[Congressional Record Volume 147, Number 47 (Tuesday, April 3, 2001)]
[Senate]
[Pages S3334-S3336]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE BIPARTISAN CAMPAIGN REFORM ACT OF 2001
Mr. KERRY. Mr. President, yesterday, at long last, the United States
Senate voted to take a first step toward reforming our campaign finance
system. This long awaited vote comes after years of partisan delay
tactics which have long prevented us from taking an up-or-down vote on
this bill. It also comes after an election in which $3 billion was
spent in an effort to elect or defeat candidates. Today we have the
chance to pass reform which at the very least demonstrates that we've
learned a lesson from years of scandal and year upon year of runaway
spending.
But let me be clear about something: despite the rhetoric we have
heard on the Senate floor, the bill we vote on today is not sweeping
reform that will give one party or the other the edge when it comes to
funding campaigns. Instead, this bill simply restores, to a certain
degree, the campaign finance reform laws that we enacted more than 25
years ago. Back then, in the post-Watergate era, we recognized that it
was time to prevent secret stashes of cash from infiltrating our
political system. We succeeded in that effort, and I believe the system
worked reasonably well for some time, until the recent phenomena of
soft money and sham issue advocacy overtook the real limits we had
established for our campaign system.
I want to take a minute, to talk about how we got to this point in
which our system so desperately needs this modest reform bill. Federal
law has prohibited corporations from contributing to federal candidates
since 1907. This nearly hundred-year-old ban was enacted in recognition
of the fact that corporations accumulate great wealth that could be
used to distort electoral outcomes. Labor unions likewise have been
barred from contributing to candidates since 1943. In addition, the
post-Watergate campaign finance law capped individual contributions to
candidates, parties and PACs. These limits were put in place after the
country learned a hard lesson about the corrupting influence of money
in politics.
Unfortunately, the Federal Election Commission and the courts opened
the loopholes that ultimately eviscerated our reform efforts. Soft
money first came into play in 1978 when the FEC, the toothless watchdog
of our campaign finance laws, opened the door to the cascade of soft
money by giving the Kansas Republican State Committee permission to use
corporate and union funds to pay for a voter drive benefitting federal
as well as state candidates. The costs of the drive were to be split
between hard money raised under federal law and soft money raised under
Kansas law. The FEC's decision in the Kansas case gave parties the
option to spend soft money any time a federal election coincides with a
state or local race.
Sham issue advocacy too, has a history that defies the intent of
campaign finance laws. In what remains the seminal case on campaign
finance, Buckley v. Valeo, the Supreme Court held that campaign finance
limitations applied only to ``communications that in express terms
advocate the election or defeat of a clearly identified candidate for
federal office.'' A footnote to the opinion says that the limits apply
when communications include terms ``such as `vote for,' `elect,'
`support,' `cast your ballot for,' `Smith for Congress,' `vote
against,' `defeat,' `reject.' '' The phrases in the footnote have
become known as the ``magic words'' without which a communication, no
matter what its purpose or impact, is often classified as issue
advocacy, thus falling outside the reach of the campaign finance laws.
Until the 1992 election cycle, most for-profit, not-for-profit, and
labor organizations did not attempt to get into electoral politics via
issue advocacy. However, that year a group called the Christian Action
Network ran an ad that stretched the distinction between express
advocacy and issue advocacy to its limits. The ad, which was broadcast
at least 250 times just before the presidential election, was described
by a court as giving candidate Bill Clinton a ``sinister and
threatening appearance'' before finally wiping his image from the
screen. The 30-second spot, entitled ``Clinton's Vision for a Better
America,'' denounced what the Christian Action Network labeled
Clinton's ``homosexual agenda.'' The ad never used Buckley's ``magic
words'' and the Court of Appeals decided that the ad was a discussion
of issues related to ``family values'' rather than an exhortation to
vote against Clinton in the upcoming presidential election.
The ad by the Christian Action Network and others like it opened the
flood gates to more so-called issue advocacy in later elections,
resulting in the half-a-billion dollars in sham issue ads that
influenced the 2000 elections.
Soft money and sham issue advocacy became predominant features of our
campaign finance system even though neither was intended to play a role
in our campaigns when the post-Watergate reform laws were written. The
result? Last year approximately $1 billion in soft money contributions
and sham issue ad expenditures influenced our federal elections. Many
who oppose reform will argue that both soft money and sham issue ads
are constitutionally protected and should be allowed to continue
unfettered. I would like to take just a moment to address those
arguments.
