[Congressional Record Volume 148, Number 35 (Friday, March 22, 2002)]
[Senate]
[Pages S2339-S2343]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 CORRECTIONS IN ENROLLMENT OF H.R. 2356

  Mr. DODD. Mr. President, I ask unanimous consent that the Senate turn 
to the immediate consideration of H. Con. Res. 361.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The legislative clerk read as follows:

       A concurrent resolution (H. Con. Res. 361) directing the 
     clerk of the House of Representatives to make corrections in 
     the enrollment of the bill, H.R. 2356.

  There being no objection, the Senate proceeded to consider the 
concurrent resolution.
 Mr. McCONNELL. Mr. President, I am in support of the unanimous 
consent for the adoption of H. Con. Res. 361 making technical 
corrections to H.R. 2356 passed by the Senate yesterday.
  Several weeks ago, I met with Senator McCain to discuss a list of 12 
technical corrections to H.R. 2356. Of those 12 items, we were able to 
come to an agreement in principle on 6. After weeks of negotiations 
between my staff, and the staffs of Senator McCain and Senator 
Feingold, we have before us today the fruit of our labor. I thank them 
and their staff, specifically Jeanne Bumpus and Bob Schiff, for their 
hard work and persistence in making these minor corrections.
  The items contained in this concurrent resolution are a compilation 
of technical corrections sought by me, and corrections sought by the 
Senators from Arizona and Wisconsin. In fact, the independent 
expenditure reporting correction was raised by FEC Commissioners Brad 
Smith and Dave Mason and advanced by the staff of my colleagues from 
Arizona and Wisconsin. I applaud my colleagues for addressing this 
technical issue and will ask consent that a letter from Commissioners 
Mason and Smith outlining technical issues with H.R. 2356 for the 
Senate to consider be included in the Record. Similarly, the correction 
to the citation to the Immigration and Nationalization Act was raised 
by the FEC. Shays-Meehan inadvertently cited the definition of 
``advocates'' rather than ``lawfully admitted for permanent 
residence.''
  These technical corrections clarify some other important points: 
Respecting the primacy of State law in financing State and local party 
buildings; continuing to allow members to transfer excess campaign 
funds to party committees without limit; ensuring that we do not change 
the rules for 2002 candidates engaged in a run-off, recount, or 
election contest; providing for direct member challenges to the 
constitutionality of H.R. 2356; and providing a sunset provision for 
expedited review in the D.C. court so that plaintiffs who live on the 
west coast do not forevermore have to come to Washington, DC, to 
challenge provisions of the act.
  However, I remain strongly opposed to the underlying H.R. 2356 and 
believe its disparate treatment of individuals, parties, groups, 
corporations, and labor unions runs afoul of our fundamental 
constitutional rights. By singling out national party committees and 
chilling their speech at the State and local level, this legislation 
ensures the end of ``national'' party committees and the beginning of 
``federal'' party committees. Further, the broadcast gag

[[Page S2340]]

provisions in the bill are not only unprecedented in scope, but 
haphazard in applicability. I will ask consent that 5 additional items 
be included in the Record which highlight the egregious constitutional 
and practical problems with this legislation.
  Again I thank Senator McCain and Senator Feingold for their efforts 
on this concurrent resolution and commend the House for their swift 
action on this concurrent resolution.
  I ask to have additional material printed in the Record.
  The material follows.


