[Congressional Record Volume 146, Number 69 (Wednesday, June 7, 2000)]
[Senate]
[Pages S4649-S4661]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2001--Continued
The PRESIDING OFFICER. The Senator from Virginia.
Amendment No. 3197
Mr. WARNER. Mr. President, the pending business is the amendment
offered by the Senator from Arizona; am I not correct?
The PRESIDING OFFICER. The Senator has 33 minutes.
Mr. WARNER. It is my intention to yield back the time, I say to my
colleagues. I will wait momentarily, and we can proceed to the vote.
Has the vote been ordered, Mr. President?
The PRESIDING OFFICER. The yeas and nays have not been ordered.
Mr. WARNER. I ask for the yeas and nays on the McCain-Levin
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
Mr. WARNER. Mr. President, we jointly yield back all time. The vote
may proceed.
The PRESIDING OFFICER. The question is on agreeing to amendment No.
3197. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from New Mexico (Mr.
Domenici and the Senator from Idaho (Mr. Crapo) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 35, nays 63, as follows:--
The result was announced--yeas 35, nays 63, as follows:
[Rollcall Vote No. 120 Leg.]
YEAS--35
Bayh
Biden
Bryan
Byrd
Chafee, L.
DeWine
Feingold
Gramm
Grassley
Hagel
Harkin
Jeffords
Kennedy
Kerrey
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lugar
McCain
Moynihan
Reed
Reid
Robb
Rockefeller
Roth
Smith (OR)
Thompson
Voinovich
Wellstone
Wyden
NAYS--63
Abraham
Akaka
Allard
Ashcroft
Baucus
Bennett
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Campbell
Cleland
Cochran
Collins
Conrad
Coverdell
Craig
Daschle
Dodd
Dorgan
Durbin
Edwards
Enzi
Feinstein
Fitzgerald
Frist
Gorton
Graham
Grams
Gregg
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Johnson
Lautenberg
Lott
Mack
McConnell
Mikulski
Murkowski
Murray
Nickles
Roberts
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Snowe
Specter
Stevens
Thomas
Thurmond
Torricelli
Warner
NOT VOTING--2
Crapo
Domenici
The amendment (No. 3197) was rejected.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. Mr. President, I wish to keep all Senators informed. We
are making progress on this bill. We are still anxious to get
indications from Senators with regard to their amendments. We are
having very good cooperation on both sides. I will address that later
this evening.
Under the existing order, I believe it is now the amendment of the
Senator from Virginia. Am I not correct?
The PRESIDING OFFICER. That is correct.
Mr. WARNER. I ask unanimous consent that this amendment be laid aside
temporarily.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I ask unanimous consent that following the
disposition of the Wellstone amendment--that will now be the pending
business as soon as I yield the floor. Is that correct?
The PRESIDING OFFICER. That is correct.
Mr. WARNER. Following the disposition of the Wellstone amendment,
which is subject to a 30-minute time agreement, I ask unanimous consent
that Senator Robert Smith be recognized to offer his amendment
regarding security clearances on which there will be 30 minutes equally
divided with no amendments in order prior to the vote in relation to
the amendment.
Mr. BIDEN. Mr. President, reserving the right to object, I will
object, unless I can be assured that I have an agreement to 1 hour
equally divided. If I can be put in the order after Senator Smith, I
will not object.
Mr. LEVIN. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. WARNER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WELLSTONE. 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. WELLSTONE. Mr. President, I am trying to move things forward.
Senator Helms and I are working out language. I think we will have an
agreement, but I thought I would start speaking on this amendment so we
can move this forward.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, this is a sense-of-the-Senate amendment
that deals with the importance of condemning the use of child soldiers
in dozens of countries around the world. It is also about very
important protocol that is being developed and the importance of
building support for it and moving forward as expeditiously as possible
on this question.
Today, there are 300,000 children who are currently serving as
soldiers in current armed conflicts. Child soldiers are being used in
30 countries around the world, including Colombia, Lebanon, and Sierra
Leone. Child soldiers witness and are often forced to participate in
horrible atrocities.
I am talking about 10-year-olds being abducted, forced to participate
in horrible atrocities, including beheadings, amputations, rape, and
the burning of people alive. These young combatants are forced to
participate in all kinds of contemporary warfare. They wield AK-47s and
M 16s on the front lines. They serve as human mine detectors. They
participate in suicide missions. They carry supplies and act as spies,
messengers, or lookouts.
One 14-year-old girl abducted in January 1999 by the Revolutionary
United Front, a rebel group in Sierra Leone, reported to human rights
observers:
I've seen people get their hands cut off, a ten-year-old
girl raped and then die, and so many men and women burned
alive * * * So many times I just cried inside my heart
because I didn't dare cry out loud.
Mr. President, no child should experience such trauma. No child
should experience such pain.
Last year, I introduced a resolution expressing the sense of the
Congress
[[Page S4650]]
that U.S. policy permit consensus on language on this optional protocol
on child soldiers, directing the State Department to work positively to
address its concerns, in language within the United Nations Working
Group on Child Soldiers. Today I thank the State Department for its
work, and I thank the Department of Defense for its conscientious work,
and I thank the Joint Chiefs of Staff for signing off on this protocol.
I think it is terribly important work.
On January 21 in Geneva, representatives from more than 80 countries,
including the United States, worked out an agreement raising the
minimum wage for conscription in direct participation in armed conflict
to 18 and prohibiting the recruitment and use in armed conflict of
persons under the age of 18 by nongovernmental armed forces. The
agreement calls on governments to raise the minimum wage for voluntary
recruitment above the current standard of 15 but still allows the armed
forces to accept voluntary recruits from the age of 16, subject to
certain safeguards.
The Pentagon, and again the State Department, Harold Cohen in
particular, have been great to work with. I believe this is a
humanitarian crisis that we ought to address now. It is absolutely
unbelievable that in the year 2000 we see people as young as age 10
abducted--I have talked to some of the mothers of these children who
are abducted--and forced to commit atrocities. It is unbelievable that
we see children age 10 cutting off the arms of other people, engaging
in murder. It is unbelievable the extent to which young women are
abducted, and they themselves are terrorized and raped. This is a
practice that takes place in 30 countries around the world involving
300,000 children.
Finally, after years of work, the United Nations has put together an
important protocol. We are, I believe, close to supporting this.
In conclusion, this is just a sense-of-the-Senate resolution that the
Congress joins in condemning the use of children as soldiers by
governmental and nongovernmental armed forces. We talk about the
importance of taking this action. We make it clear that it is essential
that the President consult closely with the Senate in the objective of
building support for the protocol, and we also urge the Senate to move
forward as expeditiously as possible.
I think it is important that all of us support this. I urge my
colleagues to do so. I want colleagues to know that Congressman Lewis
and Congressman Lantos on the House side have a very similar
resolution.
Mr. DURBIN. Will the Senator from Minnesota yield for a question?
Mr. WELLSTONE. I am pleased to yield.
Mr. DURBIN. I commend my colleague for bringing this issue to our
attention. I think it is particularly timely that he would raise this
on the floor of the Senate. In a trip to Africa just a few months ago,
I discovered the ravages of the AIDS epidemic. There are some 10
million AIDS orphans. These children are likely to become the soldiers
in these armies the Senator from Minnesota has just described. The
young girls are likely to become either victimized or prostitutes
themselves, who are going to really, in a way, continue this cycle of
disease and dependency and death.
I commend my colleague from the State of Minnesota, Senator
Wellstone, for calling this important moral issue to the attention of
the Senate. I rise in strong support. I ask him if he has considered
the impact of the AIDS epidemic and similar health problems that have
created so many orphans in Africa, and now we have the fastest growth
of HIV infection in the world in India, and the impact this could have
on the issue he has raised.
Mr. WELLSTONE. Mr. President, in the time I have remaining let me say
to my colleague from Illinois, I believe my colleague from Illinois,
the Senator from California, the Senator from Wisconsin, and others
have really brought to our attention the number of citizens, not just
children, who are HIV infected, struggling with AIDS. It is a
humanitarian crisis of tremendous proportions.
I think for too long the world has just turned its gaze away from
this and from the whole question of how to get affordable drug
treatment to deal with this, prescription drug treatment, to ways in
which our country ought to be more engaged, to ways in which we can
encourage governments in Africa to deal directly with this. Finally, we
are doing so. My colleague is right, it is also true, for the worst of
economic reasons or reasons of desperation, that these young people,
including young people infected with AIDS, are the recruits. They
become the child soldiers--again, colleagues, 300,000 children, many of
them abducted, in 30 countries, used as child soldiers.
This resolution, I think, is terribly important. Our Department of
Defense and State Department have worked hard. A year ago, our
Government was not supporting this. I think we now have language that
is important language. This simply urges the Senate to condemn this
practice and talks about the importance of the President moving forward
and building support for this protocol, and it calls upon the Senate to
act expeditiously on this matter.
I hope there will be 100 votes for this. I thank my colleague Senator
Helms, chairman of the Foreign Relations Committee, for working with
me. We have changed some language, and I think we have a good
resolution.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. HELMS. Mr. President, I ask unanimous consent it be in order for
me to speak from my seat.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HELMS. I thank the Chair.
Mr. President, I have prepared the best speech you will never hear. I
was prepared to have to oppose my friend from Minnesota, but we have
come to an understanding about this matter. We have agreed to amend and
modify the proposed amendment in a way that makes it satisfactory to
me.
Amendment No. 3211
(Purpose: To express condemnation of the use of children as soldiers
and expressing the belief that the United States should support and,
where possible, lead efforts to end this abuse of human rights)
Mr. WELLSTONE. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER (Mr. Smith of Oregon). The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Minnesota [Mr. Wellstone], for himself and
Mr. Durbin, proposes an amendment numbered 3211.
Mr. WELLSTONE. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 462, between lines 2 and 3, insert the following:
SEC. 1210. SENSE OF CONGRESS REGARDING THE USE OF CHILDREN AS
SOLDIERS.
