[Congressional Record Volume 144, Number 114 (Wednesday, September 2, 1998)]
[Senate]
[Pages S9891-S9894]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          INDEPENDENT COUNSEL

  Mr. SPECTER. Mr. President, I have sought recognition to comment on 
the statements made earlier today by Senator Hatch and Senator Leahy 
relating to an independent counsel because there is a specific course 
of action which can be taken to break the impasse, in my legal 
judgment, and that is with an action for mandamus in the United States 
District Court for the District of Columbia to compel Attorney General 
Reno to appoint an independent counsel.
  There is no doubt about the serious allegations and scandals in 
campaign financing. The Governmental Affairs Committee on which I serve 
conducted extensive hearings last year which showed beyond any doubt 
irregularities of a most important sort, and some even involving 
contributions coming from foreign sources traceable to the Government 
of China. In the face of this overwhelming evidence, the Attorney 
General has declined to appoint an independent counsel.
  The remedy is present for a mandamus action, which would be directed 
on two legal lines. One is where Attorney General Reno has failed to 
carry out a mandatory duty, where the independent counsel statute says 
that she shall act on covered persons, and an alternative legal 
approach where there is an abuse of a discretionary duty where there is 
a conflict of interest, and there is both an actual and an apparent 
conflict of interest. Importantly, Attorney General Reno, when 
questioned during her confirmation hearing, was a great advocate of an 
independent counsel on precisely the kind of circumstances which are 
presented here.
  The mandamus action was pursued on three individual occasions, and 
the United States District Court for the District of Columbia did order 
mandamus. All three of those cases were reversed for reasons which are 
not applicable here, where there was lack of standing which was 
delineated in extensive discussions in the court of appeals on two of 
those cases. But those three cases by district court judges did confirm 
the legal approach which I am advocating here today, and which is 
encompassed in an extensive lawsuit, which has been prepared against 
Attorney General Reno, calling for a mandamus action.
  In two of the cases they were reversed because of lack of standing, 
and that is a legal issue which poses a hurdle which I believe can be 
overcome by action by a majority of the majority of the Judiciary 
Committee of either the House of Representatives or the U.S. Senate. 
The independent counsel statute gives a majority of the majority of 
each Judiciary Committee unique positioning to have the requisite 
standing to require an answer by the Attorney General on a statement of 
facts and a request that independent counsel be appointed. That does 
not mean conclusively that there would be standing for a mandamus 
action, but it is a very strong argument in support of that standing. 
And, in two of the cases where the court of appeals reversed an order 
for independent counsel to be appointed, the special standing of 
Congress and the special standing of the Judiciary Committee was noted. 
In one of the cases, the Court of Appeals for the District of Columbia 
referred to congressional oversight, which this would be, and in 
another case the Court of Appeals for the District of Columbia referred 
to the special positioning, which the Judiciary Committee had.
  There is another issue, laying all the cards on the table face up, as 
to separation of powers, on matters which were raised in the decision 
by the Supreme Court of the United States in the case of Morrison v. 
Olson, upholding the constitutionality of the independent counsel 
statute. Some of the language of the Supreme Court there has been 
cited, from time to time, as raising a hurdle for this kind of a 
lawsuit. But I would point out that, on two of the issues which were 
raised by the Supreme Court of the United States, the legal argument 
runs in favor of this kind of an action.
  The Supreme Court there referred to a provision of the statute which 
said that there could be ``no judicial review of an action by the 
Attorney General appointing independent counsel.'' But the negative 
implication there is that review would be possible where the Attorney 
General declines to appoint an independent counsel. There is also a 
provision in the statute which says that there may be no judicial 
review by the special three-judge panel where the Attorney General 
decides not to appoint an independent counsel, and again, by negative 
implication, there can be review by the United States District Court 
for the District of Columbia. The three-judge panel is a special panel 
created to make the actual appointment of an independent counsel.
  Mr. President, in outlining these legal hurdles, there is no doubt 
that there are problems here. But, in my legal judgment, each of these 
hurdles and any other can be surmounted. And certainly, where there is 
such a pressing reason to move because of what has happened here on a 
compelling factual basis, I strongly believe that this effort ought to 
be made and that it can be made by a majority of the majority on the 
Judiciary Committee of the Senate or a majority of the majority in the 
House. And perhaps it would be appropriate for both the House and the 
Senate to join together as parties plaintiff to solidify and enforce 
the standing issue and the importance of this action.
  My views are not those which I express lightly. They did not arise in 
the course of the last few days or the last few weeks. My initial 
concerns were expressed in a Judiciary oversight hearing back on April 
30 of 1997, when Attorney General Reno appeared before the Senate 
Judiciary Committee and was questioned extensively by a number of 
Members, including myself. At that time I pressed Attorney General Reno 
on some of the so-called issue advertisements which were really, by any 
legal interpretation, express advocacy.
  Now, if they are express advocacy, and if there is coordination with 
the Republican National Committee or the Democratic National Committee, 
then they violate the law; they violate the Federal election law. And, 
in articulating this concern, on a number of occasions I have said that 
there is fault on both sides, both by the Republican National Committee 
and the Democratic National Committee. But the activities by the 
Democratic National Committee stand on a different level because of the 
active participation by President Clinton himself in micromanaging the 
campaign and in working on these commercials. We know that from the 
testimony, statements of Mr. Leon Panetta, Chief of Staff of President 
Clinton, and from the statements of Mr. Dick Morris, who was the 
President's principal adviser on these campaign matters.

