Congressional Record, Volume 143 Issue 137 (Monday, October 6, 1997)

[Congressional Record Volume 143, Number 137 (Monday, October 6, 1997)]
[Senate]
[Pages S10420-S10426]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

CAMPAIGN REFORM

Mr. BURNS. Mr. President, on the issue of campaign reform, the words
I speak here might not climb to the intellectual level of
constitutional dialog as others who are more versed in the subject. I
don't think it has to go that high. I think the simpler we keep it, the
easier it will be for the American people to understand what we are
trying to do.
I want to premise this by saying that I believe, and strongly
believe, in four basic principles:
We should abide by current law.
We should have full and timely disclosure.
All contributions to campaigns must be voluntary contributions.
And, yes, we have to abide by the first amendment of the Constitution
of the United States.
Through this debate, a debate, I might add, whose time has come, a
lot will be said of the good and not so good points of the pending
legislation, which, basically, right now is the new McCain-Feingold
legislation. It does address some of the concerns that I have had from
the beginning. However, I am still bewildered by one basic question in
this whole process that we have been through since Christmas a year
ago: Why is it, no matter what law we have, that it has become common
practice to ignore the law?
I suggest to my colleagues, after all is said and done--and maybe
more will be said than done--but to change our existing campaign
finance law, one important question remains to be answered: Why do we
reform or rewrite? Why don't we just abide by current law?
It is only logical to me that the best campaign reform is to enforce
current law. If one or a series of campaign laws have been broken, it
is clear to me that the enforcement of such laws should take center
stage in every case. Indicting the breakers of the law, the alleged
violators, would do more to reform campaign finance practices than any
proposed legislation that we could ever pass through this body.
Think about that a little bit. Indicting the alleged violators of
present law

[[Page S10421]]

to make them stand for their practices would do more than any reform we
could do for campaign practices that is before us today. It is very
simple.
Volume 18, United States Code, section 607 clearly prohibits
soliciting and receiving contributions in a Federal building. I quote:

It shall be unlawful for any person to solicit or receive
any contribution in any room or building occupied in the
discharge of official duties.

No one has ever been prosecuted under this statute.
To reiterate what many others have stated as a matter of fact, in the
1996 election cycle, that law was allegedly broken. In fact, Mr.
President, it was clearly established during Senator Thompson's
hearings in the Governmental Affairs Committee that that was the case.
The offending parties have not been brought to the altar of justice.
Yet, the alleged violators contend that they have sent millions of
dollars back to their original donors after the election.
What does that say? What does that tell us? How is it that we, as a
nation, became a nation where we do not enforce the law? It seems that
a patrolman in Montana today was in town enforcing the law. What is the
difference?
It plainly states--and I quote--``any person who violates this
section shall be fined under this title or imprisoned not more than
three years, or both.''
Now, if it has been broken, it should be enforced. If we would
enforce the law, if we would indict the alleged violators, arrest,
present them to a judge and a jury, I think that would do more than
anything we can do in changing the law before us.
You know, Mr. President, I spent a long time refereeing football. We
are in football season. It catches everybody's imagination--the Super
Bowl, everything. I am wondering why that game can hold the order that
it does.
Let me tell you, I thought about that a long time. In order to
capture the imagination of the American people, there has to be some
order to it, it has to be competitive, it has to be fair.
So the first thing that happens is there is only one rule book. The
rules for high school or college or professional football is the same
in Kentucky as it is in California as it is in Colorado--one
federation.
And why is it on Saturday afternoon or Sunday afternoon four old men
in striped shirts can go down on a field of 22 of the most mobile,
hostile, heavily armored people intent on doing each other in and they
have very few problems? No. 1, the rules are enforced on both sides of
the ball. And, No. 2, that old man in a striped shirt is the arresting
officer, he is the judge and the jury, he is the penal officer, and he
does it all in 30 seconds.
A young man can haul off and slug his opponent. The referee sees it,
throws the flag. That is the arrest. The judge and jury--you are
guilty. ``So, 15 yards against your team and, you, young man, are out
of the football game.'' He can say, ``I come from a broken family.'' It
doesn't say anything in that rule book about that. The rule book says,
``Thou shalt not hit thy opponent with the open hand. If thou doest,
your team will be penalized 15 yards and you will get to watch the rest
of the football game.'' It does not make any difference who you are,
what you are; you are out of there.
So everybody understands the rules, everybody understands the
penalties. It is all done in 30 seconds. And they are enforced
immediately. And after an hour of play on the field, we have very few
problems.
What are we missing in real life when we start talking about that? No
doubt that the White House made phone calls from the White House. They
claim the law doesn't apply to them. It has never been tested in court.
Somebody has to file charges.
Here in the Senate there is one simple rule, one simple rule here in
the U.S. Senate: Do not make fundraising calls from your office. It is
not acceptable in any form, not by phone, not in person, not in
letters, and not by hosting events. And basically common sense would
tell you, do not put the taxpayers' property at the disposal of your
campaign.
We keep hearing about that we need to change the laws. What I am
saying here basically is, just obey the laws we have now. We cannot
turn a blind eye to the fact that 938 people stayed overnight in the
White House between 1992 and 1996 and they raised over $10 million, and
that 103 coffees raised $26 million over 18 months. All of these
activities are clearly established by the hearings. The law is very
clear. To misunderstand or to refer to loopholes, I think, is just
absurd.
To comment on the newly revised McCain-Feingold legislation, I am
pleased to see that some of those steps have been made in the right
direction on this piece of legislation. The authors certainly have
improved it from its original version. Unfortunately, however, it is
not in a comprehensive form.