(a) Findings.--Congress finds that--
(1) in the year 2000 approximately 300,000 individuals
under the age of 18 are participating in armed conflict in
more than 30 countries worldwide;
(2) many of these children are forcibly conscripted through
kidnapping or coercion, while others join military units due
to economic necessity, to avenge the loss of a family member,
or for their own personal safety;
(3) many military commanders frequently force child
soldiers to commit gruesome acts of ritual killings or
torture against their enemies, including against other
children;
(4) many military commanders separate children from their
families in order to foster dependence on military units and
leaders, leaving children vulnerable to manipulation, deep
traumatization, and in need of psychological counseling and
rehabilitation;
(5) child soldiers are exposed to hazardous conditions and
risk physical injuries, sexually transmitted diseases,
malnutrition, deformed backs and shoulders from carrying
overweight loads, and respiratory and skin infections;
(6) many young female soldiers face the additional
psychological and physical horrors of rape and sexual abuse,
being enslaved for sexual purposes by militia commanders, and
forced to endure severe social stigma should they return
home;
(7) children in northern Uganda continue to be kidnapped by
the Lords Resistance Army (LRA), which is supported and
funded by the Government of Sudan and which has committed and
continues to commit gross human rights violations in Uganda;
(8) children in Sri Lanka have been forcibly recruited by
the opposition Tamil Tigers movement and forced to kill or be
killed in the armed conflict in that country;
(9) an estimated 7,000 child soldiers have been involved in
the conflict in Sierra Leone, some as young as age 10, with
many being
[[Page S4651]]
forced to commit extrajudicial executions, torture, rape, and
amputations for the rebel Revolutionary United Front;
(10) on January 21, 2000, in Geneva, a United Nations
Working Group, including representatives from more than 80
governments including the United States, reached consensus on
an optional protocol on the use of child soldiers;
(11) this optional protocol will raise the international
minimum age for conscription and direct participation in
armed conflict to age eighteen, prohibit the recruitment and
use in armed conflict of persons under the age of eighteen by
non-governmental armed forces, encourage governments to raise
the minimum legal age for voluntary recruits above the
current standard of 15 and, commits governments to support
the demobilization and rehabilitation of child soldiers, and
when possible, to allocate resources to this purpose;
(12) on October 29, 1998, United Nations Secretary General
Kofi Annan set minimum age requirements for United Nations
peacekeeping personnel that are made available by member
nations of the United Nations;
(13) United Nations Under-Secretary General for Peace-
keeping, Bernard Miyet, announced in the Fourth Committee of
the General Assembly that contributing governments of member
nations were asked not to send civilian police and military
observers under the age of 25, and that troops in national
contingents should preferably be at least 21 years of age but
in no case should they be younger than 18 years of age;
(14) on August 25, 1999, the United Nations Security
Council unanimously passed Resolution 1261 (1999) condemning
the use of children in armed conflicts;
(15) in addressing the Security Council, the Special
Representative of the Secretary General for Children and
Armed Conflict, Olara Otunnu, urged the adoption of a global
three-pronged approach to combat the use of children in armed
conflict, first to raise the age limit for recruitment and
participation in armed conflict from the present age of 15 to
the age of 18, second, to increase international pressure on
armed groups which currently abuse children, and third to
address the political, social, and economic factors which
create an environment where children are induced by appeal of
ideology or by socio-economic collapse to become child
soldiers;
(16) the United States delegation to the United Nations
working group relating to child soldiers, which included
representatives from the Department of Defense, supported the
Geneva agreement on the optional protocol;
(17) on May 25, 2000, the United Nations General Assembly
unanimously adopted the optional protocol on the use of child
soldiers;
(18) the optional protocol was opened for signature on June
5, 2000; and
(17) President Clinton has publicly announced his support
of the optional protocol and a speedy process of review and
signature.
(b) Sense of Congress.--(1) Congress joins the
international community in--
(A) condemning the use of children as soldiers by
governmental and nongovernmental armed forces worldwide; and
(B) welcoming the optional protocol as a critical first
step in ending the use of children as soldiers.
(2) It is the sense of Congress that--
(A) it is essential that the President consult closely with
the Senate with the objective of building support for this
protocol, and the Senate move forward as expeditiously as
possible;
(B) the President and Congress should work together to
enact a law that establishes a fund for the rehabilitation
and reintegration into society of child soldiers; and
(C) the Departments of State and Defense should undertake
all possible efforts to persuade and encourage other
governments to ratify and endorse the new optional protocol
on the use of child soldiers.
Mr. WELLSTONE. Mr. President, I say to colleagues, I will not require
a recorded vote. If we want to go forward with a voice vote, that will
be fine with me if it is fine with my colleague.
Mr. WARNER. Mr. President, I strongly urge we consider this matter by
voice vote.
I urge the question.
THE PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 3211) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. WELLSTONE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 3210
(Purpose: To prohibit granting security clearances to felons)
Mr. SMITH of New Hampshire. Mr. President, I call up my amendment No.
3210 at the desk and ask for its immediate consideration.
Mr. LEVIN. Mr. President, parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state the inquiry.
Mr. LEVIN. Do I understand there is a pending Warner amendment which
is being temporarily laid aside for this?
The PRESIDING OFFICER. There is no pending Warner amendment. There
was just an agreement that Senator Warner be recognized to offer an
amendment. If he does not seek recognition, he waives that right.
Mr. WARNER. Mr. President, I just ask that be temporarily laid aside.
Mr. LEVIN. Mr. President, what is being temporarily laid aside if
there is not a pending amendment?
Mr. WARNER. It is the right to offer the amendment.
The PRESIDING OFFICER. The right to offer the amendment.
Mr. LEVIN. So as I understand it, after the disposition of the Smith
amendment, there would be an opportunity for Senator Warner to offer an
amendment?
The PRESIDING OFFICER. That is correct.
Mr. LEVIN. Am I correct, as the manager of the bill he would have
that opportunity in any event? If he sought recognition, he would be
first to be recognized after the leadership; is that correct?
The PRESIDING OFFICER. The Senator is correct.
The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, this amendment No. 3210--
--
The PRESIDING OFFICER. The Senator will withhold.
The clerk will report.
The legislative clerk read as follows:
The Senator from New Hampshire [Mr. Smith], proposes an
amendment numbered 3210.
Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent
that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place, add the following:
SEC. . PERSONNEL SECURITY POLICIES.
No officer or employee of the Department of Defense or any
contractor thereof, and no member of the Armed Forces shall
be granted a security clearance unless that person:
(1) has not been convicted in any court of a crime
punishable by imprisonment for a term exceeding 1 year;
(2) is not an unlawful user of or addicted to any
controlled substance (as defined in section 102 of the
Controlled Substances Act);
(3) has not been adjudicated as mentally incompetent;
Mr. SMITH of New Hampshire. Mr. President, this amendment is really
quite simple. It involves the issue of whether or not a felon should
get a security clearance. That is the essence. If you favor felons
having a security clearance, you would vote against my amendment. If
you think it is wrong that convicted felon should have a security
clearance, then you would vote with me.
On April 6 there was a hearing the Armed Services Committee held that
touched upon an important and urgent issue, that of the longstanding
protections set in place to guard the most vital secrets of the Nation
and of our national security community. But we had a virtual security
meltdown in this administration, from our DOE labs to people without
clearances getting White House passes, to the recent scandal of missing
and highly classified State Department laptops. It goes on and on.
While we couldn't possibly begin to address all our Nation's security
deficiencies within this one authorization bill, I believe we can make
progress in one very specific area.
A reporter by the name of Ed Pound of USA Today has done an
outstanding job with recent news reports and investigative reporting on
this issue.
Mr. President, I ask unanimous consent that articles written by Mr.
Pound from USA Today be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Probe of Security Clearances Urged--Senator Says Contract Hirings Pose
a Threat
(By Edward T. Pound)
WASHINGTON.--Sen. Bob Smith, R-N.H., urged the Senate Armed
Services Committee Tuesday to investigate why the Defense
Department is granting high-level security clearances to
employees of military contractors who have long histories of
problems, even criminal activity.
Smith, a senior member of the armed services panel, asked
its chairman, Sen. John Warner, R-Va., to conduct the inquiry
and hold a hearing. In a letter to Warner, Smith
[[Page S4652]]
said industrial espionage is on the upswing. ``One person can
cause immeasurable damage to national security,'' he wrote.
Smith said that white felons can't vote in some states,
they have been allowed by the Pentagon to retain access to
sensitive classified information. ``This doesn't pass the
smell test,'' he said.
Warner could not be reached Tuesday for comment.
Smith is chairman of the Environment and Public Works
Committee. He is the second senior senator to seek reform in
the wake of a USA TODAY story last week. It detailed how the
Defense Office of Hearings and Appeals, or DOHA, regularly
granted clearances to contractors with histories of drug and
alcohol abuse, sexual misconduct, financial problems or
criminal activity.
Sen. Tom Harkin, D-Iowa, urged Defense Secretary William
Cohen last week to correct the situation. ``All necessary
steps must be taken to correct this problem immediately,'' he
said in a statement. ``Our nation's security depends on it.''
The General Accounting Office, the investigative arm of
Congress, also will review DOHA and other Pentagon clearance
agencies. While defending DOHA, a Pentagon spokesman said
that any problems uncovered by the GAO would be corrected.
In his letter, Smith also asked Warner to explore why the
Defense Department is struggling to process security
background investigations, which serve as the basis for
issuing clearances. The Pentagon has a backlog of more than
600,000 investigations for renewals of clearances. Smith and
others say the problem poses a national security risk because
spies usually are trusted insiders.
Smith said many clearances granted by DOHA violated an
executive order issued by President Clinton in 1995. It
requires that clearances be issued only to those whose
history indicates ``loyalty in the United States, strength of
character, trustworthiness, honesty, reliability, discretion
and sound judgment.''
Clearance officials evaluate security applicants under
``adjudicative guidelines,'' the standards for granting
clearances. They cover, among other matters, allegiance to
the United States, foreign influence, security violations,
sexual behavior, financial problems criminal conduct, and
drug and alcohol abuse.
Smith said the armed services panel could force reform. ``I
would strongly urge you to task your staff to investigate''
the clearance problems, Smith wrote Warner. He said an
inquiry could ``restore integrity and quality control'' to
the clearance process.