                                  Federal Election Commission,

                                Washington, DC, February 25, 2002.
     Hon. Mitch McConnell,
     Ranking Member,
     Senate Committee on Rules.
       Dear Senator McConnell: You have asked for comments on 
     provisions of H.R. 2356 that appear sufficiently problematic 
     in enforcement or interpretation as to require legislative 
     clarification. We urge Congress to consider ways to address 
     these issues which could otherwise hinder our ability to 
     effectuate the will of the Congress or to administer the 
     Federal Election Campaign Act.
       We note that we have had only a few days to review the 
     House-passed version of H.R. 2356, so the list below may not 
     be exhaustive of all desirable technical and clarifying 
     changes.
       1. Should the Commission regulate Internet web pages or e-
     mail as ``Public Communication''? The proposed new definition 
     of ``Public Communication'' (proposed Part 22 of Section 301 
     of the FECA [2 USC 431]) includes ``any other form of general 
     public political advertising.'' The Commission has treated 
     Internet web pages available to the public and widely-
     distributed e-mail as forms of ``general public political 
     communication.'' Thus, the new definition combined with the 
     Commission's established interpretation of the FECA could 
     command regulation of Internet and e-mail communications. 
     Congress should clarify whether it intends for the Commission 
     to regulate publicly-available web pages and widely-
     distributed e-mail as forms of ``Public Communication.''
       2. Does Congress intend to prohibit state or local 
     political parties from making contributions to state or local 
     PACs? Proposed new Section 323(d) prohibits contributions by 
     national state or local political parties to 527 
     organizations other than political parties, ``political 
     committees,'' and authorized committees of state and local 
     candidates. Since the term ``political committee'' as used 
     in the FECA is limited to Federal (e.g. FECA-registered) 
     political committees, Congress may wish to clarify whether 
     it intends to prohibit state and local political parties 
     from making state-permissible (non-Federal) contributions 
     to state-registered political committees.
       3. Does Congress intend to prohibit Federal Officeholders 
     from appearing at fundraising events for state an local 
     candidates? Proposed new Section 323(e) prohibits raising of 
     non-Federal funds by Federal officeholders, except for state 
     or local party committees or for the official's own campaign 
     for state or local office. Congress may wish to clarify 
     whether it intends to allow Federal officeholders to appear 
     at fundraising events for authorized committees of state or 
     local candidates.
       4. Does Congress intend to exempt non-Federal amounts spend 
     on ``Federal Election Activity'' (``Levin Amendment'' funds) 
     from state reporting requirements? Section 453 of the FECA 
     pre-empts state law ``with respect to election to Federal 
     office.'' This provision prohibits states from imposing 
     reporting requirements additional to those of the FECA. 
     Section 103 of H.R. 2356 requires state and local parties to 
     disclose to the FEC non-Federal amounts expended for a share 
     of ``Federal Election Activity.'' Thus, these funds reported 
     to the FEC as ``Federal Election Activity'' would presumably 
     be exempt from state reporting requirements. The ``Levin'' 
     funds must be ``donated in accordance with state law'' (but 
     not ``reported'' pursuant to state law). However, if these 
     funds are not reported to relevant state agencies, the FEC 
     will have difficulty determining whether they were 
     ``donated'' in accordance with state law. Congress should 
     clarify whether it intends to exempt non-Federal amounts 
     spent on ``Federal Election Activity'' from state reporting 
     requirements, or to require dual (Federal and state) 
     reporting.
       5. Does Congress intend to repeal the requirement that 
     Independent Expenditure reports be received (rather than 
     ``filed'') within 24 hours? Just over a year ago Congress 
     revised the FECA to require that last-minute Independent 
     Expenditure reports be received by the Commission within 24 
     hours. Previous provisions required filing by mail, which 
     sometimes resulted in a several day delay in receipt of ``24 
     hour'' reports. Section 212 of H.R. 2356 would impose 
     additional reporting requirements for Independent 
     Expenditures. However, Section 212 appears to be based on the 
     pre-2000 version of the FECA and thus, presumably 
     inadvertently, would have the effect of repealing the 
     recently-imposed requirement that 24-hour reports be received 
     within 24 hours. Similarly, Congress should consider whether 
     personal expenditure notifications under Sections 304 and 319 
     of H.R. 2356 must be received or merely filed within 24 
     hours. (See item 6 below for additional comments on Sections 
     304 and 319)
       6. Does Congress intend to repeal the requirement that 
     reports of Independent Expenditures in support of or 
     opposition to Senate candidates be filed with the Secretary 
     of the Senate? Section 212 (discussed above) in restating the 
     Independent Expenditure reporting requirements also omits the 
     provision in 2 U.S.C. 434(c) providing for Senate-related 
     reports to be filed with the Senate, and requires all 
