[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
[[Page S10356]]
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?'
[[Page S10363]]
``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
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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
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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.
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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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