Congressional Record, Volume 144 Issue 15 (Wednesday, February 25, 1998)

[Congressional Record Volume 144, Number 15 (Wednesday, February 25, 1998)]
[Senate]
[Pages S972-S995]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PAYCHECK PROTECTION ACT

The PRESIDING OFFICER. Under the previous order, the clerk will
report the pending business.
The assistant legislative clerk read as follows:

A bill (S. 1663) to protect individuals from having their
money involuntarily collected and used for politics by a
corporation or labor organization.

The Senate resumed consideration of the bill.
Pending:

McCain amendment No. 1646, in the nature of a substitute.
Snowe amendment No. 1647 (to amendment No. 1646), to amend
those provisions with respect to communications made during
elections, including communications made by independent
organizations.

The PRESIDING OFFICER. Who seeks time? Who yields time?
Mr. BURNS. 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.
Ms. SNOWE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. SNOWE. Thank you, Mr. President. I think that the debate on the
Snowe-Jeffords amendment has been very important in terms of
underscoring the issues that need to be addressed in reforming our
campaign finance system. I would like to review for the membership of
this body exactly what the Snowe-Jeffords amendment would do, because
we have heard so much about the impact of it and the misconceptions
about the impact of the provisions included in this amendment.
The fact is, this amendment will affect several categories with
respect to advertising by groups across this country during the course
of an election designed to influence the outcome of a Federal election.
We are not saying they cannot advertise. We are not saying that they
cannot engage in political activity. But what we are asking these
groups to do is to disclose their major donors if they advertise on
either medium, radio or television, 60 days before a general election,
30 days before a primary, in which they identify or mention a candidate
for Federal office.
They then would be required to disclose their major donors who
contribute more than $500. That is more than twice the threshold for
disclosure for Federal candidates.
So, unlike the suggestion of those who are opposed to the campaign
finance proposal and the Snowe-Jeffords amendment that this is too
invasive, too broad, it is not. In fact, it would meet the Buckley
standards handed down in that Supreme Court decision of not being
invasive. In that Court decision, they were considering the impact of
requiring donors of more than $10 to be disclosed. Obviously, that is
broad and invasive. But this would pass constitutional muster.
We are talking about groups that spend money on television or radio
broadcasts in which they identify a Federal candidate 60 days before a
general election, because, obviously, when those ads are aired at that
point in time, they are intending to influence the outcome of an
election.
The medium is radio and television. The timing is 60 days before a
general election, 30 days before a primary. The ad must mention a
candidate's name or identify the candidate clearly.
Targeting: The ad must be targeted at voters in the candidate's
State.
And the threshold: The sponsor of the ad must spend more than $10,000
on such ads in the calendar year.
It is very narrow, it is very clearly targeted, very specific. And
the Supreme Court has said that you can make a distinction of
electioneering communications from other forms of speech. That is
exactly what the Snowe-Jeffords amendment does. We are replacing the
issue advocacy provisions of the McCain-Feingold legislation, section
201, that could raise constitutional questions. The proposals that
Senator Jeffords and I are offering today are ones that have been
designed by legal and constitutional experts based on court decisions.
What the Snowe-Jeffords amendment would not do, because, again, we
have heard so much about what the impact would be and, in many cases,
have been very erroneous in some of the circulations in Congress by
various groups, it would not prohibit groups from communicating. If
they want to advertise, they have every right to do that. They can
communicate with their grassroots membership.
It does not prohibit them from accepting funds, corporate or labor
funds. It would not require groups to create a PAC. They can continue
what they are doing. But they are required to disclose if they are
going to identify a candidate 60 days before an election in a
television advertisement or radio broadcast.
It would not affect the ability of any organization to urge
grassroots contacts with lawmakers in upcoming votes. They can say,
``Call your Senator, call your Member of Congress, using the 1-800
number,'' which is a popular means today. That is certainly allowed.
There is nothing to discourage that. If they identify a candidate in a
TV or radio broadcast 60 days before an election, then they have to
disclose their donors of more than $500, and that is all we are
requiring. So it is not invasive; it would not require them to give an
advance of the specifics of their advertisement and the text.
What we are requiring in all of this is disclosure so that everybody
understands who is financing these advertisements when they are
designed to influence the outcome of an election.
It guards against sneak attacks. Doesn't everybody have the right to
know? Absolutely. And that is why the Supreme Court made that
distinction in Buckley and in other cases, to draw that bright line,
which is what the Snowe-Jeffords amendment does.
The Court has never said that there is one route towards what can be
distinguished in terms of electioneering communications. The fact of
the matter is, it said you can make that distinction, that the U.S.
Congress has the prerogative to make that distinction in a very narrow,
very targeted way.
This amendment would pass constitutional muster. I think that is what
causes some anxiety for some people, because they are opposed to this
amendment because it will require disclosure of major donors.
Since when has disclosure been antithetical to good government, to
campaign financing? Because that is the thrust of this amendment. It is
disclosure. I think we all can concur that secrecy does not invite the
kind of campaign that we want to see in America. We are entitled to
know who finances these campaigns when it comes to major donors, when
they are running ads that influence the outcome of these campaigns.
The fact is, these groups have spent at least, based on what we know
because it is a guesstimate because they did not have to disclose, $150
million--$150 million. The best we can guess, because, again, it does
not require disclosure, is a third of all the money that was spent was
spent on campaign advertising in the last election cycle, and we do not
know where one dime comes from. We don't have the identity of donors,
and yet they play a key role in influencing Federal elections.
We had $150 million spent on issue ads in the 1996 election, and $400
million was spent for all the candidates: for the President, the Senate
and the House. And yet, of this $150 million--this is probably a
conservative estimate; this is based on the Annenberg Public Policy
Center study; probably the most definitive study on issue advertising
and issue advocacy. In fact, what they did was they analyzed
advertising that was done by 109 organizations--109 TV and radio
advertisements from 29 organizations. So we would expect that that
estimate is pretty conservative. So what we are saying here is that
there should be a means for disclosure.
The courts have never said that disclosure is not in the public
interest.

[[Page S973]]

The fact is that the Supreme Court has ruled time and again, and
specifically in Buckley, that there is strong governmental interest
that justifies disclosure, and that is why we have designed this
amendment in the manner that we have.
We also restrict campaign spending by unions and corporations with
their nonvoluntary contributions in television and radio advertising in
which they mention a candidate 60 days before a general election and 30
days before a primary because, again, there has been a century-long
decision by the Government as well as the Congress in which that
distinction can be made.
The courts have made that distinction that Congress has the right to
restrict spending by those entities because of those benefits that have
been conferred on unions and corporations by the Congress, so that we
are entitled to draw that distinction. And we do in this amendment.
The courts have ruled that the Congress has the right to enact a
statute that defines electioneering as long as it isn't vague or
overbroad, that we can develop a more nuanced approach, because I know
the Senator from Kentucky has cited cases in which he said that the
Court would not support this type of an amendment.
To the contrary, the fact of the matter is, this amendment is not
vague and it is not overbroad. Not only will it pass muster, I think
the Court would have the advantage of seeing what has happened over the
past 22 years since it ruled in Buckley that has made a mockery of the
campaign laws in ways in which the system works today. If they had had
the advantage of that back when they made the decision in Buckley, I
think there is no question that they would have indicated the approach
that we have here today.
There is something wrong in a system where we have $150 million
influencing Federal campaigns and we do not require disclosure, and
that is what the Snowe-Jeffords amendment is all about.
Mr. President, I hope that Members of the Senate will see fit to
support this amendment because I think it is in the interest of our
campaign system, it is in the interest of good government. We have
heard so much about these issues ads and the content of these so-called
``issue ads'' in the last election. Every group has the right to state
their position. They have the right to communicate with their
lawmakers. They have the right to even participate in the political
process in advertisements and voting for or against. But I think they
also should be required to identify their major donors when they are
identifying a candidate 60 days before an election.
Now, there are different kinds of issue ads. The one that I am
mentioning here in the content of so-called ``issue ads'' isn't pure
issue advocacy because there is a difference between issue advocacy and
candidate advocacy.
In this case, what we are seeing in what is so-called ``issue ads,''
87 percent of what is called ``issue ads'' actually referred to a
candidate or an official--87 percent.
So rather than just talking about an issue and informing the public
or running an ad that says, ``Call your Senator or call your
Congressman,'' it was one in which it was designed to influence the
outcome of an election, because 87 percent of those ads referred to an
official or a candidate.

In fact, according to the Annenberg study, 41 percent of those ads
were ``pure attack''--41 percent--and yet not one dime is required when
it comes to disclosure. So $150 million of this money was spent on so-
called ``issue ads,'' and some of them were pure issue ads, but many of
those ads, in fact 87 percent, referred to an official or to a
candidate that, again, had the impact, or certainly had the intent, of
affecting the outcome of an election, or otherwise they would not have
mentioned the candidate's name.
Mr. GORTON. Mr. President, will the Senator from Maine yield for a
set of factual questions about her amendment?
Ms. SNOWE. I am glad to yield.
Mr. GORTON. Mr. President, would the Senator from Maine tell us, am I
correct in reading the requirements relating to electioneering
communications, that they apply to broadcast stations, television and
radio broadcast stations, but not to newspapers or to direct mail?
Ms. SNOWE. That is correct.
Mr. GORTON. Do they apply to the Internet?
Ms. SNOWE. Excuse me?
Mr. GORTON. Do they apply to the Internet?
Ms. SNOWE. No. Television and radio.
Mr. GORTON. So none of these requirements apply to newspapers or
direct mail or to----
Ms. SNOWE. If I can answer the Senator's question, that is correct. I
know the Senator from Kentucky has objected to any possibility of
impacting the first amendment. We would all agree in that respect, that
obviously we want to draw that bright and distinctive line. Because no
one wants to chill the first amendment right of freedom of speech. So
that is where you can invite the possibility of concerns when it comes
to printed material and to direct mail and to newspapers. We also know
that most of the money in campaigns is particularly in television,
rather than radio, because it has the greatest impact. It can have the
greatest effect. So as a result, we do narrowly target those two
mediums.
Mr. GORTON. I take it the Senator from Maine believes it is
constitutional to target one medium of communication but not to target
a separate, a different, medium of communication?
Ms. SNOWE. That is correct.
Mr. GORTON. Does the Senator from Maine believe, in connection with
the exceptions for the broadcasting stations' own editorial comments,
which is granted here, that in fact she is granting that exception
simply because she feels it to be desirable, or does she--let me
rephrase the question. Does the Senator from Maine believe that she
could have constitutionally applied these rules and regulations to the
television station's communication of its own ideas?
Ms. SNOWE. Well, obviously, we are talking about political
advertising that is sponsored by organizations. That is what we are
identifying here because that is obviously playing the primary role.
Mr. GORTON. I understand what it is being aimed at. My question is,
is this exception a part of the amendment of the Senator from Maine
because the Senator from Maine believes that it is mandatory that she
could not constitutionally apply these electioneering communications to
TV stations? Or is she doing it because she does not think it is a good
idea to apply it to them?
Ms. SNOWE. I think we are taking the approach in this amendment to
draw it as narrowly as possible so that we do not affect the first
amendment rights. So, we are taking the most prudent, most cautious
approach in designing this amendment.
Mr. GORTON. So the Senator feels that----
Ms. SNOWE. If I might reclaim my time to answer the Senator's
question. My concern--and I think shared by others, such as Senator
Jeffords, who is a lead sponsor of this amendment as well--we are
concerned about the political advertising that is in these campaigns,
hundreds of millions of dollars, where there is no disclosure, that
influences the campaigns. So we are creating a separate category of
advertising called ``electioneering communication,'' in response to the
question.
Mr. GORTON. I think I do understand the Senator's feelings on that. I
was simply asking whether she is exempting the television stations
because she thinks she is required to by the first amendment.
Ms. SNOWE. Yes.
Mr. GORTON. Or she thinks it is a good idea.
Ms. SNOWE. I think it is the most cautionary approach.
Mr. GORTON. Thank you.
Ms. SNOWE. The courts have allowed and made those distinctions in the
past where we can draw a line in terms of methods of communicating and
have allowed different rules for public airwaves. We are focusing on
the most egregious abuses that have been identified in these campaigns
in the past.
If anything, I think the 1996 cycle highlighted the extent of the
problem by the amounts of money that were placed in issue advertising
that ordinarily would be, I think, a significant component in the
campaign. But what has developed in the final analysis, as we all know,
is sort of circumventing some of the restrictions that are currently in
campaigns by what is masked

[[Page S974]]

as issue ads but really are candidate advocacy ads. That is what we are
highlighting in this amendment by requiring disclosures by those groups
that support these advertisements on behalf of candidates or in
opposition to candidates shortly before the election.
So we create a very narrow timeframe so that we do not engage in any
possibilities of interfering with first amendment rights. We limit the
medium to television and radio, again, so we do not invite any
infringements on freedom of speech.
Candidates-specific. They have to identify the candidate. Again, if
that advertisement is targeted to a candidate's State, or in terms of
House of Representatives elections, towards that candidate's district,
again it is a threshold so that we don't affect small groups. If the
sponsor of the ad spends less than $10,000 in a calendar year, they
would not be required to disclose.
Again, the Senator from Kentucky has mentioned Court cases like the
NAACP v. Alabama in 1958, saying that the courts say you should not be
required to supply your donor list because such disclosure could cause
the fear of reprisal by its membership. Certainly there are exceptions
to every rule, but you can have those exceptions without having the
Court rule on its constitutionality. So, yes, there are exceptions, and
the Court would require groups to obviously demonstrate that they had
reasonable feeling that disclosing their donor base would be a
reprisal. But there are exceptions, and there can be exceptions, but
the law can be allowed to stand without suggesting that it will be
ruled unconstitutional because there is an exception to that rule.
We have drawn this amendment to be as narrow as possible in order to
be as protective of the first amendment rights, constitutionally. If
even possible we could have gone further but we chose to be narrow so
that we don't create any problems with this legislation, because one of
the concerns originally with the McCain-Feingold legislation is we
would have the ban on soft money, but the issue advocacy provisions
very possibly would have been struck down. So we designed this
amendment in order to address those concerns.
Mr. President, I yield such time as he may consume to Senator
Jeffords, the other sponsor of this amendment.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. JEFFORDS. Mr. President, I rise to urge my colleagues to support
this fair and reasonable amendment. I think it is important for us to
take a close look at what this does to make sure that we understand
that it is really hard for anyone to be against it as near as I can
tell. It is not the end-all of the situation that we face or the
problems that need to be handled, by any means, but it does take into
consideration doing something where nothing is done now to alert the
public to who is behind the things that are being thrown on television.
I can just imagine a candidate, and this happens now, I am sure, when
they think they are running their campaign, they had it all organized
and they are watching carefully the amount of money their opponent has,
and then they wake up one morning thinking they are in fine shape and
every channel they turn on on the television has this ad attacking them
at the last moment, the last couple of weeks before the election, and
they don't know who it is coming from or what to do about it; they were
not aware of it.
All we say is, OK, that can happen; but at least 45, 50, 60 days
before it happens, you know it will happen. That is all we are saying.
So that you don't get the surprise attacks by somebody who is running
so-called issue ads that did not place them under the FEC regulations
with respect to supporting that candidate.
That is the real world we are faced with. It happened last time. It
happened to the tune of $135 million. The least we could do, the very
least, is to say at least you ought to know it is coming, first; and
No. 2, where it is coming from so you have an idea when you get this
last-minute flurry of advertising you are ready to do the best you can
to protect yourself against it.
Again, I want to commend the Senator for the continued leadership on
this very important issue. Senator Snowe mentioned yesterday and today
it is the duty of leaders to lead, and that means making some difficult
choices in doing the right thing. On the issue, Senator Snowe has been
a true leader. Crafting a compromise is often difficult. I thank the
Senator from Maine for leading this body to a logical resolution, one
which is sensible and one which is so commonsensical it is hard to
understand why anybody would be against it,
As was discussed yesterday, the basic tenets of the Snowe amendment
are boosting disclosure requirements and tightening expenditures of
certain funds in the weeks preceding a primary and general election.
The amendment strengthens the McCain-Feingold bill in these areas in a
reasonable manner. I could not support the McCain-Feingold bill until
something was put into that area which is going to be the most used
area. It is the first time it was used in the last election and we saw
$135 million or more come in to the election. You have to remember that
power is what those who are spending money seek. The money is going to
follow that group which is most effective in gaining that power. Our
job is to know where it comes from.
The last Presidential election shows how terrible our means are to
trace the money now. This is an opportunity to trace effectively, to
know where it is coming from, you have a chance to understand where it
came from. The last few election cycles have shown the spending has
grown astronomically in two areas that cause me great concern: First,
issue ads that have turned into blatant electioneering; second, the
unfettered spending by corporations and unions to influence the
outcomes of elections.
As an example of how this spending has grown, a House Member from
Michigan in 1996 faced nearly $2 million in advertisements alone before
the fall campaigning season had begun. Campaigning really starts early
and then there is a big boost at the end. Early on you want to knock
the candidate out before he has a chance to get on the scene, and at
the end it is because you know a large percentage of the people who
vote really don't pay much attention until the last couple of weeks.
The Snowe-Jeffords amendment addresses these areas in a reasonable,
equitable, and, last but not least, constitutional way.
Mr. President, citizens across this Nation have grown weary of the
tenor of campaigns in recent years. This disappointment is reflected in
low voter participation and the diminished role of individuals in
electing their representatives. Increasing the information available to
the electorate will help return the power of this democratic aspect to
the people who should have it--the voters. Expanded disclosure will
bring daylight to this process. Increased disclosure will rid
corruption; more disclosure will protect the public and the candidates.
How can we deny our electorate the ability to know the sponsors of
electioneering communications? Give the people the information they
need to better evaluate those Federal candidates that they will be
voting on. Each of us should ask or be fully informed before we vote on
a bill or amendment. How can we as Members of Congress stand here and
say that the public should not have all the information they need
before stepping into the voting booth?
Additionally, the disclosure required in the Snowe-Jeffords amendment
will help deter actual corruption and avoid the appearance of
impropriety that many feel pervades our campaign finance system. Armed
with this information, voters are guaranteed access to the truth. This
change will restore the public's confidence in the election process and
their elected representatives.
As noted yesterday, the Annenberg Public Policy Center report figured
there were somewhere between $135 to $150 million spent during the 1996
elections on so-called issue ads. This is a conservative estimate
prepared very specifically not to lead to any exaggeration. The
Annenberg report found that nearly 87 percent of these ads mentioned a
candidate of office by name, and over 41 percent were seen by the
public as pure attack ads. You ought to know who paid for them so we
can better judge whether or not to believe them. This is the highest
percentage recorded among a group that also

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included Presidential ads, debates, free time segments, court
candidates, and new programs. Clearly, these ads were overtly aimed at
electing or defeating targeted candidates, but under current law these
ads were not subject to disclosure requirements of any nature.
The second part of our amendment considers an area Congress has long
had a solid record on: imposing more strenuous spending restrictions on
corporations and labor unions. Remember, under the law, these are not
given the same freedom of speech rights that individuals are, and
rightfully so. Corporations have been banned from electioneering since
1907; unions, since 1947. As the Supreme Court pointed out in United
States v. UAW, Congress banned corporate and union contributions in
order to ``avoid the deleterious influences on Federal elections
resulting from the use of money by those who exercise control over
large aggregations of capital.''
Our amendment would ban corporations and unions from using General
Treasury funds to fund electioneering communications in the last 60
days of the general election and the last 30 days before a primary.
They still have the right to foster and to approve PACs, organizations
for their employees or members of the union, to contribute to, in order
that they individually, working together in the PACs, can influence the
election process.
The Snowe amendment takes a reasoned, incremental and constitutional
step to address the concerns many of my colleagues have voiced on
campaign finance reform proposals.
Mr. President, some of our colleagues have expressed constitutional
concerns with our amendment. Let me assure Members that we have taken
great pains to craft a clear and narrow amendment on this issue in
order to pass two critical first amendment doctrines that were at the
heart of the Supreme Court's landmark Buckley decision, vagueness and
overbreadth. Vagueness could chill free speech if someone who would
otherwise speak chose not to because the rules aren't clear and they
fear running afoul of the law. We agree that free speech should not be
chilled and that is why our rules are very clear.
Any sponsor will know with certainty if their ad is an electioneering
ad. There would be no question the way we have delineated within the
bill.
Overbreadth could unintentionally sweep in a substantial amount of
constitutionally protected speech. Our amendment is so narrow that it
easily satisfies the Supreme Court's overbreadth concerns. We have
asked the experts to check and give us advice on this. It is not just
merely our opinion. We strictly limit our requirements to ads run near
an election that identify a candidate--ads plainly intended to convince
voters to vote for or against a particular candidate.
As the Court declared in Buckley, the governmental interests that
justified disclosure of election-related spending are considerably
broader and more powerful than those justifying prohibitions or
restrictions on election-related spending.
Disclosure rules, the Court said, enhance the information available
to the voting public. Who can be against that? Disclosure rules,
according to the Court, are ``the least restrictive means of curbing
evils of campaign ignorance and corruption.'' And our disclosure rules
are immensely reasonable.
As James Madison said:

A popular government without popular information is but a
prologue to a tragedy or a farce or perhaps both.
Knowledge will forever govern ignorance and a people who
mean to be their own governors must arm themselves with the
power which knowledge gives.