That is why I commend the leader for what he has done because a major
tenet to campaign finance reform should be that all Montanans, all
Americans, who desire to give money or to participate in any way in a
political campaign, do it voluntary. That is all we are asking. I do
not want anybody to tell me where I have to give my money. If you do
not want to contribute, you should not have to.
No one should be forced to do that, no political party, nobody,
whatever, no organization should have the power to collect dues or any
other form of payment for political uses without receiving consent.
The McCain-Feingold bill contains the Beck language, but that leaves
a lot to be desired. And in some cases it is not as fair as it could be
or should be. It allows union members to receive a refund upon request.
But that union member must give up his union privileges at that moment.
You are not allowed both. You cannot choose whether or not to make
political contributions and still be a member of the organization.
So the Paycheck Protection Act is not a poison pill. It is a right.
It is a basic right. It is a basic right for every man and woman and
child in this country, whether to give funds or your services or your
labors for a candidate, for a political party, or a ballot issue. It
makes no difference. You should do it voluntarily. It is just a basic
American freedom.
So this provision, the Paycheck Protection Act, I think we can all
agree on that, that all contributions should be voluntary. That is the
reason that is important, for no one person, no one group, no
association should be able to spend your hard-earned dollars without
your consent.
There are troubling provisions. They still remain in this
legislation. Clearly, as it exists today, it runs afoul of the first
amendment. That has been already taken to a plain that I am sorry I
cannot attain.
Political spending is equated with speech. The courts are clear and
consistent on that point. We cannot say, on the one hand, we are
protecting speech and, on the other hand, restrict the means by which
that speech is carried out.
Under the revised bill, corporations and other organizations would be
prohibited year-round from issuing communications to the public that
fall under the bill's much broader definition of ``express advocacy,''
which includes ``words that in context can have no reasonable meaning
other than to advocate the election or defeat of 1 or more clearly
identified candidates'' or ``expressing unmistakable and unambiguous
support for or opposition to 1 or more clearly identified candidates
when taken as a whole and with limited reference to external events,
such as proximity to an election.''
With respect to that restriction, it is my belief it would not
withstand constitutional scrutiny. The Supreme Court in Buckley versus
Valeo--that is all going to be talked about--in striking down the
$1,000 limit on independent expenditures enacted by Congress in 1974 as
a violation of the first amendment, noted that such limitation ``would
appear to exclude all citizens and groups except candidates, political
parties, and institutional press from any significant use of the most
effective modes of communication.'' In other words, we don't want to
take away the power of the people and place it in the hands of
politicians, the Government and the press.
So I suggest to my colleagues there is an answer and it is a better
answer. It is simple, it is understandable, easily complied with, even
easier to monitor--full and timely disclosure. Full and timely
disclosure should be the

[[Page S10422]]

core, the core of all finance practices. We always thought we need to
enhance public disclosure measures that will allow the voters to know
where every single penny comes from and where every single penny is
spent, no matter what the organization.
You want to do something about soft money? I will tell you how to do
away with soft money, just report it. This would give a full picture of
the situation and allow the Sun to shine in the dark corners of the
current campaign practices.
Mr. President, let me end by saying we are getting closer to the
reform package. Some of the changes, visions, are true steps in the
right direction. I support Senator Lott's amendment. It is a good and
necessary addition to this legislation. We should take a look at soft
money and where it goes and how it is raised. The only way you do away
with soft money is that everybody files, everybody reports, because you
have to remember it didn't start just last week. I think there was a
little failure to disclose in October of 1996, and before this
discussion is all over, I am going to give this Senate an opportunity
to vote on a little amendment that may put some teeth in that. They are
not going to like the teeth. But I guarantee you they will file. They
will file their FEC report, and that is what has to happen.
We all look at ourselves here as being part of this reform package.
There are other things and other people that are also involved that
will be affected by this. So before it is all over, we will see how far
they really want to go in campaign finance reform, on what is right and
wrong.
I yield the floor.
Mr. McCONNELL. Let me say briefly to my friend from Montana, thank
you very much for a very important contribution to this debate. I
listened with great interest to the contributions of my colleague from
Montana. He made also some very constructive suggestions.

