[Congressional Record Volume 148, Number 22 (Tuesday, March 5, 2002)]
[Senate]
[Pages S1527-S1530]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       UNANIMOUS CONSENT REQUEST

  Mr. DASCHLE. Mr. President, I wonder if the Senator would yield very 
briefly so we might propound a quick unanimous consent request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Mr. President, I ask unanimous consent the majority 
leader, following consultation with the Republican leader, may at any 
time turn to the consideration of H.R. 2356, the campaign finance 
reform legislation; that there be 4 hours of debate equally divided and 
controlled between the two leaders or their designees; that no 
amendments or motions be in order to the bill; that upon the use or 
yielding back of time the bill be read the third time, the Senate vote 
on passage of the bill, with this action occurring with no further 
intervening action or debate.
  Mr. McCONNELL. Reserving the right to object, and I will object, let 
me

[[Page S1528]]

say to the distinguished majority leader and to all Members of the 
Senate, since he last propounded this consent agreement, the senior 
Senator from Arizona and I have had an opportunity to sit down three 
times in private discussion about some technical changes to the bill 
that I thought would not do violence to the underlying concept. We have 
reached agreement in principle on 6 of the 13 suggestions I made.
  Today, he and I both had an opportunity to brief our colleagues in 
the Republican conference on the 13 suggestions I proposed. They have 
now been distributed. I would like for the majority leader and the 
Democrats to look at them as well. I am hoping we can continue to 
discuss the changes in the next few days.
  I remind our colleagues that this bill, which certainly will become 
law sometime soon, doesn't take effect until November 6. So I think to 
take a little more time to look at it very carefully and consider 
technical changes that will benefit both sides is a good idea. I 
encourage all Senators to take a look at the suggestions I have made. I 
believe virtually all of them are reasonable. I know Senator McCain 
believes that at least some of them are reasonable. Therefore, I 
object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. McCAIN. Will the Senator yield?
  Mr. DASCHLE. I am happy to yield.
  Mr. McCAIN. I thank the majority leader for propounding this 
unanimous consent agreement, and I thank my colleague from Kentucky for 
entering into good-faith discussions on this issue. We have had 
important discussions, and I think they have been something that 
Senator McConnell deserves to have had, given the long involvement we 
have had in this issue.
  I must tell my colleagues, we are at an impasse. We are at a 
situation where we need to move the process forward because the seven 
areas of ``disagreement'' that we have are substantive in nature, could 
never be viewed by me and Senator Feingold, with whom I have consulted 
constantly during this issue, my partner--could not be construed as 
anything but substantive amendments.
  That is why I requested that the Senator from Kentucky bring up these 
7 amendments, we vote them up or down, 51 votes carries, and we agree 
to move to final passage on the bill.
  I cannot continue to discuss the amendments on the bill when we 
cannot agree to process on the bill. My position--and it remains my 
position, as propounded by the majority leader--is that we move to the 
bill with a consent the amendments the Senator from Kentucky or others 
may have be voted up or down, with an agreement on those amendments, 
with final passage.

