[Congressional Record Volume 144, Number 15 (Wednesday, February 25, 1998)]
[Senate]
[Pages S997-S999]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PAYCHECK PROTECTION ACT

  The Senate continued with the consideration of the bill.
  Mr. McCONNELL. Mr. President, are we now on the Jeffords-Snowe time?
  The PRESIDING OFFICER. The Senator is correct. At this point, 5 
minutes are left on each side, according to the previous unanimous 
consent agreement.
  Mr. McCONNELL. Mr. President, the Snowe-Jeffords amendment, while I 
am sure it is well-intentioned, isn't consistent with the first 
amendment. The American Civil Liberties Union, America's experts on the 
first amendment, say that it falls short of the free speech 
requirements of the U.S. Supreme Court in the first amendment.
  The proponents of this proposal seem to me to be dismayed at all of 
this speech out there polluting our democracy and our campaigns. The 
presumption underlying that, of course, is that we as candidates 
somehow ought to be able to control elections, as if only our voices 
should be heard.
  The proponents say what we need to do is get all of this speech under 
control. And the way you do that, of course, is you make the speech 
accountable to the Government through the Federal Election Commission. 
They say, ``Well, it is just disclosure. All we are asking is just 
disclosure.'' The U.S. Supreme Court in the case of NAACP v. Alabama 
made it abundantly clear that you could not require of the group its 
membership list or its donations to be handed over to the Government as 
a condition for engaging in public discourse.
  So clearly, Mr. President, this measure would not pass muster.
  With regard to nonprofits, the amendment puts all manner of new 
controls on them if they are so audacious as to mention any of our 
names near an election.
  Finally, Mr. President, it punishes private citizens who have a 
constitutional right to support causes popular and controversial 
without being subject to Federal regulation.
  So, let me just sum it up.
  There isn't any question--and I am sure proponents of this amendment 
wouldn't deny it--they wouldn't be offering the amendment at all if it 
were not designed to make it more difficult for groups to criticize all 
of us in proximity to an election.
  Mr. President, I confess I don't like it. I wish it didn't happen. 
Even some of those groups that come in in support of us we frequently 
think make things worse and botch the job. But the Court has been 
rather clear--crystal clear--that the candidates don't control all of 
the discourse. We certainly don't control what the newspapers are 
writing about us in the last few days of an election. And we certainly 
can't control what groups may say about us to our displeasure in 
proximity to an election.
  Democracy is sort of a messy thing. It is sort of a messy thing. The 
speech police don't get to control how everybody participates in our 
elections. It may frustrate us. But that is the price for a healthy 
democracy.
  So, Mr. President, at the end of the discussion I will make a motion 
to table the Snowe-Jeffords amendment, and I hope the motion to table 
will be approved.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. SNOWE. Mr. President, I am delighted to be able to yield a minute 
to my colleague from the State of Maine who has been a leader on 
campaign finance reform.
  Ms. COLLINS. Mr. President, thank you.
  Mr. President, I rise today to urge my colleagues to support the 
compromise amendment offered by our distinguished colleague, the senior 
Senator from Maine, and the Senator from Vermont.
  Mr. President, I am confident that the original language in the 
McCain-Feingold bill relating to the issue ads would have withstood 
constitutional scrutiny. But the careful work of the Senator from Maine 
and the Senator from Vermont certainly removes any doubt on that score. 
They have done an artful job in crafting this language, and I hope it 
will receive the support of every Senator.
  Thank you, Mr. President.
  Ms. SNOWE. Mr. President, I now yield a minute to my colleague from 
Vermont, Senator Jeffords. I want to express my appreciation to him for 
all the work he has done on this amendment and his leadership on that 
as well.
  The PRESIDING OFFICER (Ms. Collins). The Senator from Vermont is 
recognized.
  Mr. JEFFORDS. Madam President, there is an adage in the legal debate 
that when the facts and the law are not in your favor you tend to shout 
loudly and improperly about irrelevant principles of free speech.
  The opposition has done a masterful job on that. The issue is simple. 
In an election, does the public have the right to have disclosed in a 
timely fashion who is paying for an attack ad attacking a candidate? It 
is a matter of right to the voter and the election process. It is a 
matter of fairness to the attack candidate. More correctly stated, does 
the attacker have a constitutional right not to disclose who they are? 
The answer is a clear no. The public yes, the attacker no.
  Ms. SNOWE. Madam President, first of all, I express my appreciation 
to my colleague, Senator Jeffords, for all of his efforts, and to all 
of my colleagues who have supported this endeavor.
  First of all, Madam President, I ask unanimous consent to have 
printed in

