[Congressional Record Volume 148, Number 131 (Tuesday, October 8, 2002)]
[Senate]
[Pages S10120-S10130]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                JOHNNY MICHAEL SPANN PATRIOT TRUSTS ACT

  Mr. LEAHY. Mr. President, I am pleased to join Senators Sessions and 
Nickles in introducing the Johnny Michael Spann Patriot Trusts Act. 
This legislation will facilitate private charitable giving for the 
benefit of spouses of servicemen and other Federal employees who are 
killed in the line of duty while engaged in the fight against 
international terrorism.
  Many of us have fought for some time to achieve fair and expeditious 
compensation for victims of terrorism. In 1996, we passed the Justice 
for Victims of Terrorism Act, which authorized grants to states to 
provide assistance and compensation to victims of terrorism. Two years 
ago, we passed legislation directing the Justice Department to 
establish a Federal compensation program for victims of international 
terrorism. And last year, in the wake of the September 11 attacks, we 
established a special fund to provide compensation to the many families 
who lost loved ones on that terrible day.
  I am proud of these legislative accomplishments. We should make every 
effort to help the innocent civilians whose lives are shattered by 
terrorist acts. At the same time, we must not forget those who are 
killed while serving on the front line in the war on terrorism. Under 
current law, beneficiaries of members of the U.S. Armed Forces get paid 
$6,000 only in death benefits from the Government, over any insurance 
that they may have purchased. Moreover, these individuals may not be 
eligible for payments from any existing victims' compensation program 
or charitable organization.
  The Johnny Michael Spann Patriot Trusts Act will provide much needed 
support for the families of those who have made the ultimate sacrifice 
for their country. The bill encourages the creation of charitable 
trusts for the benefit of surviving spouses and dependents of military, 
CIA, FBI, and other Federal Government employees who are killed in 
operations or activities to curb international terrorism. In addition, 
the bill authorizes Federal officials to contact qualifying trusts on 
behalf of surviving spouses and dependents, pursuant to regulations to 
be prescribed by the Secretary of Defense. This will help to inform 
survivors about benefits and to ensure that those who are eligible have 
the opportunity to access the money. It will also spare grieving widows 
the embarrassment of having to go to a charity and ask for money. 
Finally, for the avoidance of doubt, the bill makes clear that federal 
officeholders and candidates may help raise funds for qualifying trusts 
without running afoul of Federal campaign finance laws.
  While we have greatly improved our victims assistance and 
compensation programs, we still have more to do. I urge my colleagues 
on both sides of the aisle to join in advancing this legislation 
through Congress before the end of the year.
  Mr. WARNER. Mr. President, I rise today to introduce a bill on behalf 
of myself and Senator Allen to authorize the President to apply the 
indemnification authorities now available to the Department of Defense 
and other agencies for national defense purposes to those agencies 
engaged in defending our Nation against terrorism. This authority is 
needed to enable America to access the best private sector solutions to 
defend our homeland, particularly

[[Page S10121]]

from those innovative small businesses who do not have the capital to 
shoulder significant liability risk.
  There is an urgent need for this authority. For example, contractors 
will not sell chemical and biological detectors already available to 
DOD to other Federal agencies and state and local authorities because 
of the liability risk. Some of our Nation's top defense contractors 
will not sell these products because they are afraid to risk the future 
of their company on a lawsuit. In the meantime the American people are 
vulnerable. We should give the President the option that he currently 
does not have, of deciding whether the Federal Government should 
facilitate these purchases. This legislation would do precisely that.
  This liability risk has been a longstanding deterrent to the private 
sector freely contracting with the Federal Government to meet national 
security needs. Congress has acted in the past to authorize the 
indemnification of contracts, particularly in times of war. On December 
18, 1941, less than two weeks after the attack on Pearl Harbor, the 
Congress enacted Title II of the First War Powers Act of 1941. By 
providing authority to the President to indemnify contracts, this 
legislation and its successor have enabled the private sector to enter 
into contracts that involve a substantial liability risk. 
Administrations since Roosevelt's day have used these authorities to 
indemnify or share the risk with defense contractors. This was required 
to jump start the ``arsenal of democracy'' in 1941. It was true in 
1958, when the nuclear and missile programs were facilitated by the 
indemnification of risks associated with the use of nuclear power and 
highly volatile missile fuels. it is true today for technology 
solutions required by agencies engaged in the war against terrorism.
  This war is going to be different in many ways. For one, much of the 
Nation's homeland defense activities are going to be conducted by State 
and local governments. It is thus imperative to ensure that State and 
local governments can access vital anti-terrorism technologies.
  To facilitate this, this bill would require the establishment of a 
Federal contracting vehicle to which state and local governments could 
turn to rapidly buy anti-terrorism solutions from the Federal 
Government. The President would also be authorized, if he deemed it 
necessary, to indemnify these purchases.
  I want to emphasize two points. One, that this authority is 
discretionary. The President, on a case by case basis will decide 
whether to indemnify contracts. I expect the President will use this 
authority much like it has been used at the Defense Department, 
carefully and thoughtfully, and only for those products that the 
government cannot obtain without the use of the authority.
  The second point I want to emphasize is that indemnification not in 
conflict with any efforts to limit or cap liability. I see these two 
efforts as complimentary. This legislation should not be seen as an 
alternative for tort reform, but merely as one tool that can be used by 
the President to ensure that vitally needed technologies necessary for 
homeland defense are placed into the hands of those who need them.
  During World War II and all subsequent wars, conflicts and 
emergencies in which the U.S. has been involved, we have needed 
domestic contractors to be innovative, resourceful and ready to support 
efforts at home and abroad. In 1941, the Congress wanted contractors to 
know that if they were willing to engage in unusually hazardous 
activities for the national defense, then the U.S. Government would 
address the potential liability exposure associated with the conduct of 
such activities. Our position should be no different now.
                                 ______
                                 
      By Mr. BIDEN (for himself and Mr. Specter):
  S. 3079. A bill to authorize the issuance of immigrant visas to, and 
the admission to the United States for permanent residence of, certain 
scientists, engineers, and technicians who have worked in Iraqi weapons 
of mass destruction programs; to the Committee on the Judiciary.
  Mr. BIDEN. Mr. President, last night the President of the United 
States said something very important about United Nations inspections 
in Iraq. He said:

       Clearly, to actually work, any new inspections. . .will 
     have to be very different. . . . To ensure that we learn the 
     truth, the regime must allow witnesses to its illegal 
     activities to be interviewed outside the country, and these 
     witnesses must be free to bring their families with them so 
     they are all beyond the reach of Saddam Hussein's terror and 
     murder. And inspectors must have access to any site, at any 
     time, without pre-clearance, without delay, without 
     exceptions.

  The President is right on the money about the inspections. This is 
how to get the information the world needs on Saddam Hussein's weapons 
of mass destruction programs. But how is the U.N. to do that?
  Where will those weapons scientists and their families go, once 
they've told the truth about Saddam's weapons programs? They can't go 
home again. And at least in the short run, there will be no safe haven 
in the region for the people who reveal Saddam's most terrible secrets.
  So where will those scientists go? Maybe some can go to Europe, 
although both al Qaeda cells and Saddam's agents have operated there. 
Maybe some can go to Canada, or to South America.
  But if the United States wants the world to show resolve in dealing 
with Saddam Hussein, then we should show the way by taking the lead in 
admitting those Iraqis who have the courage to betray Saddam's nuclear, 
chemical and biological weapons programs.
  We have a large country in which to absorb those people, and, for all 
our problems, we have the best law enforcement and security apparatus 
to guard them.
  What we do not have is an immigration system that readily admits 
large numbers of persons who have a recent involvement with weapons of 
mass destruction, have recently aided a country in the so-called ``axis 
of evil,'' and are bringing their families.
  I am introducing today, therefore, legislation to admit to our 
country those Iraqi scientists, engineers and technicians, and their 
families, who give reliable information on Saddam's programs to us, to 
the United Nations, or to the International Atomic Energy Agency.
  My esteemed colleague on the Judiciary Committee, Senator Specter of 
Pennsylvania, joins me in introducing this legislation, and I am very 
pleased to have his support. This bill is not political. Rather, it is 
a bipartisan effort to help the President succeed in forcing Iraq to 
destroy all its weapons of mass destruction capabilities.
  I urge my colleagues to support this legislation. Why? Because those 
Iraqis will deserve our protection. And equally important, because they 
will not come forward unless we offer that protection.
  Charles Duelfer, former Deputy Executive Director of UNSCOM, the 
original U.N. inspection force in Iraq, recently wrote an article 
entitled, ``The Inevitable Failure of Inspections in Iraq.'' He made 
the following recommendations: First, inspectors should be mandated to 
interview the few hundred key scientists, engineers, and technicians 
who were involved in the previous weapons of mass destruction efforts 
and have them account for their activities since December 1998. The 
U.N. knows who these individuals are. If, as is suspected, Iraq has 
been continuing to develop weapons of mass destruction, some or most of 
these people will have been involved.
  Second, the conditions for such interviews must be changed. Iraqi 
government observers must not be present. the previous UNSCOM agreement 
to the presence of such ``minders'' was a mistake. The fact that junior 
workers would shake with fear at the prospect of answering a question 
in a way inconsistent with government direction made this obvious.
  Third, and most important, the U.N. should offer sanctuary or safe 
haven to those who find it a condition for speaking the truth. The 
people are key to these programs. Access to the people under conditions 
where they could speak freely was not something UNSCOM ever achieved 
except in the rare instances of defection.
  Mr. Duelfer concludes: I often summarized this problem to Washington 
by suggesting that, if UNSCOM had 100 green cards to distribute during 
inspections, it could have quickly accounted for the weapons programs.
  Other experts, including Dr. Khidir Hamza, a former Iraqi nuclear 
weapons