     Independent Expenditure reports to be filed with the FEC. 
     Congress may wish to consider whether this change is 
     intended.
       7. Are the existing and proposed new ``coordination'' 
     provisions intended to be read consistently? Section 202 of 
     H.R. 2356 treats an electioneering communication 
     ``coordinated'' with a candidate or party as a contribution 
     to that candidate or party. Earlier versions of H.R. 2356 
     included a definition of ``coordination,'' but that 
     definition was deleted in preference to retention of the 
     existing statutory rule addressing ``cooperation, 
     consultation or concert'' (441a(a)(B)(i)). Congress should 
     harmonize the terminology between existing subparagraph (B) 
     and proposed new subparagraph (C) of this section, lest 
     confusion arise as to whether Congress intended a common 
     regulatory standard to apply. Similarly, Congress should 
     clarify the relationship between ``expenditures'' addressed 
     in subparagraph (B) and ``electioneering communications'' 
     addressed in proposed new subparagraph (C). We are also 
     concerned that the instruction (Section 214(c) of H.R. 2356) 
     that a new coordination regulation ``not require agreement'' 
     could be read so broadly as to encompass virtually any 
     communication whatsoever (even `'disagreement'') between 
     candidates and persons making expenditures of electioneering 
     communications.
       8. Does Congress intend to punish inadvertent solicitations 
     of foreign nationals? Section 303 of H.R. 2356 helpfully 
     strengthens the ``foreign money ban.'' It appears that 
     Congress intends to hold foreign nationals strictly liable 
     for violations of this provision. However, the provision also 
     prohibits ``solicitation, acceptance or receipt'' of funds 
     from a foreign national, read most naturally to apply even 
     when the solicitor is unaware that the contributor is a 
     foreign national. Thus, candidates signing direct mail 
     fundraising appeals could be held in violation of this 
     provision if the mailing list included the name of a foreign 
     national Congress should consider instead prohibiting the 
     ``knowing solicitation, acceptance or receipt'' of foreign 
     national funds. The ``knowing'' standard is distinct from 
     ``knowing and willful,'' thus, this change would protect 
     genuinely inadvertent solicitations while still 
     distinguishing between simple and aggravated violations.
       9. Does Congress intend for the FEC to audit all self-
     financing candidates and their opponents? The ``millionaire'' 
     amendments (Sec. 304 and 319 of H.R. 2356) include eight 
     variables (two of which will change as often as daily). 
     Section 304 additionally provides for graduated increases in 
     contribution limits.
       We are concerned that candidates who may be entitled to 
     benefit from this provision will be prevented from doing so 
     because of both its complexity and the lag time between 
     personal expenditures and resulting increases in contribution 
     limits. The complexity will also make it difficult and costly 
     for the Commission to enforce, likely requiring an audit of 
     every campaign in which this provision comes into play. (The 
     Commission currently has resources to audit approximately two 
     Senate campaigns per election cycle. At least twelve Senate 
     campaigns would have been affected (by triggering or being 
     eligible for increased contributions) had these provisions 
     been in effect for the 2000 elections.)
       The distinction between primary and general elections could 
     allow wealthy candidates (particularly in states with late 
     primaries) to spend unlimited funds attacking a prospective 
     general election opponent during the primary without 
     triggering increased contributions limits. Similarly, wealthy 
     candidates might contribute excess funds during the primary 
     and carry them over to the general election, making 
     potentially unlimited amounts of personal funds available 
     without triggering increased contribution limits. Further, 
     the intended application of the ``gross receipts'' factor 
     (Section 316) is unclear: Are the gross receipts figures from 
     June 30 and December 31 added together, or combined, compared 
     or applied in some other fashion? A provision with a higher 
     initial threshold, fewer offsetting factors, and a non-
     graduated response (similar to the House provision) might 
     strike a better balance among the goals of aiding candidates, 
     limiting the size of contributions and reasonable simplicity 
     of application.
       Finally, the provisions require candidates benefiting from 
     increased contributions limits to return unspent funds within 
     fifty days of the election. However, the bill requires 
     reports on the disposal of these contributions ``in the next 
     regularly scheduled report after the date of the election.'' 
     For general elections, this date would fall only thirty days 
     after the election, and for many primaries, the relevant date 
     would be less than thirty days following the primary. Thus, 
     committees would be required to report on how they had 
     disposed of funds before they are required to dispose of 
     them. Congress should consider requiring the ``disposal 
     report'' in a report due sixty days or more (allowing fifty 
     days for return of excess contributions and some time to 
     complete the report) after the relevant election.

