[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.
____________________