[[Page S10122]]

scientist who testified before the Senate Foreign Relations Committee 
on July 27, have pointed out that by enticing scientists and engineers 
away from Iraq, we will also deprive Saddam Hussein of the very people 
he needs to produce those weapons of mass destruction and long-range 
missiles.
  If we do, in the end, have to go to war against Saddam, then the 
fewer weapons scientists he has, the better.
  Current law includes several means of either paroling non-immigrants 
into the United States or admitting people for permanent residence, 
notwithstanding their normal inadmissibility under the law.
  These are very limited provisions, however, and they will not suffice 
to accommodate hundreds of Iraqi scientists and their families.
  The legislation that I am introducing, the ``Iraqi Scientists 
Liberation Act of 2002,'' will permit the Secretary of State and the 
Attorney General, acting jointly and on a case-by-case basis, to admit 
a foreigner and his family for permanent residence if such person: is a 
scientist, engineer, or technician who has worked in an Iraqi program 
to produce weapons of mass destruction or the means to deliver them, 
during the years since the inspectors left and Saddam began rebuilding 
those programs; is willing to supply or has supplied reliable 
information on that program to UNMOVIC, to the IAEA, or to an agency of 
the United State Government; and will be or has been placed in danger 
as a result of providing such information.
  The Attorney General will be empowered to set the rules and 
regulations governing implementation of this law, in consultation with 
the Secretary of State and other relevant officials.
  Finally, this legislation will be limited to the admission of 500 
scientists, plus their families, over 3 years. If it works and we need 
to enlarge the program, we can do so.
  The important thing for now is to give our country the initial 
authority, and to give United Nations inspectors the ability to call on 
us when one of Saddam's nuclear, chemical or biological weapons experts 
is willing to help the world to bring those programs down.
  It is hard to predict what we will achieve by opening our doors. Iraq 
will surely object to giving UNMOVIC the inspection and interview 
powers that the President proposes. But if UNMOVIC does get into Iraq 
under a stronger Security Council resolution in the coming weeks, then 
having this law on the books could help to undermine Saddam Hussein's 
weapons of mass destruction programs.
  Even if inspectors never get in, a public offer of asylum for Iraq's 
scientists could lead some to defect, as Dr. Hamza did.
  Last night the President called for inspections that protect the 
lives of those who are interviewed and their families.
  We owe it to the President to do all we can to make that possible.
  We owe it to the United Nations inspectors to give them every chance 
to succeed.
  We owe to it Iraq's people and its neighbors to do everything we can 
to dismantle its weapons of mass destruction programs.
  And we owe it to our own people to do all we can to achieve that end 
peacefully, and with international support.
  This bill is a small step toward those ends, but it is a vital one. I 
urge my colleagues to give it their immediate attention and their 
considered support.
  I ask unanimous consent that the full text of my bill appear 
following my remarks in the Congressional Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 3079

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be known as the ``Iraqi Scientists Liberation 
     Act of 2002''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) The President stated in substance the following to the 
     United Nations General Assembly:
       (A) In 1991, the Iraqi regime agreed to destroy and stop 
     developing all weapons of mass destruction and long-range 
     missiles, and to prove to the world it has done so by 
     complying with rigorous inspections. Iraq has broken every 
     aspect of this fundamental pledge.
       (B) Today, Iraq continues to withhold important information 
     about its nuclear program: weapons design, procurement logs, 
     experiment data, an accounting of nuclear materials, and 
     documentation of foreign assistance. Iraq's state-controlled 
     media has reported numerous meetings between Saddam Hussein 
     and his nuclear scientists, leaving little doubt about his 
     continued appetite for these weapons.
       (C) Iraq also possesses a force of Scud-type missiles with 
     ranges greater than the 150 kilometers permitted by the 
     United Nations.
       (2) United Nations Special Commission (UNSCOM) experts 
     concluded that Iraq's declarations on biological agents 
     vastly understated the extent of its program, and that Iraq 
     actually produced two to four times the amount of most 
     agents, including anthrax and botulinum toxin, than it had 
     declared.
       (3) UNSCOM reported to the United Nations Security Council 
     in April 1995 that Iraq had concealed its biological weapons 
     program and had failed to account for 3 tons of growth 
     material for biological agents.
       (4) Gaps identified by UNSCOM in Iraqi accounting and 
     current production capabilities strongly suggest that Iraq 
     maintains stockpiles of chemical agents, probably VX, sarin, 
     cyclosarin, and mustard.
       (5) Iraq has not accounted for hundreds of tons of chemical 
     precursors and tens of thousands of unfilled munitions, 
     including Scud variant missile warheads.
       (6) Iraq has not accounted for at least 15,000 artillery 
     rockets that in the past were its preferred vehicle for 
     delivering nerve agents, nor has it accounted for about 550 
     artillery shells filled with mustard agent.
       (7) For nearly 4 years, Iraq has been able to pursue its 
     weapons of mass destruction programs free of inspections.
       (8) Inspections will fail if United Nations and 
     International Atomic Energy Agency inspectors do not have 
     speedy and complete access to any and all sites of interest 
     to them.
       (9) Inspections will be much less effective if those 
     scientists, engineers, and technicians whom the inspectors 
     interview are monitored and subjected to pressure by agents 
     of Saddam Hussein's regime.
       (10) As the President made clear in his speech to the 
     Nation on October 7, 2002, the most effective international 
     inspection of Iraq would include interviews with persons who 
     are unmonitored by Saddam Hussein's regime and who are 
     protected from it in return for providing reliable 
     information.
       (11) The emigration from Iraq of key scientists, engineers, 
     and technicians could substantially disable Saddam Hussein's 
     programs to produce weapons of mass destruction and the means 
     to deliver them.

     SEC. 3. SENSE OF CONGRESS.

       It is the sense of Congress that--
       (1) Iraq must give United Nations and International Atomic 
     Energy Agency inspectors speedy and complete access to any 
     and all sites of interest to them;
       (2) United Nations and International Atomic Energy Agency 
     inspections in Iraq should include interviews with persons 
     who are unmonitored by Saddam Hussein's regime and who are 
     protected from it in return for providing reliable 
     information; and
       (3) key scientists, engineers, and technicians in Saddam 
     Hussein's programs to produce weapons of mass destruction and 
     the means to deliver them should be encouraged to leave those 
     programs and provide information to governments and 
     international institutions that are committed to dismantling 
     those programs.

     SEC. 4. ADMISSION OF CRITICAL ALIENS.

       (a) Authority.--Notwithstanding the provisions of the 
     Immigration and Nationality Act (8 U.S.C. 1101 et seq.), 
     whenever the Secretary of State and the Attorney General, 
     acting jointly, determine that the admission into the United 
     States of an alien described in subsection (b) is in the 
     public interest, the alien, and any member of the alien's 
     immediate family accompanying or following to join, shall be 
     eligible to receive an immigrant visa and to be admitted to 
     the United States for permanent residence.
       (b) Eligibility.--An alien described in this subsection is 
     an alien who--
       (1) is a scientist, engineer, or technician who has worked 
     at any time since December 16, 1998, in an Iraqi program to 
     produce weapons of mass destruction or the means to deliver 
     them;
       (2) is in possession of critical reliable information 
     concerning any such Iraqi program;
       (3) is willing to provide, or has provided, such 
     information to inspectors of the United Nations, inspectors 
     of the International Atomic Energy Agency, or any department, 
     agency, or other entity of the United States Government; and
       (4) will be or has been placed in danger as a result of 
     providing such information.
       (c) Limitation.--Not more than 500 principal aliens may be 
     admitted to the United States under subsection (a). The 
     limitation in this subsection does not apply to any immediate 
     family member accompanying or following to join a principal 
     alien.
       (d) Expiration of Authority.--The authority granted in this 
     section shall expire 36 months after the date of enactment of 
     this Act.

     SEC. 5. RULES AND REGULATIONS.

