[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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