's regular 
     session, in exchange for a contribution. As for the 
     appearance of corruption, the defendants' two witnesses 
     testified in general terms of their belief that the public 
     perceives the acceptance of contributions during the 
     legislative session as ``inappropriate''. No factual basis 
     was given for these witnesses' perception that the electorate 
     believes that contributions accepted during the general 
     assembly's regular session reflect corruptive deal-making.'' 
     \367\
       In sum, when the government makes a law abridging free 
     speech, it has an extremely heavy burden of proof that there 
     is a compelling interest, and this burden must be met with 
     the clearest of facts carefully established, not with mere 
     speculation about possible corruption. There are two obvious 
     reasons for this.
       First is the premier protection given to free speech and 
     free association rights in our constitutional system. Because 
     of the supreme importance of free political speech and 
     association to the very democratic foundations of our 
     Republic, government should

[[Page S10371]]

     make no law abridging these expressly protected activities on 
     the basis of unproven speculation about corruption.
       Second is the fact that the legislation abridging political 
     speech is being enacted by incumbent politicians. Justice 
     Thomas in his concurrence in Colorado Republican put the 
     matter well when he referred to the notion of according 
     special deference to congressional judgments about campaign 
     finance as ``letting the fox stand watch over the henhouse.'' 
     \368\ He added, ``What the argument for deference fails to 
     acknowledge is the potential for legislators to set the rules 
     of the electoral game so as to keep themselves in power and 
     to keep potential challengers out of it.'' \369\
       This warning has been echoed by various commentators. For 
     example, Lillian BeVier points out the importance of three 
     scope-of-review issues in protecting constitutional rights in 
     the political speech area: (a) courts must ``insist on a 
     rigorous definition of `corruption' as well as an 
     intelligible description of both empirical counterparts of 
     this corruption and the purified political order it hopes to 
     attain'' \370\; (b) courts ``should adopt a `premise of 
     distrust' with respect to legislative means'' \371\; and (c) 
     courts should take note of the realities of campaign finance 
     reform--such as ``unintended consequences'' and ``at least 
     temporary reallocations of political advantage'' and sanction 
     ``only reforms that are practically guaranteed to achieve a 
     clearly specified and unquestionably legitimate corruption-
     prevention goal.'' \372\ Similar warnings have come from John 
     Hart Ely \373\ and Ralph Winter,\374\ among others.
       Thus, the burden is on the government to establish by clear 
     evidence the compelling interest in corruption or its 
     appearance which it proposes as supporting its decision to 
     make a law abridging free expression in the vital realm of 
     political speech.


                      G. PRIOR RESTRAINT OF SPEECH

       The United States Supreme Court has long held that ``the 
     loss of First Amendment freedoms, for even minimal periods of 
     time, unquestionably constitutes irreparable injury.'' \375\ 
     This is particularly true with political speech since 
     ``timing is of the essence . . . when an event occurs, it is 
     often necessary to have one's voice heard promptly, if it is 
     to be considered at all.'' \376\ Therefore, a prior 
     restraint, even for ``a day or two'' may be intolerable when 
     applied ``to political speech in which the element of 
     timeliness may be important.'' \377\
       As set forth above, the First Amendment protects, as 
     political speech, both political contributions and political 
     expenditures, including both issue advocacy and independent 
     expenditures. Unfortunately, injunctions have been sought 
     and, on occasion, issued by lower state courts for alleged 
     ``violations'' of state election law.\378\ These injunctions 
     were sought to restrain the distribution of voter guides and 
     were overturned on appeal,\379\ but the damage to First 
     Amendment rights still occurred.


           v. a proposal for speech-enhancing campaign reform

       While most efforts at campaign finance reform have been 
     misguided and based on flawed assumptions, there is room for 
     speech-enhancing reform. Key to any reform to be attempted is 
     the need to protect and enhance constitutionally guaranteed 
     free expression. The case law is clear that such speech is 
     constitutionally protected, and, as set forth above, the 
     United States Supreme Court has shown no sign whatsoever that 
     it is prepared to back away from ensuring full First 
     Amendment protection to the political speech involved in 
     campaigns.
       This section will summarize the flawed premises on which 
     most efforts at campaign finance reform are based, and set 
     out some proposals for speech-enhancing reform.


                    A. FAULTY PREMISES TO BE AVOIDED

       Recent campaign finance proposals \380\ in the U.S. 
     Congress have been based on certain premises that have been 
     thoroughly rejected by the United States Supreme Court in the 
     seminal election law case of Buckley,\381\ and its progeny. 
     As a result of these faulty premises, the proposals 
     themselves are fundamentally flawed and have diverted 
     attention from reform measures that would survive 
     constitutional scrutiny and that would correct current 
     perceived problems in the political system. These faulty 
     premises are as follows.

1. (Faulty Premise #1) The First Amendment Is a Loophole in the Federal 
    Election Campaign Act (FECA) Which Should Be Narrowed or Closed

       As set forth in detail above, the First Amendment protects 
     political freedoms that are vital to our representative 
     democracy. To limit these freedoms is to fundamentally 
     undermine the ability of our citizens to freely select their 
     representatives and to hold them accountable for their 
     governance. As has been shown, there is no indication 
     whatsoever that the courts are prepared to cooperate in any 
     endeavor to limit First Amendment freedoms in this area.\382\

 2. (Faulty Premise #2) The Political System Is Only about Elections, 
 Not about Political Ideas and the Accountability of Elected Officials 
              to the Public for Their Positions on Issues

       The debate about campaign finance reform seems to focus 
     only on elections on the assumption that the political 
     process is only about elections. However, elections are only 
     a part of the political process. More importantly, elections 
     are simply a part of our system of democratic representative 
     government which fundamentally depends on ``the free 
     discussion of governmental affairs.'' \383\ Thus, issue 
     advocacy during an election, even though it may influence the 
     election, is also about the discussion of issues of public 
     concern and about holding public officials accountable for 
     their positions on these issues. Representative government 
     cannot survive without this ``free discussion of governmental 
     affairs.''

3. (Faulty Premise #3) The Rising Cost of Political Campaigns Justifies 
              Severe Government Restrictions on Campaigns

       Some promoters of campaign finance reform assert that the 
     rising cost of elections and the growing size of special 
     interest donations has corrupted the democratic process. On 
     that basis, they believe that severe limitations on campaigns 
     imposed by government are justified.
       However, the United States Supreme Court has made it clear 
     that it is up to the people, not the government, to determine 
     what is spent on political campaigns. As the Court stated in 
     Buckley: ``In any event, 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 and the resulting limitation on the 
     scope of federal campaigns. The First Amendment denies 
     government the power to determine that spending to promote 
     one's political views is wasteful, excessive, or unwise. 
     In the free society ordained by our Constitution it is not 
     the government, but the people--individually as citizens 
     and candidates and collectively as associations and 
     political committees who must retain control over the 
     quantity and range of debate on public issues in a 
     political campaign.'' \184\

   4. (Faculty Premise #4) The Only Way to Redress the Balance Is to 
      Stifle the Speech of Some Rather than to Enhance it for All

       Some promoters of campaign finance reform believe that the 
     system needs to change because it has eroded the power of 
     individual voices and amplified the voices of special 
     interests. In pursuit of equalizing speech, they take the 
     approach of limiting, penalizing, and prohibiting speech of 
     some in order to enhance it for others.
       However, the United States Supreme Court has expressly 
     rejected this proposition in Buckley: ``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.'' \385\ Thus, this 
     approach is fundamentally flawed.
       But even more tragically, the ``solution'' of stifling 
     speech diverts attention away from positive, constitutional 
     measures which would redress the imbalance in the current 
     system by enhancing the speech of citizens and issue advocacy 
     groups. These speech enhancing measures would restore a 
     proper balance between the voices of ``special interests'' 
     and the voices of individual citizens.
       Some campaign finance reform advocates believe that the 
     only way that meaningful reform will be enacted is for 
     members to put aside partisan differences and work together 
     to make it happen. While this may be one necessary 
     precondition to reform, it is not the fundamental one. For 
     meaningful reform to occur, Congress must abandon the notion 
     that it is empowered to limit free speech in order to redress 
     any imbalance in speech and instead find ways to level the 
     playing field by enhancing the speech of citizens and issue 
     advocacy groups.


          B. POSITIVE PROPOSALS FOR REFORM BY ENHANCING SPEECH

       In contrast to the serious constitutional obstacles to 
     efforts to curtail speech, Congress is free to adopt measures 
     that will enhance and encourage speech. As the Buckley Court 
     explained, in upholding the provision of the FECA providing 
     public funds for elections: ``Although `Congress shall make 
     no law . . . abridging the freedom of speech, or of the 
     press.' [public funding of elections] is a congressional 
     effort, not to abridge, restrict, or censor speech, but 
     rather to use public money to facilitate and enlarge public 
     discussion and participation in the electoral process, goals 
     vital to a self-governing people. Thus, [the provision] 
     furthers, not abridges, pertinent First Amendment values.'' 
     \386\
       But public funding of campaigns is only one way for 
     Congress to ``facilitate and enlarge public discussion and 
     participation in the electoral process.'' The best antidote 
     to the ``undue influence of special interests'' is to 
     encourage citizens to take a more active part, as individuals 
     and in association with others, in the political process.
       In addition, Congress should act to reign in the FEC's 
     effort to expand its power and regulate issue advocacy. The 
     incorporation of the Court's speech protective holdings in 
     appropriate provisions of the FECA and the adoption of 
     certain administrative reforms of the FEC itself are 
     necessary to accomplish this task. The following measures are 
     designed to do just that.\387\

     1. Section 441b of the FECA Should Be Amended to Reflect the 
 Protections of Issue Advocacy and of the Political Speech of Not-for-
                          Profit Corporations

       Section 441(b) of the FECA makes it unlawful for any 
     corporation ``to make a contribution or expenditure in 
     connection with any [federal] election.'' However, as set 
     forth

[[Page S10372]]

     above, the United States Supreme Court in MCFL,\388\ imposed 
     two significant limitations on this prohibition.
       First, the Court interpreted Sec. 441b to be limited to 
     expenditures for ``express advocacy.'' Second, the Court held 
     that the prohibition on corporate expenditures was not 
     applicable to certain not-for-profit corporations. These 
     limitations should be incorporated by Congress in Sec. 441(b) 
     by amending it.
       After Buckley, Congress amended the FECA to incorporate 
     changes in the statute required by the Court. For instance, 
     Congress amended Sec. 434(c) to reflect that disclosure of 
     expenditures by organizations that were not political 
     committees were limited to ``independent expenditures'' and 
     adopted a definition of ``independent expenditure'' in 
     Sec. 431(17).
       Similarly Congress should amend Sec. 441(b) to incorporate 
     the holdings of MCFL by providing that it is unlawful for any 
     corporation ``to make a contribution or to make an 
     expenditure which expressly advocates the election or defeat 
     of a clearly identified candidate.''
       In addition, Sec. 441(b) should be amended to add a new 
     subsection which provides that the prohibition on a 
     corporation making an expenditure which expressly advocates 
     the election or defeat of a clearly identified candidate does 
     not apply to a not-for-profit membership corporation which 
     (1) does not engage in substantial business activities, other 
     than traditional fundraising activities of not-for-profit 
     organizations, that are unrelated to the charitable, 
     educational or political activities of the organization, (2) 
     has no shareholders or other persons affiliated so as to have 
     a claim on its assets or earnings, and (3) was not 
     established by a business corporation or a labor union and 
     does not receive a substantial portion of its contributions 
     from such entities.
       These changes would conform with the Court's decision in 
     MCFL, and would signal the willingness of Congress to abide 
     by this important issue advocacy protecting decision. 
     Furthermore, incorporating these changes in the statute will 
     make it readily apparent to all that this provision is narrow 
     on its face; where now one has to read the United States 
     Reports to know about this significant limitation.

2. The Definition of Contribution Should Be Amended to Clarify that It 
                    Does Not Apply to Issue Advocacy

       The Federal Election Commission's effort to regulate and 
     restrict issue advocacy by claiming that it is a contribution 
     to a candidate and subject to the contribution limits if the 
     expenditure for the issue advocacy was coordinated with a 
     candidate should also be addressed. There is no justification 
     for issue advocacy losing its protected status just because 
     it has been communicated to a candidate.
       This misguided attempt to circumvent the protection of 
     issue advocacy in Buckley can be prevented by adding to those 
     items listed in Sec. 431(8)(B) as not being included in the 
     definition of ``contribution'' ``any expenditure for a 
     communication which does not expressly advocate the 
     election or defeat of a clearly identified candidate.''

 3. The Definition of Political Committee Should Be Amended to Reflect 
                     the Court's Major Purpose Test

       The Court in Buckley held that an organization cannot be 
     considered a ``political committee'' unless the organization 
     is ``under the control of a candidate or the major purpose of 
     the organization is the nomination or election of a 
     candidate.'' \389\ Unfortunately, when Congress amended the 
     FECA after Buckley, this limitation was not included.
       The effect of Congress's failure to modify the definition 
     of ``political committee'' \390\ to meet Buckley's 
     requirements has been to encourage the FEC to run amuck 
     trying to impose on issue advocacy groups the requirements 
     for PACs in the FECA.\391\ This has had the effect of 
     chilling the legitimate issue-oriented activities of such 
     groups and has imposed substantial costs on them in their 
     efforts to resist such unconstitutional impositions. Congress 
     should make this change now by amending Sec. 431(4)(a) by 
     adding at the end ``and which is under the control of a 
     candidate or the major purpose of which is the nomination or 
     election of a candidate.''

 4. Congress Should Allow Certain Not-for-Profit Corporations to Make 
                  Contributions to Federal Candidates

       Since the Supreme Court held in MCFL that certain not-for-
     profit corporations do not pose any threat to corrupt the 
     electoral process, because contributions to them are 
     generated by their advocacy of political ideas, and they are 
     thus free to make independent expenditures, there is no 
     justification to prohibiting them from also making 
     contributions to federal candidates.\392\
       This change would expand the pool of possible contributors 
     to candidates and, since these nonprofit organizations often 
     promote important political ideas, rather than narrow 
     economic interests, their addition to the pool of possible 
     contributors would help offset these ``special interests.''
       This change could be made by modifying the new subsection 
     proposed for Sec. 441(b) in Section 1, supra, by providing 
     that the prohibition on a corporation making a contribution 
     or an expenditure which expressly advocates the election or 
     defeat of a clearly identified candidate does not apply to 
     the not-for-profit membership corporations described therein.

5. Certain Not-for-Profit Corporations Should Be Allowed to ``Bundle'' 
                 Individual Contributions to Candidates

       Bundling of individual contributions to candidates is 
     currently limited to PACs. Even if certain not-for-profit 
     corporations are not allowed to contribute to candidates, 
     Congress should allow them to solicit from their members 
     individual contributions to candidates that are then 
     ``bundled'' and given to the candidate. This could be 
     accomplished by specifically allowing this activity in the 
     amendment to Sec. 441(b) proposed above.
       Providing this new method of encouraging individual 
     contributions will enhance political giving by individual 
     citizens, diminishing the relative influence of PACs and 
     ``special interests.'' This ``bundling'' activity should be 
     reported by amending Sec. 434(c) to so provide.

6. The Individual Contribution Limit Should be Increased to $2,500 and 
                    the Aggregate Limit to $100,000

       The individual contribution limit of $1,000, found in 
     Sec. 441(a)(a)(1) (A), and the aggregate contribution limit 
     of $25,000, found in Sec. 441(a) (a)(3), has been in effect 
     since 1974. While a $1,000 contribution represented a large 
     contribution in 1974, it does not today.\393\ Furthermore, 
     allowing individuals to make larger contributions will 
     enhance the ability of individual citizens to influence the 
     political process while helping to offset the influence of 
     ``special interests'' and PACs. The individual contribution 
     limit should be raised to $2,500 and be indexed for 
     inflation.
       Furthermore, to accommodate the increase in individual 
     contributions to candidates and to political parties, 
     suggested below, the aggregate individual contribution limit, 
     found in Sec. 441(a)(a)(3), should be increased to $100,000.

 7. The Individual Contribution Limit to Political Parties Should Also 
                               Be Raised

       Individual contributions to any national political party 
     are limited to $15,000 per year by Sec. 441(a)(a)(2)(B). This 
     limitation has diminished the relative influence of political 
     parties and encouraged them to seek soft money. Increasing 
     the individual contribution limit to $50,000 would help 
     strengthen parties that can provide an effective 
     counterweight to ``special interests.'' \394\ Furthermore, 
     most agree that political parties serve a beneficial 
     mediating role in the political process that should be 
     enhanced. Both of these benefits would be derived by 
     increasing the contribution limit to political parties.\395\

 8. The Amount Political Parties Can Spend in Coordinated Expenditures 
            with Federal Candidates Should Also Be Increased

       With the increase in the individual contribution limit to 
     political parties, Congress should increase the coordinated 
     expenditure limits provided in Sec. 441(a)(d). These limits 
     have also been in existence since 1974 and were not indexed 
     for increases in the consumer price index as were the 
     expenditure limits on presidential campaigns.\396\ Because of 
     the increase in the cost of federal campaigns, the influence 
     of political parties has diminished. Congress should restore 
     this balance and also index the new limits to inflation.\397\

9. The FEC Should be Mandated, in its Regulatory Activities, to Observe 
               the Limits Imposed by the First Amendment

       Since the admonitions of the courts have left the FEC 
     unchastened in its regulatory efforts to contain issue 
     advocacy, Congress should mandate that, in its regulatory 
     activities, the FEC should act in a manner that will have the 
     least restrictive effect on the rights of free speech and 
     association protected by the First Amendment. To give this 
     provision some teeth, a reviewing court should be authorized 
     to hold unlawful and set aside any action of the Commission 
     that did not use the least restrictive means available.

 10. Reasonable Attorneys Fees Should Be Authorized by Congress if any 
 Provision of the FECA of Action of the FEC Violates Constitutionally 
                            Protected Rights

       The provisions of 42 U.S.C. Sec. 1988, authorizing an award 
     of attorney fees to prevailing party who vindicates 
     constitutional rights as against a state, are a substantial 
     deterrent to states violating the guarantees of federal law. 
     While federal law currently allows for an award of attorney 
     fees against federal agencies in limited circumstances,\398\ 
     the broader guarantees provided in Sec. 1988 are justified in 
     this case for two reasons.
       First, the FECA uniquely involves the attempt by government 
     to regulate vital First Amendment rights that are 
     ``indispensable democratic freedoms.'' Particularly in light 
     of the efforts by some to pass provisions know to be 
     unconstitutional, a provision that allows an award of 
     attorney fees for a successful effort to strike down a 
     portion of the FECA is warranted.\399\
       Second, the FEC has a sorry history of repeated attempts to 
     unconstitutionally expand its powers to regulate issue 
     advocacy. A significant deterrent to such intransigence, and 
     a justified effort to compensate the victims of it, would be 
     to award attorney fees to those private parties that prevail 
     in FEC enforcement actions or against new FEC regulations.

 11. The Act Should Establish Term Limits for FEC Commissioners, Staff 
                     Director, and General Counsel

       The six commissioners of the FEC are currently appointed 
     for six year terms and are

[[Page S10373]]

     eligible for reappointment.\400\ The FEC is administered by a 
     staff director and general counsel appointed by the 
     Commission.\401\ Because of the strong institutional bias 
     toward regulating free speech in the FEC, fresh blood is 
     needed at the higher echelons of the Commission. This could 
     be established by providing term limits for the 
     Commissioners, staff director, and the general counsel.

12. The Tax Credit for Small Political Contributions Should Be Restored

       The 1974 amendments to the FECA contained a 50% individual 
     tax credit for political contributions up to $100. This tax 
     credit provided a substantial incentive for small political 
     contributions. This incentive should be restored to encourage 
     small contributions from a greater number of citizens.

  13. Limits on Issue Advocacy for Tax Exempt Groups in the Internal 
                   Revenue Code Should Be Eliminated

       The Internal Revenue Code imposes limits on issue advocacy 
     for tax exempt organizations. Specifically, the Internal 
     Revenue Code prohibits groups exempt under Sec. 501(c)(3) 
     from ``participat[ing] in, or interven[ing] in [including the 
     publishing or distributing of statements], any political 
     campaign on behalf of any candidate for public office.'' 
     Organizations that are exempt under Sec. 501(c)(4) may engage 
     in political activity but such activity must be 
     ``insubstantial'' and is subject to a tax under Sec. 527.
       Unfortunately, the Internal Revenue Service has given this 
     provision a very expansive interpretation which clearly 
     encompasses issue advocacy. For instance, in Revenue Ruling 
     78-248, the IRS interpreted this provision to include voter 
     guides, even though they only contained issue advocacy and 
     did not contain any ``express advocacy.'' As a result, not-
     for-profit groups have been chilled in the exercise of their 
     constitutional right to issue advocacy.
       Congress should correct this clear violation of First 
     Amendment speech by bringing this provision into compliance 
     with Buckley. This provision should be amended to read that 
     this exemption is available to Sec. 501(c)(3) organizations 
     that ``do not contribute to any political candidate, 
     political committee, or political party and do not make any 
     expenditures expressly advocating the election or defeat of a 
     clearly identified candidate for political office.'' 
     Furthermore, Congress should make it clear in the statute 
     that Sec. 501(c)(4) organizations are not subject to a tax 
     except on any contribution to a political candidate, 
     committee, or party and on any independent expenditure 
     expressly advocating the election or defeat of a clearly 
     identified federal candidate.


                               conclusion

       As the U.S. Congress considers campaign finance reform, it 
     has a unique opportunity to make significant changes that 
     will improve our electoral process. There are two paths that 
     beckon. One to limit, stifle, punish and penalize speech is 
     doomed to failure at the doorstep of the United States 
     Supreme Court. The other to encourage, promote and enhance 
     speech will not only pass constitutional muster but will 
     restore the balance that many believe is critically needed.
       Moreover, the FEC must be reigned in to protect the 
     constitutional rights of the people. The FEC is an agency out 
     of control. Instead of carrying out its legitimate 
     administrative role, it has expended considerable resources 
     seeking to restrict, stifle and punish constitutionally 
     protected free speech. Congress has an urgent duty to reorder 
     the priorities of the FEC in order to protect citizens and 
     grassroots organizations from the heavy hand of the censors 
     at the FEC. Until the FEC has demonstrated a proper 
     sensitivity for First Amendment rights, it should not be 
     entrusted with further authority to intrude into the vital 
     workings of our representative democracy.


                               footnotes

     *James Bopp, Jr., B.A., Indiana University, 1970; J.D., 
     University of Florida, 1973; Attorney, Bopp, Coleson & 
     Bostrom, Terre Haute, Indiana; General Counsel, National 
     Right to Life Committee, Inc.; Vice Chairman, Free Speech and 
     Election Law Practice Group of the Federalist Society; 
     Editor-in-Chief, Issues in Law & Medicine.
     **Richard E. Coleson, B.A. Indiana Wesleyan University, 1973; 
     M.A.R., Asbury Theological Seminary, 1975; J.D., Indiana 
     University School of Law--Indianapolis, 1987; Attorney, Bopp, 
     Coleson & Bostrom, Terre Haute, Indiana.
     The authors wish to thank the following members of their law 
     firm for research and writing assistance: John K. Abegg, Paul 
     R. Scholle, and Dale L. Wilcox.
     Copyright 1997 by James Bopp, Jr. and Richard E. Coleson, all 
     rights reserved.
     1. U.S. Const. amend. 1.
     2. Id.
     3. Federal Election Campaign Act of 1971, 2 U.S.C. Sec. 431 
     et seq. (amended 1974).
     4. Buckley v. Valeo, 424 U.S. 1 (1976).
     5. Colorado Republican Federal Campaign Comm. v. FEC, 116 S. 
     Ct. 2309 (1996).
     6. The authors are practicing attorneys who have been heavily 
     engaged in litigation against misguided campaign reform 
     efforts (on constitutional and Administrative Procedure Act 
     grounds) since their seminal victory against the FEC in 
     Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991), cert. denied 
     sub nom. FEC v. Keefer, 112 S. Ct. 79 (1991). Throughout the 
     article, note will be taken of cases in which the authors and 
     other members of the law firm of Bopp, Coleson & Bostrom are 
     or have been engaged.
     7. Free speech is both an end and a means, as stated by the 
     United States Supreme Court in FEC v. Massachusetts Citizens 
     for Life (MCFL):
     ``[w]hile this market metaphor has guided congressional 
     regulation in the area of campaign activity, First Amendment 
     speech is not necessarily limited to such an instrumental 
     role. As Justice Brandeis stated in his discussion of 
     political speech in his concurrence in Whitney v. California, 
     274 U.S. 357, 375 . . . (1927):
     ``Those who won our independence believed that the final end 
     of the State was to make men free to develop their faculties; 
     and that in its government the deliberative forces should 
     prevail over the arbitrary. They valued liberty both as an 
     end and as a means.'' MCFL, 479 U.S. 238, 257 n. 10 (1986) 
     (emphasis added) (internal citation omitted). ``It is the 
     fact of participation in the political process that the First 
     Amendment protects, not [merely] its qualities of sanity and 
     objectivity.'' West Virginians for Life v. Smith, 919 F. 
     Supp. 954, 958 (S.D.W. Va. 1996) (quoting Lillian R. BeVier, 
     The First Amendment and Political Speech: An Inquiry Into the 
     Substance and Limits of Principle, 30 Stan. L. Rev. 299, 317 
     (1978)).
     8. FEC v. Machinists Non-Partisan Political League, 655 F.2d 
     380, 389 n. 17 (D.C. Cir. 1981) (quoting Buckley, 424 U.S. at 
     14-15 and Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)).
     9. The Federalist No. 10 (James Madison) (setting forth the 
     principle that in our federal system the ambition of one 
     group was to be checked and balanced by other groups, as all 
     argued for public support of their positions). The Supreme 
     Court has always held that certain categories of speech did 
     not have First Amendment protection, e.g., slander, libel, 
     fraud, fighting words, obscenity, criminal conspiracy or 
     incitement, treason, and communicating national security 
     secrets. See e.g., John E. Nowak, Ronald D. Rotunda & J. 
     Nelson Young, Constitutional Law 827 (3d ed. 1986) (Chapter 
     16, Freedom of Speech).

                           *   *   *   *   *

     24. Most notable among these has been Buckley itself, which 
     struck down several provisions of the Federal Election 
     Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 
     1263.
     25. Bradley Smith makes a convincing case that campaign 
     finance reform as it has been practiced has led to 
     undemocratic consequences by entrenching the status quo, 
     promoting influence peddling, reducing accountability, and 
     empowering social elites (such as news reporters and wealthy 
     candidates) at the expense of grass-roots, populist efforts. 
     Bradley A. Smith, 105 Yale L.J. at 1071-84. In Day v. 
     Holahan, the United States Court of Appeal for the Eighth 
     Circuit noted one example of incumbent self-protection: ``It 
     appears that the legislators who enacted the $100 limit on 
     contributions to political committees and funds, and the 
     governor who signed the limit into law, approved limits on 
     election-year contributions to themselves that were many 
     times higher than the $100 limit on contributions to 
     committees and funds.'' Day v. Holahan, 34 F.3d 1356, 1365 
     N.8 (8th Cir. 1994).
     26. Campaign Finance Reform: Hearings before the United 
     States Senate Committee on Rules and Administration (Mar. 13, 
     1996). The proposals in Section V of this article are largely 
     based on the recommendations made in this testimony.
     27. Similarly, in the November 1996 election, national labor 
     unions spent $35 million dollars (by their own account) in 
     the weeks before the November 1996 election for 
     advertisements attacking targeted U.S. congressional 
     candidates on various issues. Apart from questions raised 
     about the accuracy of some of the advertisements (some have 
     been refused by broadcasters on accuracy grounds) and the 
     voluntariness of the use of union member's dues for pro-
     Democrat attack ads, such issue advocacy is an appropriate 
     part of the American political system. The present authors 
     and the First Amendment strongly support the right of the 
     labor unions to engage in robust issue advocacy, even at 
     election time. The solution for those opposed to such issue 
     advocacy is not to silence the labor unions but to mount an 
     effective counter-attack. However, concomitant efforts by the 
     FEC to intimidate the Christian Coalition (and thereby 
     similar groups) from advocating essentially opposing issues 
     through voter guides, is abhorrent to First Amendment 
     principles.
     28. ``Effective advocacy of both public and private points of 
     view, particularly controversial ones, is undeniably enhanced 
     by group association.'' MCFL, 479 U.S. at 264 (quoting NAACP 
     v. Alabama, 357 U.S. 449, 460 (1958)).
     29. Express advocacy consists of explicit words of advocacy, 
     such as ``vote for Candidate X'' or ``defeat Candidate Y.'' 
     Buckley, 424 U.S. at 44.
     30. Federal Election Commission v. National Conservative 
     Political Action Committee, 470 U.S. 480 (1985).
     31. The public policy struggle over abortion rights is a good 
     example of the checks and balances in the free marketplace of 
     ideas. Abortion-rights advocates promote their favored 
     candidates by making donations through PACs such as Emily's 
     List, while pro-life advocates contribute to PACs such as the 
     National Right to Life Political Action Committee.
     32. The Court, for instance, has approved statutory 
     requirements that PACs register and report their financial 
     activities. Buckley, 424 U.S. at 60-68.
     33. See e.g., West Virginians for Life v. Smith, 919 F. Supp. 
     954 (S.D.W.V. 1996). Co-author James Bopp, Jr. was lead 
     counsel representing the Plaintiffs in this case.
     34. The heavy burden imposed on PACs was well-described with 
     respect to federal PACs in FEC v. Machinists Non-Partisan 
     Political League, 655 F.2d 380, 392 (D.D.C. 1981), cert. 
     denied, 454 U.S. 897 (1981), which noted that, once an 
     organization is labelled a ``political committee,'' it must 
     ``then submit to an elaborate panoply of FEC regulations 
     requiring the filing of dozens of forms, the disclosing of 
     various activities, and the limiting of the group's freedom 
     of political action to make expenditures or contributions.''
     35. Buckley, 424 U.S. at 74-82.
     36. Id.
     37. Of course, if the pro-life newsletter were to combine in 
     its election issue the words ``vote pro-life'' and the words 
     ``Candidate D is pro-life,'' the communication contains 
     express advocacy. MCFL, 479 U.S. at 249-50. This is based on 
     the unremarkable algebraic formula that, if a=b and b=c, then 
     a=c.
     38. This is so because the Supreme Court has insisted that 
     the bright-line express advocacy test must govern any effort 
     to bar or restrict communications about candidates, parties, 
     and ideas in the election context. The Court has done so 
     because America believes in free expression on issues of the 
     day, even at election time, or, more correctly, especially at 
     election time. What good would a First Amendment be if it did 
     not protect communicators at precisely the time when free 
     speech would be most effective and is most important? The 
     fact that issue advocacy might affect an election is 
     constitutionally inconsequential because the First Amendment 
     right of issue advocacy must be preserved. In fact, to the 
     Framers of the Constitution and the First Amendment, the 
     constitutional protection of free expression was precisely to 
     protect the advocacy of issues and ideas in the political 
     context. ``Freedom of speech plays a fundamental role in a 
     democracy . . . [I]t `is the matrix, the indispensable 
     condition of nearly every other freedom.' '' MCFL, 479 U.S. 
     at 264 (quoting Palko v. Connecticut, 302 U.S. 319 (1937)). 
     ``[T]he right of free public discussion

[[Page S10374]]

     . . . [is] a fundamental principle of the American form of 
     government.'' New York Times v. Sullivan, 376 U.S. 254, 274 
     (1964) (paraphrasing James Madison, 6 Writings of James 
     Madison 341 (G. Hunt ed. 1908)).
     39. Faucher, 928 F.2d 468.
     40. A voter guide may be distributed by any individual or 
     organization, including churches and nonprofit entities 
     organized under 501(c)(3) and 501(c)(4) of the Internal 
     Revenue Code.
     41. See infra Section III.
     42. See e.g., West Virginians for Life, 919 F. Supp. 954 
     (permanently enjoining a state statute which defined the 
     distribution of a voter guide within 60 days of an election 
     to constitute express advocacy of the election of a 
     candidate).
     43. Virginia Society for Human Life v. Caldwell, 906 F. Supp. 
     1421, 1073-74 (W.D. Va. 1995) (recounting cases brought by 
     the Virginia Democrat Party to enjoin the distribution of 
     voter guides by Concerned Women for America and The Family 
     Foundation). Co-author James Bopp, Jr. is lead counsel 
     representing Plaintiffs in this case.
     44. ``Congress shall make no law respecting an establishment 
     of religion, or prohibiting the free exercise thereof; or 
     abridging the freedom of speech, or of the press, or of the 
     right of the people to peaceably assemble, and to petition 
     the Government for a redress of grievances.'' U.S. Const. 
     amend. I.
     45. Buckley, 424 U.S. at 39 (quoting Williams v. Rhodes, 393 
     U.S. 23, 32 (1968)).
     46. Id. at 48 (citations omitted) (ellipsis in original).
     47. Buckley, 424 U.S. at 44, 79.
     48. Id. At 45.
     49. United States v. Congress of Industrial Organizations 
     (C.I.O.). 335 U.S. 106 (1948).
     50. Id. at 106-107 n.1.
     51. Id. at 108.
     52. Id. at 121.
     53.* * *
     54. 2 U.S.C. 431 et seq.
     55. Buckley, 424 U.S. 1.
     56. Buckley, 424 U.S. at 41 (quoting 12 U.S.C. 
     Sec. 608(e)(1)).
     57. Id. at 41.
     58. Id. at 42.
     59. Id. at 42.
     60. Buckley, 424 U.S. at 43 (Quoting Collins, 323 U.S. at 
     535).
     61. Id. The Buckley court also quoted approvingly the 
     comments of the United States Court of Appeals for the 
     District of Columbia, which it affirmed: ``Public discussion 
     of public issues which also are campaign issues readily and 
     often unavoidably draws in candidates and their positions, 
     their voting records and other official conduct. Discussions 
     of those issues, and as well more positive efforts to 
     influence public opinion on them, tend naturally and 
     inexorably to exert some influence on voting at elections.'' 
     Id. at 42 n.50 (quoting, Buckley, 171 U.S. App. D.C. 172, 
     226, 519 F.2d 821, 875 (D.C. Cir. 1975)).
     62. There are strong arguments that a person wishing to 
     express an opinion on any candidate to print and distribute 
     flyers opposing or supporting candidates, or to give a 
     donation to a campaign, should not have to think at all about 
     possible laws restricting his or her speech in America. That 
     is the spirit of the First Amendment, which says that 
     ``Congress shall make no law . . . abridging the freedom of 
     speech . . . .'' U.S. Const. amend. I (emphasis added). That 
     one could today suffer penalties for political speech which 
     is not libelous or fraudulent would, no doubt, be astounding 
     and disconcerting to the Framers of the First Amendment.
     However, the Supreme Court has said that, at a minimum, one 
     should not have to think twice about speaking out on issues 
     of public concern for fear of violating some law. The result 
     of laws which limit speech in the campaign arena is to chill 
     speech by individuals and grassroots citizen groups and to 
     enhance the speech of organized advocacy interests who can 
     afford to hire lawyers to watch over all their publications 
     and expenditures. Bradley A. Smith, 105 Yale L.J. at 1077. 
     This reality runs exactly counter to the populist rhetoric of 
     most campaign finance reformers.
     63. Buckley,  424 U.S. at 44.
     64. Id. at 44 n.52.
     65. Id. at 44.
     66. Id. at 44-45.
     67. Buckley, 424 U.S. at 79. The U.S. Court of Appeals for 
     the District of Columbia has recently decided that the major 
     purpose test does not apply to contributions, but only to 
     independent expenditures. Akins v. FEC, 101 F.3d 731 (D.C. 
     Cir. 1996). This case will be analyzed infra.
     68. These burdens include not only detailed recordkeeping and 
     reporting requirements for all of the organizations financial 
     activities but also disclaimer requirements on their 
     publications and limits on the contributions that may be 
     received by the organization. See FEC v. Machinists Non-
     Partisan Political League, 655 F.2d 380, 392 (D.C. Cir. 
     1981).
     69. Buckley, 424 U.S. at 74-75 (footnotes omitted). The 
     threshold amount for reporting independent expenditures has 
     been increased to $250. 2 U.S.C. Sec. 434(c)(1).
     70. Id. at 75.
     71. Id. at 79-80 (emphasis added).
     72. Id. at 81.
     73. Akins, 101 F.3d 731.
     74. Id. at 734.
     75. Id. at 735.
     76. Id. at 742.
     77. MCFL, 479 U.S. 238.
     78. Akins, 101 F.3d at 742.
     79. Id. at 743.
     80. From the opinion, it would appear that the FEC did not 
     make a vigorous First Amendment defense. Rather, it appears 
     to have relied on interpretation of precedent, statutory 
     interpretation, and a plea for deference to its 
     interpretation of the statute in its regulations. Id. at 740-
     44.
     81. Akins v. FEC, 101 F.3d 731, petition for cert. filed, 65 
     U.S.L.W. 3694 (U.S. Apr. 7, 1997) (No. 96-1590).
     82. The Fair Government Foundation's special report, The 
     FEC's Express War on Free Speech 18 (1996), sums up some of 
     the evidence of the FEC's hostility to the Supreme Court's 
     bright-line protection of issue advocacy in Buckley and MCFL:
     ``That the Commission dragged its feet in revising its rules 
     to conform them with the Supreme Court rulings suggests that 
     the FEC sought to prolong its concession to the Supreme Court 
     in the hope of changing the high court's mind. . . . During 
     an open meeting of the FEC, Commission chairman Trevor Potter 
     . . . expressed concern whether the Commission was remaining 
     faithful to Supreme Court precedent. Potter questioned 
     whether `enforcing the law in specific matters and then in 
     drafting a definition in general, is consistent with the very 
     narrow language' of Buckley. [End note: `Federal Election 
     Commission Open Meeting (Aug. 11, 1994) (taped transcript 
     available at Commission).']
     ``In the end, the Commission simply would not accept the 
     plain meaning of the Buckley decision because it so 
     conflicted with a majority of commissioners' fervently held 
     regulatory beliefs. Beliefs that were less a product of the 
     FECA or court cases than a personal philosophical 
     disposition.
     ``Comments of the FEC's chairman during consideration of the 
     proposed rules reveal what in retrospect must seem like 
     inadvertent candor, as they demonstrate a willful disregard 
     of the Supreme Court's commands. Chairman Trevor Potter, who 
     cast the decisive fourth vote to approve the revised rules, 
     unabashedly revealed that the Commission is `close to being 
     on a different planet from the Supreme Court in terms of what 
     we are looking at.' In Chairman Potter's mind, `the [Supreme] 
     Court doesn't understand[.]' as its rulings are `directly 
     contrary to what the Commission understands the purpose of 
     the Act [FECA] to be . . . . ' Id.
     ``Commissioner Danny Lee McDonald, who also voted for the 
     revised rules, was similarly dismissive of the Supreme 
     Court's edicts. He concluded that `the Court just didn't get 
     it.' ''Id.
     83. See e.g., 11 C.F.R. Sec. 114.4(b)(5) (invalidated in 
     Faucher v. FEC, 928 F.2d 468); 11 C.F.R. Sec. 114.1(e)(2) 
     (invalidated in Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. 
     Cir. 1995)); 11 C.F.R. Sec. 100.22 (invalidated in Maine 
     Right to Life Committee v. FEC, 914 F. Supp. 8 (D. Me. 1996), 
     aff'd, 98 F.3d 1 (1st Cir. 1996)); 11 C.F.R. Sec. 114.10 
     (invalidated in Minnesota Citizens Concerned for Life v. FEC, 
     936 F. Supp. 633 (D. Minn. 1995)); and 11 C.F.R. 
     Sec. 114.4(c)(4) & (5) (invalidated in Clifton v. Federal 
     Election Commission, 927 F. Supp. 493 (D. Me. 1996)). Co-
     author James Bopp, Jr. was lead counsel for Plaintiffs in all 
     of these cases except for Chamber of Commerce.
     84. See e.g., FEC v. AFSCME, 471 F. Supp. 315 (D.D.C. 1979); 
     FEC v. CLITRIM, 616 F.2d 45 (2d Cir. 1980); Machinists Non-
     Partisan Political League, 655 F.2d 380; FEC v. Phillips 
     Publishing, 517 F. Supp. 1308 (D.D.C. 1981); MCFL, 479 U.S. 
     238; FEC v. NOW, 713 F. Supp. 428 (D.D.C. 1989); FEC v. 
     GOPAC, 871 F. Supp. 851 1466, 917 F. Supp. (D.D.C. 1994); FEC 
     v. Survival Education Fund, 65 F.3d 285 (2nd Cir. 1995); FEC 
     v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 
     1995), aff'd, 92 F.3d 1178 (4th Cir. 1996); and Colorado 
     Republican, 116 S. Ct. 2309. These enforcement actions, 
     however, are only the tip of the iceberg since many 
     enforcement actions never progress beyond the administrative 
     level. Such administrative investigations, however, can be 
     equally chilling on free speech. See e.g., MUR 4203 regarding 
     U.S. Term Limits; MUR 4204 regarding Americans for Tax 
     Reform; Colorado Republican Federal Campaign Committee v. 
     FEC, 116 S. Ct. 2309 (1996); and FEC v. Christian Action 
     Network, 110 F.3d 1049 (4th Cir. 1997) (awarding attorneys' 
     fees against FEC for bad faith prosecution).
     85. Susan Hayward & Allison R. Hayward, Gagging on Political 
     Reform, Reason 20 (Oct. 1996).
     86. FEC v. American Federation of State, County and Mun. 
     Employees, 471 F. Supp. 315 (D.D.C. 1979) (AFSCME).
     87. Id. at 317.
     88. Id.
     89. Id.
     90. FEC v. Central Long Island Tax Reform Immediately 
     Committee, (CLITRIM) 616 F.2d 45 (2d Cir. 1980) (en banc) 
     (per curiam).
     91. Id. at 52 (quoting 2 U.S.C. Sec. 434(e)) (emphasis 
     supplied by court.
     92. Id. (quoting 2 U.S.C. Sec. 441d) (emphasis supplied by 
     court).
     93. Id. at 53.
     94. Id. (citations omitted).
     95. Id. (citations omitted).
     96. Id. (citations omitted) (emphasis in original).
     97. FEC v. Nat'l Conservative Political Action Comm. (NCPAC) 
     470 U.S. 480 (1985).
     98. 26 U.S.C. Sec. 9001 et seq.
     99. NCPAC, 470 U.S. at 483.
     100. Id. at 482 (citing 26 U.S.C. Sec. 9012(f)).
     101. Id. at 493-501.
     102. Id. at 496.
     103. NCPAC 470 U.S. at 497.
     104. See e.g., Faucher, 928 F.2d 468; Clifton v. FEC, 927 F. 
     Supp. 493 (D.Me. 1996).
     105. MCFL, 479 U.S. 238.
     106. Id. at 243.
     107. Id. at 244.
     108. 2 U.S.C. Sec. 431(9)(B)(i).
     109. MCFL, 479 U.S. at 249, 251, 263.
     110. 2 U.S.C. Sec. 431(9)(A)(i).
     111. MCFL, 479 U.S. at 248.
     112. Id. at 249.
     113. Id.
     114. Id. at 262.
     115. As discussed infra in the treatment of Faucher, the FEC 
     sought to dismiss the Supreme Court's application of the 
     express advocacy test in MCFL to corporate expenditures as 
     nonbinding obiter dictum.
     116. FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), cert. 
     denied 484 U.S. 850 (1987).
     117. 2 U.S.C. Sec. 434(c)(1).
     118. 2 U.S.C. Sec. 441d.
     119. Buckley, 424 U.S. at 42.
     120. Furgatch, 807 F.2d at 864.
     121. Id. at 858.
     122. Id. at 864.
     123. See, e.g., Maine Right to Life Committee v. FEC, 914 F. 
     Supp. 8, 13 (D. Me. 1996), aff'd 98 F.3d 1 (1st Cir. 1996) 
     (per curiam).
     124. Furgatch, 807 F.2d at 858.
     125. FEC v. Christian Action Network, WL 157269 (4th Cir. 
     1997).
     126. Id. at 861.
     127. Id. at 862.
     128. Id.
     129. FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 
     1997).
     130. Id. (citing the FEC's brief opposing U.S. Supreme Court 
     review).
     131. Id.
     132. FEC v. National Organization for Women, 713 F. Supp. 428 
     (D.D.C. 1989), appeal dismissed (D.C. Cir.: Oct. 11, 1991).
     133. Id. at 431-32.
     134. Id. at 433-34.
     135. Id. at 434.
     136. Id. at 435.
     137. Id. at 429.
     138. Faucher v. FEC, 928 F.2d 468. The present authors were 
     counsel for plaintiffs in this case.
     139. 11 C.F.R. Sec. 114.4(b)(5)(i) (C) and (D).
     140. Faucher, 743 F. Supp. 64.
     141. Id. 928 F.2d 468.
     142. Id. at 472.
     143. Id.
     144. FEC v. Survival Education Fund, 1994 WL 96 (S.D.N.Y. 
     1994), aff'd in part and rev'd in part, 65 F.3d 285 (2d Cir. 
     1995).
     145. Id. at 3. The Second Circuit avoided the express 
     advocacy issue by holding that Survival Education Fund was an 
     MCFL-type organization so that it could do express advocacy, 
     but that it was required to include disclaimers on its 
     communications that solicit contributions that were to be 
     used for its express advocacy. Survival Education Fund, 65 
     F.3d at 285.
     146. FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. 
     Va. 1995), aff'd, 92 F.3d 1178 (4th Cir. 1996) (per curiam).
     147. Id. at 948.
     148. Id. at 951.
     149. FEC v. Christian Action Network, 92 F.3d 1178.
     150. FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996).
     151. Id. at 859.
     152. Id. at 867.

