Congressional Record, Volume 143 Issue 139 (Wednesday, October 8, 1997)

[Congressional Record Volume 143, Number 139 (Wednesday, October 8, 1997)]
[Senate]
[Pages S10501-S10522]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

BIPARTISAN CAMPAIGN REFORM ACT OF 1997--CLOTURE MOTION

The PRESIDING OFFICER (Mr. Hutchinson). Under the previous order,
there will now be 1 hour equally divided in the usual form, prior to
the cloture vote on S. 25.
Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, am I correct that the 1 hour between
now and the vote at 12 is equally divided?
The PRESIDING OFFICER. The Senator is correct.
Mr. McCONNELL. Mr. President, I would like to yield to the Senator
from Arkansas such time as he may desire, and take this opportunity to
come preside while he speaks.
(Mr. McCONNELL assumed the chair.)
Mr. HUTCHINSON. Mr. President, I thank the Senator from Kentucky for
yielding time.
Yesterday I voted to invoke cloture on the McCain-Feingold bill.
Today I will oppose that effort.
I voted for cloture because I want campaign finance reform. I want an
opportunity to amend McCain-Feingold, which I believe is a seriously
flawed bill. I want a chance to vote on a reform bill and I want to ban
or limit soft money. But it is now clear that there is no consensus in
support of McCain-Feingold, and if we are to have serious and
meaningful reform, we will and must take a different direction.
I absolutely do not support the current version of McCain-Feingold.
In my opinion, and I have expressed it both publicly and privately,
McCain-Feingold contains provisions that threaten free speech and pose
serious constitutional problems, especially in the area of issue
advocacy. These groups, which play such an important part in the
political process, regardless of their affiliation, deserve to play
that important role. And we must not in any way place a chill on their
right of free expression and their ability to criticize their public
officials. There have been abuses, no doubt about that. But it is far
better for us to err on the side of freedom and to err on the side of
liberty and to err on the side of the Constitution than to take a
chance of passing a misguided, though popular right now, reform bill
that would in fact begin that erosion of those liberties and freedoms
and the right of free expression that we cherish as Americans and that
we always should.
It is clear there is no consensus on McCain-Feingold and will not be.
It is equally clear that repeated cloture votes on McCain-Feingold is a
part of a political strategy to portray opponents of McCain-Feingold as
opponents of reform. As unfortunate as it is for the American people,
the McCain-Feingold bill has become so politicized that even supporters
of campaign finance reform, like myself, are disgusted with the
political tactics that have been used in this debate. You have to
question the sincerity of a strategy that disrupts Senate business and
distracts the Senate from other important business such as ISTEA, the
transportation funding bill, fast track, appropriation conference
reports and judicial nominations, all of these vitally important

[[Page S10502]]

things, pressing business of the American people, and to set that aside
so we can hold press conferences to portray opponents of McCain-
Feingold as opponents of reform, which is not true and is not fair.
If supporters of McCain-Feingold truly wanted to put forth a serious
effort to enact reform, they would take a different approach by working
to find consensus, by working to find agreement, rather than attempting
to score political points.
I will not be a part of these partisan guerrilla warfare tactics. I
fully and completely support campaign finance reform. I think we have
need to address it. I think we need to reform the system and
particularly deal with that area in which there has been abuse, in the
area of soft money. But I will not again vote to invoke cloture on S.
25 and be a part of a political game that is more concerned about
portraying political opponents in a certain bad light than enacting
meaningful and real and significant reform.
I thank again the Senator from Kentucky for his leadership and for
his genuine deep convictions in defense of the first amendment and the
right of free expression. I yield the floor.
(Mr. HUTCHINSON assumed the chair.)
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, I listened with keen interest to the
comments of the Senator from Arkansas and want to congratulate him for
his decision. With his decision there is an excellent chance that today
we will reach a historic high in opposition to measures similar to
McCain-Feingold. So I commend the Senator from Arkansas for his
conviction and thank him for his support in defense of the first
amendment. I think he has done the courageous and correct thing.
I want to make a few brief observations this morning. There is not a
whole lot left to say in this debate. But I wanted to refer to a few
articles over the last few days that I think ought to be noted and
printed in the Record.
A USA Today column on Monday, by Richard Benedetto, is worth noting,
in terms of the attitude of the press on this issue. Americans have
every right to expect that the press will not take sides on an issue
off of the editorial page. Here is Mr. Benedetto's column of Monday,
that I think is noteworthy, in USA Today. He says:

* * * * *

CNN gives its position away in the title of a show on
campaign finance it will air Tuesday: The Money Trail;
Democracy for Sale.
This was ostensibly an objective piece by CNN on campaign finance, an
issue which the occupant of the chair has just said is largely about
the first amendment to the U.S. Constitution.
Mr. Benedetto goes on:

Thanks to coverage such as that, it's no surprise polls
show that a majority of Americans want Congress to pass
legislation to tighten the rules under which politicians and
political parties collect money.
Never one to misread a popular trend, President Clinton has
enlisted on the side of reform. Never mind that it was
alleged abuses of current law by Clinton and Vice President
Gore in 1996 that intensified calls for change in the first
place. He's now a believer.
Just a couple of other comments from his column, Mr. Benedetto's
column in USA Today of Monday:

Media conduct on this one is not pure liberal bias. It's
another example of what Washington Post columnist Robert
Samuelson calls ``pack journalism run amok.''
``We media types fancy ourselves independent and skeptical
thinkers,'' he recently wrote. ``Just the opposite is often
true. We're patsies for the latest social crusade or
intellectual fad.''
Mr. President, I ask unanimous consent Mr. Benedetto's column in USA
Today 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 USA Today, Oct. 6, 1997]

Media Too Quick To Buy Into Campaign Reform

(By Richard Benedetto)

If you think the news media are providing the straight
story on efforts to revise campaign finance laws, look
closer.
Much of the reporting is tilted toward voices in favor of
wholesale reform. Those who take an opposing view are mostly
portrayed as either corrupt or partisan.
Little space or time is devoted to sober, broad looks at
arguments on all sides of the issue. Instead, coverage is
often emotional and selective. Reporting usually begins from
the premise that the McCain-Feingold reform bill now before
the Senate is good, and that any attempt to slow it, stop it
or change it is bad.
Proponents say the fate of our democracy hangs on reform.
And given a predisposition of many of the media to agree,
that message is hammered home almost daily.
Consider this opening sentence from an Associated Press
wire story last week: ``Virginia's candidates for governor
are taking full advantage of one of the nation's most liberal
campaign finance laws, raking in more than $10 million
through August.'' In one sentence, readers are given two
negative cues on campaign finance. The first: that Virginia
law is ``one of the nation's most liberal.'' The second: the
loaded phrase ``raking in.''
CNN gives its position away in the title of a show on
campaign finance it will air Tuesday: The Money Trail:
Democracy for Sale.
Thanks to coverage such as that, it's no surprise polls
show that a majority of Americans want Congress to pass
legislation to tighten the rules under which politicians and
political parties collect money.
Never one to misread a popular trend, President Clinton has
enlisted on the side of reform. Never mind that it was
alleged abuses of current law by Clinton and Vice President
Gore in 1996 that intensified calls for change in the first
place. He's now a believer.
While reform may be needed, there are several arguments for
moving carefully. For example, enacting limits on
contributions could run afoul of the Constitution.
In 1976, the Supreme Court ruled 9-0 that campaign
contributions are the equivalent of speech and that attempts
to limit them could violate First Amendment rights. How
thoroughly has that issue been aired? Not very. The focus of
most reporting is on procedural maneuvering of opponents.
When Senate Majority Leader Trent Lott, R-Miss., introduced
an amendment last week to require labor unions to get
permission of members before spending dues money for
political purposes, news reports said he was ``muddying the
water.''
Opponents called it ``a poison pill.'' Newspaper editorials
denounced the move as shamefully partisan. The charge:
Republicans want to hamper unions' ability to raise money
because the millions of dollars they raise for campaigns go
mostly to Democrats.
But if that's legitimate cause for denouncing the
amendment, why is it not similarly legitimate to question the
motive of Democrats seeking to ban ``soft money?'' Those are
unlimited contributions that go to political parties and are
supposed to help pay for party-building activities such as
get-out-the-vote efforts.
Republicans collect more soft money than Democrats. So it
would seem in the Democrats' interest to get rid of that GOP
advantage. Yet, few raise that point. According to the
prevailing wisdom, soft money must go--period.
Media conduct on this one is not pure liberal bias. It's
another example of what Washington Post columnist Robert
Samuelson calls ``pack journalism run amok.''
``We media types fancy ourselves independent and skeptical
thinkers,'' he recently wrote. ``Just the opposite is often
true. We're patsies for the latest social crusade or
intellectual fad.''
The anti-smoking campaign is a recent example of the media
buying in with few reservations. Global warming, too. Now
it's campaign finance reform.
Mr. McCONNELL. Also there was a recent and interesting survey
conducted by Rasmussen Research, out of North Carolina.

Most Americans think that friendly reporters are more
important to a successful political campaign than money,
according to a Rasmussen Research survey of 1000 adults. By a
3-to-1 margin (61 percent to 19 percent) Americans believe
that if reporters like one candidate more than another, that
candidate is likely to win--even if the other candidate
raised more money in a campaign.

I ask unanimous consent that be printed in the Record as well.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Reporters More Influential Than Campaign Cash?--Most Americans Say Yes!

Waxhaw, NC.--Most Americans think that friendly reporters
are more important to a successful political campaign that
money, according to a Rasmussen Research survey of 1,000
adults. By a 3-to-1 margin (61% to

[[Page S10503]]

19%) Americans believe that if reporters like one candidate
more than another, that candidate is likely to win--even if
the other candidate raised more money in the campaign.
``This finding raises basic questions about the types of
reform that it will take to restore voter confidence in
representative democracy,'' noted Scott Rasmussen, president
of Rasmussen Research. ``Campaign contributions that buy
special favors are viewed by the American people as a problem
that needs to be addressed. However, most also think that
much more serious reform will be needed to solve our nation's
electoral problems.''
Earlier surveys by Rasmussen Research have found the most
Americans think the passage of new campaign finance laws will
not end corruption in government. The consensus view is that
new laws would simply encourage politicians to find new ways
of obtaining money in exchange for votes or other favors.
Nine-out-of-ten Americans believe that members of Congress do
exchange votes for campaign cash.
Americans are also generally suspicious of reporters. More
than seven-out-of-ten registered voters believe that the
personal biases of reporters affect their coverage of
stories, issues, and campaigns.
Additional survey information on campaign finance reform
and other issues can be found at www.PortraitoAmerica.com, a
web site maintained by Rasmussen Research.
Rasmussen Research is a public opinion polling firm that
conducts independent surveys on events in the news and other
topics. The survey of 1,000 adults was conducted September
27-28, 1997. The survey has a margin of sampling error of +/
-3 percentage points, with a 95% level of confidence.

Mr. McCONNELL. Also, there was a fascinating column by Robert
Samuelson in Newsweek of October 6, Monday of this week. The headline
says, ``Making Pols Into Crooks--Campaign-Finance `Reform' Criminalizes
Politics and Deepens Public Cynicism.''
Let me just take a few excerpts out of this article, because I think
it really is excellent, and sums up the nature of this debate. Bob
Samuelson says:

The ``reformers'' claim they're trying to lower public
cynicism by cleansing politics of the evils of money.
Actually, they're doing the opposite: by putting so many
unrealistic restrictions on legitimate political activity,
the ``reformers'' ensure that more people--politicians,
campaign workers, advocacy groups--will run afoul of the
prohibitions. Public cynicism rises as politics is
criminalized.

Mr. Samuelson goes on:

There is no easy way to curb the role of money in politics
without curbing free expression. If I favor larger (smaller)
government, I should be able to support like-minded
candidates by helping them win. Campaign ``reformers''--who
would like to replace private contributions with public
subsidies and impose strict spending limits--reject this
basic principles.
Money, they say, is corrupting politics. It isn't.
Campaign spending isn't out of control or outlandish. In
the 1996 election, campaign spending at all levels--

At all levels, Federal, State and local--

totaled $4 billion, says political scientist Herbert
Alexander of the Citizens' Research Foundation. That was one
twentieth of one percent of the gross domestic product of
$7.6 trillion. Americans spend about $20 billion a year on
laundry and dry cleaning. Is the price of politics really too
steep?

Robert Samuelson asks.
Further in the article he says:

More menacing are the artificial limits that ``reformers''
have imposed on political expression----
Something the Senator from Arkansas was just referring to a
few moments ago in his speech----
What's been created is a baffling maze of election laws and
rules that, once codified, establish new types of criminal or
quasi-criminal behavior. Anyone tiptoeing around the rules is
said to be ``skirting the law.'' And there are violations. In
the futile effort to regulate politics, the ``reformers''
have manufactured most of the immorality, illegality and
cynicism that they deplore.
Today's ``abuses'' stem mostly from the 1974 ``reforms''
enacted after Watergate. Congress then limited the amount
individuals could give a candidate to $1,000 per election;
total giving to all candidates (directly, through parties or
committees) was limited to $25,000 a year. What happened? The
limits inspired evasions. Suppressing contributions to
candidates encouraged new political-action committees. People
gave to PACs, which give to candidates. In 1974, there were
608 PACs; now there are 4,000.
Another evasion is ``independent spending'': groups (the
Supreme Court says) can promote a candidate by themselves if
they don't ``coordinate'' with a candidate. The present
evasion of concern is ``soft money'': contributions to
parties for ``party-building'' activities like voter
registration. ``Soft money'' contributions have no limits; so
Tamraz could give $300,000. But ``soft money'' can also be
used for general TV ads that mention candidates as long as
they don't use such words as ``vote for.'' Does any of this
make any sense? Not really. Ordinary people can't grasp all
the obscure, illogical distinctions.

And he is talking, Mr. President, about current law, even before we
talk about making it more complicated.

No matter. The failure of past ``reforms'' is no barrier to
future ``reforms.'' The latest effort is the McCain-Feingold
bill now before the Senate.

Samuelson says:

Most of the bill flouts the spirit, if not the letter, of
the First Amendment.

Mr. President, I ask unanimous consent that this article be printed
in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:

[From Newsweek, Oct. 6, 1997]

Making Pols Into Crooks--Campaign-Finance ``Reform'' Criminalizes
Politics and Deepens Public Cynicism

(By Robert J. Samuelson)

The prospect that an independent counsel will be named to
investigate the alleged campaign-law violations of President
Bill Clinton and Vice President Al Gore exposes a central
contradiction of ``campaign-finance reform.'' The
``reformers'' claim they're trying to lower public cynicism
by cleansing politics of the evils of money. Actually,
they're doing the opposite: by putting so many unrealistic
restrictions on legitimate political activity, the
``reformers'' ensure that more people--politicians, campaign
workers, advocacy groups--will run afoul of the prohibitions.
Public cynicism rises as politics is criminalized.
The distasteful reality is that politics requires money. To
compete, candidates must communicate; and to communicate,
they need cash. Someone has to pay for all the ads, direct
mail and polls. There is no easy way to curb the role of
money in politics without curbing free expression. If I favor
larger (smaller) government, I should be able to support
like-minded candidates by helping them win. Campaign
``reformers''--who would like to replace private
contributions with public subsidies and impose strict
spending limits--reject this basic principle.
Money, they say, is corrupting politics. It isn't. Campaign
spending isn't out of control or outlandish. In the 1996
election campaign spending at all levels totaled $4 billion,
says political scientist Herbert Alexander of the Citizens'
Research Foundation. That was one twentieth of one percent of
the gross domestic product (GDP) of $7.6 trillion. Americans
spend about $20 billion a year on laundry and dry cleaning.
Is the price of politics really too steep?
Nor have contributions hijacked legislation. Consider the
tax code. It's perforated with tax breaks, many undesirable.
Some tax breaks benefit wealthy constituents who sweetened
their lobbying with generous campaign contributions. But the
largest tax breaks stem mostly from politicians' desire to
pander to masses of voters. In the 1997 tax bill, Clinton and
Congress provided huge tax breaks for college tuition. Does
anyone think these passed because Harvard's president is a
big contributor?
The media coverage and congressional hearings of today's
alleged campaign-finance ``abuses'' have, of course, revealed
the frenzied and demeaning efforts of politicians of both
parties to raise money. But there hasn't been much evidence
of serious influence buying. The worst we've heard is of
President Clinton's, in effect, subletting the Lincoln
Bedroom to big contributors and of businessman Roger Tamraz's
giving $300,000 to Democrats in the hope of winning
government support for an oil pipeline. All Tamraz got was a
brief chat with Clinton and no blessing for the project. This
sort of preferential ``access'' isn't dangerous.
More menacing are all the artificial limits that
``reformers'' have imposed on political expression. What's
been created is a baffling maze of election laws and rules
that, once codified, establish new types of criminal or
quasi-criminal behavior. Anyone tiptoeing around the rules is
said to be ``skirting the law.'' And there are violations. In
the futile effort to regulate politics, the ``reformers''
have manufactured most of the immorality, illegally and
cynicism they deplore.
Today's ``abuses'' stem mostly from the 1974 ``reforms''
enacted after Watergate. Congress then limited the amount
individuals give a candidate to $1,000 per election; total
giving to all candidates (directly, through parties or
committees) was limited to $25,000 a year. What happened? The
limits inspired evasions. Suppressing contributions to
candidates encouraged new political-action committees. People
give to PACs, which give to candidates. In 1974, there were
608 PACs; now there are nearly 4,000.
Another evasion is ``independent spending'': groups (the
Supreme Court says) can promote a candidate by themselves if
they don't ``coordinate'' with a candidate. The present
evasion of concern is ``soft money'': contributions to
parties for ``party-building'' activities like voter
registration. ``Soft money'' contributions have no limits; so
Tamraz could give $300,000. But ``soft money'' can also be
used for general TV ads that mention candidates as long as
they don't use such words as ``vote for.'' Does any of this
make sense? Not really. Ordinary people can't grasp all the
obscure, illogical distinctions.
No matter. The failure of past ``reforms'' is no barrier to
future ``reforms.'' The latest effort is the McCain-Feingold
bill now before

[[Page S10504]]

the Senate. Named after its sponsors (Republican John McCain
of Arizona and Democrat Russell Feingold of Wisconsin), it
would outlaw ``soft money'' and try to ban ``issue advocacy''
ads in the 60 days before an election (``Issue advocacy'' ads
favor or oppose candidates; the distinction between them and
``independent spending'' cannot briefly be explained.) Most
of the bill flouts the spirit, if not the letter, of the
First Amendment:
``Congress shall make no law . . . abridging the freedom of
speech . . .; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.''
The connection between campaign ``reform'' and the Clinton-
Gore predicament has emerged, ironically, in the complaints
of some ``reformers'' that the president and vice president
are being unfairly targeted. In The Washington Post,
Elizabeth Drew says that Gore behaved like a ``klutz,'' but
``klutziness isn't a federal crime.'' The 1883 law that he
and the president may have violated (soliciting contributions
from federal property), argues Drew, aimed to protect civil
servants from being shaken down by politicians. In The New
York Times, former deputy attorney general Philip Heymann
says the campaign against Gore aims only to ``destroy the
Democratic front runner for president.''
All this is true. But it misses the larger point: the
campaign-finance laws are so arbitrary and complex that they
invite ``criminality'' or its appearance. Bad laws should be
discarded. Rep. John Doolittle of California sensibly
suggests abandoning all contribution limits and enacting
tougher disclosure laws. The best defense against the undue
influence of money is to let candidates raise it from as many
sources as possible--and to let the public see who's giving.
That would be genuine reform.
Mr. McCONNELL. Mr. President, also in the Wall Street Journal of
October 1, there was a piece by Jonathan Rauch, who is a contributing
editor to the National Journal. I want to read a few parts of that.
Mr. Rauch said:

That is what they were thinking about when they wrote the first
amendment, political discourse.