[[Page S2341]]

       10. Does Congress intend to extend the Commission's 
     ``allocation window'' during the soft money transition 
     period? A floor amendment to H.R. 2356 clarified that the 
     national party soft money transition rule (Section 402(b)) is 
     not intended to allow parties to pay ``hard money'' debts 
     with soft money. However, the statutory provision allowing 
     payment of debts through December 31, 2002 would appear to 
     override the Commission's regulation which requires that 
     party committees make non-Federal reimbursements to their 
     federal accounts between 10 days before and not later than 60 
     days after expending funds. Congress may wish to clarify 
     whether it intends for national party committees to comply 
     with the Commission's existing allocation regulations 
     (including the 70-day allocation window) during the 
     transition period.
       11. Does Congress intend for the expedited Judicial Review 
     and exclusive jurisdiction provisions of Section 403 to apply 
     in perpetuity? Section 403 provides for a special three-judge 
     District Court panel and expedited appeal to the Supreme 
     Court for any constitutional challenge to the Act. However, 
     by not limiting the provision to initial challenges (brought 
     within a specified period), Section 403 would require 
     convening of a three-judge panel and expedited appeal to the 
     Supreme Court for actions filed years in the future. All such 
     future challenges would have to be filed only in the District 
     of Columbia, and circuit court review would be permanently 
     foreclosed. Special FECA procedures governing constitutional 
     challenges enacted in 1971 and 1974 have been employed in the 
     Third Circuit and District of Columbia in the past two years. 
     Congress may wish to set a time limit for these special 
     judicial review provisions and allow normal judicial 
     procedures to govern constitutional claims raised in 
     subsequent years.
           Sincerely,
     David M. Mason,
       Chairman.
     Bradley A. Smith,
       Commissioner.
                                  ____


                 [From the Detroit News, Mar. 15, 2002]

                  Donations Don't Seem To Change Votes

                         (By John R. Lott Jr.)

       A lot of politicians have been explaining the money they 
     have gotten from Enron. When U.S. Rep. John Dingell (D-
     Mich.), the powerful ranking Democrat on the House Energy and 
     Commerce Committee, was asked about the donations he 
     received, he said: ``when somebody gives me money, they, I 
     assume, are supporting one thing: good government. And that's 
     what they got, and that's what Enron got.''
       In recently passing new campaign finance regulations, 
     public interest groups and the press insist that donors 
     supposedly only give money to politicians to buy influence. 
     There is little doubt that campaign contributions and voting 
     records often go together. But few mention that this 
     relationship might simply reflect that donors only support 
     candidates whose views they share.
       Fortunately, there are cases where we can separate these 
     two motives. Consider a retiring politician. He has little 
     reason to honor any ``bribes,'' for re-election is no longer 
     an issue. Even if earlier there were corrupting influences 
     from donations, the politician would now have freedom to vote 
     according to his own preferences. Therefore, if contributions 
     are bribes to make the politician vote differently from his 
     beliefs, there ought to be a change in the voting record when 
     the politician decides to retire.
       Yet, this proves not to be the case. Together with Steve 
     Bronars of the University of Texas, I have examined the 
     voting records of the 731 congressmen who held office for at 
     least two terms during the 1975 to 1990 period. We found that 
     retiring congressmen continued voting the same way as they 
     did previously, even after accounting for what they do after 
     their retirement or focusing on their voting after they 
     announce their retirement.
       Despite retiring politicians only receiving 15 percent of 
     their preceding term's political action committee (PAC) 
     contributions, their voting pattern remains virtually the 
     same: They only alter their voting pattern on one issue out 
     of every 450 votes.
       If anything, these statistically insignificant changes even 
     move in the wrong direction. Retiring politicians are 
     slightly more likely to favor their former donors. This makes 
     no sense if contributions had been buying votes.
       The voting records also reveal that politicians are 
     extremely consistent in how they vote over their entire 
     careers. Those who are the most conservative or liberal 
     during their first terms are still ranked that way when 
     they retire. Thus the young politician who does not yet 
     receive money from a PAC does not suddenly change when 
     that organization starts supporting him.
       The data thus indicate that politicians vote according to 
     their beliefs, and supporters are giving money to candidates 
     who share their beliefs on important issues.
       A reputation for sticking to certain values is important to 
     politicians. This is why political ads often attack policy 
     ``flip-flops'' by the opponent--if a politician merely tells 
     people what they want to hear, voters lack assurance that he 
     will vote for and push that policy when he no longer faces 
     re-election. Voters instead trust politicians who show a 
     genuine passion for the issues.
       If donations were really necessary to keep politicians in 
     line, why would individual donors ever give money to a 
     politician who is running for office for the last time? If 
     politicians simply took positions to get elected, why would 
     voters ever elect such a politician who would then be able to 
     vote anyway that he likes?
       Proponents of campaign finance reform have managed to claim 
     the mantle of dislodging the entrenched political 
     establishment. But, in fact, the reverse is true: Allowing 
     large contributions is instead the key to letting new faces 
     into politics. Existing federal and state donation limits 
     have entrenched incumbents, who can rely on voters' greater 
     familiarity with them as well as use their government 
     resources to help them campaign and generate news coverage.
       It is very difficult for challengers to raise numerous 
     small donations. Incumbents have an advantage here, as they 
     have had years to put together long mailing lists as well as 
     making a wide array of contacts. Allowing large donations 
     would make it easier for newcomers to raise a large sum from 
     a few sources. The long start required for fundraising mean 
     that if a candidate falters, it is virtually impossible for 
     other candidates to enter in at the last moment.
       For example, Sen. Eugene McCarthy, nicknamed ``Clean 
     Gene,'' would--under current restrictive rules--not have been 
     able to challenge Lyndon Johnson for the presidency in 1968. 
     He relied on six donors who bucked the party establishment 
     and almost entirely financed his campaign. McCarthy raised as 
     much money (after adjusting for inflation) as George W. Bush 
     has so far in the last election, but Bush has had to raise 
     the money from 170,000 donors.
       George McGovern's 1972 presidential primary campaign only 
     succeeded because of extremely large donations from one 
     person, Stuart Mott.
       Donation limits have reduced the number of candidates 
     running for office; cut in half the rate at which incumbents 
     are defeated; given wealthy candidates an advantage, raised 
     independent expenditures; increased corruption of the 
     political process; as well as led to more ``negative'' 
     campaigns. More of the same will follow if we continue the 
     path of stricter and stricter campaign ``reform.'' The Enron 
     case is no more relevant to advancing campaign finance than 
     the hopes that new rules will somehow make campaigns more 
     competitive.
                                  ____