Mr. President, our amendment will arm the voters in order to sustain
our popular Government. I fear that without our amendment, and campaign
finance reform generally, the disillusionment of the voting public will
grow, along with the scandals, and the participation of our voting
public will continue to decline, to the extent that we will be
embarrassed. It is close to that point now when, many times, only half
of the people even bother to go to the polls.
I ask that each Senator carefully consider the beneficial effects
that our amendment will have and support us in moving this debate
forward.
Mr. GORTON. Mr. President, I yield such time off of Senator
McConnell's time as I may use.
The PRESIDING OFFICER. The Senator from Washington is recognized.
Mr. GORTON. Mr. President, it is with intense regret that it's my
view that this amendment, representing a good-faith attempt by two of
my friends and my Republican colleagues, it seems to me, is subject to
even more widespread and deeper constitutional objections than the
original McCain-Feingold bill--a bill that seems, to this Senator at
least, to be unconstitutional on its face.
The fundamental objection to all of these attempts to limit the
freedom of speech, of course, is that they fly in the face of the
unrestricted language of the first amendment, language that does not--
though the Senator from Maine might wish to permit it to do so--permit
exceptions to every general rule.
This amendment, however, seems to me to violate the 14th amendment in
many respects, with respect to both equal protection and due process.
This amendment imposes broad and what some may consider to be onerous
disclosure requirements with respect to what it calls
``electioneering''--on electioneering in certain ways through the mass
media, but not at all in other ways, and even in the ways in which it
covers electioneering by certain groups and organizations and not by
other groups and organizations.
The Senator from Maine said, during the course of her comments, that
she does not think that she could constitutionally apply these
requirements to electioneering by mail. She has not applied them to
electioneering through newspapers, nor has she applied them to
electronic electioneering through the Internet, but only to electronic
electioneering by television or by radio. She does that, she says in
all candor, because those seem to be the most effective methods of
electioneering, the methods of choice by those who have engaged in what
the law now calls ``express advocacy'' and what she calls
``electioneering.''
Well, Mr. President, it seems to me hardly to be subject to argument
that you can say that the Government can regulate your speech in one
medium, but cannot or will not regulate it through another medium. That
is a fundamental denial of the most fundamental of all of our
constitutional rights. It does, however, illustrate the flaw in this
entire debate, and that is that effective electioneering should be
banned, or severely controlled, and that certain kinds of speech are so
unfair or so late in a political campaign that we ought not to allow
them; and if we have to allow them, we ought to impose on them such
heavy restrictions as to discourage them, even though we are going to
permit exactly the same kind of communication, as long as it is done in
a relatively ineffective fashion. To claim, Mr. President, that the
Constitution of the United States, in the first and 14th amendments,
permits those distinctions is to fly in the face of all rationale, all
logic, and all constitutional law.
But the amendment doesn't stop there. Even with respect to radio and
television electioneering, it makes an exception. What is that
exception? It is any news story, commentary, or editorial distributed
through the facilities of a broadcasting station. So now we will have a
law that clearly states that no matter how expensive, no matter how
unfair, no matter how late in a campaign, a television station or a
television network can do whatever it wishes without any of the
restrictions of this statute; but no one else can without being subject
to the restrictions of this amendment. Is there something that is so
much superior in an editorial appearing on a television station over
similar opinions expressed by a labor union, or by the Christian
Coalition, or by any other political organization, that one should be
discouraged and the other should be encouraged?
Mr. President, that is a terrible policy in any political debate, and
it is clearly a policy that is so discriminatory as to run afoul of the
equal protection clause of the 14th amendment. And, Mr. President, this
discrimination doesn't even stop there in distinguishing between a
communication paid for by a labor union or the Christian Coalition with
one paid for by the facilities of the television station and network.
Oh, no. The prohibitions do apply to a

[[Page S976]]

television, or a radio station, or a network owned or controlled by a
political party, a political committee, or a candidate.

So, Mr. President, we have the spectacle of all of these requirements
being applied to a radio station or a television station owned by a
candidate, but not applied to the National Broadcasting Company and,
say, Tom Brokaw, the company owned by General Electric. So a
corporation can purchase a television station or a network and do
whatever it wants in politics. But a candidate can't and a political
party can't.
Mr. President, how can that possibly, under any circumstances, be
valid under the equal protection clause? How does that grant due
process to candidates, political parties, or to any other organization,
except for a corporate owner of a television station, a radio station,
or a network?
The Senator from Maine also deals with the NAACP case and says, well,
yes, the Supreme Court has ruled rather expressly that you cannot
require a group expressing its point of view on a political subject to
list its membership. She says every rule has its exceptions and there
are certain kinds of organizations where that should be the case, but
there are other kinds where it should not.
Last June, in testimony I think, on a bill like this, top officials
of two organizations, Public Citizen and the Sierra Club Foundation,
refused to expose the identities of their members.

``As I am sure you are aware, citizens have a first
amendment right to form organizations to advance their common
goals without fear of investigation or harassment,'' Public
Citizen President Joan Claybrook told GNS.
We respect our members' rights to freely and privately
associate with others who share their beliefs, and we do not
reveal their identities. We will not violate their trust
simply to satisfy the curiosity of Congress or even the
press.

Evidently, the sponsors of this amendment feel that they need pay no
attention to that proposition. But I look through the NAACP case
without finding the slightest hint that the Supreme Court will oblige
the sponsors of this amendment. The Supreme Court in that case said:

Effective advocacy of both public and private points of
view, particularly controversial ones, is undeniably enhanced
by group association, as this Court has more than once
recognized by remarking upon the close nexus between the
freedoms of speech and assembly. . . . It is beyond debate
that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the ``liberty''
assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech. . . . It is
immaterial whether the beliefs sought to be advanced by
association pertain to political, economic, religious, or
cultural matters . . . . In the domain of these indispensable
liberties, whether of speech, press, or association, the
decisions of this Court recognize that abridgement of such
rights, even though unintended, may inevitably follow from
varied forms of governmental action.

The Court has recognized the vital relationship between freedom to
associate and privacy in one's associations. When referring to the
varied forms of governmental action that might interfere with freedom
of assembly, it said, ``A requirement that those in adherence of
particular religious faiths or political parties wear identifying
armbands is obviously of this nature. To compel the disclosure of
membership in an organization engaged in the advocacy of particular
beliefs is of the same order. Inviolability of privacy in group
association may, in many circumstances, be indispensable to the
preservation of freedom of association.''
(Ms. COLLINS assumed the Chair.)
Mr. GORTON. Now, Madam President, that is not a statement of the
Supreme Court of the United States that is going to admit exceptions
and say, oh, well, we really didn't mean it in a political race, we
really didn't mean it in connection with an advocacy organization like
the Christian Coalition or the labor unions; though, perhaps, we did
mean it with respect to television networks. They will not do that.
Madam President, with respect to this attempt to limit freedom of
speech, the views of the American Civil Liberties Union are
particularly eloquent, and I do want to share just a handful of them at
this point on this specific amendment.

We are writing today . . . to set forth our views on an
amendment to that bill dealing with controls on issue
advocacy which is being sponsored by Senators Snowe and
Jeffords. Although that proposal has been characterized as a
compromise measure which would replace certain of the more
egregious features of the comparable provisions of McCain-
Feingold, the Snowe-Jeffords amendment still embodies the
kind of unprecedented restraint on issue advocacy that
violates bedrock First Amendment principles.

They go on eloquently to discuss exactly this proposition.
They say, ``The Court''--referring to the Supreme Court--``fashioned
the express advocacy doctrine to safeguard issue advocacy from campaign
finance controls, even though such advocacy might influence the outcome
of an election. The doctrine provides a bright-line objective test that
protects political speech and association by focusing solely on the
content of the speaker's words, not on the motive in the speaker's mind
or the impact on the speaker's audience, or the proximity to an
election.''
Madam President, this proposal is blatantly unconstitutional. It is
overwhelmingly discriminatory among organizations engaged in identical
activity. It is overwhelmingly discriminatory in treating the forum or
the particular medium by which a group advocates its views differently
depending solely on the sponsor's views on the effectiveness of that
particular medium in influencing the outcome of an election. It
discriminates between a commercial corporation ownership of a
television or radio medium and a political ownership of the same
medium.
Madam President, it is exactly these prohibitions that the first
amendment of the United States to the Constitution of the United States
was designed to prohibit. And, of all forms of speech, the first
amendment was aimed primarily at political speech. Here we have an
attempt not only to ration political speech but to discriminate against
certain forms of political speech and in favor of other forms of
political speech, thus accomplishing the goal of violating not only the
first amendment but the 14th amendment as well.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Ms. SNOWE. Madam President, I will yield time to the Senator from
Michigan. I just want to make a couple of points in response to the
Senator from Washington and to Senator Jeffords.
Mr. LEVIN. I wonder if I might ask unanimous consent that immediately
after the Senator from Maine is finished with her remarks I be
recognized for 20 minutes.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Ms. SNOWE. The time off I yield to the Senator.
The PRESIDING OFFICER. Is that acceptable to the Senator from Maine?
Ms. SNOWE. With one exception: We would like to respond to the
Senator from Washington briefly and Senator Jeffords briefly. We both
have made our remarks. I want to yield to the Senator from Michigan 20
minutes.
Mr. LEVIN. Madam President, I ask unanimous consent that after the
Senators from Maine and Vermont are finished with their responses to
the Senator from Washington, I be recognized for 20 minutes and that
the time be taken from the time of the Senator from Maine.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Maine.
Ms. SNOWE. Thank you, Madam President.
Madam President, in response to what the Senator from Washington
mentioned in terms of our amendment and the constitutional questions,
it is interesting to note that his arguments suggest that in fact he
prefers a broader amendment, which I think is interesting.
So I would certainly ask the Senator from Washington if he could tell
us where in the Constitution it is impermissible to draw these
distinctions and to draw these lines? The Constitution doesn't require
us to address every problem. It certainly allows us to address some of
the problems. And we know where some of the problems develop in
campaigns today. The problems develop in the amount of money that is
placed in television and radio advertising. That is what we are
attempting to address.

[[Page S977]]

So I think it is interesting that the Senator from Washington is
talking about printed materials, newspapers, and direct mail. In fact,
we are saying that isn't the source of the problem in these campaigns.
The source of the problem is where you have $150 million being spent in
television advertising by groups that do not have to disclose their
donors That is all we are requiring--disclosure.

That is the thrust of our amendment. We are entitled to draw those
distinctions. It would not be unconstitutional. We don't need to find
something in the Constitution to justify every policy decision that we
make.
Mr. JEFFORDS. Will the Senator from Maine yield on that point?
Ms. SNOWE. I am glad to yield to the Senator from Vermont.
Mr. JEFFORDS. I have known my good friend from Washington for 30
years, I guess. He is a master of the facts. Let us take a look at one
of the glaring examples of that in his dissertation.
He takes a case involving the NAACP during the 1950s, when we had
huge racial unrest, and the Supreme Court, in examining the case to
expose all of the members of the NAACP in the South, said, when you
have a paramount interest here of protecting people from bodily harm,
then there is no way that you can require them to expose their
membership so that you can go beat them up. This is a paraphrase.
In Buckley--someone raised that issue in this case--it said no. We
are talking about different rights. We are talking about the rights of
the public and the sacred right of casting a vote to know all of the
information that can be available to them when they make decisions.
That is a vital right, a sacred right. So that right overcomes any
concern about releasing the names. You have to know. The voting public
can't make decisions if they hear all of this coming out of the air at
them and they do not know who said it.
So I don't think there is any question. But that is just an example
of the erudite on constitutional law running through all of this,
because I think this is clearly a situation where it is not in
violation of the Constitution.
Ms. SNOWE. I thank Senator Jeffords for those comments. He is
entirely correct on that issue. Obviously, there were legitimate fears
of bodily harm and economic retribution in the 1950s in Alabama. That
is what that case was all about. The court recognized that concern, and
exceptions can be made, and have been made.
In fact, in response to the issue that was raised by the Senator from
Washington and the Senator from Kentucky, several legal experts--Burt
Neuborne, from New York University School of Law; Mr. Ornstein, of the
American Enterprise Institute; Dan Ortiz, University of Virginia School
of Law; and Josh Rosenkranz, from the New York University School of Law
and the Brennan Center--wrote a response to these concerns.
These are legal and constitutional scholars in response to some of
the groups suggesting that somehow they would fear the same reprisal.
They said:

These groups, like any other group, may be entitled to an
exemption from electioneering disclosure laws if they can
demonstrate a reasonable probability that compelling
disclosure will subject its members to threats, harassment,
or reprisal; but the need for these kinds of limited
exceptions certainly do not make general disclosure rules
contained in the Snowe-Jeffords amendment unconstitutional.

So, yes, exceptions can be made without making a broad ruling with
respect to the constitutionality of any legislation that we might pass
here.
To further buttress this point in terms of anonymity of donors, the
courts have indicated in the past that there is no generalized right to
anonymity. The Senator from Vermont mentioned the Buckley case upheld
that.
Another case that has been identified here is McIntyre v. Ohio
Elections. Justice Scalia said:

The question relevant to our decision is whether a right to
anonymity is such a prominent value in our constitutional
system that even protection of the electoral process cannot
be purchased at its expense.

The answer is clearly no.
He went on to say:

Must a parade permit, for example, be issued to a group
that refuses to provide its identity, or that agrees to do so
only under assurance that the identity will not be made
public? Must a government periodical that has a ``letters to
the editor'' column disavow the policy that most newspapers
have against the publication of anonymous letters? . . .
Must a municipal ``public access'' cable channel permit
anonymous (and masked) performers? The silliness that follows
upon a generalized right to anonymous speech has no end.

Scalia went on to say that not only is it not a right, disclosure can
be helpful in curbing ``mudslinging'' and ``character assassination''
and improving our elections.
So the point of it all is that disclosure is in our public interest.
It is the public's right to know.
That is essentially the thrust of the Snowe-Jeffords amendment--to
require disclosure of major donors over $500. It is in all of our
interest to have such a requirement.
Now I yield to the Senator from Michigan 20 minutes.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, first, let me commend the Senators from
Maine and Vermont for their leadership. This amendment will strengthen
the chances of this bill passing and, indeed, in many ways strengthen
the bill itself. I lost track of the number of times this body has
debated a need for campaign finance reform and was presented with
reasonable bipartisan efforts and, yet, failed to get the job done.
This is an issue which will not go away, and it is an issue which
should not go away.
Soft money contributions of hundreds of thousands of dollars, indeed,
of millions of dollars, have made the contribution limits in Federal
election laws meaningless. Both the Republican and Democratic National
Committees, national parties, solicited and spent soft money and used
it to develop so-called ``issue ads'' which are clearly designed to
support or defeat specific candidates. These soft money and issue ad
loopholes are used to transfer millions of dollars to outside
organizations to conduct allegedly independent election-related
activities that are, in fact, benefiting parties and candidates. These
soft money and issue ad loopholes are used by tax-exempt organizations
to spend millions of dollars from unknown sources on candidate attack
ads to influence election outcomes.
The reality of our campaign finance system simply cannot be avoided.
Soft money has blown the lid off contribution limits in our campaign
finance system. Soft money is the 800-pound gorilla sitting right in
the middle of this debate.
Just look at Roger Tamraz, a contributor to both political parties.
He is a bipartisan symbol of what is wrong with this system. He served
as a Republican Eagle in the 1980s during the Republican
administrations, and a Democratic Managing Trustee in the 1990s during
Democratic administrations. Tamraz was unabashed in admitting that his
political contributions were made for the purpose of buying access to
candidates and officeholders, and he showed us in stark terms the all
too common product of the current campaign finance system--using soft
money to buy access.
Despite condemnation by the committee and the media of Tamraz'
activities, when he was asked at the hearing to reflect upon his
$300,000 contribution in 1996, Tamraz said, ``I think next time I will
give $600,000.''
Now he was taunting us. He was flaunting the fact that he had given
$300,000, indicating that it's perfectly legal and you folks like it
that way or else you would change it. That's what Tamraz told us. And
the truth of the matter is, he was right. It is a sad truth. We can
change it if we want to change it. And the next time he will give
$600,000 or $1 million to do the same thing, to buy access to
candidates and to officeholders.
Most of the 1996 excesses involved activities that were legal, and
they all centered around that 800-pound gorilla, soft money. Virtually
all the foreign contributions that concerned the committee that just
held hearings involved soft money. Virtually every offer of access to
the White House or the Capitol or the President or to Members of the
Senate or the House involved contributions of soft money. Virtually
every instance of questionable conduct in the committee's investigation
involved the solicitation or use of soft money.
The opponents want to pretend this monster doesn't exist, but it is
sitting

[[Page S978]]

right in the middle of this debate. It is not going to be removed until
we address it.
The bipartisan McCain-Feingold bill would do an awful lot to repair
this system. It is not a new bill. It has been before this body for
years now and it has received sustained scrutiny from Members on both
sides of the aisle.
The truth is that the soft money loophole exists as long as we in
Congress allow it to exist. The issue advocacy loophole exists because
we in Congress allow it to exist. Tax-exempt organizations spend
millions televising candidate attack ads days before an election
without disclosing who they are or where they got their funds, because
we in Congress allow it.
It is time to stop pointing fingers at others and take responsibility
for our share of the blame for this system. We alone write the laws.
Congress alone can shut down the loopholes and reinvigorate the Federal
election laws.
When the Federal Election Campaign Act was first enacted 20 years ago
in response to the Watergate scandal, Congress enacted a comprehensive
system of laws including contribution limits and full disclosure of all
campaign contributions. The requirements are still on the books, at
least in form. Individuals are not supposed to give more than $1,000 to
a candidate per election. Corporations and unions are barred from
contributing to any candidate without going through a political action
committee. Campaign contributions and expenditures have to be
disclosed.
At the time that these laws were enacted, many people fought against
those laws, claiming that they were an unconstitutional restriction on
first amendment rights to free speech and free association. And the
law's opponents, including the ACLU, took their case to the Supreme
Court.
The ACLU is sometimes right and the ACLU is sometimes wrong, but they
are always eloquent. And the reason they are always eloquent is that
the first amendment is eloquent. But so are clean elections an eloquent
idea. So are elections which are free and clean and democratic an
eloquent idea.
So the Supreme Court, in Buckley, had to weigh the ACLU opposition to
the campaign contribution limits against the need for elections which
were free and clean, both of corruption and the appearance of
corruption--both. And the ACLU lost that issue in Buckley.
It is frequently forgotten around here that there was an attack on
the campaign contribution limits, which are now the law, that attack
was led by the ACLU in the Buckley case, and the ACLU lost. The Supreme
Court in Buckley upheld contribution limits and disclosure limits. It
upheld them despite the eloquence of the ACLU in opposition to those
limits in Buckley.
Now, this is what the Supreme Court said in Buckley:

It is unnecessary to look beyond the Act's primary
purpose--to limit the actuality and appearance of corruption
resulting from large individual financial contributions--in
order to find a constitutionally sufficient justification for
the $1,000 contribution limitation. Under a system of private
financing of elections, a candidate lacking immense
personal or family wealth must depend on financial
contributions from others to provide the resources
necessary to conduct a successful campaign. . . . To the
extent that large contributions are given to secure
political quid pro quo's from current potential office
holders, the integrity of our system of representative
democracy is undermined.