Privilege of the Floor

Mr. McCONNELL. Mr. President, I ask unanimous consent that Shannon
Bishop be permitted privileges of the floor when we are debating this
issue.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, in our debate today we have talked about
a number of things. Again, you might think from the discussion that
there was only one provision of our bill, the McCain-Feingold bill, and
that provision had to do with the issue of express advocacy.
Of course, that is a very important aspect of the bill. Not only are
we confident of the constitutionality of those provisions, but we know
it is one of the very important issues that has to be resolved if we
are going to deal with the problem of big money in politics.
If you listen to the opponents of this bill you can swear that is all
McCain-Feingold is. But there are 25 other provisions that our
opponents choose to ignore, because not only are they essentially
noncontroversial provisions, they are the very provisions that, for
example, the Senator from Montana was just talking about.
A number of Senators today said on the floor, why don't we do full
disclosure? What I want to say to my colleagues, Mr. President, if you
kill the McCain-Feingold bill, you will be eliminating a number of very
key new provisions that will provide exactly the full disclosure that
Members of the other side have been calling for. In other words, our
bill does disclosure and more. So, why all this talk about why don't we
do full disclosure of campaign contributions?
The bill greatly enhances disclosure. Instead of simply saying that
contributions over $200 per person be reported, the McCain-Feingold
bill as modified requires all contributions over $50 to be reported.
The McCain-Feingold bill provides the most immediate disclosure
possible by requiring that candidates file electronically with the FEC.
It is no longer sufficient to just file a big stack of papers every 6
months and make people go through them. This will require computer
reporting and immediate public access to this information on a daily or
weekly basis so the connection between contributions and votes can be
plainly seen. That is real disclosure. I can't imagine a fuller
disclosure than that, unless we went to absolute zero which I would be
happy to do in terms of contributions.

The bill also requires--you don't hear about this from the other
side; they want to pretend somehow the bill is just about issue ads--
the bill requires groups and parties running independent expenditures
against candidates to disclose these expenditures to the FEC.
So, more information, more disclosure, more transparency, with regard
to independent expenditures. The bill requires that the Federal
Elections Commission make campaign finance records available on the
Internet within 24 hours of filing. The bill requires the campaign to
collect and disclose all required contributor information. Right now,
under the current law you can do something apparently that is called
making your best effort to figure out who is the person that made the
contribution and what their profession is. Our bill, the McCain-
Feingold bill, requires all such information be obtained upfront.
The bill also bars campaigns from depositing campaign contributions
over $200 into their campaign accounts until that information has been
disclosed. This is the disclosure that Senator after Senator who is
against our bill has called for. What they have never mentioned is that
it is in the bill. If you kill McCain-Feingold, you are killing all of
these disclosure provisions.
And there is another one that my constituents in Wisconsin have
called for, and that is to simply require political advertisements to
carry a disclaimer identifying who is responsible for the content of a
campaign ad. Time and again, I have heard my constituents say they are
sick and tired of all the negative campaigning, and they find it
particularly irritating that the people who run the ads aren't even
required to say who they are, who is doing the ad. This is disclosure.
This is what it is all about when it comes to letting the American
people have the information they need and deserve to evaluate what is
happening with money in politics.
Yet if you listen to the debate by our colleagues on the other side
of this issue, you could swear there is no disclosure. I have not heard
a single idea regarding disclosure that goes beyond this. This is full
disclosure, Mr. President. Kill McCain-Feingold, you kill these
disclosure provisions.
The same thing goes for stronger provisions with regard to enforcing
our laws. All afternoon, Senators came to the floor and said ``We don't
need new laws. We need to enforce our current laws.'' I happen to agree
that we should more carefully and clearly enforce our current laws. I
don't think that does it by itself, but what it does do is indicate a
seriousness about any violations that have occurred. I agree. But it
has become clear in the middle of the scandals and the allegations that
some of the provisions in our statutes need some shoring up so that
enforcement can improve.
What do we do about enforcement? What does McCain-Feingold do about
enforcement of the law that would be eliminated if the filibuster
succeeds? If McCain-Feingold is defeated, not only would our efforts to
deal with phony issue ads and that are really express advocacy ads be
defeated but all of these strengthening provisions would also go down.
One provision prohibits foreign nationals from making any sort of
contribution or donation to candidates or parties. After all the talk
on both sides of the aisle about foreign contributions distorting our
political process--a concern which I share--do we want to kill campaign
finance reform, and with it eliminate a provision that would prohibit
foreign nationals from making any sort of contribution or donation to
candidates or parties? We need to strengthen that law. The filibuster
would kill it.
Mr. President, this bill some would like to kill strengthens current
law, making it absolutely clear that it is unlawful to raise or solicit
campaign contributions from Federal property, including the White House
and the U.S. Congress. Mr. President, there has been a great deal of
talk by Senators today about the need to deal with that problem. This
bill makes sure there are no excuses for those who would pretend
whether they are in the White House or in an office of a Congressman or
Senator, that somehow there is a way to get around it and actually
raise money

[[Page S10423]]

from your office. Our bill takes care of that. Killing it destroys it.