[[Page S9892]]

  This is illustrative of what these commercials had to say. This 
appeared on advertising:
  Head Start, student loans, toxic cleanup, extra police, anti-drug 
programs--Dole-Gingrich wanted them cut. Now, they're safe, protected 
in the 1996 budget because the president stood firm. Dole-Gingrich--
deadlock, gridlock, shutdowns. The president's plan--finish the job, 
balance the budget, reform welfare, cut taxes, protect Medicare. 
President Clinton gets it done. Meet our challenge, protect our values.
  Under no stretch of the imagination could that kind of advertisement 
be classified as articulating an issue only contrasted with 
articulating advocacy for the President's campaign.
  I asked Attorney General Reno about that specifically on April 30 of 
1997. Her response to me was that based on a memorandum of 
understanding with the Federal Election Commission, it was up to the 
Federal Election Commission.
  On the next day, May 1, 1997, I wrote to Attorney General Reno with a 
long list of specific advertisements which were conclusively advocacy 
ads which, when designated and designed and worked on by the President 
himself, would constitute a violation of the law.
  On June 17, I received a reply from Attorney General Reno and then 
from the Federal Election Commission saying that the Attorney General 
was saying it was up to the Federal Election Commission and the Federal 
Election Commission said that they would give advisory opinions. That 
is something for the future but not something that had already been 
done.
  Mr. President, I ask unanimous consent that my letter of May 1, 1997, 
the reply from the Attorney General, and the letter from the Federal 
Election Commission be printed in the Record at the conclusion of my 
statement.
  The PRESIDING OFFICER (Mr. Brownback). Without objection, it is so 
ordered.
  (See Exhibit 1.)
  Mr. SPECTER. Mr. President, I returned to this issue with Attorney 
General Reno when she came in for an oversight hearing on July 15 of 
this year and confronted Attorney General Reno with the very basic fact 
that the Federal election law, with criminal provisions, is the 
responsibility of the Department of Justice to enforce and the 
responsibility of the chief enforcement officer, the Attorney General, 
to enforce, so that by no stretch of the imagination would it be 
plausible for the Attorney General to say that it was a matter for the 
Federal Election Commission. Notwithstanding that, the Attorney General 
continued to articulate this argument that it was a matter for the 
Federal Election Commission, which I submit, and I say this 
respectfully, is spurious and facetious on its face. How can it be a 
matter for the Federal Election Commission when it is a criminal law, 
criminal sanction which is the responsibility of the Attorney General 
and the Department of Justice? This was a very, very material matter.
  Mr. President, I think it is relevant at this point to display a 
couple of charts, one of which is on the issue of covered persons. 
Referring to the coordination of advocacy advertisements, President 
Clinton made a statement on December 7 of 1995 at a Democratic National 
Committee lunch, which is really more than a smoking gun, it is a 
firing gun, that is on these advertisements. This is the President's 
voice on tape:

       Now we have come way back. . . . But one of the reasons has 
     been. . .we have been running these ads, about a million 
     dollars a week. . . . So I cannot overstate to you the impact 
     that these paid ads have had in the areas where they've run. 
     Now we're doing better in the whole country. . . . [I]n areas 
     where we've shown these ads we are basically doing ten to 
     fifteen points better than in areas where we are not showing 
     them. . . .

  The chart shows Leon Panetta confirmed that President Clinton helped 
direct expenditures of $35 million in DNC ads, and Dick Morris 
confirmed that President Clinton micromanaged the TV ad campaign.
  This chart was presented during the Judiciary Committee hearing. In 
addition, the instance of the covered persons where a Mr. Warren 
Meddoff on October 22, 1996, personally handed President Clinton a 
business card with a written message suggesting a $5 million 
contribution.
  Two days later on October 24 and again on October 26, deputy chief of 
staff Harold Ickes solicited Mr. Meddoff, including a call from Air 
Force One.
  On October 29 and 30, Mr. Ickes called Mr. Meddoff and asked for an 
immediate contribution of $1.5 million within 24 hours.
  There are two other instances depicted on this chart, and this chart 
only covers a very limited amount of information which was disclosed in 
the hearings of the Governmental Affairs Committee. One of them was a 
coffee which was held in the Oval Office. The President had received a 
memorandum from the Democratic National Committee which bore the 
President's writing, so we know that it was actually seen by the 
President.
  This memorandum identified five individuals who, according to the 
memo, would be good for a contribution of $100,000 each. They were 
accorded a coffee in the White House. On May 1, there was this coffee 
in the Oval Office. Within the course of the week, four of the 
individuals contributed $100,000 each. That is not in the living 
quarters. That is not in any way, shape or form justifiable.
  When I asked Attorney General Reno about this specifically--and bear 
in mind that at Judiciary Committee hearings, we have a very limited 
amount of time. It is not like a speech on the Senate floor where there 
is unlimited debate. Attorney General Reno said to me, when I asked her 
if this did not constitute where four people came in--bear with me. Let 
me read the specific information as to the question I put to the 
Attorney General, whether this wasn't specific and credible evidence 
which would satisfy the test of the independent counsel statute.
  At page 193 of the record:

       Attorney General Reno: I will be happy to review it with 
     the task force and get back to you, Senator.
       Senator Specter. Well, OK. I would ask you to review the 
     balance of it. We will provide you with more of the specific 
     and credible evidence, but don't you have a judgment today, 
     Madam Attorney General?
       Attorney General Reno: I will review it with the task 
     force.

  The other specific bit of evidence was a June 18, 1996, coffee. In 
the presence of President Clinton, John Huang solicited the attendees 
saying:

       Elections cost money, lots and lots of money, and I am sure 
     that every person in this room will want to support the re-
     election of President Clinton.

