[Congressional Record (Bound Edition), Volume 147 (2001), Part 3]
[Senate]
[Pages 3982-4001]
[From the U.S. Government Publishing Office, www.gpo.gov]



           BIPARTISAN CAMPAIGN REFORM ACT OF 2001--Continued

  Mr. McCAIN. Mr. President, it is kind of obvious what the strategy is 
that is going to be employed here, and that is to sort of love this 
legislation to death. In other words, let's not leave

[[Page 3983]]

any stone unturned; let's make sure this is a perfect bill, and 
anything less than that is not acceptable. So let's have a series of 
amendments, which I certainly admit are very clever, including this 
one.
  I want to point out that this bill says, basically, ``except that the 
cost of such establishment, administration, and solicitation may only 
be paid from funds that are subject to the limitations.'' In other 
words, only hard dollars can pay for a political action committee's 
establishment, administration, and solicitation.
  Well, Mr. President, we try to help PACs. We try to help political 
action committees because they provide us, generally speaking, with 
small donations that are an expression of small individuals' 
involvement, as opposed to the so-called soft money, which we are 
trying to attack. So we have tried to, in the past, make it as easy as 
possible for political action committees to function, rather than make 
it difficult.
  Also, the Senator from Utah interprets this as some way to put 
pressure on to increase hard money limits. Hard money limits will be 
debated, and I am confident, to some degree, that hard money limits 
will be raised. But here is the situation: We have a company, a 
corporation, in Salt Lake City, UT, and it has a PAC. Where is the 
office of that PAC? Generally speaking, they don't go out and rent a 
building or a home or something. They set up a PAC in one of the 
offices in their building. Usually, the person who administers that 
PAC--it is not their sole job. It is something that they many times do 
on a voluntary basis and many times with small compensation for their 
time, and they are located usually in the building. That is generally 
the way PACs are administered. So how do you get money for your PAC? 
You probably put it in the company newsletter, where you say, ``All 
employees who want to contribute to Acme PAC, please do so,'' and then 
that money comes in and the individual puts it in their account, et 
cetera.
  How do you assess the cost of that? Who pays for that? The CEO, 
probably on an annual basis, calls the senior managers together and 
says: I want all you guys and women to contribute to our political 
action committee. It is that time of year. We are in an election year 
and we want to support good old Bob Bennett. He has always been a 
friend of business.
  What is that worth? How do you assess the cost of that good friend of 
Senator Bennett's soliciting money for his political action committee 
so he can support him? Does a notice of contributions in an internal 
newsletter have a value? What is the value in a newsletter?
  What about the electricity costs of the office that houses the PAC of 
the employee who does it on a part-time basis? Well, what we need, 
obviously, is a new arm of the IRS, or the FEC, or maybe a new 
organization that we could call the ``PAC police,'' who say, aha, you 
spent 2 hours today, and that, at your hourly salary, is so much money, 
and that has to come from hard money donations. Clearly, my friends, 
this is not an amendment that would have an effect that we could ever 
enforce, that we could ever make a reasonable kind of a thing. 
Obviously, it would have some debilitating effects on PACs.
  The authors of this amendment could not really understand too well 
how political action committees--particularly the small ones--operate, 
and think somehow that we could assess the costs and then take that out 
of hard money and put it into some kind of payment or payback.
  So I have to oppose this amendment. I think it is not workable. I 
don't think it is logical or reasonable to do so. The Senator from Utah 
mentioned the fact that this is soft money and that we are banning all 
soft money. Well, as the Senator from Utah knows because he mentioned 
that he read the bill, we don't ban soft money in a lot of areas such 
as for State parties, or we don't ban soft money in some other areas. 
But we certainly are banning soft money for the use in Federal 
campaigns.
  So I have to oppose the amendment. I hope that my colleagues will 
understand that this amendment is not an acceptable one.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I yield 15 minutes to my good friend and 
colleague from the State of New York, Mr. Schumer.
  Mr. SCHUMER. Mr. President, I thank the Senator from Connecticut for 
yielding. I thank all of my colleagues--the Senator from Kentucky and 
the Senator from Connecticut for leading this debate, as well as, of 
course, my colleagues from Arizona and Wisconsin for their leadership 
on this issue, which is something I believe in, as they do.
  As we go through this debate on campaign finance reform, I guess 
there are two ways to look at it. They are the larger picture and the 
smaller picture--the forest or the trees. When you look at the trees, 
it is awfully difficult to come up with a perfect bill. I think every 
one of us has found numerous objections to any proposal that is made. 
None of them works perfectly. None of them is without flaws. Much of 
what we will talk about today and over the next two weeks will be in 
discussion of those trees: It will be better to do something this way 
or there is an inequity when ``A'' is put slightly disadvantaged to 
``B.'' I can figure out a scheme that will work for my State better 
than the present one. Over and over again, we can hear arguments just 
like that. And because of the fragility of campaign finance reform, 
because it has taken so long for it to come here, because it is not 
easy for people to reform themselves, which is basically what we are 
doing, any one of those arguments, those trees, could end up ruining 
the whole forest.
  The other way to look at this is as a forest, Mr. President. Our 
system is simply a mess. I say this to my colleagues on my side of the 
aisle particularly but to everybody here as well: We believe in 
Government. We don't believe Government is an enemy. We believe 
Government is something to do good, to improve the lives of people. We 
believe it is basically a necessity. And this system of finance so 
erodes confidence in this Government that we have all dedicated our 
lives to seeing that something has to change.
  The forest is the right argument here--looking from 10,000 feet at 
the landscape is far more important than looking from 100 feet above 
the landscape on this issue. It may not be true of all issues, but it 
is true of this one. So if I had a plea to make to my colleagues, who I 
know are torn on this bill, who I know are ambivalent about whether 
this provision or that provision not only affects them--those who write 
and say, well, they are just interested in their own survival, 
hegemony, that is really not fair because we all live with this system. 
We all have ideas about it, like a carpenter would have better ideas 
about how to carve a chair, or a doctor might come and tell us how to 
design a better medical system. I say to my colleagues who do care 
about this Government, and we have devoted our lives to it, that if 
there were a watchword for this debate, it would be a simple one: Do 
not let the perfect be the enemy of the good because if there was ever 
a place where the perfect or the desire to attain perfection could kill 
the good that would come about, it is in campaign finance reform. That 
is what we have seen over and over.
  I know there are some, such as my colleague, my friend from Kentucky, 
who are just opposed to this bill in broad concept. He believes it 
violates the first amendment, and he has put his money where his mouth 
is and his courage in supporting the amendment against burning of the 
flag. So I do not begrudge his point of view; I disagree with it. We 
are not going to win him over.
  The worry I have is with many of my colleagues who are unsure, who 
look at one imperfection or another in this bill and let it be, let 
those imperfections prevent us from moving forward at all, as move 
forward we must.
  When the Founding Fathers put together our Government and when you 
read the Federalist Papers and some of the commentaries, the thing they 
probably worried more about than anything