       The Attorney General, in consultation with the Secretary of 
     State, is authorized to prescribe such rules and regulations 
     as may be necessary to carry out the provisions of this Act.

[[Page S10123]]

     SEC. 6. WEAPON OF MASS DESTRUCTION DEFINED.

       (a) In General.--In this Act, the term ``weapon of mass 
     destruction'' has the meaning given the term in section 
     1403(1) of the Defense Against Weapons of Mass Destruction 
     Act of 1996 (title XIV of Public Law 104-201; 110 Stat. 2717; 
     50 U.S.C. 2302(1)), as amended by subsection (b).
       (b) Technical Correction.--Section 1403(1)(B) of the 
     Defense Against Weapons of Mass Destruction Act of 1996 
     (title XIV of Public Law 104-201; 110 Stat. 2717; 50 U.S.C. 
     2302(1)(B)) is amended by striking ``a disease organism'' and 
     inserting ``a biological agent, toxin, or vector (as those 
     terms are defined in section 178 of title 18, United States 
     Code)''.
                                 ______
                                 
      By Mr. LUGAR (for himself and Mr. Bingaman):
  S. 3080. A bill to establish a national teaching fellowship program 
to encourage individuals to enter and remain in the field of teaching 
at public elementary schools and secondary schools; to the Committee on 
Health, Education, Labor, and Pensions.
  Mr. LUGAR. Mr. President, I rise today to introduce the Teaching 
Fellows Act of 2002.
  This year Congress passed, and the President signed into law the No 
Child Left Behind Act. This new law represents the most sweeping 
changes to the Elementary and Secondary Education Act, ESEA, since it 
was enacted in 1965. The Act underscores the importance of a good 
education; it stresses the use of research-based teaching programs, 
increases funds available to public schools, broadens local 
flexibility, and enhances accountability.
  In focusing on these principles, we aim to change the way our schools 
do business. This is important. While some schools are doing well, many 
are not. It is important that our low performing schools are given the 
assistance they need to improve, along with the knowledge that they 
will be held accountable for turning themselves around and narrowing 
the existing achievement gaps.
  I have long championed the greater use of research-based programs in 
troubled schools, specifically Comprehensive School Reform. Good reform 
programs are a bargain for our schools and our children when we compare 
their costs to that of retention, special education and illiteracy.
  However, I also realize that the best research-based programs cannot 
be successfully implemented without a sufficient number of teachers in 
the classroom. Statistics vary, but it is estimated that 1 million of 
the Nation's 3 million teachers will retire in the next 5 years. 
Schools will need to hire over 2 million new teachers in the next 
decade.
  To help address this problem, my colleague Senator Bingaman and I are 
introducing today the Teaching Fellows Act, legislation that aims to 
encourage the best and brightest to enter teaching.
  The problem of teacher shortages is complex, and the problems States 
are experiencing in recruitment and retention vary. The bill we 
introduce today encourages states to structure their scholarship 
program so that it addresses the individual needs of the State, and 
utilizes the best resources they have to offer.
  Similar to the National Health Service Corps, selected students would 
receive at least $6,500 per year toward college expenses, and in 
return, would incur an obligation to serve in an under-served area. In 
this case, we require new teachers to teach five years in a low 
performing public school.
  The Teaching Fellows Act would set up a competitive process whereby 
states could apply for matching, 75-25 percent, Federal grants to 
establish or expand scholarship programs for prospective teachers. The 
proposal is based on one of the most successful teaching scholarship 
programs in the Nation--that of State of North Carolina. There are two 
main prongs to this act. The first is the teaching fellowship program, 
this program would distribute grants to states for teaching 
scholarships that students could apply for after their senior year of 
high school or their second year of college. The bill also authorizes a 
``partnership program,'' aimed at community college students, 
particularly those who are currently trained or training as teaching 
assistants. With encouragement, the hope is that these individuals 
might go on to obtain four-year degrees to become licensed teachers. 
Grants would be available to states for partnership programs between 
community colleges and four-year colleges to provide for the training.
  Other approaches such as loan forgiveness programs and offering 
federal stipends are important tools in our quest to recruit teachers. 
However, the strength of the Teacher Fellowship Act is the focus that 
we place on the enrichment of these students. Qualifying States will 
have developed programs that have designed a strong extra-curricular 
program that serves as a support system for new teachers.
  It is estimated that up to 22 percent of new teaches leave within 3 
years--this figure is as high as 55 percent in urban or rural areas. 
Not only must we recruit more teachers, but we must encourage a more 
comprehensive and supportive system of training.
  Our bill is not a panacea to the problems of teacher recruitment and 
retention. However, I believe it is a step in the right direction. I 
hope that we will give more states and communities the incentive to 
work with their institutions of higher education to more 
comprehensively address the education of one our Nation's most 
important resources--that of teachers.
  The successful education of our nation's children requires that we 
work together at the Federal, State, and local levels to ensure that no 
child is left behind.
  Mr. BINGAMAN. Mr. President, I rise today to join my esteemed 
colleague, Senator Lugar, in the introduction of the Teaching Fellows 
Act of 2002.
  Earlier this year, the No Child Left Behind Act was signed into law. 
I was proud to be a member of the Conference Committee that ultimately 
wrote this important piece of legislation. This legislation includes 
important reform efforts and increased resources for schools that will 
go a long way toward addressing many of the needs in our education 
system. I will continue to fight for increased appropriations for the 
programs contained in this bipartisan legislation.
  As we begin to consider reauthorization of the Higher Education Act, 
we must continue to seek avenues for supporting our Nation's schools. 
Providing additional support for the training of new, high quality 
teachers is an important way to do that. Ultimately, improving the 
quality of education in our nation will require a comprehensive 
approach that includes raising standards and increasing school 
accountability. However, central to any effort to improve education are 
teachers. Being the son of two former teachers, I am well acquainted 
with the challenges and the rewards that being a good teacher brings. 
Being a parent and a community member, I also know how influential 
teachers can be in the lives of our children. Teachers not only pass 
along knowledge and act as role models, but research shows that teacher 
quality is critical to student achievement.
  Over the years, I have had the opportunity to meet with many of our 
dedicated and hard-working teachers in New Mexico. These personal 
experiences have strengthened my belief that we need to do all that we 
can to encourage the best and the brightest to enter and to remain in 
this most important profession.
  It is estimated that nearly a third of our Nation's teachers will 
retire over the next five years. In addition, large numbers of new 
teachers leave their jobs within a few years, particularly in rural and 
urban areas. These patterns could seriously jeopardize the quality of 
our children's education unless we take some steps to insure that there 
are enough trained people available to fill these positions. We must 
also do what we can to support the preparation and training of these 
individuals.
  The Teaching Fellows Act would create two programs designed to 
encourage people to enter and to remain in the profession of teaching. 
First, the program would distribute grants to states for teaching 
scholarships. In return for at least $6,500 per year toward college 
expenses, students would agree to teach in a low-performing school for 
five years. This program would thus not only help teachers to prepare 
for their profession but it would also insure that students in our 
poorest and most challenged schools have access to well-trained 
teachers.
  Second, the bill would provide grants for individuals currently 
working in

[[Page S10124]]

our schools as instructional assistants or in other capacities to 
obtain four-year degrees to become licensed teachers. Grants would be 
available to States for partnership programs between community colleges 
and four-year colleges to provide for this training. These programs 
require that states come up with 25 percent of the funding and students 
will be required to stay in the state to teach for five years.
  In conclusion, I would like to say that I am very excited about co-
sponsoring a bill that seeks to recruit new teachers and to enrich 
their training experiences. Although this bill is only part of a larger 
effort to provide all American students with a quality education, it is 
an important component. Having well-qualified teachers available to 
teach, especially in the most impoverished districts, is something that 
we owe to our children and ourselves. We, as parents and as 
legislators, must do what we can to see that America's teachers are 
recognized and supported as a crucial component in our children's 
education.
                                 ______
                                 