We got into today's mess by defying both of these
principles, with predictable results. When reformers placed
limits on money spent to support or defeat candidates,
lobbies simply shifted to ad campaigns that omitted explicit
requests to vote for or against candidates: ``issue
advocacy,'' which the courts have ruled is constitutionally
protected. And when reformers placed tight limits on
contributions to candidates, donors began giving to political
parties instead: ``soft money.''
The distinctions between ``hard'' and ``soft'' money, and
between ``express advocacy'' and ``issue advocacy,'' are
grounded in legalistic mumbo-jumbo, and so the attempts to
enforce them have made campaign law bewilderingly complex
without accomplishing any of the law's goals. Campaigns are
neither cheaper nor fairer nor less dependent on private
money than, say, 30 years ago--just the opposite, in fact.
One conclusion you might draw is that the 1970s-style, money-
regulating model is bankrupt. Another is that a horse-
doctor's dose of the old medicine will finally heal the
patient. Enter Sens. John McCain and Russell Feingold.
Among many things their bill would do, two are paramount.
First, it would ban ``soft money'' given to political
parties. Second, to make the ``soft money'' ban work, it
would also restrict independent ``issue advocacy.'' Voila--no
more money, right?
Wrong. Lots and lots of money, but in different places. Ban
soft money, and lobbies would bypass the parties and conduct
their own campaign blitzes. Candidates and parties are
already losing control of their messages as lobbies--which,
unlike candidates and parties, are not accountable to
voters--run independent advocacy campaigns.

Mr. President, I see that my friend from Wisconsin is here. I am
going to reserve the remainder of my time and ask that the entire
Jonathan Rauch article that I just was reading from be printed in the
Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:]

[From the Wall Street Journal, Oct. 1, 1997]

Vote Against McCain, Wait, Can I Say That?

(By Jonathan Rauch)

The McCain-Feingold bill being debated in the Senate this
week has become the default option for campaign-finance
reformers: If you are an editorialist who needs to suggest
something better than today's tumbeldown system, you press
the McCain-Feingold button on your word processor. Well, the
system today is rotten, and radical change is needed. But
McCain-Feingold, for all its good press and good intentions,
is a bad bill. It would do nothing to end the failures of the
past 20 years. Indeed, it would unflinchingly compound them.
At the core of today's troubles are two realities that will
not yield to any amount of legislative or lawyerly
cleverness. The first is that private money--a lot of it-- is
a fact of life in politics, and if you push it out of one
part of the system it tends to re-enter somewhere else,
usually deeper in shadow. The second is that money spent to
communicate with voters cannot be regulated without impinging
on the very core of the First Amendment, which was written to
protect political discourse above all.
We got into today's mess by defying both of these
principles, with predictable results. When reformers placed
limits on money spent to support or defeat candidates,
lobbies simply shifted to ad campaigns that omitted explicit
requests to vote for or against candidates: ``issue
advocacy,'' which the courts have ruled is constitutionally
protected. And when reformers placed tight limits on
contributions to candidates, donors began giving to political
parties instead: ``soft money.''
The distinctions between ``hard'' and ``soft'' money, and
between ``express advocacy'' and ``issue advocacy,'' are
grounded in legalistic mumbo-jumbo, and so that attempts to
enforce them have made campaign law bewilderingly complex
without accomplishing any of the law's goals. Campaigns are
neither cheaper not fairer nor less dependent on private
money than, say, 30 years ago--just the opposite, in fact.
One conclusion you might draw is that the 1970s-style, money-
regulating model is bankrupt. Another is that a horse-
doctor's dose of the old medicine will finally heal the
patient. Enter Sens. John McCain (R., Ariz.) and Russell
Feingold (D., Wis.).
Among many things their bill would do, two are paramount.
First, it would ban ``soft money'' given to political
parties. Second, to make the ``soft money'' ban work, it
would also restrict independent ``issue advocacy.'' Voila--no
more money, right?
Wrong. Lots and lots of money, but in different places. Ban
soft money, and lobbies would bypass the parties and conduct
their own campaign blitzes. Candidates and parties are
already losing control of their messages as lobbies--which,
unlike candidates and parties, are not accountable to
voters--run independent advocacy campaigns. The McCain-
Feingold bill would accelerate the alienation of politicians
from their own campaigns, and, for good measure, it could
also starve the parties of funds.
The sponsors are aware that independent advertising might
replace soft money: thus the bill's remarkable new limits on
all ads that mention candidates within 60 days of an
election. In the words of Sen. McCain: ``Ads could run which
advocate any number of causes. Pro-life ads, pro-choice ads,
antilabor ads, pro-wilderness ads, pro-Republican Party ads,
pro-Democrat Party ads--all could be aired in the last 60
days. However, ads mentioning the candidates could not.'' So,
for example, I might commit a federal crime by taking out an
ad in this newspaper criticizing Sen. McCain for supporting
his bill. The Founders would have run screaming from such a
notion, and rightly so: You cannot improve the integrity of
any political system by letting politicians restrict
political speech.
In real life the courts are likely to strike down McCain-
Feingold's speech controls, in which case, of course, the
limits would not work. But even if the limits were allowed to
stand, they still would not work: Everybody would race to
game the system by dressing up political expression in absurd
costumes, whose legitimacy would be contested ad nauseam in
the courts. Maybe my ad couldn't say ``Vote against McCain
and Feingold,'' but could it say ``Show the promoters of the
dangerous McCain-Feingold bill how you feel''? Who would
decide?
The potential for speech micromanagement is endless.
Imagine the fun lawyers could have with the bill's exception
for ``voter guides''--a permissible voter guide being (hold
on tight, now) any printed matter written in an ``educational
manner'' about two or more candidates that (1) is not
coordinated with a candidate, (2) gives all candidates an
equal opportunity to respond to any questionnaires, (3) gives
no candidate any greater prominence than any other, and (4)
does not contain a phrase ``such as'' (my italics), ``vote
for,'' ``re-elect,'' ``support,'' ``defeat,'' ``reject'' or
other ``words which in context can have no reasonable meaning
other than to urge the election or defeat of one or more
candidates.'' Is that clear?
So, after McCain-Feingold, campaign law would become even
more complex and mystifying. Politicians would remain
mendicants, forced by low contribution limits to beg every
day and in every way for donations. Our already weak parties
would lose their main source of funds, becoming weaker still.
If the speech controls were upheld, political discussion
would be both chilled and

[[Page S10505]]

contorted. And if the speech controls were struck down,
political campaigns would be run by lobbies (``independent
expenditures'') rather than by candidates and parties. Quite
a reform.
Even total deregulation would be better than McCain-
Feingold, provided disclosure were retained. For that matter,
doing nothing would be better. Best by a very long measure,
however, would be a combination of deregulation, disclosure
and generous public financing for candidates who forgo
private fund-raising--a plan which, instead of trying to
eliminate or micromanage private money, would give voters an
alternative to it, and make the acceptance of private
donations an issue in every campaign.
Alas, all of those admittedly imperfect ideas are bitterly
opposed by the anti-money crusaders who gave us the system we
have now, and who still predominate in the ``reform
community.'' To change their minds, campaign-finance law will
probably have to be made worse before it can be made better.
That task, at least, McCain-Feingold would perform admirably.

Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Thank you, Mr. President. Let me, first of all,
congratulate the occupant of the chair for his vote yesterday. I heard
his comments this morning. The occupant of the chair did the right
thing yesterday. He voted for cloture and joined 52 other Senators--a
Senator we had not in the past known for sure whether or not he was
going to vote for cloture on any occasion, and I very much appreciate
that.
I realize that his words are sincere. He does, in fact, support
campaign finance reform. It is important that, again, the Senator from
Arizona and I signal what we have signaled in the past, and that is
that we are very eager to negotiate, whether on the floor or off the
floor, to make a bill that would be more palatable to Members on both
sides of the aisle.
I think the Senator from Arkansas has indicated some excellent ideas
in the past. That is the signal I want to give, despite whatever
indications one might feel from the press accounts, which, of course,
all of us have to take with a grain of salt on both sides of the issue.
The fact is that many of us really would like to change this system,
and I believe the Senator who occupies the chair is one of them.
Let me reiterate our offer, which I think we have made good on time
and time again, that if modifications need to be made to pass this
terribly important bill, we are ready to do it. That is how the junior
Senator from Maine became such a tremendous advocate for our cause. She
had some ideas that were better than ours, and we incorporated them and
moved on to make the bill even better.
So I look forward to working with the occupant of the chair so that,
once again, he can feel comfortable voting for cloture as we continue
to press this issue on the floor, which we will do until we get the
result that the American people demand.
Let me also suggest, this is a point that seems to be missed in this
debate frequently. The Senator from Kentucky speaks frequently and
eloquently about the first amendment. But the way our system is
established, surely if you pass a bill in the Congress, a piece of
legislation, a statute, it doesn't amend the Constitution. There is
more to the process. The President has to sign the bill, and it has to
go up to the United States Supreme Court, unless nobody challenges it.
And I have a sneaking suspicion that somebody might challenge this bill
if it became law.
So what is the worst-case scenario? The worst-case scenario is that
if, in fact, there is a shred of our bill that is unconstitutional, the
Supreme Court will say so and strike it down. They know how to do their
job. If we do our job, they will do their job. That is exactly what
they did in the very famous case of Buckley versus Valeo. They
determined that some elements of the bill were constitutional, despite
the claim of the ACLU and others that they were not, and they said they
were OK.
For example, having a limitation on contributions. It is, obviously,
the law now, and the Senator from Kentucky cannot dispute that it is
the law, that right now somebody can't give more than $2,000 in the
course of 6 years to a U.S. Senate candidate in hard money. That is a
limitation. The Supreme Court said it is OK.
On the other hand, in Buckley versus Valeo, the Court said you can't
have overall mandatory spending limits because that, in their view,
would be a violation of the first amendment.
So what is the threat to the first amendment of passing a piece of
legislation about which we have a good-faith disagreement as to its
constitutionality? I happen to think it is clear that the major
provisions of our bill are constitutional.
I would be the first to concede that the closest case would be the
one that the Senator from Kentucky has focused most of his firepower on
in this debate, and that is the issue of what I like to call phony
issue ads. But I can see that would be something the Supreme Court
would have to take a long and hard look at, and I think they should.
That is why, Mr. President, I don't support a constitutional amendment
to get this done. The first amendment is too sacred.
So, I want to address your concern about the first amendment to tell
you that I was, I believe, the first or second Member of the U.S.
Senate to come out here and oppose something called the Communications
Decency Act. People fell all over each other voting for that bill that
would have censored the Internet. I came out here and said, ``Look, on
the face of this, even though I am not a leading constitutional expert
but I have looked at the Constitution, on the face of it, this is
unconstitutional.'' Yet, I believe 84 Members of this body, including
the Senator from Kentucky, voted for it, sent it up to the Supreme
Court and, guess what? Unanimously that Supreme Court--of which a
majority of the Members were appointed by the majority party
Presidents--unanimously ruled that that was unconstitutional.
Mr. President, both with regard to your concern that we be flexible
and open to other people's ideas, which I think you and I have
established a good record on, and with regard to the issue of the first
amendment to the Constitution, not only couldn't I agree with you more,
but I believe we have a lot to talk about and work together on to
achieve campaign finance reform.
Since the Senator from Kentucky continues in his steadfast way to
make a record, which I hope one day will get before the Supreme Court--
he hopes it won't get that far--let me address a couple of other issues
and put a few things of concern to me in the Record.
The Senator from Kentucky has been proudly suggesting that the
McCain-Feingold bill is dead, and yet we are out here today debating it
again, and we will be debating it again. That is because it is not
going away. It is because it is not simply a question of various
elements of the media saying that the McCain-Feingold bill is a good
idea. There are others who are not in the media who, I think, are not
easily duped by the media who think we ought to enact some of the
things that are in the McCain-Feingold bill.
Let me just put a few of those items in the Record. First, I ask
unanimous consent that letters from former Presidents Gerald Ford,
Jimmy Carter, and George Bush endorsing a soft money ban--a soft money
ban, which is the centerpiece of the McCain-Feingold proposal--be
printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

Houston, TX,

June 19, 1997.
Senator Nancy Kassebaum Baker,
Washington, DC.
Dear Senator Kassebaum: First, let me commend you and the
former Vice President, Ambassador Mondale, for taking a
leadership role in trying to bring about campaign reform.
I hope the current Congress will enact Campaign Reform
legislation.
We must encourage the broadest possible participation by
individuals in financing elections. Whatever reform is
enacted should go the extra mile in demanding fullest
possible disclosure of all campaign contributions.
I would favor getting rid of so called ``soft money''
contributions but this principle should be applied to all
groups including Labor.
I congratulate you for working for better campaign finance
law enforcement.
With my respects to you and Vice President Mondale I am,
sincerely,
George Bush.
______

July 17, 1997.
To Vice President Walter Mondale:
I am pleased to join former Presidents Bush and Ford in
expressing hope that this Congress will enact meaningful
campaign finance reform legislation. For the future of

[[Page S10506]]

our democracy, and as our experience may be emulated by other
nations, prompt and fundamental repair of our system for
financing federal elections is required.
The most basic and immediate step should include an end to
``soft money,'' whether in the form of corporate or union
treasury contributions to federal campaigns, or large and
unregulated contributions from individuals. The initial step
should also include measures that provide for complete and
immediate disclosures of political contributions and
expenses.
To accomplish these and other reforms and to lay the basis
for future ones, we also need to develop a strong national
consensus about the objectives of reform. It will take more
than just the action of this Congress, but fundamental reform
is essential to the task of repairing public trust in
government in our leaders. We must take significant steps to
assure voters that public policy is determined by the
exercise of their franchise rather than a broken and suspect
campaign finance system.
Please extend to Senator Nancy Kassebaum Baker my
appreciation for the work that she has undertaken with you to
advance the essential cause of bipartisan campaign finance
reform.
Sincerely,
Jimmy Carter.
____

July 10, 1997.
Dear Senator Kassebaum: Our system of financing federal
election campaigns is in serious trouble. To remedy these
failings requires prompt action by the President and the
House and Senate. I strongly hope the Congress in cooperation
with the White House will enact Campaign Reform legislation
by the forthcoming elections in 1998.
Public officials and concerned citizens. Republicans and
Democrats alike, have aleady identified important areas of
agreement. These include (1) the need to end huge
uncontrolled ``soft money'' contributions to the national
parties and their campaign committees, and to bar
solicitation of ``soft money'' from all persons, parties and
organized labor by federal officeholders and candidates for
any political organizations; (2) the need to provide rapid
and comprehensive discount of contributions and expenditures
in support of, or opposition to, candidates for federal
office; and (3) the need to repair the system of campaign
finance law enforcement by assuring that it is effective and
independent of politics.
A significant bi-partisan effort across party lines can
achieve a legislative consensus in campaign reforms that will
help to restore the confidence of our citizens in their
federal government.
I commend you and former Vice President Mondale for your
leadership on behalf of campaign reform.
Sincerely,
Gerald R. Ford.

Mr. FEINGOLD. Mr. President, I would like to mention just a sentence
from President Bush's letter, who I don't think is usually considered a
pawn of the liberal media. He says:

I would favor getting rid of so called ``soft money''
contributions but this principle should be applied to all
groups including Labor.

Of course, our soft money ban in our bill is comprehensive and
includes labor.
A letter from President Carter also indicates as follows:

The most basic and immediate step should include an end to
``soft money,'' whether in the form of corporate or union
treasury contributions to federal campaigns, or large and
unregulated contributions from individuals.

From President Carter.
President Ford indicated in a letter:

. . . the need to end huge uncontrolled ``soft money''
contributions to the national parties and their campaign
committees, and to bar solicitation from ``soft money'' from
all persons, parties and organized labor by federal
officeholders and candidates for any political organizations
. . .
Mr. President, how can these three Presidents, two from the
Republican Party and one from the Democratic Party, be considered pawns
of a solely Democratic effort to pass campaign finance reform? On its
face it is absurd to suggest a bill led by the Senator from Arizona, a
strong Republican, is such a bill. But here are two Republican
Presidents saying we should ban soft money. Yet, the effort to kill
this bill would prevent the core element of our bill to ban soft money.
Let me add, it is not just former Presidents, Mr. President, it is
also former Members of this body and of the other body. Former Members
of Congress have endorsed our bipartisan campaign finance reform bill
and the end of soft money.
I ask unanimous consent that a statement of former Members of
Congress, dated September 29, 1997, be printed in the Record.
There being no objection, the statement was ordered to be printed in
the Record, as follows:

Statement of Former Members of Congress

We are pleased to join former Presidents Bush, Carter and
Ford in expressing the hope that the current Congress enact
meaningful bipartisan campaign finance reform legislation.
The distinguished former Presidents have identified the
indispensable core of reform: (1) a ban on ``soft money''
contributions to the national parties and their campaign
organizations, applied equally to contributions of corporate
and union treasury funds, as well as to large individual
contributions in excess of those permitted by law; (2)
complete and rapid disclosure of political contributions and
expenses; and (3) effective and politically independent
enforcement of campaign finance laws.
Some of us favor additional proposals, including provisions
to assure that a ban on ``soft money'' is not circumvented
through campaign advertisements that are thinly disguised as
``issue advocacy.'' Together we believe it is time to test
the merits of different or competing ideas through debate and
votes, but that any disagreement over further reforms should
not delay enactment of essential measures, beginning with a
ban on soft money, where agreement is within reach.
Our democracy will be strengthened when the Congress acts
to assure the American public that the nation's campaign
finance system honors our nation's ideals.
Nancy Kassebaum Baker (R-KS), Howard H. Baker, Jr. (R-
TN), David L. Boren (D-OK), John C. Danforth (R-MO),
Mark O. Hatfield (R-OR), Abner J. Mikva (D-IL),
Patricia S. Schroeder (D-CO), Walter F. Mondale (D-MN),
Henry Bellmon (R-OK), Bill Bradley (D-NJ), Thomas F.
Eagleton (D-MO), Robert H. Michel (R-IL), Sam Nunn (D-
GA), Alan K. Simpson (R-WY).