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else, even more than the overarching power of a central government, was 
the apathy of the citizens, the lack of involvement by the citizens. 
They wondered if people would put themselves forward for public office, 
and they wondered if people would participate in a government where 
they had control.
  For quite a while, in the flush of democracy and with so many of the 
early issues, those worries subsided, but since World War II, they have 
come back at us larger than ever in the history of our country.
  The percentage of people who vote, the percentage of people who 
regard the Government with only cynicism, the percentage of people who 
believe they do not have any power, even the brief antidote of the 
Florida election has not stemmed that tide.
  One of the main reasons people have that apathy, that cynicism which 
is so corrosive to democracy, is the way we finance our campaigns. They 
know they cannot write out large checks, and they believe, rightly or 
wrongly, that those who can have far more weight than they do. I think 
most of us in this body have to say certainly that appearance is there, 
even for those who do not agree that the reality is there.
  We are here really not just to fix a system, not just to tinker and 
say we can make it a little better here, a little better there, not 
just to smooth off the surface; we are here in an attempt to revitalize 
our sacred democracy.
  I say to my colleagues, that is what is at stake, no less. If we pass 
up the opportunity to pass a bill, if each of us has to have his or her 
own way and say, I want it my way or no way, we are not just changing 
the balance of power between the parties or how this candidate or that 
candidate might run in a new election. We are passing up an opportunity 
to stem the tide of negativity toward our Government which at least, it 
seems to me, is probably the greatest problem this Government faces as 
we move into the 21st century.
  I urge my colleagues to summon forth and see the big picture. I urge 
my colleagues to not get mired in every single detail because there is 
no perfect system. There is certainly no perfect system with Buckley v. 
Valeo as the supreme law of the land, and there is probably no perfect 
system without Buckley v. Valeo as well. We are not going to achieve 
perfection, and none of us is going to be 100 percent or even 90 
percent happy with the bill, but the alternative, which is we do 
nothing--this is our last chance, that is for sure--the alternative of 
doing nothing and allowing the mistrust to continue, the alternative of 
throwing up our hands, which is what the public will think, in deadlock 
and not reforming is too great a danger and too foreboding to the 
Republic to entertain.
  I urge my colleagues, again, to keep their eye on the ball, keep 
their eye on the big picture, keep their eye on the problem we face and 
make sure we pass McCain-Feingold because it is so important to 
rejuvenating the democracy we have.
  There is one final point I will make on an issue I will be speaking a 
lot about the following week, which is the Hagel amendment and soft 
money.
  I have seen, during the brief time I have run for higher office, how 
dramatically this has changed, not only the amount of soft money but 
the restrictions on soft money. It is such that in the 2000 elections, 
one could do virtually the same thing with soft money as one could with 
hard money. Yes, there may be a little sentence put in the commercial 
that says, ``Call up so and so,'' or even some words that are put at 
the bottom of the ad that can hardly be seen, but the bottom line is 
that the ability to spend soft money on virtually everything has made a 
mockery of the original law we passed in the seventies.
  The Hagel amendment, which will allow lots of soft money to continue 
to cascade into our system, is, in my judgment, a killer amendment. It 
is a killer amendment not simply because of what it means for McCain-
Feingold in terms of how many votes it has, but it is a killer 
amendment in the sense that the whole idea behind McCain- Feingold--
which is to limit the influence of large contributions--would be thrown 
out the window.
  When it comes to the Hagel amendment--and he is a good friend of mine 
and I respect completely his sincerity in offering this amendment--but 
when it comes to the Hagel amendment, we would end up being a little 
bit pregnant and that just does not work.
  I thank my colleagues for their efforts. I say to my friend from 
Wisconsin, he has done a marvelous job on our side. I say to, again, my 
friend from Connecticut that he, too, has led the early hours of this 
debate extremely well and extremely fairly, and that also goes for the 
Senator from Kentucky.
  I hope in this body we can debate the issue as seriously as we can, 
and then my sincere hope is that at the end of the day, we emerge with 
the same basic bill that the Senator from Arizona and the Senator from 
Wisconsin introduced.
  I yield back whatever time remains to me.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I thank the Senator from New York. His 
comments are among the most important comments that have been made so 
far in this debate and, frankly, on any other debate we have had on 
campaign finance reform in the last 6 years. That is because he has 
identified the real issue.
  When the Senator from New York was in the other body, he was part of 
the solution there. He was part of the effort to get through a similar 
bill in the House where people did see the forest for the trees, 
exactly the point the Senator from New York is making.
  There are so many amendments that are attractive to us, including 
many provisions that Senator McCain and I have offered in the past, 
having to do with free television time, having to do with other 
improvements in the system that many of us would like to see. We have 
to keep our eye on the ball, as the Senator from New York has 
suggested. I don't know if he is a Mets or Yankees fan.
  Mr. SCHUMER. Yankees.
  Mr. FEINGOLD. Yankees.
  Keeping the eye on the ball is the final goal and the central issue. 
I am grateful after all these years of the frustrating process of 
coming to the floor and having a few speeches and a cloture vote and 
having to shut it down, we can have a Senator from New York talk about 
something real, about a process that can have an end and actually work. 
It will require the kind of unity and discipline of reformers on both 
sides of the aisle that has been demonstrated in the other body on a 
number of occasions.
  My hat is off to the Senator from New York, but also the reformers in 
the other body, particularly Representatives Shays and Meehan, who have 
shown the way. Now it is up to the Senate to do what the Senator from 
New York suggested. There will be attractive amendments on aspects of 
public financing which I would like to see that could upset the balance 
we have. There will be poison pill amendments to try to embarrass one 
particular series of interests such as unions, to try to kill the bill, 
and then there will be so-called alternatives, as the Senator from New 
York has suggested--in particular, the Hagel alternative offered by a 
colleague we all respect--which is, in fact, worse for the current 
system because it will put the stamp of approval on the soft money 
system once and for all.
  I think the Senator from New York is right. I don't think we will 
ever be able to change it if we adopt that kind of amendment. I am 
grateful to him for his work in the House, especially grateful to him 
for his work with a small group of Members who have been working on 
this for over a year, and particularly grateful for his leadership that 
has started today and will continue through this process of pointing 
out that the Hagel alternative is, frankly, worse than no bill at all. 
My thanks, again, to the Senator from New York for his leadership and 
his commitment to this issue.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I enjoyed listening to the Senator from 
New York and will respond in a moment. We are on my amendment so I

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would like to talk about the details of my amendment. Before I do, the 
Senator from Arizona gave an example of volunteer activity, all of 
which is currently exempted under Federal law and which would continue 
to be exempted under Federal law.
  My amendment goes to organizations such as those we have all seen in 
the field where there are a number of paid employees devoted full time 
to PAC activities, occupying dedicated facilities that can be easily 
identified, running up travel expenses that are clearly billed to that 
activity. There would be no difficulty on the part of the cost 
accountant, be it in a union or a corporation, to identify that kind of 
PAC activity. There is no question that the sort of informal activity 
of people talking in the workforce, saying they want to support Senator 
Bennett or Senator McCain, does go on, is voluntary, is completely 
exempted from all law now, and would continue to be exempted. My 
amendment would not apply to that.
  I also point out McCain-Feingold has some of the same aspects of how 
to anticipate time because, as currently drafted, in Federal election 
years, McCain-Feingold requires State, district, and local parties to 
use 100-percent federally regulated hard dollars for the entire salary 
of any State, district, or local party committee employees who spend 25 
percent or more of his or her time in a single month in any of the 
above-mentioned Federal election activities. If it will be difficult, 
as the Senator from Arizona described, to figure out what constitutes 
volunteer activity on behalf of a PAC and what constitutes activity 
that should be reimbursed out of the hard dollar profits of the PAC, it 
will be equally difficult, if not more so, for some Federal official to 
determine what constitutes 25 percent or more of an individual's time 
in a single month on a particular Federal activity. There will be 
hairsplitting in that regard that will go further than the 
hairsplitting to which the Senator from Arizona objected as he made his 
comments about my amendment.
  Let me respond in a different way to the comments of the Senator from 
New York when he said we should look at the forest. I agree with him 
absolutely. We should look at the forest. I have tried to do that in 
all of my activity with respect to campaign finance reform since I 
first came here in 1993.
  The forest I look at, that must be preserved and protected--indeed, 
that which I have taken an oath to preserve and protect--is the 
Constitution of the United States. I do not want to be part of a 
Congress that dilutes the freedoms that are outlined in the 
Constitution of the United States and, specifically, the first 
amendment thereto.
  We are in the 250th anniversary of the birth of James Madison, little 
Jimmy, as he was called by his contemporaries, because he was short. 
That seemed to be the kind of nickname that stuck with him. I make this 
interesting point about Madison before I go on. This comes from an 
article on money and politics that was printed in the Wilson Quarterly 
in the summer of 1797. Reference has been made to the Founding Fathers. 
The Founding Fathers were geniuses, the Founding Fathers gave us an 
incredible legacy, but the Founding Fathers were also very practical 
politicians or they wouldn't have been in the positions where they 
were.
  Quoting from the Wilson Quarterly:

       George Washington spent about 25 pounds apiece on two 
     elections for the House of Burgesses, 39 pounds on another, 
     and nearly 50 pounds on a fourth, which was many times the 
     going price for a house or a plot of land.

  Going back to the debate we had with the amendment of the Senator 
from New Mexico, George Washington was a wealthy man, trying to buy his 
election, if we use today's rhetoric.
  Washington's electioneering expenses included the usual rum punch, 
cookies and ginger cakes, money for the poll watcher who record the 
votes, and even one election eve ball, complete with fiddler.
  Now it talks about James Madison and money:

       James Madison considered the ``corrupting influence of 
     spiritous liquors and other treats'' ``inconsistent with the 
     purity of moral and Republican principles.'' But Virginians, 
     the future president discovered, did not want ``a more chaste 
     mode of conducting elections.'' Putting him down as prideful 
     and cheap, the voters rejected his candidacy for the Virginia 
     House of Delegates in 1777. Leaders were supposed to be 
     generous gentlemen.

  Madison's attempt at purity, though futile, signified the changing 
ideological climate. Madison obviously learned elections cost money, 
even in the days of the Founding Fathers.
  The one thing that Madison guaranteed would happen in every election 
was that there would be complete freedom of expression at every place 
and at every point.
  Since this is the 250th anniversary of Madison's birth, may I, with 
the suspension of belief, resurrect James Madison and place him in the 
gallery, if you will, in the press gallery, because James Madison has a 
history of being an author and a journalist, being the author of much 
of the Federalist Papers. Let us have Madison up there, listening to 
this debate. Now, he would turn to one of his friends in the press 
gallery to have him explain terms that would be unfamiliar to him. He 
would say: What is hard money? What is soft money? What is the 
difference?
  What is it used for? He would have explained too much hard money is 
this and soft money is that. He might have a little trouble 
understanding the difference because he would say: Wait a minute. In 
the first amendment that I authored you were free to speak in whatever 
way you wanted. You could be like Washington and buy rum punch and 
ginger cakes, if that is what it took to get the voters to listen to 
you; or you could run an ad. You could print a pamphlet. That is what 
Hamilton and Jay and I did. We went out and raised money and printed 
our own pamphlets and circulated them. Maybe you have seen them.
  Madison's friend up there in the press gallery might say: Yes, I have 
seen them.
  We call them the Federalist Papers today. But we must remember that 
when they were written, they cost money. Madison could not have spoken 
if he had not raised and spent some money. Money was speech all the way 
back in James Madison's time.
  As James Madison sits there in the gallery, and he hears the details 
of McCain-Feingold, James Madison says: Wait a minute. You are telling 
me that there will be limits on how Americans can participate in the 
political process?
  Yes. There will be limits.
  James Madison asks: Who is in charge of this outrageous idea?
  You see the handsome young fellow from Madison, named after you, from 
Wisconsin, his name is Russ Feingold. He has been pushing for this.
  James Madison says: I must do something about this. I must express my 
opinion with respect to Senator Feingold.
  He snaps a finger and gets his partner, Alexander Hamilton, to join 
him.
  He says: Alexander, look what is happening. There is that fellow down 
there from Wisconsin. He comes from a town named after me. He is trying 
to limit Americans' ability to speak in politics. What do we do about 
it?
  Alexander Hamilton says: You do whatever you always do when you want 
to make a statement. You write a letter to the New York Times.
  James Madison says: Great, Alexander, let's do that.
  Alexander Hamilton and James Madison sit down and write a letter to 
the New York Times protesting the activities of Senator Feingold.
  The editor of the New York Times says: We are not going to run it.
  Madison says: Well, Alexander, you certainly lost your cachet. There 
was a time when anything you said in New York automatically was run in 
any newspaper. What do we do?
  Alexander Hamilton says: Well, we are going to have to buy an ad in 
the New York Times. That way they cannot censor our speech. Money is 
required. How much money do you have, little Jimmy?
  Madison puts his hands in his pocket, and he pulls out whatever money 
he brought with him from the 18th century. And he says: Ready cash, I 
have $7.23. How about you, Alexander?