And then the Supreme Court said the following in Buckley:

Of almost equal concern is . . . the impact of the
appearance of corruption, stemming from public awareness of
the opportunities for abuse inherent in a regime of large
individual financial contributions.

And the Court went on:

Congress could legitimately conclude that the avoidance of
the appearance of improper influence is also critical . . .
if confidence in the system of representative government is
not to be eroded to a disastrous extent.

So the Supreme Court weighed the free speech arguments of the
opponents of campaign contribution limits and weighed that against the
argument about the need to have elections which are free and clean, and
to avoid the appearance of corruption. And they decided in Buckley that
we, Congress, ``could legitimately conclude that the avoidance of the
appearance of improper influence is critical if confidence in the
system of representative government is not to be eroded to a disastrous
extent.''
The same Court upheld tough disclosure requirements, effectively
prohibiting anonymous or secret contributions to candidates and
parties, despite arguments in Buckley that disclosure collides with
first amendment rights of free speech and free association. The Court
in Buckley said the following:

Compelled disclosure has the potential for substantially
infringing on the exercise of first amendment rights. But we
have acknowledged that there are governmental interests
sufficiently important to outweigh the possibility of
infringement, particularly when the free functioning of our
national institutions is involved. The governmental interests
sought to be vindicated by the disclosure requirements are of
this magnitude.

So, despite the arguments of opponents of contribution limits and
opponents of disclosure who base their arguments on first amendment
concerns, the Supreme Court in Buckley said you can limit contributions
and you can require disclosure because the governmental interests
sought to be vindicated, the free functioning of our national
institutions, is involved. And Congress can consider that. They used a
balancing test, and that is the test that they would use when we pass
McCain-Feingold.
Now, relative to the question of the so-called magic words test on
issue ads, it is true that two circuits have said that the Supreme
Court has ruled that only if certain magic words are present can you
then limit those ads to being paid for by regulated contributions. But
another circuit, the ninth circuit, in the Furgatch case, has held that
this list of magic words referred to so frequently here ``does not
exhaust the capacity of the English language to expressly advocate the
election or defeat of a candidate.''
And of equal importance to the fact that the circuits are divided on
the question of what constitutes issue advocacy and what constitutes
candidate advocacy is the fact that the Federal Election Commission
just recently, on a bipartisan basis, reaffirmed its commitment to a
broader test that goes beyond the magic words test to unmask ads that
use the guise of issue ads to advocate the election or defeat of a
Federal candidate.
The Supreme Court has not yet ruled on whether the FEC regulation is
constitutional. But when you have at least one circuit and the FEC
saying that you can have a broader test than the ones that have been
adopted in the other circuits, there is a division of authority here
which means that at least there is a reasonable chance that the Supreme
Court will affirm the FEC regulation.
I wonder how much time I have remaining?
The PRESIDING OFFICER. The Senator has 7 minutes and 27 seconds.
Mr. LEVIN. I thank the Chair.
Relative to the Snowe-Jeffords amendment, this amendment strikes an
acceptable balance between the need to protect the integrity of our
electoral process and the need to protect the rights to free speech. It
would address issue ad abuse by creating a new category of
electioneering ads, defined as ads that refer to a clearly identified
candidate up for election and which are broadcast on the regulated
media of television or radio close in time before an election.
Now, why radio and television? The answer is that the Supreme Court
itself has held that, due to the fact that these media, radio and
television, are regulated, are licensed, and that the spectrum is
limited, you can regulate these media in ways in which you cannot
regulate newspapers or the printed word. The Supreme Court has ruled
that there is a difference between Government regulating licensed media
and unlicensed media, and where Government issues a license--gives out
a license of great value for public media--it can indeed regulate the
media in a reasonable way, ways it can't possibly even think of
regulating newspapers or other print media, which are not regulated
media.
Indeed, the FCC has regulations on what can be said on radio and
television. There are rules against obscenity on radio and television.
There are rules about the numbers of commercials and the types of
commercials on children's television. There are all kinds of rules for
the regulated media of television and radio which do not exist relative
to newspapers. So, it is not an uncommon distinction. It is a

[[Page S979]]

distinction which has been affirmed by the Supreme Court and it is not
the effectiveness which is so much the issue, it is the fact that they
are regulated, licensed media which, in my judgment at least,
represents a significant difference.
The Snowe-Jeffords amendment would impose a limited set of
contribution limits and disclosure requirements on commercials on these
licensed media. No corporate or union funds could be used to pay for
them. Donors who provide more than $500 would have to be disclosed.
These limits are well within the bounds of the contribution limits and
disclosure requirements which have been upheld in Buckley as a
constitutional means for protecting the integrity of our electoral
process.
Madam President, this is not the first time that loopholes have
eroded the effectiveness of a set of laws. This happens all the time.
The election laws are just the latest example. We saw that true with
lobbying disclosure. We saw that true with gift bans. You adopt a set
of rules and then people who want to try to evade those rules or push
the envelope find loopholes. And then Congress has a responsibility to
come along to try to close these loopholes in order to carry out the
original intent of the statute.
The question is whether or not we are going to do this now with the
campaign contribution laws. We passed a law saying there is a $1,000
contribution limit to a campaign and now there is really no limit on
how much you can contribute. All you have to do is give your millions
to a party and have the party, then, spend the money on ads which are
indistinguishable from ads attacking or supporting candidates. These
ads are indistinguishable. You can put up two ads next to each other,
ask any reasonable person, ``Do you see the difference between this
candidate support ad and this issue ad?'' and people will look at those
ads and say, ``There is no difference at all.''
We saw that in committee hearings, which the Presiding Officer and I
and others participated in, in the Thompson committee, where we put up
side by side a so-called candidate ad and an issue ad, with three words
difference, one of which had to be paid for with limited funds and the
other one which could be paid for with soft money or unregulated funds,
and we had expert witnesses, including two former Members of this body,
Senator Kassebaum and Vice President Mondale, who could see no
distinction in those ads. And there is none.
So we now have a farce. We have a sham. The campaign contribution
limits, for all intents and purposes, do not exist. There is no $1,000
limit on giving money to a candidate. Just give $1 million to the
candidate's party, have that party put a so-called issue ad on in that
candidate's election, and it is indistinguishable from the so-called
candidate support ad which has to be paid for with regulated funds.
The question is whether we are going to do anything about it. The
time for shedding crocodile tears about the 1996 campaign funding
raising is over. We ought to wipe away these tears from our eyes and
see clearly what the American people see.
Over 80 percent of them, according to a recent Los Angeles Times
poll, believe the campaign fundraising system needs to be reformed; 78
percent of the American people think we ought to limit the role of soft
money. A majority of this body wants to limit it. We saw that in the
vote yesterday.
The question now is whether or not the majority will of this body and
the majority will of the American people are going to be carried out,
and that is where we are.
I hope that the chief sponsors--I am one of them, but I hope that the
key named sponsors of this amendment will stick to their position and
will insist that we finally be able to have an up-or-down vote on the
enactment of McCain-Feingold.
Last year, the Senate took up the issue of campaign finance reform,
but never got past superficial gamesmanship.
The misnamed Paycheck Protection Act, as their version of campaign
finance reform, was offered last year to the McCain-Feingold as a
killer amendment that singled out unions in an effort to punish them
for their participation in the 1996 elections, perhaps even for the
last victory won on the minimum wage. The amendment was not even
limited to campaigns--it sought to defund unions and stop them from
spending money on any political activity, including for example
lobbying the Senate to enact another minimum wage increase. The purpose
of the amendment wasn't to change the law, but to kill the bill--and
that's what it did.
This year, the same legislation was offered by the Republican
leadership as their version of campaign finance reform. It is a killer
bill--not intended for enactment but to kill campaign finance reform.
A way around that killer legislation has been found by Senator Snowe,
Senator Jeffords, Senator Feingold, Senator McCain, myself and others
working on a bipartisan basis. Hopefully, the Snowe-Jeffords amendment
will prevent campaign finance reform from being derailed again.
Campaign finance reform is an issue that could convert a dedicated
optimist into a doomsayer. But it is not doomsday yet. We have a
bipartisan bill that provides the key reforms. We have a bipartisan
coalition willing to defeat last year's killer amendment. We have an
election around the corner in which our constituents can let opponents
of reform know what they think of their opposition.
So let's turn off the crocodile tears about the 1996 elections. Let's
stop complaining about weak enforcement of the election laws, when the
wording of those laws makes them virtually unenforceable. Let's stop
feigning shock at the law's loopholes, while allowing them to continue.
It is time to enact campaign finance reform. That is our legislative
responsibility and our civic responsibility.
Madam President, I would like to ask my friend from Maine about one
of the changes that her amendment would make to the McCain-Feingold
campaign finance reform legislation, to make it clear for the record
the reason for that change.
Ms. SNOWE. I would be happy to respond to my friend from Michigan for
that purpose.
Mr. LEVIN. I thank the Senator. The Snowe-Jeffords amendment, of
which I am a cosponsor, proposes removing from the McCain-Feingold
legislation all of Section 201, a section which would have codified
several legal tests for determining when an expenditure expressly
advocates the election or defeat of a candidate. The reason for
striking those provisions is not because you or any of the other
cosponsors of the Snowe-Jeffords amendment do not want to stop
candidate attack ads that pretend to be issue ads, but because you are
willing to leave that battle for the courts, is that right?
Ms. SNOWE. My friend from Michigan is correct. Stopping issue ad
abuse is critical to meaningful campaign finance reform. But
distinguishing candidate ads from issue ads based on ad content is the
Supreme Court's approach in Buckley versus Valeo; it is an approach
that the courts are now examining; and I am willing to defer to the
courts at this point.
Mr. LEVIN. The courts have divided on whether the Buckley test, which
includes providing so-called ``magic words'' which make an ad subject
to the federal election laws, is the only way to determine when an ad
is covered, or whether, as the Ninth Circuit decided in the Furgatch
case, the Buckley magic words do not ``exhaust the capacity of the
English language to expressly advocate the election or defeat of a
candidate.'' Just a week or so ago, the Federal Election Commission
reaffirmed its commitment to a broader test--one that goes beyond the
magic words. I urged FEC to take that position, and I think it's the
right one to take. Am I correct that it is not the Senator's intention
or the intention of any of the cosponsors of the Snowe-Jeffords
amendment to send a message critical of the FEC's position?
Ms. SNOWE. That is correct--our amendment is not intended to convey
any criticism of the FEC. The Buckley magic words test is a very narrow
one, and has proven completely ineffective in stopping phony issue ads
that attack candidates. My amendment offers a new approach to this
problem, by creating a new category of ``electronic ads'' that name
candidates in broadcasts close in time to an election. But my amendment
does not foreclose or

[[Page S980]]

criticize other approaches to the problem. The FEC and the courts must
continue to wrestle with clarifying when ads advocate the election or
defeat of a candidate, and I fully support that effort. In fact, it is
because the courts are still wrestling with the constitutional issues
that makes me comfortable with waiting awhile longer before we
legislate.
Mr. LEVIN. The Snowe-Jeffords amendment does not, then, imply any
disagreement with the FEC, the Ninth Circuit or any of the rest of us
who believe that the magic words test is not enough to stop candidate
attack ads masquerading as issue ads, and that such a narrow test is
not constitutionally required.
Ms. SNOWE. That is correct. The Snowe-Jeffords amendment is fully
consistent with the view that the Furgatch decision and the FEC
regulation may be a constitutional approach for detecting ads that
pretend to discuss issues, but are really attacks on candidates. If
that's where the Supreme Court ends up, I will be glad to see it, but
it will be a separate approach from the Snowe-Jeffords amendment's
treatment of broadcast ads that name candidates just before an
election.
Mr. JEFFORDS. I join in the remarks of my friend from Maine.
Mr. LEVIN. I thank both Senators for that clarification.
I thank, again, the leaders of this effort to reform a system that is
long overdue for reform. I yield the floor.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Madam President, Senator Levin and I had a discussion
about the Furgatch case back in October. I am going to talk a good deal
about the Furgatch case a little later.
My good friend and colleague Senator Enzi from Wyoming is here and
would like to speak. I yield him whatever time he may need.
Mr. ENZI addressed the Chair.
The PRESIDING OFFICER. The Senator from Wyoming is recognized.
Mr. ENZI. Thank you, Madam President.
Madam President, I rise in opposition to the amendment that is on the
floor and to the McCain-Feingold substitute on campaign finance. Rather
than ``reform'' the way that campaigns are financed, this substitute
would infringe on the first amendment rights of millions of American
citizens and place enormous burdens on candidates running for office.
While the McCain-Feingold substitute claims to ``clean up'' the
elections, it does so by placing unconstitutional restrictions on
citizens' ability to participate in the political process. For the past
few days, we have heard Members of the Senate bemoan the fact that
various citizens groups and individuals have taken out ads criticizing
them during their elections. I have to admit that I can sympathize with
my colleagues who have been the object of often pointed and critical
campaign ads. In fact, during my last campaign, some ads were aired
against me that were downright false. That is why I support truth in
advertising, but this isn't truth in advertising. At the same time, I
believe that in a free society it is essential that citizens have the
right to articulate their positions on issues and candidates in the
public forum.
The first amendment to our Constitution was drafted to ensure that
future generations would have the right to engage in public political
discourse that is vigorous and unfettered. Throughout even the darkest
chapters of our Nation's history, our first amendment has provided an
essential protection against inclinations to tyranny.
Just a moment ago, the Senator from Michigan mentioned loopholes that
we are plugging up. One of the things that always disturbs me about
legislation, while legislation is being designed, loopholes are being
thought out, loopholes nobody intends to disclose until after they have
an opportunity to use them.
I suggest to you that this piece of legislation and the amendment
before us is subject to loopholes. There are people who have already
decided how they can get around it. These are not the ethical people.
These are the unethical ones. That is unenforced responsibility, that
is what unethical activity is. It is also what ethical responsibility
is, unenforced responsibility. You can't make somebody who intends to
be bad be good, not if they intend to be.
What we do by placing some of these restrictions on people is say to
those who are willing to conform to the rules that they have
limitations and those who don't have, don't have limitations. ``Oh,
well, we will build in penalties, we will make this tough, we will take
away the right of those people who intend to follow rules the
opportunity to address an issue while it is timely, an issue that
really concerns them,'' and an issue in this day and age may cost more
than they can give to that candidate. We will take that right away from
them. But the person who isn't worried about being punished after the
fact will go ahead and do exactly what they have been doing all the
time. So we are going to put in place a rule that takes away a
constitutional right, adds additional burden, builds bureaucracy and
takes away the freedom of speech. We are doing it in the name of making
contests fairer. But, again, there are people out there thinking of the
loopholes as we speak, and there are a lot of them in this.
The Supreme Court has consistently interpreted the first amendment to
protect the right of individual citizens and organizations to express
their views through issue advocacy. The Court has maintained for over
two decades that individuals and organizations do not fall within the
restrictions of the Federal election code simply by engaging in this
advocacy. No time limits, no disclosures, they just do not fall within
the restrictions of the Federal election code simply by engaging in
advocacy.

Issue advocacy includes the right to promote any candidate for office
and his views as long as the communication does not ``in express terms
advocate the election or defeat of a clearly identified candidate.'' As
long as independent communication does not cross the bright line of
expressly advocating the election or defeat of a candidate, individuals
and groups are free to spend as much as they want promoting or
criticizing a candidate and his or her views. While these holdings may
not always be welcome to those of us running in campaigns, they
represent a logical outgrowth of the first amendment's historic
protection of core political speech.
Madam President, this amendment, which parades under the guise of
reform, would violate these clear first amendment protections. The
amendment impermissibly expands the definition of express advocacy to
cover a whole host of communications by independent organizations. The
McCain-Feingold amendment attempts to expand bright-line tests for
issue advocacy to include communications which, in context, advocate
election or defeat of a given candidate. Are we comfortable with giving
a Federal regulatory agency the power to determine what constitutes
acceptable political speech?
The substitute gives expansive new powers to the Federal Election
Commission. This is one Federal agency which has abused the power it
already has to regulate Federal elections. Just last year, the Fourth
Circuit Court of Appeals strongly criticized the Federal Election
Commission for its unsupportable action against the Christian Action
Network. The network's only crime was engaging in protected political
speech.
The Court of Appeals required the FEC to pay the network's attorney's
fees and court costs since the FEC's prosecution had been unjustified.
Congress should not condone flagrant administrative abuses by giving
the FEC expanded new powers and responsibilities.
What we have talked about for a year and a half while I have been
here is the inability to really look into situations that appear to be
pretty flagrant. Now we want to expand their right, after they have not
been able to do the job and have enforced their actions in court
actions that have been decidedly abusive, we want to give them more
power.
The McCain-Feingold substitute also includes within its new
definition of express advocacy any communication that refers to one or
more clearly identified candidates within 60 calendar days preceding an
election. These provisions would allow the speech police

[[Page S981]]

to regulate core political speech during the most crucial part of the
election cycle. The amendment that is on the floor right now also talks
about that most crucial part of the election cycle.
They would also place an economic burden on thousands of small radio
and television stations which carry these ads. I don't think we in
Washington should be placing any more restrictions on America's small
businesses. Our Founding Fathers drafted the first amendment to protect
against attempts such as these to prohibit free citizens from entering
into public discourse on issues that greatly affect them.
I cannot support legislation that stifles free speech of American
citizens and gives expanded new powers to the Federal bureaucracy. For
these reasons, I must oppose the McCain-Feingold substitute and the
current amendment. I ask my colleagues to join me in paying tribute to
the first amendment and opposing the McCain-Feingold substitute and
this amendment and any other amendment that unconstitutionally
restricts the rights of citizens to participate in the democratic
process. I thank the Chair, and I yield the floor.

Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. McCONNELL. Madam President, I thank my good friend from Wyoming
for his important contribution to this debate. He obviously understands
the issue well, and I don't say that because he clearly shares my own
biases on this subject. I thank my good friend from Wyoming.
Madam President, how much time do I have?
The PRESIDING OFFICER. The Senator has approximately 1 hour and 28
minutes remaining.
Mr. McCONNELL. Madam President, there has been a lot of discussion
about what some have called sham issue advocacy. Among the most
appalling spectacles we have witnessed on the Senate floor in recent
years is that of Senators standing around casting judgment on whether
particular ads by citizens groups transgress some notions of what is
appropriate.
Sham issue advocacy is the reformer's favorite pejorative term of art
for first amendment protected speech which those pushing the regulatory
scheme in McCain-Feingold and the Snowe substitute do not regard as
legitimate. They say it is sham speech because--brace yourself--it
might actually affect an election. Well, by all means.
We are admonished that any communication by a private citizen or
group that might have any impact on a Federal election should be
regulated by the Federal Government, should be reported to the Federal
Election Commission. The citizens who gather together to pay for it to
exercise their constitutional right of association ought to be
disclosed to the Federal Government, so the argument goes, so that they
may be judged.
Many in the media beat the drums for Government regulation of this
so-called sham issue advocacy. Roll Call last month actually had the
audacity to besiege the Congress to get this speech--now listen to
this--to get this speech under control. Of course, if you really want
to have influence, if you really want to affect the course of an
election to favor certain candidates over others, repeal certain
legislation or certain issues and you are wealthy, you can always buy a
newspaper or become a newspaper editor, write editorials, headlines,
stories.
A lot of people would like to get those sham editorials under
control. I thought about that from time to time over the years, but the
first amendment would not allow it, and I don't know of anyone
advocating it, certainly not Roll Call.
Fortunately for the media, they benefit from a provision in the
Federal Elections Campaign Act, I might call it a loophole, that
exempts their issue advocacy, their express advocacy, and only theirs,
from the definition of expenditure.
The presumption underlying the notion that issue advocacy needs to be
gotten under control is a remarkably arrogant one, or perhaps, in some
instances, an ignorant one. The premise is that the politicians, all of
us, own these elections and, therefore, politicians must control them,
and politicians must not be drowned out by all this other independent
speech issue advocacy by private citizens and groups.
Good heavens, the politicians may wish to keep the race on a
particular issue or two or perhaps they rather not talk about
legislative issues at all. Perhaps they prefer to keep the emphasis on
personality, resume or some other nonissue qualities.

And there could be some citizen group with all their ``sham" issue
advocacy spoiling the election, messing the election up, fussing the
election up with issues, for goodness sake--with issues. A group of
citizens may feel strongly that character is an issue, one that should
be injected into a particular race, and so they broadcast, through paid
ads, some misdeed of a candidate because it is relevant to character.
Reformers write such communications off as ``negative'' and somehow
unbecoming in a democracy.
They do this without the candidate's permission. The temerity of
these folks presuming they have a constitutional right to participate
in elections, to weigh in on issues, to influence public opinion.
Private citizens and groups interjecting themselves into American
elections? How dare they do that. What do they think this is? A
democracy?
A so-called compromise is being shopped around--actually it is the
one we are considering--it is a compromise insofar as it seeks to pick
up some additional Republicans, enough to invoke cloture at some point
down the road. Its proponents claim it addresses the constitutional
shortcomings of McCain-Feingold. Its authors have created a new label,
a sort of new category of speech that exists nowhere save for the
talking points here on the floor. They rephrase ``sham'' issue
advocacy, calling it instead ``electioneering.''
Electioneering. What sinister overtones this term must evidently hold
to reformers. This is positively subversive stuff, this
``electioneering.'' It warrants, in the reformer view, Federal
regulation. Those who contribute to it should, we are told, be
disclosed to the Federal Government.
We are advised by proponents of McCain-Feingold and the Snowe-
Jeffords substitute or addition, that this ``sham'' issue advocacy,
this ``electioneering'' is a new phenomenon, a new scourge which must
be routed out, regulated, and disclosed to a Federal agency, the FEC.
Here is a news flash: Issue advocacy--``sham'' or otherwise--is
neither novel nor ripe for Federal regulation. The legal minds at the
Brennan Center who are building the case for McCain-Feingold and the
Snowe-Jeffords proposal do not like the Buckley case. They do not
respect the Buckley case. And their mission is to overturn the Buckley
case.
Their theory--really a desperate hope, actually--is that the Court
will look at 20 years of election activities since the Buckley decision
and decide things differently, even obliterate the ``bright-line''
standard, the ``express advocacy'' tripwire.
More likely is that the Court will go the other way toward my view
and that of those who think the first amendment that passed back before
1800 is America's premier political reform--not the Federal Election
Campaign Act of 1974.
The Court is not going to look at the proliferation of issue advocacy
and say, ``Whoa, we need to get that under control.'' No. I think the
Court is going to say, ``We told you so.''
The Court, in Buckley two decades ago, anticipated that which the
reformers now identify as a horrible ``loophole,'' which has recently
opened up somehow and must be closed.
In Buckley, the Court anticipated exactly what we are discussing this
afternoon. It said in that case:

It would naively underestimate the integrity and
resourcefulness of persons and groups desiring to buy
influence to believe that they would have much difficulty
devising expenditures that skirted the restriction on express
advocacy of election or defeat but nevertheless benefited the
candidate's campaign.

The Court was emphatic in Buckley that issue advocacy--``sham'' or
otherwise--was at the core, the very core, of the first amendment. To
regulate it in any way is unconstitutional, even a ``reform'' so
seemingly innocuous as ``disclosure'' of donors.
In NAACP v. Button, in 1963, which was quoted in Buckley, the Court
said:

[[Page S982]]

Because First Amendment freedoms need breathing space to
survive, government may regulate in the area only with narrow
specificity.

The Court went on to say in Buckley:

. . . the distinction between discussion of issues and
candidates and advocacy of election or defeat of candidates
may often dissolve in practical application.

So the Court anticipated exactly what has happened.

Candidates, especially incumbents, are intimately tied to
public issues involving legislative proposals and
governmental actions.

The Court said in Buckley:

Not only do candidates campaign on the basis of their
positions on various public issues, but campaigns themselves
generate issues of public interest.

The Court went on the say:

[W]hether words intended and designed to fall short of
invitation would miss that mark is a question both of intent
and effect. No speaker, in such circumstances, safely could
assume that anything he might say upon the general subject
would not be understood by some as an invitation. In
short, the supposedly clear-cut distinction between
discussion, laudation, general advocacy, and solicitation
puts the speaker in these circumstances wholly at the
mercy of the varied understanding of his hearers and
consequently of whatever inference may be drawn as to his
intent and meaning.

Such a distinction offers no security for free discussion.
In these conditions it blankets with uncertainty whatever may
be said. It compels the speaker to hedge and trim.

The Court went on:

The constitutional deficiencies described in Thomas v.
Collins can be avoided only by reading [the 1974 independent
expenditure provision regarding advocacy of election or
defeat] as limited [very limited] to communications that
include explicit words of advocacy of election or defeat of a
candidate. . .
. . . in order to preserve the provision against
invalidation or vagueness grounds, [it] must be construed to
apply only to expenditures for communications that in express
terms advocate the election or defeat of a clearly identified
candidate for federal office.

So, Madam President, the Court understood that an issue advocacy was
very much to be, to some viewers or listeners, indistinguishable from
express advocacy that they said the first amendment requires its
protection.

So long as persons and groups eschew expenditures that in
express terms advocate the election or defeat of a clearly
identified candidate, [the Court said] they are free [I
repeat, free] to spend as much as they want to promote the
candidate and his views. The exacting interpretation of the
statutory language necessary to avoid unconstitutional
vagueness thus undermines the limitations's effectiveness as
a loophole-closing provision . . .
. . . yet no societal interest would be served by a
loophole-closing provision . . .

So summing up Buckley's observations about issue advocacy, they
anticipated this. They wanted people to have wide latitude to discuss
the issues or the pros and cons of candidates for office, up to and
including proximity to an election. And they wanted them to be able to
do that without having to file with the Federal Election Commission or
to conduct their speech with hard-money dollars.
The Supreme Court reiterated the explicit words requirement for a
determination of express advocacy in the 1986 Massachusetts Citizens
for Life case--citing, again, footnote 52 as a guide. And here is what
they said:

Buckley adopted the ``express advocacy'' requirement to
distinguish discussion of issues and candidates from more
pointed exhortations to vote for particular persons. We
therefore concluded in that case that a finding of ``express
advocacy'' depended upon the use of language such as ``vote
for,'' ``elect,'' ``support,'' etc.

Now, those who advocate McCain-Feingold and the Snowe-Jeffords
proposal, which involve regulatory regimes, have precious few court
cases upon which to base their arguments. Most prominent among these is
the ninth circuit's Furgatch decision, dating back to 1987, which my
colleague from Michigan, Senator Levin, made reference to a few moments
ago. Frankly, it is a mighty slim reference. The Furgatch limb upon
which their issue advocacy regulation case rests is a pretty weak limb.
While Furgatch is not my favorite decision, it is certainly not the
blank check for reformers who seek to shut down issue advocacy either.
Furgatch was an express advocacy case. It hinged on the content of the
communication at issue--words, explicit terms--just as the Supreme
Court required in Buckley and reiterated in Massachusetts Citizens for
Life.
The words in Furgatch were not those contained in Buckley's footnote
52. Indeed, no one--least of all the Supreme Court--ever intended that
the list, typically referred to as ``footnote 52'' was exhaustive. That
would defy common sense.
Desperate for even the thinnest constitutional gruel upon which to
base their regulatory zeal to extend their reach to everyone who dares
to utter a political word in this country, the FEC leapt at Furgatch
and will not let it go. FEC lawyers misread it, misrepresent it, and
are rewarded with loss after loss after loss in the courts.
In last year's fourth circuit decision, which Senator Enzi referred
to, ordering the FEC to pay one of its victims, the Christian Action
Network's attorney's fees, the ``Furgatch-as-a-blank-check-for-issue-
advocacy-regulation'' fantasy, was thoroughly dissected, debunked and
dispensed with.
The court in the Christian Action Network case puts Furgatch in the
proper perspective.
And let me read some portions of the Christian Action Network case.

On the authority of Buckley v. Valeo and FEC v.
Massachusetts Citizens for Life, the district court dismissed
the FEC's action against the Network for failure to state
a claim upon which relief could be granted, holding that,
as ``issue advocacy intended to inform the public about
political issues germane to the 1992 presidential
election,'' the advertisements were ``fully protected as
`political speech' under the First Amendment.''

Further on in the case, Madam President, the Court said:

Because the position taken by the FEC in this litigation
was foreclosed by clear, well-established Supreme Court
caselaw, and it is apparent from the Commission's selective
quotation from and citation to those authorities that the
agency was so aware, we conclude that the Commission's
position, if not assumed in bad faith, was at least not
``substantially justified''. . .
Seven years later, and less than a month following the
Court's decision in MCFL, the Ninth Circuit in FEC v.
Furgatch, could not have been clearer that it, too, shared
this understanding of the Court's decision in Buckley.
Although the court declined to ``strictly limit'' express
advocacy to the ``magic words'' of Buckley's footnote 52
because that footnote's list does ``not exhaust the capacity
of the English language to expressly advocate election or
defeat of a candidate,'' curiously, the Ninth Circuit never
cited or discussed the Supreme Court's opinion in MCFL,
notwithstanding that MCFL was argued in the Supreme Court
three months prior to the decision in Furgatch and decided by
the Court almost a month prior to the Court of Appeals
decision. The Ninth Circuit does discuss the First Circuit's
opinion in MCFL, but without noting that certiorari had been
granted to review the case. Thus, the Furgatch court relied
upon Buckley alone, without the reaffirmation provided by the
Court in MCFL, for its conclusion that explicit ``words'' or
``language'' of advocacy are required if the Federal Election
Campaign Act is to be constitutionally enforced.
The entire premise of the court's analysis was that words
of advocacy such as those recited in footnote 52 were
required to support Commission jurisdiction over a given
corporate expenditure.

* * * * *

The Court explained that individual words or sentences of
the message cannot be considered in isolation, but, rather,
must be considered together with the other words and
sentences that appear in the communication, in determining
whether the message is one of election advocacy:

* * * * *

Then, although noting how ``[w]ords derive their meaning
from what the speaker intends and what the reader
understands,'' the court declined to place too much
importance on intent because ``to fathom [the speaker's]
mental state would distract [the court] unnecessarily from
the speech itself.'' And, finally, although the Court refused
to foreclose resort to contextual considerations external to
the words themselves, it explained that external context must
necessarily be an ``ancillary'' consideration because it is
``peripheral to the words themselves,'' and it pointedly
noted that such ``context cannot supply a meaning that is
incompatible with, or simply unrelated to, the clear import
of the words.''
Having established that the emphasis must always be on the
literal words of the communication, with little if any weight
accorded external contextual factors, the court proceeded to
outline what it considered to be ``a more comprehensive
approach to the delimitation of `express advocacy.' '' In so
doing, the court repeatedly emphasized that the message of
candidacy advocacy must appear in the speech, in the words,
of the communication if the expenditure of corporate funds
for that communication is to be prohibited:
The court's almost exclusive focus on ``speech,'' and
specifically ``speech'' defined as the literal words or text
of the communication, could not have been clearer. . . .

[[Page S983]]

This standard can be broken into three main components.
First, even if it is not presented in the clearest, most
explicit language, speech is ``express'' for present purposes
if its message is unmistakable and unambiguous, suggestive of
only one plausible meaning. Second, speech may only be termed
``advocacy'' if it presents a clear plea for action, and thus
speech that is merely informative is not covered by the Act.
Finally, it must be clear what action is advocated. Speech
cannot be ``express advocacy of the election or defeat of a
clearly identified candidate'' when reasonable minds could
differ as to whether it encourages a vote for or against a
candidate or encourages the reader to take some other [kind
of] action.
We emphasize that if any reasonable alternative reading of
speech can be suggested, it cannot be express advocacy
subject to the Act's disclosure requirements.

It is plain that the FEC has simply selected certain words and
phrases from Furgatch that give the FEC the broadest possible authority
to regulate political speech and ignored those portions of Furgatch
quoted above, focusing on the words and text of the message. The ninth
circuit did not use other soft language when describing the framework
within which the express advocacy determination is to be made. Madam
President, let me just say the case is replete with refutation of the
Furgatch decision. Clearly, the Furgatch decision is not controlling
when it comes to reaching a decision about the appropriateness of the
language in the Snowe-Jeffords proposal.
Madam President, I ask unanimous consent the excerpts of this case
that I was going to cite be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Excerpts

434(c) so as to prevent speech that is clearly intended to
affect the outcome of a federal election from escaping,
either fortuitously or by design, the coverage of the Act,''
id. at 862. Under the facts of the case, these broader
observations were obviously dicta.

* * * * *

. . . to the extent that they do represent an intentional
departure by the Ninth Circuit from the standard set forth by
the Supreme Court in Buckley and MCFL, they were just that.

* * * * *

Against this overwhelming weight of (and, in the case of
the Supreme Court decisions, dispositive) authority, the FEC
argued before the district court and before us the concededly
``novel'' position, . . . that, even though the Christian
Action Network's advertisements did not include any explicit
words or language advocating Governor Clinton's defeat, the
expenditure of corporate funds for these advertisements
nonetheless violated section 441b because, considered as a
whole with the imagery, music, film footage, and voice
intonations, the advertisements' nonprescriptive language
unmistakably conveyed a message expressly advocating the
defeat of Governor Clinton. That is, the FEC argued the
position that ``no words of advocacy are necessary to
expressly advocate the election of a candidate,'' . . .

* * * * *

Stripped of its circumlocution, the FEC's argument was (and
is) that the determination of whether a given communication
constitutes ``express advocacy'' depends upon all of the
circumstances, internal and external to the communication,
and could reasonably be considered to bear upon the
recipient's interpretation of the message. The right to
engage in political speech would turn on an interpretation of
the ``imagery'' employed by the speaker. . . . It would
depend upon the perceived ``charge'' of the ``rhetoric'' used
. . . and upon the timing of the communication . . . The
right would be contingent upon one's mere identity or
association, as the following exchange between the court and
FEC counsel reveals.
``The Court: And [the advertisement is] only bad if you
believe that the voters disagree with the message about
homosexuality there. For those voters who agree with the
message, why is it a negative ad?
``Mr. Kolker: Well, I think, I think it's clear to a
reasonable person that the Christian Action Network thinks
these things are bad . . . I think that the ardent gay rights
activist would view this ad as a message from the Christian
Action Network to vote against Clinton. That they believe his
views on homosexuals are wrong. . . .
``The Court: That's only if you bring to the table an
understanding of what the Christian Action Network is:

* * * * *

``Mr. Kolker: It's a self-defined group using the label
Christian Action.''
The FEC thus argues that ``[w]hen included as part of the
message, the speaker's identity becomes part of the
communication itself, and what matters is not what the viewer
or the courts will infer about the speaker's intent, but what
a reasonable person, informed about the speaker's identity
(and thus potential biases and passions), understands the
communication to mean.''
. . . Under certain circumstances, as the following
exchange shows, the right could even be withdrawn merely
because the speaker expresses disagreement with a candidate
over a particular issue:
``Mr. Kolker: . . . If all you're doing is mentioning an
issue to say that their candidate's position on it is wrong,
it is not a real discussion of the issue, the focus of the ad
is the candidate----
``The Court: --So you can't link the candidate with the
issue, that's what----
``Mr. Kolker: No, I think you can but not if all you're
doing is saying the candidate believes X and X is the wrong
position. . . .

* * * * *

``Mr. Kolker: [I]t's clear from the ad that the way that
final [rhetorical] question [in the television ad] forcefully
is spoken, that from the speaker's perspective, it's the
wrong vision. And what I'm saying is the candidate has a
position, he's wrong on the position. There's no real issue
discussion. It's just an attack on the candidate.'' Oral Arg.
Trans. at 15-16.
To quote the following passage, in which the FEC
articulates some of the multitude of factors that would be
considered under its interpretation in determining whether a
given communication was prohibited, is to appreciate the
breadth of power that the FEC would appropriate to itself
under its definition of ``express advocacy'':
``[E]xpress electoral advocacy [can] consist[ ] not of
words alone, but of the combined message of words and
dramatic moving images, sounds, and other non-verbal cues
such as film editing, photographic techniques, and music,
involving highly charged rhetoric and provocative images
which, taken as a whole, sen[d] an unmistakable message to
oppose [a specific candidate].''
Opp. Mem. at 8. This is little more than an argument that
the FEC will know ``express advocacy'' when it sees it.
C.
The FEC's enforcement action against the Christian Action
Network in this case brings into relief the extent to which,
under the FEC's interpretation of ``express advocacy,''
political speech would become hostage to the vicissitudes of
the Commission, because, although a viewer could interpret
the Network's video as election advocacy of the defeat of
Governor Clinton, another viewer could just as readily
interpret the video as issue advocacy on the question of
homosexual rights. Indeed, the commercial and advertisements
that the FEC here contend fall squarely within its regulatory
purview are precisely the kinds of issue advocacy that the
Supreme Court sought to protect in Buckley and MCFL; and the
FEC's interpretation of these advertisements is exactly that
contemplated by the Court when it warned of the
constitutional pitfalls in subjecting a speaker's message to
the unpredictability of audience interpretation, . . .