  As to the technical amendments, many of which are still up for 
discussion and would have to also be agreed to by our colleagues on the 
other side of the Capitol, those we would agree to by unanimous consent 
agreement, as far as the Senate is concerned, and if we, the majority 
leader, the Republican leader, Senator McConnell, Senator Dodd, Senator 
McCain, and Senator Feingold are in agreement, we would take up and 
pass those technical amendments to the bill. I think that is a fair 
disposition of this legislation.
  As Senator McConnell is going to distribute his proposals, I will 
also distribute our responses. To any objective observer, a majority of 
those are not technical in nature, they are controversial. They need to 
be debated and voted on within a reasonable length of time.
  Finally, I appreciate the patience of the majority leader. He is 
committed to the energy bill. I understand that commitment. But I also 
appreciate the fact that the majority leader wants this issue dispensed 
with. It was March a year ago that we passed this legislation. It went 
over to the other body with assurance of a fair rule. It was an unfair 
rule. They had to get 218 votes. They passed this legislation with 10 
amendments. We had 3 weeks of debate--3 weeks with amendment after 
amendment.
  This issue has been ventilated. It is time to move forward. I say 
with great respect and appreciation for this honorable opponent, it is 
time we move forward. If we have to, the majority leader needs to go 
through the cloture motion process. I regret that, but we cannot 
discuss further technical amendments that are not technical amendments 
unless there is an agreement on the process, and that process has to be 
consideration of amendments and agreement of final passage, or 
anticipation of a filibuster, to which one of our colleagues has 
already committed, no matter what.
  One of our colleagues is already committed to filibuster, I say to my 
colleagues, no matter what happens in the discussions that Senator 
McConnell and I may have. It is time we plan for that and move forward 
with cloture motions. If the Senate decides not to get 60 votes, then 
we will wait until the next scandal. We will wait until the next 
scandal, I say to the Senator from Kentucky. I don't know if it is 
Buddhist Temple fundraising, I don't know if it is Enron, I don't know 
who it is, but this system awash in money creates scandals because it 
makes good people do bad things. It is time we fixed it.
  Mr. DASCHLE. Mr. President, I am happy to briefly yield to the 
Senator from Wisconsin.
  The PRESIDING OFFICER (Mr. Dayton). The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I have been quiet the last few days 
about this because I have a lot of respect for the Senator from 
Kentucky, and I admire the patience of my partner, Senator McCain, to 
go through these proposals with the Senator from Kentucky. But I have 
to say, in my mind, the time has run out.
  The proposals the Senator from Kentucky is talking about, as he 
indicated, in some cases are technical. In those instances, we can 
simply deal with these matters in a separate piece of legislation. But 
the Senator from Arizona is right. The other matters are substantive; 
they are controversial. But I add, they do not go to the core issues of 
the McCain-Feingold bill.
  A broad consensus in both Houses, a bipartisan consensus, has voted 
strongly to pass those items. That has to happen now. And given the 
fact that one of the Members on the other side of the aisle has 
indicated--not the Senator from Kentucky, but another Member--that 
there will be a filibuster, in any event, the time has come not to be 
quiet anymore but to support the majority leader, who has come out here 
diligently and tried to move us forward. Consistent with the other 
commitments he has made, consistent with all the pressures he has, he 
has been here and tried again today to get us to the final process.
  It is regrettable, but I think we have to go now to the final stage: 
to represent the will of this body, the will of the House, and to 
finally clean up this system. I don't think any more delay is merited.
  Mr. DASCHLE. Mr. President, I have said publicly, and I will say for 
purposes of the Record, it is my intention to back up from the final 
day of this particular work period for whatever length of time may be 
required to go through the procedural hurdles to accomplish our goal of 
completing our work on this bill prior to the time we go into the 
Easter recess. So we will do that. I just put my colleagues on notice.
  I also simply note that had we been able to get unanimous consent, I 
would also have asked unanimous consent on behalf of Senator Hollings 
that the constitutional amendment regarding campaign finance reform 
also be considered. But since that agreement could not be reached, I 
did not propound the other request.
  I am happy to yield to the Senator from Kentucky.
  Mr. McCONNELL. If the Senator will yield for a question, I hope the 
majority leader might be willing to share the information now with the 
balance of his colleagues so that others might take a look at whether 
or not these suggestions are reasonable and don't go to the heart of 
the bill. Even Senator McCain and Senator Feingold have indicated that 
six of them we can probably reach agreement on in principle.
  You are the majority leader, not I, but let me suggest on the ones 
that we can agree with in principle, it might be appropriate to pass a 
separate technical corrections bill, if it needs to be in a separate 
bill, in order to avoid going back to the House. Pass the technical 
corrections bill simultaneously; it goes back to the House, the other 
bill goes on down to the President.
  I am a little worried about there not being much interest in the 
technical