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  Alexander Hamilton says: Don't get into the issue of money. I don't 
want to talk about the blackmail payments I have been making. It is a 
very sore political point. I can't help you. But maybe the amount of 
money you have will do the job.
  So they call the New York Times and say: How much is the full page ad 
in the New York Times?
  The New York Times says $104,000.
  I have $7.23. I can't speak unless I raise some money. Who do we know 
that knows how to raise money?
  Snap of the finger and Benjamin Franklin appears.
  Benjamin, you were one of America's good businessmen. He said: Yes. 
And I put mine in a CD that has been accumulating interest ever since I 
died in the 1700s, and I have enough for an ad in the New York Times. 
But let me be practical with you. Not only am I a practical 
businessman, but I recognize that most of the people in Madison, WI, 
don't read the New York Times. That is going to come as a great shock 
to you, Alexander Hamilton. You think the whole world reads the 
newspapers in New York. The fact is, if we are going to have an 
influence by running our ad, we are going to do it in Madison, WI.
  They contact the Madison, WI, paper, and find out that the cost of a 
full-page ad is 10 percent of the cost of the New York Times; $14,000 
on a Sunday gets you a full-page ad in the newspaper in Madison, WI.
  Let's do it.
  But while they are debating, while they are doing this-- again we are 
compressing time--McCain-Feingold passes and is the law of the land, 
and it is within 60 days of the election of the Senator from Wisconsin.
  Alexander Hamilton, James Madison, and Benjamin Franklin walk into 
the newspaper and say: We want to buy an ad urging people to vote 
against Senator Feingold.
  The editor of the newspaper says: In the name of campaign finance 
reform, we will not permit you to buy that ad. We will not permit you 
to express your opinion about Senator Feingold or any other candidate. 
We will forbid you from speaking.
  As they turn to walk from the editor's office, with Madison and 
Hamilton disconsolate about the fact they cannot speak their mind, 
Benjamin Franklin says: I can fix it.
  How can you fix it, Benjamin? He says: I told you I put my money in a 
CD, and it has been accumulating interest ever since the 1700s. I have 
enough to buy the newspaper. I don't have to buy the ad. I have enough 
to buy the paper. Once we own the paper, then we will have unlimited 
free political speech because, you see, the impact of McCain-Feingold 
means the people who have the most speech are the people who truly have 
the most money--the people who own the newspapers, the people who own 
the television station, and people named Turner who own networks. They 
have complete freedom of speech because they have enough money. And it 
has taken almost 250 years for me to accumulate enough. But I, Benjamin 
Franklin, have enough that I can buy their newspaper. And then I can 
run an editorial attacking Senator Feingold every day of the week, if I 
so choose.
  At that point, there are absolutely no limits on any speech. But you, 
James Madison and Alexander Hamilton, there are limits on your speech 
placed there by McCain-Feingold saying that there will be no political 
speech from you during the 60 days before the election.
  We come back to reality. James Madison, Alexander Hamilton, and 
Benjamin Franklin are not available as witnesses in this particular 
debate, even though I called them up rhetorically. But I am moved to do 
that by the comment of the Senator from New York who says we must look 
at the forest and we must protect the big picture. The big picture, as 
we are debating McCain-Feingold, has to do with freedom of speech. It 
has to do with robust debate of the American economy. It does not have 
to do with getting money out of politics because the reality in the big 
picture is that we never have had money out of politics, starting with 
George Washington and his rum punch and his ginger cakes. And we never 
will have money out of politics. Somebody will find a way to do it.
  I am a cosponsor with Senator Allen who has offered the Virginia 
Plan. I am not sure it is going to be offered on this floor. But it is 
offered in the arena of public opinion. I hope it gets offered.
  Historians will recognize that the Virginia Plan was James Madison's 
plan for the Constitution.
  What is the Virginia Plan for campaign finance reform? Two sentences. 
The first one, worthy of James Madison, says: No American, any 
provision of law to the contrary notwithstanding, shall be prohibited 
from expressing himself or herself in any way in any arena or any 
contribution to any party or any candidate.
  That sounds like first amendment language to me. That sounds like 
James Madison language about which he would be very comfortable.
  Then the second one, recognizing where we are in technology, says--I 
am not quoting the legal language, just the effect of it--every one of 
those donations will be in the modern world disclosed, using the 
technology that is available to us.
  This means in all probability, 48 hours, and it is on the Internet 
for everybody to see. Forty-eight hours, and electronically the 
contribution is there. That is the Virginia plan.
  When I discuss this with people outside the Senate, they all say: 
Gee, that makes a lot of sense. Why don't you start voluntarily 
disclosing within 48 hours right now? If you are such a great campaign 
finance reformer, why don't you do that immediately?
  I say: You know, there was one candidate for President who did that.
  It is a very interesting thing to do. I recommend it to all of you in 
your town meetings.
  I say: There was one candidate for President who did, in fact, 
disclose every one of his donors within 48 hours.
  Question: Do you know who it was?
  I did this to a group of political science students the other day.
  The first answer I got back was Ralph Nader.
  I said: No, Ralph Nader did not do it.
  Then someone answered: Well then, was it John McCain?
  I said: No, it was not John McCain.
  Then someone answered: Gee, Al Gore?
  I said: No. The candidate who did it is now sitting in the White 
House. His name is George W. Bush. He got little or no credit for doing 
it from those who sit in the press gallery because they do not want to 
admit that he was on to a good idea--in my opinion, a better idea than 
the bill we are debating.
  None of this has had anything to do with my amendment, and I 
recognize that. But none of the debate on the other side has had 
anything to do with my amendment either. And, if I may, if the Senator 
from West Virginia can talk about spring, I hope the Senator from Utah 
can talk about the Constitution.
  I remain ready to answer any questions about my amendment or respond 
to anything about my amendment. But, so far, there has been little or 
no debate about it.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Does the Senator from Utah yield the floor?
  Mr. BENNETT. Yes.
  Mr. McCONNELL. I congratulate the Senator from Utah for a brilliant 
discourse on the importance of the first amendment through the course 
of the debate and in all of our discussions on campaign finance reform. 
He has made it so clear and understandable for all of our Members. I 
congratulate him for his contribution.
  With regard to his amendment, I am told we will be prepared on both 
sides to vote at 4 o'clock. I will enter that consent in a moment.
  But let me say, with regard the Senator Bennett's amendment----
  Mr. REID. Why don't we do that consent request now?
  Mr. McCONNELL. Mr. President, I ask unanimous consent that a vote on 
the Bennett amendment occur at 4 o'clock.
  Mr. REID. A vote on or in relation to.
  Mr. McCONNELL. It is my understanding, talking to the Senator from

[[Page 3987]]

Nevada, it was going to be an up-or-down vote.
  Mr. REID. I do not know of anyone who wishes otherwise. I think it 
will be an up-or-down vote.
  Mr. McCONNELL: On or in relation to the amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Reserving the right to object, the only request I have is 
Senator Feingold wants 5 minutes and Senator Levin wants 5 minutes and 
Senator Dodd needs 5 minutes. The time will be a little uneven, but if 
the Senator will agree to that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, let me say, having been involved in 
this debate over the years, I have frequently heard the words, ``Don't 
let the perfect be the enemy of the good.'' My friend from Utah recalls 
that we hear that from time to time.
  I have taken a look at when that comes up, ``Don't let the perfect be 
the enemy of the good,'' and every single time those words come up--
``don't let the perfect be the enemy of the good''--is in relation to 
an amendment that might have some impact on organized labor--some 
impact.
  I have watched this carefully now for some 10 or 12 years, and every 
time the words ``Don't let the perfect be the enemy of the good'' are 
expressed, it is because there is an amendment pending that might have 
some impact--ever so tiny--on organized labor.
  Now, the Bennett amendment is very evenhanded. It is not targeted at 
organized labor, by any means?
  Mr. BENNETT. That is correct.
  Mr. McCONNELL. Is that correct? I ask the Senator from Utah, this is 
not an amendment targeted at the heart of organized labor?
  Mr. BENNETT. The amendment deals with activities on the part of 
corporations every bit as much as on the part of labor.
  Mr. McCONNELL. I thank my friend from Utah.
  So this is not about organized labor. It is about how you raise money 
for political action committees.
  It has been said on the floor of the Senate that a political action 
committee cannot get started without expenditures of soft money. We all 
know that is not true. There are a number of leadership PACs formed by 
Members of the Senate and the House. We do not spend soft money to get 
those leadership PACs up and running. You get a few hard money checks. 
You file with the FEC. You get a few hard money checks and you are up 
and running.
  Believe me, it is possible to start a PAC without the expenditure of 
soft money, I say to my friend from Utah. Is that correct?
  Mr. BENNETT. Mr. President, I have never started a leadership PAC 
because I have never been in a leadership position. But I understand 
that it is, indeed, easy to do; and it is done only with hard money. 
There does not seem to be any difficulty in keeping track of who is 
volunteering and who is being paid.
  Mr. McCONNELL. I thank the Senator from Utah.
  So this is really an amendment that is quite simple. The principle of 
the underlying bill, which I, as the Senator from Utah, do not support, 
is that Federal elections should be conducted in Federal money, hard 
dollars. And in pursuit of that principle, McCain-Feingold requires the 
national political parties to operate in 100 percent Federal dollars, 
so-called hard dollars--100 percent.
  And in even numbered years, it essentially requires all the State and 
local parties in our country to operate, similarly, in Federal hard 
dollars.
  So in the name of fairness, we ask the question, Why should labor and 
business be allowed to, in effect, subsidize their hard dollar 
activities, which are their political action committees--100 percent 
dollars--and why should they be allowed to subsidize the raising of 
their hard dollars when America's political parties can't do it, and 
when America's State and local parties can't do it in even numbered 
years? Where is the fairness?
  If the idea is that Federal elections should be conducted in Federal 
dollars, why is that principle only going to be applied to the Nation's 
political parties?
  The Bennett amendment is quite simple. It is easily understood. For 
those who believe soft money is a pernicious thing undermining our 
democracy, then why should they think it would only be pernicious when 
raised and spent by political parties but perfectly OK when raised and 
spent by labor and business?
  That is the heart of this amendment. That is what this vote will be 
all about. We will have that vote at 4 o'clock. I think that pretty 
well adequately describes our side of this amendment.
  I will be happy now to yield the floor at this time.
  Mr. DODD. Mr. President, I yield 5 minutes to my friend and colleague 
from Michigan.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I very much oppose this amendment. The 
Supreme Court has told us over and over again that the standard for 
contribution limits that is constitutional is the appearance of 
corruption, the appearance of impropriety, and the appearance of undue 
influence, that large contributions or the solicitation of large 
contributions can create.
  There is no such appearance problem with these expenditures. In fact, 
the expenditures which the Senator from Utah would require to be paid 
for out of hard dollars has explicitly been excluded from that 
requirement by law since 1974. So since 1974, the statute under which 
we have all operated has excluded:

       . . . the establishment, administration, and solicitation 
     of contributions to a separate segregated fund to be utilized 
     for political purposes by a corporation, labor organization, 
     membership organization, cooperative, or corporation without 
     capital stock.

  The administrative expenses, the establishment expenses, and the 
solicitation of contributions to a PAC have not been considered to be 
limited by the hard money restrictions of law since 1974.
  Mr. McCONNELL. Will the Senator yield for a question?
  Mr. LEVIN. If I could finish my remarks.
  Mr. McCONNELL. Just a quick question: Isn't that precisely the point? 
That is precisely the point of the Bennett amendment.
  Mr. LEVIN. That is exactly the point of the Bennett amendment: to 
repeal a law which has been in place since 1974 and has created no 
harm. Sometimes we say around here that the cure is worse than the 
disease. This is a cure looking for a disease. There is no disease here 
that has been shown.
  Mr. McCONNELL. Will the Senator yield for a question?
  Mr. LEVIN. If I could continue, this is just an effort being made to 
try to say: Oh, you guys over there who are trying to ban soft money, 
you are not being perfectly consistent because, look, you allow the 
establishment, administration, and solicitation of contributions to a 
PAC to be paid for out of treasury dollars. You are not being totally 
consistent.
  The answer to that is, wait a minute, the law of 1974 also says that 
communications by a corporation to its stockholders and executive 
administrative personnel and their families or by a labor organization 
to its members and their families on any subject, that is not subject 
either.
  Mr. McCONNELL. Will the Senator yield for a question?
  Mr. LEVIN. I will in a couple of moments.
  Here we have a cure looking for a problem. There has been no problem 
on this. There is no practical way to keep track of these expenses, no 
practical way to do this. A corporation sends out a newsletter to its 
stockholders or to its executives saying: Which of the candidates out 
there should our PAC contribute to? Now someone has to sit and figure 
out: What is the cost of printing that newsletter; what page is that 
notice on; is that on page 1 where it has the biggest impact or on page 
4 of the newsletter; what part of the postage of that newsletter goes 
to that issue; how much of the time of the secretary who

[[Page 3988]]

took the minutes of that meeting where we discussed that issue can be 
attributed to that request.
  You have a bookkeeping nightmare that you are creating for no 
problem. There is no problem, that I know of, that has been shown over 
these almost 30 years. Yet in order to try to show some kind of a flaw, 
looking desperately for a flaw in the ban on soft money, the proponents 
of this amendment say: Aha, you are not being consistent.
  Well, we are being consistent because in the case of banning soft 
money, there is a disease that needs a cure--unlimited contributions to 
political campaigns that are being accomplished through soft money.
  The Supreme Court said: We can prohibit that constitutionally. That 
is what the Supreme Court has said.
  I don't know of any evidence that this particular provision in law, 
which has been in place for 26 years now, has created a problem. I say 
to my good friend from Utah, this amendment is not needed. It has not 
been shown to address a problem in the law. It will create a 
bookkeeping nightmare to try to in any way comply. It will put people 
into an illegal netherworld for no good reason that has been 
demonstrated.
  The PRESIDING OFFICER. The Senator's 5 minutes have expired.
  Mr. DODD. I yield 1 additional minute.
  Mr. LEVIN. The appearance of impropriety, the appearance of 
corruption, which is the only basis on which we can act as a 
justification for limiting contributions of a large size to candidates, 
that justification does not exist here with corporate or union treasury 
money being spent to administer a PAC.
  I urge that we either table this amendment or defeat this amendment. 
I am sorry my friend from Kentucky did not have a chance to ask me the 
additional question. I would be happy to try to answer it, if our good 
friend from Connecticut wants to yield the time.
  Mr. DODD. Mr. President, I think our colleagues have covered this. I 
think we can get to a vote fairly quickly. As my friend from Utah 
knows, I think of myself as the third Senator from Utah. I am not sure 
Utah thinks of me as its third Senator, but he and I have a wonderful 
relationship and have worked so closely together over the years that I 
am not comfortable disagreeing with him on his amendment. I admire him 
immensely.
  In addition to what my colleague from Michigan has said about the 
1974 law, there is also a restriction in the 1974 law which doesn't 
pertain to any other kind of activity that has otherwise been 
described. Under the 1974 act, unions, corporations and membership 
organizations can only solicit their own members and stockholders, 
unlike other organizations which can solicit from the universe within 
the country. Under the 1974 act, as you are establishing your PAC, you 
can only get the support from your own organization's membership. That 
is a significant restriction which applies to them which does not apply 
to others.
  In addition, there is this balance that was written into the law in 
1974, as the Senator from Michigan properly points out, where there has 
not been any identifiable abuse of this exception in the law whatsoever 
here.
  Secondly, because of the universe to which they are restricted in 
soliciting dollars, they then have allowed, in a sense, their general 
treasuries to be used in order to communicate with their restricted 
class and membership--not with people outside of that restricted class 
membership but with their own membership. Were they communicating to 
the universe at large, then I think the point the Senator from Utah has 
raised would be appropriate. But when you are restricting, under the 
1974 act, the audience to which they can communicate, it seems to me 
this balance is appropriate, narrowly tailored and proper. To disrupt 
that now would be a mistake.
  The point the Senator from Arizona made is also worth repeating; that 
is, this is awfully difficult. One of the things we don't want to do is 
create situations which make people potential targets of indictment. 
This gets pretty amorphous, as to what constitutes an expenditure of 
soft dollars in order to solicit hard dollars for your PAC.
  Again, the Senator from Michigan and others have made this point. 
When you get into this area in trying to identify how much has been 
committed or whether or not it was committed at all, a simple address 
by the CEO or the president of a local to the membership of that 
community--how would you put a value on that? Your inability to do so 
or to provide a proper accounting of it exposes you then to the 
potential of indictment. I don't think anyone in our interests here 
should try to necessarily do that. It is so difficult to write that 
into law, even when the law has only civil jurisdiction.
  I urge a rejection of the amendment. A communication which is 
specifically protected by the Constitution and recognized by Buckley, 
where it is involved in a significant balance between the ability to 
communicate with your restricted class or membership and only that 
group, then the resources of that organization to do so are appropriate 
and proper. To upset that balance would be a mistake.
  The law has worked well for 26 years. We ought not to change it at 
this point. For those reasons, I respectfully urge our colleagues to 
vote against the amendment.
  I yield whatever time my colleague from Wisconsin so desires.
  Mr. FEINGOLD. How much time remains?
  The PRESIDING OFFICER. Five minutes.
  Mr. FEINGOLD. Mr. President, I thank the Senator from Connecticut. I 
thank the Senator from Michigan especially for his excellent remarks on 
this amendment, and also the Senator from Arizona. We are united in our 
opposition to it. I, too, as the Senator from Connecticut, find it a 
little bit unpleasant to oppose the Senator from Utah. We have 
thoroughly enjoyed working together and share quite an affection for 
his beautiful State and appreciate those opportunities. On this one, we 
really have to call this amendment what it is. It is simply another 
attempt to change the subject.
  Somehow it doesn't trouble the Senator from Utah or the Senator from 
Kentucky that soft money to the parties was $82 million in 1992, $260-
some million in 1996, and is now approaching $500 million in the year 
2000. That doesn't bother them. That is just fine. What does bother 
them is somehow trying to undo a reasonable balance that was created 
back in 1974 in the law at the time after Watergate and in the Buckley 
decision.
  The problem is not PACs. The problem isn't how PACs raise their hard 
money contributions. We used to think PACs were the problem. I hope the 
American people now realize that PACs are limited to giving $10,000. We 
used to think that was a lot of money. Unfortunately, given this insane 
soft money system, it is starting to look as if it is spare change. But 
that is what the Senator from Kentucky and the Senator from Utah want 
to change the subject to: Worrying about how union members and perhaps 
corporate entities get their people together and spend a little money 
in order to raise the modest amounts that can be contributed through 
PACs. It is a blatant attempt to change the subject.
  It does not relate at all to the real abuse in the system, the 
horrible situation where huge contributions on the very day that votes 
are made are given to the political parties, and then legislation 
passes creating an appearance of impropriety or corruption that is very 
disturbing to the American people.
  To reiterate, the 1974 act that created PACs had an explicit 
tradeoff. Separate segregated funds that are connected with the union 
or corporation can use their treasury funds for their administrative 
costs, but they can solicit only their members or executive and 
administrative personnel for contributions. On the other hand, 
nonconnected PACs must use their PAC money for the costs of 
administration, but they can solicit the general public. That was the 
tradeoff.
  That was the balance to which the Senator from Connecticut referred. 
As he said, this amendment would disturb