           By Mr. McCAIN (for himself, Mr. Feingold, Ms. Snowe, 
             Mr. Jeffords, Mr. Schumer, Ms. Cantwell, Ms. Collins, 
             Mr. Lieberman, Mr. Levin, Mr. Edwards, and Mr. 
             Thompson):
  S.J. Res. 48. A joint resolution disapproving the rule submitted by 
the Federal Election Commission under chapter 8 of title 5, United 
States Code, relating to prohibited and excessive contributions; to the 
Committee on Rules and Administration.
  Mr. McCAIN. Mr. President, today I am introducing a resolution to 
disapprove the Federal Election Commission's final regulations to 
implement the title I soft money provisions of the Bipartisan Campaign 
Reform Act, under the procedures established by the Congressional 
Review Act. The Commission's regulations, titled ``Prohibited and 
Excessive Contributions: Non-Federal Funds or Soft Money; Final Rule,'' 
were published in the Federal Register on July 29, 2002, 67 FR 49064.
  I wish I did not have to introduce this resolution. When President 
Bush signed the Bipartisan Campaign Reform Act of 2002 into law on 
March 27, 2002, the soft money campaign finance system should have met 
its demise. This system of unlimited soft money contributions to 
national political parties, unlimited soft money fundraising by 
national parties and Federal candidates and officeholders, and 
unlimited laundering of soft money into Federal elections by State 
parties had bred public cynicism about the workings of our institutions 
of government. At a minimum, the actions of Congress and the executive 
branch were severely tainted by the specter of six-figure soft money 
donations by special interests with a stake in legislation and policies 
pending before the Federal Government.
  Banning soft money wasn't an easy legislative or political endeavor. 
Powerful forces lined up to preserve a status quo that served them 
well. But after a 7-year fight on Capitol Hill over campaign finance 
reform, Congress concluded that it could no longer abide the corruption 
and appearances of corruption caused by soft money. It sought 
fundamental change and a restoration of public confidence in our 
democracy by at last enacting the Bipartisan Campaign Reform Act.
  Unfortunately, four unelected members of the Federal Election 
Commission thought they knew better. In writing rules to implement the 
party and candidate soft money provisions of the new campaign finance 
law, these Commissioners proceeded to resurrect aspects of the soft 
money system that Congress had just banished. This exercise entailed 
gyrations of logic and rationalizations that flew squarely in the face 
of statutory language, legislative intent, and even interpretations of 
the law urged by the Commission's own general counsel and professional 
staff. At times during the soft money rulemaking process, this bloc of 
four Commissioners appeared willfully blind to the language and purpose 
of the statute, as well as the Commission's own interpretive practices 
and precedents. Their actions were so brazen that one of the two 
Commissioners who voted to implement the law faithfully to Congress's 
intent told them, ``You have so tortured this law, it's beyond silly.''
  The result was the adoption of agency regulations that undermine the 
three fundamental components of the Bipartisan Campaign Reform Act: the 
prohibition on national parties' soliciting, directing, receiving, or 
spending soft money; the prohibition on Federal candidates' and 
officeholders' soliciting, directing, receiving or spending soft money; 
and the prohibition on State parties' spending unregulated soft money 
donations on activities affecting Federal elections. The loopholes 
created out of whole cloth by the Federal Election Commission operate 
separately and in combination to permit the continuation of elements of 
the soft money system.
  While I will not today discuss each and every soft money regulation 
that contradicts the statute and legislative intent, I will list some 
examples of how four Commissioners substituted their own personal views 
for the will of Congress--and left in their wake a campaign finance 
system too similar to the one we in this body set out to eliminate.
  The Bipartisan Campaign Reform Act states that national parties and 
Federal candidates or officeholders may not ``solicit'' or ``direct'' 
soft money. These prohibitions on soliciting and directing soft money 
are critical to the integrity of our political system. The specter of 
national parties soliciting six-figure donations from special interests 
with a stake in legislation or policies pending before the executive or 
legislative branches has tainted the decisions ultimately made on these 
matters in Washington. Likewise, the soft money fundraising activities 
of Federal officeholders have led the public to suspect that those who 
serve in Congress or the White House are paying special heed to the 
will of the wealthy few.
  The new campaign finance law's prohibitions on soliciting and 
directing soft money are aimed precisely at this problem. As Senator 
Carl Levin, D-MI, said on the Senate floor on March 20, 2002, during 
debate on the Bipartisan Campaign Reform Act:

       . . . [W]e have had enough of the solicitations by our 
     elected officials and the officers of our national parties, 
     soliciting huge sums of money by offering insider access to 
     government decisionmakers . . . Under this soft money ban, 
     public officials and candidates will be out of the soft money 
     fundraising business, and that's a very important step we 
     will be taking with this legislation. The official with 
     power, and the candidate seeking to be in a position of 
     power, won't be able to solicit huge sums of money and sell 
     access to themselves for their campaign or for outside groups 
     . . .'' (emphasis added).

  The Federal Election Commission decided nonetheless to allow national 
parties and Federal officeholders to remain in the ``soft money 
fundraising business''--by adopting definitions of the terms ``to 
solicit'' and ``to direct'' that invite widespread circumvention of the 
law.
  To achieve this result, the Commissioners had to overrule the 
agency's own general counsel and professional staff. The draft final 
rules recommended to the Commissioners by the general counsel and 
professional staff appropriately defined ``to solicit'' as ``to request 
or suggest or recommend that another person make a contribution, 
donation, or transfer of funds''--thus, a national party could not 
request, suggest or recommend that an individual or entity donate soft 
money. This definition was consistent with the Commission's 
longstanding practice and understanding concerning what constitutes a 
solicitation. As the Commission's associate general counsel explained 
to the Commissioners during the soft money rulemaking proceedings:

       . . . the concept of solicitation is not something that is 
     new, in terms of the [Bipartisan Campaign Reform Act of 
     2002]. It is something that has been in the Federal Election 
     Campaign Act for a very long time. It's been particularly 
     significant in terms of corporations and labor organizations, 
     in terms of the solicitations that they may do, and some of 
     the limitations on the frequency of their solicitations. With 
     that in mind, we do have a long history of advisory opinions, 
     and some very specific guidance in our campaign guides as to 
     what does and what does not constitute `to solicit.'
       We based the definition that we came up with, with those 
     materials in mind, with the thought that just the common-
     sense usage of the word, `solicit' would not mean something 
     different in the context of BCRA than what it has always 
     meant for purposes of the FECA. And we have looked at it 
     very broadly in the past, in terms of encouraging support 
     for, and providing information as to how to contribute, 
     and publicizing, the right to accept unsolicited 
     contributions from any lawful contributor. Those sorts of 
     factors. I think

[[Page S10125]]

     it's an area of the law that's pretty clear and pretty 
     well-settled (emphasis added).

  Putting aside the associate general counsel's explanation that the 
meaning of ``to solicit'' is ``pretty clear and pretty well-settled'' 
in the law, four Commissioners apparently decided that a dramatic 
change in course was somehow warranted with respect to implementing 
soft money solicitation restrictions. A lame-duck, holdover 
Commissioner proposed an amendment during the rulemaking proceedings 
that narrowed the definition of ``to solicit'' from ``to request or 
suggest or recommend'' to ``to ask.'' In explaining this amendment, 
that Commissioner repeatedly made it clear that he intended to narrow 
considerably the scope of the definition of ``to solicit'' contained in 
the general counsel's draft, to eliminate the concepts of to ``suggest 
or recommend.''
  The Commission's general counsel expressed strong reservations about 
this amendment to narrow the definition of ``to solicit,'' stating the 
following:

       . . . [T]his is a pretty huge concept in the Act. You can't 
     solicit soft money. Certain actors can't solicit soft money 
     now under the law. And it doesn't seem to me to take a great 
     deal of cleverness to make a solicitation that is clearly 
     intended to encourage--to persuade a person to make a 
     contribution, without coming out and asking. And I think this 
     definition has the potential for great mischief . . . And I'm 
     concerned that this language creates a definition so narrow 
     that it would, frankly, be very easy to avoid.''