[[Page S10375]]

     153. Faucher, 928 F.2d 468.
     154. 11 C.F.R. Sec. 114.4(b)(5)(i)(A)-(F).
     155. The Fair Government Foundation's special report on The 
     FEC's Express War on Free Speech includes the following 
     succinct chronology of the FEC's rulemaking efforts to 
     regulate express advocacy: Anatomy of a Rulemaking--The FEC's 
     Twenty Year Struggle Over Express Advocacy:
     1976--Buckley v. Valeo decided.
     1976--FEC rule defining ``express advocacy'' adopted.
     1986--Massachusetts Citizens for Life decided.
     1987--Petition for Rulemaking filed.
     1988--Advanced Notice of Proposed Rulemaking.
     1988--FEC holds public hearing.
     1990--Request for Further Comment.
     1992--Notice of Proposed Rulemaking.
     1992--FEC holds public hearing.
     1994--FEC open meeting to consider proposed rule.
     1995--FEC open meeting to consider Final Rule.
     1995--Final Rule transmitted to Congress.
     1995--Revised Express Advocacy rules take effect.
     1996--Revised rules struck down; Id. at 16.
     156. See, e.g., Main Right to Life Committee 914 F. Supp. at 
     12 (considering and * * * deference to the FEC's 
     interpretation on which these new regulations were based).
     157. 11 C.F.R. Sec. 100.22.
     158. In this first set of 1995 regulation (released October 
     5), the FEC also tacked on a set of rules dealing with MCFL-
     type organizations as established by the United States 
     Supreme Court in MCFL, 479 U.S. 238. This part of the 
     regulations will be discussed, infra, under a separate 
     heading.
     159. James Bopp, Jr., co-author of this article, was lead 
     counsel in the case.
     160. 11 C.F.R. Sec. 100.22.
     161. Maine Right to Life Committee, 914 F. Supp. at 13.
     162. Id. at 10.
     163. Id. at 11-12; Furgatch, 807 F.2d at 857 (citations 
     omitted).
     164. Id. at 13.
     165. Maine Right to Life Committee, 98 F.3d at 1.
     166. Petition for Rehearing and Suggestion for Rehearing in 
     Banc at 8, Maine Right to Life Committee, No. 96-1532 (1st 
     Cir. 1996).
     167. 11 C.F.R. Sec. 114.4(c)(4) & (5). The new regulations 
     also governed several other things, including candidates 
     appearances at corporate meetings and use of corporate 
     letter-head in relation to campaigns.
     168. 61 Fed. Reg. at 10269.
     169.  The regulation, 11 C.F.R. Sec. 114.4(c)(5), was 
     promulgated under the ostensible statutory authority of 2 
     U.S.C. Sec. 441b (the broad statutory prohibition on 
     corporate ``expenditures'' and ``contributions'').
     170. Clifton, 927 F. Supp. at 497.
     171. 11 C.F.R. Sec. 114.4(c)(5)(i). Paragraph (c)(5)(i) 
     provides that corporations ``shall not contact . . . the 
     candidates, the candidates' committees or agents regarding 
     the preparation, contents and distribution of the voter 
     guide. . . .''
     172. It is difficult to imagine how an organization could 
     prepare a voter guide which would be helpful to the voters 
     without contacting the candidates and asking for responses to 
     a survey form. The organization would be left to glean 
     candidate views from campaign literature, news accounts, and 
     the like. Information from such sources would often be 
     inaccurate, incomplete, or subject to the ``spin'' supplied 
     by a campaign strategist or reporter. Questions framed by 
     advocacy organizations elicit much truer pictures of 
     candidates' positions than candidates often are willing to 
     admit without such careful framing.
     173. 11 C.F.R. Sec. 114.4(c)(5)(ii)
     174. 11 C.F.R. Sec. 114.4(c)(5)(ii) (A) through (E). 
     Paragraph (c)(5)(ii) provides that a ``corporation . . . 
     shall not contact . . . the candidates, the candidates' 
     committees or agents regarding the preparation, contents and 
     distribution of the voter guide, except that questions may be 
     directed in writing to the candidates included in the voter 
     guide and the candidates may respond in writing. . . .''
     175. 11 C.F.R. Sec. 114.4(c)(5)(ii)(B).
     176. Id.
     177. Id.
     178. 11 C.F.R. Sec. 114.4(c)(5)(ii).
     179. The Supreme Court, however, has repeatedly rejected the 
     effort of government to ``foreclose the exercise of 
     constitutional rights by mere labels.'' NAACP v. Button, 371 
     U.S. 415, 429 (1963).
     180. 2 U.S.C. Sec. 441b(a).
     181. 2 U.S.C. Sec. 441b(b)(2).
     182. S. Rep. No. 94-677, 94th Cong., 2d Sess., 59 (1976), 
     1976 U.S.C.C.A.N. (90 Stat.) 974.
     183. Orloski v. Federal Elections Commission, 795 F.2d. 156 
     (D.C. Cir. 1986).
     184. Id. at 160.
     185. Id. (emphasis added).
     186. * * *
     187. The presumed coordination theory will be discussed in 
     context of the Colorado Republican case below.
     188. Maine Right to Life Committee was also a plaintill in 
     Faucher, 928 F.2d at 468, and in Maine Rights to Life 
     Committee, 914 F. Supp. at 8. James Bopp, Jr., one of the 
     present authors, was lead counsel in all three of these cases 
     brought by Maine Right to Life against the FEC.
     189. MCFL, 479 U.S. at 238.
     190. Clifton, 927 F. Supp. at 493.
     191. 11 C.F.R. Sec. 114.4(c)(4) & (5).
     192. Clifton, 927 F. Supp. at 494.
     193. Id. at 497.
     194. Id. at 497-98.
     195. Id. (citing Faucher) (emphasis in the original).
     196. Clifton, 927 F. Supp. at 494, appeal docketed, No. 96-
     1812 (1st Cir. July 18, 1996) (oral argument conducted 
     December 4, 1996).
     197. Colo. Republican Federal Campaign Comm. V. FEC, 116 S. 
     Ct. 2309 (1996).
     198. For instance, the FEC has also adopted a regulation at 
     11 C.F.R. Sec. 109.1(b)(4)(i)(B) which states that the 
     Commission will presume expenditures ``made by or through any 
     person who is, or has been, authorized to raise or expend 
     funds, who is, or has been, an officer of an authorized 
     committee, or who is, or has been, receiving any form of 
     compensation or reimbursement from the candidate, the 
     candidate's committee or agent'' to be coordinated. This 
     regulation is also of doubtful validity as a result of the 
     Colorado Republican decision.
     199. Section 441a(d) of the FECA permits political parties to 
     spend $20,000 or $.02 per person of voting age in the state, 
     whichever is greater, adjusted for inflation since 1974. 
     Colorado Republican, 116 S. Ct. at 2313-44 (lead opinion of 
     Breyer, J., joined by O'Connor and Souter, JJ.). Thus, the 
     Colorado Republican Party was permitted to spend in 1986 
     about $103,000 ``in connection with the general election 
     campaign of a candidate for the United States Senate.'' Id. 
     at 2314.
     200. Id.
     201. Id.
     202. Id. at 2315.
     203. Id. at 2315.
     204. Id.
     205. Id. at 2318 (citing FEC advisory opinion AO 1988-22).
     206. Id. at 2315.
     207. Id. at 2317.
     208. Id. at 2315.
     209. Id. at 2321.
     210. Id. at 2323.
     211. Id. at 2331.
     212. FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. 
     Va. 1995), aff'd, 92 F.3d 1178 (4th Cir. 1996) (per curian). 
     See supra Section III.I.
     213. 28 U.S.C. Sec. 2412.
     214. FEC v. Christian Action Network, 110 F.3d 1049, 1064 
     (4th Cir. 1997).
     215. Id. at 1051-56, 1061-64.
     216. Id. at 1052-55, 1069-61.
     217. Id. at 1054.
     218. Id. at 1063 (citations omitted) (footnotes omitted) 
     (emphasis added).
     219. Id. The FEC also failed to quote even once key footnote 
     52 of Buckley, although it quoted the sentence to which the 
     footnote was attached. Id. at 1063.
     220. Id. at 1064.
     221. Id. at 1061.
     222. Id. at 1057.
     223. Id. at 1064.
     224. MCFL 479 U.S. 238.
     225. 2 U.S.C. Sec. 441b.
     226. MCFL, 479 U.S. at 263.
     227. Id. at 264.
     228. Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994). Co-author 
     James Bopp, Jr. was counsel for Plaintiff Minnesota Citizens 
     Concerned for Life, Inc. in this case.
     229. 60 Fed. Reg. 35292, 35297 (1995) (emphasis added).
     230. 11 C.F.R. Sec. 114.10(c) (1).
     231. 11 C.F.R. Sec. 114.10(c) (2).
     232. 11 C.F.R. Sec. 114.10(c) (3) (ii).
     233. 11 C.F.R. Sec. 114.10(c) (4) (ii) and (iii).
     234. 11 C.F.R. Sec. 114.10(e)(1).
     235. At 11 C.F.R. Sec. 114.10(c)(1)-(5).
     236. 11 C.F.R. Sec. 114.10(f).
     237. MCFL, 479 U.S. at 264.
     238. Buckley, 424 U.S. at 14 (citations omitted).
     239. MCFL, 479 U.S. at 264 (emphasis added).
     240. Id. at 258.
     241. Id. at 258 n.10 (quoting Whitney v. California, 274 U.S. 
     357, 375 (1927)) (emphasis added).
     242. Id. at 265.
     243. MCFL, 479 U.S. at 265 (emphasis added).
     244. Id. at 251-52.
     245. First National Bank v. Belloti, 435 U.S. 765, 786 
     (1978).
     246. MCFL, 479 U.S. at 264-65.
     247. See id. at 264.
     248. Id. at 264.
     249. Id. at 264.
     250. Id. at 264.
     251. Id. at 257.
     252. Id. (emphasis added).
     253. Austin v. Michigan Chamber of Commerce, 494 U.S. 657, 
     659 (1990).
     254. The regulations defined the term ``business activities'' 
     to include: (A) Any provision of goods or services that 
     results in income to the corporation; and (B) Advertising or 
     promotional activity which results in income to the 
     corporation, other than in the form of membership dues or 
     donations. 11 C.F.R. Sec. 114.10(b)(3)(i). Thus, business 
     activities would encompass income directly related to the 
     promotion of the corporations political ideas, such as 
     advertising in its newsletter and sale of educational 
     material, as well as unrelated business income.
     255. 11 C.F.R. Sec. 114.10(b).
     256. MCFL, 479 U.S. at 259.
     257. Id. at 258.
     258. Id.
     259. Id.
     260. Id. (emphasis added).
     261. 60 Fed. Reg. 35292, 35299 (1995).
     262. MCFL, 479 U.S. at 259.
     263. Id. at 261.
     264. Id. at 265.
     265. Id. at 264.
     266. Id. at 264.
     267. Id. at 260.
     268. Id.
     269. The FEC regulations specifically included ``credit 
     cards, insurance policies or savings plans,'' as well as 
     ``training, education, or business information,'' in its list 
     of disincentives to disassociate. 11 C.F.R. 
     Sec. 114.10(c)(3)(ii)(A) and (B).
     270. MCFL, 479 U.S. at 260, 264.
     271. Id. at 264.
     272. Austin, 495 U.S. at 664 (emphasis added).
     273. Id.
     274. FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 
     1995).
     275. Id. at 293.
     276. Day, 34 F.3d 1356, 1364 (8th Cir. 1994) (emphasis in 
     original).
     277. Id. at 1363. See also SEF, 65 F.3d at 292 (``The Court's 
     listing of the factors essential to its holding on the facts 
     of a particular case does not impose a code of compliance 
     that other nonprofit corporations must follow to the 
     letter.'').
     278. MCFL, 479 U.S. at 265.
     279. Minnesota 936 F. Supp. 633 (D. Minn. 1995). James Bopp, 
     Jr. was lead counsel in the case.
     280. Id. at 638.
     281. Id. at 642.
     282. Id. at 643.
     283. MCFL, 479 U.S. at 643, appeal docketed, No. 96-2612 MNST 
     (8th Cir. 1996) (oral arguments held February 10, 1997).
     284. 1997 WL 225120 (8th Cir. 1997).
     285. United States v. Congress of Industrial Organizations 
     (CIO), 335 U.S. 106 (1948).
     286. Id. at 106-107 n.l.
     287. Id. at 108.
     288. Id. at 121.
     289. FEC v. National Right to Work Committee, (NRWC) 459 U.S. 
     197 (1982).
     290. Id. at 197.
     291. Id.
     292. Id. at 198.
     293. Id. at 199.
     294. Id. at 200.
     295. Id. at 204.
     296. Id. at 211.
     297. Id. at 206-07.
     298. Id. at 207.
     299. 11 C.F.R. Sec. 114.1(e) (1977-1993).
     300. 11 C.F.R. Sec. 114.1(e)(2) (emphasis in original).
     301. Chamber of Commerce v. FEC, 69 F.3d 600, 602 (D.C. Cir. 
     1995).
     302. ``[S]ome relatively enduring and independently 
     significant financial or organizational attachment is 
     required to be a `member' under Sec. 441b(b)(4)(C).'' NRWC, 
     459 U.S. at 204 (emphasis added).
     303. Chamber of Commerce, 69 F.3d at 604.
     304. Id. at 605.
     305. Id. at 606. Some hierarchical organizations had been 
     given specific exemptions from this requirement in the 
     regulations, but others had not received such treatment, 
     leading the court to brand the regulations ``arbitrary and 
     capricious.'' Id.
     306. See NRWC, 69 F.3d 600.
     307. McIntyre v. Ohio Election Commission, 115 S. Ct. 1511 
     (1995).
     308. Id. at 1514.
     309. Id.

[[Page S10376]]

     310. Id.
     311 Ohio Rev. Code Ann. Sec. 3599.09(A).
     312. McIntyre, 115 S. Ct. at 1518-19 (citing Buckley, 424 
     U.S. at 14-15).
     313. Id. at 1519.
     314. Id.
     315. Id. at 1520.
     316. Id. at 1520 (citing Buckley, 424 U.S. at 14-15).
     317. Id.
     318. Id. at 1521.
     319. Id.
     320. Id. at 1521 (footnote omitted).
     321. Id. at 1523. See Shrink Missouri Government PAC v. 
     Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995) (applying McIntyre 
     analysis in materials relating to candidate elections), 
     holding not appealed in 71 F.3d 1422 (8th Cir. 1995); State 
     v. Moses, 655 So. 2d 779 (La Ct. App. 1995) (holding 
     unconstitutional a ban on anonymous campaign literature).
     322. Buckley, 424 U.S. at 75 (``disclosure provisions''); 
     McIntyre, 115 S. Ct. at 1522 (rejecting contention that 
     Buckley ``supports the constitutionality of its disclosure 
     requirement,'' to wit, a disclaimer).
     323. McIntyre, 115 S. Ct. at 1522 (emphasis added) (internal 
     citation omitted).
     324. Id. at 1523.
     325. Id.
     326. Cf. Virginia Society for Human Life, 906 F. Supp. 1071 
     (issuing a preliminary injunction against Virginia's 
     disclaimer requirement on literature concerning state 
     candidates or referenda).
     327. Buckley, 424 U.S. at 19.
     328. Id. at 23.
     329. Nevertheless, states have made unsuccessful efforts to 
     place a cap on independent expenditures. For example, a 
     $1,500 cap on independent expenditures has been struck down 
     by a federal district court in Georgia, Georgia Right to Life 
     v. Reid, No. 1:94-CV-2744-RLV, slip. op. (N.D. Ga. Jan. 22, 
     1996) (unpublished decision), and a $1,000 per state election 
     cap on independent expenditures by PACs in New Hampshire has 
     been struck down by the First Circuit. New Hampshire Right to 
     Life Political Action Committee v. Gardner, 99 F.3d 8 (1st 
     Cir. 1996). James Bopp, Jr. was lead counsel in both of these 
     cases.
     330. Buckley, 424 U.S. at 26-27.
     331. Id. at 27.
     332. As noted above, however, this holding of Buckley is in 
     jeopardy due to the recently expressed views of four members 
     of the Supreme Court that contribution limits are also 
     unconstitutional. See Colorado Republican, 116 S. Ct. 2323 
     (Rehnquist, C.J., and Kennedy and Scalia, JJ., concurring); 
     Colorado Republican, 116 S. Ct. 2331 (Thomas, J., 
     concurring.)
     333. Buckley, 424 U.S. at 25.
     334. Id. at 24-25.
     335. Id. at 26-30 (emphasis added).
     336. Id. at 29.
     337. See California Med. Ass'n v. FEC, 453 U.S. 182 (1981) 
     (upholding $5,000 annual limitation on contributions to 
     political committees); Mintz v. Barthelemy, 722 F. Supp. 273, 
     281-282 (E.D. La. 1989, aff'd, 891 F.2d 520 (5th Cir. 1989) 
     (upholding $5,000 contribution limitation for local mayoral 
     election); Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980) 
     ($5,000 contribution limitation upheld); Matter of 
     Vandelinde, 366 S.E.2d 631, 636 (W. Va. 1988) (upholding 
     $1,000 contribution limit); Florida v. Police Benevolent 
     Ass'n v. Florida Election Comm'n, 430 So.2d 483 (Fla. Dist. 
     Ct. App. 1983) ($1,000 contribution limitation upheld).
     338. Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995).
     339. Id. at 633.
     340. Id. at 638-43.
     341. Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994).
     342. See also National Black Police v. Dist. of Col Bd. of 
     Education, 924 F. Supp. 270, 282 (D.D.C. 1996) (striking down 
     a contribution limit of $100).
     343. Buckley, 424 U.S. at 48.
     344. Id. at 47.
     345. Id. at 21-22.
     346. Id. at 19.
     347. Id. at 21.
     348. Id. at 19.
     349. Id. at 23.
     350. National Conservative Political Action Committee, 470 
     U.S. at 480. See also New Hampshire Right to Life Political 
     Action Committee v. Gardner, 99 F.3d 8 (1st Cir. 1996).
     351. Buckley, 424 U.S. at 15.
     352. Id.
     353. Id. at 25.
     354. Id. at 22.
     355. Nat'l Conservative Political Action Comm., 470 U.S. at 
     494.
     356. Id.
     357. See Vote Choice v. DiStefano, 4 F.3d 26 (1st Cir. 1993).
     358. U.S. Const. amend. 1.
     359. See e.g., Buckley, 424 U.S. at 25-28; MCFL, 479 U.S. at 
     256.
     360. First National Bank of Boston v. Bellotti, 435 U.S. 765, 
     786 (1978) (emphasis added) (footnote omitted) (citations 
     omitted).
     361. Buckley, 424 U.S. at 25.
     362. United States v. Nat'l Treasury Employees Union, 115 S. 
     Ct. 1003, 1017 (1995), quoting Turner Broadcasting System v. 
     FCC. 114 S. Ct. 2445, 2470 (1994) (Kennedy. J., plurality). 
     In Colorado Republican, the Court cited this passage in 
     Turner after noting that the FEC did not ``point to record 
     evidence or legislative findings suggesting any special 
     corruption problems'' that would support its position. Id. 
     116 S. Ct. at 2317.
     363. Carver, 72 F.3d 633.
     364. Id. at 643.
     365. Id. 
     366. Shrink Missouri Government PAC v. Maupin, 923 F. Supp. 
     1413 (E.D. Mo. 1996).
     367. Id. at 1420-21.
     368. Colorado Republican, 116 S. Ct. at 2330 n.9.
     369. Id. 
     370. Lillian R. BeVier, 94 Col. L. Rev. at 1278.
     371. Id. This is so because ``[s]uch legislation carries 
     significant potential to achieve incumbent protection instead 
     of enhancing political competition. It arouses the 
     uncomfortable suspicion that the corruption-prevention banner 
     is an all-too-convenient subterfuge for the deliberate 
     pursuit of less savory or less legitimate goals.'' Id. at 
     1279.
     372. Id. 
     373. John H. Ely, Democracy and Distrust 106 (1980).
     374. Ralph Winter, Political Financing and the Constitution, 
     486 Annals Am. Acad. Pol. & Soc. Sci. 34, 40, 48 (1986).
     375. Elrod v. Burns, 427 U.S. 347, 373 (1979).
     376. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 
     (1969).
     377. Carroll v. President and Commissioners of Princess Anne, 
     393 U.S. 175, 182 (1968).
     378. See Family Foundation v. Brown, 9 F.3d 1075 (1993); 
     Virginia Society for Human Life v. Caldwell, 906 F. Supp. 
     1071 (W.D. Va. 1995) (reciting history of prior restraints in 
     Virginia). Co-authors James Bopp, Jr. and Richard E. Coleson 
     were both counsel for Plaintiffs in these two cases.
     379. Id. 
     380. See e.g., S. 25, 105th Cong., 1st Sess. (1997) 
     (sponsored by Senators McCain and Feingold); H.R. 493, 105th 
     Cong., 1st Sess. (1997) (sponsored by Representative Shays); 
     H.R. 600, 105th Cong., 1st Sess. (1997) (sponsored by 
     Representative Farr).
     381. Buckley, 424 U.S. at 1.
     382. In obvious recognition of this fact, various proposed 
     constitutional amendments have been introduced in Congress 
     that would overrule many of the speech-protecting rulings of 
     the courts. See e.g., S.J. Res. 2, 105th Cong., 1st Sess. 
     (1997), reprinted in Cong. Rec. S.557 (daily ed. Jan. 21, 
     1997).
     383. Mills v. Alabama, 384 U.S. 214, 218 (1966).
     384. Buckley, 424 U.S. at 57.
     385. Id. at 48-49.
     386. Id. at 92-93.
     387. It can be hoped that the FEC will be more willing to 
     follow the enactments of Congress than they have been willing 
     to respect the pronouncements of the United States Supreme 
     Court.
     388. MCFL., 479 U.S. 238.
     389. Buckley, 424 U.S. at 79.
     390. 2 U.S.C. Sec. 431(4)(a).
     391. See e.g., GOPAC, 917 F. Supp. 851.
     392. In fact, a prohibition of contributions by certain not-
     for-profit corporations is currently being tested before the 
     6th Circuit Court of Appeals in Kentucky Right to Life v. 
     King, No 95-6581 (6th Cir. 1996) (oral arguments conducted 
     November 13, 1996). Co-author James Bopp, Jr. is lead counsel 
     representing Plaintiffs in this case.
     393. In fact, based on figures from the Consumer Price Index, 
     $1,000 in 1974 was worth $2,604.57 in 1994.
     394. See e.g., Colorado Republican, 116 S.Ct. at 2317 (``If 
     anything, an independent expenditure made possible by a 
     $20,000 donation (by an individual), but controlled and 
     directed by a party rather than the donor, would seem less 
     likely to corrupt than the same (or a much larger) 
     independent expenditure made directly by that donor.'').
     395. Efforts to limit soft money contributions to political 
     parties have the opposite effect. If political parties must 
     use hard money for administration, legal and accounting 
     services, and generic, rather than candidate specific, voter 
     registration and get-out-the-vote activities, then their 
     relative influence with candidates is diminished and the 
     influence of ``special interests,'' is increased.
     396. See 2 U.S.C. Sec. 441a(c).
     397. Indeed, Congress should index all expenditures and 
     contributions limits to inflation in order to maintain the 
     balance between them struck by Congress in any new law.
     398. 28 U.S.C. Sec. 2411(d)(1)(A) allows for an award of 
     attorneys fees against a federal agencies for its actions, 
     ``unless the court finds that the position of the United 
     States was substantially justified or that special 
     circumstances make an award unjust.'' However, the amount of 
     the attorneys fees is limited to $75 an hour and only private 
     parties with modest assets are eligible for the award. Id. at 
     Sec. 2411(d)(2)(A) and (B). There are no similar limitations 
     on award of attorneys fees for prevailing private parties 
     under Sec. 1988.
     399. Current federal law does not allow an award of attorney 
     fees against the United States for the striking down of a 
     federal statute for violation of constitutional protections.
     400. 2 U.S.C. Sec. 437c(a)(2).
     401. 2 U.S.C. Sec. 437c(f).

  Mr. McCONNELL. I yield the floor.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent that Brad Vynalek, 
who is a legal intern on my staff, be granted full privilege of the 
floor during consideration of S. 25.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Before Senator McConnell leaves the floor, I want to 
thank him for again the dialog that has taken place during this debate, 
and I look forward to its finality.
  I also urge his consideration, since he has included in the Record so 
many articles, the piece that was in the Washington Post yesterday by 
two fairly well known Americans, former Presidents Jimmy Carter and 
Gerald Ford, who have said:

       In order to accomplish this goal--

  Talking about it is particularly important now to seize this 
opportunity of reform now so that it can improve the next Presidential 
election.

       In order to accomplish this goal, both parties must lay 
     down their partisanship and rise to meet this challenge 
     together. Leaders of both parties have demonstrated their 
     ability to work together on crucial and contentious issues to 
     do what is right for the country. There is another such issue 
     where cooperation is the only road to results. It is 
     impossible to expect one side to disarm unilaterally in this 
     massive arms race for funds. Rather, both sides must agree 
     that bilateral limits are the only rational course of action 
     to preserve the moral integrity of our electoral system. One 
     item that we should all agree on is a banning of so-called 
     soft money for national parties and their campaign 
     committees. Soft money was initially intended exclusively for 
     party building activities but has metamorphosed into a 
     supplemental source of cash for campaigns and candidates. It 
     is one of the most corrupting influences in modern elections 
     because there is no limit on the size of donations, thus 
     giving disproportionate influence to those with the deepest 
     pockets.

  And they conclude, Mr. President, by saying:

       We must demonstrate that a government of the people, by the 
     people and for the people is not a thing of the past. We must 
     redouble our efforts to assure voters that public policy is 
     determined by the checks on their ballots rather than the 
     checks from special interests.

  Mr. President, I would note that although former President Bush's 
name is not on that op-ed piece, former

[[Page S10377]]

President Bush joined former President Carter and former President Ford 
in a letter asking for the outlawing of soft money.
  Why should three former Presidents join in such an almost 
unprecedented statement?
  Let me start from the beginning, in the 1991-92 election cycle. There 
was $85 million in the 1991-92 cycle--$85 million. In the 1995-96 
election it is now up to $250 million. And the information that we 
have, disturbingly, is that it is growing exponentially, again, in the 
year 1997.
  So here is the point. It is out of control, as I have said. And the 
second point is that it was not always like this. Campaigns were not 
always financed by these massive amounts of soft money. They were not. 
In fact, after we reformed the campaign system in 1974, there was a 
dramatic improvement.
  Campaign spending by Presidential candidates, 1976-96, over the last 
20 years. If you look down here, these total figures were a little over 
$100 million in 1976 and now are approaching $400 million in 1996. 
Remember that this was after we passed laws that were supposed to 
restrain the expenditures in a Presidential campaign. Let me just point 
out again, this far exceeds inflation--far, far exceeds inflation.
  House and Senate campaign expenditures have followed roughly the same 
track, only more dramatically. From roughly $300 million in the total 
spent on House and Senate campaigns in 1976, there was a drop in the 
1986 election but, aside from that, it has been an inexorable rise to 
well in excess of $700 million, nearly $800 million.
  The soft money has grown and grown and grown and grown. In 1992, the 
Republican Party raised nearly $50 million in soft money; the Democrat 
Party, around $36 million. In 1994 it went up to the point where, in 
1996, the Republican Party raised $138 million in soft money and the 
Democrat Party, $123 million in soft money--all of them exponential 
increases, only over a 4-year period.
  Again, I want to emphasize for those who say the system has always 
been the same and we have always had to contend with these massive 
amounts of money, the figures do not indicate that. I might add, this 
does not indicate what, of course, labor did, which was very, very 
significant in the campaign of 1996.
  Senate candidates, dollars raised, and here is the problem. Here is a 
significant problem because it shows, also, why it is going to be so 
difficult for Members of this body to vote to change this system. I 
want to emphasize, these numbers show why it is so difficult in the 
face of overwhelming numbers of Americans who want us to fix this 
system. In 1996, the incumbents in the Senate races raised $96 million 
in PAC funds. The challengers raised $43 million. In the House the 
numbers are dramatically more different, in fact dramatically, 
significantly more in favor of the incumbents, $282 million, with $97 
million in PAC funds; in the case of challengers, $75 million they 
raised, and $14 million in PAC funds. So you had, in this present 
scheme, the present way that campaigns work--you had $282 million 
raised by incumbents, $75 million raised by challengers, and of course 
about a 5- or 6-to-1 advantage in PAC money as well.
  Which of these statements comes closer to your point of view? Some 
campaign finance reform is needed? Mr. President, 77 percent of the 
American people; some campaign finance reform is not needed, 18 
percent; and don't know, 5 percent. I have a more and more difficult 
time finding people who are in that 18 percent bracket. Because, as 
every scandal unfolds, as every new revelation is exposed to us in the 
morning paper and over radio and over television, there are more and 
more Americans who are joining that already huge 77 percent, who are 
saying we need to change the system.
  I don't expect the American people to know the difference between 
hard money and soft money. I don't expect them to know how much money a 
PAC has raised versus that number, and I don't expect them to have read 
every fundraising letter that has gone out. I wish they had. I wish 
they had because then that 18 percent would literally disappear. But 
what they do know is that something is wrong. There is really something 
seriously wrong here and they believe, as I do, that it needs to be 
repaired and it needs to be repaired soon.

  I want to go back to a recurring theme that I have articulated 
throughout--not only this debate but for the last couple of years. If 
you think, as 77 percent of the American people do, that we need to fix 
this system, then let's sit down and reason and talk together. Let's do 
that. OK? If you don't think so, then obviously we will engage in 
vigorous debate. But please don't use the excuse or the rationale that 
you are for campaign finance reform but not this kind. Because Senator 
Feingold and I have made it very clear, we will discuss any aspect, any 
and all aspects of the campaign abuses that exist today and ways to fix 
them. We are willing to sit down and agree and compromise. That has 
been the path we have taken on numerous other reform issues ranging 
from the line-item veto to the gift money to Ramspeck repeal to putting 
Congress under the laws that apply to the American people, and a 
variety of other issues--repeal of the earnings test--many others. 
Please, let's not hear the excuse that, Yes, the system is broken. Yes, 
it needs to be fixed, but that is not my solution. If you have a better 
solution, let me hear it because I would love to join it.
  A couple of months ago--in fact February 1997, more than a couple of 
months ago--there was a Fox poll, Fox News poll. It says the following, 
``Which of the following phrases better describes most politicians?'' 
Mr. President, 36 percent, ``dedicated public servant,'' 36 percent of 
the American people believe that most politicians are dedicated public 
servants; 44 percent, ``lying windbag,'' lying windbag. Maybe there is 
a number of reasons why 44 percent of the people contacted in this poll 
believe that their politicians, their elected representatives, are 
lying windbags, and those reasons may be a little hard to define, all 
of them. And all of those reasons--at least some of those reasons may 
be in the eye of the beholder. But I don't think anybody could deny 
that one of the major reasons--the major reason why the American people 
have such a low opinion of their elected representatives is because of 
campaign finance reform and the system with which we elect our people, 
their representatives, and perhaps more important how their elected 
representatives behave once in office and what they do to stay in 
office.
  All of us should be disturbed at polling numbers like this, all of us 
who believe, as we all do, public service is the most honorable of 
professions. All of us should be disturbed about it, try to find the 
reasons for it, and solve it. I would argue, again, that campaign 
finance reform is a way to solve it.
  On ``Late Edition,'' in March 1997 a lady from Bartlesville, OK, 
described it best. She said, ``* * * I'm a Republican supposedly. I'm 
more Independent than anything else. But I want to ask you something. 
At $735 a month, how much freedom of speech do I have? I cannot 
contribute to these big campaigns.'' The lady from Bartlesville, OK, 
Mr. President, I think, described the problem in her own very 
compelling fashion.
  I paid attention to Senator McConnell, as I always do, and listened 
to him and saw the learned treatises that he put down by various 
special interest groups, most of them headquartered here in Washington, 
appealing why we can't abandon soft money, why we can't reform the 
system, why the status quo is the only constitutional path we could 
pursue. We have spent a lot of time on the floor here with dueling 
constitutional lawyers. I still think Senator Feingold and I, with 126, 
have the overwhelming advantage.
  And, you know, that is kind of fun. But the reality is no matter what 
we enact it will be challenged in the U.S. Supreme Court. It will be 
challenged even if all of us were in total agreement that whatever we 
enacted was constitutional. But the fundamental point here is that if 
the American people believe that $735 a month doesn't buy them much 
freedom of speech, then it seems to me we ought to do what we can to 
restore their confidence and their faith in their ability.
  Mr. President, there is a book written by Mr. Michael Louis called 
``Trail Fever.'' It is really an enlightening book. I enjoyed reading 
it very much. I commend it to anyone who is interested in the 1996 
campaign.