The original signers of the statement are joined by:
Bella Abzug (D-NY), Wendell Anderson (D-MN), Mark Andrews
(R-ND), Bob Bergland (D-MN), Rudy Boschwitz (R-MN), John
Brademas (D-IN), William Brock (R-TN), , Clarence Brown (R-
OH), Jim Broyhill (R-NC), Beverly Byron (D-MD), Rod Chandler
(R-WA), Dick Clark (D-IA), Tony Coelho (D-CA), Barber Conable
(R-NY), Alan Cranston (D-CA), John Culver (D-IA), Hal Daub
(R-NE), John Dellenback (R-OR), Butler Derrick (D-SC), Tom
Downey (D-NY), Don Edwards (D-CA), Mickey Edwards (R-OK),
Robert Ellsworth (R-KS), Karan English (D-AZ), James Exon (D-
NE), Dante Fascell (D-FL), Geraldine Ferraro (D-NY), Sheila
Frahm (R-KS), Bill Frenzel (R-MN), Clifford Hansen (R-WY),
Fred Harris (D-OK), Thomas Hartnett (R-SC), Howell Heflin (D-
AL), Peter Hoagland (D-NE), Carroll Hubbard (D-KY), Walter
Huddleston (D-KY).
Martha Keys (D-KS), Melvin Laird (R-WI), Russell Long (D-
LA), Mike Mansfield (D-MT), Marjorie Margolies-Mezvinsky (D-
PA), Charles Mathias (R-MD), Ron Mazzoli (D-KY), Paul
McCloskey (R-CA), John Melcher (D-MT), Howard Metzenbaum (D-
OH), John Miller (R-WA), George Mitchell (D-ME), Frank (Ted)
Moss (D-UT), Gaylord Nelson (D-WI), Dick Nichols (R-KS), Leon
Panetta (D-CA), Claiborne Pell (D-RI), David Pryor (D-AR),
Albert Quie (R-MN), John Rhodes III (R-AZ), Matthew Rinaldo
(R-NJ), Peter Rodino (D-NJ), Warrent Rudman (R-NH), Lynn
Schenk (D-CA), Richard Schweiker (R-PA), Philip Sharp (D-IN),
Paul Simon (D-IL), Jim Slattery (D-KS), W.B. Spong (D-VA),
Robert Stafford (R-VT), Al Swift (D-WA).

Mr. FEINGOLD. Mr. President, in that letter, a number of our former
colleagues from both Houses of the Congress state:

We are pleased to join former Presidents Bush, Carter and
Ford in expressing the hope that the current Congress enact
meaningful bipartisan campaign finance reform legislation.

This includes the names of people like the distinguished former
Member Nancy Kassebaum Baker, former Senator from Kansas; Howard Baker,
Jr., former leader and Senator from Tennessee; former Republican
Senator John Danforth of Missouri, who I had the honor to serve with
briefly; former Senator Mark Hatfield of Oregon; former Senator Walter
Mondale and former Vice President; former Senator Bill Bradley from New
Jersey; former minority leader of the other body, Robert Michel; former
U.S. Senator Sam Nunn; former Senator Al Simpson, the Senator from
Wyoming with whom I disagreed frequently on the floor of the Senate who
was among the toughest and most clever opponents you could have on the
floor, but he cosponsored the McCain-Feingold bill last session after
he made his retirement announcement, and he still supports it. And the
list goes on.
Mr. President, I do not think these folks are merely pawns of the
media. These folks have been here; they have seen it; they have done
it. And they know that spending a tremendous amount of your time in
raising money is the corrupting of this process. And many of them, as
they announced their retirements, said they were sick and tired of
spending their time as Members of Congress raising money. The

[[Page S10507]]

killing of the bill, the vain attempt to kill this bill, as it turns
out, would prevent the first efforts to get our attention away from
raising money and back to the business we were elected to do.
Mr. President, I ask unanimous consent to have printed in the Record
an op-ed piece that appeared in the July 18, 1997, Washington Post
authored by former Republican Senator Nancy Kassebaum, Baker, and
former Vice President Walter Mondale calling for bipartisan campaign
finance reform and a ban on soft money.
There being no objection, the material was ordered to printed in the
Record, as follows:

[From the Washington Post, July 18, 1997]

Campaign Finance: Fix It

(By Nancy Kassebaum Baker and Walter F. Mondale)

President Clinton has challenged Congress to ``make this
summer a time not of talk but of action'' in fixing our
broken system of campaign financing. We agree wholeheartedly.
Earlier this year the president asked the two of us, a
Republican and a Democrat, to assist in the cause of
bipartisan campaign finance reform. Although pessimism about
the will of Congress to reform campaign finance laws is
widespread, we are optimistic that the task can be achieved
through a clear focus on necessary and achievable reforms,
leadership and determination.
Last month, we submitted an Open Letter to the President
and Congress recommending four areas in which to begin,
without delay, the task of ensuring that our nation's
campaign finance system serves, rather than undermines, the
interests of American democracy.
First, Congress should promptly ban ``soft money,'' the
huge uncontrolled contributions to national parties and their
campaign organizations that have so dismayed the public. This
prohibition would do much to slow the flood of campaign money
and enable the nation to adhere to the justified premise of
earlier reforms, that massive amounts of money from powerful
sources distort elections and government.
Second, we must ensure that ``soft money'' not continue its
corrosive work under the this disguise of ``issue advocacy.''
The election law should be tightened to distinguish clearly
between media advertisements that are campaign endorsements
or attacks and those that genuinely debate issues. to make a
``soft money'' ban fully meangingful the election law should
establish consistent rules for the financing of all
electioneering advertisements.
Third, disclosure rules should be broadened to ensure that
voters know who is responsible for the accuracy and fairness
of campaign advertisements. Increasingly, candidates are
bystanders in their own campaigns, not knowing the identity
of sponsors of messages that dominate the airwaves close to
elections. Also, with today's technology, even last-minute
contributions and expenditures can be revealed before
Election Day.
Fourth, no reform will be worth much without effective
enforcement. The Federal Election Commission must be
strengthened. This should include the appointment of
knowledgeable and independent-minded commissioners.
Additionally, changes are needed to allow for the full and
timely resolution of issues through the courts when the
commission is deadlocked or cannot act because of lack of
funds.
Significant majorities might be found for other reforms. As
the debate goes forward, Congress should be encouraged to
consider further steps to provide relief from the incessant
treadmill of fund-raising. However, we should not delay
action on those measures that can pass now.
Time is of the essence. Congressional elections are coming
up next year. The presidential campaign for the year 2000
will begin soon after. Each day these elections draw closer,
the passage of reform becomes even more difficult. Now is the
best time to advance legislation that will provide the
American people with a more effective and more equitable
election process.
It is no secret that the Senate will be the first
battleground for reform. There are honest differences that
warrant debate there but also votes on their merits. We are
confident that the Senate's leadership will recognize its
responsibility to schedule campaign finance reform for early
and full debate. And speaking plainly, we further believe
that the American public will deem unacceptable any tactic
that prevents a majority of the Senate from coming to a final
vote.
We appreciate the value of Senate rules on debate. But
campaign finance issues are well known to every member.
Whatever any senator's individual views on campaign finance
issues may be, all senators should unite in one conviction.
The future of our democracy requires them to address their
differences in public debate on the Senate floor and for
their votes on final passage to be recorded.
Most important is to set aside attempts to gain or maintain
partisan advantage. The time is now to come together to
address the integrity of our national government. Restoring
that integrity demands honest, bipartisan campaign finance
reform.

Mr. FEINGOLD. Mr. President, I also ask unanimous consent to have
printed in the Record an opinion piece from last Sunday's Washington
Post coauthored by former Presidents Carter and Ford, who actually ran
against each other in 1976, calling for campaign finance reform and the
end of the soft money system.
There being no objection, the material was ordered to be printed in
the Record, as follows:

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

And the Power of the Ballot

(By Jimmy Carter and Gerald Ford)

When we ran against each other in 1976, the modern campaign
finance system was in its infancy; it was the first
presidential election governed by strict limits and public
financing. Looking back, it is easy to recognize why the
reforms of the 1970s were so essential. Today it is
disheartening to witness changes that have distorted those
reforms and shaken Americans' faith in their democracy.
We have watched as elections have grown more controversial,
more expensive, riddled with soft money and less
understandable to the average voter. We have watched as
participation in presidential elections has declined--
plummeting during the last election to the lowest levels
since 1924.
Less than half of the voting-age population cast their
ballots for president in 1996, and while there are many
factors that might contribute to this disturbing figure, we
believe that a lack of public trust in government and in our
system of democratic elections is a major part of the
problem. When people feel disenfranchised from their
political system, they stop participating in it. And when
that happens, democracy suffers.
We have both worked in our public lives toward the goal of
exporting our democratic system to other nations. Our model
(or ``the U.S. model'') must be fundamentally reformed in
terms of campaign financing to warrant the faith of other
countries.
We can both personally attest that there is no greater
honor than to serve your country. Yet the honor of public
service is being tarnished by a system of campaign funding
that has made many Americans lose faith in the concept of
public service as a virtue. That service is diminished when
elected officials are forced to spend so much time raising
money instead of focusing on the many important issues they
were elected to address.
We firmly believe that now is the time to restore
Americans' faith in their democracy, their government and
their democratically elected institutions. Meaningful,
bipartisan campaign finance reform is needed to rein in a
system that is out of control.
As a minimal first step, Congress and the president should
approve legislation that bans soft money, enhances
enforcement of existing campaign finance laws and creates a
more accountable disclosure system that informs rather
than obfuscates. These are the areas identified by former
vice president Walter Mondale and former senator Nancy
Kassebaum Baker in their effort to promote reform. It is
particularly important to seize this opportunity for
reform now so 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 critical and contentious issues
to do what is right for the country. This 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 ban 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
huge 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.
According to the Federal Elections Commission, both parties
raised a record-breaking $262 million in soft money during
the 1996 elections. Recent news reports showed that figure
will be shattered again in 2000 if current fund-raising rates
continue.
These figures make it absolutely clear what is at stake. If
Congress does not act now to stem this massive flow of soft
money, Americans' cynicism and mistrust of government will
only increase. And that step is only the beginning of needed
fundamental reform.
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 powerful interests.
Jimmy Carter was president from 1977 to 1981. Gerald Ford
was president from 1974 to 1977.
Mr. FEINGOLD. Mr. President, I would like to place in the Record as
well a couple of items from groups across the country that I think have
independent judgment, who are not easily fooled by a media campaign in

[[Page S10508]]

favor of a bill that would otherwise not have merit. The suggestion
that this is all that is going on here is on its face absurd, it is
even a little insulting.
But I do not think you can say of the National Council of the
Churches of Christ that they were somehow tricked into supporting
something that isn't really reform. So I ask unanimous consent to have
printed in the Record a statement by the National Council of the
Churches of Christ endorsing comprehensive campaign finance reform
which includes, Mr. President, specific references to a number of the
provisions in the McCain-Feingold bill and specifically references the
McCain-Feingold bill asking ``legislators to oppose amendments
currently being offered to the McCain-Feingold measure in an effort to
kill its passage.'' I think it is an unmistakable reference to the Lott
amendments.
I ask unanimous consent that it be printed in the Record, and a
statement by NETWORK, a national Catholic social justice group. The
press release endorses the McCain-Feingold reform proposal.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Council of the

Churches of Christ in the USA,

Washington, DC, October 4, 1997.
The National Council of Churches joins with others today to
urge legislators to break the logjam which has blocked
campaign finance reform efforts for so long and to pass a
meaningful bipartisan reform bill. Our long-standing
commitment to campaign finance reform grows directly from
profound religious faith: every human being is a person of
dignity and worth as a child of God. In our democracy a
signal of that dignity and worth is a fair and just electoral
process where all people are included equitably and with
respect.
What a moral affront to buy or sell either the public trust
or the individual vote! In our policy statements we have long
held that unfair campaign financing violates the moral
integrity of public life.
Our support for current campaign finance reform comes from
seeing it as an important step in moral correction. Of
course, even the proposed legislation is not perfect.
Inequities will still need attention. But we believe that
such reform can strengthen the control of corrupting
processes that attack the very heart of democratic elections.
The undue influence of money diminishes the voting power of
ordinary citizens.
Further, we are very concerned about widespread
disillusionment with public life, and especially political
life. Religion means for us God's mandate for the well-being
of all people. We have long sought ``the common good''. We
have long stood against religious self-seeking or the private
advantage of any religious group. It is not our ``good'' we
seek; it is the ``common good''. Disillusionment and cynicism
over politics and electoral processes must be addressed. We
believe that campaign finance reform can be a step toward
building ``the common good.''
Let me add one more piece to our public endorsement of
campaign finance reform. In Protestant Christian heritage we
have long affirmed what we call ``Christian vocation''. Many
elected public officials see their works as a public trust,
and go about it with a genuine sense of religious
commitment--a ``vocation''. They serve God by serving the
well-being of all people. When public officials are consumed
by constant fund raising, they cannot adequately invest
themselves in fulfilling the public leadership role with
which they have been entrusted. Our current campaign
financing practices inflict frantic demands and exhausting
requirements on political leaders. Every sensitivity to them
has to insist on reform.
So here we are--I on behalf of the National Council of
Churches--to urge support for effective campaign finance
reform. We call for prompt consideration and passage of such
a reform bill, and urge legislators to oppose amendments
currently being offered to the McCain-Feingold measure in an
effort to kill its passage. It is rooted in our religious
tradition of public morality and the pursuit of the common
good. We call on people in churches and other religious
communities across the land to support leaders in the
Administration and the Members of Congress who have the
wisdom and courage to enact genuine reform.
Rev. Dr. Albert M. Pennybacker,
Associate General Secretary, NCCC.
____

Catholic Lobby Demands Congress Move on Campaign Finance Reform Now

NETWORK, a National Catholic Social Justice Lobby supports
campaign finance reform that promotes greater participation
in the election process for all and believes comprehensive
reform must include a public financing component as well as
spending limits. NETWORK is very disappointed and concerned
about the lack of commitment by Members of Congress for real
campaign finance reform and demands that Congress top its
political maneuvering and bring campaign finance reform up
for debate and a vote. ``To not deal with campaign finance
reform would be an affront to the voice of the people of our
country. Project Independence is a clear example of the
desire people have for real campaign finance reform''
declares Kathy Thornton, RSM, NETWORK's National Coordinator.
NETWORK sees the stripped down version of the McCain (R-
AZ)--Feingold (D-WI) campaign finance reform bill S. 25 as a
positive incremental step, not as the final answer to
reforming the campaign finance system. Therefore, NETWORK
does support S. 25, but opposes Senator Lott's amendment
because it sees it as a poison pill that is designed to kill
meaningful campaign finance reform.
NETWORK, a National Catholic Social Lobby is a membership
organization which lobbies, educates and organizes on the
federal level from a faith-based perspective promoting
economic justice for people who are poor and marginalized.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that statements
by Jerome Kohlberg, founder of the Campaign Reform Project, Thomas S.
Murphy, and Richard Rosenberg, and a list of two dozen former and
current corporate chief executive officers who have endorsed
bipartisan, comprehensive campaign finance reform be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record as follows:

CRP Business Advisory Council

(By Jerome Kohlberg, Founder, Campaign Reform Project)

Thank you for joining us this morning, My name is Jerome
Kohlberg. I founded the Campaign Reform Project (and its
sister organization Campaign for America) for one purpose--to
end the influence of money in politics.
Some of you may be more familiar with my past activities in
the business world. Perhaps you are curious why a successful
businessman is getting involved in this ugly debate. And
what's more, why he is persuading other business leaders to
follow suit.
Personally, I was never a major political donor. It was not
until 1988 when Michael Dukakis ran for President that I
began to make substantial political contributions. He was a
fellow graduate of Swathmore, and I though he was an
honorable man who would make a good President. During that
race, I contributed $100,000 in soft money to the Democratic
Party.
I continued to support the party through 1992, but became
increasingly uncomfortable with the process. Although I
wasn't looking for access, I was given the opportunity many
times. I could only imagine what someone who was looking for
access might get for his or her money. When decisions from
the routine to the profound are shaped by who gave money and
how much, who didn't and why, and who might in return for
what, we have a problem. Clearly, money is undermining,
rather than supporting democracy.
Therefore, while I continue to have a great deal of respect
for those individuals who choose public service, and I
continue to support individual candidates from both parties,
I no longer give soft money.
I, and my colleagues on the Business Advisory Council of
the Campaign Reform Project, believe these large money
contributions distort the system giving unequal weight to the
opinions of the rich, the corporations and the labor unions.
Our children and grandchildren deserve a better legacy--a
legacy of a responsive and responsible federal government.
Therefore, rather than just cease making donations, I want to
insure that the campaign finance system is reformed for my
grandchildren and, ultimately, for the country. Therefore, I
am committing substantial personal resources to this effort
because the stakes are too high not to.
I have dedicated funds to both the Campaign Reform Project
and the Campaign for America. Both organizations are
committed to fundamental campaign finance reform. The
Campaign for America joined with Common Cause in Project
Independence to collect the signatures of over one million
citizens who support campaign finance reform.
With the Campaign Reform Project, we've worked to organize
business leaders in support of this issue. Many of our
members are elder statesmen from the business community. The
presence here today of Mr. Murphy and Mr. Rosenberg
illustrates the deep concern they have with this system.
Any many other individuals. Warren Buffett, Alan
Hassenfeld, and Arjay Miller, to name just a few, have joined
with us in this fight for reform.
I call it a fight because I know it would be one. While a
very sensible and modest proposal toward reform has been
offered in the Senate, I fear that there are many who would
prefer the status quo.
All of us sitting around this table understand the process
for making a deal. We've been deal-makers. We know that
closing a deal on campaign finance reform isn't going to be
easy. But, we do believe it is possible. The proposal that is
pending now before the Senate is a reasonable one. It seems
to us that it's a package everyone should support. However,
we suspect there are those who may try adding amendments that
are likely to make it unreasonable--in other words, kill the
deal. We believe that is unacceptable.
Democracy is serious business. Campaign finance reform will
help restore some public confidence in our democratic system
of campaigns and elections. We are here today to

[[Page S10509]]

say the system must be changed. I have been pleased that so
many business leaders have been willing to put their name to
the call for reform as is evidenced by the ad we will run
tomorrow. We will continue, over the next weeks, to further
galvanize the business community in support of reform. Thank
you.
____

CRP Business Advisory Council

(By Thomas S. Murphy, Retired-Chairman & CEO, Capital Cities/ABC, Inc.)