____
[From USA Today, Dec. 29, 1999]
Felons Gain Access to the Nation's Secrets
(By Edward T. Pound)
WASHINGTON.--As a teenager, he was in trouble many times
and built an imposing rap sheet: delinquency, disorderly
conduct, resisting arrest, attempted theft, possession of a
deadly weapon, possession of marijuana, five counts of
burglary and three of theft. He got jail time and probation.
In 1978, at age 21 and a heavy drug user, he and two
accomplices kidnapped, robbed and murdered a fellow drug
user. He was charged in the murder, convicted and sentenced
to 30 years in prison.
Today, at 42, he is out of prison and working in a white-
collar job in the defense industry. He remains on parole
until 2006. As a convicted felon, he can't vote in many
states. But under federal law, he can and does hold a
government-issued security clearance, a privilege that allows
access to sensitive classified information off-limits to most
Americans.
His case is not exceptional. A USA Today review of more
than 1,500 security clearance decisions at the Department of
Defense shows that a Pentagon agency regularly grants
clearances to employees of defense contractors who have long
histories of financial problems, drug use, alcoholism, sexual
misconduct or criminal activity.
Applicants have been given sensitive clearances despite
repeatedly lying about past misconduct to Defense Department
investigators. One employee lied at least four times about
his drug history, including twice in sworn statements.
Officials didn't refer the matter to the Justice Department
for prosecution, something they rarely do; instead, they
allowed him to retain his secret-level clearance.
In other instances, contractor employees involved in
significant criminal frauds were granted clearances. So, too,
were applicants who had violated state and federal laws by
not filing income tax returns for several years, including a
woman who had not submitted timely returns for 11 years
because she was depressed.
Another employee mishandled classified material during a
five-year period but didn't lose his top-secret access. A
clearance official excused his actions because he had been
working in a ``pressure-cooker environment.''
All of these clearances were approved by the Defense Office
of Hearings and Appeals, or DOHA, a little-known Pentagon
agency that decides whether to grant or deny clearances to
employees of defense contractors. The decisions were made by
DOHA (pronounced DOUGH-ha) administrative judges. They rule
in cases in which applicants seek to overturn preliminary
decisions denying them access to classified information.
DOHA's quasi-judicial program, now in its 40th year, was
developed to give employees of contractors the right to
review the evidence against them and to challenge denials in
hearings, if they so choose, before an administrative judge.
Most clearance decisions are made by other DOHA officials and
never reach the judges.
About two-thirds of the time, the judges decide against
granting clearances. However, their approval of clearances
for some employees with deeply troubled histories concerns
other clearance officials in the military as well as security
investigators in the Defense Department.
They argue that DOHA has gone too far, granting clearances
to unstable people who might pose a risk to national
security. They worry that some employees with pressing
financial problems might sell secrets to foreign powers or
that others, vulnerable because of embarrassing personal
problems, could be blackmailed into espionage.
Army and Navy clearance officials criticize the agency for
being too ``lenient.'' Along with former DOHA officials, they
complain that the agency sometimes ignores the government's
``adjudicative guidelines''--the standards for granting
clearances--in issuing decisions.
``To be honest with you, I think DOHA often finds in favor
of the individual and not national security,'' says Edwin
Forrest, executive director of the Navy's Personnel Security
Appeal Board, which reviews clearance appeals from Navy
employees. ``What we see coming from DOHA are decisions that
go outside the envelope--outside the adjudicative
guidelines.''
Howard Strouse, a former senior DOHA official who retired
last January, is blunt: ``Any Americans who looked at these
DOHA decisions would be horrified. To know that we are giving
clearances to some of these people is just intolerable.''
But DOHA officials strongly defend their program and say
they put national security first. ``The decisions speak for
themselves,'' says Leon Schachter, the agency's director the
past 10 years. ``Do I believe in, or agree, with every
decision? Of course not. But it is important to treat people
fairly, and we have a system designed to be fair.''
He says the idea is not to punish security applicants for
past misconduct. ``The goal is to understand past conduct and
predict the future on it,'' he says. ``We are being asked to
use a crystal ball. It is a very difficult job.''
Indeed it is. On the one hand, President Clinton, in an
August 1995 executive order governing access to classified
information, directed that government clearances should be
given only to people ``whose personal and professional
history affirmatively indicates loyalty to the United States,
strength of character, trustworthiness, honesty, reliability,
discretion, and sound judgment.''
But the guidelines for granting clearances give
administrative judges and other federal clearance officials
leeway to consider ``mitigating'' circumstances: an applicant
who had committed a crime, for instance, might get a
clearance if the crime was not recent and there was evidence
of rehabilitation.
DOHA reviews cases involving access to classified
information at three levels of sensitivity: top-secret,
secret and confidential. A presidential directive says top-
secret information, if disclosed, could cause ``exceptionally
grave damage'' to national security; secret, if disclosed,
could cause ``serious damage''; and confidential, if
revealed, could cause ``damage.''
Classified material covers a lot of ground. It includes the
design plans and other data on dozens of weapons systems,
such as bombers and nuclear submarines, and information on
spy satellites, sophisticated technology and communications
systems. But it also includes such things as the composition
of the radar-absorbing coatings on Stealth bombers and the
names of employees who work on sensitive projects.
People within the contracting community with access to
classified information aren't jut top officials. They include
consultants, scientists, computer specialists, analysts,
secretaries and even blue-collar workers such as janitors and
truck drivers with access to classified areas.
The quality of DOHA's decisions is vital. Though none of
the cases involved DOHA decisions, according to agency
officials, a government report says 12 contractor employees
have been convicted of espionage in the past 17 years. And in
the aftermath of the Cold War, industrial espionage is on the
upswing. Spies from dozens of nations--some of them
friendly--have stepped up efforts to gather industrial
intelligence on technologies used in U.S. weapons systems.
Meanwhile, the Pentagon is struggling to process security
background investigations, which serve as the basis for
clearance decisions. It has a backlog of more than 600,000
periodic reinvestigations--cases in which defense employees
and contractor personnel are to be re-evaluated.
The backlog is significant. Spies traditionally are trusted
insiders. Many cases reviewed by DOHA involve requests to
retain clearances. This backlog was disclosed last summer by
USA Today in an examination of the Defense Security Service,
another Pentagon agency, which conducts the background
checks.
In its inquiry into DOHA's actions, USA Today reviewed
decisions issued by the agency's 15 administrative judges
since 1994. Under the Privacy Act, DOHA deletes the names and
other identifying information from the files. The judges
review 300 to 400 cases a year. USA Today requested
interviews with two senior judges, but the Pentagon wouldn't
make them available.
[[Page S4653]]
In the case involving the murder, government lawyers sought
to block the clearance, but Administrative Judge Paul Mason
wrote that the man had earned a college degree and had
reformed.
``Against the heinous nature of the crime,'' he wrote,
``are the positive steps applicant has taken over the years
in making himself a productive member of society.'' He said
he was persuaded the ``applicant was genuinely remorseful''
and would not resume a criminal career.
The man's lawyer, James McCune of Williamsburg, Va., won't
discuss the criminal case. But, he says, clearance decisions
must be weighed carefully because employees often lose their
jobs when they lose their clearances. ``It is really a black
mark,'' he says.
A sampling of other approvals:
On Aug. 27, 1997, Administrative Judge John Erck ruled that
a 43-year-old man who had participated in a scheme to defraud
the Navy of $2 million could keep his secret-level clearance.
The man was employed at the time of the fraud, in 1991, as a
ship's master for a company that operated ships for the Navy
in the U.S. Merchant Marine program. He and other employees
submitted false time sheets for overtime to assist their
financially troubled company. Judge Erck wrote that the fraud
was not recent and that although it amounted to ``serious
criminal activity,'' he was ``impressed'' with the
applicant's ``honesty and sincerity.''
That same year, Administrative Judge Kathryn Moen Braeman
allowed a 30-year-old employee of a defense contractor to
keep his secret clearance, even though he was a convicted sex
offender and on probation. The man was convicted in a state
court of two felony charges of criminal sexual contact with a
minor in June 1996, less than a year before the
administrative judge's decision.
The case file shows the man fondled his 8-year-old
stepdaughter and on 50 occasions entered her bedroom and
masturbated while she was asleep. Braeman said there were
``mitigating'' circumstances: the man, she wrote, had
completed counseling in a sex-offenders program and his
therapist did not believe the pedophilia with his
stepdaughter would recur. According to Braeman, the therapist
concluded the man would always have a sexual interest in
children but had learned through therapy to control himself.
A 42-year-old employee of a defense contractor was given a
secret clearance by Chief Administrative Judge Robert Gales,
although earlier in his career, as an investor, he had been
convicted of bank fraud, imprisoned and ordered to pay
$150,000 restitution. According to DOHA files, the man ``made
false entries'' on loan forms to obtain $2.3 million in
mortgages. He pleaded guilty in December 1994. Two years
later, while the man remained on probation in the criminal
case, Judge Gales approved his clearance; Gales cited his
cooperation with prosecutors and said he had ``clean(ed) up
his act.''
Judge Erck approved a secret clearance for the 53-year-old
owner of a defense contracting business despite his long
history of violent altercations with others. In one case, the
decision shows, the man tried to bulldoze another car
blocking his exit from a parking lot. In another incident,
Erck wrote, he ``challenged'' a state court judge in court
after the judge ruled in favor of the other party in a civil
lawsuit. Police were called and ``an altercation occurred,''
according to Erck. The man was arrested and jailed for
resisting arrest. In a third incident, he left a threatening
message on his ex-wife's answering machine advising her he
had a ``shotgun and two Uzis'' and was coming to her house to
get his son. Police arrested him at his former wife's house
and he was jailed on an assault conviction.
``There is an obvious nexus between Applicant's criminal
conduct and the national security,'' Erck wrote in his
decision. ``An individual who repeatedly loses his temper and
breaks the law is much more likely to violate security rules
and regulations.'' Nonetheless, Erck granted the clearance.
He said the man had become active in the church and had
learned to control his temper. He was, Erck wrote, a
``changed man.''
In February 1996, a 44-year-old computer software engineer
was allowed to retain his top-secret clearance despite a 10-
year history of sexual exhibitionism. Once, in the early
morning, he stood naked outside the kitchen door of a 26-
year-old woman and masturbated. The police were called and he
was charged with two felonies, including ``gross lewdness.''