[[Page S10378]]


       Political ads fall broadly into two categories: those 
     designed to inflate the candidate's appeal and those intended 
     to destroy the candidate's opponent. The Clinton ads, which 
     the president himself helped to write, were mainly of the 
     second type. The bulk of them were directed at the elderly 
     and designed to prey on their natural fear of abandonment. 
     The message they conveyed could be summarized in a sentence: 
     If you are over sixty years old and the Republicans gain 
     control of the White House, you will lose your health care. 
     Vote for your life! It was a wild and wonderful distortion of 
     the truth--

                           *   *   *   *   *

       The press was the enemy that muddied the message you were 
     trying to deliver. Morris argued that all the old nostrums 
     about needing the media no longer applied, that Americans 
     were so cynical about everything that they no longer believed 
     in anything as naive as the Simple Truth. He believed, for 
     instance, that voters did not distinguish in any meaningful 
     way between paid ads and the free press. ``I don't think 
     people are any more cynical about ads than they are about the 
     press,'' he said. ``One is what the candidate wants you to 
     know. The other is what the media want you to know.''
       Really, it was an extraordinary turn of strategic thinking, 
     especially for a sitting Democratic president, who might 
     rightfully expect a little help from his soul mates in the 
     newsrooms and on the editorial boards. It was one thing to 
     speak through political ads; it was another to speak only 
     through political ads. But that is exactly what Morris 
     proposed, and Clinton accepted. ``Dick wanted to spend every 
     * * * dollar on ads,'' said Harold Ickes. ``He thought TV was 
     the only way to communicate.'' The more airtime Clinton 
     bought, the less need he had to appear live before the 
     cameras--and the more he could simply ignore the trail. With 
     Morris's help Clinton created his own metaphysical trail. 
     Right through to the Democratic convention and beyond, the 
     Clinton campaign remained a specter, a flickering cathode ray 
     in the suburbs of Albuquerque, New Mexico, and Toledo, Ohio.

  I think that is an accurate description of what happened in 1996. I'm 
not saying that the outcome would have been any different, but none of 
that could have happened without soft money. And none of the things 
that happened--it funded many of the political campaigns, most of them 
negative--could have happened without soft money. I believe for us to 
allow this as well as other aspects of the system to careen further out 
of control, as it is now, is an abrogation of our responsibilities.
  Mr. President, I will also gather up many documents and papers in 
support of Senator Feingold's position, and my position. I do believe 
perhaps most Americans would pay attention to former Presidents of the 
United States, as I entered in the Record earlier, not just, with due 
respect, some pundits who either live inside the beltway or are called 
upon as well-known political analysts--by the way, whose views I 
respect. But the fact is, what this really boils down to is whether we 
are going to restore our credibility to the American people in this 
body and the way we are elected.
  Finally--I see the distinguished Democratic leader on the floor, as 
well as my friend and colleague, Senator Feingold--let me emphasize 
again, as I have throughout to the point where it is getting 
monotonous, we want to negotiate a reasonable settlement amongst both 
parties that is fair to both parties, that the American people believe 
is equitable, and that the American people believe is progress. We urge 
our colleagues on both sides of the aisle to enter into that dialog so 
we can reach some consensus and move forward so we can address the 
important issues facing the Senate, the Congress, and the people of the 
country.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, let me compliment the Senator from 
Arizona for his extraordinary statement, for his compelling speech just 
now, and for the statesmanship he has shown all the way through this 
debate. I also thank the Senator from Wisconsin for the partnership he 
has shown on this effort from the very beginning.
  The New York Times, I thought, described it quite well today in 
articulating what most of us perceive about both of these Senators. 
They are bipartisan, they seek bipartisan solutions. They recognize the 
importance of working through these issues, not in a confrontational 
way, but in a way that builds consensus rather than tears it down. The 
last offer of the Senator from Arizona, once more, to work with both 
sides to find a way with which to deal with this issue constructively, 
is yet another example of that manner.


                             cloture motion

  We, the undersigned Senators, in accordance with the provisions of 
rule XXII of the Standing Rules of the Senate, hereby move to bring to 
a close the debate on S. 25, as modified, the campaign finance reform 
bill:

         Thomas A. Daschle, Carl Levin, Joseph I. Lieberman, 
           Wendell Ford, Byron L. Dorgan, Barbara Boxer, Jack 
           Reed, Richard H. Bryan, Daniel K. Akaka, Christopher J. 
           Dodd, Kent Conrad, Robert G. Torricelli, Charles S. 
           Robb, Joe Biden, Dale Bumpers, Carol Moseley-Braun, 
           John Kerry.

  Mr. DASCHLE. Mr. President, it is our desire to offer a cloture 
motion each day this week in an effort to bring to closure the debate 
on this bill. Now, obviously, it is within the majority leader's right 
to pull the bill to avoid having the cloture votes on the legislation 
itself. That certainly is his prerogative. I have indicated that it 
would be our intention, should that occur, on those legislative 
vehicles that are not appropriations bills, that we would offer the 
McCain-Feingold bill to each and every one of them. It really doesn't 
matter what legislation comes before the Senate, that would be our 
intention.
  So I want to put our colleagues on notice that it is our strong 
desire to finish this debate in a constructive and in a successful way, 
regardless of whatever pieces of legislation may be brought before the 
body.
  Let me also reiterate an offer that I made last week. Last week, I 
said we would be prepared to take up S. 9, the Lott amendment, 
independent of this legislation. He has, in the parliamentary usage of 
the term, filled the tree. He has precluded our opportunity to offer 
amendments, to have a constructive and a real debate. All we have done 
so far is debated the overall concept of campaign reform without having 
had the opportunity to talk about the details and whether or not there 
may be ways in which to improve it or deal with it in whatever 
legislative capacity we may so choose. That, in my view, is the essence 
of a good debate. If you can't offer amendments, you can't really have 
a good debate about the bill. So we are denied that right.
  So no one should be mistaken here; we are spending time on the bill, 
but we are not spending time on quality debate. We are not spending 
time in a way that will allow us to exchange views on issues that could 
be the subject of amendment, and until we are, we are forced into a 
position of having to amend this legislation in other forms and in 
other scenarios legislatively.
  Again, I offer that same opportunity to the majority leader that I 
offered last week. Let's bring up the so-called Lott amendment 
freestanding. Let's have an opportunity to debate it. Let's offer 
amendments to it. We have offered that opportunity with the hope that 
we could break this logjam. We have offered a suggestion along with a 
promise not to filibuster, not to extend the debate on the so-called 
Lott amendment. We would be willing to schedule it at a time certain. 
So there should be no question that, if under those conditions our 
Republican colleagues choose not to allow us to go to the bill to offer 
amendments, everyone will see this amendment for what it really is; 
that is, a poison pill designed to kill campaign reform--nothing else.
  The Senator from Kentucky has been very open about his willingness to 
kill the bill, his commitment to do that, and he has every right to 
employ this tactic. All I am saying is that there is a difference 
between winning the battle and winning the war.
  Ultimately, if we spend time on nothing else than campaign finance 
reform for the remainder of this Congress, we will have other occasions 
to have a good and meaningful debate about campaign finance reform.
  So, as I said, we would be voting on cloture now on Wednesday. If the 
bill is still pending, we will have a vote on Thursday, and we will 
determine the schedule for the remainder of the time we are in session 
at a later date. But there should be no mistake, we will continue to 
fight for this bill and continue to ensure that we reach out to our 
Republican colleagues to break the logjam in as meaningful a way as we 
can. I am hopeful that that effort will be successful, and I am hopeful 
that at

[[Page S10379]]

some point we can come to some understanding about how that gets done. 
I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER (Mr. Bond). The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I am not the majority leader, but I 
wanted to make a couple observations about the comments of the 
Democratic leader. First of all, paycheck protection is not a poison 
pill; it is an important piece of legislation. It was in the top 10 
pieces of legislation, I say to my friend from South Dakota, that we 
introduced at the beginning of this year on this side of the aisle. It 
has probably as many supporters as McCain-Feingold does. So it is 
curious to me that paycheck protection, when linked up with McCain-
Feingold, is a poison pill but the converse apparently isn't true.

  So, again, I am not the majority leader, but I will say it is my 
intent to bring up paycheck protection any time any effort was made to 
try to force through McCain-Feingold.
  But what the majority leader has done here is offer an opportunity 
with a very good debate. I disagree with my friend from South Dakota; I 
think it is a good debate. I wish he had had a chance to listen to more 
of it. He might have changed his position. We are going to have a good 
debate this afternoon. A number of Senators want to speak.
  Let me be very clear, at least as far as this one Senator is 
concerned, there is no campaign finance reform without paycheck 
protection. They are the Siamese twins, Mr. President, the Siamese 
twins of this discussion. So paycheck protection will, indeed, be back 
as well.
  Mr. President, I yield the floor.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I first thank my leader, Senator 
Daschle, not only for his kind words but for his important reiteration 
of the offer he has made. It is an unusual offer. The offer is to have 
S. 9, the so-called Paycheck Protection Act, come up as its own bill 
and relinquishing the right that Senators always have, which the 
Senator from Kentucky knows very well, to filibuster. In other words, 
it would be guaranteed an up-or-down vote. I think that is a 
significant offer that raises the real issue of whether we are talking 
about something that is, in fact, an attempt to destroy this McCain-
Feingold campaign finance reform bill, which I think it clearly is.
  Mr. President, I would like to also put a few items in the Record, as 
the Senator from Kentucky has done. First of all, you see a lot of 
headlines when you work on an issue like this. Some are good; some are 
bad. Sometimes you see ``McCain-Feingold bill is dead.'' That was the 
litany for some time. Once in a while you see a headline you almost 
like, even though it isn't intended to be favorable. This one I like 
from The Hill, a Capitol Hill publication, of the other day, October 1, 
which informs us ``Most Lobbyists Oppose McCain-Feingold Bill.''
  I ask unanimous consent that this article by Mary Lynn F. Jones be 
printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                    [From the Hill, October 1, 1997]

               Most Lobbyists Oppose McCain-Feingold Bill

                        (By Mary Lynn F. Jones)

       As the Senate debates the McCain-Feingold campaign finance 
     reform bill this week, Washington lobbyists are hoping that 
     the deadlock will continue.
       ``The professional lobbying community, if they had their 
     druthers, would do nothing,'' noted Ronald Shaiko, academic 
     director of the Lobbying Institute at American University. 
     Since they cannot actively oppose the bill, ``they hide 
     behind the cause of the First Amendment.''
       Lobbyist Timothy W. Jenkins, a partner at the lobbying shop 
     of O'Connor & Hannan, agreed. ``It's definitely of interest 
     to anyone with inside-the-Beltway'' issues, said Jenkins. 
     ``It's a system we all participate in and lobbyists [donate] 
     personal money and [many of] our companies are active'' in 
     the political action committee (PAC) community.
       Martin B. Gold an attorney at Johnson, Smith, Dover, 
     Kitzmiller & Stewart, added, ``Once you open the subject of 
     campaign finance, one never knows what kind of subjects will 
     be raised.''
       The bipartisan bill, sponsored by Sens. John McCain (R-
     Ariz.) and Russ Feingold (D-Wis.), would kill ``soft money'' 
     contributions to political parties, require greater campaign 
     finance disclosures, restrict parties from supporting 
     candidates who bankroll their campaign with more than $50,000 
     of personal funds and allow union members to receive refunds 
     for compulsory dues spent for political purposes.
       Although most lobbyists are tracking the bill closely, 
     those who represent unions and interest groups are 
     particularly concerned, especially since Senate Majority 
     Leader Trent Lott (R-Miss.) offered an amendment on Monday 
     requiring unions to obtain prior permission from members 
     before backing candidates financially.
       And while PACs are limited to a $10,000 contribution per 
     candidate per cycle, groups can circumscribe campaign finance 
     laws by donating unrestricted money to political parties for 
     get-out-the-vote drives, issues advertising and other 
     activities that do not directly support a specific candidate.
       ``Ninety-five percent of the attention is going to issue 
     advocacy and soft money,'' added O'Connor & Hannan's Jenkins, 
     ``because that's where 95 percent of the dollars are.''
       ``PACs limit corporations and how much they spend in 
     elections,'' said Shaiko of American University. ``Their 
     loophole is soft money. If you take that out, it limits their 
     voice in the electoral'' process.
       In 1996, for example, the AFL-CIO spent about $35 million 
     on issue advocacy advertising, according to an Annenberg 
     Public Policy Center report, and a group of 32 businesses, 
     called ``The Coalition,'' spent $5 million.
       Jenkins said, ``Some people have the view that this is 
     government regulating the most sacred of speech, that this 
     shouldn't be about the candidates but about the public who 
     wants to participate in elections.''
       Issue advocacy and soft money raise difficult issues, 
     primarily because of the Supreme Court's landmark 1976 
     decision, Buckley v. Valeo. The court equated money with free 
     speech in that decision, ruling that campaign expenditures 
     cannot be restricted.
       By most lobbyists and analysts doubt the bill, which is 
     staunchly opposed by Sen. Mitch McConnell (R-Ky.) and do not 
     have enough votes to fend off an expected filibuster, will 
     pass.
       ``The power of McConnell and others in the Senate to stymie 
     it--you can't discount that,'' said Shaiko.

                           *   *   *   *   *

  Mr. FEINGOLD. Mr. President, I guess I am delighted to see this kind 
of a headline, because I am not surprised. Most lobbyists do oppose 
campaign finance reform and the McCain-Feingold bill, because these 
folks are the folks I have come to regard, not as bad people, many of 
them are very good people, but as people who have basically become the 
Washington gatekeeper. They are the ones that control the campaign 
contributions now. If a local individual, if a local organization back 
home wants to contribute to your campaign or give you support, when 
they are part of this organization that has a lobbyist in Washington, 
they need to call Washington.
  So it is no surprise that the lobbyists oppose our bill. They are one 
of the most important forces against our bill, besides the unfortunate 
fact, of course, that every single Member of the Congress was elected 
under the current system.
  But even some of these groups that are represented by lobbyists have 
changed their minds. The Senator from Kentucky has made a great deal of 
the fact that the National Education Association, he has said, opposes 
McCain-Feingold. There was a time when their leadership did appear with 
Senator McConnell and indicate some opposition to some aspects of the 
bill. But as Senator McCain and I said from the beginning, we want to 
address various concerns of other Senators and organizations, and we 
have made some changes. Our bill is now supported by the National 
Education Association.
  I would like to have printed in the Record a letter of October 1, 
1997, from Bob Chase, the president of the National Education 
Association, in which he states:

       On behalf of the 2.3 million member NEA, we urge you to 
     support real campaign finance reform and to reject 
     legislative attacks on unions that are currently being 
     presented in the guise of reform. NEA is supportive of the 
     revised McCain-Feingold bill that was offered on the Senate 
     floor on September 29.

  Mr. President, I ask unanimous consent that that letter be printed in 
the Record.
  The PRESIDING OFFICER. Is there objection to the unanimous-consent 
request?
  Mr. McCONNELL. No.
  There being no objection, the letter was ordered to printed in the 
Record, as follows:


[[Page S10380]]




                               National Education Association,

                                  Washington, DC, October 1, 1997.
       Dear Senator: On behalf of the 2.3 million member National 
     Education Association (NEA), we urge you to support real 
     campaign finance reform and to reject legislative attacks on 
     unions that are currently being presented in the guise of 
     reform. NEA is supportive of the revised McCain-Feingold bill 
     that was offered on the Senate floor on September 29. We are 
     strongly opposed to the Lott amendment that would unfairly 
     curb the advocacy rights of unions, including the NEA.
       While NEA favors a broad package of reforms that would 
     include voluntary spending limits coupled with partial public 
     financing, the McCain-Feingold bill is an important first 
     step. First and foremost, it would ban the unregulated and 
     excessive ``soft money'' donations that have undermined the 
     integrity of our political system. Further, it contains 
     important provisions to ensure greater disclosure and 
     stronger election laws. We are particularly pleased that the 
     revised proposal drops any limitation on contributions by 
     political action committees (PACs). NEA believes that small-
     donor PACs level the playing field and allow working 
     Americans to have a more effective voice in politics.
       NEA is supportive of full disclosure provisions affecting 
     issue advertising. We do, however, have concerns about 
     McCain-Feingold's provisions that would curb issue 
     advertising in the 60 days prior to elections. These 
     provisions are ill-defined and overly restrictive of 
     legitimate legislative advocacy, and would inhibit the 
     ability to speak freely on issues while they are being 
     debated and decided in Congress. Despite this caveat, we 
     believe that McCain-Feingold merits your support.
       The Lott amendment is clearly intended not to advance the 
     important cause of campaign finance reform, but to subvert 
     it. The amendment is based on the false premise that members 
     of unions do not join voluntarily; in fact, membership is 
     voluntary. Further, unions in general, and the NEA in 
     particular, operate under democratic decision-making 
     processes. The annual NEA Representative Assembly, which 
     determines the Association's policy and sets the legislative 
     program, is the largest democratic decision-making body in 
     the world.
       On the other hand, the Lott amendment raises serious 
     constitutional issues of free speech and association. It is a 
     transparent attempt to curb the rights of unions to engage in 
     not only political but legislative advocacy at the federal 
     and state levels. The NEA strongly opposes this measure, 
     since it would cripple our ability to advocate on behalf of 
     our membership on the many important issues affecting 
     children and education that come before Congress.
       It is patently unfair for the Lott amendment to single out 
     the voluntary dues of unions for this restrictive treatment, 
     while allowing a host of other groups across the political 
     spectrum (such as the Christian Coalition and the National 
     Rifle Association) to continue to collect voluntary dues to 
     fund their lobbying and advocacy efforts. The same double 
     standard is applied to corporations, since the Lott amendment 
     would not require businesses to effectively seek the approval 
     of stockholders before using their funds for political 
     activities.
       In summary, we urge you to support McCain-Feingold and 
     oppose the Lott amendment. This is an important turning point 
     for the American political system, and it is critical that 
     the congress take action that will foster, not hamper, the 
     participation of working Americans in our democracy.
           Sincerely,
                                                        Bob Chase,
                                                        President.

  Mr. McCONNELL. Will the Senator yield?
  Mr. FEINGOLD. I yield for a question.
  Mr. McCONNELL. I ask the Senator, is it not true in the letter--he is 
correct that the National Education Association, which opposed the PAC 
ban, has now written a letter saying they support the bill. But I refer 
my colleague from Wisconsin to the third paragraph of that letter. Is 
it not correct that they also say:

       We . . . have concerns about McCain-Feingold's provisions 
     that would curb issue advertising in the 60 days prior to 
     elections. These provisions are ill-defined and overly 
     restrictive of legitimate legislative activity, and would 
     inhibit the ability to speak freely on issues while they are 
     being debated and decided in Congress.

  Am I reading that right?
  Mr. FEINGOLD. Yes. The next sentence says:

       Despite this caveat, we believe that McCain-Feingold merits 
     your support.

  The fact is, even though they have some concerns about this item, 
which I am sure any organization involved in this kind of ad may have, 
their conclusion, Mr. President, the conclusion I urge on the Senator 
from Kentucky, is that overall, they believe the bill merits support, 
which, of course, is the direct opposite of what the Senator from 
Kentucky has said for months, both on the floor and----
  Mr. McCONNELL. Will the Senator yield?
  Mr. FEINGOLD. I yield.
  Mr. McCONNELL. Was it not the case prior to this letter NEA was 
opposing McCain-Feingold?
  Mr. FEINGOLD. Of course, I am not suggesting the Senator is 
misrepresenting anything. I am showing a change in position by an 
organization which the Senator from Kentucky has placed great reliance 
on. I am not suggesting for 1 minute that the Senator has 
mischaracterized the position.
  Mr. McCONNELL. Did the Senator from Kentucky just say their principal 
reason for opposing the bill was the PAC ban and that when you dropped 
the PAC ban----
  Mr. FEINGOLD. Yes, Mr. President. My point exactly. We have tried to 
adjust this bill to address the concerns of organizations and groups 
that the Senator from Kentucky has identified. That is our point. 
Senator McCain and I don't believe we have all the answers. In fact, 
neither of us love the bill. That is how we were able to come up with a 
compromise. We heard the concerns of the NEA. We addressed their 
concerns. They support us now. They no longer support the Senator from 
Kentucky.
  A further attempt that has been made on this issue is to suggest that 
the American people don't care about this issue, if you look at a poll 
or any other measure of public opinion that this isn't important to 
them that we change this big money system. The Senator from Arizona has 
already done a fine job today of helping to dispel that.
  I ask unanimous consent to print in the Record a publication from the 
very conservative publication the Weekly Standard from September 22, 
1997, entitled ``Republicans Get Some Very Bad News.''
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Weekly Standard, Sept. 22, 1997]

                   Republicans Get Some Very Bad News

       Republican senators got an unwelcome jolt last week at one 
     of their usually uneventful Tuesday lunch meetings--a poll 
     that showed they were in deep trouble. The poll, conducted by 
     the Republican National Committee during the first week of 
     September, gave the president his highest positive rating 
     ever--almost 65 percent. For the first time in Clinton's 
     presidency more Americans ``strongly approved'' of his 
     performance than ``strongly disapproved.''
       That was not the worst of it. For the first time this year, 
     the numbers showed that more Americans wanted Democrats to 
     control Congress than Republicans, and that Democrats were 
     ahead on the ``generic ballot'' for November 1998. But what 
     really rattled the senators was that, when asked what issues 
     they cared most about, Americans had moved one new item into 
     the first tier along with the old standbys of crime, 
     education, and the like. The new issue: campaign-finance 
     reform, which had moved from 2 or 3 percent in previous polls 
     to double digits as the number one issue of concern.
       With John McCain ready to force a confrontation on campaign 
     reform in the Senate against the wishes of most of his GOP 
     colleagues, there was a fair amount of senatorial murmuring 
     about looking for a way to avoid being cast as simple 
     defenders of the status quo. The politics of campaign-finance 
     reform could be more interesting over the next few weeks than 
     most pundits currently expect. And more damaging, considering 
     that McCain's proposal is a constitutional catastrophe.

  Mr. FEINGOLD. Thank you, Mr. President. I just want to highlight what 
was said in here. It indicates----
  Mr. McCONNELL. Will the Senator yield for one other question with 
regard to the Weekly Standard?
  Mr. FEINGOLD. I yield for a question.
  Mr. McCONNELL. The Senator from Wisconsin referred to a statement in 
the Weekly Standard with regard to, what was it as he put it?
  Mr. FEINGOLD. I was about to read into the Record the statement from 
the Weekly Standard which I wanted to highlight.
  Mr. McCONNELL. When the Senator is finished, I would like to have 
printed in the Record a letter from Jim Nicholson, chairman of the RNC, 
indicating that the polling data carried in that article is simply 
incorrect.
  Mr. FEINGOLD. As soon as I am done, I will be happy to yield 
momentarily to let that happen.
  Let me quote what was said by this publication that is certainly no 
friend of the McCain-Feingold bill and, frankly, no friend of campaign 
finance reform. The article indicated that:

       Republican senators got an unwelcome jolt last week at one 
     of their usually uneventful . . . lunch meetings--a poll that 
     showed they were in deep trouble. The poll, conducted by

[[Page S10381]]

     the Republican National Committee during the first week of 
     September, gave the president his highest positive rating 
     ever--almost 65 percent.

  And then it goes on to state:

       That was not the worst of it. For the first time this year, 
     the numbers showed that more Americans wanted Democrats to 
     control Congress than Republicans, and that Democrats were 
     ahead on the ``generic ballot'' for November 1998.

  The point I want to emphasize is the following statement:

       But what really rattled the Senators was that, when asked 
     what issues they cared most about, Americans had moved one 
     new item into the first tier along with the old standbys of 
     crime, education, and the like. The new issue: campaign-
     finance reform, which had moved from 2 or 3 percent in 
     previous polls to double digits as the number one issue of 
     concern.

  Mr. President, I know that the Senator from Kentucky wants to dispel 
this poll. I will yield to him in a moment to do so. But I just want to 
emphasize, in addition to the more independent polls that the Senator 
from Arizona has already cited today, that even a poll that was 
presented to the Republican National Committee indicates that campaign 
finance reform is a matter of very top concern to the American people 
at this time.
  Mr. McCONNELL. Will the Senator yield for a question?
  Mr. FEINGOLD. I will yield.
  Mr. McCONNELL. The question is, whether the Senator wants to--I am 
sure he does not want to put an item into the Record that is simply 
inaccurate. What I would hope the Senator would permit me to do, even 
though he has the floor and it is his insert, is to include into the 
Record a letter from Jim Nicholson, the chairman of the Republican 
National Committee, simply correcting that story. It was simply 
inaccurate. And obviously the Senator from Wisconsin has the floor.
  It seems to me that for those who might be reading the Congressional 
Record it would be best to have the correct data inserted at this time. 
But I will be happy to do it later if the Senator from Wisconsin feels 
better.
  Mr. FEINGOLD. Without conceding that the information from the Senator 
from Kentucky is the correct information, I have no objection to the 
letter of Mr. Nicholson being inserted at this time.
  Mr. McCONNELL. It was an RNC poll that the Weekly Standard was 
referring to. And the chairman of the national committee is simply 
referring to the poll that his organization took and clearing up the 
article that was in the Weekly Standard which was simply inaccurate. So 
I ask unanimous consent, Mr. President, that this letter from Jim 
Nicholson be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                Republican National Committee,

                               Washington, DC, September 30, 1997.
     Senator Mitch McConnell,
     U.S. Senate,
     Washington, DC
       Dear Senator McConnell: I want to take this opportunity to 
     clarify to you recent RNC polling data in light of 
     misinformation reported in a September 22, 1997 Weekly 
     Standard article entitled, ``Republicans Get Some Very Bad 
     News.''
       The Standard piece erroneously claimed that a recent RNC 
     national poll illustrated that Americans were increasingly 
     supportive of campaign finance reform, listing it as an issue 
     of chief concern.
       Let me be clear--the Weekly Standard was wrong. In fact, 
     the September poll discussed never contained a direct 
     question about campaign finance reform.
       Here is a synopsis of what we have found in our polling to 
     date:
       In an open-ended question from our September survey of 
     1,000 likely voters, not one individual surveyed identified 
     campaign finance reform as the most important problem facing 
     the U.S. today.
       In a question offering a short list of potential concerns 
     from our June 1997 poll, only 2% of Americans said that ``the 
     way political campaigns are financed'' would be the most 
     important issue to them in deciding how to vote for congress.
       In a recent Wall Street Journal/NBC News survey, only 5% 
     surveyed found that ``reforming the way political campaigns 
     are financed'' deserved the greatest attention from the 
     Federal government at the present time (from a list of seven 
     issues.)
       I hope this information proves useful to you as the Senate 
     continues debate on the McCain-Feingold bill.
           Sincerely,
                                                    Jim Nicholson,
                                                         Chairman.

  Mr. FEINGOLD. Mr. President, I understand that some would feel that 
the poll was inaccurate, and that is what the RNC says. I also know 
they would have a strong desire at this point to----
  Mr. McCONNELL. Will the Senator yield?
  Mr. FEINGOLD. When the Senator from Kentucky was putting items in the 
Record, I was letting him go. I will be available for questions in a 
moment.
  All I can say, Mr. President, is this is not the only measure we put 
in the Record. What is striking is that even the Weekly Standard 
believes that this issue has gone very high on the list of issues. 
Every measure that is being taken now does indicate a tremendous growth 
in the concern about this issue.
  I would be fascinated to hear more about exactly why the RNC changed 
its data on this. I will try to take a look at it later. I do not know 
why they indicated that it was incorrect. Somehow the Weekly Standard 
got the impression that this issue was on the move. On that point they 
are right.
  Mr. President, I would also like to note with regard to the statement 
of the Senator from Kentucky about the American Civil Liberty Union's 
position on this bill, yes, the American Civil Liberties Union has 
expressed concerns about the bill.
  I want to remind the Senator from Kentucky that the ACLU was wrong 
when they litigated the Buckley versus Valeo case. They did not win all 
the points that they litigated in that case. In fact, some of the 
individuals that the Senator from Kentucky has just cited were among 
those who litigated that case and lost. So, yes, they litigated it. 
They had their day in court. And they were wrong.
  In fact, the ACLU, an organization which sometimes I am criticized 
for agreeing with, happens to be dead wrong with regard to a release 
that they just put out entitled ``Revised McCain-Feingold Legislation 
Would Trample on Americans' First Amendment Rights.''
  Mr. President, I would like to just quote a sentence from that 
release to show how reckless some people are being about describing 
this bill. The quote says this:

       McCain-Feingold imposes a 2-month, 60-day blackout before 
     any Federal election on any radio or television advertisement 
     that mentions any candidates for Federal office.

  Mr. President, that is not true. The bill does ask that certain rules 
apply during that 60-day period that do not apply outside of that 
period, and the rules are that you must use hard money limits and 
disclosure in order to do it, but there is no blackout, there is no 
prohibition.
  Mr. President, there isn't a single advertisement that you could 
possibly come up with that is barred by this bill. That is not what the 
bright line test is. In fact, it is very troubling to see an 
organization for which I have such high regard in terms of their 
professionalism, in terms of their ability to mount legal arguments, to 
see somebody actually say that the bill does something it clearly does 
not do.
  You cannot prohibit advertisements. You cannot say that people cannot 
say things. What you can do, I believe, and I believe the Supreme Court 
will support this, is during the electioneering period, which the 
Supreme Court has talked about, you can require that certain kinds of 
messages be disclosed in terms of who is making them and also that the 
money that is used and raised for it be under certain kinds of limits. 
That is all it does. I think the ACLU is in error with regard to that 
provision.
  Mr. President, I would also like to place in the Record at this time 
Senate bill 143 from the 102d Congress. The other day there was a 
spirited conversation between my friend, the Senator from Kentucky, and 
the Senator from Arizona which centered around the fact that the 
Senator from Kentucky has cosponsored legislation that did a couple of 
things that he has now said on the floor are unconstitutional.
  In particular, Mr. President, the point was made by the Senator from 
Arizona that the Senator from Kentucky had cosponsored a bill that bans 
soft money. The Senator from Kentucky responded by saying: Well, you 
know, sometimes you sign on to a bill that you're not comfortable with, 
and you want to participate in a joint effort.
  I understand that. Some of that experience has occurred for me with 
regard

[[Page S10382]]

to this bill where I am not happy with every provision. But I do need 
to have printed in the Record, Mr. President, Senate bill 143. I ask 
unanimous consent that that be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 143

                            [102d Congress]

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; AMENDMENT OF FECA; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the 
     ``Comprehensive Campaign Finance Reform Act of 1991''.
       (b) Amendment of FECA.--When used in this Act, the term 
     ``FECA'' means the Federal Election Campaign Act of 1971 (2 
     U.S.C. 431 et seq.).
       (c) Table of Contents.--

Sec. 1. Short title; amendment of FECA; table of contents.

            TITLE I--REDUCTION OF SPECIAL INTEREST INFLUENCE

  Subtitle A--Elimination of Political Action Committees From Federal 
                          Election Activities

Sec. 101. Ban on activities of political action committees in Federal 
              elections.

           Subtitle B--Ban on Soft Money in Federal Elections

Sec. 111. Ban on soft money.
Sec. 112. Restrictions on party committees.
Sec. 113. Protections for employees.
Sec. 114. Restrictions on soft money activities of tax-exempt 
              organizations.
Sec. 115. Denial of tax-exempt status for certain politically active 
              organizations.
Sec. 116. Contributions to certain political organizations maintained 
              by a candidate.
Sec. 117. Contributions to State and local committees.

                      Subtitle C--Other Activities

Sec. 121. Modifications of contribution limits on individuals.
Sec. 122. Political parties.
Sec. 123. Contributions through intermediaries and conduits.
Sec. 124. Independent expenditures.

             TITLE II--INCREASE OF COMPETITION IN POLITICS

Sec. 201. Seed money for challengers.
Sec. 202. Use of campaign funds.
Sec. 203. Candidate expenditures from personal funds.
Sec. 204. Franked communications.
Sec. 205. Limitations on gerrymandering.
Sec. 206. Election fraud, other public corruption, and fraud in 
              interstate commerce.

                 TITLE III--REDUCTION OF CAMPAIGN COSTS

Sec. 301. Broadcast discount.

                   TITLE IV--MISCELLANEOUS PROVISIONS

     Subtitle A--Federal Election Commission Enforcement Authority

Sec. 401. Elimination of reason to believe standard.
Sec. 402. Injunctive authority.
Sec. 403. Time periods.
Sec. 404. Knowing violation penalties.
Sec. 405. Court resolved violations and penalties.
Sec. 406. Private civil actions.
Sec. 407. Knowing violations resolved in court.
Sec. 408. Action on complaint by Commission.
Sec. 409. Violation of confidentiality requirement.
Sec. 410. Penalty in Attorney General actions.
Sec. 411. Amendments relating to enforcement and judicial review.
Sec. 412. Tightening enforcement.

                      Subtitle B--Other Provisions

Sec. 421. Disclosure of debt settlement and loan security agreements.
Sec. 422. Contributions for draft and encouragement purposes with 
              respect to elections for Federal office.
Sec. 423. Severability.
Sec. 424. Effective date.
            TITLE I--REDUCTION OF SPECIAL INTEREST INFLUENCE
  Subtitle A--Elimination of Political Action Committees From Federal 
                          Election Activities

     SEC. 101. BAN ON ACTIVITIES OF POLITICAL ACTION COMMITTEES IN 
                   FEDERAL ELECTIONS.

       (a) In General.--Title III of FECA (2 U.S.C. 301 et seq.) 
     is amended by adding at the end thereof the following new 
     section:


  ``BAN ON FEDERAL ELECTION ACTIVITIES BY POLITICAL ACTION COMMITTEES

       ``Sec. 324. Notwithstanding any other provision of this 
     Act, no person other than an individual or a political 
     committee may make contributions, solicit or receive 
     contributions, or make expenditures for the purpose of 
     influencing an election for Federal office.''.
       (b) Definition of Political Committee.--(1) Paragraph (4) 
     of section 301 of FECA (2 U.S.C. 431(4)) is amended to read 
     as follows:
       ``(4) The term `political committee' means--
       ``(A) the principal campaign committee of a candidate;
       ``(B) any national, State, or district committee of a 
     political party, including any subordinate committee thereof;
       ``(C) any local committee of a political party which--
       ``(i) receives contributions aggregating in excess of 
     $5,000 during a calendar year;
       ``(ii) makes payments exempted from the definition of 
     contribution or expenditure under paragraph (8) or (9) 
     aggregating in excess of $5,000 during a calendar year; or
       ``(iii) makes contributions or expenditures aggregating in 
     excess of $1,000 during a calendar year; and
       ``(D) any committee jointly established by a principal 
     campaign committee and any committee described in 
     subparagraph (B) or (C) for the purpose of conducting joint 
     fundraising activities.''.
       (2) Section 316(b)(2) of FECA (2 U.S.C. 441b(b)(2)) is 
     amended by striking subparagraphs (B) and (C).
       (c) Candidate's Committees.--(1) Section 315(a) of FECA (2 
     U.S.C. 441a(a)) is amended by adding at the end thereof the 
     following new paragraph:
       ``(9) For the purposes of the limitations provided by 
     paragraphs (1) and (2), any political committee which is 
     established or financed or maintained or controlled by any 
     candidate or Federal officeholder shall be deemed to be an 
     authorized committee of such candidate or officeholder.''.
       (2) Section 302(e)(3) of FECA (2 U.S.C. 432) is amended to 
     read as follows:
       ``(3) No political committee that supports or has supported 
     more than one candidate may be designated as an authorized 
     committee, except that--
       ``(A) a candidate for the office of President nominated by 
     a political party may designate the national committee of 
     such political party as the candidate's principal campaign 
     committee, but only if that national committee maintains 
     separate books of account with respect to its functions as a 
     principal campaign committee; and
       ``(B) a candidate may designate a political committee 
     established solely for the purpose of joint fundraising by 
     such candidates as an authorized committee.''.
       (d) Rules Applicable When Ban Not in Effect.--For purposes 
     of the Federal Election Campaign Act of 1971, during any 
     period in which the limitation under section 324 of such Act 
     (as added by subsection (a)) is not in effect--
       (1) the amendments made by subsections (a) and (b) shall 
     not be in effect; and
       (2) it shall be unlawful for any person that--
       (A) is treated as a political committee by reason of 
     paragraph (1); and
       (B) is not directly or indirectly established, 
     administered, or supported by a connected organization which 
     is a corporation, labor organization, or trade association,
     to make contributions to any candidate or the candidate's 
     authorized committee for any election aggregating in excess 
     of $1,000.
           Subtitle B--Ban on Soft Money in Federal Elections

     SEC. 111. BAN ON SOFT MONEY.

       Section 315 of FECA (2 U.S.C. 441a) is amended by adding at 
     the end thereof the following new subsection:
       ``(i) Ban on Soft Money.--(1) It shall be unlawful for the 
     purpose of influencing any election to Federal office--
       ``(A) to solicit or receive any soft money; or
       ``(B) to make any payments from soft money.
       ``(2) For purposes of paragraph (1), the term `soft money' 
     means any amount--
       ``(A) solicited or received from a source which is 
     prohibited under section 316(a);
       ``(B) contributed, solicited, or received in excess of the 
     contribution limits under section 315; or
       ``(C) not subject to the recordkeeping, reporting, or 
     disclosure requirements under section 304 or any other 
     provision of this Act.''.

     SEC. 112. RESTRICTIONS ON PARTY COMMITTEES.

