[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.
____________________