The man's ``history of exhibitionism reflects adversely on
his judgment, reliability and trustworthiness,''
Administrative Judge Elizabeth Matchinski wrote. But, she
added, ``his contributions to the defense industry in
combination with his recent pursuit of therapy'' justified
giving him a clearance.
Those cases are not unusual. There are other similar
decisions in DOHA's files.
The DOHA process grew out of the abuses of the McCarthy era
in the 1950s when many people were attacked for alleged
Communist ties. President Eisenhower, acting after the
Supreme Court ruled that contractor employees had the right
to a hearing if their clearances were jeopardized, issued an
executive order requiring hearing procedures.
The vast majority of cases processed by DOHA never go
before the agency's 15 judges.
When they do review cases, the judges deny clearances in
many egregious cases, or their approvals are overturned by
the DOHA Appeal Board composed of three of their own members.
One example: a 59-year-old man convicted of sexually abusing
his granddaughter, a felony, was approved for a clearance by
an administrative judge. The appeal board reversed the
decision. It said the judge's decision was ``arbitrary,
capricious, and contrary to law.''
Judges and other government clearance officials make
decisions based on government-wide adjudicative guidelines.
The guidelines cover, among other things, allegiance to the
United States, foreign influence, sexual behavior, financial
considerations, alcohol and drug use, security violations and
criminal conduct. Applicants are evaluated under the ``whole
person'' concept, which requires both favorable and
unfavorable information to be considered.
Clearance officials are urged to make ``common sense''
determinations. ``The individual may be disqualified if
available information reflects a recent or recurring pattern
of questionable judgment, irresponsibility, or emotionally
unstable behavior,'' the guidelines state.
They also require clearance officials to err on the side of
national security. ``Any doubt as to whether access to
classified information is clearly consistent with national
security,'' they state, ``will be resolved in favor of the
national security.''
Most people pass the guidelines without a hitch. Tens of
thousands of military and contractor personnel are cleared
each year. The Defense Department says only 2% to 4% of its
applicants are denied a clearance or have their existing
access revoked. In 1998 the Pentagon denied or revoked
clearances in 3,516 cases, including 628 contractor
employees. About 2.4 million people hold Pentagon-issued
clearances.
DOHA's role is not limited to contractor employees. Its
judges also review appeals from military personnel and
civilian employees of the Defense Department. The judges
issue ``recommended decisions,'' but those opinions are not
binding. Final decisions are made by clearance boards
established by the Pentagon. Each branch of the service and
the Pentagon's administrative arm, Washington Headquarters
Services, have their own clearance boards, known as Personnel
Security Appeal Boards, or PSABS.
Those PSABs often reject the judges' recommendations to
grant clearances to people with background problems. DOHA
statistics show that the judges recommended granting
clearances in 271 of 740 cases they have reviewed since
1995. The PSABs rejected the advice in 120 cases, or 44%
of the time.
The PSABs say they are tougher.
``We are not saying that everybody who drinks too much is a
security threat,'' says K.J. Weiman, executive secretary of
the Army's PSAB. But, he says, screeners must be concerned
when people have financial problems, histories of drug use or
heavy drinking.
``For instance, are you a quiet drunk or are you a
talkative drunk?'' he asks. ``Are you the kind who will have
too many drinks and you are sitting in a bar and saying, `Did
you know this, that, there is a terrorist threat out for
Y2K?' ''
Private lawyers who represent clients in clearance cases
defend DOHA. They say the military process doesn't give
applicants all the rights they should have and say the
importance of the whole-person concept cannot be over-
emphasized.
Sheldon Cohen, an attorney in Arlington, VA., says the
government must evaluate the whole person in deciding whether
to approve or reject a clearance: ``The use of a variety of
drugs by a person in high school or college, even to a
substantial degree, might not disqualify that person, while a
single use of marijuana by an adult while that person held a
security clearance would probably cause loss of a
clearance.''
Adds Elizabeth Newman, a Washington lawyer. ``The fact we
don't want them as neighbors does not mean they will misuse
classified information.''
But some former DOHA employees believe there has been too
much ``lawyering.'' A clearance is a privilege, not a right,
and the Supreme Court has so ruled, they say.
Howard Strouse, the retired DOHA official who was based in
Columbus, Ohio, supervised the preparation of many
administrative cases against contractor employees over a 14-
year-period. He is frank in his assessment of the agency.
DOHA is doing a lousy job, he says.
``DOHA is due process heaven, and I'm not proud of that,''
he says. ``You want due process, yes, but these attorneys and
judges who work for DOHA have to realize they work for the
government, and we are talking about national security.''
Strouse says there were countless times when he and his
staff pressed cases against applicants with questionable
backgrounds but were overruled by the headquarters office in
Arlington, VA.
``In looking at some of these administrative judge
decisions,'' he says, ``you are only seeing the tip of the
iceberg.''
He says he had frequent disputes with senior DOHA lawyers
and Schachter, the agency's director, over ``liberal''
decisions. He says Schachter talked about how no spies have
ever been cleared by DOHA. But, Strouse says: ``Of course, he
can't be disputed because there hasn't been a spy to come up.
But I'm sure they are out there. Industry has long been a
problem for spying.''
Schachter declined to answer many questions. In a letter to
USA Today, he wrote: ``Sensationalizing a few cases distorts
the overall record of seriousness, professionalism and
dedication reflected throughout the DOHA staff and judges.''
[[Page S4654]]
But Thomas Ewald, who directed security background
investigations for the Defense Department before retiring in
1996, worries that some DOHA decisions will come back to
haunt the agency. ``There is no question that all of us in
the business felt that many clearances should be denied that
weren't,'' he says. ``It only takes one person to cause
untold damage to national security.''
____
[From the USA Today, Jan. 4, 2000]
Easy Access to Nation's Secrets Poses Security Threat
GAO, USA TODAY reports show erosion of standards for
clearances.
``No one has a right to a national security clearance.'' At
least, that is what the Supreme Court said in 1988, ruling
that the government should grant clearances ``only when
consistent with the interests of national security.''
Yet, as an outraged Sen. Tom Harkin, D-Iowa, noted, citing
a special report in USA TODAY last week, the Pentagon
``apparently has an `ask don't care' policy when it comes to
contractor security clearances.'' And this week, Congress'
General Accounting Office (GAO) announced that it is
undertaking a new inquiry to determine whether the Defense
Department consistently complies with government guidelines
for issuing clearances.
There's good reason to wonder. The USA TODAY report
detailed numerous instances of defense contractors' workers
receiving top-secret clearances despite long histories of
financial problems, drug use, alcoholism, sexual misconduct
and even criminal activity.
One was awarded a clearance while on probation for bank
fraud. Another was allowed to keep his high-level clearance
after taking part in a $2-million fraud against the Navy.
Another had a history of criminal sexual misconduct for which
he was still receiving therapy.
Such behavior runs counter to President Clinton's 1995
executive order requiring that recipients of clearances have
a personal and professional history showing ``loyalty to the
United States, strength of character, trustworthiness,
honesty, reliability, discretion and sound judgment.''
And it's not the first example of the Pentagon's relaxed-
fit attitude when it comes to maintaining the integrity of
the security-clearance system that is designated to protect
the nation's top secrets. As previous USA TODAY and GAO
investigations have shown in recent months, the Pentagon has
a backlog of more than 600,000 investigations for renewals of
clearances. The GAO also concluded that ``inadequate
personal-security investigations pose national security
risks.'' It found that 92% of the investigations it audited
were deficient on matters including citizenship and criminal
history.
Oversight wasn't the problem with the cases cited by USA
TODAY last week. Those individuals received clearances
because special judges in the Defense Office of Hearings and
Appeals overruled Pentagon investigators and the office's own
lawyers.
Hearings before such judges provide a needed level of
protection against the arbitrary and capricious denial of
security clearances by the government. People can correct
facts and provide mitigating evidence to prove they aren't a
threat to national security.
But prove that they must. And standards shouldn't be
lowered for private contractors' employees. Defense
contractors build the nation's advanced weapons. They develop
the software and hardware for guarding the country's
infrastructure and mapping attack or defense plans. Their
secrets are as important as any at the Pentagon.
Harkin is demanding that the Pentagon demonstrate that it
is taking steps to ``ensure that security clearance is not
granted to people likely to abuse the privilege.''
As a start, investigators, hearing judges and defense
contractors should consider the Supreme Court's message a
reminder. Don't allow national security clearances to
endanger national security.
a security check
In deciding whether to grant security clearances, federal
guidelines require judges to consider the following factors:
Allegiance to the United States, Foreign influence, Sexual
behavior, Personal conduct, Financial considerations, Alcohol
consumption, Drug involvement, Emotional, mental and
personality disorders, Criminal conduct, Security violations,
Outside activities, and Misuse of information technology
systems.
Mr. SMITH of New Hampshire. At the Defense Office of Hearings and
Appeals, USA Today reported that felons, convicted felons--I want my
colleagues to listen carefully here--convicted felons, including a
murderer, individuals with chronic alcohol and drug abuse problems, a
pedophile, an exhibitionist--all received security clearances in order
to work for defense contractors.
I want to repeat that because I think most people would say, you have
to be kidding, that really happened? The answer is yes, which is why
this amendment is so urgently needed. This was investigative reporting
by USA Today that reported that a murderer, people with chronic alcohol
and drug abuse problems, a pedophile, and an exhibitionist received
security clearance to work for defense contractors.
There was another individual who was awarded a clearance while on
probation for bank fraud. Yet another was allowed to keep his clearance
after taking part in a $2 million fraud against the U.S. Navy. Another
had a history of criminal sexual misconduct for which he was still
undergoing therapy.
For goodness' sake, I say to my colleagues, most of us and the
American people would say: Gee, to get a security clearance, that is a
big deal; you get to see all the secrets. At least that is what the
people think. We have different levels of security clearances, from
confidential, to secret, to top secret, to code level. These are
security clearances for individuals who have no right to get those
clearances, and I think every American would agree: $2 million in fraud
against the U.S. Navy, pedophiles, murderers, chronic alcohol and drug
abusers getting security clearances to see the highest classified
material on various defense contracts.