               [From the Washington Post, Feb. 15, 2002]

                    Now, the Unintended Consequences

                          (By David S. Broder)

       It was a famous victory. The campaign finance bill now has 
     passed both the House and Senate and likely will become law 
     with President Bush's signature.
       The bill has one great virtue. It will end the ugly and 
     indefensible practice of federal elected officials extorting 
     six-figure contributions to their political parties from 
     corporations, unions and wealthy individuals. it is clear and 
     definitive about doing that, and it will be effective.
       Beyond that, the consequences of the bill the Senate 
     approved last year and the House passed early Thursday 
     morning are probably not what supporters have been led to 
     believe. The optimism of the backers is exceeded only by the 
     folly of the House Republican leadership, which must be 
     grateful today of fraudulent Republican amendments so nakedly 
     intended to kill the bill. Their tactics give hypocrisy a bad 
     name.
       Still, parts of the bill are probably unconstitutional, and 
     other parts largely unworkable or unenforceable. As with 
     previous campaign finance legislation, it is likely to have 
     big unintended consequences.
       For example, the Democrats who furnished the bulk of the 
     votes for passage may be dismayed to learn that in the view 
     of Michael Malbin, the widely experienced head of the 
     nonpartisan Campaign Finance Institute, the bill hands 
     President Bush an enormous advantage in his 2004 reelection 
     campaign.
       Here's why: In 200, when Bush rejected public financing of 
     his race for the Republican nomination, he assembled a record 
     treasury of ``hard money'' contributions (limited to $1,000 
     per person) from family friends, Texas supporters and allies 
     in the business world. As an incumbent president, he can 
     probably double or triple his take, while at the same time 
     avoiding the spending limits that go with public financing.
       No Democratic challenger is likely to be in a position to 
     reject the taxpayer subsidies, and in a serious contest, on 
     the accelerated calendar Democrats recently adopted, all the 
     Democrats may well hit their spending limit by mid-March. In 
     the past, the winner could turn to the Democratic National 
     Committee and ask it to finance waves of TV ads from its 
     ``soft money'' account at least until August, when the 
     convention formally made him the nominee and a Treasury check 
     for the autumn campaign arrived.
       If this bill becomes law, Malbin points out, the Democrats 
     will have no federal soft money account; their nominee may 
     well be off the air and invisible for five months, while Bush 
     dominates the political debate.
       Another unintended consequence may well be to shift the 
     flow of soft money from national parties to state and local 
     parties. Contrary to the impression left by many editorials, 
     this bill does not make all soft money contributions illegal. 
     The amendment sponsored by Michigan Democratic Sen. Carl 
     Levin allows state and local parties to receive individual 
     soft money contributions of up to $10,000 a year ($20,000 per 
     election cycle), as long as they do not spend the money on 
     ads for federal candidates.