It is a pleasure to be here and join Jerry in this
important endeavor. As members of the Campaign Reform
Project's Business Advisory Council evaluated the prospects
for reform this year, it became clear that doing something to
curtail the explosion of soft money needed to be a top
priority.
All of the improprieties being examined in the Senate
Government Affairs Committee are related to soft money. It is
a system that has gone out of control.
As you know, in the 1996 election cycle, the parties raised
over $260 million in soft money--more than three times the
$87 million raised in the 1992 election cycle. What's more,
although a Los Angeles Times survey released earlier this
week indicated that 26 percent of the nations largest 544
corporations made no political contributions, this percentage
was even higher four years ago. Unfortuantely, more and more
business leaders feel in order to come out on top, they must
play the soft money game.
Therefore, a soft money ban would go a long way toward
fixing the most egregious problem. But, it is not enough. It
is also necessary to improve the system of reporting
contributions. Electronic disclosure would be one step,
expanding reporting requirements for independent expenditure
campaigns might be another. An FEC with teeth would also be a
major improvement.
Our group, the Business Advisory Council, has worked to
solicit the support from several of our colleagues for this
effort.
We began at the beginning of the year with only a few of
us. As you can see from the ad, however, the number of
business leaders calling for reform in 1997 has grown
substantially.
And this list is a work in progress. Many others, as
evidenced by the survey I cited earlier, support these modest
reforms which will help restore public confidence in the
political process.
We're not naive. We're pragmatic. We believe that Congress
can no longer avoid taking action.
____

CRP Business Advisory Council

(By Richard Rosenberg, Former Chairman & CEO, Bank of America)

When I first became involved with the Campaign Reform
Project it was around a broad set of principles--reducing
special interest money in political campaigns, strengthening
financial disclosure requirements, leveling the playing field
between challengers and incumbents, increasing access to
electronic media, and curtailing the cost of campaigns.
When members of the Business Advisory Council met this past
spring and summer, we affirmed our support for these
principles, but we also focused on what we could accomplish
now.
As business executives, we know the value of both short and
long term results. We recognize that business has a critical
role to play in reforming the current campaign finance
system. Nothing would revive reform faster than corporate
America halting its soft money contributions. Many business
leaders already feel the system has become an industry unto
itself, caught up in a perpetual cycle that undermines both
democracy and genuine business interests.
So what could we do in the short term? We decided to
educate other business leaders and recruit them to join us.
We also evaluated the prospects for reform and decided that
something had to be enacted this year. We came to a consensus
that any reform must include, at a minimum: a ban on soft
money and stronger financial disclosure requirements and
reporting rules.
Changes in both of these areas would constitute significant
first steps. But, I must stress, only first steps. Our long-
term agenda focuses on the principles I outlined earlier. I
think they are important enough to mention again--leveling
the playing field between challengers and incumbents,
increasing access to electronic media in order to facilitate
more direct communication from candidates, and curtailing the
overall cost of campaigns.
____

Business Advisory Council

Jerome Kolberg, Founder.
Robert L. Bernstein, Former Chairman/President of Random
House.
George T. Brophy, Chairman, President & CEO, ABT Building
Products Corporation.
John H. Bryan, Chairman & CEO, Sara Lee Corp.
Warren E. Buffett, Chairman, Berkshire Hathaway, Inc.
William H. Davidow, General Parnter, Mohr, Davidow
Ventures.
Walter Gerken, Chairman of the Equity Board, PIMCO
Advisors, L.P.
Alan Hassenfield, Chairman & CEO, Hasbro, Inc.
Ivan J. Houston, Retired--Chief Executive Officer, Golden
State Mutual Life Insurance Co.
Robert J. Kiley, President, New York City Partnership.
Melvin B. Lane, Former Publisher & Co-Chairman, Lane
Publishing Co.-Sunset Magazine.
Morton H. Meyerson, Chairman & CEO, Perot Systems Corp.
Arjay Miller, Dean Emeritus, Graduate School of Business,
Stanford University, Former President, Ford Motor Co.
Thomas S. Murphy, Retired-Chairman & CEO, Capital Cities/
ABC, Inc.
Sol Price, Price Entities.
Sanford R. Robertson, Chairman, Robertson Stephens & Co.
Arthur Rock, Arthur Rock & Co.
Richard Rosenberg, Former Chairman & CEO, Bank of America.
Jane E. Shaw, Ph.D., Founder, The Stable Network.
Thomas W. Smith, President & Founder, Prescoft Investors,
Inc.
Donald Stone, Former Chairman & CEO, MLSI.
Robert D. Stuart, Jr., Chairman Emeritus, The Quaker Oats
Company.
Dr. P. Roy Vagelos, Former Chairman & CEO, Merck & Co.,
Inc.
A.C. Viebranz, Former Senior Vice President, External
Affairs, GTE Corporation.
Thomas S. Volpe, President & CEO, Volpe Brown Whelan &
Company, LLC.

Mr. FEINGOLD. Mr. President, this one makes an interesting point,
that is, that in addition to the various church and other religious
groups, in addition to former Presidents, in addition to former Members
of Congress, in addition to the hundreds of editorials by liberal
papers, conservative papers, moderate newspapers all across the country
that have supported McCain-Feingold and believe it has merit, that what
we have discovered, Senator McCain and I, the Senator from Arizona and
I have discovered, is that there are a whole lot of businesspeople that
are tired of being the fall guys of this system.
Under the system, even with hard money, let alone soft money, where
they can be asked for hundreds of thousands of dollars, a lot of these
CEO's feel like they have become the fall guys of American politics.
I actually had the CEO of one of these companies, the Federal Express
Co., come to visit me after last year's episode, where they were able
to insert a provision into the Federal aviation bill that allowed them
to not have a national union even though, as we very well know, their
competitor, the United Parcel Service does have a national union, which
they had to contend with recently, but they were able to place a
provision in that bill, even though they had not won a vote on any
occasion on the particular issue, shortly after they gave each of the
two parties--I want to check my notes on this--but I believe they gave
them each $100,000 of soft money just a few days--just a few days--
before this provision was inserted into the bill.
When I met with the CEO, who is a tremendous entrepreneur in this
country, he said he has no choice, in effect, that if this is the way
the rules are set up, he has to represent his employees and his
shareholders and he has to fight and make political contributions, and
he has to play hardball in effect. He did. He won.
You know what? During that UPS strike, Federal Express, which has
that protection against such national union advocacy, Federal Express
picked up something like 10 to 15 percent of UPS's market share,
something they had been trying to do forever.
My point in introducing this item from the business leaders is to
suggest that even the business leaders, who many might associate with
the other side of the aisle in many cases, are saying, we are sick and
tired of being the fall guys of a system that essentially has the
potential to shake them down, otherwise, they are afraid their
competitor might get an edge.
It is almost exactly what Mr. Tamraz said when he indicated by paying
$300,000 he got the room the other people got that paid $300,000. That
is access, and that is how you get in the room, and that is in effect
the American way. That seemed to be what he was saying. It is pretty
sad that has become the American way.
Even some of the corporate leaders of this country do not want this
to become what it has become, which is in effect a corporate democracy,
a democracy dominated by big money, not by the average citizen's right
to have their vote count the same as others.
Mr. President, I also ask unanimous consent to have printed in the
Record a statement by Jay Lintner of the United Church of Christ
calling for comprehensive campaign finance reform, and a statement from
the Church Women United endorsing the McCain-

[[Page S10510]]

Feingold proposal, and a statement by the Religious Action Center of
Reform Judaism in support of comprehensive campaign finance reform.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Office for Church in Society

United Church of Christ,

Washington, DC, October 6, 1997.

Press Statement--The Rev. Jay Lintner

Do we have a democracy or a dollarocracy? Do politicians
represent people or money?
Our mythology is democracy. The reality, made very apparent
in the elections last Fall, is that politicians are bought
and sold in the open market. All efforts at reform have
collapsed, and the Senate prepares to filibuster and confuse
the issue.
Every other country in the world knows that money rules.
Are we the last naive country on earth? Or are we the first
country whose guiding ideology may lead us into a new
reality? Is the Holy Spirit at work, empowering people to
turn the political order upside down?
I'm speaking today on behalf of 18 major denominations and
faith groups--AME, Methodist, Episcopal, United Church of
Christ, Union of American Hebrew Congregations. We are here
to say that campaign finance reform is not just some
political, partisan issue. It is a moral issue.
The prophet Isaiah said it well: ``Your princes are rebels
and companions of thieves. Everyone loves a bride and runs
after gifts. They do not defend the orphan and the widow's
cause does not come before them'' (Isaiah 1:23).
The front page today says that the Capitol Hill princes put
129 pork barrel projects in the recent military construction
bill, more money given away in one bill than all the campaign
contributions that bought the politicians. Is there some bill
here where they've sneaked some money for the widows and
orphans?
Can we get moral corruption out of the political process?
Politicians count on public apathy, public cynicism, public
awareness that this is the way rulers always rule.
This is more than a moral problem. This is a spiritual
problem. Have we given up faith in government, in our common
community shaping a moral order? No. We sent out 100,000
packets of petitions to our churches and synagogues, and now
our petitions are laid at the feet of the capitol.
We will not go away. The gates of hell will not prevail and
the gates of Washington will not prevail. We demand a ban on
soft money, and we demand much more comprehensive reform that
breaks the power of big money buying our electoral process.
We want our politicians back, accountable to we the people,
not we the dollars.
____

Church Women United Supports Campaign Finance Reform Efforts

Washington, DC, October 6, 1997.--Church Women United (CWU)
stands in solidarity today with all citizens concerned over
the integrity of our democratic system. In particular, we
support the efforts of Senators McCain, Feingold and Thompson
and Representatives Shays and Meehan to reform the current
system of raising and spending private money to finance
election campaigns.
Church Women United is a 55-year-old, ecumenical movement
of Christian women from Protestant, Catholic and Orthodox
traditions. Since our beginnings, we have worked for a just
and peaceful world, with a special concern for women and
children. In 1986, CWU adopted a policy in support of
campaign finance reform which calls for tougher restrictions
on special-interest PACs and spending limits for
congressional candidates.
CWU is aware of the increasing role special interest money
plays in influencing politicians and policy. Members of
Congress are rapidly losing their ability to represent the
interest of the common good in favor of a more narrow,
wealthy constituency. As such, we view campaign finance
reform as one of the major challenges in ensuring that the
needs of poor women and children are taken seriously in the
formation and implementation of public policy. Until
politicians are freed from the pressures of monied interests,
it will remain difficult to have the needs of those without
means heard.
The McCain-Feingold campaign finance reform bill is a first
step at recognizing and correcting the imbalance of power in
our political system. We applaud all members of the House and
Senate who are co-sponsoring the bill. We encourage others
who currently are not supportive to join in these efforts to
help make the electoral process more representative of the
interests of all U.S. citizens.
____

Statement of Mark Pelavin--Religious Action Center of Reform Judaism,
October 6, 1997

On behalf of the Union of American Hebrew Congregations and
the Central Conference of American Rabbis, their 860
congregations and 1,800 rabbis, and the 1.5 million Reform
Jews throughout the United States and Canada, I am proud to
be here today to add our voice to those calling, urgently,
for serious campaign finance reform.
Our call for comprehensive campaign finance reform is
reflective of the views of many mainstream religious
communities. From the pews and pulpits of our churches and
synagogues across the nation, we hear that campaign finance
reform is not an esoteric technical issue of election
regulations, but one that goes to the essence of the ethical
and moral life of our nation. We hear people asking:
How can we expect just results from an unjust system, one
in which monied interests hold every advantage, and those who
most need the helping hand of government--the poor, our
children--cannot make their voices heard above the din?
How can we--whose religious calling includes the imperative
to speak for the widow and the orphan, for the poor and the
children--accept an electoral process which structurally and
systematically favors the richest among us?
How can we acquiesce in a system which forces those who
seek public office, or who wish to continue in public
service, to spend so much of their precious time and energy
not raising the nation's moral conscience but raising
campaign funds?
If we are serious about seeking justice, and we are, then
we cannot, and we will not, accept such a system.
We stand at the brink of a historic opportunity. Real
reform is within reach. But first, the Senate must prove that
it is committed to ending the status quo. The Lott Amendment,
which the Senate will consider tomorrow, was designed as a
distraction, crafted to protect politics as usual. (And
how ironic, and revealing, that in attempting to derail
vital legislation to open up our political system, Senator
Lott and his supporters' first thought is to undermine the
political voice of America's working men and women!)
We call on our elected leaders to reject the Lott Amendment
and to work toward the creation of a more ethical campaign
financing system, a system which will reinforce rather than
tarnish the principles of American democracy, a system which
can help salvage our collective faith in public service. We
pledge our vigorous support in this historic effort.

Mr. FEINGOLD. Mr. President, at this point these are all the items I
want to place in the Record at this time. But fortunately this debate
will continue in one form or another. We will have an important cloture
vote shortly on the overall bill.
Tomorrow, there will be two more cloture votes. And it will continue
because it is absolutely essential that we do not disgrace ourselves by
going home, certainly for the 1998 elections, and even more importantly
just going home at the end of this session having displayed to the
American people all the abuses of the current system, the areas where
the law is insufficient, the areas where there are loopholes in the
law, and then to return home and say to everyone, ``You know what? We
didn't do anything about it. We didn't pass a single piece of
legislation.''
I don't think any of us on either side of the aisle consider that to
be an acceptable outcome.
I would like finally to say again to the Chair, I look forward to
working to negotiate the kind of legislation that he can support. And I
again thank him for his vote yesterday.
Mr. President, I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Parliamentary inquiry, in a quorum call is the time
equally charged to both sides?
The PRESIDING OFFICER. The time is charged to the side which puts in
the quorum call, unless consent is granted to divide that equally.
Mr. McCONNELL. Mr. President, I ask unanimous consent that four
letters from the American Civil Liberties Union, outlining the
constitutional infirmities of the McCain-Feingold bill, be printed in
the Record. I understand that the Government Printing Office estimates
the cost of printing these articles in the Record to be approximately
$2,500.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

American Civil Liberties Union,

Washington, DC, October 1, 1997.
Hon. Mitch McConnell,
Russell Senate Office Building,
Washington, DC.
Dear Senator McConnell: Ever since the very first version
of the various McCain-Feingold campaign finance bills were
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

[[Page S10511]]

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 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.
The Supreme Court in Buckley v. Valeo well understood the
risks that overly broad campaign finance regulations could
pose to electoral democracy because ``[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.'' 424 U.S. at 14. The Court
recognized 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 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.''
424 U.S. at 43. If any discussion of a candidate in the
context of discussion of an issue rendered the speaker
subject to campaign finance controls, the consequences for
free discussion would be intolerable and speakers would be
compelled ``to hedge and trim,'' Id., quoting Thomas v.
Collins, 323 U.S. 516, 535 (1945).
Accordingly, the Court reasoned, under the First Amendment,
campaign finance controls had to be limited and could only
apply to ``communications that in express terms advocate the
election or defeat of a clearly identified candidate.''
Conversely, all speech which does not ``in express terms
advocate the election or defeat of a clearly identified
candidate'' must be totally free from permissible controls.
``So 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.'' 424 U.S. at
45. And they are free from reporting and disclosure
requirements as well.
The Court fashioned the express advocacy doctrine to
safeguard issue advocacy from campaign finance controls, even
though such discussion might influence the outcome of an
election. The doctrine provides a hard, bright-line,
objective test that protects political speech and association
by focusing solely on the content of the speaker's words, not
the motive in the speaker's mind or the impact of the
speaker's opinions, or the proximity to an election, or the
phase of the moon. The doctrine marks the boundary of
permissible regulation and frees issue advocacy from any
permissible restraint.
The Buckley Court could not have been more clear about the
need for that bright line test which focuses solely on the
speaker's words and which is now an integral part of settled
First Amendment doctrine. It was designed to protect issue
discussion and advocacy by allowing independent groups of
citizens to comment on and criticize the performance of
elected officials without becoming ensnared in the federal
campaign finance laws. And it permits issue discussion to go
forward at the time that it is most vital in a democracy:
during an election season.
The new version of the McCain-Feingold bill once again
would obliterate the bright line test of ``express advocacy''
which the courts have fashioned over a period of 25 years to
protect the broad range of issue discussion in America from
campaign finance controls. Instead, the bill would impose
unprecedented controls on issue advocacy in clear violation
of settled First Amendment principles.
The new bill attacks issue advocacy on a number of fronts.
It abandons the bright-line test of express advocacy in
favor of a permanent year-round restriction on issue advocacy
redefined in an unconstitutionally vague, overbroad and
watered-down fashion.
It imposes, in effect, a two-month, 60 day blackout before
any federal election on any radio or television advertisement
on any issue if that communication ``mentions'' any candidate
for federal office.
It restrains any communication that expresses ``support for
or opposition to'' anyone who is a candidate for office.
These unprecedented restrictions would effectively silence
issue advocacy by the countless hundreds and thousands of
groups that add to the political debate in America.
These proposals would all undermine the purpose of the
``express advocacy'' doctrine, which is to keep campaign
finance regulations from overwhelming all political and
public speech. They would do so by dramatically expanding the
statutory definition of express advocacy and thereby
impermissibly sweeping an enormous amount of protected issue
advocacy within the net of campaign finance regulations.
The current version of McCain-Feingold takes a ``new''
approach to silencing issue advocacy, but it is no less
flawed than its predecessors. Once again, the clear purpose
and inevitable effect of the provisions in the revised
McCain-Feingold bill will be to shut down citizen criticism
of incumbent officeholders standing for re-election at the
very time when the public's attention is especially focused
on such issues.
Given the fact that the proposed restraints on issue
advocacy are targeted primarily at criticism of incumbent
legislators during an election season, the danger to the core
purposes of the First Amendment posed by such legislation is
clear and present.
2. The unprecedented and sweeping restraints on the ``soft
money'' funding of issue advocacy and political activity by
political parties raise severe First Amendment problems.
A central critical distinction has informed the Supreme
Court's campaign finance jurisprudence. Contributions and
expenditures made by federal candidates, or those who
expressly advocate their election or defeat, may be subject
to regulation. All other political and issue advocacy and
discussion--even though it might influence the outcome of an
election--may not be subject to governmental control. This
constitutional Continental Divide is compelled by the First
Amendment and is built upon the concept that only ``express
advocacy'' of the election or defeat of specific federal
candidates can be subject to regulation.
Accordingly, while candidate-focused contributions and
expenditures and ``express advocacy'' can be subject to
various restrictions or regulations, the Court in Buckley v.
Valeo, 424 U.S. 1 (1976) held that all speech which does not
``in express terms advocate the election or defeat of a
clearly identified candidate'' is totally free of any
permissible regulation: ``So 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.'' 424 U.S. at 45 (emphasis
supplied). 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 same principles that protect unrestrained advocacy by
issue groups safeguard issue advocacy and activity by
political parties. ``Soft money'' is funding that does not
support ``express advocacy'' of the election or defeat of
federal candidates, even though it may exert an influence on
the outcome of federal elections in the broadest sense of
that term. It sustains primary political activity by parties
such as get-out-the-vote drives and issue advertising.
Because it is not used for express advocacy, it can be raised
from sources that would be restricted in making contributions
or expenditures. Compare Austin v. Michigan Chamber of
Commerce, 494 U.S. 652 (1990) with First National Bank of
Boston v. Bellotti, 435 U.S. 765 (1978).
Indeed, the unrestricted use of soft money by political
parties and non-party organizations like labor unions has
been invited by Buckley (``So long as persons and groups
eschew . . .''), authorized by Congress (see 2 U.S.C.
sections 431 (8)(A)(I) and (B)(xii) which permit soft money
for state elections and voter registration and get out the
vote drives), sanctioned and enhanced by rulings of the
Federal Election Commission and acknowledged by the Supreme
Court last year in Colorado Republican Federal Campaign
Committee v. Federal Election Commission, 116 S.Ct. 2309
(1996), which upheld unlimited ``hard money'' independent
expenditures by political parties on behalf of their
candidates.
Most pertinently, the Colorado Republican Court reached
that conclusion despite arguments that unrestrained soft
money contributions were undermining the Act's limitations on
hard money party funding:
``We recognize that FECA permits individuals to contribute
more money ($20,000) to a party than to a candidate ($1,000)
or to other political committees ($5,000). . . . We also
recognize that FECA permits unregulated ``soft money''
contributions to a party for certain activities, such as
electing candidates for state office . . . or for voter
registration and ``get out the vote'' drives. . . . But the
opportunity for corruption posed by these greater
opportunities for contributions is, at best, attenuated.
Unregulated ``soft money'' contributions may not be used to
influence a federal campaign, except when used in the limited
party-building activities specifically designated by
statute.'' Id. at 2316.
And the Court's suggestion that Congress ``might decide to
change the statute's limitations on contributions to
political parties''--which has been taken out of context by
defenders of McCain-Feingold's soft money ban--referred to
hard money donations.
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.
The ACLU continues to believe that the most effective and
least constitutionally

[[Page S10512]]

problematic route to genuine reform is a system of equitable
and adequate public financing. 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.
Sincerely,
Ira Glasser,
Executive Director.
Laura W. Murphy,
Director, Washington Office.
Joel Gora,
Professor of Law, Brooklyn Law School, and Counsel to the
ACLU.
____

Questions and Answers About Issue Advocacy (With Specific Reference to
the Revised McCain-Feingold Bill)

1. what is issue advocacy?