       (a) Disclosure of Information by Political Committee.--(1) 
     Subsection (c) of section 302 of FECA (2 U.S.C. 432(c)) is 
     amended by striking ``and'' at the end of paragraph (4), by 
     striking the period at the end of paragraph (5) and inserting 
     ``; and'', and by adding at the end thereof the following new 
     paragraph:
       ``(6) each account maintained by a political committee of a 
     political party (including Federal and non-Federal accounts), 
     and deposits into, and disbursements from, each such 
     account.''.
       (2) Subsection (b) of section 304 of FECA (2 U.S.C. 434(b)) 
     is amended by striking ``and'' at the end of paragraph (7), 
     by striking the period at the end of paragraph (8) and 
     inserting ``; and'', and by adding at the end thereof the 
     following new paragraph:
       ``(9) each account maintained by a political committee of a 
     political party (including Federal and non-Federal accounts), 
     and deposits into, and disbursements from, each such 
     account.''.
       (b) Allocation of Expenditures for Mixed Activities.--Title 
     III of FECA, as amended by section 101(a), is amended by 
     adding at the end thereof the following new section:


   ``REQUIRED ALLOCATION OF CONTRIBUTIONS AND EXPENDITURES FOR MIXED 
                ACTIVITIES BY POLITICAL PARTY COMMITTEES

       ``Sec. 325. (a) Regulations Requiring Allocation for Mixed 
     Activities.--Not later

[[Page S10383]]

     than 180 days after the date of the enactment of this 
     section, the Commission shall issue regulations providing for 
     a method for allocating the contributions and expenditures 
     for any mixed activity between Federal and non-Federal 
     accounts.
       ``(b) Guidelines for Allocation.--(1) The regulations 
     issued under subsection (a) shall--
       ``(A) provide for the allocation of contributions and 
     expenditures in accordance with this subsection; and
       ``(B) require reporting under this Act of expenditures in 
     connection with a mixed activity to disclose--
       ``(i) the method and rationale used in allocating the cost 
     of the mixed activity to Federal and non-Federal accounts; 
     and
       ``(ii) the amount and percentage of the cost of the mixed 
     activity allocated to such accounts.
       ``(2) In the case of a mixed activity that consists of a 
     voter registration drive, get-out-the-vote drive, or other 
     activity designed to contact voters (other than an activity 
     to which paragraph (3) or (4) applies), amounts shall be 
     allocated on the basis of the composition of the ballot for 
     the political jurisdiction in which the activity occurs, 
     except that in no event shall the amounts allocated to the 
     Federal account be less than--
       ``(A) 33\1/3\ percent of the total amount in the case of 
     the national committee of a political party; or
       ``(B) 25 percent of the total amount in the case of a State 
     or local committee of a political party or any subordinate 
     committee thereof.
       ``(3) In the case of a mixed activity that consists of 
     preparing and distributing brochures, handbills, slate cards, 
     or other printed materials identifying or seeking support of 
     (or opposition to) candidates for both Federal offices and 
     non-Federal offices, amounts shall be allocated on the basis 
     of total space devoted to such candidates, except that in no 
     event shall the amounts allocated to the Federal account be 
     less than the percentages under subparagraph (A) or (B) of 
     paragraph (2).
       ``(4)(A) In the case of a mixed activity by a national 
     committee of a political party that consists of broadcast 
     media advertising (or any portion thereof) that promotes (or 
     is in opposition to) a political party without mentioning the 
     name of any individual candidate for Federal office or non-
     Federal office, amounts allocated to the Federal account 
     shall not be less than--
       ``(i) 50 percent of the total amount in the case of 
     advertising in the national media market; and
       ``(ii) 40 percent in the case of advertising in other than 
     the national media market.
       ``(B) In the case of a mixed activity by a State or local 
     committee of a political party or any subordinate committee 
     thereof that consists of broadcast media advertising (or any 
     portion thereof) described in subparagraph (A), costs shall 
     be allocated on the basis of the composition of the ballot 
     for the political jurisdiction in which the activity occurs, 
     except that in no event shall the amounts allocated to the 
     Federal account be less than 33\1/3\ percent of the total 
     amount.
       ``(5) Overhead and fundraising costs of a political 
     committee of a political party for each 2-calendar year 
     period ending with the calendar year in which a regularly 
     scheduled election for Federal office occurs shall be 
     allocated to the Federal account on the basis of the same 
     ratio which--
       ``(A) the aggregate amount of receipts and disbursements of 
     such political committee during such period in connection 
     with elections for Federal office, bears to
       ``(B) the aggregate amount of receipts and disbursements of 
     such political committee during such period.
       ``(c) Mixed Activity.--(1) For purposes of this section, 
     the term `mixed activity' means an activity the expenditures 
     in connection with which are required under this Act to be 
     allocated between Federal and non-Federal accounts because 
     such activity affects 1 or more elections for Federal office 
     and 1 or more non-Federal elections.
       ``(2) Activities under paragraph (1) include--
       ``(A) voter registration drives, get-out-the-vote drives, 
     telephone banks, and membership communications in connection 
     with elections for Federal offices and elections for non-
     Federal offices;
       ``(B) general political advertising, brochures, or other 
     materials that include any reference (however incidental) to 
     both a candidate for Federal office and a candidate for non-
     Federal office, or that urge support for or opposition to a 
     political party or to all the candidates of a political 
     party;
       ``(C) overhead expenses; and
       ``(D) activities described in clauses (v), (x), and (xii) 
     of section 301(8)(B).
       ``(d) Accounts.--For purposes of this section--
       ``(1) the term `Federal account' means an account to which 
     receipts and disbursements are allocated to elections for 
     Federal offices; and
       ``(2) the term `non-Federal account' means an account to 
     which receipts and disbursements are allocated to elections 
     other than non-Federal offices.''.

     SEC. 113. PROTECTION FOR EMPLOYEES.

       (a) Contributions to All Political Committees Included.--
     Paragraph (2) of section 316(b) of FECA (2 U.S.C. 441b(b)(2)) 
     is amended by inserting ``political committee,'' after 
     ``campaign committee,''.
       (b) Applicability of Requirements to Labor Organizations.--
     Section 316(b) of FECA (2 U.S.C. 441b(b)) is amended by 
     adding at the end thereof the following new paragraph:
       ``(8)(A) Subparagraphs (A), (B), and (C) of paragraph (2) 
     shall not apply to a labor organization unless the 
     organization meets the requirements of subparagraphs (B), 
     (C), and (D).
       ``(B) The requirements of this subparagraph are met only if 
     the labor organization provides, at least once annually, to 
     all employees within the labor organization's bargaining unit 
     or units (and to new employees within 30 days after 
     commencement of their employment) written notification 
     presented in a manner to inform any such employee--
       ``(i) that an employee cannot be obligated to pay, through 
     union dues or any other mandatory payment to a labor 
     organization, for the political activities of the labor 
     organization, including, but not limited to, the maintenance 
     and operation of, or solicitation of contributions to, a 
     political committee, political communications to members, and 
     voter registration and get-out-the-vote campaigns;
       ``(ii) that no employee may be required actually to join 
     any labor organization, but if a collective bargaining 
     agreement covering an employee purports to require membership 
     or payment of dues or other fees to a labor organization as a 
     condition of employment, the employee may elect instead to 
     pay an agency fee to the labor organization;
       ``(iii) that the amount of the agency fee shall be limited 
     to the employee's pro rata share of the cost of the labor 
     organization's exclusive representation services to the 
     employee's collective bargaining unit, including collective 
     bargaining, contract administration, and grievance 
     adjustment;
       ``(iv) that an employee who elects to be a full member of 
     the labor organization and pay membership dues is entitled to 
     a reduction of those dues by the employee's pro rata share of 
     the total spending by the labor organization for political 
     activities;
       ``(v) that the cost of the labor organization's exclusive 
     representation services, and the amount of spending by such 
     organization for political activities, shall be computed on 
     the basis of such cost and spending for the immediately 
     preceding fiscal year of such organization; and
       ``(vi) of the amount of the labor organization's full 
     membership dues, initiation fees, and assessments for the 
     current year; the amount of the reduced membership dues, 
     subtracting the employee's pro rata share of the 
     organization's spending for political activities, for the 
     current year; and the amount of the agency fee for the 
     current year.
       ``(C) The requirements of this subparagraph are met only 
     if, for purposes of verifying the cost of such labor 
     organization's exclusive representation services, the labor 
     organization provides all represented employees an annual 
     examination by an independent certified public accountant of 
     financial statements supplied by such organization which 
     verify the cost of such services; except that such 
     examination shall, at a minimum, constitute a `special 
     report' as interpreted by the Association of Independent 
     Certified Public Accountants.
       ``(D) The requirements of this subparagraph are met only if 
     the labor organization--
       ``(i) maintains procedures to promptly determine the costs 
     that may properly be charged to agency fee payors as costs of 
     exclusive representation, and explains such procedures in the 
     written notification required under subparagraph (B); and
       ``(ii) if any person challenges the costs which may be 
     properly charged as costs of exclusive representation--
       ``(I) provides a mutually selected impartial decisionmaker 
     to hear and decide such challenge pursuant to rules of 
     discovery and evidence and subject to de novo review by the 
     National Labor Relations Board or an applicable court; and
       ``(II) places in escrow amounts reasonably in dispute 
     pending the outcome of the challenge.
       ``(E)(i) A labor organization that does not satisfy the 
     requirements of subparagraphs (B), (C), and (D) shall finance 
     any expenditures specified in subparagraphs (A), (B), or (C) 
     of paragraph (2) only with funds legally collected under this 
     Act for its separate segregated fund.
       ``(ii) For purposes of this paragraph, subparagraph (A) of 
     paragraph (2) shall apply only with respect to communications 
     expressly advocating the election or defeat of any clearly 
     identified candidate for elective public office.''.

     SEC. 114. RESTRICTIONS ON SOFT MONEY ACTIVITIES OF TAX-EXEMPT 
                   ORGANIZATIONS.

       (a) In General.--Section 501 of the Internal Revenue Code 
     of 1986 (relating to exemption from tax) is amended by 
     redesignating subsection (n) as subsection (o) and by 
     inserting after subsection (m) the following new subsection:
       ``(n) Denial of Tax-Exempt Status for Activities To 
     Influence a Federal Election.--An organization shall not be 
     treated as exempt from tax under subsection (a) if such 
     organization participates or intervenes in any political 
     campaign on behalf of or in opposition to any candidate for 
     Federal office.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to any participation or intervention by an 
     organization on or after September 1, 1992.

[[Page S10384]]

     SEC. 115. DENIAL OF TAX-EXEMPT STATUS FOR CERTAIN POLITICALLY 
                   ACTIVE ORGANIZATIONS.

       (a) In General.--Section 501 of the Internal Revenue Code 
     of 1986 (relating to exemption from tax), as amended by 
     section 114, is amended by redesignating subsection (o) as 
     subsection (p) and by inserting after subsection (n) the 
     following new subsection:
       ``(o) Denial of Tax-Exempt Status for Certain Politically 
     Active Organizations.--
       ``(1) In general.--An organization shall not be treated as 
     exempt from tax under subsection (a) if--
       ``(A) such organization devotes any of its operating budget 
     to--
       ``(i) voter registration or get-out-the-vote campaigns; or
       ``(ii) participation or intervention in any political 
     campaign on behalf of or in opposition to any candidate for 
     public office; and
       ``(B) a candidate, or an authorized committee of a 
     candidate, has--
       ``(i) solicited contributions to, or on behalf of, such 
     organization; and
       ``(ii) the solicitation is made in cooperation, 
     consultation, or concert with, or at the request or 
     suggestion of, such organization.
       ``(2) Candidate defined.--For purposes of this subsection--
       ``(A) In general.--The term `candidate' has the meaning 
     given such term by paragraph (2) of section 301 of the 
     Federal Election Campaign Act of 1971 (2 U.S.C. 431(2)).
       ``(B) Members of congress.--The term `candidate' shall 
     include any Senator or Representative in, or Delegate or 
     Resident Commissioner to, the Congress unless--
       ``(i) the date for filing for nomination, or election to, 
     such office has passed and such individual has not so filed, 
     and
       ``(ii) such individual is not otherwise a candidate 
     described in subparagraph (A).''.
       (b) Effective Date.--The amendments made by this section 
     shall apply to taxable years ending after the date of 
     enactment of this Act, but only with respect to solicitations 
     or suggestions by candidates made after the date of the 
     enactment of this Act.

     SEC. 116. CONTRIBUTIONS TO CERTAIN POLITICAL ORGANIZATIONS 
                   MAINTAINED BY A CANDIDATE.

       (a) Contributions by Persons in General and by 
     Multicandidate Political Committees.--(1) Section 
     315(a)(1)(A) of FECA (2 U.S.C. 441a(a)(1)(A)) is amended by 
     striking ``candidate and his authorized political 
     committees'' and inserting ``candidate, a candidate's 
     authorized political committees, and any political 
     organizations (other than authorized committees) maintained 
     by a candidate,''.
       (2) Section 315(a)(2)(A) of FECA (2 U.S.C. 441a(a)(2)(A)) 
     is amended by striking ``candidate and his authorized 
     political committees'' and inserting ``candidate, a 
     candidate's authorized political committees, and any 
     political organizations (other than authorized committees) 
     maintained by a candidate,''.
       (3) Section 315(a) of FECA (2 U.S.C. 441a(a)), as amended 
     by section 101(c), is amended by inserting at the end thereof 
     the following new paragraph:
       ``(10) For the purposes of paragraphs (1)(A) and (2)(A), 
     the term `political organization maintained by a candidate' 
     means any non-Federal political action committee, non-Federal 
     multicandidate political committee, or any other form of 
     political organization regulated under State law which is not 
     a political committee of a national, State, or local 
     political party--
       ``(A) that is set up by or on behalf of a candidate and 
     engages in political activity which directly influences 
     Federal elections; and
       ``(B) for which that candidate has solicited a 
     contribution.''.
       (b) Contributions by National Banks, Corporations, and 
     Labor Organizations.--(1) Section 316(b)(2) of the FECA (2 
     U.S.C. 441b(b)(2)) is amended by striking ``candidate, 
     campaign committee'' and inserting ``candidate, political 
     organization (other than an authorized committee) maintained 
     by a candidate, campaign committee,''.
       (2) Section 316(b) of FECA (2 U.S.C. 441b(b)), as amended 
     by section 113(b), is amended by inserting at the end thereof 
     the following new paragraph:
       ``(9) For the purposes of paragraph (2), the term 
     `political organization maintained by a candidate' means any 
     non-Federal political action committee, non-Federal 
     multicandidate political committee, or any other form of 
     political organization regulated under State law which is not 
     a political committee of a national, State, or local 
     political party--
       ``(A) that is set up by or on behalf of a candidate and 
     engages in political activity which directly influences 
     Federal elections; and
       ``(B) for which that candidate has solicited a 
     contribution.''.
       (c) Date of Application.--The amendments made by 
     subsections (a) and (b) shall apply to contributions 
     described in sections 315 and 316 of FECA (2 U.S.C. 441a and 
     441b) made in response to solicitations made after January 
     ______, 1991.

     SEC. 117. CONTRIBUTIONS TO STATE AND LOCAL PARTY COMMITTEES.

       Section 315(a)(1) of FECA (2 U.S.C. 441a(a)(1)) is 
     amended--
       (1) by striking ``or'' at the end of subparagraph (B);
       (2) by striking the period at the end of subparagraph (C) 
     and inserting ``; or''; and
       (3) by adding at the end thereof the following new 
     subparagraph:
       ``(D) to the political committees established and 
     maintained by a State or local political party, in connection 
     with any activity that may influence an election for Federal 
     office, in any calendar year which, in the aggregate, exceed 
     the lesser of
       ``(i) $50,000; or
       ``(ii) the difference between $50,000 and the amount of 
     contributions made by such person to any political committees 
     established and maintained by a national political party.''.
                      Subtitle C--Other Activities

     SEC. 121. MODIFICATIONS OF CONTRIBUTION LIMITS ON 
                   INDIVIDUALS.

       (a) Increase in Candidate Limit.--Subparagraph (A) of 
     section 315(a)(1) of FECA (2 U.S.C. 441a(a)(1)(A)) is amended 
     by striking ``$1,000'' and inserting ``the applicable 
     amount''.
       (b) Applicable Amount Defined.--Section 315(a) of FECA (2 
     U.S.C. 441a(a)), as amended by section 116(a)(3), is amended 
     by adding at the end thereof the following new paragraph:
       ``(11) For purposes of subsection (a)(1)(A)--
       ``(A) The term `applicable amount' means--
       ``(i) $1,000 in the case of contributions by a person to--

       ``(I) a candidate for the office of President or Vice 
     President or such candidate's authorized committees; or
       ``(II) any other candidate or such candidate's authorized 
     committees if, at the time such contributions are made, such 
     person is a resident of the State with respect to which such 
     candidate seeks Federal office; and

       ``(ii) $500 in the case of contributions by any other 
     person to a candidate described in clause (i)(II) or such 
     candidate's authorized committees.
       ``(B) At the beginning of 1991 and each odd-numbered 
     calendar year thereafter, the Secretary of Labor shall 
     certify in the same manner as under subsection (c)(1) the 
     percent difference between the price index for the preceding 
     calendar year and the price index for calendar year 1989. 
     Each of the dollar limits under subparagraph (A) shall be 
     increased by such percent difference and rounded to the 
     nearest $100. Each amount so increased shall be the amount in 
     effect for the calendar year for which determined and the 
     succeeding calendar year.''.

     SEC. 122. POLITICAL PARTIES.

       Items Not Treated as Contributions or Expenditures.--(1) 
     Section 301(8)(B) of FECA (2 U.S.C. 431(8)(B)) is amended--
       (A) in clauses (x) and (xii), by inserting ``national,'' 
     after ``the payment by a''; and
       (B) in clause (xii), by inserting ``general research 
     activities,'' after ``the costs of''.
       (2) Section 301(9)(B) of FECA (2 U.S.C. 431(9)(B)) is 
     amended--
       (A) in clauses (viii) and (ix), by inserting ``national,'' 
     after ``the payment by a''; and
       (B) in clause (ix), by inserting ``general research 
     activities,'' after ``the costs of''.

     SEC. 123. CONTRIBUTIONS THROUGH INTERMEDIARIES AND CONDUITS.

       Section 315(a)(8) of the Federal Election Campaign Act of 
     1971 (2 U.S.C. 441a(a)(8)) is amended to read as follows:
       ``(8) For purposes of this subsection--
       ``(A) Contributions made by a person, either directly or 
     indirectly, to or on behalf of a particular candidate, 
     including contributions which are in any way earmarked or 
     otherwise directed through an intermediary or conduit to such 
     candidate, shall be treated as contributions from such person 
     to such candidate.
       ``(B) If a contribution is made by a person either directly 
     or indirectly to or on behalf of a particular candidate 
     through an intermediary or conduit, the intermediary or 
     conduit shall report the original source and the intended 
     recipient of such contribution to the Commission and to the 
     intended recipient.
       ``(C) No conduit or intermediary shall deliver or arrange 
     to have delivered contributions from more than 2 persons who 
     are employees of the same employer or who are members of the 
     same trade association, membership organization, or labor 
     organization.
       ``(D) No person required to register with the Clerk of the 
     House of Representatives or the Secretary of the Senate under 
     section 308 of the Federal Regulation of Lobbying Act (2 
     U.S.C. 267), or an officer, employee or agent of such a 
     person, may act as an intermediary or conduit with respect to 
     a contribution to a candidate for Federal office.''.

     SEC. 124. INDEPENDENT EXPENDITURES.

       (a) Attribution of Communications; Reports.--(1) Section 
     318 of FECA (2 U.S.C. 441d) is amended by adding at the end 
     thereof the following new subsection:
       ``(c)(1) If any person makes an independent expenditure 
     through a broadcast communication on any television or radio 
     station, the broadcast communication shall include a 
     statement--
       ``(A) in such television broadcast, that is clearly 
     readable to the viewer and appears continuously during the 
     entire length of such communication; or
       ``(B) in such radio broadcast, that is clearly audible to 
     the viewer and is aired at the beginning and ending of such 
     broadcast,
     setting forth the name of such person and, in the case of a 
     political committee, the name of any connected or affiliated 
     organization.
       ``(2) If any person makes an independent expenditure 
     through a newspaper, magazine, outdoor advertising facility, 
     direct mailing, or other type of general public political 
     advertising, the communication shall include, in addition to 
     the other information required by this section--

[[Page S10385]]

       ``(A) the following sentence: `The cost of presenting this 
     communication is not subject to any campaign contribution 
     limits.'; and
       ``(B) a statement setting forth the name of the person who 
     paid for the communication and, in the case of a political 
     committee, the name of any connected or affiliated 
     organization, and the name of the president or treasurer of 
     such organization.
       ``(3) Any person making an independent expenditure 
     described in paragraph (1) or (2) shall furnish, by certified 
     mail, return receipt requested, the following information, to 
     each candidate and to the Commission, not later than the date 
     and time of the first public transmission of the 
     communication:
       ``(A) Effective notice that the person plans to make an 
     independent expenditure for the purpose of financing a 
     communication which expressly advocates the election or 
     defeat of a clearly identified candidate.
       ``(B) An exact copy of the intended communication, or a 
     complete description of the contents of the intended 
     communication, including the entirety of any texts to be used 
     in conjunction with such communication, and a complete 
     description of any photographs, films, or any other visual 
     devices to be used in conjunction with such communication.
       ``(C) All dates and times when such communication will be 
     publicly transmitted.''.
       (2) Section 318(a) of FECA (2 U.S.C. 441d(a)) is amended by 
     striking ``Whenever'' and inserting ``Except as provided in 
     subsection (c), whenever''.
       (b) Definition of Independent Expenditure.--Paragraph (17) 
     of section 301 of FECA (2 U.S.C. 431(17)) is amended--
       (1) by striking ``(17) The term'' and inserting ``(17)(A) 
     The term''; and
       (2) by adding at the end thereof the following new 
     subparagraph:
       ``(B) For the purpose of subparagraph (A), an expenditure 
     shall be considered to be made in cooperation, consultation, 
     or concert with, or at the request or suggestion of, a 
     candidate, authorized committee, or agent, if there is any 
     arrangement, coordination, or direction by the candidate or 
     the candidate's agent prior to the publication, distribution, 
     display, or broadcast of a communication, and it shall be 
     presumed to be so made when it is--
       ``(i) based on information about the candidate's plans, 
     projects, or needs provided to the person making the 
     expenditure by the candidate, or by the candidate's agents, 
     with a view toward having an expenditure made; or
       ``(ii) made by or through any person who is, or has been--
       ``(I) authorized to raise or expend funds on behalf of the 
     candidate or the candidate's authorized committees;
       ``(II) serving as an officer of the candidate's authorized 
     committees; or
       ``(III) providing professional services to, or receiving 
     any form of compensation or reimbursement from, the 
     candidate, the candidate's committee, or agent.''.
       (c) Hearings on Complaints.--Section 309(a) of FECA (2 
     U.S.C. 437g(a)) is amended by adding at the end thereof the 
     following new paragraph:
       ``(13) Within 3 days after the Commission receives a 
     complaint filed pursuant to this section which alleges that 
     an independent expenditure was made with the cooperation or 
     consultation of a candidate, or an authorized committee or 
     agent of such candidate, or was made in concert with or at 
     the request or suggestion of an authorized committee or agent 
     of such candidate, the Commission shall provide for a hearing 
     to determine such matter.''.
       (d) Expedited Judicial Review.--Section 310 of the FECA (2 
     U.S.C. 437h) is amended by adding at the end thereof the 
     following new sentence: ``It shall be the duty of the courts 
     to advance on the docket and to expedite to the greatest 
     possible extent the disposition of any matter relating to the 
     making or alleged making of an independent expenditure.''.
             TITLE II--INCREASE OF COMPETITION IN POLITICS

     SEC. 201. SEED MONEY FOR CHALLENGERS.

       Section 315 of FECA (2 U.S.C. 441a), as amended by section 
     111, is amended by adding at the end thereof the following 
     new subsection:
       ``(j)(1) Notwithstanding subsection (a)(2), the 
     congressional campaign committee or the senatorial campaign 
     committee of a national political party, whichever is 
     applicable, may make contributions to an eligible candidate 
     (and the candidate's authorized committees) which in the 
     aggregate do not exceed the lesser of--
       ``(A) $100,000; or
       ``(B) the aggregate qualified matching contributions 
     received by such candidate and the candidate's authorized 
     committees.
       ``(2) Any contribution under paragraph (1) shall not be 
     treated as an expenditure for purposes of subsection (d)(3).
       ``(3) For purposes of this subsection, the term `qualified 
     matching contributions' means contributions made during the 
     period of the election cycle preceding the primary election 
     by an individual who, at the time such contributions are 
     made, is a resident of the State in which the election with 
     respect to which such contributions are made is to be held.
       ``(4) For purposes of this subsection, the term `eligible 
     candidate' means a candidate for Federal office (other than 
     President or Vice President) who does not hold Federal 
     office.''.

     SEC. 202. USE OF CAMPAIGN FUNDS.

       Section 313 of FECA (2 U.S.C. 439a) is amended by inserting 
     ``(a)'' before ``Amounts'' and inserting at the end thereof 
     the following new subsection:
       ``(b) Notwithstanding subsection (a), a holder of Federal 
     office may not transfer any amounts received as contributions 
     or other campaign funds to any account maintained for 
     purposes of defraying ordinary and necessary expenses in 
     connection with the duties of such Federal office.''.

     SEC. 203. CANDIDATE EXPENDITURES FROM PERSONAL FUNDS.

       (a) Section 315 of FECA (2 U.S.C. 441a), as amended by 
     section 201, is amended by adding at the end thereof the 
     following new subsection:
       ``(k)(1)(A) Not less than 15 days after a candidate 
     qualifies for a primary election ballot under State law, the 
     candidate shall file with the Commission, and each other 
     candidate who has qualified for that ballot, a declaration 
     stating whether the candidate intends to expend for the 
     primary and general election an amount exceeding $250,000 
     from--
       ``(i) the candidate's personal funds;
       ``(ii) the funds of the candidate's immediate family; and
       ``(iii) personal loans incurred by the candidate and the 
     candidate's immediate family in connection with the 
     candidate's election campaign.
       ``(B) The declaration required by subparagraph (A) shall be 
     in such form and contain such information as the Commission 
     may require by regulation.
       ``(2) Notwithstanding subsection (a), if a candidate--
       ``(A) declares under paragraph (1) that the candidate 
     intends to expend for the primary and general election funds 
     described in such paragraph an amount exceeding $250,000;
       ``(B) expends such funds in the primary and general 
     election an amount exceeding $250,000; or
       ``(C) fails to file the declaration required by paragraph 
     (1),

     the limitations on contributions under subsection (a), and 
     the limitations on expenditures under subsection (d), shall 
     be modified as provided under paragraph (3) with respect to 
     other candidates for the same office who are not described in 
     subparagraph (A), (B), or (C).
       ``(3) For purposes of paragraph (2)--
       ``(A) the limitation under subsection (a)(1)(A) shall be 
     increased to $5,000; and
       ``(B) if a candidate described in paragraph (2)(B) expends 
     more than $1,000,000 of funds described in paragraph (1) in 
     the primary and general election--
       ``(i) the limitation under subsection (a)(1)(A) shall not 
     apply;
       ``(ii) the limitation under subsection (a)(2) shall not 
     apply to any political committee of a political party; and
       ``(iii) the limitation under subsection (d)(3) shall not 
     apply.

     The $5,000 amount under subparagraph (A) shall be adjusted 
     each calendar year in the same manner as amounts are adjusted 
     under subsection (a)(11)(B).
       ``(4) If--
       ``(A) the modifications under paragraph (3) apply for a 
     convention or a primary election by reason of 1 or more 
     candidates taking (or failing to take) any action described 
     in subparagraph (A), (B), or (C) of paragraph (2); and
       ``(B) such candidates are not candidates in any subsequent 
     election in the same election campaign, including the general 
     election,

     paragraph (3) shall cease to apply to the other candidates in 
     such campaign.
       ``(5) A candidate who--
       ``(A) declares, pursuant to paragraph (1), that the 
     candidate does not intend to expend funds described in 
     paragraph (1) in excess of $250,000; and
       ``(B) subsequently changes such declaration or expends such 
     funds in excess of that amount,

     shall file an amended declaration with the Commission and 
     notify all other candidates for the same office within 24 
     hours after changing such declaration or exceeding such 
     limits, whichever first occurs, by sending a notice by 
     certified mail, return receipt requested.
       ``(6) Contributions to a candidate or a candidate's 
     authorized committees may be used to repay any expenditure or 
     personal loan incurred in connection with the candidate's 
     election to Federal office by a candidate or a member of the 
     candidate's immediate family only to the extent that such 
     repayment--
       ``(A) is limited to the amount of such expenditure or the 
     principal amount of such loan (and no interest is paid); and
       ``(B) is not made from any such contributions received 
     after the date of the general election to which such 
     expenditure or loan relates.
       ``(7) For purposes of this subsection, the term `immediate 
     family' means--
       ``(A) a candidate's spouse;
       ``(B) any child, stepchild, parent, grandparent, brother, 
     half-brother, sister, or half-sister of the candidate or the 
     candidate's spouse; and
       ``(C) the spouse of a person described in subparagraph (B).
       ``(8) The Commission shall take such action as it deems 
     necessary under the enforcement provisions of this Act to 
     ensure compliance with this subsection.''.

     SEC. 204. FRANKED COMMUNICATIONS.

       (a) Amendment of Title 39, United States Code.--(1) Section 
     3210(a)(6)(A) of title 39, United States Code is amended--
       (A) by striking clause (i) and inserting the following new 
     clause:

[[Page S10386]]

       ``(i) if the mass mailing is mailed during the calendar 
     year of any primary or general election (whether regular or 
     runoff) in which the Member is a candidate for reelection; 
     or''; and
       (B) in clause (ii)(II), by striking ``fewer than 60 days 
     immediately before the date'' and inserting ``during the 
     year''.
       (2) Section 3210(a)(6)(C) of title 39, United States Code, 
     is amended by striking ``fewer than 60 days immediately 
     before the date'' and inserting ``during the year''.
       (3) Section 3210(a)(6) of title 39, United States Code, is 
     amended--
       (A) by redesignating subparagraphs (D), (E), and (F) as 
     subparagraphs (E), (F), and (G), respectively; and
       (B) by inserting after subparagraph (C) the following new 
     subparagraph:
       ``(D)(i)(I) When a Member of the Senate disseminates 
     information under the frank by a mass mailing, the Member 
     shall register annually with the Secretary of the Senate such 
     mass mailings. Such registration shall be made by filing with 
     the Secretary of the Senate a copy of the matter mailed and 
     providing, on a form supplied by the Secretary of the Senate, 
     a description of the group or groups of persons to whom the 
     mass mailing was mailed.
       ``(II) The Secretary of the Senate shall promptly make 
     available for public inspection and copying a copy of the 
     mail matter registered and a description of the group or 
     groups of persons to whom the mass mailing was mailed.
       ``(ii)(I) When a Member of the House of Representatives 
     disseminates information under the frank by a mass mailing, 
     the Member shall register annually with the Clerk of the 
     House of Representatives such mass mailings. Such 
     registration shall be made by filing with the Clerk of the 
     House of Representatives a copy of the matter mailed and 
     providing, on a form supplied by the Clerk of the House of 
     Representatives, a description of the group or groups of 
     persons to whom the mass mailing was mailed.
       ``(II) The Clerk of the House of Representatives shall 
     promptly make available for public inspection and copying a 
     copy of the mail matter registered and a description of the 
     group or groups of persons to whom the mass mailing was 
     mailed.''.
       (b) Amendment of Standing Rules of the Senate.--(1) 
     Paragraph 1 of Rule XL of the Standing Rules of the Senate is 
     amended by striking ``less than sixty days immediately before 
     the date'' and inserting ``during the year''.
       (2) This subsection is enacted--
       (A) as an exercise of the rulemaking power of the Senate; 
     and
       (B) with full recognition of the constitutional right of 
     the Senate to change the rules at any time, in the same 
     manner and to the same extent as in the case of any other 
     rule of the Senate.

     SEC. 205. LIMITATIONS ON GERRYMANDERING.

       (a) Reapportionment of Representatives.--Section 22 of the 
     Act entitled ``An Act to provide for the fifteenth and 
     subsequent decennial censuses and to provide for 
     apportionment of Representatives in Congress,'' approved June 
     18, 1929 (2 U.S.C. 2a), is amended--
       (1) by striking subsection (c); and
       (2) by adding at the end thereof the following new 
     subsections:
       ``(c)(1) In each State entitled in the One Hundred Third 
     Congress or in any subsequent Congress to more than one 
     Representative under an apportionment made pursuant to the 
     second paragraph of the Act entitled `An Act for the relief 
     of Doctor Ricardo Vallejo Samala and to provide for 
     congressional redistricting', approved December 14, 1967 (2 
     U.S.C. 2c), as in effect prior to the date of enactment of 
     this subsection, there shall be established in the manner 
     provided by the law of the State a number of districts equal 
     to the number of Representatives to which such State is so 
     entitled, and Representatives shall be elected only by 
     eligible voters from districts so established, no district to 
     elect more than 1 Representative.
       ``(2) Such districts shall be established in accordance 
     with the provisions of this Act as soon as practicable after 
     the decennial census date established in section 141(a) of 
     title 13, United States Code, but in no case later than such 
     time as is reasonably sufficient for their use in the 
     elections for the One Hundred Third Congress and in each 
     fifth Congress thereafter.
       ``(d)(1) The number of persons in congressional districts 
     within each State shall be as nearly equal as is practicable, 
     as determined under the then most recent decennial census.
       ``(2) The enumeration established according to the Federal 
     decennial census pursuant to article I, section II, United 
     States Constitution, shall be the sole basis of population 
     for the establishment of congressional districts.
       ``(e) Congressional districts shall be comprised of 
     contiguous territory, including adjoining insular territory.
       ``(f) Congressional districts shall not be established with 
     the intent or effect of diluting the voting strength of any 
     person, group of persons, or members of any political party.
       ``(g) Congressional districts shall be compact in form. In 
     establishing such districts, nearby population shall not be 
     bypassed in favor of more distant population.
       ``(h) Congressional district boundaries shall avoid the 
     unnecessary division of counties or their equivalent in any 
     State.
       ``(i) Congressional district boundaries shall be 
     established in such a manner so as to minimize the division 
     of cities, towns, villages, and other political subdivisions.
       ``(j)(1) It is the intent of the Congress that 
     congressional districts established pursuant to this section 
     be subject to reasonable public scrutiny and comment prior to 
     their establishment.
       ``(2) At the same time that Federal decennial census 
     tabulations data, reports, maps, or other material or 
     information produced or obtained using Federal funds and 
     associated with the congressional reapportionment and 
     redistricting process are made available to any officer or 
     public body in any State, those materials shall be made 
     available by the State at the cost of duplication to any 
     person from that State meeting the qualifications for voting 
     in an election of a Member of the House of Representatives.
       ``(k) Nothing in this section shall be construed to 
     supersede any provision of the Voting Rights Act of 1965 (42 
     U.S.C. 1973 et seq.).
       ``(l)(1) A State may establish by law criteria for 
     implementing the standards set forth in this section.
       ``(2) Nothing in this section shall be construed as 
     limiting the power of a State to strengthen or add to the 
     standards set forth in this section, or to interpret those 
     standards in a manner consistent with the law of the State, 
     to the extent that any additional criteria or interpretations 
     are not in conflict with this section.
       ``(m)(1) The district courts of the United States shall 
     have exclusive jurisdiction to hear and determine any action 
     to enforce subsections (c) through (l).
       ``(2) A person who meets a State's qualifications for 
     voting in an election of a Member of the House of 
     Representatives from the State may bring an action in the 
     district court for the district in which the person resides 
     to enforce subsections (c) through (l) with regard to the 
     State in which the person resides.
       ``(3) Notwithstanding any other provision of this section, 
     the district courts of the United States shall have authority 
     to issue all judgments, orders, and decrees necessary to 
     ensure that any criteria established by State law pursuant to 
     this section are not in conflict with this section.
       ``(4) With the exception of actions brought for the relief 
     described in paragraph (3), the district court for the 
     purposes of this section shall be a three-judge district 
     court pursuant to section 2284 of title 28, United States 
     Code.
       ``(5) On motion of any party in accordance with section 
     1657 of title 28, United States Code, it shall be the duty of 
     the district court to assign the case for briefing and 
     hearing at the earliest practicable date, and to cause the 
     case to be in every way expedited. The district court shall 
     have authority to enter all judgments, orders and decrees 
     necessary to bring a State into compliance with this Act.
       ``(6) An action to challenge the establishment of a 
     congressional district in a State after a Federal decennial 
     census may not be brought after the end of the 9-month period 
     beginning on the date on which the last such district is so 
     established.
       ``(7) For the purposes of this section, an order dismissing 
     a complaint for failure to state a cause of action shall be 
     appealable in accordance with section 1253 of title 28, 
     United States Code.
       ``(8) If a district court fails to establish a briefing and 
     hearing schedule that will permit resolution of the case 
     prior to the next general election, any party may seek a writ 
     of mandamus from the United States Court of Appeals for the 
     circuit in which the district court sits. The court of 
     appeals shall have jurisdiction over the motion for a writ of 
     mandamus and shall establish an expedited briefing and 
     hearing schedule for resolution of the motion. Such a motion 
     shall not stay proceedings in the district court.
       ``(9) If a district court determines that the congressional 
     districts established by a State's redistricting authority 
     pursuant to this Act are not in compliance with this Act, the 
     court shall remand the plan to the State's redistricting 
     authority to establish new districts consistent with 
     subsections (c) through (l). The district court shall retain 
     jurisdiction over the case after remand.
       ``(10) If, after a remand under paragraph (9), the district 
     court determines that the congressional districts established 
     by a State's redistricting authority under the remand order 
     are not consistent with subsections (c) through (l), the 
     district court shall enter an order establishing districts 
     that are consistent with subsections (c) through (l) for the 
     next general congressional election.
       ``(11) If any question of State law arises in a case under 
     this section that would require abstention, the district 
     court shall not abstain. However, in any State permitting 
     certification of such questions, the district court shall 
     certify the question to the highest court of the State whose 
     law is in question. Such certification shall not stay the 
     proceedings in the district court or delay the court's 
     determination of the question of State law.
       ``(12) With the exception of actions brought for the relief 
     described in paragraph (3), an appeal from a decision of the 
     district court under this section shall be taken in 
     accordance with section 1253 of title 28, United States Code. 
     An appeal under this paragraph shall be noticed in the 
     district court and perfected by docketing in the Supreme 
     Court within thirty days of the entry of judgment below. 
     Appeals brought to the Supreme Court under this paragraph 
     shall be heard as soon as practicable.

[[Page S10387]]

       ``(13) For purposes of this section, the term 
     `redistricting authority' means the officer or public body 
     having initial responsibility for the congressional 
     redistricting of a State.''.
       (b) Conforming Amendments and Repealer.--(1) The first 
     sentence of section 1657 of title 28, United States Code, is 
     amended by striking ``chapter 153 or'' and inserting 
     ``chapter 153, any action under subsection (m) through (l) of 
     section 22 of the Act entitled `An Act to provide for the 
     fifteenth and subsequent censuses and to provide for 
     apportionment of Representatives in Congress,' approved June 
     18, 1929 (2 U.S.C. 2a), or''.
       (2) Section 141(c) of title 13, United States Code, is 
     amended by adding at the end thereof the following: ``In 
     circumstances in which this subsection requires that the 
     Secretary provide criteria to, consult with, or report 
     tabulations of population to (or if the Secretary for any 
     reason provides material or information to) the public bodies 
     having responsibility for the legislative apportionment or 
     districting of a State, the Secretary shall provide, without 
     cost, such criteria, consultations, tabulations, or other 
     material or information simultaneously to the leadership of 
     each political party represented on such public bodies. For 
     purposes of this subsection, the term `political party' means 
     any political party whose candidates for Representatives to 
     Congress received, as the candidates of such party, 5 percent 
     or more of the total number of votes received statewide by 
     all candidates for such office in any of the 5 most recent 
     general congressional elections. Such materials may include 
     those developed by the Census Bureau for redistricting 
     purposes for the 1990 Census.''.
       (3) The second paragraph of the Act entitled ``An Act for 
     the relief of Doctor Ricardo Vallejo Samala and to provide 
     for congressional redistricting'', approved December 14, 1967 
     (2 U.S.C. 2c), is repealed.