  This language is important because it was stated in the presence of 
the President in the White House. We know that from the testimony of a 
former official in the National Security Council who was sitting on one 
side of the President, a greater distance from the individual who made 
the statement and the comment was heard.
  Again, when confronted with this specifically, the Attorney General 
declined to give an opinion but said she would get back to me.
  That was on July 15 of this year. And more than 45 days have passed, 
and we still do not have the information.
  Very briefly--I will not belabor the point--this was another chart 
presented at Judiciary Committee hearings which shows the alternative 
approach on the legal issue, and that is, conflict of interest, where 
you have Johnny Chung, who contributed some $366,000 to the Democratic 
National Committee, you have the connection with the President, Vice 
President, and Mr. Glicken. You have a connection with President 
Clinton and Pauline Kanchanalak, the connection between President 
Clinton and John Huang, the connection between Vice President Gore and 
Maria Hsia, the connection between President Clinton and Charlie Trie.
  In all of these matters there is a conflict of interest where these 
individuals have been indicted. All except for Mr. Huang, there is the 
delicate matter of plea bargaining and a matter where there ought to be 
independent counsel not being directed by the Attorney General, who is 
the appointee of the President.
  As outlined in some detail earlier by Senator Hatch--and I will not 
go over that ground--this evidence has been so compelling that FBI 
Director Louis Freeh has taken the public position that independent 
counsel ought to be appointed, not an easy thing to do for the FBI 
Director, who is a subordinate of the Attorney General. But the FBI 
Director made that statement.
  Then you have the legal judgment of Mr. Charles LaBella, who is the 
chief prosecutor, also to the effect that independent counsel ought to 
be appointed.

[[Page S9893]]

 Then when Mr. LaBella was expected to be appointed as U.S. Attorney 
for the Southern District of California, he was skipped over--a 
question which needs to be answered in terms of whether his candid 
approach, disagreeing with the Attorney General of the United States, 
was a causal factor in his being passed over.
  Mr. President, what I have outlined here is a very, very brief 
statement of very, very compelling evidence of irregularities in 
campaign finance. And when you deal with the issue of how Federal 
elections for the Presidency, for the Senate, and the House of 
Representatives are financed, that goes right to the core of our 
democratic institutions.
  There is an enormous amount of skepticism in America today with the 
way we have political activities. I just finished, during the course of 
August, some 12 to 15 town meetings. In every meeting I was asked about 
campaign finance reform. And there was obvious cynicism by my 
constituents and really disgust with the way the system is run. And I 
was asked whether there would be campaign finance reform.
  On a number of occasions it was noted that the House of 
Representatives had taken the bull by the horns and had passed campaign 
finance reform. And when asked whether it would be done in the Senate, 
I candidly said it was highly doubtful that 8 additional Senators could 
be found to join the 52 of us who have voted for cloture in order to 
have campaign finance reform.
  If independent counsel were appointed and we got to the bottom of 
these issues--and many, many more--I think there would be a tidal wave 
of public insistence on campaign finance reform which is very necessary 
for the integrity of the electoral process.
  When Senator Hatch, the chairman of the Judiciary Committee, speaks 
at great length about his frustration in what the Attorney General has 
not done, that is a frustration I think shared by most of Americans. 
Certainly it is a frustration which I share, and I think is shared by 
most of the members of the Judiciary Committee and most of the Members 
of the Congress of the United States.
  In preparing this complaint in mandamus, we have a course of action 
which has a realistic chance of success. Is it a guarantee? No. There 
are many lawsuits which are filed, litigation, matters which are 
initiated which are not absolute guarantees. But when you have very, 
very compelling factual circumstances, as you do here, it is my legal 
judgment that the hurdles which have to be overcome can be overcome. 
And certainly it is an alternative which ought to be tried. It is my 
hope that the Attorney General will respond and appoint independent 
counsel. When she has, again, taken steps to have an additional 
investigation for 90 days, it is not totally insufficient, but it is a 
sharp indication that she has no intention to go to the core problems, 
some of which I have outlined here today.
  When she activates a 90-day period of an investigation of Vice 
President Gore on the telephone calls, that is really a red herring, an 
effort to show some action which is totally--totally--insufficient. 
When she activates, as she did the day before yesterday, a 90-day 
period on Deputy Chief of Staff Ickes on a very limited phase, that 
again is totally insufficient.
  What is necessary is to pick up the broad range of investigative 
leads identified by to the Director of the Federal Bureau of 
Investigation, Louis Freeh, and the broad range of leads identified by 
the chief counsel on the matter, Charles LaBella, to proceed. And if 
the Attorney General does not proceed, then it is my strong 
recommendation that the Judiciary Committee, a majority of the 
majority, take the bull by the horns and move to take action to compel 
the appointment of independent counsel through a mandamus act.
  The draft copy of the complaint of mandamus--may I add that this is 
not carved in stone, that we are actively working to update it and to 
improve the complaint of mandamus, will outline the legal bases and is 
an outline of the evidentiary base for such an action.