Issue advocacy can best be defined as any speech relating
to issues and the policy positions taken by candidates and
elected officials. It can be as simple as a statement like
``Senator Doe's position on school vouchers is grievously
mistaken.'' Or it can be as involved as a multimillion dollar
campaign of broadcast and print advertisements that spreads
the same message. Any group or individual can engage in issue
advocacy.
Under current law, a message stops being considered ``issue
advocacy'' if it is accompanied by ``express advocacy'' or
actual statements advocating the election or defeat of a
clearly identified candidate for office, i.e. ``Senator Doe's
position on school vouchers is grievously mistaken and anyone
who cares about the separation of church and state should
vote against him in November.''
Although issue advocacy can leave the impression that a
listener should support or oppose a particular candidate,
such messages cannot--under current law--be treated (and
therefore regulated) as express advocacy by the Federal
Elections Commission.

2. Why is Congress trying to regulate issue advocacy?

During the 1996 elections, groups across the political
spectrum engaged in intense issue advocacy campaigns. Many
members of Congress felt they lost control of their campaigns
because of the unregulated and undisclosed advertising from
issue groups. Their concern that elections are ``out of
control'' seems to be the driving force in current efforts to
regulate issue advocacy.
Because of this loss of control, some federal lawmakers
seem to believe that candidates' interests should trump the
right of citizen involvement and speech. Also, many members
of Congress believe that issue advocacy became far too
political and powerful during the last election cycle. They
assert that these issue ads are really a subterfuge for
express advocacy communications. Many lawmakers and advocacy
groups think that all communications that could influence
the outcome of elections should be regulated by statute.

3. How will the revised McCain-Feingold legislation affect issue
advocacy?

The legislation that the Senate will most likely vote on
during the next several days is a revised version of the
McCain-Feingold bill. The ACLU will soon be releasing an
analysis of the new legislation, but in the meantime, we
continue to assert that the issue advocacy provisions of the
revised bill are unconstitutional. Such unconstitutional
provisions include:
A permanent, year-round restriction on issue advocacy
achieved through redefining express advocacy in an
unconstitutionally vague and watered-down manner. The key to
the existing definition of express advocacy is the inclusion
of an explicit directive to vote for or vote against a
candidate. Minus the explicit directive or so-called ``bright
line test,'' what constitutes express advocacy will be in the
eye of the beholder, in this case the FEC. Few non-profit
issue groups will want to risk their tax status to engage in
speech that could be interpreted by the FEC to have an
influence on the outcome of an election.
A two-month black out on all television and radio issue
advertising before primary and general elections. The only
individuals and groups that will be able to characterize a
candidate's record on radio and television during this 60 day
period would be the candidates, PACs and the media. It seems
this ban would exclude issue advertising on cable, the
Internet, in print and in ads on movie screens.
A misleading ``exception'' for candidate voting records.
The voting records that would be permitted under this new
statute would be stripped of any advocacy-like commentary.
For example, depending on its wording, the ACLU (as a
501(c)(4) corporation) might be banned from distributing a
voting guide that highlighted members of Congress who have a
100 percent ACLU voting record as members of an ``ACLU Honor
Roll.'' Unless the ACLU chose to create a PAC to publish such
guides, we would be barred by this statute even though we do
not expressly advocate the election or defeat of a candidate.
Redefining ``expenditure,'' ``contribution'' and
``coordination with a candidate'' so that legal and
constitutionally protected activities of issue advocacy
groups would become illegal. If the ACLU decided to take out
an advertisement lauding--by name--Senators for their
effective advocacy of constitutional campaign finance reform,
this ad would be counted as express advocacy on behalf of the
named Senators and therefore prohibited.
The Senate is threatening to erect a Byzantine set of laws
that pose a formidable barrier to citizen speech. This
barrier to free speech and free participation in the
electoral process is like a barbed wire fence. No individual
or group should try to scale it unless they are willing to
become ensnared in a complicated set of laws that have
significant penalties.
These provisions of the new McCain-Feingold legislation
would silence citizen speech to give candidates more control
over what is said about them prior to an election and
throughout the election year. Similar bans and disclosure
requirements were contained in the original McCain-Feingold
bill.
In addition, many of the pending reform bills in the House
and Senate such as H.R. 2183, the Bipartisan Campaign
Integrity Act of 1997, H.R. 493, the Bipartisan Campaign
Reform Act (which has evolved into H.R. 1776 and 1777, the
Campaign Independence Restoration Act, Parts I and II) and
H.R. 600, American Political Reform Act, among others, would
ban or impose burdensome and unconstitutional disclosure on
issue speech.

4. what are the problems with Congressional attempts to rein in issue
advocacy?

The proposals being considered in the House and Senate have
manifold constitutional and practical problems.

A. Constitutional Concerns

All of the proposals violate the First Amendment. Attempts
to regulate and require disclosure of issue advocacy through
statute and through FEC regulation have repeatedly been
declared unconstitutional by the Supreme Court and lower
federal courts. The Court has always viewed issue advocacy as
a form of speech that deserves the highest degree of
protection under the First Amendment. Not only has the Court
been supportive of issue advocacy, the justices have
affirmatively stated that they are untroubled by the fact
that issue advertisements may influence the outcome of an
election. In fact, in Buckley v. Valeo, the justices stated:
``The distinction between discussion of issues and
candidates and advocacy of the 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.
Buckley v. Valeo, 424 U.S. 1 (1976) at 42.''
Those of us who truly understand and defend the phenomenon
of issue advocacy freely acknowledge that the advertisements
and statements of issue groups do have political impact. In
fact, many groups hope that the voters will take candidate
positions and voting records into account when voters go to
the polls.
For example, groups like the ACLU want to continue to
discuss candidate positions on civil liberties issues before,
during and after elections, even though we are barred by our
own policies from endorsing or opposing particular candidates
for public office. Forbidding us to do so would make much of
our legislative advocacy irrelevant during large portions of
the year. Would we, for example, be permitted to criticize
Senator Doe for his position on vouchers after September 4?
The premise of the Federal Election Campaign Act and
current campaign reform proposals is that Congress can
control the quantity and qualify of all speech that
influences the outcome of elections in an attempt to make
elections ``fair.''
The Supreme Court has responded on repeated occasions to
this attempt to regulate political speech by invoking the
primacy of the First Amendment instead of deferring to the
concept of ``political speech equalization'' asserted by
Congress and FECA.
The only justification for any regulation of political
speech upheld by the Court has been to guard against the
reality or appearance of corruption. Although many have
criticized issue advocacy, few, if any, are asserting that it
fosters a quid pro quo form of corruption that the Court has
allowed Congress to guard against.
Defenders of the First Amendment know that the freedom to
engage in robust political debate in our democracy will be at
risk if the Congress or the FEC is given the authority to ban
issue ads close to an election, or evaluate the content of
issue ads to determine if they are really a form of express
advocacy. The Supreme Court recognized this danger long
before it decided Buckley. In an opinion issued in 1945 in
Thomas v. Collins, the Court stated:
``. . . 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. Thomas v. Collins,'' 323 U.S. 516 (1945).
Given the Court's concern about the chilling effect
regulation has on speech, one

[[Page S10513]]

can better appreciate the need for a clear-cut standard for
limiting the kinds of communications that can be regulated by
campaign finance laws. While some are disheartened that the
FEC only has clear authority to regulate communications that
include express advocacy terms like ``vote for'' and ``vote
against,'' ``elect Doe for Congress,'' etc., others are
relieved that the FEC is not free to regulate all
political speech.
It is noteworthy that none of these proposals seek to
regulate the ability of the media to exercise its enormous
license to editorialize in favor or against candidates. If
the sponsors of these proposals to regulate issue advocacy
have their way, the only entities that would be free to
comment on candidates' records would be the press, PACs and
the candidates themselves.
With no proven record of corruption, why are citizen groups
being ejected from political debate during the crucial period
before elections?

B. Practical Implications

The proposed McCain-Feingold statutory limitations on issue
advocacy would force groups that now engage in issue
advocacy--501(c)(3) and 501(c)(4)--to create new
institutional entities--PACs--to ``legally'' speak within 60
days before an election. The groups would also be forced to
disclose all contributors to the new PAC.
Opportunities that donors now have to anonymously
contribute to issue groups would be eliminated. Not all
members of non-profit organizations want to become members of
PACs. Separate accounting procedures, new legal costs and
separate administrative processes would be imposed on these
groups, merely so that their members could preserve their
First Amendment rights to comment on candidate records. It is
very likely that some groups will remain silent rather than
risk violating this new requirement or absorbing the
attendant cost of compliance.
This new provision may trigger Internal Revenue Service
review of the non-profit status of groups that elect to
create PACs. The IRS may justifiably examine the primary
purpose of the issue groups. Groups could face a loss of
members and tax deductible gifts for exercising their First
Amendment rights.
It is notable that the much ballyhooed Brennan Center
constitutional law professors letter recently released by
Senators John McCain (R-AZ) and Russ Feingold (D-WI) is
conspicuously silent on the advocacy restrictions contained
in the bill.

5. Has Congress previously enacted laws regulating issue advocacy?

Yes, in 1974 Congress enacted a similar issue advocacy
disclosure law that was struck down in federal court. The
Federal Election Campaign Act of 1971 was amended in 1974 to
require the disclosure to the Federal Election Commission of
issue groups engaged in ``any act directed to the public for
the purpose of influencing the outcome of an election, or
publishes or broadcasts issues to the public any material
referring to a candidate (by name, description, or other
reference) . . . setting forth the candidates position on any
public issue, [the candidate's] voting record, or other
official acts . . . or is otherwise designed to influence
individuals to cast their votes for or against such a
candidate or to withhold their votes from such candidate.'' 2
U.S.C. Sec. 437A.
Such groups would have been required to disclose to the FEC
in the same manner as a political committee or PAC. They
would have to make available every source of funds which were
used in accomplishing such acts.
This provision of the 1974 amendments was challenged by the
ACLU as part of the Buckley case. When the challenge came
before the U.S. Court of Appeals for the DC Circuit (prior to
coming before the Supreme Court), the provision was struck
down because it was vague and imposed an undue burden on
groups engaged in activity that is, and should be, protected
by the First Amendment. The D.C. Circuit Court ruling stated:
``To be sure, any discussion of important public questions
can possibly exert some influence on the outcome of an
election preceding . . . But unlike contributions and
expenditures made solely with a view to influencing the
nomination or election of a candidate, issue discussions
unwedded to the cause of a particular candidate hardly
threaten the purity of the elections. Moreover, and very
importantly, such discussions are vital and indispensable to
a free society and an informed electorate. Thus, the interest
group engaging in nonpartisan discussions ascends to a high
plane, while the governmental interest in disclosure
correspondingly diminishes.''
It is noteworthy that the FEC did not appeal this aspect of
the Circuit Court's ruling.

6. Has the federal government and the Federal Elections Commission
tried to regulate issue advocacy in a way that would treat it as
express advocacy?

It certainly has. In one early telling incident, three
elderly citizens with no connection to any candidate or
political party published an advertisement in early 1972 in
The New York Times that condemned the secret bombings of
Cambodia by the United States. The advertisement also called
for the impeachment of President Nixon and printed an honor
roll of those members of Congress who had opposed the
bombings. The honor roll included Senator George McGovern.
Although the ad was a classic example of speech protected
by the First Amendment, it violated a federal campaign
finance law, which effectively barred such expenditures on
the ground that they could influence the upcoming
presidential election by criticizing President Nixon and
applauding one of his possible opponents, Senator McGovern.
On the basis of this law, the U.S. government sued the three
in federal court, seeking to enjoin them from publishing such
ads, and wrote a letter to the Times threatening them with
criminal prosecution if they published such an ad again.
The ACLU represented the three citizens and won. But the
FEC has tried to regulate issue advocacy repeatedly since
then. As recently as October 5, 1995, and on March 13, 1996,
the FEC attempted to issue regulations severely
circumscribing the rights of issue advocacy groups to
communicate information on candidates.
In fact, the FEC has a terrible track record of trying to
broadly interpret current FECA statues to encompass issue
advocacy speech. While it is impossible to go into the facts
of every case, with the narrow exception of FEC v. Furgatch,
869 F.2d 1256 (9th Cir. Cal. 1989), the Supreme Court and the
lower courts have repeatedly rebuffed the FEC in this area.
In addition to Buckley, we suggest you look at the
following decisions: United States v. National Committee for
Impeachment, 469 F.2d 1135 (2d Cir, N.Y. 1972); American
Civil Liberties Union v. Jennings, 366 F. Supp. 1041 (D.D.C.
1973); FEC v. AFSCME, 471 F Supp. 315 (D.D.C. 1979); FEC v.
Central Long Island Tax Reform Immediately Committee, 616
F.2d 45 (2d Cir. N.Y. 1980); FEC v. NCPAC, 470 U.S. 480
(1985); FEC v. NOW, 713 F. Supp 428 (D.D.C. 1989); Faucher v.
FEC, 928 F.2d 468 (1st Cir. Me. 1991); FEC v. Survival
Education Fund, 65 F.3d 285 (2d Cir. N.Y. 1994); FEC v.
Christian Action Network, 110 F.3d 1049 (4th Cir. Va. 1997);
FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996); Maine Right to
Life Committee v. FEC, 98 F.3d 1 (1st Cir. Me. 1996); and
Clifton v. FEC, 114 F.3d 1309 (1st Cir. Me. 1997).
____

American Civil Liberties Union,

Washington, DC, April 14, 1997
Hon. Mitch McConnell,
U.S. Senate, Washington, DC.
Dear Senator McConnell: On February 20, 1997, I wrote to
you on behalf of the American Civil Liberties Union urging
our strong opposition to S. 25, the Bipartisan Campaign
Reform Act of 1997. In that letter, we set forth the reasons
why we believe that bill is ``fatally and fundamentally
flawed when measured against First Amendment values.''
Thereafter, a letter was sent to Senators John McCain and
Russell Feingold by the Brennan Center for Justice at NYU
School of Law. That letter asserted that the ACLU's analysis
of the constitutionality of S. 25 was based on arguments
which had been rejected in the Buckley case and would not
command majority support on the current court. Despite the
eminence of its author, however, the letter is incomplete and
incorrect in a number of key respects. We appreciate this
opportunity to demonstrate why and to respond to the charge
that we presented ``distorted descriptions of existing
constitutional law.''
Those provisions of S. 25 which seek to induce candidates
to adhere to spending limits in Senate campaigns and penalize
those who refuse, which severely restrict political action
committees and which likewise restrain contributions to
political parties are not justified by Buckley or later
cases. They will not survive strict scrutiny. The provisions
of the bill which assault independent political activity and
invade the absolutely protected sphere of issue speech are
precisely condemned by Buckley and its progeny and are all
but per se invalid. The entire sweep of the bill, including
the greatly expanded enforcement powers given to the Federal
Election Commission, is worse than the sum of its parts. It
is as objectionable an assault on political freedom as were
the provisions of the Federal Election Campaign Act at issue
in Buckley.
Preliminarily, we would note that our condemnation of three
of the most extreme provisions of the bill--the total and
complete ban on any political contributions by political
action committees (Section 201), the sweeping new public
disclosure requirements targeting people who give as little
as $50 (Section 304) or even $20 (Section 101) to a Senate
candidate, and the xenophobic ban on political contributions
by lawful resident aliens--went unremarked in the Brennan
Center letter. Nothing in Buckley would justify the
constitutionality of these provisions, and we would welcome
the Brennan Center's joining us in denouncing them.

I. S. 25: The Unconstitutional Offer You Can't Refuse

Replying to our assertion that ``S. 25's coercive and
punitive scheme designed to compel candidates to accept
spending limits in Senate elections and to penalize those who
refuse, violates First Amendment principles,'' the Brennan
Center asserts that this is an argument that the ACLU lost in
the Buckley case.
There are three reasons why this is not so and why Buckley
does not control the validity of these provisions of S. 25.
First, we didn't lose that argument in Buckley because we
never made it. The primary contention was that the
Presidential public funding scheme discriminated against
those candidates and parties whom it excluded, not that it
exacted unconstitutional conditions and limitations from
those whom

[[Page S10514]]

it benefited, nor that it coerced compliance by penalizing
those who declined the offer.
Second, the Buckley Court did state that Congress could
condition acceptance of public funds on a candidate's
agreement to abide by specified spending limits, because a
candidate may decide voluntarily to forego private
fundraising and accept public funding. But a candidate or
party was free to reject that offer and choose to try to
raise and spend more money than the conditional limits would
permit, without regard to what opposing candidates or parties
did. The choice of one candidate did not affect the rights of
others. Whether that conditional funding scheme would survive
close scrutiny under the Court's unconstitutional conditions
doctrine is a substantial question.
But the scheme in S. 25 is not just a conditional funding
scheme which requires candidates to give up rights in order
to get benefits and which penalizes non-complying candidates
by denying them free television prime time, half-priced
purchased and discounted mass mailings rates. S. 25 is also a
contingent benefits scheme whereby the exercise of protected
campaign spending rights by a noncomplying candidate triggers
statutory fundraising benefits to his or her complying
opponent. Thus, if any noncomplying Senate candidate exceeds
the applicable spending limit by only 5% the complying
candidate's spending limit is raised tenfold by 50%.
Likewise, if a noncomplying candidate's expenditures exceed
155% of the limit, the complying candidate's ceiling is again
raised tenfold to 200%. And in both instances, the
contribution limits for the complying candidate, but not the
noncomplying one, are doubled from $1,000 to $2,000, making
it easier for the complying candidate to raise funds to
``drown out'' the noncomplying candidate. Adding insult to
injury, noncomplying candidates are subject to more
burdensome disclosure requirements in order to enforce the
triggering mechanism that raises the spending limits and
contribution caps for their complying opponents.
Further, the law mandates that 60% of all contributions
must be raised in state in order to be eligible for the
benefits. Residency requirements can be the basis for who can
vote in an election but should not be the basis for who can
speak about an election. See McIntyre v. Ohio Board of
Elections, 517 U.S. (1995). Moreover, in-state limitations
could deprive particular kinds of underfinanced, insurgent
candidates of the kind of out-of-state support they need.
Just as much of the civil rights movement was fueled by
contributors and supporters from other parts of the nation,
so, too, are many new and struggling candidates supported by
interests beyond their home states. This proposal would
severely harm such candidacies. Perhaps that is its purpose.
In addition, Congress is our national legislature, and
although its representatives come and are elected from
separate districts and states, the issues that are debated
are, by definition, national issues that transcend district
and state lines and may be of concern to citizens all over
the nation. When such issues become central in certain
campaigns, people and groups from all over the country should
be entitled to have their views and voices heard on those
issues. Any other approach takes a disturbingly insular and
isolated view of political accountability and the obligations
of a Member of Congress.
The clear purpose and patent effect overall of this
conditional funding scheme is to chill and deter, dollar for
dollar, any candidate from trying to mount an effective high-
spending campaign. With this contingent limitation scheme,
incumbents, who will almost always opt for the public
funding, have arranged a way to have their cake and eat it
too. That scheme, which coerces candidates to accept the
limitations by penalizing them if they do not, is a far cry
from anything sustained in Buckley. It is an offer that few
can refuse.

