[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for the quorum call be rescinded.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:

       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 in the media to agree, 
     that message is hammered home and almost daily.

                           *   *   *   *   *

       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:

       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 tumbledown system, you press 
     the McCain-Feingold button on our 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.

  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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