* * * * *

Yet, the FEC would have us confer power upon it to regulate
these advertisements because, in its assessment, ``[t]o the
ordinary viewer in 1992, the CAN video unmistakably
encourages voters to defeat Bill Clinton. The video
communicates the following: A group explicitly aligning
itself with Christian, heterosexual, and traditional family
values graphically depicts a specific presidential candidate
supporting homosexual men vividly asserting their sexual
preferences; the message attacks Clinton's moral judgment and
alleged policy agenda; those positions involve steps that
only a federal elected official could take; the message is
delivered to viewers who live in states where Governor
Clinton has no contemporaneous authority to set policy; the
message is televised shortly before the presidential
election; and the message employs powerful symbolism and
persuasive devices unique to the medium of video. . . . The
video admittedly contains no literal phrase such as ``Defeat
Bill Clinton.'' But it contains a special kind of charged
rhetoric and symbolism that exhorts more forcefully and
unambiguously than mere words.''
Appellant's Br. at 37-38. Or, because, in the words of the
``expert'' whom the FEC retained to assist it in its action
against the Christian Action Network.
``[T]his 30 second television spot expressly advocated the
defeat of candidates Clinton and Gore in the upcoming
presidential general election. It did so by employing the
techniques of audio voice-overs, music, visual text, visual
images, color, codewords, and editing. In their totality,
these techniques said voters should defeat Clinton and Gore
because these candidates favor extremist homosexuals and
extremist homosexuals are bad for America.''

* * * * *

. . . the FEC's position was based not only ``on a
misreading of the Ninth Circuit's decision in Furgatah,'' but
also on a ``profound misreading'' of the Supreme Court's
decision in both Buckley and MCFL.
From the foregoing discussion of Buckley and MCFL, it is
indisputable that the Supreme Court limited the FEC's
regulatory authority to expenditures which, through explicit
words, advocate the election or defeat of a specifically
identified candidate. In the portion of Buckley in which the
Court addresses the overbreadth of the Federal Election
Campaign Act and adopts its limiting construction of section
608(e)(1)'s term ``relative to,'' the Court does not even use
the phrase ``express advocacy,'' upon the purported
``ambiguity'' of which the FEC builds its diffuse definition.
In this most important portion of the opinion, cf. DNC Br. at
5, the

[[Page S984]]

Court only refers to ``explicit words of advocacy,''
``express terms'' and ``express words of advocacy.'' See
Buckley, 424 U.S. at 43-44. It is not until the Court
interprets the statutory term ``expenditure'' in section
434(e) to include the same limitation as in section
608(e)(1), forty pages later in the opinion, that the Court
even uses the phrase ``express advocacy,'' see id. at 80. But
even there, the Court confirms through footnote 108's cross-
reference to footnote 52, in which the Court lists the kinds
of words that would warrant exercise of the FEC's regulatory
authority, that it meant by the phrase ``express advocacy''
nothing more or less than ``express words of advocacy.'' In
other words, the Court itself in Buckley confirmed that it
intended the phrase ``express advocacy'' simply as a
shorthand for the ``explicit words of advocacy of election or
defeat'' ``of a clearly identified candidate for federal
office,'' which it had held earlier in the opinion were
required in order to save the Act from constitutional
infirmity.
Were this alone not sufficient to establish that the Court
meant by ``express advocacy'' ``express words of advocacy,''
then the Court's subsequent discussion in MCFL removes all
doubt. There, because it was interpreting the statutory term
``expenditure,'' the Court cited to Buckley's discussion of
section 434(e), rather than to that case's discussion of
section 608(e)(1), and used the shorthand phrase ``express
advocacy.'' See MCFL, 479 U.S. at 248-49. The Court then went
on to define ``express advocacy,'' again through citation to
its footnote 52 in Buckley, to mean ``express words of
advocacy.'' See id. at 249 (citing Buckley, 424 U.S. at 44
n.52). It even stated that in Buckley it had concluded ``that
a finding of `express advocacy' depend[s] upon the use of
language such as `vote for,' `elect,' `support,' etc.'' MCFL,
479 U.S. at 249 (citing Buckley, 424 U.S. at 44 n.52)
(emphasis added).
The FEC is fully aware that the Supreme Court has required
explicit words of advocacy as a condition to the Commission's
exercise of power, as evidenced by its own dissembling before
this court.

* * * * *

The FEC argues throughout its submissions that the Supreme
Court ``never suggested that communications can constitute
express advocacy only if they include specific words from a
special list.'' Appellant's Br. at 23. This is true, but it
is a red-herring. Most certainly, the Court never said this.
But, just as certainly, the Court never suggested that
communications with no words of advocacy at all can
nonetheless be considered ``express advocacy.'' In fact, as
we show, it actually held precisely the opposite.

* * * * *

The agency even goes so far as to quote the very sentence
from page 80 of Buckley in which the Court uses the phrase
``express advocacy'' and defines that phrase in the
sentence's footnote 108 to mean ``express words of
advocacy,''

* * * * *

The FEC resorts to the same slight-of-hand in its
discussion of the Ninth Circuit's decision in Furgatch.
According to the FEC, the court of appeals in that case said
that ``courts must take care to avoid an unnecessarily narrow
application of express advocacy to prevent `eviscerating the
Federal Election Campaign Act.''' Appellant's Br. at 18. In
fact, what the Ninth Circuit said was that ``[a] test
requiring the magic words `elect,' `support,' etc., or their
nearly perfect synonyms for a finding of express advocacy
would preserve the First Amendment right of unfettered
expression only at the expense of eviscerating the Federal
Election Campaign Act.'' 807 F.2d at 863. In light of our
discussion herein, the difference is of enormous
significance.

* * * * *

That the Commission knows well the Court's holdings in
Buckley and MCFL is further confirmed by the agency's
subsequent action in Furgatch, which we referenced supra at
8-11. Because Furgatch, despite its narrow holding, does
include broad dicta which can be read (or misread) to support
the FEC's expansive view of its authority, the agency
vigorously opposed certiorari in the case. Wishing to have
the opinion preserved intact, the Commission in its
submissions there, in contrast to its submissions before this
court, quoted Buckley as ``requir[ing] `explicit words of
advocacy of election or defeat of a candidate.''' . . . The
Commission even took the position that Furgatch did, as we
noted above, interpret the Federal Election Campaign Act's
corporate disclosure statutes as ``narrowly limited to
communications containing language `susceptible to no other
reasonable interpretation but as an exhortation to vote,'''
. . . Moreover, the FEC argued to the Supreme Court that
Furgatch was fully consistent with Buckley and MCFL precisely
because the opinion focused on the specific language of
Furgatch's advertisement and concluded that express advocacy
existed only because the advertisement ``explicitly
exhorted'' voters to defeat then-President Carter. Thus,
there is no doubt the Commission understands that its
position that no words of advocacy are required in order to
support its jurisdiction runs directly counter to Supreme
Court precedent.

* * * * *

. . . the Supreme Court has unambiguously held that the
First Amendment forbids the regulation of our political
speech under such indeterminate standards. ``Explicit words
of advocacy of election or defeat of a candidate,'' ``express
words of advocacy,'' the Court has held, are the
constitutional minima. To allow the government's power to be
brought to bear on less, would effectively be to dispossess
corporate citizens of their fundamental right to engage in
the very kind of political issue advocacy the First Amendment
was intended to protect--as this case well confirms.

Mr. McCONNELL. I yield the floor.
Ms. SNOWE. Madam President, I am delighted to yield 20 minutes to my
colleague from Wisconsin, Senator Feingold. I want to commend him for
his perseverance and tenacity to ensuring that campaign finance reform
reached the floor.
The PRESIDING OFFICER (Mr. Faircloth). The Senator from Wisconsin is
recognized.
Mr. FEINGOLD. Thank you, Mr. President. I thank the Senator from
Maine.
Let me first say that it was an interesting comment by the Senator
from Kentucky that those of us trying to pass campaign finance reform
don't like Buckley v. Valeo. I don't have strong feelings on liking or
not liking Supreme Court cases. I just consider them the law of the
land.
In this case, instead of taking the route that some people would like
me and others to take of supporting a constitutional amendment to
achieve campaign finance reform, something I vigorously opposed, I have
instead, working with Senator McCain and others, chosen to find a way
to pass a bill that is within the Court's rulings and holdings in
Buckley v. Valeo.
So I happen to think that is the controlling law. And the suggestion
that somehow we don't consider that to be a valid case is simply wrong.
Our efforts for 3 years have consistently been to craft a bill that the
United States Supreme Court would say is constitutional in every
respect. In fact, the Senator from Kentucky, after years of trying to
suggest that the voluntary spending limits and the soft money ban are
unconstitutional, now is only focusing on suggesting that a
redefinition of phony issue ads is somehow unconstitutional. I think
that is not at all an established proposition. I might add, I think our
efforts here on this bill, with the help of the Snowe-Jeffords
amendment, are getting stronger. Every day we are getting a little
stronger on this bill, and it is a good feeling.
So it is my pleasure to rise today to speak in support of the
amendment that the distinguished Senators from Maine and Vermont have
offered. It reminds me of the tremendous help that the Presiding
Officer, the other Senator from Maine, gave us when she had some ideas
about how we could improve our bill. This is how you get a good bill.
People with good ideas come together and gradually it gets improved,
you gain support, until the point where it becomes obvious not only
that a majority of the body supports the bill, which we have already
achieved, but obviously it is in the interests of the people of this
country that we simply get on with the business of the country and pass
it. So I am a cosponsor of that amendment that has been offered, along
with Senators Levin and Lieberman on our side of the aisle and Senators
McCain, Thompson, Collins and Chafee on the Republican side.
When the debate on campaign finance reform reached a stalemate last
fall, Senators Snowe and Jeffords indicated they did intend to continue
through the winter months looking for a solution to the deadlock. Those
were not idle words. They were true to their word.
The Snowe-Jeffords amendment that has taken shape over the past 2
weeks is a sincere effort to address the two primary sticking points
that have caused our efforts to be delayed: alleged first amendment
concerns with the provisions of our bill dealing with issue advocacy
and express advocacy, and the use of corporate and union treasury money
for what amount to campaign attack advertisements in the closing days
of the campaign.
Let me talk for a moment how the Snowe-Jeffords amendment navigates
the difficult political and constitutional shoals that face us in this
debate.
The first thing the amendment does is more clearly define a category
of communications in the law. We call them electioneering
communications.

[[Page S985]]

These electioneering communications are communications that meet three
tests: First, they are made through the broadcast media, radio and
television, including satellite and cable. Second, they refer to a
clearly identified official candidate--in other words, they show the
face or speak the name of the candidate. And third, they appear within
60 days of a general election or 30 days of a primary in which that
candidate is running.

The Snowe-Jeffords amendment provides that for-profit corporations
and labor unions cannot make electioneering communications using their
treasury funds. If they want to run TV ads mentioning candidates close
to the election, they must use voluntary contributions to their
political action committees. We firmly believe that this approach will
withstand constitutional scrutiny because corporations and unions have
for a very long time been barred from spending money directly on
Federal elections.
The Senator from Kentucky suggested we lack case law for these
propositions, but the Supreme Court upheld the ban on corporate
spending in the Austin v. Michigan Chamber of Commerce case. Mr.
President, it is noted that a Michigan regulation that prohibited
corporations from making independent expenditures from treasury funds
prevented ``corruption in the public arena: the corrosive and
distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have little or
no correlation to the public's support for the corporation's political
ideas.'' According to the Court, the Michigan regulation ``ensured that
the expenditures reflect actual public support for the political ideas
espoused by the corporations.''
We are merely saying through this amendment that actual public
support, shown by voluntary contributions to a PAC, must be present
when corporations and unions want to run ads mentioning candidates near
in time to an election.
The Snowe-Jeffords amendment goes on to permit spending on these
kinds of ads by nonprofit corporations, if they are registered as
501(c)(4) advocacy groups, and other unincorporated groups and
individuals. The rules about corporations and unions do not apply in
the same way to these groups, but the amendment, but it makes one
requirement. It requires disclosure of the groups' large donors whose
funds are used to place the ads once the total spending of the group on
the electioneering communications reaches $10,000. It only applies if
the total spending over a total amount of $10,000.
A few things should be noted about the disclosure requirement that
entities other than unions and for-profit corporations are subject to
if they engage in these kinds of electioneering communications. The
disclosure required here is not burdensome; it simply requires a group
placing an ad to report the spending to the FEC within 24 hours, and to
provide the name of the group, or of any other group that exercises
control over its activities, and of the custodian of records of the
group, and finally of the amount of each disbursement and the person to
whom the money was paid.
Second, this disclosure requirement is triggered by the spending of
$10,000 or more on these kinds of ads. If a small group that spends
only a few thousand on radio spots wants to do that, and they stay
under $10,000, they will never have to report a thing. There is no new
requirement there.
Third, the disclosure of contributors required is really quite
limited. It does not require all contributors of all amounts to be
disclosed. Only large donors who contribute more than $500 must be
identified, and they have to be identified only by name and address.
And a group that received donations from a wide variety of purposes,
including some corporate or labor or treasury money, can set up a
separate bank account to which only individuals can contribute, pay for
the ads out of that account, and then they only have to disclose only
the large donors whose money is put in that account. So any individual
who doesn't want to be disclosed can easily ask that the group not
spend his or her money on that kind of activity.
The net result will be that the public will learn through this
amendment who the people are who are giving large contributions
to groups to try to influence elections. If a group is merely a shell
for a few wealthy donors, as we suspect that many of the groups who ran
the nastiest ads in 1996 were, then we will know who these big money
supporters are and we will be in a lot better position to assess their
real agenda. On the other hand, if an established group with a large
membership of small contributors under $500 wishes to engage in this
kind of activity, it doesn't have to disclose any of its contributors
under this amendment because it can pay for the ads freely from small
donor money routed to the special bank account for individual donors.

Mr. President, I believe these disclosure provisions will pass
constitutional muster. But the Senator from Kentucky and also the
Senator from Washington earlier in the debate today have argued that
even these reasonable disclosure requirements somehow violate the
Constitution, and they cite the case of NAACP v. Alabama from 1958.
That is a very important case in the history of our country and the
history of the first amendment, and one with which I fully agree, but
the conclusion that the Senator from Kentucky draws from it with
respect to the Snowe-Jeffords amendment is simply wrong.
At the height of the civil rights struggle, the State of Alabama
obtained a judicial order for the NAACP to produce its membership
lists, and fined it $100,000 for failing to comply. The NAACP
challenged that order and argued that the first amendment rights of its
members to freely associate to advance their common beliefs would be
violated by the forced disclosure of their membership lists. They
pointed out many instances where the revealing of the identities of its
members exposed them to economic reprisals, loss of unemployment, and
even threats of physical coercion. The Court held that the State had
not demonstrated a sufficient interest in obtaining these lists that
would justify the deterrent effect on the members of the NAACP
exercising their rights of association.
Now, Mr. President, everyone in this body should know that the Snowe
amendment is totally different from what the State of Alabama tried to
do in the NAACP case. The Snowe amendment doesn't ask for any
membership lists. The Senator from Washington stood up and read quotes
about how the NAACP case doesn't allow a requirement that a group
disclose its membership list, but the Snowe amendment doesn't do
anything of the kind. It is a simple red herring with regard to what we
are asking in the Snowe amendment. All the Snowe amendment does is ask
for is the very limited disclosure of the names and addresses of large
contributors to a specific bank account used for the single purpose of
paying for certain kinds of electioneering communications.
So, Mr. President, contrary to the claim that this is somehow like
the NAACP case, most membership groups won't have to disclose anything
if they receive sufficient small donations to cover their expenditures
on these types of communications. And even if contributors want to give
more, they don't have to be identified, as long as their money is not
used for the kinds of ads that would be subject to this kind of
disclosure.
Finally, the disclosure requirement can be avoided altogether by
crafting an ad that does not specifically refer to a candidate during
the short window of time right before an election. This is nothing like
asking the NAACP or the NRA or anyone else to divulge their complete
membership lists. This is a false analogy.
Mr. President, the Supreme Court has shown much more willingness to
uphold disclosure requirements in connection with election spending
than the Senator from Kentucky has been willing to recognize so far in
this debate. In Citizens Against Rent Control v. the City of Berkeley,
a 1981 case, for example, the Court struck down a limit on
contributions to committees formed to support or oppose ballot a
measure. But the court, Mr. President, noted specifically:

The integrity of the political system will be adequately
protected if contributors are identified in a public filing
revealing the amounts contributed; if it is thought wise,
legislation can outlaw anonymous contributions.

Mr. President, it is worth noting that the opinion in that case was
by Chief

[[Page S986]]

Justice Warren Burger and the vote was 8-1. The only dissenter, Justice
White, thought the limits themselves on contributions should be upheld.
So with regard to this issue, it was essentially unanimous.
In U.S. v. Harriss, the Court upheld disclosure requirements for
lobbyists, despite the alleged chilling effect that those requirements
might have on the right to petition the Government. Of course, the
Buckley Court itself, which the Senator from Kentucky frequently refers
to, upheld disclosure requirements for groups who make independent
expenditures.
Now, of course, the Court will have to analyze the Snowe amendment
when it gets there and the type of communications that trigger it and
determine if they pass constitutional muster. I will not proclaim that
there is no argument to be made at all that this provision is
unconstitutional. Of course there is, and I am sure groups like the
National Right to Life Committee will make it. But to say that there is
no chance that this provision will be upheld, as the Senator from
Kentucky has said, is just not right. There is ample and substantial
constitutional justification and precedent for this provision.
As the Brennan Center for Justice wrote in its letter analyzing the
Snowe-Jeffords amendment:

Disclosure rules do not restrict speech significantly.
Disclosure rules do not limit the information that is
conveyed to the electorate. To the contrary, they increase
the flow of information. For that reason, the Supreme Court
has made clear that rules requiring disclosure are subject to
less exacting constitutional strictures than direct
prohibitions on spending . . .. There is no constitutional
bar to expanding the disclosure rules to provide accurate
information to voters about the sponsors of ads indisputably
designed to influence their votes.

Mr. President, it is also important to note that the Snowe-Jeffords
amendment contains provisions designed to prevent the laundering of
corporate and union money through nonprofits. Groups that wish to
engage in this particular kind of advocacy must ensure that only the
contributions of individual donors are used for the expenditures.
Because the prohibition in the Snowe-Jeffords amendment is limited to
unions and corporations spending money from their treasuries on these
kinds of ads, many of the concerns that opponents of McCain-Feingold
voiced about the effect of the bill on speech by citizens groups are
eliminated. Keep that in mind. One of the things people claimed was the
real problem of McCain-Feingold--there has been sort of a shifting
bottom line of what the real problem is--but that portion has been
modified in Snowe-Jeffords.
Senators who oppose this amendment must be willing to stand on two
positions now that I think are both unsupportable. First, Mr.
President, those who still oppose McCain-Feingold, if it is amended by
Snowe-Jeffords, must defend the rights of unions and corporations using
treasury money--not citizens groups like the National Right to Life
Committee or the Christian Coalition or the Sierra Club--to run
essentially campaign advertisements that dodge the Federal election
laws by not using the magic words ``vote for'' or ``vote against'' or
to finance those ads through other groups. So that is the conclusion:
Corporations and unions, apparently, should just be allowed to do this
freely, despite the almost unanimous complaints by Members of the
Senate with regard to this question.
Secondly, those who are still holding out, even though they represent
a minority of the Senate, in terms of supporting McCain-Feingold as it
will be amended, argue that the public is not entitled to know, in the
case of advocacy groups that run these ads close to an election, what
the identities of these people are. They say that they should not be
known to those who are about to vote. Many opponents of McCain-Feingold
have trumpeted the virtues of full disclosure and say that is what we
need--disclosure; not McCain-Feingold. I have, at times, doubted how
serious they were about disclosure because they would never acknowledge
the important advances our bill provides with regard to disclosure.