The bill increases the penalty for knowingly and willfully violating
Federal election law. The bill permits the Federal Election Commission,
for the first time, to conduct random audits at the end of a campaign
to ensure compliance with Federal election law. The bill bars Federal
candidates from converting campaign funds for personal use such as for
a mortgage payment or country club membership. Yes, it bars minors,
those under 18, from contributing so that we don't have 3-year-olds
giving $1,000 contributions anymore which is perfectly legal under
current law. Those who would defeat and filibuster McCain-Feingold
would wipe out all of these new enforcement provisions and leave
nothing.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. FEINGOLD. I ask unanimous consent for 5 more minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. FEINGOLD. Senators on both sides have been very generous with the
time today. I will try to keep it brief. Beyond the disclosure and
enforcement, we also do something about the fact that we all know that
incumbents have an advantage under the current system. Our system says
that if people agreed to limit their personal spending to $50,000, they
would be able to continue to receive help from their parties in the
form of coordinated expenditures; otherwise, not. That could be a
deterrent to an advantage for an incumbent or perhaps a very wealthy
individual who is trying to obtain a Senate seat through spending a
great deal of money.
Our bill simply bans Members of Congress from sending out taxpayer-
financed mass mailings under the franking privilege during the calendar
year of their election. This is a major advantage that incumbents have
over challengers. Again, if you wipe out the bill, you wipe out McCain-
Feingold, you haven't just addressed the one or two matters the other
side identified as a problem, you have wiped out these reforms as well.
Finally, Mr. President, with regard to the issues of soft money and
what I like to call ``phony issue ads,'' I have noticed that throughout
this debate Senators on the other side have focused their attention
primarily on trying to claim that our provisions with regard to express
advocacy are somehow going to be struck down by the Supreme Court. Of
course, in that regard, what I say is, in the worst-case scenario if
our provisions are unconstitutional, the Supreme Court will strike it
down and it won't go into play. But what I have noticed is that at the
same time that this constitutional argument has been advanced we hear
virtually nothing anymore about the fact that our bill bans soft money.
Where has the argument gone that banning soft money is
unconstitutional? It appears to be gone. There is no challenge to our
claim and our ability to demonstrate that 126 constitutional scholars
believe this is not only constitutional but essential.
With that, Mr. President, I remind my colleagues that there is a
great deal to this bill that would be destroyed if we do not avoid this
filibuster. In that regard, I want to say that I listened with great
interest earlier to my colleague as he discussed the decision this
morning of the Supreme Court to deny certiorari with regard to the FEC.
The fact is, Mr. President, the claim of the Senator from Kentucky that
the Supreme Court struck down some kind of decision is just not true.
The Supreme Court simply chose not to take up that case, just as it
chose in the past not to take up the ninth circuit case that makes
almost the opposite decision.
There is a conflict between the courts. The Supreme Court, at some
point, may have to resolve this. Maybe they will have to resolve it
when acting on the McCain-Feingold bill. But what is clear is it was
neither striking down of a provision, nor was it a huge moment. It was
nothing but the Supreme Court saying we are not going to take this up
right now. I recognize the pressure that is behind the effort to kill
this bill. I recognize the temptation to try to make something of a
decision that is simply not there. But to suggest that this is a major
decision or a precedent that has something to do with what the law of
the land is is simply not true. The Court didn't even offer an opinion.
They just said: we are not going to take up this first circuit case.
Mr. President, I listened with great interest earlier today to my
colleague as he discussed the decision this morning, of the Supreme
Court to deny cert--without opinion--in the case of Maine Right to Life
versus the FEC.
I think it is essential to put this silent decision into its proper
perspective, lest it be given weight it simply does not deserve.
Mr. President, there are any number of reasons, ranging from the
facts of the case to the simple fact that they can only hear so many
cases in a given year, which might lead to the Supreme Court denying
certiorari in any case.
The Supreme Court's unwillingness to consider the appeal of this case
is no more dispositive on the issue of express advocacy than was a
similar decision to deny cert some 10 years ago in FEC versus Furgatch.
In Furgatch, the Court of Appeals for the Ninth Circuit held that
context is relevant to determining what constitutes express advocacy.
In Furgatch, the court found that there was no doubt that the ad in
question asked people to vote against President Jimmy Carter.
The court also gave weight to the timing of the ad, noting that it
occurred within 1 week of the election. Further, they were not issues
based, but attacked the candidate directly--for personal qualities.
On October 5, 1987, the U.S. Supreme Court denied a petition for cert
filed by Mr. Furgatch.
Mr. President, today we have heard that a similar decision of the
Supreme Court--without comment, leaving in place a first circuit
decision that held the FEC's regulations regarding voting records and
voting guides were invalid, should be construed as to signal the end of
the debate on campaign finance reform.
Now we can debate the merits of the Maine case and the Furgatch case
and we may or may not reach a mutual opinion of what those cases mean.
However, what is not in dispute--in regard to either case--is that the
silent decision of the Court is not necessarily a substantive
affirmation of the lower courts.
Such a conclusion is simply not appropriate. There may be any number
of reasons--the exact reason we will likely never know--why the Supreme
Court passed upon the Furgatch case and on the Maine case this morning.
If we start inferring substantive approval to every lower court case
the Supreme Court refuses to hear, we will be left with a patchwork of
rulings and laws which defy any thread of continuity or precedential
value.
Mr. President, before we impute too much importance to the denial of
cert this morning in order to avoid comprehensive reform, I think we in
this body should take a long hard look at our role in this process.
We have an opportunity to address the very issues of Furgatch and
Maine Right to Life and rather than hide behind the silence of the
Supreme Court we should accept our responsibility and do just that. My
colleague, from Kentucky argues that McCain-Feingold is
unconstitutional despite the fact that legal scholars find otherwise.
The rejection of cert today means that the decision of the first
circuit remains in effect in that circuit, just as Furgatch remains
controlling in the ninth.
The two are in conflict and yet, the Supreme Court has elected to
pass on both. If the decision today, as my colleague from Kentucky
argues, means they support the first circuit, what does that mean in
the ninth circuit--that it is no longer good law?
Of course that is not what it means. What it means is that we have a
conflict which will remain unresolved unless either the Supreme Court
moves to resolve the conflict, or we, the legislative body make the law
clear.
We have no control over the Supreme Court--although I would note that
many in the Congress have been attempting to exert some control over
the courts in the past months--but we do have, in this body, an
opportunity to resolve this impasse ourselves.
This issue before this body remains the same as it has from the
outset--will we reform the campaign finance