[[Page 3989]]

the balance. That tradeoff has been a part of the law for 25 years. It 
is not a loophole. It is not a cesspool of soft money. It is working. 
It may not be perfect, but it is the very thing that, along with other 
things, survived after the Buckley case. We have a fairly decent, but 
not perfect, system of campaign financing in this country. That is what 
is falling apart.
  There is also a constitutional dimension to this amendment. The law 
allows corporations and unions to communicate with their members when a 
union or a corporation solicits members for a PAC contribution. That 
solicitation is a communication. We cannot interfere with that 
communication without running afoul of the first amendment. I would 
think, given the frequent speeches by the Senator from Kentucky on the 
first amendment, that would concern him as well.
  Let me say that I, as well as my lead author, Senator McCain from 
Arizona, oppose this amendment. It may be particularly targeted at 
unions because they have less money and may be perceived that way. As 
the so-called paycheck protection amendment, this is an attempt to 
cripple a labor union. It is a poison pill amendment targeted at labor 
unions and perhaps at corporate PACs, as well, and is not reform.
  Corporate labor PACs have been permitted to use treasury funds for 
their administrative costs since the passage of the 1974 act. As the 
Senator from Michigan said so well, there has been no showing of abuse 
of this narrow exception--the prohibition of corporate and union 
spending of treasury funds in Federal elections--and yet these two 
Senators have virtually nothing to say about the enormous abuse of the 
gaping loophole of soft money that has destroyed the reforms after the 
Watergate era. All those supporting McCain-Feingold should strongly 
oppose the Bennett amendment. We strongly oppose it.
  I yield the floor.
  Mr. McCONNELL. Mr. President, I had not realized, until I heard from 
my friend from Michigan, that the Federal Election Campaign Act was so 
sacrosanct that it should not be changed. If that is the case, I don't 
know why we are here at all because the whole purpose of the McCain-
Feingold bill is to change the Federal Election Campaign Act of 1974.
  Further, it is suggested that this is not an abuse. Well, what we do 
know is that organized labor spends essentially no hard dollars at all 
raising hard dollars for their PACs. Now, as a defender of soft money, 
I must tell you I am not troubled by that in principle any more than I 
am troubled in principle by the political parties having nonfederal 
money. It has been suggested on the other side that this would be an 
inconvenience for organized labor or corporations. What about 
inconveniencing the parties--by taking away 40 percent of the budget of 
the Republican National Committee and the Democratic National 
Committee, and 35 percent of the Republican Senatorial Committee and 
the Democratic Senatorial Committee, and federalizing State and local 
parties for even-numbered years? What about the inconvenience to them? 
Why is it only political parties that it is OK to inconvenience and no 
one else?
  I repeat, every time you hear the argument, ``don't let the perfect 
be the enemy of the good,'' you can be sure the subject being debated 
on the Senate floor at that time is an amendment that might have some 
impact on organized labor. Virtually every time you hear the words 
``poison pill,'' you can be assured the subject matter we are debating 
at that time will be an amendment that might have some impact on 
organized labor.
  The reform industry, led by the New York Times and the Washington 
Post, has been allowed to get away with defining what reform is. In 
fact, reform is what the New York Times and the Washington Post and 
Common Cause say it is, and everything else is a poison pill.
  Now, the underlying bill is designed to reduce the effectiveness of 
America's great political parties--the one entity that will always be 
there for a challenger. Here Senator Bennett is just trying to say, 
look, let's have a level playing field. If the parties are going to 
have to operate in 100 percent hard dollars, why not the unions and the 
corporations? Why not? Why not, I ask? What is so pernicious about the 
influence of Federal, State, and local parties that their resources 
have to be taken away, their voices lowered, their efforts inhibited, 
and no one else?
  This is not a ``level playing field,'' as often is said by the other 
side. I have heard the argument over the years that we need to have a 
level playing field. If hard dollars are to exclusively be the future 
of the parties, why not for business and labor?
  Mr. BENNETT. Mr. President, will the Senator yield for a question?
  Mr. McCONNELL. Yes.
  Mr. BENNETT. The Senator from Michigan said this is a solution 
looking for a problem, that there has been no abuse of this in the 
past. I was interested and pleased to hear the Senator from Wisconsin 
say we used to say PACs were a problem. I remember when the Senator 
from Kentucky and I were lonely voices here defending PACs as being a 
legitimate thing in the face of those who were attacking it in the name 
of campaign finance reform. So at least that debate is over and now 
PACs are good.
  To the point the Senator from Michigan raised, would the Senator 
think this exception--I will call it an exception--could, in fact, 
become a major loophole in the future if McCain-Feingold passes, and 
that some clever lawyers could sit down and figure out a way to create 
something that came under this exemption that could raise significant 
amounts of hard dollars, funding them with soft dollars that are 
totally undisclosed, unlike the other soft dollars to which they 
object--soft dollars that would be totally undisclosed, finding a way 
to turn this into the next monster that we hear about in campaign 
finance reform debates 5 to 10 years from now?
  Mr. McCONNELL. I say to my friend, he described the situation today. 
That is the situation today. We have unlimited and undisclosed soft 
dollars--we don't know how much--underwriting the PACs of corporations 
and unions. That is the situation today. All I believe the Senator from 
Utah is doing is trying to create a level playing field of hard 
dollars. If hard dollars are good for parties, why not for companies 
and labor unions?
  Mr. BENNETT. It is my thought, I say to the Senator from Kentucky, 
that the reason we have not considered this as an abuse in the past is 
because there have been other things at which we have been looking. But 
if McCain-Feingold outlaws those other things, there is no reason to 
believe that this will not become the target of campaign finance 
reformers in the years ahead, and we will see at that point their 
thundering rhetoric about how terrible it is.
  Today, they have no rhetoric and they say it is no problem. Of 
course, I say to the Senator from Kentucky, knowing how he feels, I 
think the thundering rhetoric is overheated as to the problem on the 
other side, but corruption becomes ultimately in the eye of the 
beholder.
  Mr. McCONNELL. I thank the Senator.
  Mr. JEFFORDS. If the Senator from Utah will yield, I had an 
opportunity to listen to some of his comments about the Snowe-Jeffords 
provisions. They were amusing, but far from accurate.
  Mr. BENNETT. I am happy to be corrected.
  Mr. JEFFORDS. First of all, there is nothing in Snowe-Jeffords that 
prohibits or prevents ads to be purchased in newspapers. There is no 
problem there.
  Mr. BENNETT. Is it only television?
  Mr. JEFFORDS. Television and radio, probably.
  Mr. BENNETT. So by choosing gentlemen who like the print media rather 
than the electronic media--I miss the point?
  Mr. JEFFORDS. He misses the point that all that it requires is 
disclosure. We would like to know who it is making the ads on 
television. It is a simple disclosure provision that says people ought 
to know, if somebody is making accusations, who is doing it.