We have been told that the ability to donate hundreds of thousands of
dollars in soft money is constitutionally protected. The truth is,
banning soft money contributions does not violate the Constitution. The
Supreme Court in Buckley held that limits on individual campaign
contributions do not violate the First Amendment. If a limit of $1000
on contributions by individuals was upheld as constitutional, then a
ban of contributions of $10,000, $100,000 or $1 million is also going
to be upheld. It simply cannot be said that the First Amendment
provides an absolute prohibition of any and all restrictions on speech.
When state interests are more important than unfettered free speech,
speech can be narrowly limited. Speech is limited in cases of false
advertising and obscenity. In addition, we are not, as the saying goes,
free to yell ``fire'' in a crowded movie theater. In those cases, there
is a compelling reason to limit speech. Buckley, too, said that the
risk of corruption or the appearance of corruption warranted limits on
individual campaign contributions. Soft money contributions to
political
[[Page S3335]]
parties can be limited for the same reason.
In addition, in Nixon v. Shrink Missouri PAC, the Supreme Court
recently justified its decision to uphold a $1050 contribution limit
for elections in Missouri, stating that it was concerned with ``the
broader threat from politicians too compliant with the wishes of large
contributors.'' It went on to say: ``Leave the perception of
impropriety unanswered, and the cynical assumption that large donors
call the tune could jeopardize the willingness of voters to take part
in democratic governance.'' I think the Supreme Court's language bodes
well for the likelihood that a soft money ban will be upheld.
Likewise, I believe that the electioneering provisions of the bill
will be upheld. It's a trickier case, but I would submit that the
bright line test in McCain-Feingold satisfies the Supreme Court's
holding in Buckley. The so-called ``magic words'' test of express
advocacy has come to provide what is a wholly unworkable test that I
believe was never the intention of the Court. The magic words test
elevates form over substance, and in practice has proven meaningless.
The proof of that is in the half-a-billion dollars in sham issue ads
that were aired last year.
I would add that the test in this bill does not stop any
advertisements. Advertisements that simply discuss issues, without
naming candidates are always permissible. Advertisements that air
within 30 days of a primary or 60 days of a general election can
discuss issues, as long as the ads do not depict a particular
candidate. And any advertisement can be aired at any time, as long as
it is paid for with hard money.
A final argument opponents of reform like to make is that we spend
less on campaigns than we do on potato chips or laundry detergent. But
I would ask the proponents of this argument whether what we are seeking
in our democracy is electioneering that has no more depth or substance
than a snack food commercial. Because, despite the ever-increasing sums
spent on campaigns, we have not seen an improvement in campaign
discourse, issue discussion or voter education. More money does not
mean more ideas, more substance or more depth. Instead, it means more
of what voters complain about most. More thirty-second spots, more
negativity and an increasingly longer campaign period. Less money might
actually improve the quality of discourse, requiring candidates to more
cautiously spend their resources. It might encourage more debates, as
was the case in my own race against Bill Weld in 1996, and it would
certainly focus the candidates' voter education efforts during the
period shortly before the election, when most voters are tuned in,
instead of starting the campaign 18 months before election day.
The American people don't buy the arguments made by opponents of
reform. The American people want us to forge a better system. A
national survey conducted by the Mellman Group in April of last year
found that by a margin of 68 percent to 19 percent, voters favored a
proposal that eliminates private contributions, sets spending limits
and gives qualifying candidates a grant from a publicly financed
election fund. That same survey also found that 59 percent of voters
agree that we need to make major changes to the way we finance
elections. But perhaps the most telling statistic from this survey is
that overwhelming majorities think that special interest contributions
affect the voting behavior of Members of Congress. Eighty-seven percent
of voters believe that money impacts Members of Congress, with 56
percent expressing the belief that if affects the members ``a lot.''
Even when asked about their own representatives, the survey again found
that voters overwhelmingly believed that money influenced their
behavior. Eighty-two percent believe campaign contributions affect
their own members, and 47 percent thought their representatives were
affected ``a lot.''