[[Page S10424]]

system of this Nation. Nothing the Supreme Court said--or didn't say--
this morning changes that fundamental fact.
We should debate the constitutionality of this legislation and I
welcome that debate. We should not, however, hide behind the silence of
the Supreme Court as an affirmation of either position in this debate.
Mr. President, I thank my colleagues. It has been an interesting
debate. I appreciate the courtesy of the Senator from New Mexico.
I yield the floor.
Mr. DOMENICI. Mr. President, I apologize to the Chair that this is
the last speech of the evening. If I don't speak tonight, I probably
won't be heard on this issue. I have been trying this afternoon, but it
has been a fair assignment of speaking rights down here and I have
waited my turn.
Mr. President, before I deliver my prepared remarks, I want to
comment on a few things I heard on the floor. I tried at one point to
ask a question of the distinguished Senator from Arkansas, Senator
Bumpers, who made a lot about lack of participation in the American
democracy and especially with reference to campaign contributions. If I
read him right, he said because the big money is so influential and
powerful, if you will, other people don't think they ought to be
giving, as if other people weren't giving.
The truth of the matter is that in every campaign, including the last
time, more individuals gave small contributions and medium-size
contributions than in the history of the Republic. At the pace they are
on now, it looks like they are going to do that again. Now, how much is
enough? I don't know. But to say that because there are big
contributions, people aren't participating, you can go over and ask the
Republican Party where most of its contributions come from for the
regular activities of the parties, they will tell you from small
contributions, and they are there by the hundreds of thousands.
Second, a big thing was made by Senator Bumpers to the people
listening that the democracy was not participatory in America because
only 50 percent of the people voted, and perhaps in the State of
Colorado it was 53, or in New Mexico it was 52. You know, people are
really using that fact for a lot of inferences, and I am not sure many
of the inferences are right. But I surely don't believe that whatever
that participatory failure is--and in a moment I will say 50 percent
isn't a failure--it is surely not because of contributions that we are
trying to control here on the floor. There are so many reasons that
Americans don't participate in politics, not the least of which is that
Americans are just darn independent. They sometimes don't want to be
bothered about anything. As a matter of fact, they are very busy. As a
consequence, many of them just don't take time out. But I submit that
for a democracy as vintage as ours to have 50 percent of the voters
participating heavily and 50 percent or more, even though slightly
voting, that is a pretty good track record. I submit that if the 50
percent turned into 75, we would probably get the same results. I don't
want to cast any aspersions on the validity of individual votes, but
our participation is sufficient to deliver the will of the people. I
believe that is what we are all looking for--that the people's will
would be exercised at the ballot box and get the kind of Government
they want.
I rise today to offer to those colleagues who want to listen, and a
few of the American people who might be listening, some thoughts that I
have on this issue before the Senate now. Should Congress alter the
laws governing the way we conduct political campaigns in this country
in the manner recommended in the legislation before us, the so-called
McCain-Feingold reform? It seems to me that we ought to have a sense of
perspective about this.
I want to make one general statement before I talk a little bit about
history.
The risk and danger of changing the laws right now in the manner
recommended in this bill is that if that change causes one major group
of Americans to lose their freedom of speech because they cannot use
their money and causes another group of Americans to have an increased
influence on campaigns because they can use their money, then I believe
we ought to be very careful about that imbalance.
What I think might happen if these amendments are adopted to the code
that we now have is that there will be a lot more opportunity for the