Now, when we vote on the Snowe-Jeffords amendment, we will see how
sincere the opponents of this bill are about the importance of
disclosure, because the Snowe-Jeffords amendment requires nothing more
of advocacy groups than full disclosure. In fact, it requires a lot
less because the groups only have to make these disclosures if they run
these ads close to an election and if they spend more than $10,000 on
those electioneering communications.
Mr. President, our agreement on the Snowe-Jeffords amendment means
that a clear majority of this Senate supports bipartisan campaign
finance reform. Further, we will vote as a block to defeat any ``poison
pill'' offered by opponents. This agreement puts the onus of killing
reform, if that is what happens, back where it belongs--on those who
would put a partisan attack on unions over the greater good of
abolishing soft money.
I urge my other colleagues on the Republican side to join this effort
and recognize, as Senators Snowe and Jeffords have done, along with
Senators Thompson, Collins, Specter, and the original author, Senator
McCain, before them, and that a strong majority of the American people
understands, that the McCain-Feingold bill is a balanced, reasonable,
and fair step toward reform and that we can achieve that reform if we
put our heads together and work out our differences.
Once again, Senator McCain and I are more than willing to talk to
anyone who sincerely wants reform or to talk about changes to our bill
that will bring us closer to the 60 votes we need to get past the
filibuster that opponents have promised. The fruitful negotiations that
have produced the Snowe-Jeffords amendment have shown that we are
serious about passing McCain-Feingold this year.
Mr. President, with that renewed invitation, I yield the floor.
Mr. McCONNELL. Mr. President, I yield such time as he may need to
Senator Grams from Minnesota.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. GRAMS. Mr. President, throughout Minnesota's history, its
residents have been considered among America's most civic-minded
citizens, who are interested in public affairs and concerned about how
government decision-making affects their daily lives. I have been well-
served by the counsel of thousands of Minnesotans who have expressed
concerns about high taxes, balancing the budget, and, most recently,
U.S. military involvement in Iraq.
During the 105th Congress, I have also heard from many Minnesotans
who are concerned over the reports of alleged illegal or improper
campaign contributions to the Democratic National Committee and White
House during the 1996 campaign cycle. These reports have raised the
perception among some Americans that access and votes can be bought in
Washington and that the system for financing our federal campaigns is
corrupt and ``broken.''
As the Senate considers campaign finance reform legislation, I am not
surprised that many constituents have contacted me about this issue--
but out of great concern for its potential impact upon their First
Amendment right of free speech guaranteed by the U.S. Constitution.
Regrettably, the consideration of the McCain-Feingold amendment is not
the first time that Congress appears to have misinterpreted the will of
the people.
Mr. President, I recently received a letter from President Clinton
concerning the McCain-Feingold legislation. In his letter, the
President urged my support for this measure because it would ``make our
democracy work better for all Americans.'' Many of my colleagues
received a similar letter last fall from the President in which he
encouraged Congress to work with him and ``restore the public trust''
by supporting the modified McCain-Feingold bill.
As someone who has heard first-hand of the public's growing mistrust
of their government, I strongly agree with the President's belief that
the people's trust in their government should be restored and their
participation in our democracy encouraged. However, I respectfully
disagree with the President's recommended method for achieving these
goals--through passage of new campaign finance laws.
I believe the people's faith in our democracy can be restored through
greater enforcement of our existing laws, rather than passage of new
laws. Congress should also require frequent and

[[Page S987]]

fair disclosure of every contribution, and allow all Americans to
participate in the political process. These measures, not new limits or
government controls, will restore the public trust and allow Americans
to participate in our democracy.
Most importantly, Congress should ensure that one of our country's
most fundamental freedoms, the right to speak freely and openly in our
society, is preserved for future generations of Americans. I believe
Congress should focus its attention on preserving the First Amendment,
which has always been the basis for active citizen participation in our
political process.
The First Amendment ensures that, among other things, average
Americans can participate in the democratic process through publicly
disclosed contributions to campaigns of their choice. It also allows
Americans to freely draft letters to the editor, distribute campaign
literature, and participate in rallies and get-out-the-vote drives.
Minnesota has a long history of its citizens becoming engaged in many
of these activities during each election cycle.
Mr. President, we had a lengthy and spirited debate last fall over
the McCain-Feingold legislation, in which many of our colleagues on
both sides of the issue participated. The Senate wisely voted to reject
this attempt to direct attention away from the reports of alleged
illegal or improper campaign contributions during the 1996 campaign
cycle. In taking this action, the Senate sent a message to the
electorate that it will work to preserve the rights of Americans to
participate in the democratic process and restore the public's trust in
their government.
Despite this clear message sent by the Senate, and although many
Americans continue to express opposition to ``reform'' efforts such as
the McCain-Feingold bill, the President and some of my colleagues
forced Congress, through various delaying tactics, to spend valuable
legislative time revisiting this issue again this year.
Mr. President, as I noted last year, proponents of the modified
McCain-Feingold bill should be commended for excluding provisions
intended to limit candidates spending, requirements for reduced
broadcasting time, and the ban on political action committees. However,
this measure continues to suppress the rights of Americans to
communicate their ideas and express their views. Ultimately, it will
control, rather than encourage, greater participation in the democratic
process.
And as a couple from Hastings, Minnesota recently wrote to me about
the pending McCain-Feingold bill, ``It would be used as a tool to
silence all criticism and disagreement by opponents of whatever
government regime is in power in Washington at a particular time.''
First, the McCain-Feingold proposal continues to be premised upon the
belief that there is too much money spent on American elections. If we
accept this assumption, then Congress has decided to assert
questionable authority to suppress the rights of Americans to become
involved in the political process and make their voices heard. In fact,
the belief that there is government justification for regulating the
costs of political campaigns was rejected by the Supreme Court in the
landmark case of Buckley versus Valeo.
Second, the McCain-Feingold proposal again includes a new and
expanded statutory definition for ``express advocacy'' that would place
additional restrictions on advocacy groups' political communications.
As my colleagues know, the Supreme Court established in Buckley a
``bright line'' test for protected speech which stated that a political
communication must expressly advocate the election or defeat of a
clearly identified candidate using such key words as ``vote for''
``elect'' or ``vote against'' before it would be subject to federal
regulation.
Third, the McCain-Feingold amendment places new restrictions upon the
ability of national parties to support state and local party
activities. Rather than pursue a suspect expansion of government
control of national parties, we should recognize that political parties
enjoy the same rights as individuals to participate in the democratic
process.
For nearly two decades, political parties have been allowed to raise
money for party-building and similar activities without limits on the
size of contributions.
Additionally, the Supreme Court decision in Colorado Republican
Federal Campaign Committee v. FEC, in which the Court found that
Congress may not limit independent expenditures by political parties,
makes it questionable whether these restrictions would be
constitutional.
Finally, the McCain-Feingold amendment does not adequately protect
the right of Americans to participate in the democratic process without
fear of coercion.
Despite the Supreme Court decision in Communications Workers of
America v. Beck almost ten years ago, millions of Americans still have
portions of their paychecks taken and used for political purposes for
which they may disagree, without their knowledge or consent.
I believe forcing an individual to make compulsory campaign
contributions is contrary to our constitutional form of government and
the First Amendment freedoms we enjoy as citizens.
For these reasons, I support the Majority Leader's decision to offer
S. 1663, the ``Paycheck Protection Act,'' as the underlying bill.
This will allow individuals to regain control of their paychecks,
avoid coercion, and exercise their political freedoms.
And unlike the Beck provision contained within the McCain-Feingold
legislation, it would apply to all dues-paying employees. It would also
reduce unnecessary burdens placed upon employees by requiring an
employer to receive an individual's written permission before using his
or her dues for political purposes.
Mr. President, there has been some discussion that amendments may be
offered to reach a compromise between those who support the McCain-
Feingold legislation and others who support greater enforcement of our
existing laws.
While I believe compromise is an important part of legislating, I do
not believe the Constitution should be compromised simply to give the
public the impression that we are reacting to their concerns over
allegations of campaign finance irregularities and illegal fundraising.
I believe the American people deserve a full accounting and will
receive a full accounting of allegations of campaign finance law
violations in the 1996 campaign cycle. However, we should not forget
that the public's mistrust of their elected officials has not grown
from a lack of laws, but from the activities of those who may have
broken our existing laws.
Congress must not use violations of existing law to restrict
political speech and participation by those who abide by current law.
It is our responsibility to help safeguard the free speech rights of
Americans and their ability to participate in the democracy which they
have helped to create.
Thank you very much.
Mr. President, I yield the floor.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, I thank the distinguished Senator from
Minnesota. I listened carefully to his comments, and they were right on
the mark. I appreciate his support and contribution to this debate.
Mr. President, I see the distinguished Senator from Kansas on the
floor.
How much time do I have remaining?
The PRESIDING OFFICER. The Senator has 57 minutes and 47 seconds.
Mr. McCONNELL. I will not yield a specific amount of time. I will
just yield time to the distinguished Senator from Kansas.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. ROBERTS. Mr. President, I have spoken to this issue before.
Before I made very clear my respect and admiration for the
distinguished Senator from Kentucky as a stalwart defender of something
we call free speech. I want to thank him again for his stalwart
efforts. It seems to me that we have been focusing on this debate over
and over and over again on perception as opposed to what really is at
stake.
I can't imagine what I can add to this today under the circumstances,
and go on and on and on ad nauseam, to a certain extent, and I don't
mean to purger

[[Page S988]]

anybody's intent or their feelings about this, or even intimate that
this is not an important issue.
I would like to repeat a couple of things that I said before. At that
time I quoted Thomas Paine in Common Sense. It wasn't Common Cause. It
was Common Sense. Thomas Paine said, ``Tyranny, like Hell, is not
easily conquered.'' And I was speaking to a resolution that would have
defined free speech. We considered it certainly earlier in the session.
I then went on and gave quite a few quotes from American history and
people that everybody respects about the value of free speech. I talked
a little bit about the infamous Alien and Sedition acts. That was
mentioned by Senator Gorton, the distinguished Senator from Washington.
I think it has application in this legislation. I said at the time that
those acts were passed by a young country that had adopted but didn't
fully appreciate the first amendment rights of free speech. They were
passed because the Government did not like what some of its citizens
were saying about politics, politicians, and Government.
And, goodness knows, we have heard awful sorts of comments in regard
to this debate on both sides about the fact that people really do not
appreciate some of the criticism that we get in this business. The
Government was worried, of course, about national security. But it is
instructive to note that the Government's attempt to limit free speech
is like walking in a swamp, and we are, in fact, walking toward a swamp
in regard to the bill that we are considering. Your good intentions are
tugged and pulled from all sides. Abigail Adams, for example, urged the
passage of the acts to deal with Benjamin Franklin Bache, an editor who
had referred to her husband as ``old, querulous, bald''--well, she had
something there--``blind, crippled, toothless Adams.'' I don't think
anybody would appreciate that. Bache was arrested, but died before he
could be prosecuted, according to historians Jean Folkerts and Dwight
Teeter.
Twenty-five persons were charged under the sedition laws. Included
was one unlucky customer in a Newark tavern who staggered into the
sunlight to make a negative comment about John Adams' anatomy as the
President's carriage passed. My goodness, that might have some modern-
day application.
Only after the rights of American citizens to speak freely were
trampled by their Government did our young country come to appreciate
the real meaning of the first amendment.
James Madison and Thomas Jefferson objected to the attack on free
speech with their Virginia and Kentucky resolutions. Madison presented
the importance of free speech to democratic government. His argument
has great relevance to our discussion today, it seems to me, in regard
to this discussion as he drew the connection between free speech and
elections.
Listen to Madison:

Let it be recollected, lastly, that the right of electing
members of the government, constitutes more particularly the
essence of a free and responsible government. The value and
the efficacy of this right, depends on the knowledge of the
comparative merits and the demerits of the candidates for
public trust; and on the equal freedom, consequently of
examining and discussing these merits and demerits of the
candidates respectively.

That is the essence of free and also political speech. That is the
essence of the philosophy advanced by great philosophers like John
Milton, John Locke, and John Stuart Mill. If they were here to take
part in this debate, they probably couldn't or wouldn't believe it. The
concept of a marketplace of ideas is based on unfettered speech and
thought.
One of America's greatest jurists, Louis Brandeis, warned us to be
``most on guard to protect liberty when government's purposes are
beneficial . . . the greatest dangers to liberty lurk''--lurk, lurk--
``in insidious encroachment by men of zeal, well-meaning but without
understanding.''
Advocates of this resolution want us to believe the need for Congress
to limit campaign spending is so great that first amendment rights are
secondary. Further, they argue that limits on campaign spending are
really not limits on speech at all. We have gone over and over and over
again, back and forth, on the Buckley decision and the Supreme Court.

A restriction on the amount of money a person or group can
spend on a political communication during a campaign
necessarily reduces the quantity of expression by restricting
the number of issues discussed, the depth of their
exploration, and the size of the audience reached.
This is because virtually every means of communicating
ideas in our mass society requires the expenditure of money.
The distribution of the humblest handbill or leaflet entails
printing, paper, and circulation costs. Speeches and rallies
generally necessitate hiring a hall and publicizing the
event. The electorate's increasing dependence on television,
radio, and other mass media for news and information have
made these expensive modes of communication indispensable
instruments of effective political speech.

In Kansas, I tell my esteemed colleague from Kentucky, a full-page
advertisement in the Topeka Daily Capital cost $4,400. One 30-second TV
ad to reach across the State costs more than $33,000. I know. I was in
a Senate race, obviously. Even speech via the Internet, or the Postal
Service, requires the expenditure of resources.
If we adopt this kind of legislation, and it is ratified--or, that
was the earlier resolution. Obviously, this wouldn't have to be
ratified by the States. What will you tell the business owner who
wishes to petition his government for redress of grievances, to
criticize a campaign of Pat Roberts, Sam Brownback, or Mitch McConnell,
or to urge election of another candidate? Will we see that free
political speech is only a half-page advertisement? Because I think the
limit is $10,000. We wouldn't spend $10,050. Maybe $9,000 is OK. But we
say free speech only applies to 15 seconds at the TV station. Who is
going to administer all of this? The FEC? Really. We can't even get
decisions on a timely basis.
The thought occurs to me, come to think of it, that the distinguished
Secretary of Agriculture, Dan Glickman, a good friend and colleague of
mine--was it 4 or 6 years ago? I think it was 6 years ago, or maybe 8
years ago. He had an opponent who was very ``brain noisy.'' That is
probably not the right way to put it--very ``vigorous'' in his
campaign. And a local cable distributor, a local cable TV company,
didn't like the way Dan voted on an issue directly affecting his
future. It was a telecom issue in the House. Every hour on the hour he
just gave him unmitigated grief about it, including a lot of other
things that had nothing to do with the legislation. I don't know
whether Dan filed the inquiry, or the charge, or the complaint with the
FEC after that election, or whatever, but, clearly, this was out of
bounds. The FEC in its usual, expeditious manner, I think about 2 or 3
months ago, finally got around to a 6- or 8-year-old case, and made no
decision.
So this leads me to question the distinguished Senator. Who is the
first amendment for? To be more accurate, if Congress were to act on
the principle of the first amendment uniformity, which the proponents
of this legislation would do, it would not discriminate against the
political speech of some speakers in favor of others. First amendment
uniformity would mean that John Q. Public gets the same treatment as
the highly paid, vastly influential Joe Anchorman, or the cable
operator, or the TV anchorman or the editorialist, or the radio
editorialist, or the publisher, or the editor of a newspaper? It might
guide campaign ``reform'' legislation if the following resolution were
adopted:

Whereas the First Amendment to the Constitution of the
United States says in pertinent part that ``Congress shall
make no law abridging the freedom of speech, or of the
press,'' and
Whereas the First Amendment makes no distinction between
the freedom of speech and the freedom of the press,
Now Therefore Be It Resolved that no campaign reform
proposal shall be enacted that treats Joe Anchorman's
political speech more favorably than John Q. Public's.
This obviously is not a draft resolution that I think the supporters
of the legislation would adopt. But, is the first amendment for
everyone equally, or some persons or institutions entitled to special
treatment for their political speech? Is John Q. Public entitled to the
same first amendment treatment as Joe Anchorman, or is Mr. Anchorman
entitled to special treatment because he delivers the news?
Here is the question I have for the distinguished Senator: What
happens if John Q. Public wants to express issue advocacy and then says
he is John Q. Anchorman? Say somebody solicits a

[[Page S989]]

group of people from a list of migrant workers, the American Farm
Bureau, Kansas Wheat Growers, the wheat growers of, say, North Dakota,
or of Common Cause, or the tobacco growers of Kentucky. I know that is,
I guess, politically incorrect. Obviously, they couldn't start a
newspaper. It might go up in smoke. It might be regulated by the FDA.
But, having said that, say that they sell the stock at $100 a crack,
$1,000, and they start a newspaper. My dad was an old newspaperman. I
am an old newspaperman. I am a journalist. That is what it says in the
bio when you read about Roberts; that he is an unemployed newspaperman.
So, to start a newspaper, all you needed was a hat rack and a hat. A
newspaper? No. Not a newspaper. You could print--and a typewriter.
Those are the old days--and a subscription list. You don't even need,
if you have the money, an advertisement. Well, you don't need a hat
rack anymore. You don't need a hat. You don't need a typewriter. You do
need a subscription list. If you know some nice ladies that work in an
offset shop, you can have your own newspaper. Say you have a bunch of
thousand-dollar contributors and you want to start your own newspaper.
The Common Cause Daily News is published every week in Kansas. That is
a newspaper. They are not affected by this legislation. I want to know,
what is a newspaper anyway? What is the definition of a newspaper?
Volume, 1, 2, 3, 4, and they started it for 6 months. What about an
editorial announcer on a TV station? What about the situation with Dan
Glickman who had no redress? I am not saying whether Dan was right or
wrong. By the way, that race did not affect the current incumbent who
didn't defeat Mr. Glickman. I think not everybody in the world gets the
chance to be a Secretary as a consequence. But Dan is enjoying that and
doing an outstanding job.
What is a newspaper? Where are the loopholes? Where does John Q.
Public become John Q. Anchorman? How do we distinguish?
Mr. McCONNELL. I say to my friend from Kansas that the example he
cited, a cable owner expressing himself without limit about the
relevant merits of former Congressman Glickman, would be entirely
exempt from anything we are considering here today and entirely current
law.
Let me read a short provision. This is from the Federal Election
Campaign Act of 1974.

The term ``expenditure'' does not include a news story,
commentary, or editorial--which is what was happening on that
cable station--or editorial distributed for the facilities of
any broadcasting station, newspaper, magazine, or other
periodical, or publication unless such facilities are owned
or controlled by political party, or political committee, or
candidate.