[[Page S998]]

the Record a letter from Public Citizen. I know my friend, the Senator 
from Kentucky, quoted portions of their letter opposing disclosure. But 
they have distributed a letter in support of the limited disclosure in 
the Snowe-Jeffords amendment.
  In fact, they said, ``Opponents of reforms assert that they would 
violate freedom of speech. But what they are really protecting is the 
freedom to spend unlimited dollars to corrupt our democratic process.''
  They support our amendment.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Public Citizen,

                                Washington, DC, February 25, 1998.
     Hon. Olympia Snowe,
     U.S. Senate,
     Washington, DC.
       Dear Senator Snowe: I understand that certain statements 
     made by Public Citizen President Joan Claybrook, in a May 23, 
     1997 letter, have been cited as reasons to oppose your 
     amendment to the McCain-Feingold bill dealing with disclosure 
     requirements for organizations engaged in certain 
     electioneering communications 60 days prior to a general 
     election and 30 days before a primary election. Specifically, 
     your amendment would require the disclosure of large donors 
     to groups that make expenditures of more than $10,000 for 
     radio and TV electioneering communications from other than 
     PAC money. Let me set the record straight.
       Ms. Claybrook's comments were made in response to a media 
     request that Public Citizen disclose the names and donations 
     of all its supporters. Public Citizen, like most membership 
     organizations, does not provide this information, consistent 
     with its members' expectation of privacy and the Supreme 
     Court's case law that citizens have a protected freedom of 
     association that government may not infringe, absent a strong 
     reason to mandate disclosure. However, regarding non-profit 
     groups such as Public Citizen, Congress has mandated that 
     certain disclosures be made, and Public Citizen complies with 
     those obligations.
       Public Citizen's position is fully consistent with our 
     support for your amendment, which is very limited in scope 
     and seeks to mandate disclosure of large donors to 
     organizations that use these large donations to pay for 
     certain electioneering communications. Enactment of a law 
     mandating disclosure in this limited circumstance concerning 
     federal elections would also put prospective large donors on 
     notice ahead of time and let them make their own judgments. 
     These circumstances are far different from the situation Ms. 
     Claybrook was describing in her letter, where requests for 
     disclosure are made by third parties to satisfy their 
     curiosity, and donors to the organization have no reason to 
     believe in advance that their names might be disclosed.
       Public Citizen applauds your efforts to work with Senators 
     McCain and Feingold and other colleagues to achieve 
     significant progress towards campaign financing reform. 
     Opponents of reforms assert that they would violate freedom 
     of speech. But what they are really protecting is the freedom 
     to spend unlimited dollars to corrupt our democratic process. 
     About $150 million, half of it soft money, was spent by 
     political parties, business and union groups, and other 
     interests on phony ``issue ads'' during the last cycle. The 
     real purpose of these ads was to assist or attack political 
     candidates. All of this money was spent outside the 
     limitations of federal law, which already allows the rich and 
     powerful to disproportionately influence our democracy.
       Phony ``issue ads'' written by clever consultants to evade 
     legal limitations on contributions to political candidates 
     are a betrayal rather than a triumph of free speech. The 
     whole idea of freedom of speech is to contribute to a 
     reasoned debate among equal participants. Unfettered 
     political contributions by the wealthy destroy that equality. 
     Huge contributions end up drowning out the voices of the 
     majority of Americans.
           Sincerely,
                                                   Frank Clemente,
                                                         Director.