labor unions in America, who might have nothing against it but are
protected under the Constitution for their rights and freedoms of
speech, but I am fearful that the balance which is there, since the
unions are almost a Democratic arm today, and I don't see any reason
why they will change for a while, it would seem to me we don't want to
get things out of balance and then look back and say, ``Oh. We also let
the electorate get influenced in an unbalanced way.''
So when I look at this democracy of ourselves, I see a very stable
democracy. I see something very, very special. In other parts of the
world when countries change their leaders, they often change the entire
nature of their government. In the last several years governments have
changed in Burma, Rwanda, Somalia and too many countries to mention.
Many of these changes involved bloodshed and all kinds of revolution
and riot. Obviously, for those who happen to be on the losing side,
when some governments changed hands, that meant torture, imprisonment
and all kinds of violations of civility and civil rights.
In the United States we ought to be very thankful that we have the
first amendment to the Constitution. It is the bedrock of this
democracy. To me the Constitution and the first amendment are what set
the United States apart as a mature democracy from the rest of the
world. The first amendment allows us to have free and open political
campaigns, and the Constitution provides for a smooth transition of
that power between the competing political parties once the election
has been completed.
In the name of reform, the bill before us fundamentally alters our
unique democratic electoral process just because many are dissatisfied
with the way our campaigns are financed and operated. Some are
disgusted by the ads. Others lament the fact that candidates no longer
control their campaigns. Many believe we need to abolish soft money.
Others contend if we pass this bill the public cynicism of elected
leaders will somehow evaporate.
The fact is, fellow Senators, that the debate over campaign spending
is as old as this democracy itself. George Washington was roundly
criticized in the early days of our country for spending three or four
times the cost of a house on his first election to the House of
Burgesses. Abraham Lincoln's supporters accused the Democratic opponent
of bowing to ``plantation and bank paper aristocracy'' which could
raise five times what Lincoln raised for his campaign. That is kind of
reminiscent of the discussions of today.
Let there be no doubt, the constitutionality of this legislation is
dubious. I heard some of the arguments today. I just do not believe
they are right.
In my mind, you can be for McCain-Feingold, or you can be for the
first amendment. I choose the first amendment.
The modified McCain-Feingold bill creates a so-called ``bright
line.'' That is a test 60 days out from election.
Mr. President, am I operating under a time restraint?
The PRESIDING OFFICER. We are in morning business. The time has
expired.
Mr. DOMENICI. I ask unanimous consent that I be able to speak for 7
more minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOMENICI. Let me go back.
This bill before us, McCain-Feingold--and I notice Senator Feingold's
presence here, and I commend him for the way he has conducted himself.
He feels as strongly about this as I do about my views.
But this bill creates a so-called bright-line test 60 days out from
election. In effect, the bright line attempts to get through the back
door what the Supreme Court in Buckley versus Valeo said you couldn't
get through in the front door. In Buckley, the Supreme Court said,
``The concept that government may restrict speech of some elements of
our society in order to enhance the relative voices of others

[[Page S10425]]

is wholly foreign to the first amendment.''
With respect to independent expenditures, the Buckley decision means
that individuals and groups may spend unlimited amounts on direct
communication with voters to support or oppose Federal candidates as
long as there is no coordination or consultation with any candidate.
At its heart the McCain-Feingold bill does two things:
First, it eliminates soft money.
Second, it reduces independent expenditures, express advocacy, and
creates the 60-day bright-line rule. Under the bright-line rule, any
independent expenditure that falls within 60 days of an election could
not use a candidate's name or likeness.