II. S. 25's Attacks on PACs

The bill whose constitutionality the Brennan Center vouches
for would totally and entirely ban PAC contributions to
Senate candidates, a wholly unprecedented restriction of the
rights of literally millions of Americans, most of them small
donors in the $25 to $100 range, to pool their resources to
amplify their voices. Such small-donor PACs affiliated with
groups running the gamut from the National Abortion Rights
Action League, the Human Rights Campaign Fund and Emily's
List, on the one hand, to the National Right to Life
Committee, the Christian Coalition and the National Rifle
Association, on the other, would be denied the right to
support the candidates of their choice.
Nothing in Buckley sustains such a radical restraint on the
right of freedom of speech and association. Buckley upheld a
$5,000 limit on political action committee contributions
to individual federal candidates, not the $0 limit, total
ban that Section 201 of S. 25 would impose on all Senate
campaigns.
Even the ``fall back'' provision that would impose a 20%
cap on the amount of PAC contributions that any Senate
candidate could receive operates, effectively, as a $0 limit,
total ban once that limit is reached. Once any Senate
candidate has received PAC contributions totaling 20% of the
applicable spending limit, all other groups are barred from
supporting that candidate and effectively silenced. In
Buckley the Court said that ``[g]iven the important role of
contributions in financing political campaigns, contribution
restrictions could have a severe impact on political dialogue
if the limitations prevented candidates and political
committees from amassing the resources necessary for
effective advocacy.'' 424 U.S. at 22. The Court found that
the contribution limits there survived close scrutiny under
that test, in large part precisely because the Act, though
limiting individual contributions to $1,000, permitted PACs
to contribute five times that amount, and provided for a
proliferation of PACs to fill the fundraising gap. Id. at 23,
29-30. A total or near-total ban on PAC contributions would
fail the Buckley test.
That is why reducing the PAC contribution ceiling to $1,000
is also extremely suspect. In 1976 dollars, that would be
about a $350 ceiling on contributions. It is simply
incredible to believe that the Buckley Court would have
upheld that low a limit on individual or PAC contributions,
especially when so many PACS are small donor PACs where the
concern with corruption is attenuated. The Brennan Center
letter is simply wrong in its assertion that ``in the years
since Buckley, the Supreme Court has upheld every
contribution limit that has come before it in an election
context.'' (p. 2). In Citizens Against Rent Control v.
Berkeley, 454 U.S. 290 1981), cited in our earlier letter,
the Court, by a vote of 8 to 1, invalidated a $250 limit on
personal contributions to local referendum campaigns. S. 25's
limits would be similarly vulnerable.

iii. s. 25's attacks on issue advocacy and speech

One of the central tenets of the Supreme Court's campaign
finance jurisprudence has been the critical distinction
between contributions and expenditures made by federal
candidates, or their campaigns or those who expressly
advocate their election or defeat, on the one hand, and all
other political and issue advocacy and discussion and
activity, even though it might influence the outcome of an
election, on the other. This constitutional Continental
Divide is compelled by the First Amendment and is built upon
the concept that only ``express advocacy'' of the election or
defeat of specific federal candidates can be subject to
regulation.
It is not that there is an inherent distinction between
issue speech and electoral advocacy. Quite the contrary, as
the Buckley Court recognized: ``For 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
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.'' 424 U.S. at 43. But Buckley held that if any
mention of a candidate in the context of discussion of an
issue rendered the speaker or the speech subject to campaign
finance controls, the consequences for the First Amendment
would be intolerable.
Accordingly, while candidate-focused contributions and
expenditures and ``express advocacy'' can be subject to
various restrictions or regulations, the Court clearly held
in Buckley that all speech which does not ``in express terms
advocate the election or defeat of a clearly identified
candidate'' is totally free of any permissible regulation:
``So 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.'' 424 U.S. at 45
(emphasis supplied). The purpose of this profound distinction
is to keep campaign finance regulations from overwhelming all
political and public speech.
The effect of the distinction has been manifold. It is the
express advocacy concept that defines the notion of ``soft
money'' which is political funding that is used for party-
building, get-out-the-vote activities and generic advertising
(``Vote Democratic''), all activities which do not
``expressly advocate'' the election or defeat of specific
federal candidates. Because it is not used for such express
advocacy, it can be raised from sources that would be
restricted in making contributions or expenditures. It is the
express advocacy concept that separates an illegal corporate
expenditure advocating the election or defeat of a specific
candidate from an allowed issue advertisement discussing
public and political questions. Compare Austin v. Michigan
Chamber of Commerce, 494 U.S. 652 (1990) with First National
Bank of Boston v. Bellotti, 435 U.S. 765 (1978). It is the
express advocacy concept that defines and cabins the concept
of independent expenditures and determines the permissibility
of coordinated expenditures. It is the express advocacy
concept that protects the myriad on non-partisan, issue-
oriented groups like the ACLU in their right to comment on
and criticize the performance of elected officials without
becoming ensnared in the federal campaign finance laws. See
Buckley v. Valeo, 519 F.2d 817, 832 (D.C. Cir. 1975).
And it is that critical constitutional distinction which S.
25 seeks to blur beyond recognition.

A. Soft Money

As indicated, soft money is funding that does not support
``express advocacy'' of the election or defeat of federal
candidates, even though it may exert an influence on the
outcome of federal elections in the broadest sense of that
term. It sustains primary political activity such as get-out-
the-vote drives

[[Page S10515]]

and issue advertising. That is why, contrary to the Brennan
Center's letter, the relevant precedent is not Austin which
involved express advocacy by corporations, but Colorado
Republican Federal Campaign Committee v. Federal Election
Commission, 116 S.Ct. 2309 (1996), which upheld unlimited
independent expenditures by political parties on behalf of
their candidates.
Indeed, the unrestricted use of soft money by political
parties and non-party organizations like labor unions has
been invited by Buckley (``So long as persons and groups
eschew . . .''), authorized by Congress (see 2 U.S.C.
sections 431 (8)(A)(I) and (B)(xii) which permit soft money
for state elections and voter registration and get out the
vote drives), sanctioned and enhanced by rulings of the
Federal Election Commission and acknowledged by the Supreme
Court in last year's Colorado Republican case. In that case,
and despite a brief filed by the Brennan Center with charts
and graphs detailing large individual and corporate soft
money contributions to the two major parties and contending
that ``soft money contributions to local political parties
have cascaded into a flood of dollars from corporations,
labor unions, and wealthy donors that threaten the integrity
of the Act's federal contributions restrictions. . . .''
(Brief, p. 8) the Court nonetheless stated:
``We recognize that FECA permits individuals to contribute
more money ($20,000) to a party than to a candidate ($1,000)
or to other political committees ($5,000). . . We also
recognize that FECA permits unregulated ``soft money''
contributions to a party for certain activities, such as
electing candidates for state office . . . or for voter
registration and ``get out the vote'' drives. But the
opportunity for corruption posed by these greater
opportunities for contributions is, at best, attenuated.
Unregulated ``soft money'' contributions may not be used to
influence a federal campaign, except when used in the limited
party-building activities specifically designated by
statute.'' Id. at 2316.
Accordingly, S. 25's sweeping and convoluted limitations on
the amount and source of soft money contributions to
political parties (Section 211 to 213) and disclosure of soft
money disbursements by other organizations (Section 211) are
not justified by precedent. Disclosure, rather than
limitation, of large soft money contributions to political
parties, is the appropriate remedy.
Nonetheless, we recognize that during the last election
cycle, many candidates for federal office spent as much time
responding to issue advertising and independent expenditures
as they did campaigning against the advertising emanating
from their opponents. The solution to this problem is not to
tamp down on issue advocacy, independent expenditures or soft
money contributions in a vague, overbroard and
unconstitutional manner. Rather, Congress should lift the
individual and PAC contribution limits so that candidates
have better control and access to the larger sums of money
necessary to finance their own campaigns, subject, of course,
to timely and appropriate disclosure.

B. Independent Expenditures

The Court has repeatedly stated that independent
expenditures are at the core of the First Amendment's
protection because they embody citizen commentary on
government, politics, and candidates for elective office. See
Buckley v. Valeo, supra; FEC v. National Conservative PAC,
470 U.S. 480 (1985); Colorado Republican Federal Campaign
Committee v. FEC, supra. In our initial letter we identified
a number of ways in which S. 25 burdens and restrains
these core First Amendment rights.
First, S. 25 broadly expands the definition of
``coordination'' so that virtually any person or group who
has had even the most casual interaction with a candidate or
a campaign is therefore barred from making independent
expenditures. Section 405.
Second, the bill imposes a number of new and burdensome
reporting and disclosure requirements on those who would make
such expenditures. Sections 241, 405. For example, any person
or group who spends more than $1,000 to place a small
political advertisement in The New York Times--a very small
ad--within three weeks of an election must file a report with
the government within 24 hours of when they arrange for the
ad--before it even runs. Section 241. Failure to do so can
result in civil monetary penalties or injunctive suits by the
Federal Election Commission. And what triggers the
application of these extensive new controls is any political
content which the government might deem ``express advocacy''
under the patently unconstitutional definition of that
concept contained in this bill. See infra.
Ignoring these serious concerns, the Brennan Center letter
focuses solely on the question of coordination between a
party and its candidate. Section 404. But even there the
letter ignores the fact that the Colorado Republican case
rejected the validity of a conclusive conclusion of
impermissible coordination whenever a party made an
expenditure in favor of its candidates. Yet S. 25 replaces
the rejected automatic conclusion with an all but conclusive
factual presumption of coordination and therefore limitation.

C. Issue Advocacy

S. 25's worst assault on settled First Amendment principles
is its efforts to obscure the bright line test of ``express
advocacy'' that has been fashioned by the courts for 25 years
to protect the broad range of issue discussion in America
from campaign finance controls. The Buckley Court could not
have been more clear about the need for that bright line,
objective test which focuses solely on the speaker's words.
That test is an integral part of the First Amendment, no less
than the ``actual malice'' rule of New York Times Co. v.
Sullivan, 376 U.S. 254 (1964) in defamation cases, or the
``incitement test'' of Brandenburg v. Ohio, 395 U.S. 444
(1969) in subversive advocacy cases.
Indeed, the ACLU's initial encounter with campaign finance
laws was to defend against their very first use to try to
muzzle a small handful of dissenters who had published an
advertisement in The New York Times criticizing the President
of the United States. The government claimed that the ad was
``for the purpose of influencing'' the outcome of the 1972
Presidential election. The government was resoundingly
rebuffed, and the courts ruled that the campaign finance laws
could not be used in such an open-ended fashion to control
issue speech. United States v. National Committee for
Impeachment, 469 F.2d 1135, 1139-1142 (2d Cir. 1972); see
also, American Civil Liberties Union v. Jennings, 366 F.Supp.
1041, 1055-57 (D.D.C. 1973, three-judge court); Buckley v.
Valeo, 519 F.2d. 817, 832 (D.C. Cir. 1975, en banc); Buckley
v. Valeo, 424 U.S. at 42-45 and 76-80. Instead, ``express
advocacy'' would be the bright dividing line between campaign
advocacy and issue speech.
Now, S. 25 attempts to replace that time-honored concept
with the kind of vague and over broad formulas that Buckley
and other courts rejected, and the circle has turned full
round. Buckley said the First Amendment required that the law
could only regulate ``expenditures for commutations that in
express terms advocate the election or defeat of a clearly
identified candidate for federal office.'' Id. at 44, 80. The
very language and concepts that the Buckley Court rejected as
permissible definitions of regulatable electoral advocacy
have now reappeared in this bill. In Buckley the Court
rejected a triggering provision that regulated advocacy
speech ``relative to a clearly identified candidate.'' S. 25
regulates advocacy speech that ``refers to a clearly
identified candidate.'' Section 406. and any communication by
a political party to the public which ``refers to a clearly
identified candidate'' would be subject to regulation,
without more.
Beyond that, First Amendment rights would turn once again
on such vague and subjective concepts as whether the
communication ``conveys a message'' that advocates the
election or defeat of a particular candidate or that ``a
reasonable person would understand as advocating the election
or defeat'' of a candidate and that is ``made for the purpose
of advocating the election or defeat of the candidate as
shown by . . . a statement or action by the person making the
communication, the targeting or placement of the
communication, or the use by the person making the
communication of polling, demographic, or other similar data
relating to the candidate's campaign or election.''
Publication of ``box core'' voting records would be allowed
only if ``limited solely to providing information about the
voting record of elected officials on legislative matters and
that a reasonable person would not understand as advocating
the election or defeat of a particular candidate.'' That's
how incumbents would impede dissemination of information
about their voting records and official actions.
In an effort to defend these suspect provisions, the
Brennan Center letter distorts the meaning of the concept of
``independent expenditure'' as defined by the Court. A
communication cannot be defined as an independent expenditure
because it is ``designed to affect the outcome'' of a federal
election or because the speaker's ``purpose and effect was to
advocate the election or defeat of an identified candidate''
or because the speaker's ``predominant intent'' was to do so.
The courts have rejected these subjective tests as
treacherously dangerous boundary lines to mark First
Amendment rights. Under the First Amendment, an independent
expenditure is only one which ``expressly advocates the
election or defeat'' of a specific candidate. And references
to ``so-called `issue ads' '' or ``phony `issue ads' ''
(Letter, pp. 5, 6) cannot change that fact. It is not
surprising that the letter cites no precedent for its support
of a bill which would undue 25 years of bright line
protection for issue-oriented speech.
S. 25 remains ``fatally and fundamentally flawed when
measured against First Amendment values.'' It contains 87
pages of tortured twists and turns seeking more and more
limits on political funding and therefore on political
speech. As we all know, that approach has not worked, and we
think it will not work, politically or constitutionally. We
think it is time instead, to explore ways to expand political
participation and opportunity that do not entail restricting
political speech such as meaningful and constitutional public
financing. We look forward to working with you to do so.
Sincerely,
Ira Glasser,
Executive Director.
Laura W. Murphy,
Director, Washington Office.
Joel Gora,
Professor of Law, Brooklyn Law School, and Counsel to the
ACLU.

[[Page S10516]]

____
American Civil Liberties Union,

Washington, DC, February 20, 1997.
Hon. Mitch McConnell,
U.S. Senate, Washington, DC.
Dear Senator McConnell: I am writing this letter to set
forth my views and those of the American Civil Liberties
Union National Office with respect to the constitutionality
of S. 25, the Bipartisan Campaign Reform Act of 1997. A year
ago, I presented the opposition of the American Civil
Liberties Union to S. 1219, last year's campaign finance
bill. Once again, you have a bill before you which is fatally
and fundamentally flawed when measured against First
Amendment values. And one again we must oppose it.
The ACLU has long maintained that limitations on
contributions and expenditures used for the purpose of
advocating candidates and causes in the public forum violate
the First Amendment. Under the First Amendment, as properly
construed in Buckley v. Valeo, 424 U.S. 1 (1976), Congress
cannot ration or restrict the political funding that
nourishes and sustains political speech. ``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.''
424 U.S. at 51.
I was an ACLU staff attorney who helped shape our pleadings
and argued before the Court in the Buckley case, which was a
landmark of political freedom. And, as a Professor of Law at
Brooklyn Law School, I have worked with the ACLU on these
issues ever since. Just last year, the continuing validity of
the First Amendment principles recognized in Buckley was
reaffirmed by the Supreme Court, by a wide 7 to 2 margin, in
Colorado Republican Federal Campaign Committee v. Federal
Election Commission, 116 S. Ct. 2309 (1996), a ruling which
struck down limitations on independent expenditures by
political parties.
In a number of critical respects, S. 25 runs afoul of these
cherished principles. For example:
S. 25's coercive and punitive scheme, designed to compel
candidates to accept spending limits in Senate elections and
to penalize those who refuse, violates First Amendment
principles.
The ban and severe limitations on political action
committees cuts to the heart of freedom of association.
The unprecedented restrictions and controls on raising and
spending `'soft money'' by political parties and even non-
partisan groups trammel the First Amendment rights of parties
and their supporters in a manner well beyond any compelling
governmental interest and violate the ruling in the Colorado
Republican case.
The radically expanded definition of ``coordinated''
expenditure will improperly restrict the core area of
independent electoral speech and wreak havoc on freedom of
association.
Worst of all, the new definitions of what constitutes
``express advocacy'' are so vague and overbroad that they
transgress the great Constitutional Divide between partisan
electoral advocacy, subject to some regulation, and the
absolutely protected sphere of issue discussion, subject to
no permissible restraint. For twenty-five years courts have
fashioned and fostered that bright-line distinction in order
to protect the core values of the First Amendment. S. 25
seeks to undo those carefully crafted categories and
obliterate those constitutionally compelled distinctions.
The reduced record keeping threshold for contributions and
disbursements, from $200 down to $50, or for ``eligible''
candidates as low as $20, is a gross invasion of political
privacy.
The ban on political contributions by persons not eligible
to vote is an insult to the First Amendment which guarantees
free speech to all within our shores.
Last, but by no means least, the new enforcement powers
given to the Federal Election Commission to go to court in
the midst of a campaign to enjoin ``a violation of this Act''
pose an ominous and sweeping threat of prior restraint and
political censorship.
Let me elaborate briefly on these concerns.
1. S. 25's coercive and punitive scheme designed to compel
candidates to accept spending limits in Senate elections and
to penalize those who refuse, violates First Amendment
principles.
Title I of the bill, providing ``spending limits and
benefits'' for Senate campaigns, is an attempt to coerce what
the law cannot command, a backdoor effort to impose campaign
spending limits--which almost always benefit incumbents--in
violation of essential free speech principles and the
doctrine of unconstitutional conditions. The provisions for
``voluntary'' expenditure limits and other campaign funding
controls, imposed in order to induce candidates to accept
ceilings and restrictions on political speech and penalize
and disadvantage those who will not do so, raise serious
First Amendment problems.
The receipt of public subsidies or benefits should never be
conditioned on surrendering First Amendment rights. That
would penalize the exercise of those rights. See Perry v.
Sindermann, 408 U.S. 593, 597 (1972); FCC v. League of Women
Voters, 468 U.S. 364 (1984); Board of County Commissioners v.
Umbehr, 116 S. Ct. 2342 (1996). Since candidates have an
unqualified right to spend as much as they can to get their
message to the voters, and to spend as much of their own
funds as they can, and to raise funds from supporters all
over the country, they cannot be made to surrender those
rights in order to receive public benefits.
In Buckley the Court suggested that Congress might
establish a system where candidates would choose freely and
voluntarily between public funding with expenditure limits
and private spending without limits, so long as the non-
participating candidate remained free to engage in unlimited
private funding and spending. In that setting, the purpose of
the public financing of Presidential campaigns 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, goals vital to a
self-governing people.'' 424 U.S. at 92-93.
S. 25 fails this test, for its overall purpose and effect
are to limit speech, not enhance it. The bill imposes
substantial penalties on those disfavored, non-complying
candidates who will not agree to limit their campaign
expenditures, while it confers significant fund-raising
benefits upon those privileged candidates who adhere to the
limits. Privileged candidates get free broadcast time, and
sharply reduced broadcast and mailing rates. Disfavored
candidates must pay double promotional costs for the very
same communications. The bill contains triggers which
dramatically raise the spending ceilings and the contribution
caps for privileged candidates whenever disfavored candidates
threaten to mount a serious, well-funded campaign, or
whenever independent groups speak out against a privileged
candidate.
In effect, the bill tries to insure that privileged
candidates will always be able to counteract the messages of
disfavored candidates and their supporters. The law stacks
the deck against the candidate who will not agree to limits,
which will usually be the challenger trying to defeat
an incumbent. In short, this scheme does everything
possible to enable the candidate who agrees to spending
limits to overwhelm the candidate who does not. That is
not a level playing field. Lower courts have been quick to
invalidate such one-sided, lopsided ``voluntary'' schemes.
See Shrink Missouri Government PAC v. Maupin, 71 F.3d
1422, 1426 (8th Cir. 1995) (``We are 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.''); Day v. Holohan, 34 F.2d 1356 (8th
Cir. 1994).
2. The various limitations on PAC contributions violate
freedom of speech and association.
Section 201 of the bill would ban all political
contributions by political action committees. This would cut
to the heart of the First Amendment's protection of freedom
of political speech and association. The bill would give a
permanent political monopoly to political parties and
political candidates, and would silence all those groups that
want to support or oppose those parties and candidates. PACs
come in all sizes and shapes and provide vehicles for
millions of Americans to amplify their voices. There is not a
word in Buckley or any case which suggests that the Court
would uphold a total ban on PAC contributions to federal
candidates and still all those voices. Frankly, this is just
political grandstanding. That's why there is a ``fall back''
provision which would impose a $1,000 cap on PAC
contributions, which is also of very doubtful
constitutionality. See Committee Against Rent Control v.
Berkeley, 454 U.S. 290 (1981); Meyer v. Grant, 486 U.S. 414
(1988); Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995). In any
event, this provision is fatally overbroad because it treats
all PACs alike, even those made up only of small
contributors.
Likewise, the ban on ``bundling'' of individual PAC
contributions would abridge the freedom of association which
the Supreme Court has recognized as a ``basic constitutional
freedom.'' Kusper v. Pontikes, 414 U.S. 51, 57 (1973). As the
Court has pointedly observed, ``the practice of persons
sharing common views banding together to achieve a common end
is deeply embedded in the American political process.''
Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 294
(1981).
Finally, the cap of 20% on PAC contributions that may be
received will simply make it harder for candidates to raise
funds, intrude upon freedom of speech and association and act
like yet another backdoor effort to limit overall campaign
expenditures, all in violation of Buckley's core principles.
3. The unprecedented controls on ``soft money'' are
unjustified restraints on political parties and other
organizations, as are the restraints on coordinated
expenditures.
Sections 211, 212, 213 and 221 of the bill would severely
limit and restrict the sources and use of soft money by
political parties and other organizations. The new sweeping
limitations and controls on ``soft money'' contributions to
and disbursements by political parties and other
organizations, federal, state or local, would expand the
reaches of the FECA into unprecedented new areas, far beyond
what any compelling interest would require. The reach of
these proposals is breathtaking and unprecedented.
Indeed, just last June, the Court cast grave doubt upon the
constitutionality of these various provisions. By a 7 to 2
margin, the Court ruled that even candidate-focused, ``hard
money'' expenditures by political parties were fully
protected by First Amendment principles and the Buckley
precedents.