  Ms. SNOWE. Madam President, before we vote on the motion to table the 
Snowe-Jeffords amendment I want to thank Senator Jeffords for his 
tremendous work and leadership on this issue, as well as the cosponsors 
of the amendment--Senators Levin, Lieberman, McCain, Feingold, Chafee, 
Collins, and Thompson--for their invaluable comments and support.
  We have had a good debate on this amendment this afternoon, but we 
have also heard a great many misconceptions. So before we vote, I want 
to once again speak to the importance of this amendment, what it really 
does and doesn't do, and why the American people are counting on us to 
pass it.
  Madam President, the Supreme Court has made clear that, for 
constitutional purposes, electioneering is different from other speech. 
And the Supreme Court has also never held that there is only a single, 
constitutionally permissible route a legislature may take when it 
defines ``electioneering'' to be regulated or reported. To the 
contrary, Congress has the power to enact a statute that defines 
electioneering in a more nuanced manner, as long as its definition 
adequately addresses the vagueness and overbreadth concerns expressed 
by the court.
  This compromise amendment carves out, in a clear and narrow way, a 
new category of electioneering that meets the Court's criteria. It 
draws a bright line between issue advocacy--which we don't want to 
infringe--and electioneering by laying out specific criteria that must 
be met in order to trigger the requirements of our amendment.
  Medium: The ad must be broadcast on radio or television.
  Timing: The ad must be aired shortly before an election--within 60 
days before a general election or 30 days before a primary.
  Candidate Specific: 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.
  Threshold: The sponsor of the ad must spend more than $10,000 on such 
electioneering ads in the calendar year.
  If and only if a broadcast communication meets all of these criteria 
do the following rules apply:
  First, the electioneering ad cannot be paid for directly or 
indirectly by funds from a business corporation or labor union. 
Advocacy groups could not use such funds to run electioneering ads. 
They could however, engage in unlimited electioneering ads using 
individual, voluntary funds. This provision builds on nearly a century 
of law and Supreme Court cases that restrict the use of union and 
corporate treasury money in politics. It is balanced in that it treats 
corporations and unions equally, and it gets at part of the problem of 
these entities using member dues and shareholder monies without their 
consent.
  Second, the sponsor of an electioneering ad must disclose the amount 
spent and the identity of contributors who donated more than $500 
toward the ad. This is entirely in keeping with the Supreme Court's 
Buckley decision, which stated that ``the governmental interests that 
justify disclosure of election-related spending are considerably 
broader and more powerful than those justifying prohibitions or 
restrictions on election-related spending.'' Indeed, the Court put 
forward a threshold of $200 in terms of contributions candidates need 
to disclose--our amendment's threshold is more than double that.
  We don't prohibit advocacy groups from disseminating electioneering 
communications. We don't prohibit such groups from accepting union or 
corporation money. We don't require such groups to create PACs or 
separate entities. We don't address voter guides, pamphlets, or any 
other print media.
  We don't affect groups' ability to urge grassroots contacts with 
lawmakers. We don't have invasive disclosure rules that require the 
disclosure of entire membership lists. We don't require the disclosure 
of the text of any ads. We don't even say that corporation or union 
leaders can't engage in political speech--just that they do it through 
a voluntarily, individually funded PAC.
  That's it, Madam President--that's our amendment. A simple, 
straightforward, reasonable, constitutional, brightly drawn line 
between issue advocacy and electioneering that only applies 30 days 
before a primary and 60 days before an election, if a candidate is 
identified, and only if more than $10,000 is spent.
  But you don't have to just take my word for it. The approach was 
developed by noted experts and reformers including Norm Ornstein of the 
American Enterprise Institute, Dan Ortiz at the University of Virginia 
School of Law, Josh Rosenkranz at the Brennan Center for Justice at NYU 
and others.
  And their approach has also been endorsed by Professor Thomas Baker, 
Texas Tech University School of Law; Professor Paul Kurtz, University 
of Georgia Law School; Professor William Cohen, Stanford Law School; 
Professor Harold Maier, Vanderbilt Law School; Professor Abner Mikva, 
University of Chicago; Professor Robert Aromson, University of 
Washington School of

[[Page S999]]