  The Commissioner that offered the amendment narrowing the definition 
of ``to solicit'' replied, ``It indeed runs that risk.''
  Despite the warnings of the Commission's general counsel, the 
amendment was ultimately adopted. The result is to exclude all but the 
most explicit ``asks'' for soft money from the new law's solicitation 
prohibitions. Because of this amendment, national parties and Federal 
candidates and officeholders may ``recommend'' or ``suggest'' that a 
donor contribute soft money. Far from being out of the soft money 
fundraising business, parties and candidates now stand to be in a more 
subtle soft money fundraising business. That is hardly the fundamental 
change in the campaign finance system that Senator Levin was discussing 
on the Senate floor or that Congress as a whole sought in enacting the 
Bipartisan Campaign Reform Act.
  The Commission compounded the problem by essentially reading the 
prohibition on ``directing'' soft money out of the statute. The new 
campaign finance law makes it illegal for national parties and Federal 
officeholders or candidates not only to ``solicit'' soft money but also 
to ``direct'' soft money. The clear implication is that those terms are 
not redundant. Specifically, ``to direct'' covers instances in which a 
national party or Federal candidate suggests to whom an already willing 
contributor should make a soft money donation, as opposed to initiating 
the idea of the contribution, which amounts to a ``solicitation''.
  The general counsel's draft properly assigned distinct meaning to the 
term, ``to direct.'' It defined ``to direct'' as, ``to provide the name 
of a candidate, political committee or organization to a person who has 
expressed an interest in making a contribution, donation, or transfers 
of funds to those who support the beliefs of goals of the contributor 
or donor . . .'' However, the same amendment that substantially 
narrowed the definition of ``to solicit'' redefined ``to direct'' to 
mean, ``to ask a person who has expressed an intent to make a 
contribution, donation, or transfer of funds, or to provide anything of 
value, to make that contribution, donation, or transfer of funds, or to 
provide that thing of value.'' In other words, the Commission 
ultimately defined ``to direct'' to mean nothing different from ``to 
solicit.'' This will allow national parties and Federal officeholders 
to tell a willing donor where they should send their soft money--in 
violation of the plain language of the statute.
  The Bipartisan Campaign Reform Act bans the receipt, solicitation, 
direction, or spending of soft money not only by national party 
committees but also by any entities ``directly or indirectly 
established, financed, maintained or controlled'' by those party 
committees. This prohibits national party committees from spawning and 
in other respects significantly supporting ``shadow entities'' designed 
to carry on the raising and spending of soft money once those party 
committees can no longer accept soft money contributions themselves.
  The soft money ban enacted by Congress will achieve its full effect 
only if the Federal Election Commission applies it to all entities in 
fact ``directly or indirectly established, financed, maintained or 
controlled'' by national party committees. If the Commission instead 
willfully blinds itself to relevant information concerning a national 
party's involvement with a given organization, the soft money ban could 
fall short of the coverage spelled out in the statute. Under that 
scenario, shadow entities set up by national parties could carry on the 
raising and spending of soft money under the false guise of 
``independence'' from the parties--including spending soft money on 
television and radio sham ``issue ads.''
  Unfortunately, four Commissioners opted for willful blindness rather 
than a complete and accurate analysis of whether an entity was in fact 
``directly or indirectly established, financed, maintained or 
controlled'' by a national party. The explanation and justification 
accompanying the draft rules prepared by the Commission's general 
counsel noted that ``certain actions that occur before the effective 
date of BCRA have as much of an impact on whether an entity is 
`established, financed, maintained or controlled' by a sponsor as 
actions that occur immediately after BCRA's effective date.'' 
Accordingly, the draft rules proposed by the General counsel indicated 
that the Commission should review conduct occurring before the law's 
effective date of November 6, in addition to conduct occurring after 
that date, in determining whether a national party had established, 
financed, maintained or controlled an organization. Indeed, there is 
absolutely no basis in the statute for concluding that the Commission 
should review anything less than all of a party's conduct involving an 
organization in undertaking this analysis.
  A Commissioner nonetheless offered an amendment containing an 
invented ``grandfather clause.'' Under this amendment, a national party 
could set up a shadow entity before November 6 to raise and spend soft 
money after that date--and yet the Commission would have to ignore that 
fact and any other pre-November 6 conduct in analyzing whether the 
shadow entity was ``established'' by a national party. The parties 
could provide considerable support to these shadow entities prior to 
November 6 and indeed hold them out to donors as future soft money 
surrogates for the parties. The Commission's general counsel strongly 
objected to this bizarre idea, saying, ``. . . [I]t is hard to see how 
Congress imagined that an entity that . . . . was established a couple 
of days before the effective date of BCRA, is any less established . . 
. on November 10th, November 15th or December 1st.'' Still, the 
Commission adopted the amendment by a vote of four to two.

  By adopting a ``grandfather clause'' invented out of whole cloth, the 
Commission invited schemes by the national parties to evade the new law 
by setting up surrogates prior to November 6th. Not surprisingly, the 
parties appear to be taking up the Commission's invitation. According 
to a Washington Post story of August 25, 2002, ``Both the Democratic 
and Republican senatorial campaign committees are exploring the 
creation of separate soft-money funds.'' A National Journal article of 
September 7, 2002 likewise stated, ``[E]ven some national party 
committees are looking at setting up, before November 5, new groups 
that they say could legally raise soft money next year so long as they 
do not coordinate their activities with the national committees.''
  The Bipartisan Campaign Reform Act puts an end to soft money 
leadership PACs. Soft money leadership PACs are entities controlled by 
Federal officeholders or candidates that take in unlimited 
contributions from corporations, unions, and wealthy individuals to 
finance activities beneficial to their sponsors. These activities can 
include events and entertainment, contributions to State and local 
parties and candidates, fundraising and administrative costs, sham 
``issue ads,'' payments to consultants, and expenses for partisan get-
out-the-vote efforts. According to a February 2002 report by

[[Page S10126]]

Public Citizen, 63 Members of Congress had their own soft money 
leadership PACs at that time. From July 1, 2000, until June 30, 2001, 
the top 25 politician soft money leadership PACs collected more than 
$15.1 million in contributions.
  The new law prohibits entities ``directly or indirectly established, 
financed, maintained or controlled'' by Federal officeholders or 
candidates from soliciting or receiving soft money. As a matter of 
plain meaning and simple common sense, this language clearly covers 
officeholder and candidate leadership PACs. Furthermore, this statutory 
standard linking leadership PACs to their officeholder or candidate 
sponsors is deliberately broader than preexisting language under which 
the Commission has treated leadership PACs as independent of Federal 
officials. In sum, the new law was intended to bring about the demise 
of soft money leadership PACs--and was well-crafted to achieve that 
result.
  Despite the statutory language and clear legislative intent, the 
Federal Election Commission has left open the possibility of continued 
operation of officeholder and candidate soft money leadership PACs. If 
the Commission considers a leadership PAC to be ``directly or 
indirectly established, financed, maintained or controlled'' by a 
Federal officeholder or candidate, it will not be permitted to receive 
soft money. However, the Commission also decided that it would analyze 
whether individual leadership PACs are so established, financed, 
maintained or controlled by applying the same standards under which it 
has always considered leadership PACs to be independent of Federal 
officeholders and candidates. This decision threatens to delete an 
important element of the new law's soft money prohibitions.
  The Bipartisan Campaign Reform Act permits Federal officeholders and 
candidates to ``attend, speak, and be a featured guest at'' State party 
fundraising events. However, these individuals may not expressly 
solicit soft money at State party fundraising events.
  The Commission's professional staff clearly perceived the line drawn 
by the law in terms of permissible Federal officeholder or candidate 
participation in State party fundraising events. Consistent with the 
statutory language and legislative intent, the draft final soft money 
rules prepared by the general counsel and professional staff held that 
Federal candidates and officeholders could attend, speak at, or be 
featured guests at a State party fundraising event, but they could not 
``actively solicit funds at the event.''
  Once again, the Commission overrode the draft regulations developed 
by its professional staff and departed from the statute. A Commissioner 
offered an amendment to permit Federal officeholders not merely to 
attend and speak at State party fundraising events but also to make 
express solicitations for soft money at those events. He characterized 
this amendment as a ``total carve-out'' from the law's restrictions on 
soft money solicitations by Federal candidates and officeholders. 
Commissioner Scott Thomas, who consistently voted against efforts to 
undermine and compromise the law, strenuously disagreed, saying, 
``[Congress] drafted the statute in a way that says in essence Federal 
candidates are not to solicit soft money and the one part of 
Commissioner Toner's amendment that I just can't square with the 
statutory ban is the last clause: the candidates and individuals 
holding Federal office may speak at such events without restriction or 
regulation.'' The amendment passed despite Commissioner Thomas's 
objections.
  This departure from the statutory text and legislative intent creates 
a significant loophole that undermines Congress' effort to eradicate 
the soft money system. Under this amendment, whatever is deemed to be a 
State party fundraiser essentially becomes a ``rules-free zone'' for 
soft money solicitations. It is readily conceivable that Federal 
officeholders and candidates will engage in unrestrained soft money 
solicitations at any kind of event or gathering that is simply called a 
``State party fundraiser.'' Indeed, one could envision a State party 
holding its ``fundraiser'' in Washington DC's, Union Station, with the 
President and numerous Members of Congress in attendance to expressly 
solicit unlimited soft money contributions for that state party. This 
result is simply impossible to square with the text of the law and 
Congress's intent. The problem is compounded by the fact that the 
Commission elsewhere opened loopholes permitting State parties to spend 
unregulated, unlimited soft money donations on activities affecting 
Federal elections, again contrary to statutory text and legislative 
intent.
  In general, the Bipartisan Campaign Reform Act does not merely ban 
national parties and Federal officeholders from receiving, spending, 
directing, or soliciting soft money. The bill also prohibits State 
parties from spending unregulated soft money on activities that have a 
particularly pronounced effect on Federal elections--defined in the 
statute as ``Federal election activity.''
  This portion of the law responds to an ongoing, significant problem. 
Currently, State parties often use unlimited soft money donations, 
which are transferred to them by national parties or contributed 
directly to them, to help finance sham ``issue ads'' promoting or 
attacking clearly identified Federal candidates, voter mobilization 
activities clearly benefitting Federal candidates, and other campaign 
activities affecting Federal elections. This compromises the integrity 
of our democracy. If unregulated and potentially unlimited soft money 
donations can be funneled through State parties into activities 
supporting the election of Federal candidates, at a minimum, 
officeholders appear beholden to the sources of those unlimited 
donations.
  To remedy this problem, the new campaign finance law requires State 
parties to use exclusively hard money contributions to finance public 
communications promoting or attacking clearly identified Federal 
candidates, voter registration activity occurring within 120 days of a 
regularly scheduled Federal election that mentions a Federal candidate, 
and get-out-the-vote activity, voter identification, and generic 
campaign activity mentioning a Federal candidate and conducted in 
connection with an election in which a Federal candidate appears on the 
ballot. It also requires State parties to use either exclusively hard 
money, or a combination of hard money and tightly limited and regulated 
non-Federal funds, to finance voter registration, get-out-the-vote 
activity, voter identification, and generic campaign activity that do 
not mention Federal candidates.