Mr. President, this is where the authors of the reform bill seek to
get through the back door what the Supreme Court has already ruled we
may not get through the front door.
By redefining independent expenditures and express advocacy, the
McCain-Feingold bill limits political speech which the Supreme Court in
Buckley said was unconstitutional. I believe they will do that again
when you try to tell those protected organizations already indicated as
being protected that you are protected, but for the last 60 days you
are not. If they are protected by free speech to involve themselves in
politics, is it more important to our constitutional democracy that
they be permitted to do that 2 years before an election or 58 days
before an election? I would assume they would all opt who want to use
their constitutional rights to say, ``I don't care about doing it 2
years before; what I care about is doing it when the people are paying
attention.'' I don't believe sitting members of this Supreme Court are
going to find that you can do that unless they decide to throw out
Buckley versus Valeo in its basic concept and principal thrust.
So I want to move on to one other subject. Currently groups like the
AFL-CIO, the Christian Coalition, the Sierra Club, the National Rifle
Association may run unlimited political advertisements using soft
money, in some cases in support of the opposition to a particular
issue. We have all heard on the floor how many of these ads contain the
likeness of a candidate. The Supreme Court in Buckley said that any
attempt to limit the expenditures of these groups for these purposes
was unconstitutional. McCain-Feingold would attempt to do precisely
what the Supreme Court has said is unconstitutional.
I ask fellow Senators, isn't it interesting? In this bill there is
also a provision that says, even if the Court strikes down one part,
the rest may be valid. I ask you, what will you have in America if they
strike down the 60-day prohibition and leave the soft money and the
soft money prohibition is constitutional? You will essentially have
decided to turn the campaign over to issue-oriented advertising with no
soft money available for party building for those who would seek to
refute it. I believe it is an untenable provision.
I have examined these provisions very carefully, and, even on the
slightest chance that the Supreme Court would find these provisions
constitutional, I ask my fellow Senators if this is good policy. The
reason I ask this question is that in my view when you muzzle political
speech of individual groups whose voices will carry the day--and I ask
that question in our zeal on both sides of the aisle to address the
role of certain entities in our election--you need to ask yourself what
the consequence will be of restricting the free speech of unions,
groups, corporations, and wealthy individuals to engage in campaigns,
related speech, and activities. In my mind, by restricting freedom of
speech for these groups, we will make the media an even more powerful
player in the political process.

During the 60 days prior to the election, when the so-called bright-
line rule is in effect, the only one who will be able to speak directly
about candidates will be through the news media. We all know around
Washington that you should not pick a fight with someone who buys paper
by the ton and ink by the barrel, because it enjoys the full protection
of the first amendment and it enjoys the total discretion of those who
write the news and edit the news. We call the media the fourth estate,
or the unofficial fourth branch of government. The media are the big
opinion makers. They write the editorials, they present the news, and
they decide which issues deserve the attention of the American people
on a daily basis.
We also know that members of the media are only human, and by that I
mean they are not always factual and they even pride themselves as
being opinionated. Their opinion tends to lean in favor of Democrats
and in particular of the liberal agenda in America. That is their
privilege. That is their right. Recent surveys have shown that close to
90 percent of the media votes for liberal Democratic candidates, and to
me it is clear that the media coverage of politics mimics the voting
record of the media, at least in many areas. What of their
independence? What about their role in the election of public
officials?
Thomas Jefferson once wrote:

There are rights which it is useless to surrender to the
Government, but which rights governments always have sought
to invade. Among those are the rights of speaking and
publishing our thoughts.

This bill is a giant step toward Congress invading the rights of many
to engage in political discourse.
In a recent column, George Will noted that this debate is one of the
most important in American history. He also noted that the media have
failed to address the first amendment problems created by McCain-
Feingold. In Will's words:

One reason the media are complacent about such restrictions
on others' political speech is that these restrictions
enhance the power of the media as the filters of political
speech and unregulated participants in a shrunken national
debate.