Law; Professor Ralph Stein, Pace University School of Law; Professor 
Robert Benson, Loyola Law School; Professor Elwood Hain, Whittier Law 
School; Professor Ann Freedman, Rutgers Law School, and Professor 
William Rich, Washburn University School of Law.
  Why? Why are all of these prominent scholars in agreement with this 
approach? Because it represents a common sense, middle ground approach 
around which the Senate can coalesce. That's the heart of compromise--
some feel the amendment doesn't go far enough, some wouldn't go as far. 
But this amendment would take substantial steps toward providing 
accountability in an exploding and currently unaccountable area of 
campaigning, and it would take steps toward abating some of the valid 
concerns raised about the use of union dues and shareholder monies for 
political purposes.
  Madam President, we've come to the bottom line here. Either we vote 
to keep the system as it is--either we vote to continue to allow 
hundreds of millions of dollars to be spent to influence federal 
elections without one dime having to be disclosed--or we take a 
tangible, incremental step toward addressing these abuses.
  A vote against this amendment is a vote against disclosure--and a 
vote for secrecy. A vote against this amendment is a vote against the 
public's right to know who is pouring millions into influencing our 
elections, and a vote for keeping America in the dark. A vote against 
this amendment is a vote against putting electioneering ads back into 
the hands of individuals and a vote for the involuntary use of union 
dues and shareholder monies for blatant political ads.
  Madam President, groups spent $150 million or more--we don't know 
because there is no accountability for these ads--to influence the 1996 
elections. That's about one-third of what all federal candidates spent 
on advertising. This is a massive force invading our system of 
elections in this country, flying under the radar screen of disclosure 
or any other accountability. And it's only going to get worse.
  All we are saying is, let's have some disclosure for these ads, let's 
give the public information they need in order to make informed 
decisions, and let's fund these ads with voluntary, individual 
contributions. That's not an infringement on free speech. That is 
bringing the facts about elections in America out of the shadows and 
into the light of debate and discourse.
  I hope my colleagues will join me in supporting this sensible, 
incremental approach that will advance the ball for campaign reform. 
Because frankly, if you can't support this--if you can't support 
disclosure--I don't know what kind of reform you can support. And the 
American people will be watching. The American people will be watching, 
and they will remember who is truly interested in working to restore 
America's faith in their elections--and they will remember, too, who 
are the doorkeepers of the status quo.
  I again thank Senators Jeffords, McCain, Feingold, as well as all of 
my distinguished colleagues who have joined me in this effort. We are 
in the majority in this body and I hope after the tabling vote we will 
be able to have a true up-or-down vote on our amendment.
  Madam President, and Members of the Senate, in the final analysis, 
what the Snowe-Jeffords amendment is all about is disclosure. We have 
heard a lot of issues here today. We have heard a lot about Supreme 
Court cases and constitutionality and infringement on the first 
amendment rights of freedom of speech.
  There is nothing in the Snowe-Jeffords amendment that will restrict 
freedom of speech. Anybody, anytime, can run any ad. The question is 
whether or not the public will have the right to know who is sponsoring 
and financing those ads. Even then the threshold is high for 
disclosure--$500 or more in donation.
  I suspect that when Congress was debating the sunshine laws and the 
right-to-know laws and opening up all of the meetings in the U.S. 
Congress that we had pretty much the very same debate.
  A vote against the Snowe-Jeffords amendment is a vote for secrecy. A 
vote against the Snowe-Jeffords amendment is a vote for the lack of 
accountability. We don't want to be the doorkeepers of the status quo 
for a system that has been shrouded in secrecy by the very fact that we 
have $150 million spent in elections. In this last election, not one 
dime has been disclosed. Not one dime. We have heard about editorials 
and newspaper and the print media being excluded. Does anybody think 
for one moment that that is where the money is put? Absolutely not.
  We have $550 million total that goes into candidate advertising. And 
a third of that is not disclosed. That is the issue.
  It is whether or not you are for secrecy, or the public's right to 
know who is supporting those ads. That is what it is all about.
  We have heard about issue advocacy. I think the body should look at 
what we are talking about. We are talking about issue advocacy versus 
stealth advocacy.
  I ask unanimous consent for additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. SNOWE. An issue ad that talks about the issues doesn't identify a 
candidate.
  This chart demonstrates the stealth advocacy that we are talking 
about that is not disclosed--that talks about individual candidates 60 
days before election. And this one would run 60 days before the 
election naming the candidate. It says, he is just another Washington 
politician. He has taken over $250,000 from corporate special interest 
groups. He listens to them but he is not listening to us anymore.
  No one knows who sponsored that ad. That is what this is all about--
whether or not the public will have the right to know who is financing 
these ads.
  The PRESIDING OFFICER. The Senator from Kentucky has 1 minute and 46 
seconds remaining.
  Mr. McCONNELL. I yield the remainder of my time, and I move to table 
the Snowe-Jeffords amendment, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.

                          ____________________