An even more egregious example is that an administrative judge at the
Defense Office of Hearings and Appeals--that is who hears these cases--
granted a clearance to a defense contractor's project manager who had a
lengthy history of drug and alcohol abuse, including two convictions of
selling cocaine for which he served two separate terms in Federal
prison. Overriding Government lawyers who said this man's criminal past
made him ineligible for a clearance, the judge at this defense hearing
ruled this individual ``had no desire to ever engage in criminal
conduct again.''
I repeat. This is an individual who was granted a clearance by an
administrative judge at the Defense Office of Hearings and Appeals. He
had a lengthy history of drug and alcohol abuse, including two
convictions for selling cocaine and served two separate prison terms
for it. The Government lawyers said: No, this guy should not have a
clearance; what are you talking about here?
They were overridden. The judge ruled the individual ``had no desire
to ever engage in criminal conduct again.'' Therefore, we will give him
his clearance.
The case in point, when somebody else comes along tomorrow and says:
Yes, I robbed a couple of banks, killed a couple of people, but I am
sorry; I will not do it again if you will just give me my security
clearance, that is what I am talking about. That is the logic: Yes, I
sold a little cocaine, maybe I used a little cocaine; I am sorry. Can I
have my clearance? I want to get access to classified secrets so I can
work for a defense contractor.
It is unbelievable to think this is happening in our Government, but
it is. Common sense dictates that one convicted murderer or one
convicted drug dealer with a security clearance is one too many.
I have been told by at least one former DOD official that the USA
Today's reported cases of felons granted security clearances is
probably only the tip of the iceberg. These are the ones we know about.
I am also informed that the Defense Office of Hearings and Appeals is
the only organization dictated to by attorneys, while in the others--
for example, the military services--the security specialists are in
charge. We want the security specialists to be in charge, and
apparently they are not.
A frequent complaint is when there is reasonable doubt about an
applicant, the Defense Office of Hearings and Appeals judges rule in
favor of the applicant rather than the national interest. This is a
very important point. Do you err on the side of national defense,
national security, national interest, or do you err on the side of the
individual?
This is not rocket science, and it is not a big deal about how they
do this. Yet it is happening. In other words, err on the side of the
individual; he will be OK; he is sorry; he is not going to do it again;
do not worry about the cocaine; do not worry about the murder; do not
worry about that; it is fine; we think he will be OK so we are going to
err on his side, not on the side of national security.
I say to my colleagues, we all have staff who get security
clearances. My colleagues know how tough it is to get them and how long
they wait and what they put these guys and gals through. My colleagues
know what is on the forms and how long it takes to get a
[[Page S4655]]
clearance. It is an outrage this is occurring.
The adjudicative guidelines require that national security be the
first priority. Those are the guidelines. These guidelines are not
being enforced. As my colleagues watch me, they must be thinking: This
cannot be true; he has to be blowing smoke; no way.
It is true. I have researched these cases. Senator Harkin, who has
done an outstanding job, has also researched these cases. Senator
Harkin is with me on this amendment. In fact, he first helped bring
this to my attention.
When I repeatedly questioned the DOD general counsel at the April 6
hearing about whether it is acceptable to grant a clearance to an
individual who committed a cold-blooded murder, he would not say no to
my question.
I said to him: Is it acceptable ever to grant a clearance to an
individual who committed a cold-blooded murder? I wanted him to say no.
I gave him every opportunity to say no, but he refused to say no.
If you do not say no, it has to mean there is a time when it is in
the interest of the individual, never mind national defense, to grant
the clearance because he may not commit a murder anymore and he might
be great. He could be the greatest contractor employee the Defense
Department ever saw, but do we want to take the chance? Do we want to
take a chance?
If my colleagues had a staff member who was asking for a security
clearance--I do not know if they would be working for them if he or she
committed a murder, but if they did and tried to get one, good luck. We
know they would not get it. Therefore, if that is the rule for staff,
then it ought to be the rule for those contractors who work for the
Defense Department.
Senator Harkin's press release about this scandal when it broke
argued very persuasively:
No one has a right to a national security clearance.
No one has a right to it. Senator Harkin, who testified at the SASC
hearings on the DSS and DOHA, argued people go through intense scrutiny
just to serve on the Commission on Library Sciences, and they do not
have to handle any Government secrets. We should at least have the same
high standards for those holding security clearances as we require of
those serving on the Commission of Library Sciences. Senator Harkin is
absolutely right. I agree with him.
Additionally, there were examples of the Defense Office of Hearings
and Appeals granting clearances to people with recent drug and alcohol
addictions. Why is the Defense Office of Hearings and Appeals, knowing
there will always be risks that some people with clearances will betray
their country for money or for ideology, placing an additional risk
into the system by giving these felons clearances? Why do we take the
risk? There are many good, decent people who have never committed a
crime in their lives who do not gain access to classified material
because they do not need to know and, therefore, they do not get their
clearances because they do not need to know. Why does a convicted
murderer, rapist, or convicted drug dealer need to know? The answer is
simply they do not.
You might say: We should give this person a chance. No, we should
not, no, no, no; not if we are going to risk the national defense of
our country, we should not give them a chance.
As Senator Harkin has said: It is not a right. It is a privilege that
you earn. Additionally, there were examples of, as I said, clearances
for those with recent drug and alcohol problems. Why would we want
these convicted lawbreakers given access to these secrets? We know how
much damage just one individual can wreak on national security. We have
heard the stories--the legacy of Aldrich Ames, Jonathan Pollard, and
the Walkers, the Rosenbergs. Go back as far as you want to go. It is
well known to all of us who have dealt with national security issues,
we simply cannot afford to have loose standards when it comes to
protecting our secrets and protecting lives. They are loose enough as
it is.
We have had stolen secrets from our atomic weapons labs going to the
Chinese. We certainly do not need to invite people into critical areas,
where sensitive technology and sensitive information is bandied about,
to have a person who would have that kind of a background to get a
security clearance.
I emphasize, again, I know in America we are all in favor--and I am,
too--of giving people a break, giving a person a chance, giving them a
second chance, but not when it comes to national security.
I guarantee you, for every cocaine dealer you think is fine now and
would be a great person to work for a Government contractor--I
guarantee you--there are 100 who never had any cocaine convictions who
would be just as good. I guarantee it. We ought to start looking down
the line to find them.
In some States, an individual would lose his or her right to vote
based on a felony conviction. The 1968 Gun Control Act stripped
individuals convicted of felonies of their constitutionally protected
second amendment right. I have known of an instance where a Capitol
Hill staffer was denied a clearance because he was a few months behind
in his student loan payment.
Keep in mind, a security clearance is not a right; it is a privilege.
In fact, it is more than that. It is an honor. That says something
about this person, that this is a special person who can be trusted
with the secrets, sensitive information about the U.S. Government,
about the weapons we make.
To say that we would dumb those standards down at that level is a
disgrace and, frankly, it is an embarrassment to our country, to our
Government, to our Defense Department, to our administration, to
everybody involved, and, yes, even an embarrassment to the members of
the Armed Services Committee of the Senate that this is happening. It
is an embarrassment. The only way to correct it is to stop it and say
it is wrong.
Right now you can have a felony conviction and still be granted a
clearance and access to sensitive secrets; and that does not pass the
commonsense test. It does not pass the smell test, folks, that a
convicted murderer can be granted a security clearance. Believe it or
not, they had an explanation for it. It was not a good one. They had an
explanation for it: He's reformed now. He's OK now.
In conclusion, the bottom line is, my amendment is very simple. It
would prevent DOD from granting security clearances to those who have
been convicted in a court of a crime punishable by imprisonment for a
term exceeding 1 year. It would also disallow a clearance for anyone
who is an unlawful user or addicted to any controlled substance or has
been adjudicated as mentally incompetent or has been dishonorably
discharged from the U.S. Armed Forces.
It is sad, though, that we have to pass an amendment on the floor of
the Senate, add language to the DOD authorization bill that says the
people who do these things--the people who review these cases, who
review these individuals--we have to pass an amendment which is nothing
more than common sense that says you cannot put murderers and felons
and cocaine dealers, people who have been convicted of these crimes, in
positions where they have access to national security information. We
have to pass an amendment because the people we put in charge are not
doing this, are not stopping this. Can you imagine that?
That is what it has come to. I am embarrassed by it. But I will tell
you what. I would rather be embarrassed by it than have it continue to
happen, where our secrets get compromised because somebody could be
compromised as a result of this kind of background.
We cannot take all the risks out of the system no matter how good we
are, no matter how good the DOHA, the Defense Office of Hearings and
Appeals. No matter how good they are, they are going to make mistakes.
That is human. Sometimes people such as Pollard and Walker get
clearances, unfortunately. And they ought to pay the price for it when
they are caught. But let's not take this kind of ridiculous risk and
dumb down the entire operation.
I might add--it does not say this in the amendment--if we have people
who are looking at these cases, and assessing the risks, and they are
concluding that people with these kinds of backgrounds can get security
clearances, we may want to change some of the people who are doing the
evaluating as well. That may be the next step if it does not stop.
[[Page S4656]]
I regret that many of the committee members missed the DSS, the
Department of Security Services, and the Defense Office of Hearings and
Appeals hearing that we had because it was an eye-opener for me. Even
though I read the press articles relating to the scandal, I was
surprised those individuals I questioned--when I gave them the
opportunity when I questioned them--still said they would not say no
when I asked them whether they believed it would be all right to give
somebody such as that a clearance. They would not say no, which gives
me the impression there would be circumstances where they should be
able to get the clearances.
That is my amendment. I know the manager of the bill is not prepared
to vote at this time. But at this point, Mr. President, I ask for the
yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be.
The yeas and nays were ordered.
Mr. SMITH of New Hampshire. Mr. President, I yield the floor.
I will take this moment to thank my colleague, Senator Warner, the
chairman of the committee, for the outstanding leadership he has
provided as the chairman of the committee.
Mr. WARNER. Mr. President, I thank my colleague and simply say we are
endeavoring and working with the other side of the aisle to see if we
might come up with some clarification to his amendment.
I yield the floor.
Amendment No. 3214 To Amendment No. 3210
Mr. McCAIN. Mr. President, I send a second-degree amendment to the
pending amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Arizona [Mr. McCain], for himself, Mr.
Feingold and Mr. Lieberman, proposes an amendment numbered
3214 to amendment No. 3210.