     SEC. 206. ELECTION FRAUD, OTHER PUBLIC CORRUPTION, AND FRAUD 
                   IN INTERSTATE COMMERCE.

       (a) Election Fraud and Other Public Corruption.--(1) 
     Chapter 11 of title 18, United States Code, is amended by 
     adding at the end thereof the following new section:

     ``Sec. 225. Public corruption

       ``(a) Whoever, in a circumstance described in subsection 
     (d), deprives or defrauds, or endeavors to deprive or to 
     defraud, by any scheme or artifice, the inhabitants of a 
     State or political subdivision of a State of the honest 
     services of an official or employee of such State, political 
     subdivision, or Indian tribal government shall be fined under 
     this title, or imprisoned for not more than 10 years, or 
     both.
       ``(b) Whoever, in a circumstance described in subsection 
     (d), deprives or defrauds, or endeavors to deprive or to 
     defraud, by any scheme or artifice, the inhabitants of a 
     State or political subdivision of a State of a fair and 
     impartially conducted election process in any primary, 
     runoff, special, or general election--
       ``(1) through the procurement, casting, or tabulation of 
     ballots that are materially false, fictitious, or fraudulent 
     or that are invalid, under the laws of the State in which the 
     election is held;
       ``(2) through paying or offering to pay any person for 
     voting;
       ``(3) through the procurement or submission of voter 
     registrations that contain false material information, or 
     omit material information; or
       ``(4) through the filing of any report required to be filed 
     under State law regarding an election campaign that contains 
     false material information or omits material information,

     shall be fined under this title or imprisoned for not more 
     than 10 years, or both.
       ``(c) Whoever, being a public official or an official or 
     employee of a State, political subdivision of a State, or 
     Indian tribal government, in a circumstance described in 
     subsection (d), deprives or defrauds, or endeavors to deprive 
     or to defraud, by any scheme or artifice, the inhabitants of 
     a State or political subdivision of a State of the right to 
     have the affairs of the State, political subdivision, or 
     Indian tribal government conducted on the basis of complete, 
     true, and accurate material information, shall be fined under 
     this title or imprisoned for not more than 10 years, or both.
       ``(d) The circumstances referred to in subsections (a), 
     (b), and (c) are that--
       ``(1) for the purpose of executing or concealing such 
     scheme or artifice or attempting to do so, the person so 
     doing--
       ``(A) places in any post office or authorized depository 
     for mail matter, any matter or thing whatever to be sent or 
     delivered by the Postal Service, or takes or receives 
     therefrom, any such matter or thing, or knowingly causes to 
     be delivered by mail according to the direction thereon, or 
     at the place at which it is directed to be delivered by the 
     person to whom it is addressed, any such matter or thing;
       ``(B) transmits or causes to be transmitted by means of 
     wire, radio, or television communication in interstate or 
     foreign commerce any writings, signs, signals, pictures, or 
     sounds;
       ``(C) transports or causes to be transported any person or 
     thing, or induces any person to travel in or to be 
     transported in, interstate or foreign commerce; or
       ``(D) uses or causes to use of any facility of interstate 
     or foreign commerce;
       ``(2) the scheme or artifice affects or constitutes an 
     attempt to affect in any manner or degree, or would if 
     executed or concealed so affect, interstate or foreign 
     commerce; or
       ``(3) as applied to an offense under subsection (b), an 
     objective of the scheme or artifice is to secure the election 
     of an official who, if elected, would have some authority 
     over the administration of funds derived from an Act of 
     Congress totaling $10,000 or more during the twelve-month 
     period immediately preceding or following the election or 
     date of the offense.
       ``(e) Whoever deprives or defrauds, or endeavors to deprive 
     or to defraud, by any scheme or artifice, the inhabitants of 
     the United States of the honest services of a public official 
     or person who has been selected to be a public official shall 
     be fined under this title or imprisoned for not more than 10 
     years, or both.
       ``(f) Whoever, being an official, public official, or 
     person who has been selected to be a public official, 
     directly or indirectly discharges, demotes, suspends, 
     threatens, harasses, or in any manner discriminates against 
     an employee or official of the United States or any State or 
     political subdivision of a State, or endeavors to do so, in 
     order to carry out or to conceal any scheme or artifice 
     described in this section, shall be fined under this title or 
     subject to imprisonment of up to 5 years or both.
       ``(g)(1) An employee or official of the United States or 
     any State or political subdivision of such State who is 
     discharged, demoted, suspended, threatened, harassed, or in 
     any other manner discriminated against because of lawful acts 
     done by the employee as a result of a violation of subsection 
     (e) or because of actions by the employee or official on 
     behalf of himself or others in furtherance of a prosecution 
     under this section (including investigation for, initiation 
     of, testimony for, or assistance in such a prosecution) may 
     bring a civil action and shall be entitled to all relief 
     necessary to make such employee or official whole. Such 
     relief shall include reinstatement with the same seniority 
     status that the employee or official would have had but for 
     the discrimination, 3 times the amount of back pay, interest 
     on the back pay, and compensation for any special damages 
     sustained as a result of the discrimination, including 
     reasonable litigation costs and reasonable attorney's fees.
       ``(2) An individual shall not be entitled to relief under 
     paragraph (1) if the individual participated in the violation 
     of this section with respect to which relief is sought.
       ``(3) A civil action brought under paragraph (1) shall be 
     stayed by a court upon the certification of an attorney for 
     the Government, stating that the action may adversely affect 
     the interests of the Government in a current criminal 
     investigation or proceeding. The attorney for the Government 
     shall promptly notify the court when the stay may be lifted 
     without such adverse effects.
       ``(h) For purposes of this section--
       ``(1) the term `State' means a State of the United States, 
     the District of Columbia, Puerto Rico, and any other 
     commonwealth, territory, or possession of the United States;
       ``(2) the terms `public official' and `person who has been 
     selected to be a public official' have the meaning set forth 
     in section 201 and shall also include any person acting or 
     pretending to act under color of official authority;
       ``(3) the term `official' includes--
       ``(A) any person employed by, exercising any authority 
     derived from, or holding any position in an Indian tribal 
     government or the government of a State or any subdivision of 
     the executive, legislative, judicial, or other branch of 
     government thereof, including a department, independent 
     establishment, commission, administration, authority, board, 
     and bureau, and a corporation or other legal entity 
     established and subject to control by a government or 
     governments for the execution of a governmental or 
     intergovernmental program;
       ``(B) any person acting or pretending to act under color of 
     official authority; and
       ``(C) includes any person who has been nominated, appointed 
     or selected to be an official or who has been officially 
     informed that he or she will be so nominated, appointed or 
     selected;
       ``(4) the term `under color of official authority' includes 
     any person who represents that the person controls, is an 
     agent of, or otherwise acts on behalf of an official, public 
     official, and person who has been selected to be a public 
     official; and
       ``(5) the term `uses any facility of interstate or foreign 
     commerce' includes the intrastate use of any facility that 
     may also be used in interstate or foreign commerce.''.
       (2)(A) The table of sections for chapter 11 of title 18, 
     United States Code, is amended by adding at the end thereof 
     the following item:

``225. Public Corruption.''.

       (B) Section 1961(1) of title 18, United States Code, is 
     amended by inserting ``section 225 (relating to public 
     corruption),'' after ``section 224 (relating to sports 
     bribery),''.
       (C) Section 2516(1)(c) of title 18, United States Code, is 
     amended by inserting ``section 225 (relating to public 
     corruption),'' after ``section 224 (bribery in sporting 
     contests),''.
       (b) Fraud in Interstate Commerce.--(1) Section 1343 of 
     title 18, United States Code, is amended--
       (A) by striking ``transmits or causes to be transmitted by 
     means of wire, radio, or television communication in 
     interstate or foreign commerce, any writings, signs, signals, 
     pictures, or sounds'' and inserting ``uses or causes to be 
     used any facility of interstate or foreign commerce''; and

[[Page S10388]]

       (B) by inserting ``or attempting to do so'' after ``for the 
     purpose of executing such scheme or artifice''.
       (2)(A) The heading of section 1343 of title 18, United 
     States Code, is amended to read as follows:

     ``Sec.  1343. Fraud by use of facility of interstate 
       commerce''.

       (B) The chapter analysis for chapter 63 of title 18, United 
     States Code, is amended by striking the analysis for section 
     1343 and inserting the following:

``1343. Fraud by use of facility of interstate commerce.''.
                 TITLE III--REDUCTION OF CAMPAIGN COSTS

     SEC. 301. BROADCAST DISCOUNT.

       (a) Findings.--The Congress finds that--
       (1) in the 45 days preceding a primary election, and in the 
     60 days preceding a general election, candidates for 
     political office need to be able to buy, at the lowest unit 
     charge, nonpreemptible advertising spots from broadcast 
     stations and cable television stations to ensure that their 
     messages reach the intended audience and that the voting 
     public has an opportunity to make informed decisions;
       (2) since the Communications Act of 1934 was amended in 
     1972 to guarantee the lowest unit charge for candidates 
     during these important preelection periods, the method by 
     which advertising spots are sold in the broadcast and cable 
     industries has changed significantly;
       (3) changes in the method for selling advertising spots 
     have made the interpretation and enforcement of the lowest 
     unit charge provision difficult and complex;
       (4) clarification and simplification of the lowest unit 
     charge provision in the Communications Act of 1934 is 
     necessary to ensure compliance with the original intent of 
     the provision; and
       (5) in granting discounts and setting charges for 
     advertising time, broadcasters and cable operators should 
     treat candidates for political office at least as well as the 
     most favored commercial advertisers.
       (b) Amendment of Communications Act.--Section 315 of the 
     Communications Act of 1934 (47 U.S.C. 315) is amended--
       (1) in subsection (b)(1), by striking ``class and'';
       (2) by redesignating subsections (c) and (d) as subsections 
     (d) and (e), respectively; and
       (3) by inserting immediately after subsection (b) the 
     following new subsection:
       ``(c) A licensee shall not preempt the use, during any 
     period specified in subsection (b)(1), of a broadcasting 
     station by a legally qualified candidate for public office 
     who has purchased such use pursuant to subsection (b)(1).''.
                   TITLE IV--MISCELLANEOUS PROVISIONS
     Subtitle A--Federal Election Commission Enforcement Authority

     SEC. 401. ELIMINATION OF REASON TO BELIEVE STANDARD.

       Section 309(a)(2) of FECA (2 U.S.C. 437g(a)(2)) is 
     amended--
       (1) by inserting ``(A)'' after ``(2)''; and
       (2) by striking the first sentence and inserting the 
     following: ``Except as otherwise provided in subparagraph 
     (B), if the Commission, upon receiving a complaint under 
     paragraph (1) or on the basis of information ascertained in 
     the normal course of carrying out its supervisory 
     responsibilities determines, by an affirmative vote of 4 of 
     its members, that an allegation of a violation or from 
     pending violation of this Act or chapter 95 or 96 of the 
     Internal Revenue Code of 1986 states a claim of violation 
     that would be sufficient under the standard applicable to a 
     motion under rule 12(b)(6) of the Federal Rules of Civil 
     Procedure, the Commission shall, through its chairman or vice 
     chairman, notify the person of the alleged violation. Such 
     vote shall occur within 90 days after receipt of such 
     complaint.''.

     SEC. 402. INJUNCTIVE AUTHORITY.

       Section 309(a)(2) of FECA (2 U.S.C. 437g(a)(2)), as amended 
     by section 401, is amended by adding at the end thereof the 
     following new subparagraph:
       ``(B) The Commission may petition the appropriate court for 
     an injunction if--
       ``(i) the Commission believes that there is a substantial 
     likelihood that a violation of this Act or of chapter 95 or 
     96 of the Internal Revenue Code of 1986 is occurring or is 
     about to occur;
       ``(ii) the failure to act expeditiously will result in 
     irreparable harm to a party affected by the potential 
     violation;
       ``(iii) such expeditious action will not cause undue harm 
     or prejudice to the interests of others; and
       ``(iv) the public interest would be best served by the 
     issuance of an injunction.''.

     SEC. 403. TIME PERIODS.

       Section 309(a)(4)(A) of FECA (2 U.S.C. 437g(a)(4)(A)) is 
     amended--
       (1) in clause (i) by--
       (A) striking ``, for a period of at least 30 days,''; and
       (B) striking ``90 days'' and inserting ``60 days''; and
       (2) in clause (ii) by striking ``at least'' and inserting 
     ``no more than''.

     SEC. 404. KNOWING VIOLATION PENALTIES.

       Section 309(a)(5)(B) of FECA (2 U.S.C. 437g(a)(5)(B)) is 
     amended by striking ``may require that the person involved in 
     such conciliation agreement shall pay a civil penalty which 
     does not exceed the greater of $10,000 or an amount equal to 
     200 percent of any contribution or expenditure involved in 
     such violation'' and inserting ``shall require that the 
     person involved in such conciliation agreement shall pay a 
     civil penalty which is not less than the greater of $5,000 or 
     an amount equal to any contribution or expenditure involved 
     in such violation, except that if the Commission believes 
     that a knowing and willful violation of this Act or of 
     chapter 95 or chapter 96 of the Internal Revenue Code of 1986 
     has been committed during the 15-day period immediately 
     preceding any election, a conciliation agreement entered into 
     by the Commission under paragraph (4)(A) shall require that 
     the person involved in such conciliation agreement shall pay 
     a civil penalty which is not less than the greater of $10,000 
     or an amount equal to 200 percent of any contribution or 
     expenditure involved in such violation''.

     SEC. 405. COURT RESOLVED VIOLATIONS AND PENALTIES.

       Section 309(a)(6) of the Federal Election Campaign Act of 
     1971 (2 U.S.C. 437g(a)(6)) is amended--
       (1) in subparagraph (A) by--
       (A) striking ``Commission may'' and inserting ``Commission 
     shall'';
       (B) striking ``including'' and inserting ``which shall 
     include''; and
       (C) striking ``which does not exceed the greater of $5,000 
     or an amount equal to any'' and inserting ``which equals the 
     greater of $10,000 or an amount equal to 200 percent of 
     any''; and
       (2) in subparagraph (B) by--
       (A) striking ``court may'' and inserting ``court shall''; 
     and
       (B) striking ``, including'' and inserting ``which shall 
     include''; and
       (C) striking ``which does not exceed the greater of $5,000 
     or an amount equal to any'' and inserting ``which equals the 
     greater of $10,000 or an amount equal to 200 percent of 
     any''.

     SEC. 406. PRIVATE CIVIL ACTIONS.

       Section 309(a)(6)(A) of FECA (2 U.S.C. 437g(a)(6)(A)), as 
     amended by section 405, is amended--
       (1) by inserting ``(i)'' after ``(6)(A)''; and
       (2) by adding at the end thereof the following new clause:
       ``(ii) If, by a tie vote, the Commission does not vote to 
     institute a civil action pursuant to clause (i), the 
     candidate involved in such election, or an individual 
     authorized to act on behalf of such candidate, may file an 
     action for appropriate relief in the district court for the 
     district in which the respondent is found, resides, or 
     transacts business. If the court determines that a violation 
     has occurred, the court shall impose the appropriate civil 
     penalty. Any such award of a civil penalty made under this 
     paragraph shall be made in favor of the United States. In 
     addition to any such civil penalty, the court shall award to 
     the prevailing party in any action under this paragraph, all 
     attorneys' fees and actual costs reasonably incurred in the 
     investigation and pursuit of any such action, including those 
     attorneys' fees and costs reasonably incurred in bringing or 
     defending the proceeding before the Commission.''.

     SEC. 407. KNOWING VIOLATIONS RESOLVED IN COURT.

       Section 309(a)(6)(C) of FECA (2 U.S.C. 437g(a)(6)(C)) is 
     amended by striking ``may impose a civil penalty which does 
     not exceed the greater of $10,000 or an amount equal to 200 
     percent of any contribution or expenditure involved in such 
     violation'' and inserting ``shall impose a civil penalty 
     which is not less than the greater of $10,000 or an amount 
     equal to 200 percent of any contribution or expenditure 
     involved in such violation, except that if such violation was 
     committed during the 15-day period immediately preceding the 
     election, the court shall impose a civil penalty which is not 
     less than the greater of $15,000 or an amount equal to 300 
     percent of any contribution or expenditure involved in such 
     violation''.

     SEC. 408. ACTION ON COMPLAINT BY COMMISSION.

       Section 309(a)(8)(A) of FECA (2 U.S.C. 437g(a)(8)(A)) is 
     amended--
       (1) by striking ``act on'' and inserting ``reasonably 
     pursue'';
       (2) by striking ``120-day'' and inserting ``60-day''; and
       (3) by striking ``United States District Court for the 
     District of Columbia'' and inserting ``appropriate court''.

     SEC. 409. VIOLATION OF CONFIDENTIALITY REQUIREMENT.

       Section 309(a)(12)(B) of FECA (2 U.S.C. 437g(a)(12)(A)) is 
     amended--
       (1) by striking ``$2,000'' and inserting ``$5,000''; and
       (2) by striking ``$5,000'' and inserting ``$10,000''.

     SEC. 410. PENALTY IN ATTORNEY GENERAL ACTIONS.

       Section 309(d)(1)(A) of FECA (2 U.S.C. 437g(d)(1)(A)) is 
     amended by striking ``exceed'' and inserting ``be less 
     than''.

     SEC. 411. AMENDMENTS RELATING TO ENFORCEMENT AND JUDICIAL 
                   REVIEW.

       (a) Time Limitations for and Index of Investigations.--
     Section 309(a) of FECA (2 U.S.C. 437g(a)), as amended by 
     section 124, is amended by adding at the end thereof the 
     following new paragraphs:
       ``(14) The Commission shall establish time limitations for 
     investigations under this subsection.
       ``(15) The Commission shall publish an index of all 
     investigations under this section and shall update the index 
     quarterly.''.
       (b) Procedure on Initial Determination.--Section 309(a)(2) 
     of FECA (2 U.S.C.

[[Page S10389]]

     437g(a)(2)), as amended by section 402, is amended by adding 
     at the end thereof the following: ``Before a vote based on 
     information ascertained in the normal course of carrying out 
     supervisory responsibilities, the person alleged to have 
     committed the violation shall be notified of the allegation 
     and shall have the opportunity to demonstrate, in writing, to 
     the Commission within 15 days after notification that no 
     action should be taken against such person on the basis of 
     the information. Prior to any determination, the Commission 
     may request voluntary responses to questions from any person 
     who may become the subject of an investigation. A 
     determination under this paragraph shall be accompanied by a 
     written statement of the reasons for the determination.''.
       (c) Procedure on Probable Cause Determination.--(1) Section 
     309(a)(3) of FECA (2 U.S.C. 437g(a)(3)) is amended by adding 
     at the end thereof the following: ``The Commission shall make 
     available to a respondent any documentary or other evidence 
     relied on by the general counsel in making a recommendation 
     under this subsection. Any brief or report by the general 
     counsel that replies to the respondent's brief shall be 
     provided to the respondent.''.
       (2) Section 309(a)(4)(A) of FECA (2 U.S.C. 437g(a)(4)(A)) 
     is amended by adding at the end thereof the following new 
     clauses:
       ``(iii) A determination under clause (i) shall be made only 
     after opportunity for a hearing upon request of the 
     respondent and shall be accompanied by a statement of the 
     reasons for the determination.
       ``(iv) The Commission shall not require that any 
     conciliation agreement under this paragraph contain an 
     admission by the respondent of a violation of this Act or any 
     other law.''.
       (d) Elimination of En Banc Hearing Requirement.--Section 
     310 of FECA (2 U.S.C. 437h), as amended by section 124(d), is 
     amended by striking ``, which shall hear the matter sitting 
     en banc''.

     SEC. 412. TIGHTENING ENFORCEMENT.

       (a) Repeal of Period of Limitation.--Section 406 of FECA (2 
     U.S.C. 455) is repealed.
       (b) Supplying of Information to the Attorney General.--
     Section 309(a)(12) of the Federal Election Campaign Act of 
     1971 (2 U.S.C. 437g(a)(12)(A)) is amended by adding at the 
     end thereof the following new subparagraph:
       ``(C) Nothing in this section shall be deemed to prohibit 
     or prevent the Commission from making information contained 
     in compliance files available to the Attorney General, at the 
     Attorney General's request, in connection with an 
     investigation or trial.''.
                      Subtitle B--Other Provisions

     SEC. 421. DISCLOSURE OF DEBT SETTLEMENT AND LOAN SECURITY 
                   AGREEMENTS.

       Section 304(b) of FECA (2 U.S.C. 434(b)), as amended by 
     section 112, is amended by striking ``and'' at the end of 
     paragraph (8), by striking the period at the end of paragraph 
     (9) and inserting a semicolon, and by adding at the end 
     thereof the following new paragraphs:
       ``(10) for the reporting period, the terms of any 
     settlement agreement entered into with respect to a loan or 
     other debt, as evidenced by a copy of such agreement filed as 
     part of the report; and
       ``(11) for the reporting period, the terms of any security 
     or collateral agreement entered into with respect to a loan, 
     as evidenced by a copy of such agreement filed as part of the 
     report.''.

     SEC. 422. CONTRIBUTIONS FOR DRAFT AND ENCOURAGEMENT PURPOSES 
                   WITH RESPECT TO ELECTIONS FOR FEDERAL OFFICE.

       (a) Definition.--Section 301(8)(A) of FECA (2 U.S.C. 
     431(8)(A)) is amended by striking ``or'' after the semicolon 
     at the end of clause (i), by striking the period at the end 
     of clause (ii) and inserting ``; and'', and by adding at the 
     end thereof the following new clause:
       ``(iii) any gift, subscription, loan, advance, or deposit 
     of money or anything of value made by any person for the 
     purpose of drafting a clearly identified individual as a 
     candidate for Federal office or encouraging a clearly 
     identified individual to become a candidate for Federal 
     office.''.
       (b) Draft and Encouragement Contributions To Be Treated as 
     Candidate Contributions.--Section 315(a) of FECA (2 U.S.C. 
     441a(a)), as amended by this Act, is amended by adding at the 
     end thereof the following new paragraph:
       ``(12) For purposes of paragraph (1)(A) and paragraph 
     (2)(A), any contribution described in section 301(8)(A)(iii) 
     shall be treated, with respect to the individual involved, as 
     a contribution to a candidate, whether or not the individual 
     becomes a candidate.''.

     SEC. 423. SEVERABILITY.

       If any provision of this Act or any amendment made by this 
     Act, or the application of any such provision to any person 
     or circumstance is held invalid, the validity of any other 
     such provision, and the application of such provision to 
     other persons and circumstances shall not be affected 
     thereby.

     SEC. 424. EFFECTIVE DATE.

       Except as otherwise provided in this Act, this Act and the 
     amendments made by this Act shall become effective on 
     November 10, 1992, and shall apply to all contributions and 
     expenditures made after that date.

  Mr. FEINGOLD. Senate bill 143 from the 102d Congress was offered by 
the Senator from Kentucky. It was not a group of people that had to 
sort of pull together to support the leader on this. Mr. McConnell, the 
Senator from Kentucky, was the lead author, and then other Senators, 
distinguished Senators, agreed with him--Senator Dole, Senator Simpson, 
Senator Packwood, Senator Cochran, Senator Domenici, Senator Murkowski, 
Senator Roth, and Senator Hatfield; but the lead author of the bill was 
the Senator from Kentucky. And the bill banned soft money.
  Mr. President, it specifically provides for the ban of soft money 
which the Senator from Kentucky has denounced as an unconstitutional 
part of the McCain-Feingold bill. So this notion that somehow the 
Senator from Kentucky was not supportive of this kind of concept, at 
least at that time, does not seem to withstand scrutiny.
  Mr. President, I would also like at this time to spend a few moments 
talking a little bit about a very important item, and that is the 
proposal before us offered by the majority leader. That represents, to 
me, an attempt to put the onus of the entire campaign finance issue 
just on organized labor. That is the substantive impact of this 
proposal.
  But I am afraid the proposal is, in the end, going to serve a larger 
purpose, if it prevails. The majority leader made it pretty clear that 
was his purpose. The purpose of the proposal, it seems to me, is to 
kill the McCain-Feingold bill. I know the majority leader has said that 
that is not the case. But I am not the only one who believes this is a 
poison pill. Just about everyone who has looked at this feels this is 
an attempt to kill this bill by insisting that Senate bill 9 be brought 
up at this time.
  The Senator from Kentucky said that Senate bill 9 was a very 
important bill; that is why it was No. 9. I understand the rules around 
here. The leaders get to introduce about five bills each they consider 
to be a top priority. Senate bill 9 was one of those top priorities of 
the Republican leadership.
  Why then, if it was such a top priority, did they wait almost until 
the end of this entire year, the end of this entire session, to bring 
it up? If it was so important, why wasn't it given the importance that 
it supposedly had? Others agree.
  Mr. President, I ask unanimous consent that the editorial from the 
New York Times entitled ``The Swing Senators'' of October 5, 1997, be 
printed in the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Oct. 5, 1997]

                           The Swing Senators

       It takes many routine votes to build and sustain a Senate 
     career, but one memorable vote can destroy a reputation. For 
     a handful of Republican senators who have championed campaign 
     finance reform, that fatal vote could come on Tuesday if they 
     kill the McCain-Feingold bill. It is hard to imagine how 
     Olympia Snowe of Maine, James Jeffords of Vermont and John 
     Chafee of Rhode Island can face their constituents if they 
     bury the best chance in a generation to fashion a more 
     rational system of financing Presidential and Congressional 
     campaigns.
       That is the simple, unforgiving logic of Tuesday's vote. 
     Trent Lott, the majority leader, has scheduled a showdown on 
     the McCain-Feingold bill, which would curb the unlimited 
     donations to political parties that have been at the heart of 
     the scandals this year. The bill would also restrict the 
     ability of independent groups to raise money from rich 
     individuals, corporations and labor unions to broadcast 
     candidate attack ads masquerading as issue ads two months 
     before an election. To kill the legislation, Mr. Lott has 
     made the first order of business a vote on an amendment he 
     knows Democrats do not support. It would limit the ability of 
     labor unions to raise and spend money on elections. If the 
     amendment is approved, the overall bill will die.
       All 45 Democrats are prepared to vote against Mr. Lott's 
     amendment, so just five Republicans are needed to defeat it. 
     Senator John McCain of Arizona, a conservative who would 
     otherwise support the Lott amendment, will vote against it 
     because he knows it will strangle reform. Fred Thompson of 
     Tennessee, Susan Collins of Maine and Arlen Specter of 
     Pennsylvania, all supporters of McCain-Feingold, seem likely 
     to join Mr. Cain.
       Senator Snowe has sponsored campaign finance reform 
     legislation in the past and Maine, her home state, last year 
     overwhelmingly approved a referendum that established public 
     financing of campaigns and limits on contributions and 
     candidate expenditures. She would betray her own record and 
     her state if she supported Mr. Lott's effort to torpedo the 
     McCain-Feingold bill.
       Since entering the Senate in 1989, Mr. Jeffords has been 
     among the most articulate backers of campaign finance reform. 
     In 1992, he voted to override a veto by President

[[Page S10390]]

     Bush of legislation imposing spending and contribution 
     limits. Senator Chafee has also consistently favored reform 
     over the years.
       Another swing vote this week ought to come from Alfonse 
     D'Amato of New York. Mr. D'Amato is up for re-election next 
     year and is counting on labor support. In the past he has 
     opposed the kind of labor fund-raising curbs now pushed by 
     Mr. Lott. He was even quoted recently as saying he favored a 
     ban on unlimited donations to campaigns. Mr. D'Amato could 
     enhance his standing among moderate Republicans and 
     independents by rallying behind the McCain-Feingold bill.
       If Mr. Lott prevails, supporters of campaign reform must 
     not give up. Senator McCain has promised to attach his bill 
     to every piece of legislation before the Senate in the coming 
     weeks. That strategy worked last year for raising the minimum 
     wage. After a year of scandal and abuse, there is no greater 
     priority for Congress than removing the stain of corruption 
     from American politics. The public's desire for reform 
     demands nothing less. If Senators Snowe, Jeffords and Chafee 
     would vote on principle rather than blindly following Mr. 
     Lott, the Senate could approve reform this week.

  Mr. FEINGOLD. Mr. President, that editorial identifies clearly the 
belief of most Americans that the purpose of this amendment is not 
necessarily to simply resolve this issue, although I am sure Members on 
the other side of the aisle, many of them, feel strongly about it, but 
it is to kill the McCain-Feingold bill.
  Mr. President, I also ask unanimous consent that an editorial from 
the USA Today, dated October 6, 1997, entitled ``Squabble over union 
dues a pretext to stop reform'' be printed in the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

           Squabble Over Union Dues a Pretext to Stop Reform

       Our View--As in the past, those in power are trying to kill 
     campaign-finance reform without taking the rap.
       For 20 years, Congress has mounted pieties about cleaning 
     up the swamp of special-interest money in politics, while 
     making quite sure nothing gets done about it.
       Year after year, stalling, stalemate and deception have 
     been weapons of choice for those who have mastered the system 
     to get elected and have little interest in change. This week, 
     masked in a contrived debate over union dues, it may happen 
     again.
       After finally agreeing to debate campaign-finance reform, 
     Senate Majority Leader Trent Lott has made the first order of 
     business his own amendment requiring that union members give 
     written permission before their dues can be used for 
     political purposes.
       Sounds noble, but it's a phony. The campaign-reform bill 
     already includes provisions effectively barring union 
     treasuries from making political contributions.
       It closes the so-called ``soft money'' loophole which has 
     allowed massive, unregulated contributions to parties by both 
     unions and business interests.
       It brings ``independent expenditure'' and ``issue 
     advocacy'' ads that target candidates under the same 
     regulations as campaign contributions. That makes them a no-
     no for both unions and business.
       Limited contributions from union political actual 
     committees would remain legal, but PACs already must obtain 
     sign-offs from contributors. Further, union members unhappy 
     with the use of their dues already have a right to quit the 
     union.
       But the amendment is a useful vehicle for Lott and fellow 
     Republicans to posture for the favor of employers whose 
     contribution they seek--and to make retaliatory mischief for 
     the unions, which spend $35 million attacking Republicans 
     last year. And while they moan about it, the debate gives 
     Democratic opponents a chance to preen as friends of the 
     union leaders.
       Unfortunately, the amendment also carries the risk of 
     fracturing the fragile coalition pushing for much-needed 
     change. Lott has as good as said that is its real purpose.
       It's an old story. In 1990, the House and Senate actually 
     passed somewhat similar campaign-reform bills, but the 
     conferees appointed to iron out the differences never got 
     around to meeting. In 1994, a slightly different scenario 
     brought a similar result.
       In 1988, a reform bill was killed by a filibuster. In 1992, 
     a bill passed but was vetoed; the votes to override weren't 
     there. Repeatedly, representatives and senators who want to 
     get on record as reformers have been able to do so--but with 
     little risk of change actually becoming law.
       Now, despite a $260 million flood of unregulated campaign 
     contributions in 1995-96, despite $3 million in illegal or 
     questionable contributions, despite an unseemly money chase 
     by the president and vice president that has prompted Justice 
     Department and congressional investigations, reform is again 
     at risk of being sidetracked.
       Another modest effort to get at the mess of money in 
     politics would be dead, with few fingerprints at the scene of 
     the crime. Just stalemate and deception as usual.
  Mr. FEINGOLD. The article, of course, lays out the arguments about 
the issue of union dues. In fact, as is the practice of USA Today, they 
give an opportunity to the majority leader to respond within the 
article. But the subheadline sort of says it all. ``As in the past, 
those in power are trying to kill campaign-finance reform without 
taking the rap.''
  Mr. President, at this time I ask unanimous consent to have printed 
in the Record an article from the Washington Post by David S. Broder 
entitled ``Campaign Finance: A `Poison Pill'* * *.''
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, Oct. 5, 1997]

                Campaign Finance: A ``Poison Pill''. . .

                          (By David S. Broder)

       From Capitol Hill to California, conservatives claim to 
     have found a new weapon for their arsenal--a device to disarm 
     labor unions and put Democrats on the defensive. But it is a 
     weapon that can produce a dangerous backlash.
       The devicde is wonderfully simple: a legal requirement that 
     workers give written permission before unions can use their 
     dues for political purposes.
       In Washington, Senate Majority Leader Trent Lott (R-Miss.) 
     this week will try to attach such an amendment to the pending 
     campaign finance reform bill. He calls its approval ``the 
     price of admission'' to every other aspect of the debate 
     Democrats call it a ``poison pill'' and say if it passes, 
     they will filibuster to protect their union allies--which 
     would allow Lott to blame them for sinking the overall reform 
     package that he despises.
       In California, where I was reporting last week, Republican 
     Gov. Pete Wilson announced that he will lead an effort for a 
     1998 ballot initiative to enact a similar requirement. At the 
     Republican state convention in Anaheim, Wilson, drew a 
     standing ovation by declaring that ``union members shouldn't 
     be forced to have their pockets picked for candidates or 
     causes they don't support.''
       This ``payroll protection'' drive, as proponents call it, 
     is the handiwork of J. Patrick Rooney, an Indianapolis 
     insurance tycoon who previously put millions into making 
     medical savings accounts and school vouchers part of the 
     national Republican agenda.
       Rooney told me that, through the Evergreen Freedom 
     Foundation in Seattle he is financing lawsuits by teachers 
     against the Washington Education Association for allegedly 
     violating a 1992 state initiative that is the model for the 
     Lott and Wilson proposals.
       The California initiative ``was going to stall out for lack 
     of money,'' Rooney told me, ``so I got involved,'' and became 
     chairman of a signature drive that seems likely to put the 
     issue on next June's ballot. But that is not the end of it, 
     Rooney said he and Grover Norquist, another conservative 
     activist, have enlisted Wilson to take the proposal to next 
     month's meeting of all Republican governors and urge them to 
     do the same thing in their states. A parallel bill has 
     attracted more than 160 co-sponsors in the House of 
     Representatives.
       Polls show the idea of letting union members control how 
     their dues are spent is popular with voters. As a device for 
     limiting labor's voice, it is devastatingly effective. ``It 
     has had a dramatic, negative impact on us,'' by drying up 
     funds and bringing on a lawsuit by the state attorney 
     general, Trevor Neilsen, spokesman for the Washington 
     teachers' union, told me. At the state employees' union, 
     officials have reported that authorizations for payroll 
     deductions for its political operations had been signed by 
     only 82 of its 2,500 members.
       In 1988, the Supreme Court ruled in Teamsters v. Beck that 
     workers in a unionized company must be allowed the option of 
     reclaiming the portion of their dues used for political 
     purposes. But the Beck decision has not been enforced. Most 
     employers are reluctant to risk union trouble by encouraging 
     dissidents. In 1992, President Bush, responding to 
     conservative pressure, issued an executive order requiring 
     government contractors to inform employees of their Beck case 
     rights. But President Clinton rescinded it on taking office, 
     as a boon to unions and because, a White House official said, 
     ``he thought it was one-sided.
       Sens. John McCain and Russ Feingold, sponsors of the main 
     Senate campaign finance bill, have included a codification of 
     the Beck  decision in their measure. But Lott and Wilson and 
     Rooney would go much further by requiring written permission 
     from workers each year for political use of their dues. 
     Feingold and other opponents say that is unfair, noting that 
     it would leave corporations free to continue making soft 
     money political contributions without permission of 
     stockholders who might hold opposing views. And the pending 
     initiatives do not affect hundreds of other mass-membership 
     organizations such as the National Rifle Association and the 
     American Association of Retired Persons, which are also hip-
     deep in politics.
       Whether this is a political masterstroke for Republicans 
     remains to be seen. In 1958, conservatives promoted right-to-
     work initiatives, barring union shop contracts, in six 
     states. They lost everywhere but in Kansas. In California and 
     Ohio, the two biggest targets, labor's mobilization fueled 
     Democratic victories that devastated the GOP.
       California unions are threatening to retaliate against the 
     Rooney-Wilson initiative by

[[Page S10391]]

     placing on the ballot a measure that would ``sunset'' every 
     existing corporate tax break not approved by two-thirds vote 
     of the people and redistribute the estimated $8 billion to 
     $12 billion a year of revenue in $1,000-a-person tax rebates.
       Conservatives may learn that if you play with fire, you can 
     be burned.

  Mr. FEINGOLD. Mr. President, the Senator from Kentucky is fond of 
quoting Mr. Broder, a leading columnist and expert on these kinds of 
issues in the country. But he lays out pretty clearly the fact that 
this is not simply another piece of legislation that happens to come up 
as the first and potentially only amendment on the campaign finance 
reform bill. He clearly lays out some of the political and other 
considerations that are involved in bringing up such a poison pill.
  Mr. President, I ask unanimous consent that an editorial dated 
October 1, 1997, from the New York Times entitled ``Trent Lott's Poison 
Pill,'' be printed in the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

                        Trent Lott's Poison Pill

       Trent Lott, as expected, has come up with a perverse 
     stratagem to kill campaign finance reform this year. The 
     Senate majority leader would add a provision to the McCain-
     Feingold bill requiring unions to get approval from workers 
     before using their dues or fees for political purposes. The 
     idea might deserve consideration another day, but Mr. Lott's 
     purpose today is to scuttle the bill by making it 
     unacceptable to Democrats.
       After months of disclosures about excesses in both parties, 
     all 45 Senate Democrats have joined 4 Republicans to support 
     the McCain-Feingold legislation, which would prohibit 
     unlimited donations to the parties by wealthy individuals, 
     labor unions and corporations. These contributions were at 
     the heart of the access-buying scandals of the Clinton 
     campaign, and they figure in the influence of money from 
     tobacco and other industries on Capitol Hill. Mr. Lott knows 
     there are nearly enough senators to approve the bill, so he 
     wants a poison pill to repel Democrats and shatter its 
     bipartisan support.
       Only one additional Republican would be needed to join 
     other Republican backers of reform to block Mr. Lott's plan. 
     But it will not be easy for Republicans to resist his 
     seductive amendment. Even two reformers, Senators John McCain 
     of Arizona and Susan Collins of Maine, support the principle 
     behind the amendment, though they have said they oppose the 
     amendment itself as a threat to reform at this crucial point. 
     Many other Republicans would like to vote for something that 
     would punish labor for its recent campaign spending, 
     particularly the $35 million that paid for attack ads 
     directed at Republican candidates in 30 Congressional races 
     last year.
       The McCain-Feingold bill would codify a nine-year-old 
     ruling of the Supreme Court holding that non-union members 
     who pay union dues or fees as a condition of employment are 
     entitled to demand that the fees not be used for political 
     purposes. If Republicans want to vote on a broader provision 
     giving that right to all union members, they should accept 
     the Democratic offer to consider it on another day without 
     the threat of a filibuster. It would only be fair to consider 
     a similar curb requiring corporations, which outspent unions 
     nearly 9 to 1 on politics last year, to get approval from 
     shareholders when making political expenditures.
       If the four Republican supporters of McCain-Feingold stand 
     firm, only one other Republican will be needed to defeat Mr. 
     Lott's disingenuous amendment. Senator Alfonse D'Amato of New 
     York, no particular champion of campaign reform in the past, 
     is in for a tough re-election fight next year and has always 
     had the backing of at least some labor unions. Senator Jim 
     Jeffords of Vermont, a long-time champion of campaign reform 
     should see the wisdom of standing up now. Senator Olympia 
     Snowe of Maine, where campaign finance reform has been 
     approved locally, can join with Senator Collins to save the 
     reform legislation.
       Other senators who have shown independence on this issue in 
     the past, like John Chafee of Rhode Island, should also come 
     to the rescue. Down the road, still more Republicans will be 
     needed to save the bill, because it will take 60 votes to 
     thwart a promised filibuster. For now, they should realize 
     that if they let Mr. Lott kill the bill by subterfuge, their 
     criticism of Democratic excesses will be mere opportunism and 
     hollow rhetoric.