[[Page S1529]]

corrections bill after the main bill leaves the Senate.
  If we can reach agreement on at least some of these, as appears 
possible, I hope the majority leader might consider taking up the 
technical corrections package simultaneously, sending it out of here 
and back over to the House side. It is just a suggestion.
  Mr. DASCHLE. I say to the Senator from Kentucky, I know he has put a 
lot of time and thought into this. I am not averse to considering that 
approach. I think it is certainly worth our while to consider what 
proposals the Senator and others have suggested. We will take a look at 
that and entertain that possibility at such time as we take up the 
bill.
  I yield the floor.
  Mr. McCONNELL. Mr. President, briefly, I ask unanimous consent the 
package I just referred to in my remarks be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    Senator McConnell's 6 Technical Changes Proposed--Agreement in 
                               Principal

       1. Transfer of Excess Campaign Funds--Shays-Meehan 
     inadvertently eliminated unlimited transfers of excess 
     campaign funds to party committees.
       Solution: Include ``without limitation'' for transfers of 
     excess funds so transfer will not be a ``personal use'' of 
     campaign funds.
       2. Not Impact 2002 Run-Offs--Effective date is before run-
     off elections are held.
       Solution: Allow parties to operate under the current system 
     for any 2002 run-off elections.
       3. Defined Soliciation--Federal candidates and 
     officeholders are heavily restricted in fundraising for state 
     candidates and party committees. For example, federal 
     candidates and officeholders could be banned from attending 
     fundraising events for state candidates.
       Solution: Clearly define what we can and cannot do.
       4. Time Limit for Special Judicial Review Procedures--
     Plaintiffs around the country should not be forced to sue 
     only in D.C. District Court forever, with no circuit court 
     review (only option is discretionary appeal to the Supreme 
     Court--practically foreclosing appellate review).
       Solution: Provide a time limit for exclusive jurisdiction 
     in D.C. District Court and lack of circuit court review.
       5. Authorize Member Challenges--Shays-Meehan specifically 
     authorizes member intervention in a suit but does not 
     specifically authorize a member to challenge the new law.
       Solution: Specifically authorize member challenges--parity 
     for challenging and intervening.
       6. State Party Building Funds--State parties will have to 
     use hard dollars to pay for their buildings.
       Solution: Clarify that state party building funds are 
     governed exclusively by state law.

    Senator McConnell's 7 Technical Changes Proposed--Not Agreed to

       1. Outside groups/State Party Parity
       Shays-Meehan Empowers Outside Groups and Weakens State 
     Parties
       Federal candidates and officeholders can raise soft money 
     for outside groups: unlimited for 501(c)s whose primary 
     purpose is not grassroots voter activities (could be used for 
     issue ads and voter activities) and $20,000 per individual 
     for any entity specifically for grassroots voter activities. 
     (Not in McCain-Feingold.)
       But state party grassroots voter activities are restricted: 
     no party transfers, no joint fundraising, federal candidates 
     and officeholders can only raise hard money and state parties 
     can't use broadcast media for those activities. (Not in 
     McCain-Feingold.)
       Solution: Return to McCain-Feingold language and raise soft 
     money limit to state parties from $10,000 to $20,000 to 
     achieve parity with fundraising for outside groups.
       2. Coordination Prosecution--If a candidate raises money 
     for or meets with an outside group and that group engages in 
     voter registration or simply discusses legislation in the 
     candidate's state, the candidate may be civilly or even 
     criminally prosecuted.
       Solution: Require a more precise coordination standard.
       3. Index Contribution Limit To State Party. The limit is 
     increased but not indexed.
       Solution: Index the hard dollar limit--critical to compete 
     with outside groups.
       4. Permit Party Coordinated And Independent Expenditures. 
     Shays-Meehan treats all party committees (from national to 
     local parties) as a single committee. Prohibits all 
     committees from doing both coordinated expenditures and 
     independent expenditures after nomination by party (contrary 
     to S. Ct. ruling in Colorado I).
       Solution: Do not treat all party committees as a single 
     committee and do not prohibit them from doing both 
     independent and coordinated party expenditures.
       5. Do Not ``Federalize'' State Candidates--State candidates 
     may not mention federal candidates in an advertisement unless 
     they use hard dollars; state candidates doing GOTV activities 
     together must use hard dollars, and federal candidates and 
     officeholders are subject to the hard dollar limits and 
     restrictions in fundraising for state candidates.
       Solution: Do not ``federalize'' state candidates.
       6. Index PAC limit--The limit is not increased or indexed.
       Solution: Index, but do not increase, hard dollar 
     contribution limits to and from PACs.
       7. National Party Building Fund--Will be eliminated on 11/
     06.
       Solution: Allow parties to spend, not raise, building funds 
     until funds are depleted.