So, I say to my friend from Kansas, to the extent that proposals like
Snowe-Jeffords put groups in a position where they would have to
disclose significant numbers of their membership and/or donors as a
precondition for criticizing or expressing themselves in proximity to
an election, the perfect outlet would be to go into the newspaper
business.
I am not suggesting that we put restrictions on newspapers. I don't
want to put restrictions on citizens, which is what this debate is all
about today. But the first amendment applies to everybody, not just to
the press. We get the impression reading the editorials on this issue
across the country that the first amendment is the sole province of the
press. In fact, the courts have been quite clear about this; it applies
to all of us.
So I would say my friend has put his finger right here on a good way
around this growing regulatory environment that is being proposed. Just
go into the newspaper business and you are free of it all. You can go
out and trash whomever you want. You are not going to have to be
regulated by the FEC or anyone else. Have at it.
And my guess is there would be a proliferation of so-called
newspapers under this.
Mr. ROBERTS. We are going to have a lot of newspapers. We are going
to have a lot of commentators. We are going to have a lot, under the
Snowe-Jeffords amendment, of ``news stories, commentaries and stories
distributed under the facilities of any broadcasting station [that] are
exempt from its reporting requirements.''
What about the Internet? What about the Internet? Does the
distinguished Senator have a view in that regard?
The reason I ask is, just today, like every Senator, you know, you
check the Internet and you check your e-mail and all of that. On the
Internet, on somebody's web page, there was sort of a semi-newspaper
making commentary about one of our colleagues. It indicated down the
road anybody but that individual should be supported in the next
election. That is pretty express advocacy, it seems to me. They had
some issue tied to it. It was interesting.
I am just wondering. As a matter of fact, a lot of people who started
newspapers--I don't know if they call them newspapers but they call
them, certainly, free and protected speech under the first amendment on
the Internet. Who is going to--how are we going to police that? Would
the distinguished Senator have a view on that?
Mr. McCONNELL. I don't have a clue and I think the courts will be
wrestling with that.
I say to my friend from Kansas, you know that GE owns NBC,
Westinghouse owns CBS, and Disney owns ABC.
Mr. ROBERTS. Oh, my goodness.
Mr. McCONNELL. Talk about corporate involvement in the political
process. Those three corporations presumably have a good deal more
speech than all the rest of us.
Mr. ROBERTS. That could conceivably cause some of the supporters of
this legislation to change their minds. Because just yesterday the
coauthor of the major spending bill indicated if you just took a look
at the legislative agenda of those who are dealing with express
advocacy or soft money, you would see that the people who vote for that
agenda are bought and paid for in regards to that specific agenda.
Obviously, if a person has a different agenda from those who support
this bill and it's a little different--whether it be big labor or labor
or, say, many of the nonprofits as opposed to, say, the Chamber of
Commerce or whatever--why, that is certainly different.
I am wondering if they now understand that since the major broadcast
networks are owned by corporations, that this should not apply to them.
I mean, that's dreadful, to really figure out that the major
broadcasters are corporate entities. Why, we can't give them free
speech. My goodness, it has to be pure as wind-driven snow, as
described by these other groups you see, because the legislative agenda
would be different.

That was amazing to me, absolutely amazing, that if you support the
top five issues of Common Cause on one hand, why, that's fine and we
want to certainly encourage that free flow of information. But if you
supported the Chamber of Commerce, which may or may not agree with
Common Cause, that's different and your vote was bought and paid for,
even to the point that if you support this legislation, it will result
in lower food costs, lower gas prices, better farm income--I don't
know--better health care, protecting the environment.
What do we have here? I'll tell you what we have. We have censorship
by agenda of the particular group that either favors or does not favor
this legislation. I maintain there is not any Senator here who is
bought or paid for by that kind of contribution. I don't know anybody
here who would do that. That is a very specious commentary; self-
serving, condescending, elitist.
I worry about free speech. I am an old newspaper man. My family
started a newspaper, the second oldest in the State of Kansas, the
Oskaloosa Independent, based on abolition. My great grandfather, John
W. Roberts, came to Kansas to make it a free State. I firmly believe in
the first amendment and free speech.
This legislation, well-intended, strikes at free speech. It doesn't
define what is and is not a newspaper. We are dealing with the same
issue that the Founding Fathers spoke to with the Alien and Sedition
Act. Senator Gorton is right; it is not a stretch.
As you can see, I get a little worked up about this. But I think it
is a point that every editorialist in every newspaper who thinks they
are on cloud nine and protected should stop and consider.
I thank the distinguished Senator from Kentucky for being a protector
of free speech.

[[Page S990]]

I yield the floor.
Several Senators addressed the Chair.
Mr. McCONNELL. I thank the distinguished Senator from Kansas for his
important contribution. What he is talking about here is precisely
this, that the first amendment applies to everybody, not just to the
press, and any misguided effort to make it more difficult for citizens
to band together and express themselves without limitation, even though
it may be in the neighborhood or proximity of an election, is not going
to be upheld by the courts of the United States. So I thank the Senator
very much for his contribution.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 37 minutes and 10 seconds.
Mr. McCONNELL. I reserve the remainder of my time.
Ms. SNOWE addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the distinguished Senator
from Maine.
Ms. SNOWE. I would now like to yield to my friend from North Dakota,
Senator Dorgan, 10 minutes.
The PRESIDING OFFICER. The Chair recognizes the distinguished Senator
from North Dakota.
Mr. DORGAN. Mr. President, I gather that the previous discussion was
about the Snowe-Jeffords amendment, but it was very difficult to
connect. I gathered from the discussion that at least one Member came
out in favor of free speech and the first amendment of the
Constitution. Perhaps two Members did. I expect we could sign up the
other 98. But that has as much relationship to the Snowe-Jeffords
amendment as discussing how to make an apple pie. It doesn't have any
relationship at all.
This is not about free speech. This is not about free speech at all.
This is about disclosure, and the question propounded by the Senator
from Maine with her amendment is, why are we afraid of disclosure? Why
not ask people who want to interfere with and invest in Federal
elections that they disclose who they are and how much money they are
investing in Federal elections? That is what the question is.

So then I ask those of you who are opposed to this, what are you
afraid of? Why not disclose it? What is wrong with disclosure? This
amendment doesn't say you can't contribute, you can't raise soft money,
you can't do issue advocacy. It doesn't say that at all. It says you
must disclose who you are and what you are spending. What is wrong with
that?
Yesterday I mentioned that Mark Twain was once asked to join in a
debate. He said, ``Fine, as long as I can take the opposing side.''
They said, ``We didn't tell you what the subject was.'' He said, ``It
doesn't matter. The negative side doesn't require any preparation.''
We are on the floor of the Senate, proposing to reform the campaign
finance system in this country because it is broken and needs fixing.
Those who think it is not broken, look at the record. Look at the
statistics. Look at the data.
Let me show a chart that describes an interesting comparison, the
number of voters versus the number of dollars in American politics. The
number of dollars goes up and the voting participation goes down in
this country. You think there is not something wrong with this system?
I mentioned yesterday that soft money, a problem that is dealt with in
the McCain-Feingold bill and also in the amendment that is before us
today--soft money is the political equivalent of a Swiss bank. Soft
money is the mechanism by which you create secrecy for contributions,
unlimited quantity, that come into campaigns to interfere with Federal
elections. It has become the legal form of cheating in American
politics.
The amendment before us says let us require disclosure, let us
require disclosure in certain circumstances. The underlying bill says
let us ban soft money in other circumstances, but it has nothing to do
with free speech. Nothing.
Let me read a couple of things, if I might. Here is a so-called issue
ad from a group that was formed very close to an election. This ad ran
2 weeks before a general election. It was paid for from a $1.7 million
pot of money, almost all of it raised 3 weeks before the election. It
came from eight deposits. Eight deposits created a $1.7 million pot of
money spent in the last couple of weeks before the election. Here is
what they said: ``Can we trust candidate X?'' They used the name. Let
me say Thompson, just hypothetically. ``Can we trust candidate
Thompson? The ad says Thompson ``has been criticized as inefficient and
disorganized by the county auditor,'' and that he was ``accused of
Medicare fraud by a home health care worker from his family business.
Call Thompson and tell him to support ethics in government.''
That is an issue ad? It's not an issue ad. This is an ad designed
specifically to defeat candidate Thompson, paid for by a $1.7 million
pot of money collected in eight deposits from secret donors. I ask
those who stand up and say things are just fine on campaign finance
reform, do you support this? Is this a legal form of cheating you think
is fine in campaign finance reform? Does anybody here stand up and
support this? Anybody? I guess not.
So, another one: $700,000 from a wealthy individual who calls up a
501(c)(4) organization and says, ``I want to spend $700,000.'' But he
doesn't want any fingerprints on it, so he calls up the political
equivalent of the Swiss bank and says, ``I want secrecy.'' And $700,000
magically disappears into in a political Swiss bank and then the ads go
out. The ads run just weeks before an election, targeted to defeat
candidates, called ``issue ads.'' Not issue ads, cheating; $700,000
from one person designed to try to defeat candidates and get around
Federal election rules.
Mr. President, $1.8 million was formed by a group that was formed on
paper in October 1996. One wealthy donor gave $100,000 to buy negative
ads attacking one specific Congressman in the closing weeks of the
campaign; 12 deposits put together $1.8 million to be used for these
so-called issue ads that represent the form of political cheating that
is going on in this country.
Again, it is the political equivalent of the Swiss bank: Put together
soft money in large quantities, go out and target and try to defeat
people, call them issue ads, and essentially get around the Federal
election laws.

Do you think this is the way the system ought to work? Do you think
this is just fine? If you think this is fine, then I guess you ought to
try to defeat campaign finance reform. And some are trying to do that.
I don't question their motives or honesty. They, I think, honestly
believe the system is fine, that this is about money being speech. If
you have more money, you have freer speech, apparently. And some people
have more money than others, so, I guess they apparently are better
able to speak in this country.
But that is not what the Constitution is about. At least in this
system we have said that there ought to be reasonable restrictions and
regulations on the financing of Federal elections. And if you believe
that these examples are examples that just fit well within the frame of
what we think a reasonable campaign finance system is, then you are
about a century behind where we ought to be.
We have already made a decision in this country. We don't want people
with $2 million to hide behind a veil of secrecy and say, ``By the way,
with my $2 million I want to go out and find these two candidates and I
want to undercut them with $2 million worth of advertisements and I
don't want my fingerprints on it. I don't want anybody ever to know
that I did it, but I want to defeat these two candidates.'' Until these
smart campaign lawyers came up with these loopholes, Federal law said
you can't do that. But the soft money loophole says there is a new way
around these laws, and that is what is creating, I think, the
disrespect for the current campaign finance system that requires us to
take action here in the Congress. No, not to abridge free speech, but
to require, as this amendment does, full disclosure.
Let one Member of the Senate stand up and tell me an answer to this
question. Why are we afraid of full disclosure? Do we want to protect
the person who took $700,000 and wrote a check and says, ``I want to
defeat this person and that person and I don't want my fingerprints on
it''? Is that why we oppose full disclosure?
What on Earth would be wrong with requiring full disclosure in the
circumstances described by Senator Snowe and Senator Jeffords? Who can
stand up on the floor of the Senate and say that is a step in the wrong
direction?

[[Page S991]]

It seems to me it is a giant step in the right direction. For this
Congress to do nothing, as some on this Senate floor want us to do, I
think would be a travesty. Anyone who looks at this system understands
the system is broken. Soft money is growing by leaps and bounds. The
first 6 months of this year tripled the first 6 months of 2 cycles ago.
Soft money is growing by leaps and bounds, and everyone knows that it
is the way around the current campaign finance system. Some say,
incidentally, there is not enough money in politics. They have a right
to say that. I understand that. They are so dead wrong. There is too
much money in politics, and what this amendment and what the underlying
bill does is to say, let us decide that there needs to be some rational
approach to putting back together again a set of rules on financing
Federal elections that give people some confidence that these are
elections and not auctions.
Again, the political equivalent of the Swiss bank in American
politics is exactly what Senator Snowe and Senator Jeffords are
attempting to deal with in this amendment.
Would I have written this amendment differently? Yes, I would have. I
think they left out a couple of things, and I would have written it
differently. I support this amendment, because I want this Congress to
pass campaign finance reform, and this is a step to allow us to get to
a vote to do that.
I come here today happy to support the effort that Senator Snowe and
Senator Jeffords have made on the floor of the Senate. I have listened
to their debate. They have been forceful and persuasive.
Frankly, I am surprised to come and listen to a discussion about the
first amendment, free speech. It has nothing to do with free speech.
Come and trade recipes, come and ruminate about baseball. It has as
much to do about this amendment as the discussion of free speech a
moment ago. Nothing Senator Snowe is proposing and nothing in the
underlying bill, in my judgment, impinges free speech.
I think those who have proposed the McCain-Feingold bill and those
who propose this amendment do this country a service by saying the
current system is broken and we can do a better job in creating rules
of campaign finance that will give people in this country more
confidence in this system.
I thank very much the Senator from Maine for providing me this time.
I hope very much the Senate will not only support her amendment, but we
will go on from that point and pass the underlying bill. Mr. President,
I yield the floor.
The PRESIDING OFFICER (Mr. Abraham). Who yields time?
Mr. McCONNELL. I yield the Senator from Pennsylvania 10 minutes.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Thank you, Mr. President.
Mr. President, first, I commend the job that the Senator from
Kentucky, Senator McConnell, has done this year on this debate, today
on this debate, and for his stalwart defense of the first amendment.
Let me make a couple of comments about the Snowe-Jeffords amendment
and then move on to more general debate.
First, let me say about my colleague Senator Snowe, she is constantly
here in the U.S. Senate trying to find areas to bring people together
to try to solve problems and issues that she has concerns about. She
has worked tirelessly, I know, on this and on a variety of other issues
to try to find common ground and make things work. I commend her in her
effort. I don't agree with the approach she has taken, but I think it
is a sincere and honest attempt to meet what she perceives is a great
problem in this country. We just happen to disagree on what the problem
is, and, thereby, the solution she perceives doesn't meet up with what
I see as the problem. We see a different problem.
The Senator from North Dakota, maybe unwittingly, said something
which I think is exactly the way those who want to restrict the first
amendment--to restrict speech--see speech, as other than speech of the
candidate. He said, and I am fairly sure I wrote it down at the time,
he said, ``Those who want to interfere with Federal elections.'' I just
found that remarkable. ``Those who want to interfere with Federal
elections,'' as if the election between me and the guy or lady I am
running against is really just the two of us and anybody else who wants
to speak is interfering with our election: How dare you interfere with
my election. Really, that is what this is all about.

If I was just concerned about me and my election, I would vote for
the Snowe-Jeffords amendment. It is a great thing for me, because what
it says is the labor unions, who are going to be salivating to run
nasty ads against me in my election, can't do so. That would be a
wonderful break for me. And the other groups that want to get together
and run nasty, horrible things about me--and I am sure they can find
nasty, horrible things to say about everybody in this Chamber--can't do
so. That is a wonderful thing for me.
I would like this to apply to the newspapers and everybody else so
nobody can criticize me and I can get up and say what I want and the
other guy can say what he or she wants. That is fine; it is just the
two of us. But that is not the way democracy works, nor should it work
that way.
I think the problem this amendment tries to address is a nonexistent
problem. The problem is, as the Senator from North Dakota eloquently
said, that they believe there are too many people interfering with our
elections. I don't believe there are too many people. I think that is
part of the public discourse. It is something I don't like. When my
kids see a nasty thing about their daddy on television, I don't like
them to see it. Their mom doesn't like to see it. My parents don't like
to see it. But I am going to defend on the floor of the U.S. Senate to
my dying day the right to say it, because that is how democracy works
best.
When plenty of people interfere with the election, the more people we
can get to interfere the better, because the public is then heard. It
is not always pleasant, not always to my advantage, certainly, but it
is important to be heard.
So I stand up today and say, yes, labor unions should be able to run
ads, they should be able to run ads right up until the day of the
election and voice for their members who voluntarily contribute to
their PAC their concerns about issues and their concerns about the
candidates for election. It is their right to do so. In fact, I believe
it is their obligation to do so.
On the broader issue of the McCain-Feingold bill or the Snowe-
Jeffords amendment and others, what they try to do is put up
roadblocks. What this reminds me of is a tax bill. You say, ``How does
this remind you of a tax bill?'' Do you know what it does when Congress
passes a tax bill? What it does is employ a lot of lawyers and
accountants to figure out ways to try to beat the bill, because this is
what it is about. We put up little roadblocks here and there to catch
money to fill in the cracks to fill our coffers. That is how the tax
bills work, to try to plug these loopholes or get rid of this subsidy,
or whatever, that was ``unintended.''
That is pretty much what they are saying. These were ``unintended
things.'' We didn't want all this speech out there, so we just need to
plug the loopholes. By plugging the loopholes, all you do is put a lot
of smart people to work figuring out how to beat it. That is how soft
money was created. Soft money was created because we have a limit on
how much money you can give directly to a candidate.
In Pennsylvania, we have Governor races and attorneys general races,
statewide races. There is no soft money in Pennsylvania. You don't need
soft money in Pennsylvania. If you want to contribute to a candidate,
you can give any amount you want. It is reported, everybody knows about
it, but there is no need to give money to XYZ organization to
indirectly spend the money on something to benefit the candidate. You
can give it directly to the candidate.
The reason soft money has grown in importance is because we have a
limit of $1,000 per person in each election cycle set 25 years ago. I
can tell you some have suggested inflation has tripled during that
timeframe. I can tell you campaigns have probably gone up tenfold or
more in expense during that

[[Page S992]]

timeframe, and we have kept the contribution limit the same, thus the
need for some way around the system. The original campaign finance
reform put barriers in place, and so smart people figured out how to
get around the barriers.

We can stand up here and say, ``Oh, well, we need to plug this
loophole and we need to stop here.'' All we are going to do is create
some other legal fiction out there to walk their way around it, in so
doing, hiding from the public people's participation in the process.
The greatest campaign finance reform we can do is dramatically
increase the limits on contributions. Do you want to solve in great
measure soft money? Do you want to solve independent expenditures and
all those other things? Dramatically increase at least three or
fourfold the amount an individual can give directly to the candidate,
increase the disclosure of that amount so it has to be much more prompt
than it is today, and I will tell you what you are going to do. Soft
money will be a thing of the past. Oh, there will still be some around
here and there, but it will not be the big factor that everybody thinks
it is now, because the money will go directly to the candidate. I
guarantee it. That is where they want it to go now, but it can't go
there, so they find the loophole. I guarantee you, if you plug one
loophole, another one will come along, if, in fact, the Court allows
you to plug the loophole in the first place, which I don't believe it
will.
So we have well-intentioned people here who see this as a problem of
money, too much money. I hear this when I go back home: ``Don't Members
of Congress spend all this time raising money?'' I might be wrong,
maybe Senator McConnell has a number on this, maybe we have taken a
survey within the Senate, but I would bet that roughly half the Members
of the U.S. Senate don't pick up the phone and raise money as a rule.
Maybe Members won't pick up the phone and raise money. They hire people
to do that.
I occasionally pick up the phone and raise money. I probably do so
more than most. Usually, I am not raising it for me; I am trying to
raise it for other folks back home who need help or other Senators
running in other places, and I try to help them out. But I will tell
you, if it takes at most a half hour out of the week--at most a half an
hour out of the week--that is a busy week on average for me raising
money. If you find that to be too much time on the phone raising money,
I would beg to differ with you. I can think of lots of things I can do
for a half hour a week that is a greater waste of time than raising
money on a telephone, that I could use my time more productively.
Again, we sort of prop up these straw figures and say, ``Here is the
problem, here is the problem; there is too much money.''
I think democracy is important, I think what we do here is important,
and I think people should have a right to express their opinion. Yes,
people can go out on the street corner and talk all they want, but if
nobody hears them, that really isn't very effective speech.
I don't think we should put any limits on people being able to take
out a newspaper ad or to sign onto an Internet provider and post
something up on a bulletin board somewhere saying, ``Rick Santorum
voted the wrong way on this, and you folks who are concerned about
[whatever issue] should know this.'' I think that is fine. I don't like
it, but I think it is fine.
It is essential--it is essential--for us to be accountable to the
people. What we are trying to do with all these restrictions and all
these limits is isolate the people. I hear this talk that this is not
about speech; this is about power. I agree. There is no comment--I
heard it yesterday--there is no comment I agree with more. You are
right; this is about power. It is where the power is going to rest, in
the citizens of the United States, or the power is going to rest right
here or in the boardrooms of NBC, ABC and all the other affiliates and
newspapers and media outlets around the country, because that is where
the power is going to go if things like McCain-Feingold and other
measures pass.
They are going to go out--this great sucking sound; that is a common
thing we hear now--it is going to come out of your ability to speak and
right into the corporate boardrooms that own media outlets.
Senator Roberts was absolutely right, the reason the media is
foursquare behind this is because when they shut you up, their voice
becomes more important. It is as simple as that. If you can't speak,
what they write in their newspapers becomes much more important,
because it is one of fewer things out there. It is not overstating the
fact, the case, that this debate is central to democracy in this
country, and that those who, well-intentioned as they are, want to
solve the money problem, it is not by muzzling people in the process.
Give people the right to speak and democracy will be just fine.