  The law does not permit the use of unregulated, unlimited soft money 
donations by State parties for any of the specified ``Federal election 
activities.'' Indeed, during floor debate over a number of years, the 
House and Senate repeatedly rejected substitute proposals that would 
have allowed State parties to use unlimited soft money donations for 
these activities. However, what was settled by Congress was reopened by 
the Federal Election Commission. Through a series of amendments that 
defied the statutory language, legislative intent, its own precedents, 
and simple common sense, the Commission opened the door for the use of 
unlimited soft money donations by State parties for certain activities 
that clearly and significantly affect Federal elections. As such, the 
Commission preserved the status quo of the soft money system in a 
number of respects--clearly contrary to Congress's overriding purpose 
in enacting this law.
  The statute does not permit State parties to use unregulated, 
unlimited soft money donations to finance ``voter registration 
activity'' within 120 days of a regularly scheduled Federal election 
and ``get-out-the-vote activity'' conducted in connection with an 
election in which a Federal candidate appears on the ballot. State 
parties must use exclusively hard money, or a tightly controlled mix of 
hard money and limited, regulated non-Federal donations, if no Federal 
candidate is mentioned, to pay for these activities. The Federal 
Election Commission, however, permitted State parties to use 
unregulated soft money for these activities, by adopting unjustifiably 
narrow definitions of the terms ``voter registration activity'' and 
``get-out-the-vote activity.''
  The draft final rules prepared by the Commission's general counsel 
had appropriately defined ``voter registration activity'' and ``get-
out-the-vote activity'' to include not merely ``to assist'' individuals 
to vote or register to vote but also ``to encourage'' them to do so, 
consistent with Commission precedent.

[[Page S10127]]

For instance, elsewhere in title 11 of the Code of Federal Regulations, 
specifically, in 11 CFR 100.133, the Commission uses the heading 
``voter registration and get-out-the-vote activities,'' to describe 
``activity designed to encourage individuals to vote or to register to 
vote''. However, on a four-to-two vote, the Commission overrode its 
general counsel and deleted the concept of ``encouraging'' people to 
register to vote or to vote from the definitions of ``voter 
registration activity'' and ``get-out-the-vote activity.''
  This amendment departs from not only Commission precedent but also 
common sense. Under the amendment, a State party phone bank targeted at 
the party's core voters, urging them to ``get out and vote this 
November'' because of key issues at stake, but not mentioning the 
location of a polling place or offering transportation assistance, 
would not constitute ``get-out-the-vote activity'', and thus could be 
financed in part with unregulated, unlimited soft money. This is an 
absurd result, contradicting common understandings of what constitutes 
``get-out-the-vote activity'' and perpetuating certain aspects of the 
current soft money system. By failing to include all ``get-out-the-vote 
activity'' and ``voter registration activity'' in its definitions of 
those terms, the Commission violated the statute.
  The Commission also failed to include all ``voter identification'' 
activity in its regulatory definition of that term, violating the 
statute and undermining its prohibition on the use of unregulated soft 
money by State parties for such activity. The draft final rules 
prepared by the Commission's general counsel had included ``obtaining 
voter lists'' in the definition of ``voter identification.'' However, a 
Commissioner offered an amendment to delete voter list acquisition from 
this definition, even though this is a commonly understood component of 
voter identification activity. A lawyer from the Commission's general 
counsel's office pointed out the problem with this amendment, noting 
during the rulemaking:

       In particular, I would note that the [definition of voter 
     identification proposed in the amendment] excludes--and I 
     know, by design--list acquisition, which is a key means of 
     identifying voters and, therefore, seemed to us to be voter 
     ID. And also a very significant part--component of campaign 
     spending.

  Nonetheless, the Commission adopted the amendment by a four-to-two 
vote, allowing State parties to continue their current practice of 
using unregulated, unlimited soft money donations to help acquire voter 
lists employed to identify likely voters in upcoming elections in which 
a Federal candidate appears on the ballot.
  As part of its mission to permit the continuation of aspects of the 
soft money system at the State level, the Commission also constricted 
the meaning of ``generic campaign activity'' from that provided in the 
statute. The Bipartisan Campaign Reform Act prohibits State parties 
from financing ``generic campaign activity'' with unregulated, 
unlimited soft money donations. It proceeds to specifically define 
``generic campaign activity'' as ``campaign activity that promotes a 
political party and does not promote a candidate or non-Federal 
candidate''.
  While the statutory definition covers ``campaign activity,'' the 
Commission adopted, again on a four-to-two vote, an amendment limiting 
the corresponding regulatory definition to a ``public communication 
that promotes a political party and does not promote a candidate or 
non-Federal candidate.'' Notably, ``public communication'' is defined 
elsewhere in the statute and regulations to include only ``a 
communication by means of any broadcast, cable, or satellite 
communication, newspaper, magazine, outdoor advertising facility, mass 
mailing, or telephone bank to the general public, or any other form of 
general public political advertising.'' Thus, the Commission overrode 
the statute to permit State parties to use unregulated, unlimited soft 
money donations to send party promotion mailings that do not constitute 
``mass mailings'' and to engage in other party promotion activities 
that do not rise to the level of a ``public communication'' as 
specifically defined in the statute and regulations.
  The Bipartisan Campaign Reform Act specifies that its restrictions on 
State party use of unregulated soft money for get-out-the-vote 
activity, voter identification, and generic campaign activity apply 
when these activities are ``conducted in connection with an election in 
which a Federal candidate appears on the ballot.''

  For purposes of this rulemaking, the Federal Election Commission 
adopted an artificially and unrealistically short time window for 
designating State party get-out-the-vote activity, voter 
identification, and generic campaign activity as having been 
``conducted in connection with an election in which a Federal candidate 
appears on the ballot'' and thus subject to the new law's soft money 
limits. The Commission ultimately decided that these activities fell 
under the statutory standard only if they occurred after ``the date of 
the earliest filing deadline for access to the primary election ballot 
for Federal candidates as determined by State law'' up until election 
day of an even-numbered year. As the Commission's professional staff 
pointed out during the rulemaking proceedings, this filing deadline can 
occur as late as in August in certain States.
  At the very least, it is difficult to reach the conclusion that State 
party voter identification and generic campaign activities conducted at 
any point in even-numbered years are somehow not ``conducted in 
connection with an election in which a Federal candidate appears on the 
ballot.'' Federal candidates will be on the ballot in regularly 
scheduled primary and general elections that occur in those years. 
Indeed, that conclusion is a departure from relevant Commission 
precedent.
  In determining when a hard money match has been required for State 
party generic voter drives, the Commission has long indicated that 
State party generic voter drive expenses incurred as early as the 
beginning of a 2-year election cycle, e.g., January of 1995, for the 
1995-96 cycle, required partial hard money financing. The result of the 
Commission's arbitrary and incorrect interpretation of the statute and 
departure from its precedent in this instance is that State parties 
will be able to use unlimited soft money to help finance certain 
generic party promotion activity and activities to identify likely 
voters occurring in at least the same year, and sometimes considerably 
proximate to, Federal elections.
  In conclusion, the cumulative effect of these provisions is to 
resurrect significant aspects of the current soft money system at the 
State level, directly contrary to statutory text and legislative 
intent. State parties will be able to use unregulated, unlimited soft 
money donations to help finance targeted, effective get-out-the-vote 
activity closely proximate to Federal elections, the purchase of voter 
lists for voter identification purposes, generic party promotion 
activity occurring in Federal election years, and other activities 
directly and substantially affecting Federal elections. Furthermore, 
under other Federal Election Commission regulations shrinking the 
statute, these unregulated soft money donations could be secured for 
State parties by national parties and Federal candidates and 
officeholders.
  Because of the Commission's truncated definition of ``to solicit,'' 
national parties and Federal candidates and officeholders could 
``recommend'' or ``suggest'' that donors write large soft money checks 
to State parties for use on get-out-the-vote drives and other 
activities on Federal elections. Indeed, Federal candidates could also 
take advantage of the ``total carve-out'' invented by the Commission 
for soft money solicitations at State party fundraisers, in order to 
expressly ask donors to contribute unregulated soft money to State 
parties. Acting together, the Commission's various departures from the 
statute would perpetuate many of the State party practices that have 
undermined public confidence in our political system and that Congress 
sought to eliminate.
  The previously cited examples are not the only instances in which the 
Commission departed from the statute and legislative intent. For 
instance:

       The Commission allowed State parties to spend certain non-
     Federal funds to raise funds ultimately used, in whole or in 
     part, to finance ``Federal election activity.'' This directly 
     violates the statutory language indicating that State parties 
     must use funds ``subject to the limitations, prohibitions, 
     and reporting requirements of this Act'' (i.e., hard money) 
     to pay the costs of raising funds

[[Page S10128]]

     used for ``Federal election activity.'' A section-by-section 
     summary of the bill included in the Senate Congressional 
     Record on March 18, 2002 underscores the statutory hard money 
     financing requirement in this area: ``Sec. 323(c). 
     Fundraising Costs. Requires national, state, and local 
     parties to use hard money to raise money that will be used on 
     federal election activities, as defined by the bill'' 
     (emphasis added).
       The Commission even rolled back certain state party hard 
     money financing requirements applicable prior to the 
     enactment of the Bipartisan Campaign Reform Act. Previously, 
     state parties had to use at least some hard money to finance 
     the salaries of state party employees spending less than 25 
     percent of their time on federal election activity. An 
     amendment by one Commissioner eliminated that hard money 
     allocation requirement, allowing state parties to finance 
     those salaries exclusively with soft money.
       The Commission allowed state parties to use unregulated 
     soft money donations to help finance Internet websites and 
     widely distributed e-mails promoting or attacking clearly 
     identified federal candidates. In doing so, they disregarded 
     the statute's prohibition on state parties' using any soft 
     money for ``general public political advertising'' promoting 
     or attacking federal candidates. In fact, this decision 
     departed from Commission precedent--as the agency had 
     previously construed the term ``general public political 
     advertising'' to include Internet communications.
       The Commission failed to include the concept of ``apparent 
     authority'' in its definition of who constitutes a party or 
     candidate ``agent'' for purposes of the Bipartisan Campaign 
     Reform Act, even though it acknowledged that apparent 
     authority is included in the settled common law meaning of 
     the term ``agent.''

  Even this is not a complete list of the problems created by the 
Commission. However, the list is sufficient to demonstrate a pattern of 
statutory distortion with a common theme: allowing soft money banned by 
Congress to creep back into our campaign finance system.
  The agency that created soft money is clearly intent on saving it. A 
number of Commissioners have made no secret of their dislike for the 
policy choices made by Congress in enacting the Bipartisan Campaign 
Reform Act. They are entitled to their opinions about the merits of the 
law. But they are not entitled to substitute their opinions for the 
judgment of Congress. This pattern of statutory distortion and 
contradiction of legislative intent--always with the result of 
reintroducing soft money to the system--suggests that four 
Commissioners did not grasp the limits on their authority, or care much 
about them.
  With the enactment of the Bipartisan Campaign Reform Act, Congress 
honored the American people's desire for cleaner elections. Though I 
wish it were not necessary, it appears that we must act again to ensure 
the public obtains the full benefits of this law. A Federal Election 
Commission that has failed the public time and time again should not 
enjoy the last word on the health of our democracy. So I urge support 
for this resolution--to reclaim for Congress its role as the author of 
our Nation's laws; and to deliver the full campaign finance reform that 
the American people deserve.
  I ask unanimous consent that the text of the joint resolution be 
printed in the Record.
  There being no objection, the joint resolution was ordered to be 
printed in the Record, as follows:

                              S.J. Res. 48

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled, That Congress 
     disapproves the rule submitted by the Federal Election 
     Commission relating to Prohibited and Excessive 
     Contributions: Non-Federal Funds or Soft Money, published at 
     67 Fed. Reg. 49063 (2002), and such rule shall have no force 
     or effect.

  Mr. FEINGOLD. Mr. President, I join with the Senator from Arizona in 
introducing a disapproval joint resolution pursuant to the 
Congressional Review Act, ``CRA''. An identical joint resolution is 
being introduced in the House of Representatives by supporters of 
campaign finance reform in that body. If passed by the Senate and the 
House and signed by the President, this resolution would result in the 
disapproval of regulations issued by the Federal Election Commission to 
implement the core provision of the McCain-Feingold/Shays-Meehan 
campaign finance reform bill, the ban on soft money.
  We are taking this step, reluctantly, because the rules transmitted 
to Congress are not faithful to the letter and the spirit of the bill 
that we passed, and the President signed, just a few months ago. That 
bill was necessary because rulings over a period of years by the FEC 
had created the soft money system. We cannot stand by while the same 
regulatory body thwarts the efforts of this Congress, and the strong 
desire of the American people, to end that corrupt system of financing 
campaigns in this country. We must send a clear message that we meant 
what we said when we passed campaign finance reform earlier this year.
  No unelected body can be permitted to rewrite the law. No group of 
appointed officials can be permitted to punch loopholes in a law before 
the ink is even dry on the President's signature. The role of the FEC 
is to implement and enforce the laws that Congress passes, not to pass 
judgment on them and revise them according to the Commissioners' own 
views of the way that campaigns should be financed in this country.
  As my colleagues are aware, section 402(c) of the new law required 
the FEC to promulgate rules relating to Title I of the new law, the ban 
on soft money, within 90 days of enactment of the law on March 27, 
2002. The FEC worked diligently to meet that statutory deadline. It 
published proposed rules on May 20, 2002, received comments from 
interested parties on May 29, 2002, held public hearings on June 4 and 
June 5, 2002, and completed work on the rules themselves on June 25, 
2002. Incidentally, Senator McCain and I and Representatives Shays and 
Meehan filed extensive comments on the proposed rules. So the FEC had 
before it our views on the issues covered by the rules when it made its 
decisions.
  Let me first take a moment to outline a few of the deficiencies in 
the FEC's rules, and then I will discuss our decision to invoke the 
Congressional Review Act. One of the central provisions of the McCain-
Feingold bill was a prohibition of Federal candidates and officeholders 
soliciting soft money. The President and members of Congress are now 
intimately involved in their parties' fundraising efforts. They spend 
hours at a time making phone calls to corporate CEOs and labor leaders 
asking for contributions of hundreds of thousands of dollars. One 
member of this body commented to me after making one of those calls 
that he felt like taking a shower. The White House coffees from 1996 
and other ``donor service'' events were part of this soft money system.

  This kind of fundraising demeans this body, it demeans the 
Presidency, it demeans public service. We knew if we were going to end 
the soft money system, we had to call a halt to members of Congress 
raising these kinds of unlimited contributions.
  The FEC took it upon itself to define the term ``solicit'' in our 
statute. The General Counsel's office sensibly suggested a definition 
that to ``solicit'' means to ``request, suggest, or recommend'' that a 
contribution be made. The Commissioners decided that definition was too 
broad so they amended the General Counsel's definition and said that 
solicit only means to ``ask'' for a contribution.
  There can be no question that our intent in this law was to broadly 
prohibit the involvement of Federal candidates and officeholders in the 
raising of soft money. The FEC's definition narrows that provision. As 
the Commission's General Counsel said, ``it doesn't take great 
cleverness'' to figure out ways to request a donation without formally 
asking for one. The bank on Federal officeholders raising soft money is 
plainly compromised by this narrow definition. It is contrary to the 
clear intent of the Act.
  In our prohibition of soft money fundraising, we included a narrow 
exception to permit federal officeholders to ``attend, speak, or be a 
featured guest at'' at a fundraiser for a State political party 
committee. The idea behind this exception was to allow Federal 
candidates to be part of such fundraisers, even if the State party was 
using the event to raise money that might not be legal under federal 
law. We did not intend that Federal candidates should be allowed to 
expressly solicit soft money contributions at such fundraisers.
  So what did the FEC do with this exception? In the words of one 
Commissioner, it created a ``rules free zone'' at these events. 
Absolutely nothing is now out of bounds at any event deemed

[[Page S10129]]

to be a State party fundraiser, members of Congress can not only attend 
and speak at a fundraiser, they can individually solicit corporate CEOs 
in attendance, they might even be able to make phone calls to other 
donors from such fundraisers. Anyone who would have suggested on this 
floor that the intent of the narrow exception in the bill was to create 
a ``rules free zone'' would have been laughed out of town. But that is 
exactly what the FEC did.
  The FEC also laid the groundwork for the national parties to transfer 
their soft money operations to other entities before the law takes 
effect. This was clearly not permitted by the law we passed. The soft 
money ban applies not only to the parties but to any entity ``directly 
or indirectly established, financed, maintained, or controlled'' by the 
party or any party official. The idea here, as you can tell by the 
broad language was to make sure that ban was difficult to evade.