Mr. McCAIN. Mr. President, I ask unanimous consent reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. McCAIN. Mr. President, I offer this amendment on behalf of
myself, Senator Feingold, and Senator Lieberman.
This amendment would mandate that the names of contributors to
entities operating under section 527 of the Tax Code be disclosed. This
amendment is simple. It is straightforward. It would impose no
substantial burdens on any entity. And most importantly, it is
constitutional and in no way infringes on the free speech of any
individual or group.
Before I discuss the matter further, I thank my colleagues, Senator
Lieberman and Senator Feingold, for all they have done to close this
527 loophole. They have been stalwarts in this effort, and their hard
work and dedication deserves note and praise. In fact, Senator
Lieberman has separate legislation supported by myself and Senator
Feingold on this very issue.
On May 18 of this year, USA Today stated:
What's happening? Clever lawyers for partisan activists,
ideological causes and special interests have invented a new
way to channel unlimited money into campaigns and avoid all
accountability. Hiding behind the guise of ``issue advocacy''
and an obscure part of the tax law, nameless benefactors with
thick bankrolls can donate unlimited sums to entities known
as ``section 527 committees,'' beyond the reach of the
campaign-reporting laws designed to curb such abuses.
If the Chinese Army had discovered this tactic first, its
infamous contributions of 1996 would have been quite legal.
It wasn't supposed to be this way. Post-Watergate reforms a
quarter-century ago required that all donations of $200 and
more be publicly reported by name. There would be no more
``hidden gifts'' of $2 million and up like those that helped
fuel the illegal activities of Richard Nixon's re-election
campaign. At least voters would know where a candidate's
political debts lay.
But that is not the way the system has evolved. And today
no one knows how many anonymous contributors are exploiting
the loopholes in the law or how much these loopholes are
adding to the swamp of money in politics.
USA Today sums it up well. This is a dark, uncontrolled sector of the
political landscape. It is a danger to our electoral system.
Unfortunately, unless we act, the problem will only grow worse.
The Associated Press reported on June 6:
At crucial moments in the presidential campaign, George W.
Bush has benefited from millions of dollars in advertising
paid for by mysterious groups and secret donors.
Similar ads have also boosted Vice President Al Gore, but
they generally were done by well-established organizations
with clear agendas. Still, their donors remained secret, too.
It's a new form of political warfare that's quickly
becoming the tool of choice for people looking to influence
Election 2000, made possible by a once-obscure provision in
the tax code that lets anyone form a group and spend money on
campaign-style ads without saying who is paying for them.
This amendment in no way restricts the ability of any individual or
organization from spending money to influence a political or electoral
system. I believe 527 should be abolished completely. I am not sure
that at this moment in time we have sufficient votes to do that in the
Senate.
This amendment protects free speech but recognizes that the public
has a right to know who is speaking. This amendment gives the American
public an answer to the question raised by the Associated Press story;
namely, who is paying for these multimillion-dollar ad campaigns?
While the rhetoric of speech being protected is sometimes bantered
around without much thought, it is not actually speech that is
constitutionally protected but the individual who is protected to speak
his or her thoughts. Speech is not naturally occurring. It is not
created of matter and therefore exists outside of the human realm. It
is the individual who is protected. Under this amendment, the
individual is protected. He or she can speak their will. Again, the
public is given the right to know who is speaking.
The 2000 Federal election cycle has brought a new threat to the
integrity of our Nation's election process: the proliferation of so-
called stealth PACs operating under section 527 of the Tax Code. These
groups exploit a recently discovered loophole in the Tax Code that
allows organizations seeking to influence Federal elections to fund
their election work with undisclosed and unlimited contributions at the
same time as they claim exemption from both Federal taxation and the
Federal election laws.
Section 527 of the Tax Code offers tax exemption to organizations
primarily involved in election-related activities such as campaign
committees, party committees, and PACs. It defines the type of
organization it covers as one whose function is, among other things,
``influencing or attempting to influence the selection, nomination,
election, or appointment of any individual to any Federal, State, or
local public office. . ..''
Because the Federal Election Campaign Act uses near identical
language in defining entities it regulates, organizations that spend or
receive money ``for the purpose of influencing any election for Federal
office,'' section 527 formerly had been generally understood to apply
only to those organizations that register as political committees
under, and comply with, Federal election campaign laws, unless they
focus on State or local activities and do not meet certain other FECA
requirements.
Nevertheless, a number of groups engaged in what they term ``issue
advocacy campaigns'' and other election-related activity recently began
arguing that the near identical language of FECA and section 527
actually mean two different things. In their view, they can gain
freedom from taxation by claiming they are seeking to influence the
election of individuals to Federal office but may evade regulation
under FECA by asserting they are not seeking to directly influence an
election for Federal office.
Let me repeat that. This is what these organizations are saying: They
can gain freedom from taxation by claiming they are seeking to
influence the election of individuals to Federal office, but they evade
regulation under Federal election laws by asserting they are not
seeking to directly influence an election for Federal office.
As we have seen in the past, they simply avoid using the infamous six
words noted in the Buckley decision as
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a footnote; namely, ``vote for, vote against, support'' or ``oppose.''
As a result--because unlike other tax exempt groups such as 501(c)(3)s
and (c)(4)s, section 527 groups don't even have to publicly disclose
their existence--these groups gain both the public subsidy of tax
exemption and the ability to shield from the American public the
identity of those spending their money to try to influence our
elections.
Indeed, according to news reports, newly formed 527 organizations
pushing the agenda of political parties are using the ability to mask
the identity of their contributors as a means of courting wealthy
donors who are seeking anonymity in their efforts to influence our
elections.
There are some in this body who would fully regulate 527s under the
FECA. This amendment doesn't do that. While I would personally support
such an effort, this amendment does not impose the burdens mandated
under FECA to 527 organizations. This amendment would, however, require
527 organizations to disclose their existence to the IRS, to file
publicly available tax returns, and to file with the IRS or make public
reports specifying annual expenditures of over $500 and identifying
those who contribute more than $200 annually to the organization. What
could be more simple? What could be more fair, honest, and
straightforward?
The Washington Post recently stated:
For years, opponents of campaign finance reform have been
saying that disclosure is disinfectant enough. Don't enter
the swamp of trying to regulate the raising and spending of
campaign money, they say; just require the prompt reporting
of contributions, and let the voters perform the regulatory
function at the polls.
This is an argument that has been made continuously by my colleagues.
On September 26, 1997, the senior Senator from Kentucky stated, in
regards to contributor information reported by the Democratic National
Committee:
Disclosure would have been the best disinfectant.
On the same day, on the floor of the Senate, the majority leader
stated:
Why don't we, instead, go with freedom, open it up, have
full disclosure and let everybody participate to the maximum
they wish?
I believe this amendment is 100 percent in accordance with Senator
Lott's comments. For the information of my colleagues, the amendment
places no new restrictions of any kind on giving to so-called 527
organizations or how they spend their money. It merely mandates full
disclosure.
Senator Lott stated on May 13, 1992:
It seems to me that something that has that big an
influence on an election, campaign election, should at least
be reported. Disclosure. That is the key. Let us always
disclose to the American people where we are getting our
money, where it is being spent. That is the answer.
On September 26, 1997, Senator Bennett stated:
So, if you are going to look for a local example of
something that works, you could say, based on my state's
experience, that we ought to open the whole thing up and let
corporate contributions come in as well as individual
contributions. The one thing that we do have in Utah that has
made it work is full and complete disclosure so that
everybody knows that, if the Utah Power and Light company is
giving to X campaign, that is on the public record. And when
the Governor goes to deal with utility regulation, everybody
knows how much the power company gave him.
Under this amendment, 527 entities would disclose their contributors
exactly in the manner Senator Bennett claims should be done.
Senator Craig, on February 24, 1998, stated:
Instead [of McCain-Feingold] full and immediate public
disclosure of campaign donations would be a much more logical
approach.
To be fair, Senator Craig was referring to contributions to
candidates. But we all recognize that political ads that run under the
527 loophole are designed to accomplish the exact same goal as
candidate-run ads: to elect or defeat candidates or causes and, as
such, the contributors to 527s, such as contributors to candidates,
should be immediately and fully disclosed.
The clarion call for greater disclosure has been heard and it is time
we acted. This amendment is not designed to give any one party any
advantage over the other. As I noted earlier in my remarks, both
parties are the beneficiaries of 527 expenditures.
As the Washington Post editorialized:
Both parties use these Section 527 committees. The failure
to disclose is insidious, the ultimate corruption of a
political system in which offices if not the office holders
themselves, are increasingly bought. At least, they could
vote for sunshine. Or is the truth too embarrassing for
either donors or recipients?
Many times, I have stood on the floor of the Senate and argued for
the constitutionality of the so-called McCain-Feingold legislation. I
strongly believe that campaign contributions should not only be
disclosed but that they can be constitutionally limited. Recent Supreme
Court decisions clearly affirm that fact.
But there was dissent noted in the most recent Supreme Court case on
campaign finance reform. I want to note for the Record that in Justice
Kennedy's dissent he stated:
What the Court does not do is examine and defend the
substitute it has encouraged, covert speech funded by
unlimited soft money. In my view, that system creates dangers
greater than the one it has replaced. The first danger is the
one already mentioned: that we require contributors of soft
money and its beneficiaries mask their real purpose. Second,
we have an indirect system of accountability that is
confusing, if not dispiriting, to the voter. The very
disaffection or distrust that the Court cites as the
justification for limits on direct contributions has now
spread to the entire discourse.
In his dissent, Justice Kennedy also points out:
Among the facts the Court declines to take into account is
the emergence of cyberspace communication by which political
contributions can be reported almost simultaneously with
payment. The public can then judge for itself whether the
candidate or the officeholder has so overstepped that we no
longer trust him or her to make a detached neutral judgment.
This is a far more immediate way to assess the integrity and
the performance of our leaders than through the hidden world
of soft money and covert speech.
In his dissent concerning the same campaign finance reform case,
Justice Thomas paraphrases the Buckley case and states:
And disclosure laws ``deter actual corruption and avoid the
appearance of corruption by exposing large contributions and
expenditures to the light of publicity.''