[[Page S10517]]

In Federal Election Commission v. Colorado Republican Federal
Campaign Committee, supra, the Court gave full constitutional
protection to unlimited party independent expenditures and
invalidated the FEC rule that treated all candidate-focused,
independent party expenditures as though they were
``coordinated'' with the candidate and therefore subject to
limitations. In language powerfully relevant here the Court
held: ``We do not see how a Constitution that grants to
individuals, candidates, and ordinary political committees
the right to make unlimited independent expenditures could
deny the same right to political parties.'' 116 S.Ct. at
2317. The case for thorough protection for ``soft money'' is
even stronger, since it is used by definition for voter
registration, get-out-the-vote, ``generic'' advertising like
``Vote Democratic'' and other party-building activities.
Equally significant, the Court squarely rejected the
sweeping claims that soft money spent by political parties
was ``corrupting'' the system and had to be stopped: ``We
also recognize that the FECA permits unregulated `soft money'
contributions to a party for certain activities. . . . But
the opportunity for corruption posed by these greater
opportunities for contributions is, at best, attenuated.''
116 S.Ct. at 2316.
Finally, Section 404, the new provision that tells
political parties that they can continue to make
``coordinated'' expenditures on behalf of their candidates
only if they forfeit their Colorado Republican Committee
right to make independent expenditures supporting that
candidate is yet another example of how this bill coerces the
surrender of one constitutional right in order to exercise
another. That kind of coercion should be rejected out of
hand.
4. The new restrictions on independent expenditures
improperly intrude upon that core area of electoral speech
and impermissibly invade the absolutely protected area of
issue advocacy.
Two basic truths have emerged with crystal clarity after
twenty years of campaign finance decisions. First,
independent expenditures for ``express'' electoral advocacy
by citizen groups about political candidates lie at the very
core of the meaning and purpose of the First Amendment.
Second, issue advocacy by citizen groups lie totally outside
the permissible area of government regulation. See Buckley v.
Valeo, 424 U.S. at 14-15, 78-80, First National Bank of
Boston v. Bellotti, 435 U.S. 765 (1978); FEC v. Massachusetts
Citizens For Life, 479 U.S. 238, 249 (1986). This bill
assaults both principles.
First, Section 405 of the bill vastly expands the concept
of ``coordinated'' expenditures so that virtually any person
who has had any interaction with a candidate or a campaign is
therefore barred from making independent expenditures. These
definitions and limitations embody an impermissible kind of
``gag order by association.'' See De Jonge v. Oregon, 299
U.S. 353 (1937). Second, if significant independent
expenditures are made ``in support of another candidate or
against'' an eligible, privileged candidate, the spending
limits of the latter are raised to make it easier to
counteract the independent. speech. Finally, new and expanded
reporting requirements are imposed on independent speakers.
All of this is designed to chill and deter core electoral
advocacy.
Worst of all is S. 25's blunderbuss assault on issue-
oriented speech. The weapon is an unconstitutional expansion
of the definition of ``express advocacy'' in order to sweep
classic issue speech within the zone of regulation as
independent expenditures. The bill abandons the bright line
test of express advocacy (words which in express terms
advocate the election or defeat of a candidate, such as
``Vote for Smith,'' ``Vote Against Jones,'' ``Elect,''
``Defeat''), a test which the Supreme Court held was mandated
by the First Amendment. Instead, Section 406 of the bill
would treat as express advocacy any communication ``that
conveys a message that advocates the election or defeat of a
clearly identified candidate'' or, worse, ``that a reasonable
person would understand as advocating the election or defeat
or a candidate.'' A safe harbor provision, for a
communication that ``is limited solely to providing
information about the voting record of elected officials on
legislative matters and that a reasonable person would not
understand as advocating the election or defeat or a
particular candidate'' is circular and no safe harbor at all.
Indeed, the prospect of subjecting free speech rights to the
post facto assessment of a ``reasonable person'' test would
undo decades of First Amendment jurisprudence designed to
protest First Amendment rights against the vagueness and
uncertainly of such a standard.
This provision attacking issue ads and legislative advocacy
would sweep in the kind of essential issue advocacy which
Buckley and cases predating Buckley by a generation, see
Thomas v. Collins 323 U.S. 516 (1945), have held immune from
government regulation and control. It seems to be targeted
exactly against the kind of voting record, ``box score''
discussion that emanates from the hundreds and thousands or
issue organizations that enrich our public and political
life. In Buckley, the Court adopted the bright line test line
test of express advocacy in order to immunize issue advocacy
from regulation: ``So long as person or groups eschew
expenditures that in express terms advocate the election or
defeat of a clearly identified candidate, they are free to
spends as much as they want to promote the candidate and his
views.'' Id. at 45.
Most significantly, the Act at issue in Buckley contained a
similar provision regulating issue-oriented groups because of
their ``box score'' ratings of public officials and
comparable activities. That provision was unanimously held
unconstitutional by the en banc Court of Appeals, without any
further appeal by the government. See Buckley v. Valeo, 519
F.2d 817, 832 (D.C. Cir 1975). Circuit Judges running the
gamut from Bazelon and Wright to Robb and Mackinnon were
unanimous in their condemnation of that effort to control
issue speech. The new and expanded definition of ``express
advocacy'' in S. 25 is similarly, grievously flawed.
5. The bill gives unacceptable new powers of prior
restraint and political censorship to the Federal Election
Commission.
With all of these problems with the bill, particularly
those that pertain to issue advocacy and independent
expenditures, giving the Federal Election Commission sweeping
new powers to go to court to seek an injunction on the
allegation of a ``substantial likelihood that a violation . .
. is about to occur'' is fraught with First Amendment peril.
Where sensitivity to the core constitutional protection for
issue advocacy is concerned, the Commission has, in the words
of one appellate judge, ``failed abysmally.'' See Federal
Election Commission v. CLITRIM, 616 F.2d 45, 53-54 (2d Cir.
1980)(Kaufman, C.J. concurring). And ever since then, non-
partisan, issue-oriented groups like the ACLU, the National
Organization for Women, the Chamber of Commerce, Right-to-
Life Committees and many others have had to defend themselves
against charges that their public advocacy rendered them
subject to all the FECA's restrictions, regulations and
controls. The kind of ``chilling effect'' that such
enforcement authority generates in the core area of protected
speech makes the strongest case against giving the Commission
additional powers to tamper with First Amendment rights.
S. 25 is not the way to reform campaign finance. It is bad
constitutional law and bad political reform. True reform
would expand political participation and funding, without
limits and conditions, not restrict contributions and
expenditures by which groups and individuals communicate
their messages to the voters.
Thank you for the opportunity to set forth these views.
Sincerely,

Joel M. Gora,

Professor of Law,
Brooklyn Law School.

Mr. McCONNELL. Mr. President, there was an editorial in Friday's Wall
Street Journal entitled ``The Beltway's Hale-Bopp'' with regard to the
bill before us today. And I ask unanimous consent that that be printed
in the Record.
There being no objection, the editorial was ordered to be printed in
the Record, as follows:

[From the Wall Street Journal, Oct. 3, 1997]

The Beltway's Hale-Bopp

Campaign finance reform, also known as McCain-Feingold,
isn't merely a legislative proposal. Campaign finance reform
is now a religion.
Somehow in the past several years, campaign finance reform
transmuted from a cause into a belief system. It is the
Beltway's version of the Heaven's Gate cult, in which the
powers attributed to the Hale-Bopp comet have been
transferred to the McCain-Feingold bill. It has become the
mothership that will transport the American people away from
the failings of modern politics and toward a purer system of
government. One can almost hear the pundits' plaintive chorus
preparing for the bill's passage: ``Knock, knock, knockin' on
heaven's door.''
Interestingly, most of the McCain-Feingold cult's adherents
aren't run-aways or overworked computer programmers. Instead,
they hold down jobs in the print and electronic media.
Articles and editorials evangelizing for McCain-Feingold pour
forth like a river. An acquaintance of ours had the
misfortune of finding herself flying cross-country recently
seated next to a McCain-Feingold fundamentalist. It was an
arduous six hours.
We raise these matters not in a spirit of rank partisanship
(the Anti-Partisans being another aborning Beltway cult,
incidentally), but out of concern for these loved ones. By
nature, our media brethren are a skeptical lot. A managing
editor once told us that some of his reporters declined his
entreaties to get involved in the life of their local
communities because ``it might compromise my objectivity.''
Normally, excepting the occasional marches on behalf of
abortion rights, these are hard cases.
So how else, other than religious belief, to explain why so
many have become so attached to a legislative proposal that
is objectively unconstitutional, that would cheerfully allow
federal bureaucrats to regulate political speech while
shrinking from, as if from sunlight, the regulation of
pornography?
One of the two most important components of McCain-Feingold
would explicitly forbid ``issues ads'' that mention a
candidate's name within 60 days of a federal election. The
Supreme Court made no dent with a whole series of decisions
starting in 1976 with Buckey v. Valeo, which held that

[[Page S10518]]

the law may be able to limit contributions, but that limits
on expenditures, even from the personal fortune of an actual
candidate, violate the Constitution. But the crusade rolls on
even in the face of a Supreme Court decision as recent as
last year's Colorado Republican Party v. Federal Election
Commission, in which the court struck down limitations on
official party spending on behalf of its candidates. That is
to say the second half of McCain-Feingold, the ban on ``soft
money,'' is also unconstitutional. Justice Breyer wrote for
the court: ``The independent expression of a political
party's views is `core' First Amendment activity.''
Then, of course, there is the phrase with which the First
Amendment closes, about making no law abridging the right
``to petition the Government for a redress of grievances.''
That is, lobbying. Now admittedly the Founding Fathers were
rationalists who lived in the shadow of the long-ago
Enlightenment. In our newer age no stronger article of faith
abides around the Beltway than that anyone who ``lobbies''
the Congress about their grievances against, say, the Clean
Air Act, is corrupting the vestal virgins who inhabit that
place. McCain-Feingold, according to Senator McCain, would
thwart the lobbies from interfering with the deliberations of
Congress. That is to say, the politicians who command a third
of all the money in the Gross Domestic Product want to pass
laws against taxpayers trying to influence them.
At the end of the day we remain skeptics, less so of
McCain-Feingold than of its advocates' professions of
nonpartisanship. The problem with campaign finance as it
exists is not so much the inevitable corruptions, but that
these corruptions are so secret, as the tortuous hearings of
the Thompson Committee have proven. Full disclosure--daily,
publicly, electronically--of contributions from whatever
source, from cloistered Buddhist nuns to ethanol fanatics,
would let voters decide for themselves which imperfect soul
they wished to vote into office.
Mr. McCONNELL. Further, Mr. President, there was an op-ed piece in
the Washington Times by Peggy Ellis of the Cato Institute entitled ``10
Big Lies About Campaign Finance Reform. . . .'' 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:

[From the Washington Times, Oct. 7, 1997]

10 Big Lies About Campaign Finance Reform . . .

(By Peggy Ellis)

Lie No. 1: The American people are clamoring for campaign
finance reform. Outside of Washington and the political
elites, campaign finance reform finishes at the bottom of the
list of issues people care about (3 percent). Most voters
believe that whatever reforms are passed, politicians will
find a way around the new rules (73 percent). By huge
margins, voters are less likely to vote for their member of
Congress if they vote for reforms that are unconstitutional
(88 percent), make it easier for them to get re-elected (71
percent), make it more difficult for citizens' groups to
inform voters of candidates' voting records (80 percent) or
increase the relative power of the media (69 percent)
(Tarrance Group, June 1997).
Senator Mitch McConnell, the Kentucky Republican known as
the ``Darth Vader of campaign finance reform,'' won re-
election last year with a 160,000 vote margin--without the
endorsements of the two largest newspapers because of his
stance on ``reform'' and with the maximum contributions
allowed by law from the tobacco companies. Rep. Linda Smith,
Washington Republican, won her first election while being
hugely outspent by the incumbent. She then became the darling
of campaign finance reformers and almost lost.
Lie No. 2: Only wealthy special interests have access to
members of Congress. Poppycock. The first item on all
members' calendars is, and will always be, constituents.
Members of Congress meet with lobbyists and policy experts
all day long and then go vote the way they want to. Further,
it is part of every legislative aide's job to meet with all
sides to best prepare their boss for whatever the issue might
be. As Senator Bob Bennett, Utah Republican, said at a recent
hearing, ``I'll tell you who has access to me--anyone
registered to vote in the state of Utah.''
Lie No. 3: Banning soft money is the only way to ensure
that the scandals of the '96 presidential election don't
happen again. The best way to make sure the abuses of '96
don't happen again is to punish those who have broken the
law. Soft money was banned in the original 1974 rules and the
1976 election was run without soft money. Parties were so
strapped for cash that traditional activities such as bumper
stickers and get-out-the-vote drives were sharply curtailed.
One of the primary purposes of the 1979 amendments to federal
election law was to restore soft money. Traditional party-
building activities are clearly not what the reformers want
to control. It is the issue ads run by the parties--which are
the essence of First Amendment protected speech. To eliminate
this distortion, eliminate the limits on party contributions
to their candidates. It is bizarre that political parties
cannot give directly to their candidates as much as they
want. No claims can be made of a corrupting relationship
between a candidate and his or her political party. And for
those who want to open up the political process and loosen
the grip of incumbents political parties are the one group
that will always support a challenger.
Lie No. 4: You can constitutionally control issue advocacy.
It is often forgotten that in the original 1974 amendments to
the Federal Elections Campaign Act, Congress sought to limit
issue ads, just as many do now. The Supreme Court overturned
these rules. Nothing is more central to the core of what our
country was founded on than the ability of private
individuals and groups to discuss, criticize and protest
their elected officials and those that seek office. A 20-year
string of court decisions reaffirm that free and unencumbered
political speech enjoys the highest First Amendment
protection and cannot be regulated by the federal government.
Lie No. 5: Most issue ads are ``thinly veiled campaign
ads'' and, therefore, can and must be regulated by the
Federal Election Commission. Nothing is more central to the
First Amendment than the rights of individuals and groups to
participate openly and freely in our nation's political
debate. Reformers and misinformed senators claim that, since
issue ads are clearly intended to influence an election, they
should be regulated. Buckley vs. Valeo anticipated this
argument. Of course, the Court held, these ads are intended
to influence elections, but our First Amendment rights are so
central to our political freedom that unless the words ``vote
for'' or ``vote against'' are used, these ads are issue
advocacy and cannot be regulated by the government.
Lie No. 6: McCain-Feingold will open up the system. In
fact, McCain-Feingold could be renamed the Incumbent
Protection Act. The stratospheric incumbent re-election rate
we have today is a direct result of the 1974 rules.
Contribution and spending limits and tighter controls on
issue advocacy are blatant incumbent protection. All the
distortions in the current system are results of the 1974
rules--the 90 percent incumbent re-election rate, the
explosion of issue advocacy and soft money and the increase
of millionaires in office, the amount of time candidates have
to spend raising money, the increase in the relative power of
the media and celebrities. More of the same is not the
answer.
Lie No. 7: Buckley was a 5-to-4 decision and ``a close
call,'' vulnerable to future court tests. On the contrary--we
have years of court decisions reaffirming the central
findings of the Buckley decision. In the area of issue
advocacy alone, in the years since Buckley was decided, both
the Supreme Court and lower courts have, time and time again,
reaffirmed the reasoning and holding of that decision as it
pertains to the protection of issue advocacy. The 126
``constitutional scholars'' currently said to endorse McCain-
Feingold do not endorse the issue advocacy restrictions at
all--only the soft money and spending limits. In fact, the
Fourth Circuit was so disturbed by the FEC's attempts to
redraw the lines defining issue advocacy that the court
demanded in April that the FEC pay Christian Action Network's
court costs.
Lie No. 8: Campaign costs are spiraling out of control.
This ``explosion'' is outside of candidate spending.
Candidate spending was virtually flat from 1994 to 1996, with
an explosion of issue ads outside of the campaigns
themselves. The answer, however, is not to trample the First
Amendment rights of private individuals, but to lift the
contribution limits on parties and candidates. Let the money
spent on many of the issue ads flow directly to the
candidates. As for the anger many members have at private
groups expressing their views and--absolutely--trying to
influence their election: too bad! Politics and political
campaigns belong to the people, not to the candidates and
certainly not the federal government. The right to seek to
persuade fellow citizens at election time is as fundamental
as the right to vote itself.
Lie No. 9: Obscene amounts of money are spent in political
campaigns. Congressional candidates spent approximately $740
million in 1996. This is only slightly higher than the
approximately $700 million spent in 1994. It's a lot of
money--but not when compared to what we spend as a society in
other areas. These congressional totals average less than $4
per eligible voter. If you look at every race in the country,
from dog catcher to president, the amount spent is less than
$10 per eligible voter. As a society, we spend more on potato
chips, Barbie dolls, yogurt and a host of other commodities
than we do on politics. While many of us may like Barbie
dolls and potato chips more than we like politics, only
politics has control over every aspect of our lives.
Lie No. 10: We must control the amount of money spent in
campaigns because candidates and members of Congress have to
spend all their time raising money. It is the ridiculous
$1,000 contribution limit that has limited the ability of
challengers to raise the money they need to mount a
successful campaign--and the reason members of Congress have
to spend so much time raising money. The answer is not to
control the amount candidates can spend, which would only
further entrench incumbents, but to eliminate the
contribution limits. Let the money flow directly to the
candidates and, with almost-instant electronic disclosure,
let the voters decide.
Mr. AKAKA. Mr. President, today at noon, we have another opportunity
to invoke cloture on S. 25, the McCain-