  Mr. McCAIN. Mr. President, I ask unanimous consent an analysis of 
changes proposed by Senator McConnell be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Analysis of Changes Proposed by Senator McConnell to Pending Campaign 
                       Finance Reform Legislation

       Twelve specific changes to the McCain-Feingold/Shays-Meehan 
     bill have been proposed to Senator McCain. Incorporation of 
     any of these changes in the bill itself would kill the bill 
     by sending it to conference or back to the House.
       Many of these changes are unacceptable substantive 
     revisions of the bill. Some of these changes would upset 
     bipartisan compromises made during floor consideration in the 
     Senate or decisions made on the House floor. Still others 
     would undermine central components of the reform effort, 
     particularly the soft money ban.
       Some of the suggested changes are technical corrections 
     that are not necessary, but that could be addressed in a 
     separate technical corrections bill as long as it does not 
     interfere with the prompt enactment of the pending campaign 
     finance reform legislation.
       Each of the amendments is discussed below. The headings for 
     the amendments are taken from the proposal given to Senator 
     McCain.
       1. State Party/Outside Group Parity--This is a proposed 
     substantive change to the pending CFR legislation. It would 
     eliminate the changes made in the House that clarified 
     Senator Levin's amendment in order to prevent the amendment 
     from becoming a major loophole in the soft money ban.
       Under the Levin amendment, state and local parties could 
     use up to $10,000 per year of a contribution from a 
     corporation, union, or individual, for generic get out the 
     vote activities (GOTV); GOTV for state and local candidates; 
     and voter registration within 120 days of an election 
     involving a federal candidate, so long as these activities do 
     not refer to a clearly identified candidate for federal 
     office. As passed by the Senate, the Levin amendment could 
     have been interpreted to allow federal officeholders to raise 
     these soft money funds, and to allow state parties to use 
     these soft money funds to finance broadcast ads.
       Senator Levin was very clear on the Senate floor, however, 
     that he did not intend this soft money to be raised by 
     federal candidates or officeholders, and the House bill 
     clarifies this. Senator Levin also intended that the money be 
     used for grassroots activities, and the House bill clarifies 
     this as well. On the Senate floor, Senator Levin explained 
     that his amendment:
       ``These are dollars not raised through any effort on the 
     part of Federal officeholders, Federal candidates, or 
     national parties. These are non-Federal dollars allowed by 
     state law.
       Senator Levin further said:
       ``[This provision] will allow the use of some non-Federal 
     dollars by state parties for voter registration and get out 
     the vote, where the contributions are allowed by state law, 
     where there is no reference to federal candidates, where 
     limited to $10,000 of the contribution which is allowed by 
     state law, and where the allocation between federal and non-
     Federal dollars is set by the federal election commission.''
       The proposed revision would eliminate these clarifying 
     provisions.
       The House bill also added restrictions on joint fund-
     raising to prevent solicitations of large sums from a single 
     donor, and restrictions on transfers of monies for Levin 
     activities to state and local party committees to help 
     prevent the federal soft money system from being shifted to 
     the state level. The proposed revision would eliminate these 
     protections.
       The proposed revision would also double the amount of soft 
     money that state parties can use from contributions provided 
     by corporations, unions, or individuals for the authorized 
     GOTV and voter registration activities. This would increase 
     the $10,000 per year limit contained in both the House and 
     Senate-passed bills to $20,000 per year. The $10,000 limit is 
     the same as the limit that applies to hard money donations by 
     individuals to state parties under the bill. Thus, under the 
     bill, an individual donor can already give a total of $20,000 
     per year to a state party that can be used for voter 
     activities, the same amount that federal candidates can 
     solicit for outside groups for use on these activities.
       2. Contribution Limit to State Parties--The proposal 
     suggests indexing the amount that individuals can contribute 
     to state parties. The decision not to index this amount was 
     part of difficult bipartisan negotiations during Senate 
     consideration of the bill that led to a package of increases 
     in contribution