  The FEC went right to work on this language. It determined that any 
action taken before the bill becomes effective cannot be considered in 
deciding whether an entity is established, financed, maintained, or 
controlled by the parties. Under this regulation, the parties can 
create shell entities this year, provide seed money and staff and donor 
lists for them, and inform all their soft money donors that this new 
entity is their favored recipient for soft money after the election. 
But under the FEC's rules, none of those facts can even be considered 
in deciding whether this entity is ``established'' by the party, and 
therefore subject to the ban on raising and spending soft money.
  This is a strained reading of the law, to say the least. One 
Commissioner said with respect to the actions of the FEC's majority on 
these rules: ``You have so tortured this law, it's beyond silly.'' This 
is clearly a prime example. How can an entity such as the one I 
described not be considered to have been ``established'' by the party? 
Yet that will be the result of the ``grandfathering'' that the FEC 
included in the regulations, a provision that is nowhere reflected in 
the law itself, and that was simply made up by the FEC out of whole 
cloth.
  There are many other examples of torturing this law, and we will 
detail all of them when we consider the resolution. I think it is clear 
that these problems go to the heart of the soft money ban. They are not 
just quibbles. They undermine the central provisions of the new law. 
That is why we are seeking to invoke the Congressional Review Act. Some 
may call that a draconian step because the CRA requires us to overturn 
the entire regulation. But in our view, such action is appropriate. No 
rules are better than rules that create huge loopholes from the very 
start.
  Furthermore, it is our view that the FEC would remain under an 
obligation to promulgate new rules and that new rules that address the 
shortcomings that we identify in this debate will be permitted under 
the CRA because they will not be ``substantially the same'' as the 
regulations that we disapprove with this resolution. The CRA would give 
the FEC a full year from the date of enactment of the disapproval 
resolution to repromulgate the rules. But we expect that the FEC will 
act expeditiously in response to a clear message from Congress that 
these rules are unsatisfactory. Indeed, the regulated community will 
demand quick action, because it will want the guidance that regulations 
provide. Otherwise, it will be required to abide by a statute without 
the more specific guidance provided by regulations.
  We take no pleasure in having to follow this course. But we worked 
for seven years to pass this reform for the American people. Sixty 
Senators voted in favor of the bill when it finally passed the Senate 
on March 20, 2002. We cannot turn our backs on the extra-legal action 
of the FEC. We must act to protect the reform that so many fought so 
hard for so long to enact.
  When we passed the McCain-Feingold bill in March, I indicated that we 
would continue to work for reform and to make sure that the new law was 
properly implemented. I really did not expect to be back on the floor 
so soon. But I make no apologies for it. The FEC's rules cannot stand. 
I ask for my colleagues support for this disapproval resolution.
                                 ______
                                 

   By Mr. AKAKA (for himself, Mr. Inouye, Mr. Kennedy, Mr. Reed, Ms. 
 Mikulski, Mr. Wellstone, Mr. Jeffords, Mr. Edwards, Mr. Bingaman, Mr. 
Dodd, Mrs. Clinton, Mr. Lieberman, Mr. Kerry, Mr. Torricelli, and Mrs. 
                                Boxer):

  S.J. Res. 49. A joint resolution recognizing the contributions of 
Pasty Takemoto Mink; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. AKAKA. Mr. President, I rise to introduce a resolution passed 
last night in the other body, along with my colleagues Senators Inouye, 
Kennedy, and others, which continues our tribute to Congresswoman Pasty 
Takemoto Mink in the wake of her untimely passing on September 28, 
2002. The resolution honors a remarkable woman and her accomplishments 
for equal opportunity and education by renaming after her a provision 
in law commonly known as Title IX that consists of few words but has 
had incomprehensible and tremendous positive impact on the lives of 
countless numbers of girls and women in our country. With our combined 
action, Title IX of the Education Amendments of 1972 will now be known 
as the Pasty Takemoto Mink Equal Opportunity in Education Act.
  As we honor our colleague, we can also recount some of the milestones 
in the 30-year history of Title IX and the efforts to establish 
standards of equal opportunity of women. The progress we as a Nation 
have made in 30 years has been remarkable, and we have Patsy and a few 
of her visionary colleagues to thank for the equal opportunities our 
children enjoy today. In 1970, the U.S. House of Representatives 
Committee on Education and Labor held the first Congressional hearings 
on sex discrimination in education. At those hearings, Patsy made the 
following statement, ``Discrimination against women in education is one 
of the most insidious forms of prejudice extant in our nation. Few 
people realize the extent to which our society is denied full use of 
our human resources because of this type of discrimination. Most 
large colleges and universities in the United States routinely impose 
quotas by sex on the admission of students. Fewer women are admitted 
than men, and those few women allowed to pursue higher education must 
have attained exceptional intellectual standing to win admission.'' She 
went on to state, ``Our nation can no longer afford this system which 
demoralizes and demeans half of the population and deprives them of the 
means to participate fully in our society as equal citizens. Lacking 
the contribution which women are capable of making to human betterment, 
our nation is the loser so long as this discrimination is allowed to 
continue.''

  In April, 1972, Congresswoman Mink introduced the Women's Education 
Act of 1972. On the day of introduction, on the floor of the other 
body, she said, ``We need the input of every individual to continue the 
progress we enjoy. All persons, regardless of their sex, must have 
enough opportunities open so that they can contribute as much to their 
lives and this society as they can.'' She further noted that, ``it is 
essential to the existence of our country that sincere and realistic 
attention to there realignment of our attitudes and educational 
priorities be made. I suggest that education is the first place to 
start in a reexamination of our national goals.''
  On June 23, 1972, Congresswoman Mink, working with Congresswoman 
Edith Green of Oregon and others on the then Education and Labor 
Committee, saw their efforts on an important education package come top 
fruition as the Education Amendments of 1972 were signed into law. 
Title IX was included in that package. Final regulations for Title IX 
were issued on June 4, 1975. On June 17, 1997, President Clinton 
announced that he issued an executive memo directing all appropriate 
federal agencies to review their Title IX obligation and report their 
findings within 90 days to the Attorney General. In all, although the 
reach of Title IX has been felt the most in the athletics arena, the 
landmark statutes about gender roles in our society and helped to 
correct inequalities in areas such as educational attainment by women, 
educator pay, and the wide range of extracurricular activities enjoyed 
by female students of all ages. Much of this

[[Page S10130]]

would not have been possible, were it not for the immense vision and 
determination of Patsy Mink.

  Last Friday, I attended a most fitting and moving memorial service 
for Patsy in Honolulu, Hawaii. I joined the senior Senator from Hawaii 
and many dignitaries from the other body, as well as many of Hawaii's 
other distinguished elected officials and thousands of Hawaii 
residents, in attendance to pay tribute to Patsy Mink. Among the 
eloquent speakers, University of Hawaii Assistant Athletics Director 
Marilyn Moniz-Kahoohanohano called herself, ``a living example of Mrs. 
Mink's vision of quality for women.'' Marilyn recounted how she had 
just graduated from high school after the passage of Title IX, and the 
University of Hawaii formed the Rainbow Wahine athletic teams. She 
recalled, with joy, how she and her team placed second for the national 
volleyball title and took pictures with Patsy on the steps of the 
Capitol. Marilyn's powerful words on Friday range true for many female 
athletes in Hawaii and around the country, as she said, ``Because of 
you, we can play the game.''
  I urge the Senate to act quickly on this resolution to honor the 
groundbreaking efforts of Congresswoman Patsy Takemoto Mink on behalf 
of countless girls and women of America. Mr. President, I ask unanimous 
consent that the text of the joint resolution be printed in the Record.
  There being no objection, the joint resolution was ordered to be 
printed in the Record, as follows:

                              S.J. Res. 49

       Whereas Patsy Takemoto Mink was one of the Nation's leading 
     voices for women's rights, civil rights, and working families 
     and was devoted to raising living standards and providing 
     economic and educational opportunity to all Americans;
       Whereas Patsy Takemoto Mink was a passionate and persistent 
     fighter against economic and social injustices in Hawaii and 
     across the Nation;
       Whereas Patsy Takemoto Mink was one of the first women of 
     color to win national office in 1964 and opened doors of 
     opportunity to millions of women and people of color across 
     the Nation;
       Whereas Patsy Takemoto Mink had unprecedented legislative 
     accomplishments on issues affecting women's health, children, 
     students, and working families; and
       Whereas Patsy Takemoto Mink's heroic, visionary, and 
     tireless leadership to win the landmark passage of title IX 
     of the Education Amendments of 1972 opened doors to women's 
     academic and athletic achievements and redefined what is 
     possible for a generation of women and for future generations 
     of the Nation's daughters: Now, therefore, be it
       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled,

     SECTION 1. PATSY TAKEMOTO MINK EQUAL OPPORTUNITY IN EDUCATION 
                   ACT.

       Title IX of the Education Amendments of 1972 (20 U.S.C. 
     1681 et seq.) is amended by adding at the end the following:

     ``SEC. 910. SHORT TITLE.

       ``This title may be cited as the `Patsy Takemoto Mink Equal 
     Opportunity in Education Act'.''.

                          ____________________