                               Exhibit 1

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                      Washington, DC, May 1, 1997.
     Hon. Janet Reno,
     Attorney General, Department of Justice, Washington, DC.
       Dear Attorney General Reno: Following up on yesterday's 
     hearing, please respond for the record whether, in your legal 
     judgment, the text of the television commercials, set forth 
     below, constitutes ``issue advocacy'' or ``express 
     advocacy.''
       The Federal Election commission defines ``express 
     advocacy'' as follows:
       ``Communications using phrases such as ``vote for 
     President,'' ``reelect your Congressman,'' ``Smith for 
     Congress,'' or language which, when taken as a whole and with 
     limited reference to external events, can have no other 
     reasonable meaning than to urge the election or defeat of a 
     clearly identified federal candidate.'' 11 CFR 100.22
       The text of the television commercials follows:
       ``American values. Do our duty to our parents. President 
     Clinton protects Medicare. The Dole/Gingrich budget tried to 
     cut Medicare $270 billion. Protect families. President 
     Clinton cut taxes for millions of working families. The Dole/
     Gingrich budget tried to raise taxes on eight million of 
     them. Opportunity. President Clinton proposes tax breaks for 
     tuition. The Dole/Gingrich budget tried to slash college 
     scholarships. Only President Clinton's plan meets our 
     challenges, protects our values.
       ``60,000 felons and fugitives tried to buy handguns--but 
     couldn't--because President Clinton passed the Brady Bill--
     five-day waits, background checks. But Dole and Gingrich 
     voted no. One hundred thousand new police--because President 
     Clinton delivered. Dole and Gingrich? Vote not, want to 
     repeal 'em. Strengthen school anti-drug programs. President 
     Clinton did it. Dole and Gingrich? No again. Their old ways 
     don't work. President Clinton's plan. The new way. Meeting 
     our challenges, protecting our values.
       ``America's values. Head Start. Student loans. Toxic 
     cleanup. Extra police. Protected in the budget agreement; the 
     president stood firm. Dole, Gingrich's latest plan includes 
     tax hikes on working families. Up to 18 million children face 
     healthcare cuts. Medicare slashed $167 billion. Then Dole 
     resigns, leaving behind gridlock he and Gingrich created. The 
     president's plan: Politics must wait. Balance the budget, 
     reform welfare, protect our values.
       ``Head Start. Student loans. Toxic cleanup. Extra police. 
     Anti-drug programs. Dole, Gingrich wanted them cut. Not 
     they're safe. Protected in the '96 budget--because the 
     President stood firm. Dole, Gingrich? Deadlock. Gridlock. 
     Shutdowns. The president's plan? Finish the job, balance the 
     budget. Reform welfare. Cut taxes. Protect Medicare. 
     President Clinton says get it done. Meet our challenges. 
     Protect our values.
       ``The president says give every child a chance for college 
     with a tax cut that gives $1,500 a year for two years, making 
     most community colleges free, all colleges more affordable . 
     . . And for adults, a chance to learn, find a better job. The 
     president's tuition tax cut plan.
       ``Protecting families. For millions of working families, 
     President Clinton cut taxes. The Dole-Gingrich budget tried 
     to raise taxes on eight million. The Dole-Gingrich budget 
     would have slashed Medicare $270 billion. Cut college 
     scholarships. The president defended our values. Protected 
     Medicare. And now, a tax cut of $1,500 a year for the first 
     two years of college. Most community colleges free. Help 
     adults go back to school. The president's plan protects our 
     values.''
           Sincerely,
     Arlen Specter.
                                  ____