[[Page S2342]]

       Theoretically, one wealthy individual could drop $1 million 
     or more into his favorite party, by writing separate checks 
     to 50 state or local party headquarters.
       You can call this a giant loophole or a wise provision to 
     support grass-roots activity, but it goes against the 
     centralizing forces in our politics--which have strengthened 
     not just recent presidents but congressional leaders of both 
     parties.
       When the national parties do less for their presidential 
     nominees and their congressional candidates, those men and 
     women become even more individual political entrepreneurs.
       It is perhaps not a coincidence that all four of the 
     sponsors--Sens. John McCain and Russ Feingold, Reps. Chris 
     Shays and Marty Meehan--are notable for their maverick 
     tendencies. It is likely this legislation will breed more of 
     their kind.
       Finally, the issue the opponents of this bill tried without 
     success to raise its effect on the relative power of interest 
     groups and political parties. The most dubious parts of the 
     measure are those regulating ``issue ads'' that non-party 
     groups run during election campaigns. These provisions 
     implicate basic First Amendment rights of expression, and if 
     the courts find them unconstitutional, then the net effect 
     may well be to empower interest groups while restricting the 
     parties' participation in campaigns.
       Interest groups are as American as apple pie. But their 
     agendas are, by definition, narrower than those of the broad 
     coalitions called Republicans and Democrats. It will not help 
     our politics to magnify the power of narrow interests at the 
     expense of the two-party system.
                                  ____


              [From the American Prospect, Mar. 25, 2002]

   With Victories Like These . . . the Glaring Inadequacies of Shays-
                                 Meehan

                          [By Ellen S. Miller]