Based on the dissent issued in the Missouri case and what was clearly
stated by the majority, the kind of disclosure mandated by this
amendment would not only be constitutional but is clearly in the
public's best interest.
Mr. President, this amendment is the right thing to do. It is not as
comprehensive an approach as I believe is necessary to deal with the
numerous problems associated with our current campaign finance system.
I believe much more needs to be done, and I intend to continue my fight
with my friend from Wisconsin, Senator Feingold, to truly reform our
campaign finance laws. But it is a simple, easy-to-understand solution
to one specific problem that currently plagues our electoral system. It
is a solution we can enact today or tomorrow. It is a solution to a
problem that has just begun and one that is easily solved. I hope my
colleagues will support this amendment.
I have been in elected office since 1983. I first came to the other
body and then to this one. If at the time I first came to the Congress
of the United States you told me tickets would be sold by fundraisers
for $500,000, that we would have organizations that took part in our
political system and directly intervened in our elections, where it was
not even required for contributors to disclose unlimited amounts of
money, if you had told me that we would have a situation which would
cause so much concern and anger and discontent, as in the 1996 election
where money poured in even from foreign sources, that huge amounts of
money from a Communist country, China, would pour into our elections--
we may never know how much--that, in my view, would have been illegal
and deserved the appointment of an independent counsel. The
machinations that went into the Justice Department to prevent that from
happening have been revealed.
If we don't require full disclosure of these 527s, then we will say
as a body that it is legal for money to come from anywhere, from
anyone, and it doesn't even have to be disclosed to the American
people. That is a sad state of affairs, a very sad state of affairs.
I see my friend, Senator Feingold, here waiting to speak, and I know
others want to speak on this. I have said a
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couple of times on the floor of the Senate that I learned a lot in the
last campaign in which I was involved. The most disheartening thing
that I learned--which was affirmed long before I learned it by the 1998
election, which had the lowest voter turnout in history of the 18 to
26-year-olds in this country--was that particularly young Americans are
becoming more and more disconnected and even alienated from their
Government. Young Americans don't believe they are represented anymore.
Young Americans in a focus group conducted by the Secretaries of State
of America--those responsible for our elections in every State --the
focus groups of young people were very alarming in their results. A lot
of young people said they thought we were corrupt. A lot of young
people said they would never run for public office. There is an
unwillingness to serve the country--at least in the area of public
service today--because young Americans believe that we no longer
represent their hopes, dreams, and aspirations.
This situation has gradually evolved, as any evil does in life. We
started out with a situation where soft money was set up that required
full disclosure, and different organizations calling themselves
``independent'' began to accept unlimited amounts of money. But at
least they fell under laws that required full disclosure. Now we have
this new, burgeoning industry. I have no idea if it is tens of millions
or hundreds of millions of dollars that will go into this political
campaign under the guise of 527. I intend, later in the debate, to
quote from news articles describing the dramatic growth of these 527s.
Mr. President, it has to stop.
A funny thing is happening in the world. Today, the former Chancellor
of the Federal Republic of Germany, Mr. Helmut Kohl, is in disgrace in
his nation--the man who led his nation through a great deal of the cold
war for 16 years. Helmut Kohl is in disgrace in the eyes of his
countrymen because Helmut Kohl refuses to disclose the names of the
people who gave him money for political purposes while he was the
Chancellor of the Federal Republic of Germany.
In the United States of America, the beacon of home and freedom and
the institutions of democracy throughout the world, we now have a
situation where it is legal for anyone to give unlimited amounts of
money which will directly affect American political campaigns. There is
not even disclosure. It is evil in itself that unlimited amounts of
money are able to be contributed because it is a direct violation of
the $1,000 contribution limit which the U.S. Supreme Court just upheld
as constitutional. But now we have reached a point where the Washington
Post says failure to disclose is insidious, the ultimate corruption of
a political system in which offices, if not the officeholders
themselves, are increasingly bought. At least we could vote for
sunshine.
I would like to yield to my friend from New York briefly because
Senator Feingold is waiting.
Mr. SCHUMER. Mr. President, I want to ask the Senator a question to
clarify. His amendment is one of disclosure. Is that the same as the
one the Senator from Connecticut introduced? It would not affect first
amendment rights. It would not affect limits on how much you give but
simply disclose what is given. Am I correct in that assumption?
Mr. McCAIN. The Senator from New York is correct. I would like to say
to the Senator from New York that we are doing this because perhaps we
can't sell the whole package; perhaps we can't do the whole thing. This
is in no way an indication that Senator Feingold and I or the Senator
from New York or the Senator from Connecticut are not equally committed
to McCain-Feingold soft money elimination, et cetera. But at least
let's get this ill cured.
How in the world a vote can be cast against disclosure of this is not
comprehensible to me.
I thank the Senator.
Mr. SCHUMER. I think it is an excellent idea. I would like to speak
later in support of the Senator's amendment.
Mr. McCAIN. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I am very pleased to again be on the
floor with my colleague and friend, the Senator from Arizona, and to
join with him in offering this amendment.
I am especially pleased also to be offering this amendment with the
Senator from Connecticut, Mr. Lieberman, who has offered a bill in this
same form.
I ask unanimous consent that the Senator from New York, Mr. Schumer,
be added as a cosponsor of the amendment as well.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, if there is one thing on which the
entire Senate should be able to agree, it is that we need to have full
disclosure by groups participating in the electoral process by running
advertisements that mention candidates.
This is a first step. In fact, it is only a first step on this bill.
We intend to offer other steps, including our McCain-Feingold
legislation concerning soft money, on this bill. But this is the first
step.
The so-called 527 organizations that this amendment addresses are the
newest wrinkle in the breakdown of our campaign finance laws.
These 527 groups are now openly and proudly flouting the election
laws by running phony issue ads and refusing to register with the FEC
as political committees or disclose their spending and contributors. It
is time that Congress called a stop to this, not to try to keep anyone
from speaking or otherwise participating in elections, but to give the
American people information that they desperately need and deserve
about who is behind the ads that are already flooding our airwaves, six
months before the election.
There is no reason that our tax laws should give protection to any
group that refuses to play by the election law rules. For that reason,
I have cosponsored and wholeheartedly endorse S. 2582, a bill
introduced earlier this year by Senators Lieberman, Daschle, McCain,
and others to restrict the tax exempt status available under section
527 of the Internal Revenue Code only to those groups that register and
report with the FEC. This amendment is even more mild. But at the very
least, the public deserves more information on the financial backers
and activities of groups that benefit from this tax exempt status, and
that is what this amendment attempts to provide. This amendment simply
seeks disclosure. It would be a small step towards addressing one of
the loopholes in our current campaign laws that is eroding the public's
faith in our electoral system. It's a small step, but an important
step. It is the first step, and the second step is the ban on soft
money.
Time and time again when we have debated reform here on the floor of
the Senate, the opponents of the McCain-Feingold bill have said that
they favor full and complete disclosure of campaign contributions and
spending.
The Senator from Arizona did a fine job of sharing with us some of
the quotes from Senators who said they would support disclosure even if
they couldn't support a ban on soft money.
Well, those Senators who so confidently proclaim that full disclosure
is the answer to our campaign finance problems should realize that they
cannot be consistent in that view if they don't support this amendment.
All this amendments seeks is disclosure, the most basic and commonsense
tenet of our campaign finance laws, by groups that are spending
millions of dollars to influence elections. It is said that sunshine is
the best disinfectant. Here is our chance to throw some sunshine on
this latest effort to cast a dark cloud on our campaign finance system.
Sadly, what to me is perhaps the most shameful thing about this whole
process is we know that many Members of Congress are involved in
raising money for these 527s.
Recently, there was a very disturbing report in the Washington Post
about the majority leader urging hi-tech companies to contribute to a
new group called Americans for Job Security that is now running ads
supporting one of our colleagues who is up for reelection. Americans
for Job Security is almost certainly claiming a tax exemption under
section 527, but at the same time it will not disclose its contributors
or its spending. And we all know of the highly publicized connections
between the majority whip in the House, Mr. DeLay, and various 527
organizations.
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These groups pose a special danger to the political process because
if Members of Congress can organize them or raise money for them, the
real possibility of corruption emerges. What is the difference between
a million dollar contribution directly to a candidate and a million
dollar contribution requested by a candidate that goes to a group that
plans to run ads to support that candidate or, more likely, attack his
or her opponent? There really is no difference when you come right down
to it, but right now, the first contribution is illegal, as it should
be, and the second contribution is not. It is legal. Our amendment does
not prohibit that second contribution, it just asks that it be made
public.
As groups proliferate, the chances of scandal increase as well. It
will not be long before reports of legislative favors received by big
donors to 527 groups start making the headlines. Or foreign money or
money derived from organized crime making its way into our election
process by way of 527s. The 527 loophole is a ticking time bomb of
scandal.
As noted in the recent Common Cause report, ``Under the Radar: The
Attack of Stealth PACs on our Nation's Elections,'' here are some of
the groups that are taking advantage of the 527 loophole to collect
unlimited contributions and use them to influence federal elections
without any disclosure. Saving America's Families Everyday, the
Republican Majority issues Committee, Citizens for Better Medicare,
Republicans for Clean Air, Shape the Debate, Business Leaders for
Sensible Priorities, the Peace Voter Fund, citizens for Reform, and the
Sierra Club. When the American people see an ad by one of these groups,
they will know it is coming from a Stealth PAC, a 527, but that's all
they will know because these groups are currently not reporting
anything to the FEC or the IRS.
Money, politics, and secrecy is a dangerous mixture. Mr. President.
The least we can do is address the secrecy ingredient in this potion
with this amendment. There is no justification whatsoever for allowing
these groups to operate under the radar. None. Citizens deserve to know
who is behind a message that is being delivered to them in the heat of
a campaign. These groups that hide behind apple pie names are trying to
obscure their identities from the public. The public is entitled to
that information. And it is entitled to withhold a tax exemption from
any group that would refuse to provide the information.
I think I have heard from almost every one of my colleagues recently
that they believe this campaign finance system is completely out of
control, that they sense it is about to completely explode. We all know
it. It is completely out of control. This is a first step to try to
bring that control back and then to move on quickly to the effort to
address the other even more enormous problem at this point--the problem
of soft money being contributed to political parties.