[[Page S1530]]

     limits approved by the Senate. The only change in this 
     provision made by the House was to increase the aggregate 
     limits.
       3. Hard Dollar Candidate Support by Parties--This is a 
     proposed substantive change to the pending CFR legislation. 
     The proposal would allow parties to make both independent and 
     coordinated expenditures in individual races.
       The requirement that the parties choose between these 
     expenditures was contained in both the Senate and House-
     passed bills and is not inconsistent with the Colorado I 
     decision. For purposes of this provision only, national and 
     state party committees are treated as a single entity. 
     Otherwise, the provision would not be effective because, for 
     example, a national party could choose to make coordinated 
     expenditures, and then transfer additional funds to a local 
     party to use for independent expenditures.
       Parties should not be able to claim that they are 
     independent of one of their candidates if, during the general 
     election period, they are making coordinated expenditures 
     with that same candidate under section 441a(d) of the FECA. 
     Permitting both coordinated and independent expenditures by a 
     party makes meaningless the coordinated spending limits 
     recently upheld by the Supreme Court in Colorado II. 
     Furthermore, since the bill provides that the choice between 
     making independent or coordinated expenditures is made by the 
     party only after a candidate is nominated, the national party 
     will be able to control the decision of which kind of 
     spending to undertake. In addition, contrary to the claim 
     made in the proposal, there is no general restriction on 
     transferring hard money between national and state parties.
       4. Excess Campaign Funds--This is a proposed technical 
     clarification. The proposal seeks to add the words ``without 
     limitation'' to the portion of the personal use provision of 
     the bill that deals with transfers of excess campaign funds 
     by candidates to political parties.
       There was no intention to change longstanding federal 
     election law that permits candidates to transfer excess 
     campaign funds without limitation to their parties. This can 
     be clarified in a colloquy or in a technical corrections bill 
     if there is one.
       5. PAC Contribution Limit--This is a proposed substantive 
     change. The proposal would index the limits on how much can 
     be contributed to and from PACs.
       Increasing or indexing PAC contribution limits was 
     considered and rejected in bipartisan negotiations on 
     contribution limits during Senate consideration of the bill. 
     The decision represents a position that the role of PACs in 
     financing elections should not be increased. The Senate 
     agreement was not changed in the House.
       6. 2002 Run-off Elections Unfairly Impacted--This is a 
     proposed substantive change to the pending CFR legislation. 
     The proposed revision suggests changing the effective date 
     with respect to runoff elections. This would allow soft money 
     to be raised after November 5, 2002.
       In deciding to delay the effective date of the bill so that 
     it would not apply to the 2002 elections, a very clear 
     decision was made that no soft money should be raised after 
     election day. With respect to other provisions of the bill, 
     such as the spending of excess soft money and electioneering 
     communications, the suggestion that the bill not apply to 
     runoff elections related to the 2002 elections can be dealt 
     with in a floor colloquy or in a technical corrections bill 
     if there is one.
       7. Building Fund--The proposal has two parts. One is a 
     substantive change, the other is not. The substantive change 
     would allow the national parties to spend their excess soft 
     money on buildings without any time limitation. The non-
     substantive portion of the proposal would make clear that 
     state party building funds are governed solely by state law.
       A provision allowing the national parties to spend their 
     excess soft money on buildings was included in the House bill 
     that went to the floor. It was vigorously attacked by the 
     Republican leadership in the House, which claimed that it was 
     a special advantage for the DNC. The provision was stripped 
     from the bill by an amendment on the House floor that was 
     overwhelmingly supported by Republicans. The Senate bill 
     contained no special exemptions for national party buildings.
       There is nothing in the House-passed bill that regulates 
     state party building funds. This concern can be addressed in 
     a floor colloquy, or a separate technical corrections bill if 
     there is one.
       8. Ensure Unintended Litigation Does Not Result--This is a 
     substantive proposal that has two parts. The first part 
     suggests defining ``solicitation.'' Separately, the proposal 