                               Office of the Attorney General,

                                    Washington, DC, June 19, 1997.
     Hon. Arlen Specter,
     U.S. Senate, Washington, DC.
       Dear Senator Specter: I have received your letter of May 1, 
     1997, asking that I offer you my legal opinion as to whether 
     the text of certain television commercials constitutes 
     ``express advocacy'' within the meaning of regulations of the 
     Federal Election Commission (``FEC''). For the reasons set 
     forth below, I have referred your request to the FEC for its 
     consideration and response.
       Under the Federal Election Campaign Act, the FEC has 
     statutory authority to ``administer, seek to obtain 
     compliance with, and formulate policy with respect to'' FECA, 
     and exclusive jurisdiction with respect to civil enforcement 
     of FECA. 2 U.S.C. Sec. 437c(b)(1), See 2 U.S.C. Sec. 437d(e) 
     (FEC civil action is ``exclusive civil remedy'' for enforcing 
     FECA). The FEC has the power to issue rules and advisory 
     opinions interpreting the provisions of FECA. 2 U.S.C. 
     Sec. Sec. 437f, 438. The FEC may penalize violations of FECA 
     administratively or through bringing civil actions. 2 U.S.C. 
     Sec. 437g. In short, ``Congress has vested the Commission 
     with `primary and substantial responsibility for 
     administering and enforcing the Act.' '' FEC v. Democratic 
     Senatorial Campaign Comm., 454 U.S. 27, 37 (1981), quoting 
     Buckley v. Valeo, 424 U.S. 1, 109 (1976).
       The legal opinion that you seek is one that is particularly 
     within the competence of the FEC, and not one which has 
     historically been made by the Department of Justice. 
     Determining whether these advertisements constitute ``express 
     advocacy'' under the FEC's rules will require consideration 
     not only of their content but also of the timing and 
     circumstances under which they were distributed. The FEC has 
     considerably more experience than the Department in making 
     such evaluations. Moreover, your request involves 
     interpretation of a rule promulgated by the

[[Page S9894]]

     FEC itself. Indeed, it is the standard practice of the 
     Department to defer to the FEC in interpreting its 
     regulations.
       There is particular reason to defer to the expertise of the 
     FEC in this matter, because the issue is not as clear-cut as 
     you suggest. In FEC v. Colorado Republican Federal Campaign 
     Comm., 839 F. Supp. 1448 (D. Colo. 1993), rev'd on other 
     grounds,  59 F.3d 1015 (10th Cir. 1995), vacated, 116 S.Ct. 
     2309 (1996), the United States District Court held that the 
     following advertisement, run in Colorado by the state 
     Republican Federal Campaign Committee, did not constitute 
     ``express advocacy'':
       ``Here in Colorado we're used to politicians who let you 
     know where they stand, and I though we could count on Tim 
     Wirth to do the same. But the last few weeks have been a real 
     eye-opener. I just saw some ads where Tim Wirth said he's for 
     a strong defense and a balanced budget. But according to his 
     record, Tim Wirth voted against every new weapon system in 
     the last five years. And he voted against the balanced budget 
     amendment.
       ``Tim Wirth has a right to run for the Senate, but he 
     doesn't have a right to change the facts.''
       839 F. Supp. at 1451, 1455-56. The court held that the 
     ``express advocacy'' test requires that an advertisement ``in 
     express terms advocate the election or defeat of a 
     candidate.'' Id. at 1456. The Court of Appeals reversed the 
     District Court on other grounds, holding that ``express 
     advocacy'' was not the appropriate test, and the Supreme 
     Court did not reach the issue.
       Furthermore, a pending matter before the Supreme Court may 
     assist in the legal resolution of some of these issues; the 
     Soliciter General has recently filed a petition for 
     certiorari on behalf of the FEC in the case of Federal 
     Election Commission v. Maine Right to Life Committee, Inc., 
     No. 96-1818, filed May 15, 1997. I have enclosed a copy of 
     the petition for your information. It discusses at some 
     length the current state of the law with respect to the 
     definition and application of the ``express advocacy'' 
     standard in the course of petitioning the Court to review the 
     restrictive definition of the standard adopted by the lower 
     courts in that case.
       It appears, therefore, that the proper legal status of 
     these advertisements under the regulations issued by the FEC 
     is a question that is most appropriate for initial review by 
     the FEC.
       Accordingly, I have referred your letter to the FEC for its 
     consideration. Thank you for your inquiry on this important 
     matter, and do not hesitate to contact me if I can be of any 
     further assistance.
           Sincerely,
     Janet Reno.
                                  ____