McCain-Feingold is an important piece of legislation that begins to
tackle the problems of soft money and issue advocacy I have outlined. I
support this legislation, but I would note one serious shortcoming of
the bill. It won't curb the rampant spending that drives the quest for
money. Unfortunately, we all recognize that creating spending limits is
not a simple proposition. In the 1996 Buckley case, the Supreme Court
struck spending limits as an unconstitutional restriction of political
speech. An important caveat to its decision is that spending limits
could be imposed in exchange for a public benefit. I wish we had at our
disposal a number of bargaining chips, public benefits that we could
trade in exchange for spending limits. However, unless the Supreme
Court reverses itself, something I am certainly not expecting in the
near future, we must accept that if we want to limit the amounts spent
on campaigns, we must provide candidates with some sort of public
grant.
The votes we have taken on various amendments addressing public
funding make it clear that a lot of my colleagues aren't ready to
embrace public funding as a way to finance our campaigns. But it is, in
my opinion, the best constitutional means to the important end of
limiting campaign spending and the contributions that go with it.
Ultimately, I believe in the potential of a system that provides full
public funding for political candidates. I would also support a partial
public funding system, such as the one I offered in an amendment to
this legislation. That amendment would have freed candidates from the
need to raise unlimited amounts of money by providing with ``liberty
dollars'' in the form of a two-for-one match for small contributions,
in exchange for the candidates agreeing to abide by spending limits. I
believe that any system that reduces candidates' reliance on private
money and encourages them to abide by spending limits will ultimately
be the best way to truly and completely purge our system of the
negative influence of corporate money.
Many of our states are already engaging in a grand experiment to see
if full or partial public funding of campaigns serves the goals of
reform. At the state level, politicians are learning that the cost of
campaigns can be capped without reducing the effectiveness of a
campaign. Challengers are becoming more competitive as their campaigns
are infused with public money. Incumbents are learning that they can
spend less time fundraising and more time governing if they avail
themselves to public campaign funds. And our citizens are learning that
their faith in the political process can be restored as money no longer
appears to influence the political process.
I am pleased that my home state of Massachusetts is one of the states
that is experimenting with a Clean Money, Clean Elections law. The law,
which voters adopted by referendum in 1998, will go into effect this
year and will provide candidates for state office with full public
funding if they agree to abide by spending limits. A recent survey of
voters across the state found that three-fourths support the law. I am
optimistic that the majority will grow after the law is put to its
first test during the upcoming elections.
It seems that Clean Money, Clean Elections laws are off to a good
start in the states. But we need to know more about how well these
programs work. That is why I am pleased that the managers of this bill
accepted an amendment I offered that will require the GAO to examine
the impact of Clean Money, Clean Elections laws in states where they
have been enacted. Specifically, my amendment will require the GAO to
determine more about the candidates who have chosen to run for public
office using Clean Money, Clean Elections funds. It will provide us
with concrete figures on which offices attract Clean Money, Clean
Elections candidates, whether incumbents choose to use clean money, and
the success rate of Clean Money candidates.
In addition, the GAO will be able to determine whether Clean Money,
Clean Elections programs reduced the cost of campaigns, increased
candidate participation or created more competitive primary or general
elections.
We should encourage states to experiment with reform. I believe an
objective study as required by this amendment will better enable
leaders at the state level to evaluate the Clean Money, Clean Elections
option. In the end, we may all learn that there is an important role
for public financing in state and ultimately federal elections.
As I said before, this bill, which bans soft money, regulates sham
issue ads, and provides a study for public funding systems provides a
good first start to
[[Page S3336]]
reform, and I will therefore support it. I have one serious reservation
about the bill, however, and that is its increase in the hard money
limits. Although I fully understand the argument that the limits have
not kept up with inflation, I am concerned that the increases in
individual limits and, most especially, aggregate limits, do not take
us in the right direction of decreasing the amount of money in
elections. Moreover, this increase simply enables the tiniest
percentage of the population that currently contributes large
contributions to contribute even more. This increase does nothing at
all to increase the role the average voter plays in our election
process.
Nevertheless, the vote yesterday is a victory for reform--but it
needs to be the first vote, not the last. I want to offer my
congratulations to my friends Russell Feingold and John McCain on this
victory for reform, passage of a bill that breaks free from the status
quo and will help us restore the dwindling faith the average American
has in our political system. For too long we've known that we can't go
on leaving our citizens with the impression that the only kind of
influence left in American politics is the kind you wield with a
checkbook. This bill reduces the power of the checkbook and I am proud
to support it.
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