Thank you, Mr. President.
The PRESIDING OFFICER. Who yields time?
Mr. McCONNELL. Mr. President, I ask unanimous consent that 5 minutes
be added to Senator Snowe's time and 5 minutes to my time.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Ms. SNOWE addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Ms. SNOWE. Mr. President, I now am very pleased to be able to yield 4
minutes to the Senator from Arizona, who has been a leader on this
issue, and because of his leadership and commitment to campaign finance
reform, we are here today debating this issue and hopefully advancing
it.
Mr. McCAIN. Mr. President, let me begin by thanking the senior
Senator from Maine for all her tireless work to craft and garner
support for this amendment and one that deserves the Senate's support
and one that improves the underlying language in the McCain-Feingold
amendment. On that basis alone, the fact that this amendment improves
the underlying language, I hope that all my colleagues will support it.
The amendment has been summarized many times. I will summarize it
very simply. It expands current law that bans direct participation by
corporations and unions in elections. Specifically, it prohibits
corporate and union funds from being used in broadcast electioneering
that mentions a candidate's name or uses his or her likeness within 60
days of an election.
And the second aspect of it, of course, as we know, is disclosure.
The Snowe-Jeffords amendment places no--I repeat--no restrictions on
independent groups spending money to advocate their cause. It does
however mandate that they disclose their contributors.
Mr. President, it is beyond my ability to reason why anyone would
oppose disclosure. As mandated by law, I, and each and every one of my
colleagues, discloses to the FEC the names and amounts of our
contributors. Why should others who engage in electioneering not engage
in such similar actions?
I have no desire to hide who gives to my campaign. In fact, I am
proud to make public such information. And I am equally proud to stand
up and support, through my actions and in some cases contributions, the
causes that I believe in.
For example, Mr. President, I have a hundred percent pro-life voting
record. Some of my colleagues feel strongly on the other side of this
subject. But I am willing to stand here and defend my position because
I believe it is the right thing to do. And I am happy to have pro-life
groups identify me as a supporter of this cause. There is no reason to
hide and to not disclose such support. Therefore, I cannot fathom why
some interest groups would fight the disclosure amendment. What are
they afraid of?
Again, Mr. President, I strongly support the efforts of Senator Snowe
and Senator Jeffords. I hope that later today this amendment will not
be tabled and we can move forward to adopt both this amendment and the
majority leader's amendment on restricting the FCC from overstepping
its authority by mandating free broadcast time and move forward on this
bill. Both amendments are good and worthy of support.
Yesterday, I asked if it would be possible to move both amendments
independently. I have been engaged in talks on this matter and hope we
can soon resolve the problem. I will continue to fight to see this bill
move forward. As daunting as that battle may be, we will continue to
fight to pass needed necessary campaign finance reform.

[[Page S993]]

Again, Mr. President, I want to thank Senator Snowe, who has worked
tirelessly to try to craft a proposal that will bridge some of the
differences that we have. I am grateful for all of her efforts.

Mr. President, I yield back to Senator Snowe the balance of my time.
The PRESIDING OFFICER. Who yields time?
Ms. SNOWE addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Ms. SNOWE. I am now very pleased to yield to Senator Lieberman, who
has been very helpful in drafting the Snowe-Jeffords amendment as well.
I yield him 3 minutes.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair and thank my friend from Maine, and
thank her particularly along with Senator Jeffords for their
extraordinary progressive action in trying to find common ground and
for constituting what is now clearly a bipartisan majority of the
Senate in favor of campaign finance reform.
It may be blocked by the filibuster rules, but there is a majority
here that recognizes the gravity of the challenge to America's
democracy posed by the current absence of any real regulation of
campaign spending in our country and campaign contributions and wants
to do something about it. I support the Snowe-Jeffords proposal. I want
to approach it from this point of view.
Mr. President, we all know that beauty is in the eye of the beholder.
I would say here, having listened to this debate, that the beauty of
the first amendment is also clearly in the eye of the beholder because
the first amendment has been used in this debate to oppose measures
that are being designed to avoid evasion of laws that have been upheld
as constitutional. Let me be very specific and brief.
The law says that an individual cannot give more than $2,000 to a
campaign. Some might say that is an abridgement of free speech, but it
has been upheld as constitutional by the Supreme Court in Buckley.
The law says that corporations and unions cannot contribute from
their treasuries for political purposes to affect elections. Some might
say that was an abridgement, a violation of their free speech, but that
has been upheld as constitutional.
But what has happened? Soft money, issue ads, which are clearly ads
for or against candidates have been used to evade those clearly
constitutional restrictions on contributions to political campaigns.
And so we have to do something about it. It will not be a violation of
the first amendment. The current ability of parties and outside groups
to disguise candidate-focused electioneering ads as issue ads
undermines these longstanding and important Federal elections policies.
A study by the Annenberg Public Policy Center found that in 1996, 29
groups spent as much as $150 million on what the groups called issue
ads, but which the Annenberg study leaves little doubt were mostly
aimed at electing or defeating particular candidates. Mr. President,
$150 million, that is approximately one-third of the total spent for
all ads by all candidates. That study found that over 85 percent of
those so-called issue ads mentioned a candidate by name, almost 60
percent used a candidate's picture and, worst of all, more than 40
percent of those were pure attack ads.
Let us pass Snowe-Jeffords which is clearly constitutional and will
stop these evasions of laws limiting contributions to campaigns that
have been upheld as constitutional.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. Who yields time?
Ms. SNOWE addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Ms. SNOWE. Mr. President, I now yield 4 minutes to the Senator from
Rhode Island.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. CHAFEE. Mr. President, I support the Snowe-Jeffords amendment.
Under the Snowe-Jeffords amendment, labor unions and corporations
would be prohibited from spending soft money--what is soft money? That
is the unregulated and unreported money that falls outside of current
law--on advertising that mentions the name of a candidate in the 60-day
period before an election.

Now, labor unions and corporations would be permitted--some say,
``Oh, you are muzzling the labor unions and corporations;'' well, that
is just not so--they can use their PAC dollars, so-called hard money,
on electioneering ads or express advocacy.
So there is no muzzling of any of these organizations. No
restrictions are placed on the first amendment rights of organizations
either. That is another point that has been raised here on the floor.
Organizations still will be permitted to run ads that directly advocate
for the election or defeat of a candidate. Electioneering ads discuss a
candidate's record in relation to issues and they still will be able to
run pure issue ads.
Under Snowe-Jeffords, the only change is these organizations will be
required to file disclosure statements. I do not see how anybody around
here can be against disclosure. Disclosure statements will let the
electorate know who is paying for what ads. I think that is what the
public ought to know. How can that be objectionable? It is
disheartening for me to hear other Senators object to disclosure. In my
view, disclosure is at the very heart of reform.
Last year, I filed an amendment that would have required even broader
disclosure requirements. My amendment would have required all entities
who mention the name of a candidate during the calendar year of the
election to file a disclosure statement with the FEC.
The Snowe-Jeffords amendment is a more modest approach. It simply
requires entities to disclose their large donors and their spending
during the 60 days before the election.
Again, let me say, Mr. President, I find it very difficult to
understand why anybody would object to the disclosure. If these
organizations engage in issue advocacy rather than electioneering, that
is, the ad discusses an issue without mentioning a candidate, they now
have to disclose either their members or their spending.
Now, 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 money on elected officials and to level the playing field
between incumbents and challengers.
Although the proposals before us may not be the final resolution of
these problems, they provide a better starting point than we have had
in previous years.
As far as I am concerned, Mr. President, the most important problem
to be addressed by campaign finance reform is one that barely existed a
few years ago. Not too many years ago many of us were here debating
election process and election reforms. What were we talking about? We
were talking about PACs, about political action committees. How much
should they be able to contribute? Was $5,000 right or wrong per
election?
Those are things we debated. We worried that these PAC contributions
might appear to give special interests too much influence. But the soft
money explosion made those amounts seem like pocket change. I believe
that if all else fails we must deal with the soft money problem.
As I said, Mr. President, once again the Senate is debating the
question of how to reform the manner in which elections for federal
office are financed. This year, progress has been made on the issue,
and the Snowe-Jeffords amendment is an illustration of that progress.
Senators Snowe and Jeffords have worked closely with experts in
constitutional law to develop an amendment that would greatly improve
the underlying McCain-Feingold bill. This amendment, which I am pleased
to cosponsor, eliminates the vagueness and overstretching of the
McCain-Feingold bill with regard to the treatment of bogus issue ads.
The Snowe-Jeffords amendment creates a new category under the Federal
Election Campaign Act called ``electioneering.'' This is a carefully
defined category that pertains to the abundance of soft money spending
by unions, corporations, and non-profits that was so proliferous in the
1996 elections. The Snowe-Jeffords amendment would not prevent these
groups from letting their voices be heard. It simply

[[Page S994]]

would require them to adhere to the spirit of the law.
There certainly is little effort to adhere to the spirit of the law.
That's what the hearings before the Senate Governmental Affairs
Committee were all about. Week after week witnesses appeared and
defended blatantly inappropriate behavior by pointing out that the law
didn't quite cover their particular activity. The standard operating
procedure in elections these days is circumventing the letter of the
law. We are here to try to tighten up current law to make it harder for
unions, corporations, and others to circumvent the law.
Under Snowe-Jeffords, labor unions and corporations would be
prohibited from spending soft money--that is the unregulated and
unreported money that falls outside of current law--on advertising that
mentions the name of a candidate in the 60 day period before an
election. Labor unions and corporations would be permitted to use their
PAC dollars, or hard money, on electioneering ads or on express
advocacy. There is no muzzling of those organizations.
No restrictions are placed on the First Amendment rights of
organizations either. Organizations still will be permitted to run ads
that directly advocate for the election or defeat of a candidate;
electioneering ads that discuss a candidate's record in relation to
issues; and they will still be able to run pure issue ads. Under Snowe-
Jeffords the only change is that these organizations will be required
to file disclosure statements. Disclosure statements will let the
electorate know who is paying for what ads. How can that be
objectionable? I have been quite disheartened to hear other Senators
object to disclosure.

In my view, disclosure is at the very heart of reform. Last year, I
filed an amendment that would have required even broader disclosure
requirements. My amendment would have required all entities, who
mention the name of a candidate during the calendar year of the
election, to file disclosure statements with the Federal Election
Commission. The Snowe-Jeffords amendment is a more modest approach to
disclosure. It simply requires entities to disclose their large donors
and their spending during the sixty days prior to the election.
If these organizations engage in issue advocacy, rather than
electioneering--that is, the ad discusses an issue without mentioning a
candidate--they need not disclose either their spending or their
members.
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. Although the proposals before
us may not be the final resolution to the problems that afflict the
current system of campaign fundraising, they provide a better starting
point than we have had in previous years.
As far as I am concerned, the most important problem to be addressed
by campaign finance reform 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 PACs, 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. Just to make clear
what soft money is: it is funds spent to influence an election that
fall outside of current law. Spending on bogus issue ads--ads that are
defined under Snowe-Jeffords as electioneering--is soft money. The
Senate has the opportunity to make these important changes in the
current fundraising system by approving the Snowe-Jeffords amendment.
Mr. President, I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. How much time is remaining?
The PRESIDING OFFICER. The Senator from Kentucky has 29 minutes.
Mr. McCONNELL. I yield to the distinguished Senator from New Mexico 6
minutes.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Mr. President, I wonder if you would remind me when I
have used 3 minutes.
Mr. President, I do not recall the exact day but sometime in the not
too distant past the Senate was asked to vote on an amendment by the
distinguished Senator, Fritz Hollings. Now I am referring to an
amendment that would have amended the Constitution of the United States
and permitted Congress to control campaign expenditures. Obviously the
Constitution of the United States does not give us the latitude to
control expenditures in campaigns that we are involved in, or that
House Members, the President and the Vice President are involved in.
I ask the distinguished manager of the bill, how many votes did the
Hollings amendment get?
Mr. McCONNELL. I say to my friend from New Mexico, he got 38 votes.
It would have taken 67, but at least it was honest. It indicated that
you had to amend the first amendment to do the job.
Mr. DOMENICI. So 38 Senators--excuse my voice. I have a bad cold of
some type. And to those listening, it is Pete Domenici even though it
does not sound like me. So 38 Senators had the guts to vote on the real
issue, and the real issue is that the Constitution of the United States
has a great big amendment that guarantees freedom of speech.
I did not use to understand how the right of freedom of speech was
related to campaign expenditures until I read a few of the United
States Supreme Court decisions. And I am very pleased that they got the
message. The Court understood when it first ruled that you could not
limit an individual who wanted to spend his own money on a campaign.
You could not limit the amount of money he spent because that money was
his freedom of speech. That is what he used it for.
And I equate it here on the floor, and ask the question, what do we
apply, in the largest and greatest sense, freedom of speech to in
America? We apply it to the media of America. We have freedom of
speech, but really when you look at it, it is the freedom of the
newspapers, the radios, the televisions, the editorial writers, the
column writers, all of whom have this absolute freedom to get involved
in our campaigns.
That is why the Supreme Court said that spending money on your own
campaign is exercising your freedom of speech. If four newspapers in a
candidate's State are writing editorials against him, he ought to be
able to spend his money even if he bought a piece of the paper and said
this is my editorial, and paid for it with his own money.
Now, what is wrong with the bill before us today--not necessarily the
amendment of the distinguished Senator from Maine, who has worked very
hard on this, she called me, we talked about it. It is a good idea, but
essentially the bill itself is so flawed in terms of the analogy I am
using with reference to the right and freedom of speech and the right
and freedom to spend money to get your message across, that it is at
odds with the decisions of the Supreme Court.
I don't think there is a chance that the underlying bill comes even
close to establishing some balance that would in some way change the
Supreme Court's mind about the exercise of this freedom and this right.
They have essentially said it is not vested in only a newspaper or a TV
station or an anchorman or an editorial writer or letters to the
editor. They have also said that right is vested in many, many entities
who may want to spend money to get their message across--be it
criticism or something that is positive about a candidate.
I want to thank the distinguished Senator from Kentucky for his
stalwart presentations on the floor which have gone to the heart of the
issue, the issue being before we jump into abridging freedom of speech
we better very much know what we are doing and not speculate and guess
about it. And, yes, the Supreme Court has done an excellent job of
saying they will be the gatekeeper on this. I think without that we

[[Page S995]]

would be trying to tell everybody how to run campaigns and the American
people would end up saying, isn't that something? They are telling all
of us they know how to run their campaigns and they are ordering us
around in their own campaigns. So I think that is the flip side of
this.
Ms. SNOWE. How much time remains on both sides?
The PRESIDING OFFICER. The Senator from Maine has 5 minutes remaining
on her side; the Senator from Kentucky has 21 minutes and 16 seconds.
Ms. SNOWE. I reserve the balance of the time.
Mr. McCONNELL. I yield 5 minutes to the distinguished Senator from
Idaho.
Mr. CRAIG. Mr. President, I spoke yesterday on campaign finance
reform and I stand today certainly in opposition to the Snowe-Jeffords
amendment. It does not address the problem. I don't think the problem
exists. The courts have said we don't have jurisdiction over it. We
ought to leave it at that.
Mr. McCONNELL. How much time remains on our side?
The PRESIDING OFFICER. The Senator from Kentucky has 19 minutes and
20 seconds.
Mr. KOHL. Mr. President, I rise in favor of the Snowe amendment.
First, I wish to commend the Senator from Maine for her efforts to
craft a compromise on this issue. If everyone entered this debate with
her spirit of negotiation and patience, I think we would surely be able
to come to a final resolution of this matter.
I favor the Snowe amendment at this time because I feel it is the
best compromise available to possibly pass the McCain-Feingold campaign
finance reform bill. As an original cosponsor of that legislation, I
favor S.25 as presented yesterday by Senator McCain. I believe the
section related to independent expenditures is well-crafted, would go a
long way in improving our electoral system, and meets the difficult
constitutional standards for this issue.
However, it is clear that the McCain-Feingold bill does not have the
necessary votes to end the filibuster. By altering the section of the
bill dealing with independent expenditures, we would have a compromise
which has the potential of passing the Senate. I would prefer the
language as crafted by Senators McCain and Feingold, but it is clear we
cannot pass the bill in that form. Therefore, adding the Snowe
amendment at least offers hope that campaign finance reform can be
passed in this session.
I also wish to add that my support for this amendment is conditional
on its inclusion in a broader package of campaign finance reform. Any
reform proposal must be designed to be fair and balanced. Taken
separately, or added to other legislation that does not address other
important campaign finance issues, the Snowe amendment would not have
the desired impact on the electoral process.
If we pass the Snowe amendment, and the underlying McCain-Feingold
bill, we will have made a great stride toward reforming our campaign
finance laws, and offer the American public some hope that Congress is
taking their concerns on this matter very seriously.
Mr. McCONNELL. I suggest the absence of a quorum and I will have the
time charged to my time.
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, I was graciously letting my time run
during that quorum call. I think we may have inadvertently taken away
the 10 minutes prior to the military construction bill. I would like to
reconstruct that time. The chairman of the Appropriations Committee is
here.
Mr. President, I ask unanimous consent that the chairman of the
Appropriations Committee be recognized for 5 minutes prior to the
military construction vote and that Senator Byrd, or his designee, be
entitled to 5 minutes prior to the military construction vote as well.
The PRESIDING OFFICER. Does the Senator wish that the time for the
vote on military construction veto override also be postponed by 10
minutes, accordingly?
Mr. STEVENS. Mr. President, the time is set at 6 p.m., is it not?
The PRESIDING OFFICER. That is correct. In the absence of a change in
the time for the vote, the vote would take precedence over any
additional amount of time.
Mr. STEVENS. We are talking about the 10 minutes before 6 p.m.
Mr. McCONNELL. Does the military construction vote come first, before
the Snowe-Jeffords?
The PRESIDING OFFICER. Yes.
Mr. McCONNELL. Maybe this would solve the problem. I ask unanimous
consent that there be 10 minutes prior to the Snowe-Jeffords vote,
equally divided between Senator Snowe and myself.
The PRESIDING OFFICER. Does the Senator intend to insert that time
between the two votes?
Mr. McCONNELL. Yes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. STEVENS. 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, I understand that the Senator from
Maine would rather speak now than between votes. Therefore, Mr.
President, let me try one more time.
I ask unanimous consent that the distinguished chairman of the
Appropriations Committee have----
Mr. STEVENS. Mr. President, we seek to preserve the time as it is
currently allocated for the next 10 minutes before the vote on the
MilCon bill.
Mr. McCONNELL. How much time does the chairman of the Appropriations
Committee wish?
Mr. STEVENS. Ten minutes.
Mr. McCONNELL. Mr. President, I don't think there is a solution to
the concern of the Senator from Maine. It appears that if the chairman
of the Appropriations Committee would like the time remaining before
the 6 o'clock vote--well, I'm open to any suggestion.

Unanimous Consent Agreement

Ms. SNOWE. Mr. President, I ask unanimous consent to move the vote on
MilCon to 6:10 p.m. so that we can complete the debate before the votes
begin.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.

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