[[Page 3990]]


  Mr. BENNETT. Is there no prohibition for ads 60 days prior to the 
election?
  Mr. JEFFORDS. There is no prohibition 60 days prior to the election.
  Mr. BENNETT. I stand corrected. It was my understanding that there 
was a prohibition 60 days prior to the election. Can the Senator from 
Kentucky help us out on this?
  Mr. McCONNELL. I say to my friend from Utah, we are looking up the 
language. I say to my friend, unless the Senator from--I thought the 
point of the Snowe-Jeffords language was to make it difficult for----
  The PRESIDING OFFICER. All time has expired. Under the previous 
order, the question is on agreeing to the amendment of the Senator from 
Utah, Senator Bennett.
  Mr. DODD. I ask for the yeas and nays.
  The PRESIDING OFFICER (Mr. Brownback). Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 37, nays 63, as follows:

                      [Rollcall Vote No. 39 Leg.]

                                YEAS--37

     Allard
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Craig
     Crapo
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Gramm
     Grassley
     Gregg
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Lott
     Lugar
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Stevens
     Thomas
     Thurmond
     Voinovich

                                NAYS--63

     Akaka
     Allen
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     DeWine
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Hagel
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Thompson
     Torricelli
     Warner
     Wellstone
     Wyden
  The amendment was rejected.
  Mr. DODD. Mr. President, I move to reconsider the vote.
  Mr. FEINGOLD. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. McCONNELL. Mr. President, let me say briefly that the vote which 
just occurred is instructive in that I would predict that any amendment 
between now and the end of the debate that might have any adverse 
effect of any kind on organized labor is likely to be defeated.
  Senator Bennett can speak for himself, but my understanding of the 
purpose of that amendment was to point out the imbalance between taking 
all non-Federal dollars away from parties at the Federal level--the 
State and local level in the even-numbered years--making the parties 
operate 100 percent in hard dollars, and yet no one else who expressly 
advocates a candidate through a PAC is required to do that.
  We have carved out an exception for corporations and unions so that 
they can continue to use millions of dollars in corporate and union 
soft money to underwrite the expenses of their political action 
committees.
  Having said that, the next amendment will be offered by the Senator 
from Oregon, Mr. Smith, who will be here momentarily. Senator Dodd and 
I would like for that vote to occur at 6:15 or 6:30. We will lock it 
in, in a few moments. It is my understanding that that will be followed 
by an amendment by Senator Torricelli.
  Mr. DODD. The idea would be I think at that point, depending on what 
leadership wants, to lay down the Torricelli amendment. I gather there 
is some event this evening that people believe they are obligated to 
attend. The Torricelli amendment will be laid down, and we will begin 
debate on that in the morning at whatever time the leader wants to come 
in. We might get a time agreement in the morning on that. I have 
several amendments I am lining up for tomorrow afternoon. So we will 
have a clear flow by tomorrow morning as to the amendments we will be 
proposing tomorrow during the day.
  Mr. MURKOWSKI. Mr. President, point of inquiry: Did I understand from 
the floor managers that there would be a vote at 5:30?
  Mr. McCONNELL. No. It is probably at 6:15.
  Mr. MURKOWSKI. Many of us are going to this March of Dimes event 
tonight. I think it starts at 6.
  Mr. McCONNELL. I think many Members are going to that event.
  Mr. DODD. The March of Dimes event I know is very important. Maybe we 
can aim for 6 p.m.
  It will obviously depend on what Senator Gordon Smith wants to do.
  Mr. MURKOWSKI. I certainly concur with that because many of us have 
to cook.
  Mr. DODD. In that case, knowing that my colleague from Alaska may be 
doing the cooking, Members may want to stay until 10 tonight.
  Mr. McCONNELL. After listening to the persuasive speech of the junior 
Senator from Alaska, I ask unanimous consent that a vote occur at 6 
p.m. on or in relation to the Smith amendment shortly to be laid down.
  The PRESIDING OFFICER. Is there objection?
  Mr. FEINGOLD. Reserving the right to object, Mr. President, without 
knowing what the subject matter of the amendment is, I object until we 
are able to determine that.
  Mr. McCONNELL. Senator Smith will be here shortly. Hopefully, we can 
lock in the vote.
  Mr. DODD. In the meantime, Mr. President, if I may, Members who want 
to be heard on the bill itself should take advantage of the time. I 
suspect the Smith amendment will not consume all of the hour and a 
half. We urge Members who want to make statements on the bill to please 
come to the floor.
  I see now our colleague from Oregon is here. While he is getting 
organized, let me in response to my friend from Kentucky regarding the 
last amendment that it was not just about labor unions.
  This last amendment also covered corporations and membership 
organizations, among a few others. The 1974 law made it very specific. 
We said that general treasury funds from those organizations could be 
used to establish, administrate, and solicit contributions to be used 
for political purposes, such as communicating only with their 
restricted class or membership. That makes them distinct and different 
from the other organizations which can communicate with the universe. 
But these organizations can only communicate with their members. For 
that reason, the 1974 law specifically wrote into the law that general 
treasury funds, if you will, could be used for the purposes of 
communication.
  So it was not just about labor unions, it was also about 
corporations, membership organizations and other such entities that are 
confined to communications with their own members.
  Mr. McCAIN. Will the Senator yield?
  Mr. DODD. I am happy to yield.
  Mr. McCAIN. It is my understanding the Senator from Oregon is 
prepared to go forward with his amendment. It is a pretty simple 
amendment. It is a fairly straightforward amendment. I think we could 
get a time agreement, if the Senator from Kentucky is agreeable, say, 
for a vote at 6 o'clock. After that vote we could lay down another 
amendment. So we will be ready to go on that, if that is agreeable.
  Mr. DODD. That is agreeable. Yes.
  Mr. McCONNELL. I believe that is acceptable to the Senator from 
Oregon.
  I, therefore, ask unanimous consent that the time between now and 6 
p.m. be divided in the usual form, and at that time the Senate proceed 
to vote on or in relation to the amendment about to be sent forward by 
the Senator from Oregon, Mr. Smith. 