I submit to the Senate that this is precisely the result we need to
avoid. When in doubt, I believe we should err on the side of more, not
less, political speech. That is the essence of democracy.
In my mind, there is at least one other issue which needs to be
addressed before we decide whether to adopt the so-called reforms. We
need to get to the bottom of the scandals and violations of the law
which occurred in the 1996 election. How can we talk about reform when
during the 1996 election individuals and party committees blatantly and
repeatedly violated the letter and the spirit of clear laws we
currently have on the books? How will so-called reform prevent this
from happening again in the future? We should not allow the call for
reform to shield those who have violated the law from being held
responsible for their acts. To do that makes a mockery of the Senate
and of our laws.
I participated in the Senate Governmental Affairs Committee hearings
the past several months. When the hearings began, I spoke of three
statutes that I believed were pretty clear. Section 441 of the Federal
Election Campaign Act makes it unlawful for foreign nationals to make
contributions to elections. After 2 months of the hearings, I heard
evidence of multiple violations of statutes by the Democratic National
Committee and its agents. I do not think I need to recite for the
American people all the examples of foreign money solicited by John
Huang, Pauline Kanchanalak, and Maria Hsia and others associated with
the DNC and the White House. The point is clear: The law prohibits
foreign money. But there is a clear pattern of ignoring the laws during
the last election.
Section 441(f) of the Federal Election Campaign Act prohibits making
a contribution to a Federal election in the name of another person.
Plain and simple, this law prohibits money laundering. We have seen the
past election replete with those, and yet we have seen nobody punished,
nobody penalized.
The final area of law implicated by the committee's investigation is
section 607 of the Federal Criminal Code. It makes it a crime to
solicit or receive campaign contributions on Government property. There
has been much debate in the media and among members of the committee
about whether the law covers the President and Vice President, whether
it extends to soft money, and what Congress' original intent was when
we passed this law more than a century ago.
To me, the law means what it says. Politicians, including those in
the White House, cannot use Federal facilities paid for by the taxpayer
to raise

[[Page S10426]]

money for their campaigns for national political office. That is how I
always understood the law. That is the way I have conducted fundraising
activities, in strict accordance with that interpretation, yet the
committee's record is full of evidence that fundraising calls were made
from the White House.

There are other issues of illegal activity which the committee has
yet to fully explore. Recently, the U.S. attorney for the Southern
District of New York obtained guilty pleas from three individuals
involved in the last Teamsters election. These individuals apparently
will testify that the Democratic National Committee and the AFL-CIO
were used in efforts to launder money from the union's treasury into
the reelection of Ron Carey, the Teamsters' president. I am not here
alleging that he knew of it or that he was a party to it. I am merely
reciting what I know from the reports from the guilty pleas and other
things occurring in that court.
The Democratic National Committee apparently entered into an
agreement with the Teamsters to launder money in exchange for
contributions to the party from members of the union.
We have heard a lot about the union's role in the last election, and
I share the concern expressed by my colleagues. But it seems to me that
we need to get to the bottom of the criminal allegations, not just
change the law to deal with their political activity.
I would like to make one point about unions and their activities in
the last election. We all know that unions spent at least $35 million
on issue adds in 44 congressional districts during the 1996 campaign.
Compared to the unions, Republican groups spent a pittance. Citizens
for Reform, a group which was created to counter the unions, spent $2
million in 15 districts. The coalition, Americans Working for Real
Change, spent $5 million. The unions spent $700,000 in 1 week for
advertisements. This is their privilege. This is their right. I do not
seek to limit them. I only seek to make sure that a balance is
maintained between the exercise of that right and the exercise of
rights by others. So the unions have decided, because the current law
gives them an advantage, that they are able to take a portion of their
money dues without consent and use these dues for political activities.
Some want to call the Lott amendment a poison pill. I believe the
vote, if we do have one on that issue, is a vote for fairness and
balance. I believe that all contributions and paid political speech
ought to be voluntary.
According to some, the law related to fundraising on Federal property
was designed to prevent Government officials from coercing political
contributions from Federal employees. Should the same rule against
political contributions being done without consent apply to everyone,
businesses, unions, PAC's and all?
On both sides of this issue I have listened as attentively as I can.
I think this has been a very civilized debate, worthy of the
institution of the Senate. But I have yet to hear anything that
convinces me that passing this bill, which will erode free speech
rights of candidates, parties and groups, is necessary to enhance our
electoral process.
Clearly, the bill takes us in the wrong direction, away from the
first amendment and from our free, fair and open electoral system that
is the envy of the world.
I would like to make one last point. Everyone here recognizes the
many problems we are addressing today stem from the fact that the
Supreme Court struck down various provisions in the post-Watergate
reforms that were passed in 1974 and upheld others. I wish to caution
Senators that the McCain-Feingold bill, although earnest in its attempt
to correct the errors of the past, fails to take heed of the history of
reforms of the past and is destined to lead us in the wrong direction
and on a course to make many of the same mistakes.
This bill contains a severability clause that essentially means if
certain provisions of this bill are held unconstitutional, the
remainder of the act shall not be affected by the rest of the holding.
Although I do not agree with the approach in this bill, I do believe
that those who will vote for this bill believe that it will somehow
level the playing field. If that is their interest, I ask them to very
carefully examine the consequences of the title VI severability clause.
If the Supreme Court holds that the bright-line rule created by this
bill is unconstitutional, which I believe they will, we will not only
have succeeded in increasing the inequities between the haves and the
have-nots, but we will have also created a Pandora's box, full of new
problems.
I thank the Senate for its attention.

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