     would eliminate the increase in the statute of limitations 
     from three to five years that was added to the bill by the 
     Thompson-Lieberman amendment.
       Like many other terms in the bill, ``solicitation'' will be 
     subject to definition by the FEC in regulations. A statutory 
     definition could also be included in a separate technical 
     corrections bill if there is one and if agreement on the 
     definition of the term can be reached.
       The increase in the statute of limitations from three to 
     five years resulted from Senators Thompson and Lieberman's 
     concern that wrongdoing in the 1996 election was not being 
     effectively pursued by the Justice Department. A five year 
     statute of limitations is common in the federal criminal law. 
     Both the House and Senate bills lengthened the statute of 
     limitations and did not contain a definition of solicitation. 
     No question about either of these issues was raised during 
     floor consideration in either body.
       9. Coordination--This is a substantive proposal. The 
     proposal claims to offer ``modest changes'', but in fact 
     would make significant changes to coordination language that 
     was passed by the Senate, and included in the House bill.
       Contrary to the proposal's claim, the bill does not provide 
     a new definition of ``coordination.'' The bill repeals 
     recently adopted FEC regulations on coordination and directs 
     the FEC to issue new regulations. It requires the FEC to 
     address certain topics in the rulemaking, but does not 
     dictate what the FEC should decide. The bill also specifies 
     that ``agreement'' or ``formal collaboration'' are not 
     required for coordination to exist.
       This direction is given because the current regulations 
     allow blatant coordination to occur between candidates and 
     outside groups in issue ads and other campaign-related 
     activities simply by never entering into an ``agreement'' or 
     ``formal collaboration.''
       Contrary to the suggestion in the proposal, nothing in the 
     bill even remotely suggests that a candidate's raising money 
     for a group would alone trigger a finding that the group's 
     spending on voter registration activity is coordinated with 
     the candidate.
       10. Effect on State Candidates--The proposal suggests a 
     non-substantive, but unnecessary change. The proposal seeks 
     to clarify that state candidates may ``align themselves'' 
     with federal candidates in their solicitations and campaign 
     activities, including advertisements.
       The bill already permits state candidates to publicize 
     endorsements from federal candidates or align themselves with 
     a federal candidate's views. However, the bill prohibits 
     state candidates from spending soft money to promote or 
     attack federal candidates through general public political 
     advertising.
       11. Time Limit For Expedited Judicial Review--The proposal 
     seeks to limit the expedited judicial review provision of the 
     bill to suits brought shortly after enactment.
       The expedited review provisions in the Senate and House-
     passed bills were not limited in this way. The expedited 
     review provisions assure that decisions that could affect 
     ongoing campaigns will be made promptly. These provisions 
     will be useful even years after enactment.
       By requiring all suits challenging the constitutionality of 
     the bill to be brought in the District of Columbia, the bill 
     avoids the conflicts between the circuit courts that have 
     created uncertainty in current law. The provision also 
     requires these cases to be heard by three-judge panels. Given 
     the importance of the election law to campaigns, there is no 
     reason to force suits to be brought within a specific time 
     period after enactment in order to qualify for expedited 
     treatment. The Supreme Court can summarily affirm the lower 
     court's decision if it chooses, so this provision need not be 
     a burden on the Court's docket.
       If agreement can be reached on revised judicial review 
     procedures, it can be included in a technical corrections 
     bill if there is one.
       12. Court Challenges--The proposal would give Members of 
     Congress a statutory right to challenge the campaign finance 
     reform law directly.
       The existing intervention provisions of the bill give 
     Members of Congress on both sides of the issue the ability to 
     participate equally in litigation concerning the 
     constitutionality of the Act. Members of Congress may already 
     have standing to challenge the Act in court, and Congress 
     cannot grant constitutional standing where it does not 
     already exist. Issues relating to standing by members could 
     be addressed in a separate technical corrections bill if 
     there is one, as long as members on both sides of the issue 
     are treated similarly.

                          ____________________