       What a cruel twist of fate: campaign finance reform that 
     benefits Republicans and big money.
       The Shays-Meehan bill is back-to-the-future reform: 
     legislation that takes us back to just before 1980, when 
     there was no ``soft money'' but still a huge imbalance in the 
     influence of the big contributors over the rest of the 
     population. Under the terms of the bill that passed the 
     House, the national parties' committees can no longer raise 
     soft money--the unlimited and unregulated contributions that 
     totaled $498 million in 2000. A very good thing, that. But 
     the tradeoff to eliminate this most notorious campaign 
     finance ``loophole'' will actually enhance the power of 
     wealthy special interests, for it loosens a whole series of 
     strictures on hard-money donations--and hard money has 
     already eclipsed soft. Total hard-money contributions to 
     candidates, political action committees (PACs), and parties 
     in the 2000 election cycle came to $1.8 billion, nearly three 
     times the soft-money total.
       To ease shock to big-money politics, Shays-Meehan contains 
     three separate increases in the amounts that individual 
     donors can give in regulated hard money, plus a huge 
     exemption that enables campaigns to sidestep the limits 
     altogether. The first increase involves the aggregate 
     contribution limit for individuals. The legislation nearly 
     doubles it to $95,000 per two-year election cycle. The second 
     hike is in what individuals can give to national political 
     parties, which rises from the current $20,000 per cycle per 
     party committee to $57,500. Within these limits, the bill 
     also provides for another dramatic increase: the amount 
     individuals can give to House and Senate candidates doubles 
     to $2,000 per election.
       But say that a self-funding multimillionaire candidate is 
     running for office, as is frequently the case these days. 
     Should that happen, Shays-Meehan raises the cap on individual 
     donations to that candidate's opponents from $2,000 to 
     $12,000. Another limit--that imposed on the political parties 
     for their coordinated expenditures to supplement the 
     campaigns of party candidates within the states--is lifted 
     altogether.
       Politically, this provision could prove more unsettling for 
     the Democrats than for the Republicans. While only five of 
     the 19 federal legislative candidates who spent $1 million or 
     more of their personal money in 2000 won their races, four of 
     them were Senate Democrats--three of them newcomers (Jon 
     Corzine of New Jersey, Mark Dayton of Minnesota, and Maria 
     Cantwell of Washington) and one returning (Herb Kohl of 
     Wisconsin).
       So who would gain power from these fixes? To understand 
     just how off kilter this reform is, you have to understand 
     one primary factor: Today, less than one-tenth of 1 percent 
     of Americans make a contribution of $1,000 to candidates, but 
     these 340,000 individuals accounted for fully $1 billion of 
     the $2.9 billion in hard and soft money that politicians, 
     PAC, and parties banked in 2000. Most of this money comes in 
     large bundles from the ``economically interested''--
     executives and business associates who've been armed-twisted 
     into supporting a corporation's electoral favorites.
       Under the new legislation, those bundles will only grow 
     larger. Republican Senator John McCain of Arizona admitted to 
     being embarrassed recently by the disclosure that he took 
     431,000 from individuals associated with the now bankrupt 
     telecommunications firm Global Crossing as he argued their 
     case before the Federal Communications Commission. Just how 
     tainted would be feel if he got double that amount (allowable 
     under the new limit) from them the next time he runs for 
     president?
       After all these years of struggle, why did reformers settle 
     for so little?
       In fact, after more than a decade of seeing their more 
     ambitious ideas come to naught even as the amount of money in 
     politics grew exponentially, reformers and their editorial-
     board allies felt that they desperately needed a win. 
     According to Derek Cressman of USPIRG (the only campaign-
     finance-reform organization to oppose the bill), Kentucky's 
     Republican Senator ``Mitchell McConnell wore down the reform 
     movement by defeating stronger legislation year after year. 
     Legislators kept compromising and the watchdogs let them do 
     that.'' As a result, the reform package grew steadily weaker. 
     ``I can't think of any other legislation that's had a tough 
     fight that ended up actually rolling things back,'' Cressman 
     says. ``This bill could have passed easily 10 years ago.''
       Speaking not for attribution, some reformers admit that 
     forward movement--even if only one small step forward--became 
     their goal. A second factor, perhaps perversely, was the 
     Democrats' growing proficiency at raising big money 
     themselves--a skill that may have lulled them about the 
     political ramifications of Shays-Meehan. Buoyed by near-
     parity with the GOP in soft money fundraising, the Democrats 
     generally--and party chairman Terry McAuliffe particularly--
     came to believe that they could complete in the hard-money 
     game, too. That made the bill's tradeoff between hard money 
     and soft money acceptable.
       As the proposed reforms grew steadily more modest, their 
     appeal to the center and center-right grew. Moderate 
     Republicans in the Senate and the House took the lead and the 
     Democrats stood back to let them carry the fight. A seemingly 
     enlightened segment of the business community, some of whom 
     were executives tired of being dunned for six-figure checks, 
     jumped on the bandwagon out of their own self-interest. The 
     scope of reform dwindled until hardly anything remained at 
     all.
       There should be nothing surprising in the spectacle of 
     White House Press Secretary Ari Fleisher trying to steal 
     credit for the bill on behalf of his boss. And why shouldn't 
     Bush sign it? Shays-Meehan favors Republicans. The GOP 
     outraised the Democrats in the 2000 cycle $466 million $275 
     million; and in just released figures for the current 
     election cycle, the Republicans are leading the democrats in 
     hard money $131 million to $60 million. Moreover, Shays-
     Meehan certainly favors the incumbent president in his 2004 
     campaign. Bush is a hard-money dynamo: In 2000 he raised $103 
     million in hard-money donations for the primaries alone, 
     while sitting veep Al Gore raised a paltry $46 million in 
     hard money. Worse yet, signing Shays-Meehan helps to 
     inoculate Bush from the taint of Enron's political money. 
     Nonetheless, Bush taking credit for campaign finance reform, 
     notes Public Campaign analyst Micah Sifry, is ``like Harry 
     Truman claiming credit for sparking the nuclear-
     disarmament movement by dropping the bomb on Hiroshima.''
       But this dubious victory may hold the seeds of more 
     sweeping changes. One thing is certain: The kind of 
     incremental reform that the House has enacted is far from the 
     kind of dramatic change that can actually renew people's 
     faith in our political system. But passing Shays-Meehan at 
     least clarifies the challenge. For years, progressives have 
     endorsed public financing, specifically public financing that 
     covers both primary and general elections. The AFL-CIO has 
     long supported it, and recent converts include the NAACP, the 
     ACLU, the Sierra Club, and the National Organization for 
     Women. The small state experiments in Maine and Arizona have 
     shown what a huge difference it can make. Activists on the 
     national front are poised to move forward. The next victories 
     are likely to come at the state level in judicial elections. 
     Spurred by the American Bar Association's endorsement of full 
     public financing for judicial races, activists in North 
     Carolina, Wisconsin, and Illinois are moving to change their 
     state laws. Public financing of campaigns for the 
     legislature, though further down the road, is most likely in 
     Minnesota, New Mexico, and Connecticut.
       Now that soft-money reform is off the table, it's time to 
     focus on the real deal.
                                  ____