  Mr. FEINGOLD. Mr. President, this again is another editorial 
indicating that people around this country know very well that what is 
going on here is not an opportunity to freely and fully debate and 
amend this bill but an attempt to narrow it down to one issue--and I am 
not saying it is not an important issue--but to narrow this whole issue 
down to one issue having to do with union dues, which could be easily 
resolved.
  If everybody took a look at the McCain-Feingold provision, a 
provision that codified the Beck decision, a provision we placed in the 
bill after much negotiation, it says if you are a nonunion member and 
you do not want your dues to go to a political campaign, we can refund 
that. We codified what the Supreme Court said in that.
  Our concern is that the majority leader's amendment goes well beyond 
that, knowing full well it would make it impossible for a real 
bipartisan bill to come out of this body.
  Mr. President, if this were a proposal offered by a Democrat, and it 
had as its central premise the idea that the Federal Government should 
be regulating the internal functions of a voluntary organization, such 
as the Christian Coalition or the National Rifle Association, you can 
bet those on the other side would be beside themselves.
  Mr. President, that is what a labor union is. In fact, if you read 
the Beck decision, as I did again today just to be sure, that whole 
decision is about the fact that the Taft-Hartley Act said they were not 
going to permit any more closed shops in America. So if you do not want 
to be a member of a union, you do not have to be but there would still 
be union shops. And that is because under that legislation, under that 
law, a union is a voluntary organization.
  If members of a labor union do not approve of the collective 
bargaining activities or the political activities or any other 
activities of the union, they have the right to use the democratic 
process to change those activities. They can run for office within the 
union. They can build coalitions and seek leadership posts. And of 
course, Mr. President--and this is a point that has been glossed over 
far too often in debate--if the individual wants absolutely nothing to 
do with the union, he or she has the option of quitting or not joining 
the union in the first place.
  Union membership is not mandatory. It is voluntary. But as the 
Democratic leader has pointed out, this provision, this amendment is 
not about reform. I am afraid it is a little more about the last 
election.
  The sponsors of this proposal have come to the conclusion that all of 
the problems in our campaign system can be traced to the political 
activities of just labor unions. Who believes that? Clearly, labor 
unions are participants, but they are only one kind of participant and 
by no means the greatest participant when it comes to the kind of money 
that has been spent in recent elections.
  The Senator from Arizona and I have come to a different conclusion. I 
know the Senator from Arizona believes passionately that the spending 
by organized labor has to be controlled with regard to elections, but 
he and I have come to the conclusion that to simply say that unions 
alone are the problem does not really measure the problem.
  We have concluded we should craft a reform proposal that affects both 
parties--that affects both parties--in a fair and equal manner. We have 
concluded that corporate America is just as much to blame for our 
campaign system as labor unions or anyone else. That is the point here. 
There is plenty of blame to go around for everybody. Democrats are 
responsible, Republicans are responsible, corporations are responsible, 
labor unions are responsible, groups that are trying to divide us in 
this country are responsible. Everybody can and should accept part of 
the blame for this disastrous system.
  What we are trying to do, what the Senator from Arizona and I are 
trying to do, is to get this nonsense to come to an end. Instead, we 
are being told by the supporters of the Lott amendment, apparently that 
when the Ford Motor Co. takes the money of its shareholders and makes a 
$500,000 soft money contribution to a political party, that is 
perfectly fine; but if the United Auto Workers makes a similar soft 
money contribution to a political party, that is not OK. That has to be 
what the authors of this amendment are suggesting because they are not 
suggesting that we treat them in the same way.
  Of course, the other problem with the amendment is that it appears to 
be offered under the mistaken assumption that the underlying McCain-
Feingold proposal would have no impact on labor unions. Mr. President, 
that is just false. The Senator from Arizona and I have worked hard to 
make sure that in a fair manner the activities of unions and other 
organizations that

[[Page S10392]]

seem to distort the political process are affected.
  First of all, the bill bans all union and corporate soft money 
contributions to the parties. We ban it across the board. That includes 
all union soft money. But it also includes if it is done by the Ford 
Motor Co. In short, Mr. President, under McCain-Feingold it will be 
illegal--illegal--for a labor union to use the dues of its members or 
nonmembers--members or nonmembers--to make a soft money contribution to 
political parties.
  So what is the problem if the dues can't be used for soft money, I 
say to my colleagues, whether union member or nonunion member? Where is 
the evil that we are not correcting?
  Second, the McCain-Feingold bill provides that no organization, 
whether it is a labor union, a corporation or any other organization, 
can use unregulated soft money to fund those phony attack ads against 
candidates that are disguised as so-called issue ads. That is because 
of our concern that if we only ban soft money, all the money will flow 
into phony issue ads and you will end up with the same situation. That 
is a very significant restriction on the way in which unions 
participated in the last election, probably even more significant in 
terms of dollars than the soft money restrictions.
  Again, it would be illegal, Mr. President, illegal under McCain-
Feingold for a union to use the dues of its members or nonmembers, 
either one, to run those political ads attacking or supporting 
candidates that are not raised using hard money and properly disclosed 
during the 60-day period.
  Mr. President, the third provision in this bill is one that is 
actually aimed only at labor unions. The other two really take care of 
the problem. The issue of phony issue ads and soft money are the big-
ticket items with regard to union or corporate spending, but the third 
provision is aimed directly only at labor unions. Mr. President, it 
does exactly what the folks on the other side of the aisle have been 
calling for for years. It codifies the decision of the U.S. Supreme 
Court in the Beck decision.
  This provision requires unions to notify nonunion members that those 
individuals are entitled to have their agency fees reduced by the 
amount the union spends on political activities. Mr. President, as you 
can see, the unions have every right to participate in our political 
system, and are taking a number of hits already under this bill. Our 
point is they should not be singled out as the only ones to be limited 
in this regard. Unfortunately, that is not enough for the sponsors of 
this proposal. I fear they want to cut unions out of our political 
process completely.
  Some Senators have said they do not believe anyone in America should 
have to contribute involuntarily, Mr. President, to any political 
campaign. But what would happen if you applied that principle to 
corporations and other organizations, as well? Say I am living in Eau 
Claire, WI, and I own several shares of stock in AT&T. I assume that 
money I have invested in that corporation was being used to grow that 
company and improve its market share. That is what I would hope the 
company would do to protect my dollar, to do their fiduciary duty to 
their stockholders. Would I be surprised to learn my money is being 
used to finance a $500,000 soft money contribution to a national 
political party? Sure I would. Would I be informed of 
that contribution? Would AT&T have to get my permission before they use 
my money for that purpose under the Lott amendment? Absolutely not. 
Unions have to do it but AT&T doesn't have to do it. So much for 
fairness under this amendment.

  Another telling indicator of the true purpose of this proposal, I am 
afraid, is the timing. If these union activities are such an affront to 
our democratic system, I want to repeat, why wasn't S. 9, a bill 
introduced on the first week of our Congress, brought to the floor 
before this point? The senior Senator from Oklahoma introduced this 
bill on this matter on the very first day of the session back in 
January. It was one of the highest priorities of the Republican 
leadership. Why hasn't it been marked up, even in committee? The answer 
is clear. It is serving a different function. Its function here is to 
fill up the tree, as we say, and prevent other amendments and perhaps 
to kill the bill. Mr. President, I am afraid this is not about the role 
of labor unions. It is too much about partisanship.
  The majority leader stated a week ago Friday his intention was to 
create a situation where the Democrats would be forced to filibuster 
campaign finance reform. Those on the other side know that the passage 
of this amendment will trigger such opposition. I am disappointed that 
some have concluded that the purpose of this debate should be to see 
which party can get the other one to kill campaign finance reform. The 
Senator from Arizona and I have been working hard on ensuring that this 
proposal is fair to both parties. We have made compromises. We have 
attempted to craft a bill that would give both parties credit, 
together, for passing campaign finance reform.
  Make no mistake, whether it was truly intended to do this or not, the 
proposal before the Senate today in the form of the Lott amendment 
would kill campaign finance reform. The vote on this proposal would be 
the vote to determine if we pass meaningful campaign finance reform 
this year or not. We know the vote will be close. We know it will come 
down to one or two Senators. So I hope, regardless of every Senator's 
personal feelings about how much we should do with regard to unions 
specifically, my colleagues will recognize this is not a vote about 
restricting labor unions but a vote to kill campaign finance reform.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. SMITH of Oregon. Mr. President, I rise today in support of the 
Lott amendment and in opposition to the McCain-Feingold bill. It is not 
without some reservation that I take that position. I have the greatest 
esteem and respect for the Senator from Wisconsin and the Senator from 
Arizona. I know their motives in all of this are good and honorable.
  I just happen to come from a State, however, where we enacted a bill 
not dissimilar--not identical, but not dissimilar--to the McCain-
Feingold bill. My State legislative process went through an entire 
cycle with Byzantine kinds of rules applied before our State supreme 
court, a very liberal supreme court, threw it all out as 
unconstitutional, as violating the right of freedom of speech.
  Now, Oregon is a State that is known for good clean government, good 
clean many things. We have in our State no allegations of corruption, 
or frankly they are very infrequent. We have voter turnout that often 
exceeds 80 percent. We have a very healthy democratic system in my 
State.
  Notwithstanding that, in 1994 there was an initiative that came to 
our ballot, very similar to McCain-Feingold, that applied to State 
legislative and gubernatorial races. I will admit that it passed by a 
large margin. I said to myself, why would it pass by a big margin if we 
have a good thing going here, frankly, good government in our State? I 
think it is simply because people don't like to be inconvenienced by 
democracy sometimes, and I know how they feel. I don't like to see 
negative ads and I don't like to be imposed upon sometimes, but 
frankly, democracy sometimes is uncomfortable. It is sometimes messy.
  On first blush it appeared to be a very good bill. However, when it 
came to its enactment, our secretary of state tried to explain it to 
all the legislative candidates. Everyone was wondering how you can run 
for public office. There were limits placed upon what a candidate could 
raise. There were limits placed upon what a citizen could contribute of 
$100. And the net effect of it all is that a State legislative office 
seeker could raise about $20,000 to $30,000, and that would buy maybe a 
couple cracks at communicating with his constituents.
  The interest in the process didn't leave. It just simply vacated the 
open air of democracy and went back into the smoke-filled room. I am 
talking about organized labor and I am talking about big business. 
They, then, ran campaigns about candidates in the most slanderous and 
scurrilous of ways. For those campaigns, no one was accountable, no one 
was responsible. And in the end, I believe our democracy in the 98th 
cycle was dumbed down and disserved. Importantly, our

[[Page S10393]]

Supreme Court, as I mentioned, declared it all unconstitutional. They 
did so correctly.
  Now, when I ran for the U.S. Senate I ran in a special election 
against my friend, now my colleague, my former competitor, Ron Wyden, a 
Member of this Chamber. He and I became the focus of the entire country 
in contesting for the seat formally held by Bob Packwood. Let me tell 
you what happened. Both of us were running hard-hitting campaigns. Then 
we became the victims, and I believe myself especially, by what I term 
``drive-by shooting'' on our democratic process. I had, in the course 
of several weeks time, $1 million of the most scurrilous kinds of ads 
run against me and I hated what they said.
  I remember my little boy sitting watching television when I happened 
to be there and seeing one of the ads that they ran, and he turned back 
to me with wide eyes and tears in his eyes and he said, ``That was a 
very bad ad, Dad,'' and it was.
  You might think because of that I would want to shut down the ability 
of the unions to participate I don't want to do that, but I don't want 
to shut down the right of people like me and you to respond to these 
kinds of attacks. That is what these kinds of limits will do.
  I truly believe that banning soft money is unconstitutional for many 
of the same reasons our State supreme court found it unconstitutional. 
I believe the U.S. Supreme Court would find such attempts here to be 
unconstitutional. Limit it--you may be able to do. But if you limit it, 
and I may even be able to vote for some form of limitation as we apply 
limits on contributions directly to candidates, perhaps there can be 
some constitutional limit on soft money. But if you do that, then there 
should be no more compulsory element left in this process.
  Frankly, the huge loophole is this loophole provided by compulsory 
union dues. Unless the Lott amendment passes, I can't go any farther, 
because I saw what happened. It happened to me, and it happened to 
Republicans and Democrats alike in the State of Oregon. They had 
campaigns run about them and they were grossly unfair. I don't want to 
support campaign finance reform that will dumb down our democracy in 
that way. Indeed, I believe some of the best things that we could do 
are to require voluntarism in this process and then to put some 
reasonable spending limits or caps on soft money contributions and then 
to require candidates to disclose on a daily basis the source of their 
contributions 3 months out from a campaign so that the public knows if 
one candidate is getting too much from business or another candidate is 
getting too much from labor. Then they can decide whether that is 
significant to them when they cast their sacred vote.
  In my view, the cure for bad democracy is not less of it but more of 
it and more open. I don't see that we provide for that in the McCain-
Feingold bill. I see many things resulting, as they did in Oregon, 
which left my State in one election cycle, I believe, poorer for it.
  So I plead with my colleague, vote for the Lott amendment, and then 
let's talk seriously about some things that we can do to make this 
whole process fair for both sides.
  I yield the floor.
  Mr. BRYAN. Mr. President, I rise today in strong support of the 
bipartisan campaign finance reform legislation offered by my 
colleagues, Senator Feingold and Senator McCain. I am pleased to join 
with all 44 of my Democratic colleagues, as well as Senators McCain, 
Thompson, Collins, and Specter. I hope during the course of this debate 
others will join us in this first step in campaign finance reform that 
we so desperately need.
  Campaign finance reform is an issue that deserves our full 
consideration and one that must be voted on this year, whatever time it 
takes. Mr. President, I would like to, at the outset, commend Senators 
Feingold and McCain for their thoughtful and careful bipartisan 
approach in crafting a piece of campaign finance reform that, although 
I believe it to be modest--more modest than I would have preferred--
nevertheless marks a beginning.
  The integrity of our political system is threatened by the tremendous 
amounts of money required to run for public office. The Members in this 
Chamber know it, political scholars know it, and the American people 
know it.
  Mr. President, I first sought elective public office in 1968 as a 
candidate for my State legislature. Then and now, some money was 
required in order to put together a campaign, to prepare the necessary 
kinds of materials, and to make sure the constituents that one sought 
to persuade knew what your message was. Over the intervening years, I 
have had occasion to run for State elective office on four different 
occasions and have had an opportunity to run for the U.S. Senate twice 
now. There is no question, from any perspective, any point of view, 
that the amount of money that is involved today in the American 
political system far exceeds, by any measure, any growth that may be 
attributed to inflation or any other reasonable consequence, including 
the growth of the population in my own State and generally across the 
country.
  There has been, during that intervening nearly 30 years since the 
time I have been involved in the elective political system, a marked 
decline in voter participation in this system. This is an alarming 
trend. It does not bode well for Democrats or Republicans or 
Independents, nor does it bode well for the future of democratic 
institutions.
  Mr. President, I believe that there is an absolute correlation 
between declining voter interest and the ever larger sums of money 
being raised to fuel the money chase. Nearly $2.7 billion was spent on 
campaigns in the last election cycle. Every year the expense of 
campaigning climbs higher and higher, and the pressure to seek 
financial support for those who seek public office intensifies 
accordingly.
  I know that some contend there is not enough money being spent in the 
American political system. I respectfully disagree with that opinion, 
and I believe that the great majority of the American public disagrees 
as well.
  A full 92 percent of Americans believe that too much money is spent 
on campaigns. The Wall Street Journal poll of December of last year 
reflects that number. Indeed, money has become a dominant factor in 
American politics as to who runs and who wins. As a consequence, our 
political system is on a downward spiral that will continue to spin out 
of control unless we have the courage to take the steps necessary to 
stop it. There is a sense of irony, Mr. President, that the institution 
that benefits the most from the current system is the only one that can 
reform it. But we must put the interest of country ahead of our own 
political success and ahead of party interests.
  The revised McCain-Feingold bill is, as I have said, a very modest 
proposal; nevertheless, it is a first step in reforming a campaign 
financing system that cries out for change. It just might begin to 
restore the people's trust in the ability of their elected officials to 
stop the hemorrhaging of the political system and to allow the healing 
process to begin. As I said, I would have preferred a more 
comprehensive approach, but that is not to be. However, this is an 
effort which may have a chance to attract more support and thus has a 
chance of becoming law. Senators Feingold and McCain have carefully 
reshaped their original bill as a compromise with the hope of 
attracting additional Republican votes, which will be needed for its 
passage.
  First, the McCain-Feingold legislation bans the use of so-called soft 
money by the national political parties from corporations, labor 
unions, and wealthy individuals. State parties would be banned from 
spending soft money on activities related to Federal elections.
  The creative expanded uses by both political parties of soft money 
has significantly increased the demand for campaign contributions. This 
past 1996 election year was the costliest ever in our Nation's history. 
Both parties raised overall $881 million for the election--a 73 percent 
increase over the amount of the preceding 4 years when the parties 
raised $508 million. In soft money alone, Democrat and Republican 
parties raised $263.5 million. That is nearly three times the amount 
that was raised in the preceding 4-year cycle. From 1988 to 1996, the 
amount of soft money raised by the parties has increased by nearly 600 
percent.

  What needs to be done? The American people have been asked what they

[[Page S10394]]

think needs to be done to reform the political process in this country. 
From the NBC/Wall Street Journal survey of June 1997 when that question 
was propounded, the American public is not confused. Perhaps some 
Members of Congress are confused, but the American public is not 
confused.

       Reduce the amount that candidates can accept from political 
     action committees, impose overall spending limits on 
     campaigns, eliminate large contributions to political 
     parties, and provide some financial incentives to candidates.

  Sixty-two percent of the American people believe that is what ought 
to be done.
  Among the other options that were discussed were:

       Remove all limits on contributions so people can give as 
     much money as they want, but require more timely disclosure 
     of these donations.

  Some of our colleagues believe that we ought to be spending more 
money in running for public office. The American public disagrees 
overwhelmingly. Only 18 percent favor the removal of limits on 
contributions.

       Leave the current campaign financing system intact.

  Only 14 percent favor that course of action.
  Now, I understand that the debate and the argument is that campaign 
spending is a form of free speech and therefore cannot be regulated in 
any form. The American people, when asked that question, conclude 
that--18 percent of them--as a form of free speech, that cannot be 
regulated; and 74 percent believe campaign spending has nothing to do 
with free speech and that spending limits should be imposed. That data 
is also from the previously cited 1997 NBC News/Wall Street Journal 
survey.
  Mr. President, I understand, having had occasion to practice law and 
having served as the attorney general of my State, that the 
constitutionality of an issue cannot be determined simply by a majority 
of public opinion at any one time. I certainly do not argue that to be 
the case because constitutional principles rise to a higher level than 
what a majority at any given point in time might favor. Nevertheless, 
during the course of debate on this and other legislation, critics of 
proposed legislation frequently invoke the contention that the 
legislation as drafted is unconstitutional. That debate has occurred in 
the context of this bill. The able and distinguished Senator from 
Kentucky has cited a number of constitutional scholars who weighed in 
in favor of the proposition that this legislation, in its attempt to 
limit soft money and other restrictions, is unconstitutional. On the 
other side of the constitutional divide, an equal body of distinguished 
scholars have weighed in on behalf of the proposition advocated by 
Senators Feingold and McCain and have asserted that these provisions 
are indeed constitutional.
  My point in mentioning this is that we in this Chamber are not going 
to be able to decide that issue. We will not be able to resolve it. 
That is not our function. The function of the legislative branch of the 
two Houses of Congress is to enact legislation and, indeed, if the 
legislation that we have enacted is in any way constitutionally flawed, 
the courts--ultimately the Supreme Court of the United States--will 
make that decision, and the courts have done so when they believe that 
we have overstepped the constitutional limits in imposing restrictions 
on our campaign financing system.
  Mr. President, we ought to allow the courts to make that 
determination and to move this legislation forward so that those who 
seek to challenge it have an opportunity to do so in the only 
meaningful forum in which this issue can be resolved on a 
constitutional basis, and that is in the judicial arena.
  Mr. President, unless we have the good sense to change the rules of 
the game, candidates and their political parties will continue to 
pursue the money chase and the amount of money involved in future 
campaigns will continue to grow rapidly. I frequently tell the 
constituents in my own State that this fatally flawed campaign system 
that is involved has locked good people into a bad system in which, 
almost from the moment of our election, it is impressed upon us that 
the next campaign, if we choose to run for reelection, will be more 
costly than the previous one, and our focus almost immediately is upon 
how much money will I have to raise each week that I serve, each month 
that I serve, if I choose to seek reelection.
  The amount of money has increased, as I have indicated, not just 
arithmetically based upon factors of inflation and the growth that is 
occurring in the populations of our respective States, but they have 
grown exponentially, and it might constitute the gravest threat to the 
integrity of the political system in America.
  This bill proposed by Senators McCain and Feingold would do several 
things. In addition to the ban on soft money, the bill places a 
restriction on issue ads by independent special interests. If a Federal 
candidate's name is mentioned in any broadcast television or radio 
communication within 60 days of an election, for example, then this 
candidate-related expenditure will be subject to Federal election law 
and must be disclosed and financed with so-called hard dollars.

  The Supreme Court has ruled that only communications that contain 
express advocacy of candidates are subject to Federal disclosure 
requirements and restrictions. This proposal would extend to include 
issue ads running 60 days prior to the election in which the individual 
candidate's name is mentioned in those ads.
  Third, the legislation increases disclosure requirements and requires 
the Federal Election Commission to make campaign finance records 
available on the Internet within 24 hours of their filing. It requires 
political ads to carry a disclaimer identifying who is responsible for 
the content of the ad. Simply put, disclosure requirements would bring 
more accountability and responsibility to our political process.
  Fourth, the bill prohibits political parties from making coordinated 
expenditures on behalf of Senate candidates who do not agree to limit 
their personal spending to $50,000 per election. This provision, in my 
opinion, will help to level the playing field between wealthy 
candidates and those candidates who do not have deep financial pockets.
  Fifth, this bipartisan legislation prohibits anyone who is not a U.S. 
citizen from making financial contributions.
  Finally, and what has become a central focus of this issue in recent 
days, McCain-Feingold requires that labor unions notify nonunion 
members that they are entitled to have their agency fees reduced by an 
amount equal to the portion of the fees used for political purposes if 
they file an objection to the use of those fees--a so called opt-out 
system in which the member can notify the union that he or she does not 
want any union dues used to finance any part of the political campaign 
contribution system. Fair enough, it seems.
  The Supreme Court's 1988 Beck decision explicitly states that 
nonunion members in union shops may choose to pay reduced agency fees, 
and the McCain-Feingold bill simply codifies the Beck decision.
  (Ms. COLLINS assumed the chair.)
  Mr. BRYAN. Madam President, we hear that opponents of McCain-Feingold 
have argued for the need to codify the Beck decision. Senators Feingold 
and McCain have done just that by including a provision that expressly 
codifies the Supreme Court decision.
  Now, however, there is an effort to seek a new amendment, a new 
provision. The pending amendment is clever. It indeed may rise to the 
level of being ingenious. But its sole purpose and function is to kill 
the cause of campaign finance reform. The majority leader himself was 
quoted in the Wall Street Journal in September this past month as 
saying:

       I set it up [referring to the amendment] so they will be 
     filibustering me.

  This is a political tactic that is designed to thwart, to prevent 
campaign finance reform. It clearly indicates that this is not a 
serious debate about reforming our campaign laws.

  Perhaps the Washington Post editorial of October 1, 1997, sets the 
record in the proper context. And I quote:

       Senate Majority Leader Trent Lott, having magnanimously 
     allowed campaign finance reform legislation to come to the 
     floor, now proposes to kill it with an amendment affecting 
     the use of labor union dues for political purposes.

  I regret that the amendment in that form was offered. I hope that 
some

[[Page S10395]]

mechanism might be developed to permit us to pursue campaign finance 
reform and offer other amendments without this particular provision 
which has been variously characterized as a ``killer'' amendment or a 
``poison pill'' amendment because I believe that its purpose is to 
effectively prevent campaign finance reform.
  Mark Twain once observed that ``Everyone complains about the weather, 
but nobody does anything about it.'' The same could be said about the 
way we finance our campaigns for elective office.
  If there ever was a time to reform our political system, the time is 
now. Neither political party has benefited in terms of public opinion 
from our present campaign finance system. Overwhelmingly, 92 percent of 
the American people believe that our system desperately needs reform 
and the time for us to do it is now. If we let this opportunity slip 
away, I fear that real campaign finance reform may not be enacted.
  We need to ban soft money, and to stop the onslaught of negative ad 
attacks on political candidates.
  We need to level the playing field, and give challengers who want to 
run for Congress and to prove that their ideas have merit and represent 
a broad base of public support the opportunity to do so.
  Madam President, we need to restore public confidence in the American 
political system. And I believe that the McCain-Feingold revised 
measure represents our best hope for making these significant and 
needed changes prior to the next election.
  I yield the floor.
  Mr. HAGEL addressed the Chair.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. Madam President, I am very pleased that the Senate has 
finally taken up the discussion of the McCain-Feingold campaign reform 
legislation.
  I very much appreciate the efforts of Senator Daschle in pushing this 
process forward. His role in demonstrating that all 45 Senate Democrats 
support the revised version of McCain-Feingold I think was essential. 
And I hope that it becomes clear to all Americans that with the one 
additional Republican vote necessary that we will in fact achieve 
historic reform of the campaign funding system in our Nation.
  But I also want to applaud Senators McCain and Feingold for what has 
been a tireless effort on their behalf in forging this bipartisan 
compromise legislation. We have seen many good bills fall by the 
wayside over the years. But this seems to be one of the best 
opportunities in recent years to actually achieve real reform.
  That said, I have to express disappointment on my part that this 
legislation has been stripped down to a more modest level from its 
original version. In particular, I am disappointed that the system no 
longer creates a system of voluntary spending limits in the way that 
the original bill did. I believe that kind of limitation, that kind of 
restraint that will slow the nuclear arms race of campaign fundraising 
and spending in the long run, will in fact be essential.
  Madam President, I have been a long-time supporter of campaign reform 
legislation. My experiences over these past 2 years have made it even 
more apparent to me that passage of this campaign finance reform 
legislation is absolutely critical to the health of our democracy.
  There are those who would suggest that any restraint on spending of 
any kind is somehow a dumbing down of our democracy when in fact the 
reality is just the opposite. The quality of our democracy, the 
integrity of our democracy, is not a function of how much money we 
spend. It is a function of how well the debate is conducted.
  There are those who have legitimate philosophical problems. There are 
those who simply see the status quo as being supportive of their own 
current election to the body, and to the House of Representatives. But 
I think that there are a great many of us here--and I believe a 
majority, if the opportunity were afforded to us to actually cast a 
vote on the merits of campaign finance reform--who would actually 
support this sweeping legislation.
  I personally have just been through one of the longest and, frankly, 
one of the most expensive per voter Senate campaigns in the history of 
America. My opponent and I spent a total of $24 for every vote cast. 
And, if one were to include the money spent by the national party 
organizations and the various independent groups, total spending would 
rise to around $29 per vote. All of this money produced one of the 
longest political campaigns the Nation has ever seen. My opponent began 
running campaign commercials 17 months from the election, then 13 
months before the election--an attack ad campaign, one that I had to 
respond to, although I was not yet even formally an announced candidate 
in the race.

  That is the kind of campaign negative--vitriolic, long-winded, 
longstanding--that did nothing to improve the confidence of the 
American public in our political process, and did nothing to restore 
confidence that in fact the system reflects their values and their 
ideals and their values. It was simply a system awash in too much 
money.
  Put in perspective, in South Dakota, our small State, with statewide 
television advertising relatively inexpensive, for a race like this, if 
one were run in a State like California at $29 per vote cast, the cost 
would be staggering. The equivalent cost in the State of California 
would be a $250 million Senate campaign.
  Some argue that the money is good for democracy, that the voters will 
be more educated by this kind of enormous financial overkill.
  Last week, the Washington Post quoted the House Speaker saying that 
``If you have enough resources on both sides, you can actually 
communicate rationally.'' In his view, the more money spent by 
candidates the better.
  But I can tell you with utmost certainty, given my own experience, 
that these arguments are utterly wrong. Voters in fact over recent 
years have been turned off by campaigns of this duration and of this 
negative quality because of unending commercials.
  As I speak to South Dakotans in every corner of my State, there is a 
fervent wish that we could return to the days when campaigning began 
with great seriousness around Labor Day of the election year--not Labor 
Day of the year prior.
  The appearance of this amount of money, the appearance of the raising 
of this amount of money, is one that gives rise to attitudes that the 
entire system is corrupt, the entire system is unresponsive, and the 
American public, that there is too much time spent raising the money.
  Madam President, how long is it going to be that Members of this body 
and Members of the other body vacate their offices daily to go to their 
private campaign offices in the row houses and the streets off the Hill 
to make their fundraising phone calls, to do this ``dialing for 
dollars,'' as it is referred to around here, trying to raise the amount 
of money necessary to run one of these campaigns?
  The typical U.S. Senate campaign, if it were raised in an equal level 
of energy throughout the 6-year term, would require the incumbent to 
raise $14,000 a week, every week, 52 weeks a year, for 6 years. Madam 
President, that is not the kind of money that can be raised casually. 
That is not the kind of money that can be raised with a barbecue in 
your backyard back home in South Dakota, or whatever State you are in. 
That is not the kind of money that can be raised in small increments. 
That requires a concerted, sophisticated, methodical effort. And it is 
corrupt and demeaning to the service in this body. And it is destroying 
the public's confidence in the quality of the deliberations that take 
place here, and in the kind of accountability that this body has.
  As the amount of money rises, what we have seen last year in the last 
cycle becomes only more so in the future. The amount of money to raise 
to win a congressional seat has continued to rise astronomically. 
According to the Federal Election Commission, the typical candidate for 
an open seat in the House of Representatives raised nearly $600,000--
close to double what was required only 4 years ago. The growth in so-
called soft money has been even more explosive. Data from the 1996 
elections show that the amount of soft money that was raised and spent 
was more than three times what was spent in 1992, and 11 times more 
than was spent in 1980.
  It should be so fundamentally absolutely clear that something is 
wrong--

[[Page S10396]]

something is terribly wrong with our system of financing elections in 
this country.
  Campaigns have become in many ways little more than a campaign 
finance arms race. And the American public has understandably become 
disenchanted with politics in large part because of this process.
  There are people who suggested that all we need to do is to ban soft 
money raised by the political parties. Again, a mistake. Banning soft 
money without addressing the expanding role of independent groups and 
political campaigns would not go far enough, and it could create a 
whole new set of problems. We need to redefine the term ``soft money'' 
to include all forms of campaign spending that is presently 
unregulated.
  During the 1996 election cycle when we experienced a flurry of 
campaign activity by independent organizations and congressional races, 
independent expenditures accounted for $19 million of spending--most of 
it targeted to key congressional races.
  An even more pressing problem is the new phenomenon of issue advocacy 
advertisements. Last year's Supreme Court decision in the Colorado case 
opened the floodgates for this kind kind of activity.

  According to a study by the Annenberg Center at the University of 
Pennsylvania, one-third of all campaign advertising totaling $150 
million came from these so-called issue ads. Just as influential as 
other ads, they are political ads. They are not subject to the same 
fundraising regulations as in reporting requirements. Nobody knows 
where the money comes from. They are utterly unregulated.
  The Annenberg study indicated that issue ads were the most virulently 
negative ads on the air. Overall, 81 percent of these ads were attack 
ads.
  We have also seen the last expansion in the political activity by 
tax-exempt organizations--organizations, in effect, using taxpayer 
dollars to further a very political agenda on the left and on the 
right. And 30 tax-exempt groups are not supposed to be engaged in 
partisan political activity. But the reality has become very apparent 
to everyone who has even had a casual following of what has transpired 
over these last 2 years. In particular, banning soft money to political 
parties without addressing the growing problem of third-party groups 
would merely cause more money to flow into these unregulated groups.
  One of my fears is, while we may limit spending that flows formally 
through the campaign structures of the respective candidates and their 
parties, that the money then as water flowing downhill washes 
increasingly into even more unregulated and less accountable mechanisms 
for running the campaigns, and the candidates will find themselves 
increasingly irrelevant to their own political campaigns, the political 
themes. And the political attacks and responses will be orchestrated 
and designed and organized by these so-called tax-exempt groups--groups 
that are, in fact, using taxpayer dollars in effect to run their 
partisan independent issue advocacy kinds of campaigns.
  That does a disservice to the political dialog in our Nation. That 
does a disservice to any hope that we have that political candidates 
will be accountable to the public for the positions they take. The 
American public deserves better than that, and that is why we need 
campaign finance reform and that is why we need a broadened sense of 
soft money regulation.
  It is not clear whether there are going to be any amendments allowed 
in the course of this debate. It is certainly my hope there will be. 
That is the nature of debate in this body. It is what we have done for 
200 years on issues of great public significance. And yet we find a 
parliamentary procedure being used that may, unfortunately, stop 
amendments, stop debate and cause this whole exercise to come tumbling 
down.
  But if we have an opportunity for a full, meaningful debate, 
involving amendments, if we are allowed to offer amendments, I have two 
I want to pursue. One is an amendment that would deal with the problem 
of candidates spending their campaign funds for personal use. This is 
something I think has become out of hand, as reimbursement payments to 
elected officials are not itemized and there are literally thousand-
dollar reimbursements coming back to candidates for their personal use.
  I think we need to clean this up. I think we need to take another 
step in the right direction to make the American public think that in 
fact this system is responsive to them, that campaign money is not some 
additional source of slush fund, not some additional source of personal 
financial wealth that is available to candidates.
  A recent study by the Gannett News Service last year showed that many 
candidates have reimbursed themselves thousands upon thousands of 
dollars from their campaign funds with virtually no explanation of 
where the money has gone, what it has been used to purchase. I believe 
the same itemization requirements ought to be applied to candidates as 
are applied to other areas.
  Second, I believe another matter in cleaning the system up and 
restoring a greater sense of integrity to the system is campaigns ought 
to pay the fair market value for use of private aircraft such as the 
corporate jets that transport Members from one corner of this continent 
to the other. Currently, candidates simply reimbursing the equivalent 
of first-class airfare, when in fact the cost of this transportation is 
often in the tens of thousands of dollars, and again going unrecorded, 
results in less accountability than I believe we should have.
  We have had a historic first session of the 105th Congress as we come 
down now to this final month in the sense I think we have dealt 
responsibly with the Federal budget, the Federal budget deficit, with 
the design of some tax relief, in placing I think a greater emphasis on 
education, preserving a commitment to the environment, doing I think 
some positive things. But this Congress cannot be deemed a success and 
history will treat this Congress poorly, in my view, if we miss this 
opportunity now to enact meaningful, significant campaign finance 
reform, reform that is supported by the nonpartisan reform 
organizations around the Nation, one that is not designed to tilt the 
playing field to one political party or the other because, frankly, in 
past years that has happened from time to time. We need to get away 
from that and, in fact, to pursue this kind of significant reform that 
has bipartisan support, that is supported on a very broad basis by the 
American public and to quit making excuses to the American public about 
why it could not get done, no more excuses about why the money will 
continue to mount, no more excuses why there will not be any greater 
accountability than in the past, about where the money is raised and 
how it is spent, no more excuses about why these campaigns are taking 
now years and years rather than months and months to transpire, no more 
excuses about where the money came from and who, in fact, has their 
interests best being considered by our legislative bodies in 
Washington.
  We have that opportunity now. We cannot allow this to escape from us. 
We have, today and tomorrow, an opportunity to cast a historic vote to 
get past some of the parliamentary abuses that are attempted to be used 
here, the poison pill parliamentary efforts, to get past that and to 
allow each one of us in this body to go home at the end of this session 
of the 105th Congress and to look our constituents in the eye and say, 
I voted for or I voted against campaign finance reform on the merits, 
up or down. Let us be permitted to cast that vote with the full breadth 
of debate. While I am worried that that may not in fact transpire today 
or tomorrow, during the remainder of this 105th Congress we have this 
great opportunity and it is certainly my hope we will not allow it to 
slip.
  I yield the floor.
  Mr. HAGEL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized.
  Mr. HAGEL. I thank the Chair.
  Madam President, much of the debate this past week about campaign 
finance reform has missed an important dynamic of the political 
process. The integrity of any process depends on the integrity of the 
individual. We recapture the trust and confidence of the American 
people not by passing more laws, more regulation and more Government 
but by taking responsibility for our own actions and the conduct for 
our own campaigns--personal responsibility. Will more Government 
control, more regulation, more law really

[[Page S10397]]

change our behavior and our conduct? Will more Government control make 
us more honest and fill us with new-found integrity? I do not think so.