[[Page S10519]]

Feingold campaign finance reform bill, which I support. I am sorely
disappointed that yesterday, the Republican majority once again
successfully blocked going to the bill.
After yesterday's two votes, the majority leader said that campaign
reformers should just give up--that the bill's chances for enactment in
this session of the 105th Congress were dead.
I do not believe that the American people should be denied the
benefit of campaign finance reform that would, in my opinion, level the
playing field so that running for Federal office would not be so
strongly influenced by money.
It is amazing to me that after several months of public hearings by
the Senate Governmental Affairs Committee that anyone doubts the
critical need to rewrite our campaign funding laws. Throughout the
course of the hearings we have witnessed example after example of the
misuse of our campaign finance laws.
And yet there remains a real crisis in the Senate over our inability
to enact any campaign finance reform legislation. Moreover, this
wholesale disdain for ending the money chase through substantive
finance reform fuels the distrust held by the American public of
Congress and their belief that Congress does not wish to clean up its
own house.
Our committee has examined allegations of foreign money influencing
Federal campaigns, the use of Federal facilities to raise funds,
contributors donating in another's name, and access to Congress and the
White House linked to campaign donations. Like my colleagues, I support
prosecution by the Department of Justice of these allegations if it is
appropriate. We have also had an opportunity to hear from expert
witnesses on how they would reform the funding of elections.
Mr. President, we can no longer allow the mad hunt for money to drive
our elections. Nor can we ignore the dramatic increases in soft money
donations, the problems associated with unregulated independent
expenditures and issue advocacy, and the improper use of tax-exempt
organizations.
And yet, despite the tremendous explosion in campaign expenditures
and the dismay over the political system expressed by the voters, there
remains steadfast opposition to reforming our Nation's campaign finance
laws, as evidenced by yesterday's votes.
I was hopeful, although perhaps too optimistic, to believe that S.
25, the McCain-Feingold campaign finance reform bill would be embraced
by most Members of the Senate. I was wrong.
With less than 50 percent of voting age Americans going to the polls
in the last election, so much is at stake. The public's deep distrust
of this Nation's elected officials by the voters will continue if the
only thing that comes from the Senate's investigation into campaign
finance abuse allegations and the abbreviated debate on S. 25 is
political rhetoric and finger-pointing.
The Republican majority has seen fit to stifle the efforts of those
Senators who support reforming the Nation's campaign finance laws. The
only hope I see in passing such reform at a future date lies with the
American voter. It will be up to the people of this great democracy to
demand that their Senators support campaign finance reform. There will
be no campaign finance reform until there is a nationwide movement to
stop the campaign finance abuses uncovered by the Senate Governmental
Affairs Committee.
S. 25, the Bipartisan Campaign Reform Act of 1997, was modified in
good faith, in an attempt to craft a bill more acceptable to the
opposition. Unfortunately, it did not pass muster with those opposing
it. In spite of yesterday's defeats, we have another chance to proceed
to S. 25 by invoking cloture today.
Americans deserve a Government that works hard for their interests
and not just the interests of monied contributors. Our citizens deserve
a more responsive, efficient, accountable and representative
Government.
Mr. CHAFEE. Mr. President, the Senate has the opportunity to improve
the system by which we finance our elections. Yesterday, the Senate had
before it two proposals: one sponsored by Majority Leader Lott and
Senator Nickles; the other sponsored by Senators McCain and Feingold.
Much of the discussion of these proposals, both here in the Senate and
in the media, characterized them as mutually exclusive. For the most
part, Republicans were expected to support the Lott proposal, and all
45 Democrats and a handful of Republicans were committed to voting for
McCain-Feingold.
The paramount goals of any true effort to reform the system of
financing elections for Federal office must be to reduce the influence
of special interest money on elected officials and to level the playing
field between incumbents and challengers. The partisan division that
has created the procedural situation in which the Senate found itself
yesterday suggests that these goals are not yet at hand. Although the
proposals before us are not the final resolution to the problems that
afflict the current system of campaign fundraising, they do provide a
good starting point.
I voted for cloture on both the Lott proposal and on the underlying
McCain-Feingold bill. Do I think that the majority leader's proposal is
flawless? Of course I don't, no more than I think the McCain-Feingold
bill provides all of the solutions to the outrages of the 1996
elections. But, I also do not agree with those on the other side who
have called the Lott amendment a poison pill. The truth is that
together these proposals establish a sound starting point for a
reasonable debate on campaign finance reform. It's time to let the
process go forward. The Lott amendment should be opened up to
improvements, just as the McCain-Feingold bill should be amendable.
As I see it, the goal of the Lott amendment is meritorious. It is to
give union members some say over the political uses of their money.
Today, union dues are used to support or oppose particular candidates
without any authorization from the dues payers. McCain-Feingold takes a
small step to address this problem, which amounts to compulsory
contributions to candidates. Under the McCain-Feingold bill, dues
paying, non-union members would be eligible for a refund if they
disagreed with the political uses of their dues. That takes care of an
estimated one million workers, but 16 million union members are left
without any control over the political uses of their funds. That seems
fundamentally unfair.
Senator Lott's amendment seeks to address this unfairness. According
to the Lott amendment, unions would be prohibited from using dues for
political purposes, including lobbying, unless individuals gave prior
written consent. As I understand it, the prior consent requirement is
viewed by opponents to be onerous, and, I think, the limitation on
lobbying simply doesn't apply to the issue at hand--Federal election
campaigns. As many know, Senator Snowe and others--who feel as I do,
that this debate should move forward in an effort to find common
ground--have been working to refine this proposal. A vote for cloture
on the Lott amendment is a vote in favor of moving the process forward.
It is a vote in favor of opening up the Lott proposal to improvements.
I also voted for cloture on the McCain-Feingold bill. Senators McCain
and Feingold have made considerable improvements to their bill. They
have worked to accommodate the concerns of other Senators, particularly
Senator Collins who has worked hard to move this process forward. I
continue to have concerns about some of the provisions of the bill. The
treatment of independent expenditures is not wholly satisfactory to me,
although Senator McCain assures me these provisions were suggested by
top experts on Federal elections. I filed amendments that I believe
could improve the McCain-Feingold bill, but, of course, the Senate
cannot get to the point of debating the merits and flaws of the bill
unless cloture is invoked.
As far as I am concerned, the most important problem to be addressed
this year is one that barely existed a few years ago, the explosion of
soft money in the process. Not too many years ago, many of us were here
debating whether PAC's, political action committees, should be able to
contribute $5,000 per candidate, per election. We worried that these
PAC contributions might appear to give special interests too much
influence. But the soft money explosion has made those amounts seem
like pocket change. I believe that if all else fails, we must deal with
the soft money problem, and we must take steps, at least, to impose
disclosure requirements on the money that is spent

[[Page S10520]]

on so-called ``issue ads.'' We also should seek common ground on the
Lott amendment. The Senate has the opportunity to make these important
changes in the current fundraising system by invoking cloture on both
the Lott amendment and the underlying McCain-Feingold bill.
Mr. MACK. Mr. President, the key issue in this debate is a simple
one: Will we enforce the campaign laws already on the books or not?
Will we concoct some new layer of confusing and complex rules and
regulations to distract the voters from the real issue, or will we do
the right thing? Are we going to insist that campaigns and candidates
follow the current rules, or are we going to keep changing the laws
each time there is a new scandal? If we can't--or won't--even enforce
the laws we have now, what makes us think that a new set of laws will
be more effective?
The Senate and the American people have witnessed a flood of
testimony in recent weeks and months about illegal foreign
contributions, influence peddling, and money laundering at the highest
levels of our Government. The Attorney General has finally called for
an investigation in the face of mounting evidence that, to many of us,
clearly warranted a special investigator months ago.
Now, here we are debating a bill on the floor of the Senate that will
not only add new regulations and restrictions to the people's ability
to participate in the election of their own representatives, but which
ignores the violations of campaign laws that apparently have already
taken place.
How does that play with the American people? I doubt it goes over too
well. Sure, Americans are distrustful of all the money in campaigns.
They are right to be suspicious when they read about Buddhist nuns
being used to funnel foreign money into a Presidential campaign or the
Lincoln bedroom being used to cozy up with big-money campaign
contributors.
And they are also right to be dubious of what is going on here,
because I think they understand and we are not tackling the real issue
at hand. We are trying to divert their attention away from the simple
fact that our campaign laws are not being enforced. This is the kind of
cynicism that justifies the American people's distrust and apathy
toward Washington politicians.
History teaches us that when any law is not enforced, whether
campaign law or any other law, the people lose confidence in the
system, whether it is the criminal justice system or the electoral
system. When violations of the law go uninvestigated and unpunished, we
send the message that the law doesn't matter. We destroy one of the
core principles of our government--that we are a nation of laws, not of
men--and the law applies equally to everyone--not just to some and not
others.
We aren't doing anything to restore the American people's confidence
in their Government until we begin to deal with this fundamental issue:
Do the current campaign laws matter enough to be enforced or are they
just an arbitrary system that can be followed or ignored depending on
what is convenient for a campaign? The answer to this question must be
emphatic--the laws that are here to protect our political system must
be enforced vigorously. Nothing less is acceptable.
Mr. President, there is a second reason the voters are dubious about
our seriousness for cleaning up campaign finance violations. Many of
these voters are angry that their hard-earned money goes to candidates
they don't agree with. This happens through what essentially is
extortion by the unions. Many hard-working union workers have part of
their paycheck sent to political campaigns they don't support.
Yes, by codifying the Beck decision, this bill tries to make sure
that non-union members don't have their paychecks extorted for
political use. But union members are left in a position of having to
choose between their job or their first amendment right to support the
candidate of their choice. With more and more union members voting
Republican in recent years, it's no wonder that the liberal union
bosses are working to make sure this form of political blackmail is
protected.
Some will say this is no different than PAC's using their money to
support candidates that a contributor may not agree with. Well if the
Sierra Club or the National Rifle Association or any other similar
group uses your money to support a candidate you disagree with, you can
stop giving your money to that group and its PAC. It's a voluntary
choice. But that's not possible in a union--at least not without
putting your job at risk.
No, Mr. President, this effort does nothing to fix what's broken.
There are all sorts of schemes to make television stations give
candidates free air time, and to regulate what can and can't be said in
political commercials. And there are even provisions that would have
the Federal Government establishing State and local campaign
restrictions. All of this adds up to putting chains around our
fundamental first amendment rights.
The courts have repeatedly held that communications which do not
expressly advocate the election or defeat of a candidate are not
subject to regulation by the Government. But the proponents of this
bill would make the Federal Election Commission into the politics
police. They would determine whether a reasonable person would know
that an ad is advocating the election or defeat of a candidate or not.
This would send a chill through our political process. Now the
Government would decide what is reasonable or not. It is exactly the
kind of temptation to tyranny that the Founding Fathers were protecting
the American people from when they adopted the first amendment.
Supporters of this bill contend there is too much money in politics.
What they're saying is, they think there's too much free speech, too
much involvement by free people expressing their views. But isn't that
exactly what we want--more involvement and more participation? More
candidates are running for office now than ever. Voters now have more
options than ever. Placing further limits on speech will effectively
drive more citizens from the process.
We should stop this misguided effort and do what the American people
really want--and that is to enforce the laws that have been on the
books for years. Only by doing so will we restore their confidence in
the political and electoral system that is supposed to send us here to
do their bidding.
Mr. President, I urge all my colleagues on both sides of the aisle to
make enforcing our current laws the No. 1 priority and put aside this
effort to construct yet another monstrosity of bureaucracy and
complexity that will add to American's skepticism of Washington.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the quorum
call time be equally charged to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, how much time remains on our side?
The PRESIDING OFFICER. There remains 5\1/2\ minutes on each side.
Mr. DORGAN. If I might, claiming the time remaining on our side, just
make a comment about the pending business.
We will shortly be casting another vote on cloture on the issue of
campaign finance reform. The vote is going to be whether we invoke
cloture on the McCain-Feingold campaign finance reform bill.
Now, it is interesting, as we have been watching this develop over
the recent days, we have seen a form of legislative cholesterol
clogging and plugging the system so that at the end some can say,
``Well, we have considered campaign finance reform but they have, in
effect, killed it.'' That has been the plan all along.
I mentioned yesterday that the great illusionists in America are
those who can convince people they have seen something that doesn't
exist. We had that yesterday in which there was an assertion that we
were presented with a debate on campaign finance reform, but the debate
didn't really exist because no one was able to offer any

[[Page S10521]]

amendments on campaign finance reform. The bill was brought to the
floor by someone who wanted to kill it, so he bound it up with a tight
rope--what he called filling the tree with amendments, a tree of
amendments--so that no one else could offer any amendments, and then
filed a cloture motion designed to kill campaign finance reform.
The fact is this system doesn't work. The campaign finance system in
this country is broken. There is too much money in campaigns. I have
showed the chart out here on a number of occasions when I have spoken
about it. The red line on the chart on campaign spending goes straight
up. And yet we have people in this Chamber and across the Capitol who
believe the problem is we don't have enough money in politics, there is
not enough money in campaigns. What on Earth are they thinking about?
We need to reduce the amount of money in campaigns.
One of the issues that is involved in this legislation is soft money.
We ought to abolish soft money, the legal form of cheating from the old
campaign finance reform. For every rule there are people who try to
figure out how to get around it, over it or under it. In soft money,
the growth in the explosion of so-called soft money is the growth and
explosion of legal cheating in campaign finance, and we ought to change
it.
There are only two sides to this issue: Those who want to reform the
system, and those who are insisting the current system is just fine.
There are a majority of us in this Chamber, we believe, who will vote
for McCain-Feingold, for campaign finance reform, if only we can get it
up on the floor of the Senate for a vote. I hope today, or perhaps
tomorrow if further votes on cloture occur, that we will have an
opportunity to demonstrate that, if we can get the bill to the floor of
the Senate, it will have a majority vote.
On my side of the aisle, 45 Members, every single Member, has signed
a letter saying we support this kind of campaign finance reform. We had
three, four, five Members on the other side of the aisle who have
supported it. If we can get it up for a vote, we will pass campaign
finance reform. But there are those who have tried to ride this into a
box canyon somewhere from which there is no escape because they by
design want to kill campaign finance reform because they believe there
is not enough money in politics. They want more money in American
politics. I have no idea where they get that sort of notion.
The American people know better. The American people support with an
80-percent margin the need to pass campaign finance reform by this
Congress. I urge my colleagues to vote for cloture. Vote for cloture on
the McCain-Feingold bill and breathe some life into campaign finance
reform and let's do what the American people know we should and what
the American people know we must--reform the system by which we finance
American campaigns, because the current system is broken.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, we are about to vote on a cloture motion on
what is, without question, a very important issue to all of us and to
the country at large. In fact, it is so important that this morning the
President of the United States cried out, ``Save me from myself. Save
me, please. I'm off to Philadelphia to raise money, and if you don't
save me by passing the new law, I may do something wrong, or I'm going
to have to do what I'm going to do anyway.''
Well, Mr. President, I'm sorry, but all I ask you to do is to abide
by the law that is on the books of the land today. That is what I do.
That is what the Senator who just spoke does. I doubt that Senator
Dorgan ever has attempted to violate campaign law. I know he hasn't. He
is an honest man. He makes sure he doesn't because he hires an attorney
and he hires an accountant and he keeps himself legal because what we
live under today is a well-regulated campaign finance system.

I am absolutely amazed that when the American family sits down at
night the first topic of the dinner table is not what about that
campaign finance reform they are talking about on the floor of the
Senate; I suspect that family is talking about what happened to the
child who was lost on the streets of America today, or that classmate
of your son or daughter whom you found out got arrested for drugs, or
some other issue like that. That makes a heck of a lot more sense to
the average American than the phenomenal, political, and media hype
that has been built over the last 3 or 4 months about campaign finance
reform.
Mr. President, if I have heard it once, I have heard it 100 times,
spoken from the other side of the aisle, ``Oh, they all do it.'' No, we
don't all do it. I just came out of a campaign and I didn't violate a
law nor was I accused of violating a law. I raised money legally. I'm
sorry if you have to use a smoke cloud or subterfuge to argue your
political point of view. It is wrong.
Mr. President of the United States, it is wrong to say that everybody
does it, because not everybody does. I am not about to save you, Mr.
President, from yourself and from going to Philadelphia today to raise
money. Last I checked, you touched out of here voluntarily. You left
this city voluntarily. And yet that was the argument that was used by
the President of the United States today. ``Well, the Senate yesterday
didn't pass a law so I got to go do it again.'' Sorry, Mr. President,
that isn't the issue here.
The Supreme Court yesterday spoke out very, very clearly when they
said you can't deny the right of a citizen to speak out, you can't deny
advocacy in a free speech society. This Senate can talk all of the
politics it wants. It can line up all of the 30-second sound bites it
wants, but it cannot violate the Constitution nor will the Court allow
us to.
In this instance, I would love to quiet the voice of an advocate who
disagreed with me, and I had many of them last year in my campaign. I
had over a quarter of a million spent against me, and I will tell you,
I don't think the ads were right. In fact, I think they were wrong. I
think they failed to tell the truth. But in a free society, doggone it,
now and then you have to withstand somebody who doesn't agree with you
and you have to withstand somebody who may tell a lie about you. If you
are in public life, that is a darn fact, the sureness of what will
happen, and we all know that.
What is wrong about it? Nothing is wrong about it. Oh, I could see
where we should adjust some things, but I will tell you right now, if
we are going to say to a certain citizen in our society, ``You are
going to provide money whether you want to or not, and that money is
going to make it into the political system whether you want it to or
not,'' and our colleagues on the other side of the aisle will not allow
that to happen, they will not allow the average citizen to have full,
voluntary participation, then there will be no reform for this Senator
to vote for.
That will not happen if I have the ability of most Senators to block
issues from coming to the floor. If we are going to talk about major
campaign, we must talk about fairness, we must talk about equity, and
we must talk about the right of the citizen in free speech and
voluntarism.
So today I stand with pride in my defense of the Constitution and the
right of the citizen. I will oppose cloture on this bill, not out of an
embarrassment or not out of shame, but out of pride for the system that
can work when you play by the law.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. BUMPERS. Mr. President, let me just say McCain-Feingold may be
dead as most people around here seem to believe. I have always believed
the American people can have anything they want any time they are
unified. The time is fast approaching when the American people are
going to demand that we change a system that is rotten to the core.
McCain-Feingold goes a long way in that direction. It doesn't go nearly
far enough to please me personally, but at least it will be a
beginning.
The two things you can do to restore people's faith in the American
Government and Congress, the two things you can do that will instill
more confidence than anything else would be to balance the budget and
change the way we finance campaigns.
I have heard all the sophistry about the constitutionality of this
bill. I just

[[Page S10522]]

want to tell you, when it comes to free speech, you can hang your hat
on free speech if you want to, but the thing that makes this system
rotten is that a guy who can afford to belly up for $100,000 gets a lot
more free speech than some guy giving $25. The reason he doesn't give
$25 is because he knows it gets him nothing--not even good government.
So I plead with my colleagues, for God's sake, let's do something
that the vast majority of the American people want us to do--that is,
to level the playing field for all parties. You don't have a democracy
when the people we elect and the laws we pass depend on how much money
we raise for it.
I yield the floor.

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