          ACLU Campaign Finance Position Protects Free Speech

   [Statement of Nadine Strossen, ACLU President, Ira Glasser, ACLU 
  Executive Director, and Laura W. Murphy, ACLU Legislative Director]

       Washington.--Nine former leaders of the American Civil 
     Liberties Union today released a statement saying that they 
     have changed their positions on campaign finance and now 
     disagree with legal scholars, Supreme Court Justices and the 
     ACLU's long-standing policy to seek the highest 
     constitutional protection for political speech.
       In their statement, these leaders argue that the Supreme 
     Court misread the First Amendment in 1976 when it issued its 
     ruling in Buckley v. Valeo, which struck down legislative 
     limits on campaign expenditures in a holding that reflected 
     many legal precedents and has been repeatedly reaffirmed. Our 
     former ACLU colleagues say that our opposition to current 
     legislation allows members of Congress to hide behind an 
     unjustified constitutional smokescreen.
       We are untroubled by the questions they raise and believe 
     that it is they who allow members of Congress and President 
     Clinton to hid behind so-called reforms that are both

[[Page S2343]]

     unconstitutional and ineffective. As long as measures like 
     McCain-Feingold or Shays-Meehan are allowed to masquerade as 
     reform, neither Congress nor President Clinton will get 
     serious about adopting true reform, which we believe lies in 
     the direction of fair and adequate public financing.
       Just last year, we offered Burt Neuborne, a former ACLU 
     Legal Director and one of the principal opponents of our 
     campaign finance policies, the opportunity to argue his 
     position before the ACLU's 83-member National Board. After 
     hours of debate and discussion, Neuborne completely failed to 
     shift the ACLU Board to his view. Many Board members in fact 
     argued that Neuborne's position was in direct conflict with 
     the First Amendment rights that form the foundation of our 
     democracy. Ultimately, the one Board member who had offered a 
     motion to radically alter our long-standing policy withdrew 
     it rather than allowing it to come to a vote.
       Yet our former ACLU colleagues persist, offering sweeping 
     proposals that would constitute a wholesale breach of First 
     Amendment rights and that ignore the real-world impact of 
     limits on speech. They speak approvingly of efforts to impose 
     ``reasonable limits on campaign spending'' without saying 
     specifically what such regulations would do. But when we look 
     at those consequences it becomes clear that current campaign 
     finance measures would do immeasurable damage to political 
     speech. The devil, as the cliche goes, is in the details.
       A key provision of both McCain-Feingold and Shays-Meehan 
     would, for example, establish limits that effectively bar any 
     individual or organization from explicitly criticizing a 
     public official--perhaps the single most important type of 
     free speech in our democracy--when the official is up for re-
     election within 60 days. If that kind of law had governed the 
     recent New York City mayoral election, it would have 
     effectively barred the ACLU (and other non-partisan groups) 
     from criticizing incumbent Mayor Giuliani by name on the 
     subject of police brutality in the wake of the horrific Abner 
     Louima incident precisely during the pre-election period when 
     such criticism is most audible. That prohibition would have 
     gagged us even though the ACLU has never endorsed or opposed 
     any candidate for elective office and is barred by our non-
     partisan structure from doing so. Similarly, anti-choice 
     groups like the National Right to Life Committee would be 
     effectively barred from criticizing candidates who support 
     reproductive freedom. Yet such criticism of public officials 
     is exactly what the First Amendment was intended to protect.
       In contrast, there are many reform measures the ACLU 
     supports that would protect and increase political speech. 
     These include instituting public financing, improving certain 
     disclosure requirements, establishing vouchers for discount 
     broadcast and print electoral ads, reinstating a tax credit 
     for political contributions, extending the franking privilege 
     to qualified candidates and requiring accountability of and 
     providing resources to the Federal Elections Commission. None 
     of these proposed reforms would run afoul of the First 
     Amendment.
       Still, our former ACLU colleagues press proposals that 
     would inevitably limit political speech. We continue to shake 
     our heads, wondering how such measures can be regarded as 
     ``reforms'' by anyone who is genuinely committed to the First 
     Amendment.

  Mr. DODD. I ask unanimous consent that the resolution be agreed to, 
the motion to reconsider be laid upon the table, and any statements 
regarding this matter be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (H. Con. Res. 361) was agreed to.

                          ____________________