  Systems are corrupt because of the people. Systems are not corrupt 
because of the system. When we lower our expectation and we lower our 
standards, as we have in American politics, we lower our self-worth. We 
lower the system. And when we do not expect much, we do not get much. 
When we do not expect much from our candidates and our politicians, we 
will not get much. It all becomes self-fulfilling.
  Now, why do we blame the system and excuse the violators? Where is 
the outrage over those who subvert the system and deliberately break 
the rules and the laws already in place? Where is the outrage over 
individuals who break the law and refuse to take responsibility for 
their own actions? Where are the voices demanding personal 
responsibility and personal accountability? Where are those voices? 
Those voices are now talking about the system.
  We glide over the alleged wrongdoing of individuals, saying, well, it 
doesn't count, it doesn't matter--like it is beyond our control. We say 
that it is the system; that is the problem. The system is flawed, not 
the individual but the system. We say that money is evil, money is the 
terrible evil in our system. We excuse the alleged wrongdoing and 
corruption by blaming the so-called vagaries of the campaign finance 
system and the laws.
  We dance on the pinhead of technicalities. What is allowed? What is 
not allowed? What is the correct shading of the law? Did the person 
really break the law? How must we change the rules and regulations so 
that this never happens again? All we need is more Government. 
Everybody knows that. If we have more rules, more regulation, more 
enforcement, more Government, then people will abide by the law.
  Something is greatly amiss when we are debating the technicalities of 
right and wrong. There are no technicalities between right and wrong. 
Right is right. Wrong is wrong. There are no shades of right or degrees 
of wrong. The difference between right and wrong is not subject to a 
controlling legal authority. It is a matter of honesty. It is a matter 
of simply just doing the right thing. Is that difficult to grasp? Is 
that so difficult to this body to grasp?
  We are here today debating whether or not to pass new laws based on 
the fact that some people broke the law, or at least allegedly broke 
the law. Those are laws that we already have. Those are regulations and 
rules on the books now. It is very clear. We already have laws 
prohibiting foreign contributions. We already have laws prohibiting the 
solicitation of campaign funds in a Government building. We already 
have laws that very clearly spell out the difference between so-called 
hard money and soft money.
  I ask my colleagues one question: How will changing the rules and the 
laws and the regulations change behavior of those already inclined to 
break them? It will not. No number of new laws and new regulations will 
change the basic integrity of the candidate. The integrity of the 
system depends on the integrity of the candidate. Each candidate must 
take personal responsibility for his or her own actions in the conduct 
of their campaigns. We need to focus on individual violations of 
current law. We need to focus on individual conduct and behavior, 
individual responsibility and accountability. If each of us in public 
office conducted our campaigns, every aspect of our campaigns in a 
manner that our constituents will be proud of, not necessarily always 
agreeing with our positions but be proud of how we conduct ourselves 
and our campaigns, then we would not be engaged in this campaign 
finance reform debate.
  People get involved and participate in a democracy because they 
believe in things. The idea that more people will participate in our 
political process if we pass more laws and regulations completely 
discounts the nature of free people. Politics is about people. Politics 
is not about Government. Politics is not about rules and regulations. 
Politics is about people. Politics is about people who believe in 
things. We will not restore the trust and confidence of the American 
people in elected officials and the political system by placing further 
restrictions, by placing further restrictions on the rights of 
Americans to participate in the political process.
  A former Governor of Deleware and former Member of Congress, Pete 
DuPont, made a very compelling argument in last week's Wall Street 
Journal when he wrote that limits in campaigns are akin to price 
controls in the economy. And he said, ``All of these ideas are bad 
economics, bad politics and, as 40 centuries have proved, very bad 
public policy.''
  The best way to correct the system is not to replace an old bad set 
of rules with a new bad set of rules. That is not reform. That is 
rearranging the restrictions. Too many people here in Washington 
confuse the two. The best thing to do would be to provide the American 
people complete and immediate disclosure of all contributions--complete 
and immediate disclosure of every dollar in the system. Hard money, 
soft money, independent expenditures, every single dollar that goes 
into the system must be disclosed immediately.

  The press already does a good job of telling the people who is giving 
money to whom, when the media knows, that is. I have every confidence 
that if we had full disclosure of every dollar, the press would inform 
the people as to who is giving and receiving these contributions. They 
will tell the people who is spending the money for or against 
candidates. They will let the people know where candidates are getting 
their campaign contributions. Let the press do the job and report all 
of these contributions.
  I trust the people. I trust the people of this country to be able to 
sort it out. If they have the information, if the people of this 
country have the information, they will make an informed decision. They 
will determine what is acceptable to them, not because some bureaucrat 
or Washington regulator tells them what is right or wrong but the 
people sort it out. Just give the people the information.
  As Governor DuPont wrote, ``A well-informed electorate will safeguard 
American campaigns far better than any appointed group of the best and 
brightest Washington regulators.''
  Another change we might look at is to again make political 
contributions tax deductible. We used to do that. We allow people to 
deduct contributions to charities. We allow union members to deduct 
their union dues, but if people want to participate in American 
democracy by giving money, it is not tax deductible. Is not our system 
of self-government just as important as a charity or a union?
  How will we restore the trust and confidence of the American people 
in their elected officials? By electing good people to office, by 
holding those who serve in public office accountable for their actions, 
and holding them to the highest standards. I consider serving in public 
office to be an honor and privilege. I know every one of my colleagues 
feels the same. This is not a right. This is not a right, to be in this 
body, to hold public office. It is not mine to hold onto by whatever 
means I can, no matter how questionable those means. It is a privilege 
bestowed on me by the people of my State. It is a privilege they also 
have the right to revoke. The people need to be our partners in the 
political process. We can create all the laws we want, but only the 
people--not the laws, not the regulators, not the regulations, not the 
system--but only the people can hold elected officials accountable for 
their actions. Only the people can, through their votes, determine when 
someone no longer deserves their trust and confidence.
  I believe that for far too long we have been creating a society less 
dependent on the voluntary rule of honesty and good behavior of the 
citizen than on the impressive mandates of Government. Government does 
not mold human behavior. Behavior comes from within. I cannot support 
any proposal that seeks to limit the ability of the people and 
institutions to express themselves and takes the power to shape our 
public policy debate away from the people and gives it to the 
Government. I cannot support such legislation. That is what McCain-
Feingold would do, in the name of reform.
  What are we really reforming, the right of people to participate in 
the political process? In a free democracy, taking away people's rights 
is not reform. In Buckley v. Valeo the Supreme Court ruled the debate 
about campaign finances is about the fundamental role of the people in 
our democratic society. The Court wrote:


[[Page S10398]]


       In the free society ordained by our Constitution, it is not 
     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.

  Madam President, the system has not failed us. Campaign dollars are 
not the problem. They may be the excuse--the system, dollars, may be 
the excuse for some. But our problems are with ourselves. What outrages 
the American people is the conduct of some politicians--and my good 
friend, Senator McCain, talked about this earlier this afternoon when 
he referenced in the poll the ``lying windbags,'' the lying windbags 
that many people think of as politicians, and I know that is true. But 
what really outrages the American people is the conduct of some 
politicians and their supporters who have corrupted the system by 
violating the integrity of the process for their own end.
  Our political leaders have, as one of their most sacred 
responsibilities, the responsibility to set the moral tone in America 
and give moral leadership. I do not mean religious leadership. I do not 
mean religious leadership. I mean moral leadership. Moral leadership 
goes well beyond the rule of law and regulation. Were the great leaders 
of our Nation great because of laws and regulations dictating their 
actions and behavior? No. Our great leaders were great because they had 
a moral compass and they shared that moral compass with our people and 
our Nation. And they relied upon that moral compass for governance. 
America deserves leaders who lead through the force of character and 
integrity, not through the force of regulation and law. Before we 
reform the campaign finance system, we should first look at how we 
might reform ourselves. We might look at how we might reform ourselves.
  Madam President, I would like to end my speech this afternoon with a 
quote from Thomas Jefferson, our third President, one of our Nation's 
strongest defenders of the rights of the American people. Thomas 
Jefferson said, many, many years ago:
       I know of no safe depository of the ultimate powers of 
     society but the people themselves; and if we think them not 
     enlightened enough to exercise their control with a wholesome 
     discretion, the remedy is surely not to take it from them, 
     but to inform their discretion by education.

  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. ASHCROFT. Madam President, as I mentioned when I was last on the 
floor, the campaign finance reform bill we are debating will not 
produce meaningful political reform. The McCain-Feingold proposal will 
not lead to reform because it leaves the single greatest obstacle to 
competitive elections untouched. In fact, it will strengthen the single 
greatest obstacle to competitive elections. That obstacle is the 
advantage of incumbency, which is now and always has been the single 
greatest perk in politics. An incumbent has access to the podium, 
access to the news media, and the ability to create name 
identification. Any time you limit political spending, any time you 
limit what the competitor can generate in terms of information, you 
strengthen the incumbent.
  I submit that Hershey doesn't need to advertise that it sells 
chocolate, but a new competitor does. And those who inhabit public 
office are well-known for the fact that they inhabit it. But new 
individuals need to have the ability to create that same awareness in 
the mind of the public.
  Campaign finance legislation that restricts core political speech 
strengthens incumbents by limiting the ability of challengers to 
increase their own name recognition and to highlight the incumbents' 
voting record on issues of concern to the voters.
  So, if you say you cannot spend much money against an incumbent, and 
your supporters can't talk about his or her voting record, then you 
can't match the incumbent's advantages of being on C-SPAN in the Senate 
Chamber, of moving through the news industry with press releases. If 
Senators want true political reform, the answer is to limit terms, not 
to limit speech. Let's limit politicians, not the citizens. We should 
be talking about limiting the tenure of people in public office, not 
the first amendment rights of the citizens of this country.
  To this end, this afternoon, I have filed an amendment to the pending 
campaign finance reform legislation that would authorize States to 
impose term limits on their Senators and Representatives. However, my 
amendment will not come up for debate or a vote if cloture is invoked 
on the McCain-Feingold bill. Accordingly, a vote for cloture on McCain-
Feingold is a vote against term limits.
  Let me just review for a second why term limits would provide the 
true reform. Incumbency is the real problem in our system. It is the 
single greatest perk. Committee assignments and the ability to control 
committees relates to incumbency, and committee assignments translate 
into big bucks. The value of incumbency is as strong or stronger, now 
that we have had modest reforms over the last several years, than it 
was before. As a matter of fact, when campaigning was wide open 100 
years ago the value of incumbency wasn't anything like what it is now.
  Madam President, 94 percent of all Members who seek reelection get 
reelected, and an individual challenging them, if limited in what he or 
she can spend, is at a disadvantage. Madam President, 94 percent is 19 
out of 20. That means that the only true elections are for open seats.
  Term limits are a tried and tested kind of reform: Forty one 
Governors, 20 State legislatures and the U.S. President have term 
limits. It is time that the Congress be term limited as well.
  Term limits mean no more politics as usual. As a matter of fact, 
studies done by research institutes indicate that we would have had the 
balanced budget amendment to the Constitution long ago if we had term 
limits, which would have brought new individuals to Washington who 
voted the way people do in their first two terms in office instead of 
voting the way they do after they have spent term after term after term 
here and begin to endorse the bureaucracy and to sanction it and to 
support it. I believe we should not limit the amount that citizens can 
spend on politics. We should limit the amount of time politicians can 
spend in Washington.

  I will ask that individuals vote against cloture on the McCain-
Feingold bill so we would have an opportunity to vote on term limits. A 
vote for cloture on McCain-Feingold will be a vote against term limits. 
A vote against cloture will at least provide us with the opportunity to 
bring forward amendments. Those amendments, including my term limits 
amendment, hold the promise of giving us a real opportunity to amend 
and to otherwise change the election procedures for the benefit of the 
people.
  The people deserve honest elections. They first deserve enforcement. 
So much of what is being talked about these days is the violation of 
laws in existence. We don't need to proliferate the laws in order to 
enforce them. But we do need to give opportunity to individuals who are 
not a part of the system now. That cannot be done by limiting what they 
can spend to get known or limiting what their supporters can spend to 
expose the record of those who are in office. But it can be given to 
them if we decide America has enough talent to allow it to circulate 
individuals through the Senate and the House, and by term limits, to 
say that no individual should be a lifetime occupant here, that we 
should give individuals an opportunity to seek election and that is the 
kind of campaign reform which will really benefit America.
  I yield the floor.
  Mr. BINGAMAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Madam President, is there any limitation on speaking at 
this point? What is the parliamentary situation?
  The PRESIDING OFFICER. There is none.
  Mr. BINGAMAN. Madam President, let me speak for a few minutes, then, 
on campaign finance reform. I would like to step back from the details 
of the debate. There has been some debate about limiting spending: 
Should we limit spending or not, should we ban soft money or not, 
should we regulate phony issue advocacy ads or not, should we provide 
more power to the Federal Election Commission or not--those are the 
kinds of questions we debate here. But I believe this entire discussion 
about campaign finance reform

[[Page S10399]]

is about one central question and that is what should determine the 
outcome of our Federal elections? Should we allow money to determine 
the outcome of our Federal elections? Or should we allow, or try to get 
to a situation, where a complete and a balanced discussion of the 
differences between the candidates determines the outcome of the 
election? Should we allow money or helpful information to change the 
minds of voters? And should we allow money or robust debate to 
determine who wins the race?
  This fundamental issue, which I think is at the center of campaign 
finance reform, has been obscured because opponents of campaign finance 
reform have been hiding behind what I believe are mistaken Supreme 
Court opinions that have tried to equate money and speech. They argue 
that money is speech, and, therefore, to limit money is to limit 
speech. They say that money is robust debate. They say money is helpful 
information for voters. And they even say that money is or constitutes 
a complete and a balanced discussion about the differences between 
candidates.
  In my view this argument is blatantly wrong. To any reasoned observer 
of our Federal campaigns, the argument obviously is without merit. Ask 
any challenger to an incumbent Senator if the millions of dollars that 
an incumbent is able to raise and spend in the race has meant more 
robust debate, more helpful information for the voters, more complete 
and valuable discussions about the difference between the candidate and 
the challenger?
  The challenger will laugh out loud at the question.
  My colleague said, to limit spending in campaigns is to assist 
incumbents because you have a lot of challengers out there who would 
like to be able to spend more than incumbents to challenge them and to 
get their message out and they are not able to do so. Madam President, 
that may be true for a very few rich individuals who have very 
substantial private wealth that they can put into races. But for an 
average candidate for public office in this country, your ability to 
raise large sums of money and compete in the media and buy the air time 
is directly dependent upon your incumbency. Accordingly, a challenger 
is at a very substantial disadvantage unless we somehow restrict or 
control the amount of money coming into this process.
  Ask any voter who has been deluged with negative TV ads, funded by 
swelling campaign war chests, whether those TV ads have produced a more 
robust debate and provided more helpful information to the voters, or a 
more complete and balanced discussion of the differences between the 
candidates? They would think that you were crazy to suggest that those 
30-second negative TV spots in fact improve their ability to make a 
reasoned judgment.
  No, the vast increases in money spent in political campaigns have not 
produced more robust debate, they have not produced more helpful 
information for voters, or more complete and balanced discussions about 
the differences between candidates. This increased amount of money has 
meant the very opposite. In fact, voters will tell you not only that 
money does not equal speech, but that excessive campaign money does 
equal the erosion and the undermining of our political system.
  To them, money means bad government. To them, money is not speech; 
money is the corruption of the system. The American people are very 
specific in their beliefs about this, Madam President. Voters surveyed 
recently by the Princeton Survey Associates tell us exactly what the 
public thinks:
  55 percent of the public think that campaign money gives one group 
more influence by keeping other groups from having their say in policy 
outcomes;
  50 percent think that campaign money gets some people appointed to 
government office who would not otherwise be considered;
  48 percent think that campaign money keeps important legislation from 
being passed in the Senate and in the House of Representatives;
  45 percent think that campaign money leads elected officials to 
support policies that even those elected officials don't think are best 
for the country;
  41 percent think that campaign money even leads elected officials to 
vote against the interests of the constituents who sent them to 
Washington;
  63 percent of the public think that campaign money leads elected 
officials to spend too much time fundraising;
  And, finally, 52 percent think that money, and not speech, determines 
the outcome of elections under our current system.
  Madam President, it is hard to argue with the public's view on these 
various points. I submit that the arguments by opponents of campaign 
finance reform, that money is speech, should not and fortunately does 
not pass the laugh test with the American people.
  The people are right, that we desperately need to reform the campaign 
system. In fact, they are right that we need to do a full U-turn from 
where we are today. We need to reduce the amount of money raised and 
spent in campaigns. We need to increase the amount of robust debate, 
providing really helpful information to voters. We need to increase the 
amount of complete and balanced discussions about the differences 
between candidates so the public has good information.
  Even the modified McCain-Feingold campaign reform bill is a big step 
in the right direction. It does at least two very important things. 
First, it will reduce the amount of big unregulated donations from 
corporations and unions and wealthy individuals in our campaigns, and 
that is good. We need to reduce that. And second, it will regulate the 
huge amounts of money spent by so-called independent special interest 
groups on advertising that they disguise as issue ads but are, in fact, 
designed to advocate the defeat of a particular camp.
  The original McCain-Feingold bill did much more. There were more 
affirmative proposals to actually encourage more robust debate, more 
helpful information for the voters, more complete and balanced 
discussions of the differences between the candidates, but the bill had 
to be scaled back to reduce the objections of some of the opponents of 
campaign finance reform. This modified version of the bill that we now 
have before us does not complete the U-turn that we ought to be making, 
but it is turning the car in the right direction.
  Madam President, I stand ready to support the modified version of 
McCain-Feingold. I hope we will have an opportunity at some point in 
the near future, and hopefully this week, to have an up-or-down vote on 
the bill. Perhaps at some point we can get past these parliamentary 
maneuvers of killer amendments, of filling out the amendment tree, 
second-degree amendments to block an up-or-down vote. Perhaps at some 
point in the near future the opponents of campaign finance reform will 
listen to the people and conclude that money is not speech, that money, 
in fact, is undermining the political system that we were sent here to 
help ensure the functioning of.
  I hope we will move expeditiously this week to pass campaign finance 
reform. Our constituents desire it, and we should do it.
  Madam President, I yield the floor.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. Madam President, there has been a development today 
that has a direct bearing on this debate that I thought would be of 
interest to our colleagues and particularly the occupant of the chair.
  The Supreme Court today denied cert and, therefore, refused to 
overturn a first circuit decision, in effect confirming a district 
court decision, specifically ruling unconstitutional, once again, most 
of the issue advocacy language in the McCain-Feingold bill which we 
have before us. The similarities are noteworthy. Two of the three 
categories of restrictions on issue advocacy in McCain-Feingold read as 
follows. As we all know, the courts have been very clear for 21 years 
that you are free to go out and express your views about any of us as 
often as you want to, in any way that you want to, as long as you don't 
say certain things like ``vote for'' or ``vote against.'' That does not 
fall within the jurisdiction of the Federal Election Commission. That 
group does not have to answer to a Federal agency in order to criticize 
us. The Federal Election Commission, as

[[Page S10400]]

we all know, doesn't like that. So they have issued regulations seeking 
to change by regulation previous Court decisions on what is or what is 
not issue advocacy.

  In those regulations, which are remarkably similar to two of the 
three sections in McCain-Feingold dealing with issue advocacy, the 
similarities are noteworthy.
  In the McCain-Feingold bill, the following words are used, and the 
words mean this in the bill, as I understand it, that if any of these 
things happen, the group would fall under the Federal Election 
Commission and be subject to their jurisdiction. In addition to the 
bright line test that the Supreme Court has already laid down, the bill 
would seek to add to that the following:

       . . . or a campaign slogan or words that in context can 
     have no reasonable meaning other than to advocate the 
     election or defeat of one or more clearly identified 
     candidates.

  Madam President, that is part of the language in the underlying bill.
  Other language in the underlying bill remarkably similar to the FEC 
regulations struck down by the Supreme Court today read as follows:

       . . . expressing unmistakable and unambiguous support for, 
     or in opposition to, one or more clearly identified 
     candidates when taken as a whole and with limited reference 
     to external events, such as proximity to an election.

  What the underlying bill is seeking to do is to outline a series of 
circumstances under which a group would fall within the jurisdiction of 
the Federal Election Commission. Currently, they are outside of that 
jurisdiction unless they say ``vote for'' or ``vote against,'' tests 
which the Supreme Court laid down 21 years ago and has never changed.
  That was the language from McCain-Feingold. Let me now read the 
language out of the FEC regulations which were struck down by the 
Supreme Court today:

       . . . more communications of campaign slogans or individual 
     words which in context can have no other reasonable meaning 
     than to urge the election or defeat of a candidate.

  Further language from the proposed FEC regulations which were struck 
down by the Supreme Court:

       . . . when taken as a whole and with limited reference to 
     external events, such as the proximity to the election, could 
     only be interpreted by a reasonable person as containing 
     advocacy of the election or defeat of one or more candidates.

  Further from the FEC regulations struck down by the Supreme Court 
today:

       The electoral portion of the communication is unmistakable, 
     unambiguous and suggestive of only one meaning.

  Madam President, there is a remarkable similarity between the 
language struck down by the Supreme Court today and the language of two 
of three of the sections in the McCain-Feingold bill which seek to 
redefine by statute what happens in an issue advocacy campaign. This is 
an important new development.
  We have had a lot of discussion on the floor of the Senate over the 
last week and a half about what is and isn't constitutional. It has 
been suggested that there are 126 constitutional scholars out there who 
are certifying, in effect, that these new restrictions on issue 
advocacy are, in fact, constitutional. That has been asserted by some 
of our colleagues, even though there have been a whole line of Supreme 
Court decisions before the one today reiterating that they crafted this 
the way they did on purpose; it was not an accident. The Supreme Court 
wanted to have the widest latitude possible for organizations to 
criticize us, and there is no indication that they intended that 
criticism to necessarily be evaded just because it was in proximity to 
an election.
  There is no language on the 60-day test, which is the third provision 
of the McCain-Feingold bill. Frankly, that is sort of a new item. The 
FEC has not yet tried that. But if you look at that language and look 
at the fact that the Court has confirmed time and time and time again 
that it meant what it said it did with regard to issue advocacy, I 
don't think it is much of a stretch to predict that, if the Court is 
going to strike down language almost the same as two of the three 
sections in McCain-Feingold seeking to make it difficult for groups to 
criticize us, they would be very likely to strike down the third, which 
makes it impossible effectively for them to criticize us without 
becoming a federally registered committee in the last 60 days of an 
election.
  As I said--I see my colleague from Washington on his feet--we can 
discuss as long as we want to what is and isn't constitutional. The 
final word on that is the U.S. Supreme Court, and they just spoke again 
today on the very subject that we have been discussing on the floor of 
the Senate in the last week and a half. I think it is a very important 
additional indication that the Court, in spite of all the prodding of 
the Federal Election Commission to set up a new standard for issue 
advocacy, the Court has absolutely no intention of changing its mind. 
It has been absolutely, unequivocally consistent for 21 years as to 
what you would have to put in an advertisement to be brought within the 
Federal Election Campaign Act and thereby covered by the FEC.
  Here is what the Court said back in Buckley--and it has had many 
opportunities to revisit that, it hasn't changed its mind over the 
years, didn't change its mind again today--this is what the Court said. 
For a communication by a group to fall within the Federal Election 
Campaign Act, you would have to have express words of advocacy of 
election or defeat, such as ``vote for,'' ``elect,'' ``support,'' 
``cast your ballot for,'' ``Smith for Congress,'' ``vote against,'' 
``defeat'' or ``reject.''
  They have had 21 years to revisit that standard, 21 years to decide 
the Federal Election Commission knew better than the courts about how 
to craft this language, 21 years to change its mind, new judges coming 
onto the bench and old judges leaving, and the Court has never changed 
its mind, up to and including today when it refused to grant certiorari 
on a lower court decision, in effect upholding the same language that 
has been on the books since 1976.
  So, Mr. President, I think this is an important addition to the 
debate. I hope that Senators will note that the Supreme Court is not of 
a mind to change its opinion on issue advocacy versus express advocacy, 
one of the important issues that we have been debating here in the 
context of the proposed McCain-Feingold bill.
  I yield the floor.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER (Mr. Roberts). The Senator from Washington is 
recognized.
  Mr. BUMPERS. Will the Senator yield for a parliamentary inquiry?
  Mr. GORTON. He would.
  Mr. BUMPERS. Mr. President, is there any order of sequence on the 
speaking?
  The PRESIDING OFFICER. There is not.
  Mr. BUMPERS. I thank the Chair.
  Mr. GORTON. Mr. President, in 1974, impelled by certain individuals 
and groups who felt that too much money was being spent on political 
campaigns and on political speech, the Congress of the United States 
passed a law limiting the amount of money that a candidate for Federal 
office could receive from any individual source, and limiting the 
amount of money that a candidate for a Federal office could spend 
advocating his or her election to that office.
  The Supreme Court of the United States upheld the half of that 
statute that limited the amount of money that a candidate could seek 
from any given individual or organization or group; but about the 
proposition that a candidate could be limited in the amount of money 
that he or she could spend on a campaign, the Supreme Court of the 
United States made this statement--and I quote

       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 reached. This is 
     because virtually every means of communicating ideas in 
     today's mass society requires the expenditure of money. The 
     distribution of the humblest handbill or leaflet entails 
     printing, paper and circulation costs. Speeches and rallies 
     generally necessitate hiring a hall and publicizing the 
     event. The electorate's increasing dependence on television, 
     radio, and other mass media for news and information has made 
     these expensive modes of communication indispensable 
     instruments of effective political speech. Being free to 
     engage in unlimited political expression subject to a ceiling 
     on expenditures is like being free to drive an automobile as 
     far and as often as one desires on a single tank of gasoline.


[[Page S10401]]


  And the Supreme Court of the United States found invalid, as a 
violation of the fundamental first amendment right of free expression, 
any such limitation.
  The same mindset that gave us those laws and that has forced those 
individuals or groups who feel vitally interested in the election or 
defeat of a candidate to spend money in other ways, often through the 
political parties that sponsor those candidates, now has brought this 
McCain-Feingold bill to the floor of the U.S. Senate.
  Finding it ineffective simply to limit the amount of money that 
candidates can collect from a given individual, the bill now seeks to 
limit severely the amount of money that political parties can collect 
with which to express their message to the American people. The fact 
that this flies in the face of most thoughtful academics observing the 
political scene in the United States who call for greater party 
responsibility and a greater role for political parties to play in 
order to create a greater degree of responsibility and responsiveness 
in carrying out the will of the people as expressed in elections, the 
McCain-Feingold bill seeks to tie the hands of parties and to render 
them largely ineffective.
  The sponsors of the bill do recognize, however, that there are other 
methods of communicating political ideas. While they did not attempt to 
limit the right of other individuals or organizations in communicating 
their ideas directly, and in some cases not at all, they do attempt, as 
the Senator from Kentucky has just pointed out, to take a form of 
communication called issue advocacy--that is to say, making your views 
known to the people of the United States with respect to issues that 
come before the Congress of the United States--and force it into a 
category which they define as express advocacy, essentially whenever 
the name of a candidate or a Government officeholder is used, and once 
again provide limitations on the amount of money that can be collected 
for the expression of that form of advocacy.

  As the Senator from Kentucky has so clearly pointed out, not only is 
that portion of the McCain-Feingold bill unconstitutional on the basis 
of a long line of Supreme Court decisions, its unconstitutionality was 
reaffirmed this morning, this very morning by the refusal of the 
Supreme Court even to listen to a challenge to a first circuit decision 
on exactly that subject.
  So what we have in McCain-Feingold is, in addition to the limitation 
on the amount of money that can be spent or contributed to individual 
candidates, an additional limitation on the amount that can be 
contributed to political parties, but no limitation at all on the 
amount of money that can be spent independently of those political 
parties by the widest range of groups and individuals in the United 
States who have a vital interest in the actions of this Congress unless 
those groups make a mistake which is absolutely unnecessary to make and 
use one of a handful of magic words.
  Finally, of course, McCain-Feingold does not attempt in any respect 
whatsoever to limit the commentary, either in news columns or on 
editorial pages, on the part of the newspapers in the United States or 
similar commentary on radio and television stations. It isn't long, 
however, since exactly such a set of potential restrictions were 
proposed.
  With a degree of intellectual honesty, absent from this debate, in 
February and March of this year many of those who are here today 
promoting the McCain-Feingold bill recognized that the goals they 
sought were blatantly violative of the first amendment to the 
Constitution of the United States and proposed to amend the first 
amendment.
  At this point, Mr. President, I think it not at all inappropriate 
once again to read into the Record what those Senators--I think some 
30-plus of them altogether in the final vote--proposed to do to the 
first amendment to the Constitution of the United States. They proposed 
to say:

       Congress shall have power to set reasonable limits on the 
     amount of contributions that may be accepted by, and the 
     amount of expenditures that may be made by, in support of, or 
     in opposition to, a candidate for nomination for election to, 
     or for election to, Federal office.

  It seems clear to me, Mr. President, that that constitutional 
amendment, were it placed in the Constitution of the United States, 
would have permitted Congress to state that the New York Times, or a 
newspaper in a city of 50,000 people in a city in Kentucky, could have 
its commentary on election campaigns limited in the same way that the 
present law limits contributions to candidates today.
  Now, Mr. President, I think a newspaper--I will take one of my own--
say the Tri City Herald in central Washington, with a circulation of 
some 40,000 newspapers a day, if it writes an editorial in favor of my 
candidacy, which I am pleased to say that it has, and distributes 
40,000 copies of that newspaper, it has exceeded that $1,000 campaign 
contribution limit if the cost of writing and printing and distributing 
that newspaper exceeded 2.5 cents a copy.
  Lord knows by how much the New York Times would exceed that 
contribution by making any kind of commentary on behalf of or in 
opposition to a candidate for political office. Lord knows how much 
more such a commentary on network television news could be considered 
to be worth.
  Yet, Mr. President, at least the proponents of that constitutional 
amendment were being intellectually honest and at least they were being 
consistent, or would have been consistent had they been willing to say 
they wanted to limit the way newspapers and radio stations and 
television stations could comment on politics, because, obviously, if 
every other form of communication is going to be limited, how in the 
world can we justify letting those few people in the United States with 
enough money to own the newspapers or having the good fortune to be on 
their editorial boards and, for that matter, to write news stories 
about politics not be limited? Of course they should.
  But, Mr. President, the first amendment was written not when we had 
television or radio stations, but when we had thousands of newspapers 
in the United States of America, most of them speaking much more 
sharply about candidates and issues than do newspapers today. And the 
men who wrote the first amendment to the Constitution of the United 
States knew that every one of those newspaper publishers had a greater 
first amendment right by the definition used by the promoters of 
McCain-Feingold than did the average citizen who did not own or write 
for a newspaper. But they consider that right of mass communication 
about political ideas to be a fundamental liberty of the people of the 
United States. Now we have opponents of this bill who say it is not 
only not a fundamental liberty of the United States; it is such a great 
evil that we need effectively to muzzle them.

  Hark back to the Supreme Court in which the Supreme Court says 
virtually every means of communicating ideas in today's mass society 
require the expenditure of money. We have proponents who say we should 
not allow the expenditure of money in amounts that are sufficient to 
communicate those ideas.
  Having limited the amount of money candidates can get, they now wish 
to limit the amount of money political parties can get. It is clear 
they wish to limit the amount of money that these independent groups 
can get, but in the absence of their constitutional amendment, they 
can't do that.
  Now, last year, Mr. President, I asked this question: Were the 
expenditures of candidates or of political parties or of third party 
interest groups the least responsible? The answer, obviously, is the 
latter. A candidate whose name must go on all political communications 
can be immediately called to account for falsehood and, in fact, can 
readily be called to account even for what is considered to be an 
unfair characterization of his or her own candidacy or an unfair 
criticism of an opponent. Expenditures by political parties don't carry 
that same degree of responsibility. The occupant of the chair at the 
present time is not really responsible for the communications of the 
Kansas State Republican Party, nor am I in my political party in my 
State. We will catch a certain degree of criticism for what our parties 
do, but we at least have plausible deniability. But now having forced 
even the parties

[[Page S10402]]

out of the field of effective communication, we leave all political 
communication to the newspapers and the television stations and those 
organizations, whether they are of the left or the right or of a narrow 
special interest, almost wholly to the field of unregulated 
communication for which neither beneficiaries have any responsibility 
nor the victims any effective way of responding.
  The Senator from Oregon, during the course of this debate, has 
pointed out the impact of a law very much like the one that we are 
discussing here on politics in Oregon. There the limitations on 
contributions for candidates were even tighter. The point that he made 
of what happens in the real world was the candidates can't raise very 
much money, the political parties are fairly weak, so campaigning 
became more negative than it had ever been before--not only more 
negative because of the use of the undocumented constitutional rights 
of these outside groups to criticize, but from the fact that almost all 
of their communication was critical and negative in nature, and the 
limitations on the candidates made it effectively impossible for them 
to answer.
  My own State, Mr. President, is going through pretty much the same 
experience. The more the limitations on the candidates, the greater the 
expenditure of money independently in so-called issue advocacy will be, 
and the more negative political communication will be, as it was in the 
classic example of the tens of millions of dollars spent by the labor 
unions in 1995 and in 1996.
  Now, Mr. President, one other point, and I will have to admit, along 
with everyone else who has spoken today, almost everything that has 
been said today has been with respect to the revised McCain-Feingold 
bill. The issue before the Senate, however, is the Lott-Nickles 
amendment. The same analysis does not attain to the Lott-Nickles 
amendment because it simply says that labor unions and labor union-type 
organizations, while they remain entirely unlimited in the way in which 
they can spend their money, and with respect to issue advocacy, can 
only be involved in politics by the use of money to the extent that 
there are members who have paid dues into those unions who allow their 
money to be spent in such a fashion.
  It is curious in the mind of this Senator that such an obviously just 
policy--not allowing my money, your money or anyone else's money to be 
used to communicate ideas with which you or I or that third party 
disagrees, a proposition that is clearly constitutional--should be 
considered to be a poison pill or the death knell for campaign reform. 
What could be more fundamental, Mr. President, than the idea that the 
individual whose money is being spent in connection with the 
communication of political ideas should have some control over how that 
money is spent?

  Now, Mr. President, I am in a position to tell you how that works in 
practice because another element of one of the latest of the campaign 
reforms in the State of Washington was to make just such a provision. 
When that provision became law, 80 percent or more of the members of 
the Washington Education Association, the teacher's union, refused to 
allow their money to be used in politics at all. I have just heard, 
though I can't be entirely certain of this statistic with respect to 
other labor unions, the percentage of members who are willing to permit 
their money to be used is in single digits. Presumably, the members of 
those organizations prefer their money to be used for the primary 
function of a union with collective bargaining rights and not even on 
politics with which they agree, much less politics with which they 
disagree.
  That, Mr. President, is the reason the opposition to this amendment 
is so fierce. That is the reason we are told most of the proponents of 
McCain-Feingold will filibuster this very bill if it is included. It is 
just because the opposition on the part of members of these 
organizations to spending their money in the way in which it has been 
spent over the last several years is so deep, so broad, and so fierce.
  But in this case, I want to state once again, Mr. President, we are 
not talking about a matter over which there could be any serious 
constitutional challenge at all. We are simply talking about whether or 
not it is good policy. We are talking about something that would meet 
the goals of McCain-Feingold to the extent that their goals are to 
limit the amount of money being spent on political speech. It would 
certainly limit it in connection with the last campaign.
  Now, I am not convinced of the case that we are spending too much 
money on political speech. I believe the wide diffusion of political 
ideas was exactly what the first Congress of the United States had in 
mind when it passed the first amendment. However, if you are going to 
limit political speech, you ought to do so fairly and across the board. 
To do so fairly and across the board, you must gut the first amendment 
to the United States, you must change the Constitution, and you must 
say we are going to have Government--Members of this body and the 
appointed Federal Election Commission--decide what speech in the 
political context is legitimate and what speech is not, and the 
definition of that challenge is its own death knell because, defined in 
that fashion, there aren't 5 percent of the American people who would 
agree.
  We have before the Senate, Mr. President, a flawed bill with a flawed 
and unconstitutional goal, together with the breathtaking statement 
that should we make the fundamental requirement that a man or woman's 
money not be spent on politics with which he or she disagrees, that we 
are killing this flawed proposal.
  Well, I don't think the bill becomes any more constitutional by the 
adoption of the Lott-Nickles amendment. I don't believe the obvious 
constitutional flaws reiterated once again today by the Supreme Court 
of the United States are improved by it. Abstract fairness probably is. 
But a bill that says that there is something wrong with the 
communication of ideas--the last Democratic speaker criticized the way 
in which campaigns were conducted, apparently feeling that maybe we 
ought to have a governmental entity that says what an individual says 
in a political campaign is fair or unfair. We have created the greatest 
and strongest democracy in history and the greatest debate over 
political ideas with the first amendment as it is. I, for one, believe 
we ought to leave it alone.
  Mr. McCONNELL. Will the Senator yield?
  Mr. GORTON. I am happy to yield to the Senator.
  Mr. McCONNELL. As the Senator from Washington pointed out, today's 
huge news that the Supreme Court has struck down essentially most of 
the issue advocacy language in the McCain-Feingold bill, maybe we 
shouldn't waste our time talking about this. But if you look at the 
original bill, it was designed to shut down campaigns, shut down 
parties, and shut down issue advocacy, and the Senator from Washington 
pointed out the only entity exempt from this would have been the press 
which enjoys a specific exemption under the Federal Election Campaign 
Act.
  In fact, I have it here for our viewers if they want to look, section 
431(9)(B), subsection 1:

       Any news story, commentary, or editorial distributed 
     through the facilities of any broadcasting station, 
     newspaper, magazine, or other periodical publication, unless 
     such facilities are owned or controlled by any political 
     party, political committee, or candidate;

  In other words, a blanket exemption for the press that no one else 
would enjoy.
  I say to my colleague from Washington, just to ask a question, 
Westinghouse owns CBS, Disney owns ABC, and GE owns NBC. Now, these big 
corporate giants in America will, through the ownership of these 
television broadcast networks, enjoy a total exemption from all the 
restrictions that would be placed on the political speech of everybody 
else. This is not an unrealistic hypothetical. We just saw Ted Turner, 
who used to control CNN, declare on Friday he would not sell ads to a 
certain group because he did not like what they were saying.
  So I ask my friend from Washington if he could speculate with me for 
a moment the mischief that might be created by the ownership of the 
only exempt avenue to engage in free and unfettered political 
expression without the heavy hands of the Federal Government, what kind 
of mischief he might imagine could happen in our country?