I thank the Senator from Arizona and my colleagues on the floor, the
Senators from Connecticut and New York, for their work.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I thank the Chair.
I rise to support the amendment offered by the Senator from Arizona.
I am proud to be a cosponsor of it and to join with him and the Senator
from Wisconsin, my friend, and also my colleague from New York.
This is a bold but absolutely necessary step which was initiated by
the Senator from Arizona, based on some work a bipartisan group did
together earlier in the year to try to respond to this latest threat to
the integrity of our Nation's election process, and that is the
proliferation of so-called ``stealth'' PACs operating under section 527
of the Tax Code.
As my colleagues have indicated, these groups exploit a relatively
recently discovered loophole in the Tax Code that allows organizations
seeking to influence Federal elections to fund those elections with
undisclosed and unlimited contributions at the same time as they claim
exemption from both Federal taxation and the Federal election laws.
As I say these words, and as I have listened to my colleagues, I
wonder about the folks listening to the proceedings on C-SPAN. People
must justifiably be scratching their heads or, I hope, standing up in
outrage at what is happening within our political system.
I was taught as a student at school long ago about the power of
water, the natural force of water, to move and find weakness and then
move through that weakness to continue to go forward. The flow of money
in our political system today, which is not as natural as the movement
of water through nature, seems to follow the same kind of unstoppable
movement where it pursues a point of weakness in our legal system and
pushes through, to the detriment of our democracy.
Section 527 is the latest point of vulnerability that has been found
by the forces and flow of money in our political system. Section 527
offers tax exemption to organizations, primarily involved in election-
related activities such as campaign committees, party committees, and
PACs. That is what the law says it is supposed to do. It defines the
type of organization it discovers as one whose function is, among other
things, ``Influencing or attempting to influence the selection,
nomination, election, or appointment of any individual to any Federal,
State, or local public office.''
Because the Federal Election Campaign Act uses nearly identical
language to define the entities it regulates, section 527 formally had
been generally understood to apply only to those organizations that
register as political committees under the Federal Election Campaign
Act.
Nevertheless, the flow of money moves to find a point of
vulnerability in our existing legal system. A number of groups engaging
in what they term ``issue advocacy campaigns'' and other election-
related activities, have begun arguing that the near identical language
of our Federal Election Campaign Act and section 527 actually mean two
different things. This would be hilarious if it wasn't so serious. In
their view, these groups gain freedom from taxation by claiming they
are seeking to influence the election of individuals to Federal office,
but they claim they can evade regulation under the Campaign Act by
asserting that they are not seeking to influence an election for
Federal office.
They are going two ways at once, trying to claim the benefit of two
inconsistent laws, and, for the time being, getting away with it. As a
result, unlike other tax-exempt groups, section 527 groups don't even
have to publicly disclose their existence. They gain both the public
subsidy of tax exemption and the ability to shield from the American
public the identity of those spending their money to try to influence
our elections. Indeed, according to news reports, newly formed 527
organizations pushing the agenda of political parties are using the
ability to mask the identity of their contributors as a means of
courting wealthy donors who are seeking anonymity in their efforts to
influence our elections.
This is so venal, an end run on the clear intention of our laws, that
I cannot believe we will let it continue. Section 527 organizations are
not required to publicly disclose their existence. It is impossible to
know the precise scope of this problem. The Internal Revenue Service
private letter rulings, though, make clear that organizations that are
intent on running what they call ``issue ad campaigns'' and engaging in
other election-related activities are free to assert section 527
status. Of course, there have been numerous news reports that provide
specific examples of groups taking advantage of these rulings.
Common Cause recently issued a report which is engaging in unsettling
reading, under the title ``Under the Radar: The Attack of the Stealth
PACs on Our Nations's Elections,'' which offers details on 527 groups
set up by politicians, industry groups, right-leaning ideological
groups, and left-leaning ideological groups. The advantages conferred
by assuming this 527 form, which are the anonymity provided to both the
organization and its donors, the ability to engage in unlimited
political activity without losing your tax-exempt status, and
significantly the exemption from gift tax which otherwise would be
imposed on large donors, leaves no doubt that
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these groups will continue to proliferate as the November election
approaches.
No one should doubt that the expansion of these groups poses a real
and significant threat to the integrity and the fairness of our
election system. One of the basic promises that our system makes is for
full disclosure. Senator McCain and Senator Feingold have spoken of
comments that have been made on this floor and elsewhere by those who
opposed other forms of regulating and limiting campaign finance
contributions, limits on expenditures, but at least support disclosure,
sunshine, the right to know. The identity of the messenger, the
identity of the contributor supporting a message, naturally, would help
a citizen, a voter, reach a judgment on the quality and the effect of
that message.
The risk posed by the 527 loophole goes even further than depriving
the American people of critical information. I believe it threatens the
very heart of our democratic political process because allowing these
groups to operate in the shadows poses a real and present danger of
corruption and makes it difficult for anyone to vigilantly guard
against that risk. The press has reported that a growing number of 527
groups have connections to, or even have been set up by, candidates and
elected officials who are otherwise limited--clearly, at least so is
the intention of the law--by other laws. Allowing individuals to give
to these groups and allowing elected officials to solicit money for
these groups without ever having to disclose their dealings to the
public, at a minimum leads to exactly the appearance of corruption that
the Supreme Court in some of its election law cases has warned against
and sets the conditions clearly that would allow corruption to thrive.
If people in public life are allowed to continue seeking money
secretly, particularly sums of money that exceed what the average
American makes in a year, there is no telling what will be asked for in
return. And there is no predicting how many more tens of thousands,
hundreds of thousands, millions of our fellow citizens will turn away
from our political system because they reach the conclusion that there
is not actually equal access to our Government; that an individual or
group or corporation that gives hundreds of thousands of dollars
secretly to this kind of political committee clearly have more
influence than they do, and it is not worth even turning out to vote.
In the hopes of forestalling this growing cancer in our body politic,
a bipartisan group of Members of the Senate earlier this year
introduced two bills to deal with this 527 problem. The first was what
we called our aspirational bill. It would have completely closed the
527 loophole by making clear that tax exemption under 527 is available
only to organizations regulated under the Federal Elections Campaign
Act. It was pretty straightforward and, in my opinion, eminently
sensible and logical. If this bill were ever enacted, groups would no
longer be able to tell one thing to the IRS to get a tax benefit and
then deny the same thing to the FEC, the Federal Election Commission,
in order to evade Federal Election Campaign Act regulation.
But recognizing that a complete closing of this ever growing 527
loophole might not be possible to achieve in this Congress, we also
offered a second alternative, slightly narrower. That is what this
amendment is before the Senate now. It is aimed at forcing section 527
organizations simply to emerge from the dark shadows, from the secret
corners, and let the public know who they are--that is not asking too
much--where they get their money--that is a fundamental right--and how
they spend it.
This amendment would require 527 organizations to disclose their
existence to the IRS, to file publicly available tax returns and to
file with the IRS and make public reports specifying annual
expenditures of at least $500 and identifying those who contribute at
least $200 annually to the organization. That is not asking very much.
It is simple fairness, basic facts, respecting the public's right to
know.
No doubt opponents of this amendment may claim the proposal infringes
on their first amendment rights, perhaps, to free speech and
association. But nothing in this amendment infringes on those cherished
freedoms in the slightest bit. This amendment does not prohibit anyone
from speaking. It does not force any group that does not currently have
to comply with the Federal Elections Campaign Act or disclose
information about itself to do either of those things. This amendment
speaks only to what a group must do if it wants the public subsidy of
tax exemption, something the Supreme Court has made clear that no one
has a constitutional right to have. We in Congress, Representatives of
the people, makers of the law, have the right to attach conditions in
return for the public subsidy of tax exemption. As the Supreme Court
explained in Regan v. Taxation with Representation of Washington, a
1983 case:
Both tax exemptions and tax-deductibility are a form of
subsidy that is administered through the tax system, [and]
Congressional selection of particular entities or persons for
entitlement to this sort of largess is obviously a matter of
policy and discretion. . . .
That is policy and discretion to be exercised in the public interest
by this Congress. Under this proposal, any group not wanting to
disclose information about itself or abide by the election laws would
be able to continue doing whatever it is doing now. It would just have
to do so without the public subsidy of tax exemption conferred by
section 527. Again, that is not asking too much.
We have become so used to our campaign finance system's long, slow
descent that I fear it is sometimes hard to ignite the kind of outrage
that should result when a new loophole starts to shred the very spirit
of yet another law aimed at protecting the integrity of our system.
I suppose if there is any direct relevance of this proposal to the
Department of Defense Authorization Act on which it is offered, it is
that generations of Americans have fought, been injured, and died for
our political system, our principles, our values: The right to exercise
the franchise, the right to know. We are witnessing, without acting to
correct it, the corruption and erosion of those basic freedoms.
This new 527 loophole should outrage us and we should act, I hope
unanimously, across party lines, by adopting this amendment to put a
stop to it.
Mr. President, I urge all our colleagues to join us in supporting
this proposal. I thank the Chair and I yield the floor.
The PRESIDING OFFICER (Mr. Brownback). The Senator from Colorado.
Mr. ALLARD. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
Mr. McCAIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I ask unanimous consent Senators be
allowed to speak on this issue, and therefore ask further proceedings
under the quorum call be suspended.
Mr. ALLARD. I object.
The PRESIDING OFFICER. Is there objection?
Mr. ALLARD. I object.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WARNER. 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. WARNER. Mr. President, I ask unanimous consent that the pending
McCain amendment and the Robert Smith amendment be laid aside, the
McCain amendment become the pending business at 1 p.m. on Thursday, and
there be 2 hours equally divided on the McCain amendment, with a vote
to occur in relation to the McCain amendment immediately following the
scheduled vote re: HMO at 5 p.m. on Thursday.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. No objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. In light of this agreement, there will be no further
votes this evening, and the Senate will resume the DOD authorization
bill at 9:30 a.m. on Thursday morning.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that Senator
Byrd,
[[Page S4661]]
who has been a tremendous leader on campaign finance reform for
decades, Senator Biden, Senator Reid of Nevada, and Senator Levin be
added as cosponsors to the McCain-Feingold-Lieberman amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from Michigan.
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