         Office of the Assistant Attorney General, U.S. Department 
           of Justice,
                                    Washington, DC, June 19, 1997.
     Hon. John Warren McGarry,
     Chairman, Federal Election Commission, Washington, DC.
       Dear Mr. Chairman: Enclosed for the attention and whatever 
     further reply the Federal Election Commission (FEC) finds to 
     be appropriate is a copy of an exchange of correspondence 
     between the Attorney General and Senator Arlen Specter of 
     Pennsylvania concerning the application of the Commission's 
     rules governing issue advocacy by political parties to a 
     specific advertisement. The Department of Justice regards the 
     subject matter of this inquiry as properly within the primary 
     jurisdiction of the FEC.
       If we can assist the Commission in any way in this matter, 
     please let me know.
           Sincerely,
                                                  Mark M. Richard,
     Acting Assistant Attorney General.
                                  ____



                                  Federal Election Commission,

                                    Washington, DC, June 26, 1997.
     Hon. Arlen Specter,
     U.S. Senate, Washington, DC.
       Dear Senator Specter: Your letter of May 1, 1997 to 
     Attorney General Reno has been referred by the Department of 
     Justice to the Federal Election Commission. Your letter asks 
     for a legal opinion on whether the text of certain 
     advertisements constitutes ``issue advocacy'' or ``express 
     advocacy''.
       As the Attorney General's June 19, 1997 letter to you 
     correctly notes, the Federal Election Commission has 
     statutory authority to ``administer, seek to obtain 
     compliance with, and formulate policy with respect to'' the 
     Federal Election Campaign Act (``FECA''). 2 U.S.C. 
     Sec. 437c(b)(1). The Commission's policymaking authority 
     includes the power to issue rules and advisory opinions 
     interpreting the FECA and Commission regulations. 2 U.S.C. 
     Sec. Sec. 437f and 438.
       Your May 1 letter notes that the Commission has promulgated 
     a regulatory definition of ``express advocacy'' at 11 CFR 
     100.22. While the Commission may issue advisory opinions 
     interpreting the application of that provision, the FECA 
     places certain limitations on the scope of the Commission's 
     advisory opinion authority. Specifically, the FEC may render 
     an opinion only with respect to a specific transaction or 
     activity which the requesting person plans to undertake in 
     the future. See 2 U.S.C. 437f(a) and 11 CFR 112.1(b). Thus, 
     the opinion which you seek regarding the text of certain 
     advertisements does not qualify for advisory opinion 
     treatment, since the ads appears to be ones previously aired 
     and do not appear to be communications that you intend to air 
     in the future. Moreover, ``[n]o opinion of an advisory nature 
     may be issued by the Commission or any of its employees 
     except in accordance with the provisions of [section 437f].'' 
     2 U.S.C. Sec. 437f(b).
       While the FECA's confidentiality provision precludes the 
     Commission from making public any information relating to a 
     pending enforcement matter, I note that past activity such as 
     the advertisements you describe may be the subject of 
     compliance action. If you believe that the advertisements in 
     question involve a violation of the FECA, you may file a 
     complaint with the Commission pursuant to 2 U.S.C. 
     Sec. 437g(a) noting who paid for the ads and any additional 
     information in your possession that would assist the 
     Commission's inquiry. The requirements for filing a complaint 
     are more fully described in the enclosed brochure.
       I hope that this information proves helpful to your 
     inquiry. Please feel free to contact my office or the Office 
     of General Counsel if you need further assistance.
           Sincerely,
                                              John Warren McGarry,
                                                         Chairman.

  Mr. SPECTER. Mr. President, that concludes my remarks and I see staff 
bringing me the concluding papers, which I shall present.

                          ____________________