[[Page S10403]]

  Mr. GORTON. It would certainly increase the price of television 
stations and television networks. It would be a bonanza to those 
corporate owners, as any other corporation that had a political agenda 
would find the only way it could effectively communicate its ideas 
would be through the ownership of a television network or a major 
metropolitan newspaper and the like.
  But the point made by the Senator from Kentucky is a most interesting 
one. Westinghouse and Disney and GE don't need to give soft money to 
parties, do they? They don't need to come up with their political ideas 
indirectly. They have the ability to communicate them directly, without 
control, without limitation as to amount, to the people of the United 
States. So the Senator from Kentucky has made my own point better than 
I did myself. If you are going to limit political speech effectively, 
you are going to have to limit everyone's political speech. And the 
fewer the exemptions from those limitations, the more valuable those 
unlimited mouthpieces are because they cannot effectively be countered, 
except by someone else with the exemption.
  I want to repeat one more time that I believe the constitutional 
amendment that was seriously debated, but defeated, on the floor of 
this Senate in March would have permitted limitations on what those 
television networks could have done, what the New York Times and every 
newspaper in the United States could have done. And it is the very fact 
that that constitutional amendment would have allowed such limitations 
that is the reason it should not have gotten one-third of the votes of 
the Members of this body. It should not have gotten any at all.
  Once, however, you determine that we should continue the more than 
200 years of unrestricted freedom on the part of the mass media, it 
becomes increasingly difficult to justify the proposition that we 
should limit the ability to communicate of everyone else.
  As the Supreme Court decided more than 20 years ago, the ability to 
use money and to use, in turn, the mass media is at the very heart of 
the first amendment rights. The Senator from Nebraska, who was here 
before, it seemed to me, had the appropriate answer to this question. 
Political contributions should be freely given, not coerced. They 
should be immediately publicized and made available. Those who violate 
those laws of disclosure ought to be appropriately punished. None of 
these elements is a part of the law today, and that is where reform 
ought to start.
  Mr. ALLARD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. ALLARD. Mr. President, today, I want to take a few minutes and 
let my views be known concerning campaign finance reform. First, I want 
to commend my colleagues from Arizona and Wisconsin. It is not easy to 
introduce legislation that you know will be adamantly opposed from the 
outset. I recognize this and I want to congratulate them. Second, I 
want to commend the Senator from Kentucky, who on more than one 
occasion has stood on this floor and took an unpopular stand against 
popular legislation for all the right reasons.
  Mr. President, I have always been a strong advocate of congressional 
reform, even to the point of introducing legislation that has upset 
many of my colleagues. I have always believed that congressional reform 
should make Congress more like the people we represent not above them. 
That is why I have long been a supporter of term limits, which I 
believe would be one of the best campaign finance reform measures we 
could ever enact.
  Campaign finance reform should give every American the opportunity to 
participate, as fully or as little as they want. This country's 
principles are based on freedom. People should have the ability to 
choose whether they want to participate in the system. We cannot and 
should not coerce or force citizens participation in this process. Nor 
should we stifle citizens participation in the electoral process. I do 
not believe that this quick fix of McCain-Feingold passes either one of 
these tests.
  First, I do not believe this legislation protects the working men and 
women in this country. Our electoral system is a voluntary activity. 
The U.S. Congress should never force participation in a voluntary 
activity, whether through individual activity or through financial 
contributions. This is why I believe the Lott amendment is so important 
for any campaign finance reform legislation. I would never do anything 
to stop outside groups from participating in the system, I just ask 
that all activity be voluntary. I would never force anyone to support 
me by either their vote or through a contribution if they disagreed 
with my views and I believe this should apply across the board to any 
group involved in our political system.
  I have heard complaints that the Lott amendment would weaken the 
union's power and hurt the union membership. If the political positions 
of the union bosses are supported like they believe they are by the 
membership, then there should be no problem whatsoever for the unions 
to stay strong. But, if the unions' Washington office takes positions 
that are contrary to its membership, then maybe they need to rethink 
their ways.
  Also, a provision that is forgotten by many who oppose the Lott 
amendment is that it also applies to corporations and national banks. 
The amendment makes it unlawful for any corporation or national bank to 
collect from or assess its stockholders any dues, initiation fee, or 
other payment as a condition of employment if such dues, fee or payment 
will be used for political activity in which the national bank or 
corporation is engaged. Likewise, a labor organization cannot collect 
or assess its members or nonmembers any dues, initiation fee, or other 
payment if any part of such dues, fee, or payments will be used for 
political activities.

  I think this amendment is very clear, no matter where you work, you 
should not have to choose between putting food on the table for your 
family or participating in an election or supporting an election. Let's 
make it very clear, the people who do not support this amendment 
believe that working men and women, union or not, should have to choose 
between working or supporting issues and elections with which they 
disagree.
  I have also heard that being a union member is voluntary and one of 
the most democratic institutions since employees must vote to start a 
union, elect its leaders and if they do not like the direction the 
union is taking then they can work to change it or as a last resort, 
quit the union. If you do not like the direction of the union, you must 
quit your job as a last resort. I do not think any union member should 
have to make that choice--a job or a political contribution. This same 
provision applies to corporations and national banks. No employee 
should have to choose between keeping their job or participating 
financially to causes or elections they disagree with.
  Some want to apply this amendment to groups such as the NRA or the 
Sierra Club or other issue groups. The difference between these groups 
and the employment condition in the Lott amendment is that joining 
these groups is completely voluntary and is not tied to a job. If a 
member of one of these issue groups wants to quit their respective 
group, then they just stop paying the dues and rip up the card. There 
is no employment backlash that causes that person to lose their job.
  Thomas Jefferson summed it up best when he said, ``To compel a man to 
furnish contributions of money for the propagation of opinions which he 
disbelieves, is sinful and tyrannical.''
  Second, in our quest of campaign finance reform, American citizens 
should not have to lose their voice. The first amendment is very clear 
in its wording, ``Congress shall make no law * * * abridging the 
freedom of speech or the press * * *.'' While campaign finance reform 
efforts are based on the best of intentions, whether by legislation or 
just simple suggestions, most of the time they will affect individuals' 
first-amendment rights.
  The Supreme Court has been very clear where it stands on the first 
amendment and campaign finance laws. Since the post-Watergate changes 
to the Federal Election Campaign Act of 1971, 24 congressional actions 
have been declared unconstitutional, with 9 rejections based on the 
first amendment. Out of those nine, four dealt directly with campaign 
finance reform laws. In each case, the Supreme Court

[[Page S10404]]

has ruled that political spending equals political speech. This Senate 
attempted to change this through a constitutional amendment limiting 
the amount one can spend in a campaign, which only tells me that this 
fact is undeniably recognized by this body.
  In the now famous, or infamous to some, Buckley versus Valeo case, 
the Court states that:

       The First Amendment denies government the power to 
     determine that spending to promote one's political views 
     is wasteful, excessive, or unwise. In the free society 
     ordained by our Constitution it is not the government, but 
     the people--individually as citizens and candidates and 
     collectively as associations and political committees--who 
     must retain control over the quantity and range of debate 
     on public issues in a political campaign.

  This simply states that the Government may not ration or regulate 
political speech of a citizen through spending limits or limit its 
quantity any more than it can tell the local newspaper how many papers 
it can print, what it can print, or when it can print.
  Also, the court states that `` * * * the mere growth in the cost of 
Federal election campaigns in and of itself provides no basis for 
governmental restrictions on the quantity of campaign spending * * * 
.'' This goes for not just the candidate but also outside groups who 
want to participate in the process.
  That brings me to a specific provision in the legislation before us. 
I have yet to hear what makes 60 days such a magic number. How can an 
outside issue group's ad carry a valid message 61 days before an 
election but if run the next day, it would lose all validity and become 
illegal. This just makes little sense. When I ran for this seat in the 
Senate, I was blasted from all angles by many different groups, but 
that's fine. It made my life and campaign a little more difficult, but 
it let me explain why I voted the way I did. These groups brought all 
the issues into play and no candidate can hide their record from the 
public.
  However, no matter how I have to defend my record against these ads, 
I will never attempt to legislatively silence their voice. To do so 
would place myself over the rest of America. I cannot support the idea 
that my viewpoint is so much more important, that no one outside of the 
candidate can speak less than 60 days before the election. I cannot and 
will not quiet the electorate.
  I did forget one exception during the 60-day blackout, the media. 
This 60-day blackout only strengthens the media and whatever they say, 
cannot be challenged, except by the candidate. Today, newspaper 
endorsements are held off until the end of the campaign to maximize 
their effect, but this 60-day blackout period will let the endorsement 
go without criticism from outside groups. And I question whether once a 
candidate gets an endorsement, if their campaign will be covered with 
the same amount of scrutiny as the other candidate, for again, any 
rebuttal to their coverage can only come from the candidates opponent.
  I believe this provision places too much power in the hands of a few. 
I have the utmost respect for the media and the professionals who work 
for in the field, but too much of one gets too powerful for all.
  Also, I believe this 60 day blackout will be used to remove Congress 
from the close scrutiny of the public. Let me explain. I am afraid that 
Congress will hold off some of the more controversial issues until the 
last 60 days before an election in order to escape the scrutiny of 
these outside groups. This regulation is nothing more than politicians 
wanting to quiet citizens from bringing up issues that politicians want 
to ignore.
  Another problem arises regarding soft money. The definition of soft 
money is campaign money raised outside the regulatory structure for 
Federal elections--or non-Federal money. These funds are raised and 
spent by political parties outside of the Federal fundraising 
limitations to benefit the party's State and local elections efforts. 
While soft money is not federally regulated, it is regulated by the 50 
States. Current law already bans the use of soft money in Federal 
elections. Basically, a complete ban on the ability of the parties to 
raise and spend any soft money would federalize all elections because 
any money given to the national parties in support of state and local 
candidates would fall under the stricture of Federal laws.
  The Buckley case clearly states that ``[S]o long as persons and 
groups eschew expenditures that in express terms advocate the election 
or defeat of a clearly identified candidate, they are free to spend as 
much as they want to promote the candidate and his views.'' The ACLU 
says that ``the purpose of this profound distinction is to keep 
campaign finance regulations from overwhelming all political and public 
speech. And it is this distinction which defenders of the 
constitutionality of a ban on soft money continue to disregard.''
  The Court has permitted the unrestricted use of soft money by 
political parties and nonparty organizations in the Buckley decision 
and has enhanced and given it legitimacy in its subsequent decisions, 
including a decision involving the Republican Party from my own State 
of Colorado in 1996.
  Let me also make a point about money being the determining factor in 
elections. In my Senate race, I was outspent by almost $750,000--a 
quarter of $1 million. You don't have to have the most money to win, 
you just have to have the right message and I will not legislatively 
try and stop someone from speaking their message during a campaign, not 
even my opponent's.
  Many believe that now is the right time to pass a restrictive 
campaign finance measure with all the scandal surrounding the last 
Presidential campaign and that we should take a chance on the Supreme 
Court to rule it constitutional. The problem with this logic is that 
since 1976, the Supreme Court has referred to the Buckley decision over 
100 times in setting limits on the Government's authority to regulate 
political speech. I just cannot see this Supreme Court overturning a 
ruling that has become the landmark decision and reference point for 
all campaign finance decisions.

  In the end, our campaign finance system needs to be fixed, but any 
reform must not run counter to the first amendment. The first amendment 
ensures that even if we don't like what someone says, they have the 
right to say it. While many believe that the amount of money being 
spent in campaigns is objectionable, the Court has clearly stated that 
campaign spending is equal to speech and no matter how objectionable, 
it is protected under the first amendment.
  I will have to say that the McCain-Feingold bill has gotten organized 
efforts behind it, like this ad run in the Denver Post on Thursday, 
October 2, by the group Campaign for America. However I would like to 
point out a few things.
  I find some great irony in this ad. First, if McCain-Feingold passes 
and this ad was to be aired on TV or radio, it may just be illegal, 
especially if it is within the 60-day blackout period before an 
election. If an incumbent believes this ad to be an attempt to 
influence an election, they can challenge it, thus stifling debate. The 
very message they wish to send could be stopped by the legislation they 
support. That is the point I would like to make.
  They want to stop big money and big guys with their big bucks from 
buying the system, which I want to do also by the way. Well, this group 
is backed by the some of the richest people in America. Actually, two 
of the men are on the Forbes 400 list. Plus, many of them have given 
hundreds of thousands of dollars to each party. It seems to me that 
this group is a bunch of rich guys using their big bucks to buy 
legislation. And, despite my request, I have yet to receive a full 
disclosure from this group on how much is spent, who gives and how 
much. All I know is who sits on their board of directors.
  But in all honesty, I cannot in good conscience stop them from 
exercising their first amendment rights. I want any campaign finance 
reform legislation to encourage this--not stop it.
  This is why I introduced my own bill, the Campaign Finance Integrity 
Act. My bill does not restrict one from exercising their political 
speech rights, but asks for complete and honest disclosure for all 
campaign spending. While this statement is not one of endorsement 
concerning my legislation, but in a review of the McCain-Feingold bill, 
the ACLU says, ``Disclosure, rather than limitation, of large soft 
money contributions to political parties, is the more appropriate and 
less restrictive alternative.'' My bill does just

[[Page S10405]]

that. As a matter of fact, I believe my bill has the strongest open 
disclosure requirements of any bill introduced.
  My bill also will require candidates to raise at least 50 percent of 
their contributions from individuals in the State or District in which 
they are running;
  Equalize contributions from individuals and political action 
committees [PAC's] by raising the individual limit from $1,000 to 
$2,500 and reducing the PAC limit from $5,000 to $2,500;
  Index individual and PAC contribution limits for inflation;
  Reduce the influence of a candidate's personal wealth by allowing 
political party committees to match dollar for dollar the personal 
contribution of a candidate above $5,000, by using only hard money;
  Require organization, groups, and political party committees to 
disclose within 24 hours the amount and type of independent 
expenditures over $1,000 in support of or in opposition to a candidate.
  Incorporate the Lott amendment, along with the requirement of an 
annual full disclosure of those activities to members and shareholders;
  Prohibit depositing of an individual contribution by a campaign 
unless the individual's profession and employer are reported;
  Encourage the Federal Election Commission to allow filing of reports 
by computers and other emerging technologies and to make that 
information accessible to the public on the Internet less than 24 hours 
of receipt;
  Completely ban the use of taxpayer financed mass mailings; and
  Lastly, will create a tax deduction for political contributions up to 
$100 for individuals and $200 for a joint return to encourage small 
donations.
  One of the best way to reduce special interest money is to reduce the 
size and scope of Federal Government and I am not alone believing this. 
A recent survey by Rasmussen Research shows that 62 percent of 
Americans think that reducing Government spending would reduce 
corruption in Government. The same survey showed that 44 percent think 
that cutting Government spending would do more to reduce corruption 
than campaign finance reform, while 42 percent think campaign finance 
reform would reduce corruption more than cutting Government spending. I 
have said many times, if the Government rids itself of special interest 
funding and corporate welfare, then there would be little influence 
left for these large donors.
  That is why I am fighting corporate welfare, especially thee Overseas 
Private Investment Corp. Some may not see OPIC in the same light, but 
any benefit for corporations will just keep them coming back for more. 
Another way to achieve campaign finance is too eliminate the Department 
of Commerce, where a majority of the corporate welfare programs are 
funded. Also, by scrapping the existing Tax Code with its many tax 
breaks in favor of a flatter and simpler system would clean up our 
campaigns greatly. Big Government solutions will not stop big business 
and big labor money. To break special interest money, we must break the 
so-called iron triangle of big business, big labor, and big Government.
  I must say that by objecting to the Washington media is very 
difficult for any politician, but turning your back on the first 
amendment is more difficult for me. I want campaign finance reform and 
I have shown in my legislation how I would like to do it, but I will 
not do so at the expense of the first amendment. Not even at the 
expense of those people's speech who will disagree with me on this 
issue. The first amendment is the reason we can disagree.
  Let me end with this. While big money has been made the villain, I 
believe it is not the money but the people. Bad people will do bad 
things if given the chance. I believe that the tighter we made it, the 
more people will try to find loopholes resulting in more scandals. We 
need to enforce the laws on the books first before we add more 
Government regulation is not always the answer. To me it sounds like 
those who are under investigation and are calling for more Government 
regulation of campaigns are saying, ``Stop me before it sin again.'' 
Well let's first uphold the law and then we can better fix it. And when 
we do, let's not do so at the expense of those who legally want to 
exercise their first amendment rights. Don't let the bad shut out the 
good participants in our system.
  I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, very briefly, I thank the distinguished 
Senator from Colorado for an outstanding contribution to this debate. I 
listened carefully to his entire speech. I thought it was truly 
outstanding. I just wanted to commend him for that and thank him for 
his contribution to this important debate.
  Mr. ALLARD. I thank the Senator.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER (Mr. Allard). The Senator from Arkansas is 
recognized.
  Mr. BUMPERS. Mr. President, let me say, first of all, that the 
distinguished Senator from Maine, Senator Collins, has been waiting for 
a long time. I am most reluctant to take her spot. But I understand she 
has to leave. So rather than waste the time, and with her indulgence, I 
hope she will forgive me, I will go ahead and proceed with my 
statement.
  First of all, Mr. President, I would like for every Member of 
Congress to ask himself or herself this very simple question: How much 
longer do you think our democracy can survive if we continue under the 
present system of financing our campaigns?
  The first question ought to be: Can we continue to pass laws and 
elect people based on how much money they have and expect a 
participatory democracy to survive?
  Question No. 2: Can this democracy survive under the present system 
of financing campaigns if we adopt McCain-Feingold?
  With the utmost respect for two dear friends in the Senate, Senator 
Feingold and Senator McCain, I would have to say that this bill will 
help our democracy last a little longer than it would if we do nothing.
  We call ourselves a participatory democracy. And yet, most people 
have long since quit participating.
  So another question that every Member of the Senate ought to ask 
before they vote on this bill is: Why do only 50 percent of the people 
in our country bother to vote?
  The next question they ought to ask is: Why do only about 4 percent 
of the people in the country contribute to candidates and parties?
  We can contribute 3 bucks to the Presidential Election Fund by 
checking a box on our tax return, without any cost to ourselves, yet 
the percentage of people who check that box is down now to about 13 
percent of the people who file tax returns. Thirteen percent will say, 
``Yes. I want $3 of my taxes to go to the Presidential campaigns.'' I 
think there are an awful lot of people in this country that think they 
are paying that $3 out of their own pocket. They don't pay the $3. All 
they do is say I would like for $3 of my existing tax liability to go 
to the Presidential campaign. That system has attracted much higher 
percentages than in the past. But it has been declining.
  So, ask yourself. Why do only 50 percent of the people vote?
  Why do only 4 percent of the people contribute?
  Why is the number of people checking the box on their Federal tax 
return continuing to go down?
  The answer to that is very simple. They don't think they count. They 
say to themselves: ``Why should I contribute? Yes. I could give 25 
bucks. I could give 50 bucks.'' But when you see $100,000 contributions 
in soft money, and you see the $2,000 contributions to candidates, 
really $4,000 if the contributor's spouse also contributes, who will 
believe that his $15 or $20 is going to make a difference? And they are 
showing in big numbers they don't believe they count by staying home on 
election day. And they see legislation passed continually where they 
know money was the determining factor.

  I can remember when I was a young attorney just out of law school 
practicing law in my little hometown. A man came into my office one 
day. He said, ``I want you to give me $250 for a Member of Congress.'' 
And I said, ``He's not even up for reelection this year. Why would I 
give him $250?'' He said, ``Well, they have a lot of expenses,'' and so 
on. And I said, ``Well, I'm not going to give

[[Page S10406]]

you $250,'' the primary reason being I don't have $250. The second 
reason is $250 is two monthly house payments. And the third reason is I 
don't even like the guy; he doesn't represent my views. And fourth, I 
thought, if I were going to give $250, why would I give it to you? Why 
wouldn't I give it to the candidate so he would at least know I had 
given him $250 and I would also like for him to know that that is a 
big, big amount of money for a struggling young lawyer in a little town 
in Arkansas.
  Mr. DOMENICI. Will the Senator yield for a question?
  Mr. BUMPERS. No, I won't yield, Senator. I have been waiting all 
afternoon to speak.
  When I ran for Governor the first time, I found asking for money the 
most difficult thing I had ever done. I could not believe that I had to 
go around pleading with people to give me a few dollars. Nobody wanted 
to give me any money anyway because I had 1 percent name recognition 
when I started running. Some guy gave me a $100 one day, and he said, 
``I bet the horses all my life, but I have never bet on such a long 
shot as yours.'' But he gave me $100 anyway.
  I asked Tom Eagleton, the fine Senator from Missouri, when he 
announced he was going to leave the Senate, ``Tom, why are you 
leaving?'' He gave me three reasons. First of all, he said, ``I'm tired 
of laughing at things that ain't funny.'' The second was, ``I'm tired 
of answering hate mail.'' And third, ``I'm tired of going around with 
my tin cup out''--three very compelling, perfectly legitimate reasons 
for wanting to leave the Senate.
  As good as McCain-Feingold is, it does not remove the problem 
Senators face of voting on issues in which an awful lot of people who 
have given them money have a dynamite interest. My son, who lives in 
Little Rock, and his wife had twins about a year ago, and they had a 
woman who came to stay with them when the twins were born. They are 
very fortunate they can afford that. A lot of people have twins and 
they can't afford to have that kind of help. Be that as it may, she has 
been a very intelligent woman. I visit with her when I go over to see 
the twins. Last week she said, ``You know, Dale, I don't know much 
about what's going on up there, but it seems to me like you all spend 
all your time investigating each other.'' I said, ``That's right, 
Nancy.''
  That is all we are ever going to do as long as we finance campaigns 
the way we do now. Every time you vote on an issue, Senators, you are 
vulnerable to accusations if it benefits anybody who ever helped you. 
When you take money from somebody and you vote on an issue, you better 
hope two things: That the issue turns out well, and that the guy who 
gave you money does not turn out to be a crook because if he does, the 
press comes running to you: How much money did he give you or why did 
he give you money? Was there any quid pro quo?
  I am reluctant to mention this, but I am going to tell you the truth. 
I never did like the Keating case. A colleague whom I consider to be 
one of the most honest men I have ever known spent $600,000 of his own 
personal money defending himself because he was said to have helped 
somebody who gave him money in a campaign. I can promise you he would 
never have taken it in a thousand years if he thought it had the least 
taint to it. And if Keating's S&L had made it, you would never have 
heard about the Keating case. There would have been no case. But 
because he was giving money to a lot of people and his S&L went under, 
and he turned out to be a crook, then we had this big dog and pony show 
in the Senate that lasted a year or more.
  You know, I have been a friend of the President's for now 26 years. 
And as well as I knew the President, as close a friend as we have been 
through the years, I never heard of Whitewater until he became 
President, never knew there was such a place, never knew there was such 
a corporation. And if Bill Clinton hadn't had the temerity to come to 
Washington as the President of the United States, you would never have 
heard of Whitewater. It is all how things turn out.

  But to reemphasize the point I started to make, that is, colleagues, 
when you take a contribution from anybody, even if your own intentions 
are pure, you better hope that money is coming from an honorable 
person. You better hope it is coming from somebody who isn't out 
defrauding people. And you better be careful how you vote on issues 
that can help a contributor if they turn sour or turn out to be a 
crook. It doesn't matter if you cast that vote on the merits. And as 
long as we have this system of financing campaigns you can lie awake at 
night worrying about it because it is a real threat. Where a quid pro 
quo can be inferred, it will be. That is the perception that will 
remain until we change the campaign finance law.
  We have reached the point, Mr. President, where every single Member 
is constantly just one step away from disaster. And guilt or innocence 
has little to do with the outcome. One woman told me the other day that 
she had been interviewed and appeared before grand juries in one of 
these many investigations and was going to have to deed her house--I 
promise you she is totally innocent of anything--going to deed her 
house to her lawyer because it is the only asset she has that will come 
close to covering her legal bills.
  Well, we have reached the point in this country where simple 
negligence, bad judgment, just plain policy differences are becoming 
criminal offenses. How many independent counsels do we have running 
loose in this town? And how many more will we have? I can answer that 
partially. As long as we finance campaigns the way we do now, there are 
going to be independent counsels galore in this city. When you increase 
funding, spending on congressional elections in 1976 from $99 million 
to, in 1996, almost $800 million, you have to ask, where is this going 
to end? That is an 800 percent increase in 20 years, with no letup in 
sight.
  Look at the $450 million or almost $500 million in soft money for 
both parties during the last election cycle. It will be more this year, 
they are already ahead of the 1995-1996 cycle. Who gives that money? It 
is not little struggling lawyers as I was 40 years ago in a little town 
in Arkansas. It is not average folks with five and ten and fifty dollar 
contributions.
  I will tell you when it is going to end, Mr. President. It is going 
to end when the American people rise up in righteous indignation and 
come to the realization that the system is rotten, come to the 
realization that they do not count. It will end when enough people in 
Congress get tired of every contribution that goes sour being 
microscopically addressed by the press and wondering about when you are 
going to be on one of the news magazines the next episode.
  There is no perfect solution to this. I happen to come down on the 
side of public financing. I have a bill. I wanted to introduce my bill 
as an amendment. Senator Kerry and Senator Wellstone have a bill. We 
discussed whether to try to offer our bills as amendments to this bill. 
We concluded that would probably be counterproductive, would not get 
many votes, probably would not get a single Republican vote, maybe 25 
or 30 Democrat votes. Yet 66 percent of the people, according to a 
Gallup poll in October of last year, 66 percent of the people in this 
country said they favor public financing of our campaigns.
  I heard the distinguished Senator from Colorado say a moment ago that 
he won even though he was outspent. I was too in my first race. I ran 
against a Rockefeller. I guess you would call that stupidity. But in 
any event, I won, and when I ran for the Senate against an incumbent, I 
was badly outspent. But I tell you, those are rare exceptions. I 
applaud anybody who spends less money than his opponent and manages to 
win because 90 percent of the candidates in this country who spend the 
most money end up winning. Pretty heavy odds. According to statistics 
to this date, if you have the money, you have a 9-to-1 chance of 
winning.
  In the 1995-96 election cycle, 400 corporations, labor unions, and 
individuals contributed $100,000 or more in soft money; 400 of them 
gave over $100,000. Were they after good government? Is that what they 
wanted? I don't mean to demean anybody, because I have a lot of friends 
who have been faithful to me for 26 years in the contribution area. I 
can truthfully say I am most grateful to all of them. But when I first 
started running for Governor in my State, there were no campaign laws 
and I was absolutely aghast

[[Page S10407]]

at the amount of cash money, greenbacks, that was floating around in 
campaigns. One man handed me fifty $100 bills. I knew he had a deep and 
abiding interest in certain things that were bound to come up when I 
was elected, if I was elected. So I handed him his fifty $100 bills 
back.
  Do you know something? He doesn't like me to this day. You can't give 
people money back and make them like it, can you, Senator?
  My campaign finance director came up and said, ``How are we going to 
run this race? You are giving more money back than we are taking in.'' 
I have given a lot of money back. All I am saying is, when you think 
about how much money $100,000 is, and when you think about who gave it, 
you have to believe that they wanted something more than good 
government.
  In 1996--listen to this--in the U.S. Senate, Senate incumbents had a 
2 to 1 spending advantage over challengers. You hear people say public 
financing of campaigns is welfare for the politicians. Do you know what 
I say to chamber of commerce and Rotary Club members, all conservative 
businessmen who do not much like this idea of public financing? I 
remind them, you have been investing in the stock market for several 
years now and you have been doing well. But I can tell you, if you 
really want to make some money, if you really want a return on your 
investment, you opt for public financing. That will give you the 
biggest return of any investment you ever made in your life, because we 
won't be spending a lot of money on unworthy projects that contributors 
supported. It will be a great investment because it will yield a 
cleaner government and the people will believe it is a cleaner 
government.
  The average successful Senate race today costs $4 million. That is 
average. Some races have cost as much as $28 million. Where will we be 
20 years from now if the costs of Senate races continue to go up 
another 800 percent? You can't count that high. You can't get computers 
to count that high at the rate we are going.
  One of the problems that I have with the McCain-Feingold bill, and I 
am a cosponsor and ardent supporter and I certainly intend to vote for 
it, but I will tell you one of my fears is, while it will help preserve 
our democracy for a little longer and it will take some of the problems 
out of the way we finance campaigns today, nothing will cure the 
problem like public financing.
  But the point I want to make, what I worry about is, if we pass 
McCain-Feingold, there will be a lot of hoopla about it, because I have 
never known people as tenacious and determined and as hard-working as 
Senator Feingold and Senator McCain have been on this issue. They have 
my deep and abiding admiration for their tenacity and their 
determination to try to do something about what is wrong with the 
system. But if it passes, we will go home and we will pat ourselves on 
the back and give ourselves the ``good government'' award, as Senator 
Hollings is always saying, and the American people will be thinking the 
system has been fixed. A lot of it will have been fixed, but problems 
will remain and I fear that they will make the people even more 
cynical.
  The issue advocacy ads that are really ads for a candidate--they 
drive me crazy. This bill would help to bring them under control, 
require disclosure of the sources of money used to produce them. They 
are really campaign spending.
  I can tell you, I have voted for one constitutional amendment since I 
have been in the Senate. I voted for ERA soon after I arrived in the 
Senate.
  Since that time, I have voted about 32 times against every 
constitutional amendment. Either earlier this year or last year, I 
voted against Senator Hollings' amendment to the Constitution which 
would have allowed the Congress to set campaign spending limits. I am 
going to vote for it. I want to announce now publicly, the next time 
Senator Hollings brings that amendment up, I intend to support it. 
Despite my deep reservations about amending our Constitution, I will do 
almost anything to change the way we finance campaigns in this country, 
because I am absolutely convinced that this system is totally 
destructive to our democracy. I yield the floor, Mr. President.
  Ms. COLLINS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I rise to announce my intention to join 
my colleague from Arizona, Senator McCain, and vote for his motion to 
table the amendment offered by the distinguished majority leader to the 
McCain-Feingold campaign reform legislation.
  This has not been an easy decision for me. I strongly support the 
underlying objective, if not the precise language of Senator Lott's 
amendment. The principle that America's working men and women should 
not be required to contribute their hard-earned money to advance the 
campaign of candidates they do not support is a compelling one. The 
strong opposition of big labor to this reasonable proposal demonstrates 
their fear that many of the rank and file union members would not agree 
to the use of their dues for political purposes.
  But in the final analysis, my decision on this matter must be 
determined by considerations other than the merits of Senator Lott's 
amendment. The plain truth is that its adoption will kill campaign 
finance reform. That is not simply my judgment; it is the judgment of 
Senator McCain and Senator Feingold who have devoted so much time and 
energy to further the cause of reform.
  When I ran for the U.S. Senate, I made a clear and unambiguous 
promise to the people of Maine. I promised that I would fight for 
campaign finance reform. The people of my State responded by entrusting 
me to represent them in this body, and whatever other loyalties that I 
might have, I owe my ultimate allegiance to them. I kept that promise 
when I cosponsored the McCain-Feingold bill, and I am keeping it now by 
pledging to vote against what I have concluded is, in fact, a killer 
amendment.
  I do, however, want to say a few words to my Democratic colleagues. 
At the end of the day, we will not have campaign finance reform without 
sacrifices and courage on both sides of the aisle. If Senator Lott's 
amendment is not defeated, the spotlight will shift to the Democrats. 
So far, they have had the easy road, able to proclaim their passion for 
reform, knowing that it faces an uphill battle and confident that they 
can blame the Republicans if it does not pass.
  But if their response to the Lott amendment is simply to filibuster 
and not to offer a reasonable compromise on the union dues issue, an 
already skeptical public will reach the inevitable conclusion that 
Democrats are not serious about reforming the system. A number of 
Democrats have urged me to put principle over party, and to them I say, 
``Your turn may come.''
  Mr. President, a fair campaign finance system is essential to a 
healthy democracy. While not perfect, the McCain-Feingold bill would 
give us a fair system. Given the commitment of the people of Maine to 
fair play, I am confident that my position on this issue not only is 
right as a matter of principle, but also reflects the values of my home 
State.
  I want to also take this opportunity to commend Senator McCain and 
Senator Feingold for their unceasing efforts in this very important 
fight.
  Thank you, Mr. President. I yield the floor.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, let me take this opportunity to say what 
a Senator of courage the Senator from Maine is. This is a very 
difficult issue. The Senator from Maine, of course, is a loyal 
Republican, but for her to come out here and have the courage to stand 
up and join with us to say that this amendment would kill our bill is 
extremely important.

  I have heard her admonition as well that this must continue to be 
bipartisan. But the fact that she would come out here at this key 
moment and say that she will stand with a bipartisan effort, as she has 
done in the past, is not a minor matter. It is the same thing the 
Senator from Maine did a few months ago when everyone kept saying, 
``You don't have any cosponsors; you only have two Republican 
cosponsors.'' It was the Senator from Maine who actually had some ideas 
that were better than our ideas, and we added them to the bill and 
improved it.

[[Page S10408]]

  Let me add both my personal and professional gratitude for the 
commitment of the Senator from Maine to reform. We in Wisconsin like to 
think that we are the greatest reform State, but Maine sure gives us a 
challenge.
  Ms. COLLINS. Will the Senator yield?
  Mr. FEINGOLD. I yield for a question.
  Ms. COLLINS. I thank the Senator for his kind comments.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Mr. President, I rise today to add my voice to the very 
important discussion that the Senate is having regarding campaign 
finance reform, and I commend the Senator from Kentucky, Senator 
McConnell, for not only his leadership but for his tenacity in 
defending what he believes and so many of us believe is an assault on 
the first-amendment rights of all Americans.
  I also thank Senator Lott, our leader, for his leadership in 
scheduling this debate, and I commend my colleagues who thus far have 
added insight and value to our discussion.
  Mr. President, if we are to have campaign finance reform, I believe 
we must achieve those changes necessary to ensure public trust in our 
institutions and our Government officials. Serious reform must take 
into consideration the significant number of Americans who are 
compelled to make mandatory political contributions at their workplace 
as a condition of employment. No citizen should be required to make 
involuntary contributions to any candidate, party, or political 
interest group. No corporation, no labor union, and no business entity 
should have the power to twist the arms of their employees or members. 
These practices are wrong and un-American, and I believe they must be 
ended as part of our overall effort to reform the financing of Federal 
elections.
  Serious reform must also contain provisions that increase the 
frequency and specificity of mandated contribution disclosure. I 
support measures which bring about greater transparency, those that 
allow the American people to know the where, the when, how much, and 
from whom of campaign contributions.
  The last election cycle was filled with numerous activities that 
violated existing campaign laws. As we proceed through this debate, we 
should be mindful of the fact that these new reforms do nothing to 
reach those past violations. We must ensure that illegal foreign 
contributions are kept from election campaigns, and I believe that we 
must ensure disclosure violations are uncovered and are punished. Thus, 
perhaps the most important so-called change we can now achieve is to 
ensure that the existing laws are routinely and are properly enforced.
  However, in our zeal for change, we should not compromise the rights 
and freedoms of the same people we claim to protect. We must pay close 
attention, I believe, to the numerous Supreme Court decisions which 
clearly set forth that the regulation of many campaign-related 
activities directly implicates first-amendment rights.
  In 1974, the Supreme Court reviewed the Federal Election Campaign Act 
in the case of Buckley and struck down the statutory restrictions on 
campaign expenditures. In its holding, the Court concluded that 
political discourse ``is at the core of our electoral process and of 
the first amendment freedoms.''
  While the Court did allow a minimal level of restriction that we know 
about--caps on the direct contributions to candidates--and only for the 
purpose of preventing corruption or the appearance of corruption, it 
granted the full protection, Mr. President, of the first amendment to 
anyone spending money to communicate an idea, a belief, or a call to 
action.
  In no uncertain terms, the Buckley decision makes clear that the 
first amendment forbids the Federal Government from restricting 
political speech and expression rights by way of campaign expenditure 
limits.
  Mr. President, the Buckley decision does not stand in isolation. For 
the past 20 years, the Supreme Court of the United States has returned 
to this decision and consistently and unequivocally reaffirmed its 
soundness. The Court's subsequent decisions clearly demonstrate this, 
such as in FEC versus National Conservative Political Action Committee. 
The Court, tracking the Buckley decision, struck down restrictions on 
funds spent in support of publicly financed Presidential candidates in 
furtherance of their election. The Court held that such expenditures 
fell squarely, Mr. President, within the protections of the first 
amendment rights.
  Also, in the FEC versus Massachusetts Citizens for Life, the Court 
ruled that the voter guide published by an incorporated entity was 
entitled, Mr. President, to first amendment protections and invalidated 
an enforcement action the FEC brought against this organization.
  More recently, Mr. President, in Colorado Republican Federal Campaign 
Committee versus FEC, the Court again, following Buckley, held that 
first amendment protection covers someone communicating an idea, a 
belief, or a call to action. The Court found that political party 
expenditures made in support of party ideals and even party candidates 
were protected under the first amendment of the Constitution of the 
United States so long as the expenditures were not made, as we say, in 
coordination with candidates.
  Mr. President, the Supreme Court rulings provide us two guideposts in 
our endeavor to reform campaign finance. We have the constitutionally 
proscribed power and thus the responsibility to prevent corruption and/
or the appearance of corruption in Federal elections, but we can ``make 
no law * * * [that] abridges the freedom of speech * * *,'' quoting the 
Constitution.
  Therefore, I believe that it is essential that any reform initiatives 
we pass do not further encroach on the basic rights protected under the 
first amendment. It is not the proper role of Government, I believe, to 
restrict the ability of the American people to participate in election 
campaigns. It would be absurd, I think, to allow the Government to 
control the manner in which Americans communicate. If reform crosses 
these lines, I think it commands too high a price, it goes too far.
  Mr. President, in light of the Supreme Court holdings, I do not 
understand and cannot support the present legislative efforts that 
directly impinge on first amendment rights. I particularly object to 
the so-called reform in Senators McCain and Feingold's bill which 
restricts independent parties from communicating ``for the purpose of 
influencing a Federal election,'' regardless of whether the 
communication is expressed advocacy.
  Just think about it. Time and again, in case after case, the Supreme 
Court of the United States has held that Congress can only legislate to 
restrict campaign-related activities where those activities comprise 
the express advocacy of a particular candidate. The Court even 
specified in a footnote in the Buckley case what it meant by express 
advocacy--communications such as ``vote for,'' ``elect,'' ``defeat'' 
and ``reject.'' So when Congress places restrictions on communications 
that do not fall within this tightly drawn class, it violates, 
according to the Court, the first amendment.

  Mr. President, as we have consistently heard on the floor during this 
debate, the first amendment is not a loophole. It is beyond our 
constitutional authority to restrict the ability of independent groups 
to communicate their political views where they do not engage in 
express advocacy.
  Mr. President, I am also greatly troubled, as are others, by a 
provision in Senators McCain and Feingold's bill which prohibits 
independent communications that merely mention the name of a candidate 
within 60 days of a Federal election. Not only does such a restriction 
strike at the heart of first amendment protections, it all but 
guarantees a free ride to the incumbent involved in the election.
  Just think about it, Mr. President. If there is no commentary 
regarding a candidate's performance in office at the time when the 
electorate is most tuned into the campaign, no sitting Member would 
ever lose. Incumbents would be able to capitalize on the inherent 
advantages of being in office, while challengers would be forced to 
rely solely on their own and probably much less resources.
  This provision is incumbent reelection insurance, not campaign 
finance

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reform. Make no mistake about it. The electorate must be able to hear 
all the views about candidates in a timely manner. And candidates must 
be able to stomach the full range of opinions regarding their 
candidacy.
  Mr. President, we must clean up the system but without compromising 
fundamental first amendment rights. I believe this task is difficult 
but not impossible. Without infringing upon any American's rights, we 
can ensure that the American people control the direction of their 
contributions, have an understanding of who gave what to whom, and are 
confident that our elections are free of foreign influence, which is so 
important.
  Mr. President, the Senate, I believe, should work to enact these 
measures into law and not infringe on our first amendment rights.
  I yield the floor.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. DOMENICI. I say to the Senator, I wonder if I might take 3 
minutes as in morning business. I can go into morning business and do 
this, and then we can come back to this.
  Mr. LEVIN. I ask unanimous consent that I be allowed to yield to 
Senator Domenici for up to 5 minutes and then have my rights to the 
floor restored.
  The PRESIDING OFFICER. Is there objection? Hearing no objection, 
without objection, it is so ordered.
  The Senator from New Mexico is recognized.
  Mr. DOMENICI. I thank the Senator very, very much. I will be perhaps 
even briefer than that.

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