[[Page 3991]]

  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. McCONNELL. Therefore, the next vote will occur at 6 o'clock.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. SMITH of Oregon addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oregon.


                           Amendment No. 118

  Mr. SMITH of Oregon. Mr. President, I have an amendment that I send 
to the desk and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Oregon [Mr. Smith] proposes an amendment 
     numbered 118.

  Mr. SMITH of Oregon. Mr. President, I ask unanimous consent reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To prohibit candidates and Members of Congress from accepting 
          certain contributions while Congress is in session)

       On page 37, between lines 14 and 15, insert the following:

     SEC. 305. PROHIBITION ON ACCEPTANCE OF CERTAIN CONTRIBUTIONS 
                   WHILE CONGRESS IS IN SESSION.

       Title III of the Federal Election Campaign Act of 1971 (2 
     U.S.C. 431 et seq.) is amended by adding at the end the 
     following:

     ``SEC. 324. PROHIBITION ON ACCEPTANCE OF CERTAIN 
                   CONTRIBUTIONS WHILE CONGRESS IS IN SESSION.

       ``(a) In General.--During the period described in 
     subsection (b), a candidate seeking nomination for election, 
     or election, to the Senate or House of Representatives, any 
     authorized committee of such a candidate, an individual who 
     holds such office, or any political committee directly or 
     indirectly established, financed, maintained, or controlled 
     by such a candidate or individual shall not accept a 
     contribution from--
       ``(1) any individual who, at any time during the period 
     beginning on the first day of the calendar year preceding the 
     contribution and ending on the date of the contribution, was 
     required to be listed as a lobbyist on a registration or 
     other report filed pursuant to the Lobbying Disclosure Act of 
     1995 (2 U.S.C. 1601 et seq.);
       ``(2) an officer, owner, or senior executive of any person 
     that, at any time during the period described in paragraph 
     (1), employed or retained an individual described in 
     paragraph (1), in their capacity as a lobbyist;
       ``(3) a political committee directly or indirectly 
     established, financed, maintained, or controlled by an 
     individual described in paragraph (1) or (2); or
       ``(4) a separate segregated fund (described in section 
     316(b)(2)(C)).
       ``(b) Period Congress is in Session.--The period described 
     in this subsection is the period--
       ``(1) beginning on the first day of any session of the body 
     of Congress in which the individual holds office or for which 
     the candidate seeks nomination for election or election; and
       ``(2) ending on the date on which such session adjourns 
     sine die.''.

  Mr. SMITH of Oregon. Mr. President, this amendment is a very simple 
one but one that I believe will go a long way toward restoring public 
confidence in elected leaders and alleviating the perception that 
politicians are beholden to special interests.
  My amendment simply prohibits Senate and House candidates from 
accepting campaign contributions from lobbyists when Congress is in 
session.
  The amendment is fair and it is balanced. It applies to both 
incumbents and challengers. Since the danger of corruption or the 
appearance of corruption applies with equal force to challengers and 
incumbents, Congress has ample justification for imposing the same 
fundraising constraints on both incumbents and challengers.
  This is not new. This is a law that currently operates in many 
States. In my own State of Oregon, we have long had just such a law on 
the books; one that I was proud to stand squarely behind as a State 
legislator. The Oregon law first enacted in 1974 has been in effect for 
27 years and has been integral to ensuring Oregonians' confidence in 
the integrity of their political system at the State level.
  The core tenet and assumption behind the McCain-Feingold legislation 
is that money in politics corrupts elected officials. Backers of the 
McCain-Feingold bill often use catch words and phrases, such as ``quid 
pro quo,'' to suggest that money can buy not only legislative action 
but legislators themselves.
  This is not my view. It is my belief that the vast majority of the 
men and women with whom I serve in the public process and in this body 
possess the highest degree of professional and personal integrity. 
However, if the public perceives that campaigns are corrupt, that money 
talks, then I think we owe it to the public to allay those concerns.
  Prohibiting contributions from registered lobbyists to candidates and 
Federal officeholders while Congress is in session will go a long way 
toward quelling the perception that we are bought and sold. My 
amendment addresses the public's fears directly by eliminating what 
they view as the disease rather than trying to just treat the symptoms.
  We are not breaking new ground because we will be doing what other 
States have done. Oregon is joined by at least 10 other States with 
laws just like this that prohibit candidates and officeholders from 
soliciting or accepting contributions while their legislatures are in 
session
  In 1999, the U.S. Court of Appeals for the Fourth Circuit, in North 
Carolina Right to Life v. Bartlett, upheld the constitutionality of 
North Carolina's law prohibiting lobbyist contributions and 
solicitations while its general assembly is in session, stating that 
the law ``serves to prevent corruption and the appearance of 
corruption.'' The Fourth Circuit concluded that ``in the end, North 
Carolina law does nothing more than recognize that lobbyists are paid 
to persuade legislators, not to purchase them.'' Last month the Supreme 
Court agreed by denying the petition for review of this very case.
  So I am confident that my amendment will withstand judicial scrutiny. 
My amendment only restricts a candidate or officeholder from accepting 
contributions at a certain time and place, not if they can eventually. 
This is no different than time and place regulation of other first 
amendment issues.
  Furthermore, I think it is important to point out that my amendment 
is narrowly crafted to prohibit candidates and officeholders from 
accepting contributions from lobbyists and the political action 
committees that employ them.
  My amendment does not place the burden on lobbyists offering 
contributions to candidates but, rather, squarely and more fittingly on 
the candidate. The onus, therefore, is on the candidate or 
officeholder, not the lobbyist.
  In closing, let me emphasize that the touchstone issue is the 
appearance of influence pedaling and corruption and the role that money 
plays. If money in the system corrupts, then my amendment lessens its 
role. Diminishing the role of money is also one of the stated goals of 
the McCain-Feingold bill. But unlike the McCain-Feingold bill, my 
amendment does so, I believe, in a constitutional way.
  Again, my amendment merely prohibits House and Senate candidates and 
officeholders from accepting political donations from lobbyists while 
Congress is in session.
  My amendment is evenhanded, it is constitutional, and it addresses 
the perceived problem that politicians can be bought and sold, and my 
amendment does so in a way that does not shut down the entire universe 
of citizen participation in our political process.
  I hope my colleagues will unanimously support my amendment, following 
Oregon's lead, and that of other States, to restore confidence in the 
integrity of our political system.
  Finally, some of my colleagues will worry that this includes the 
public generally. It does not. It involves registered lobbyists, PACs, 
and all special interest groups. A citizen can send in a contribution 
to a candidate. That is fine. But what is disturbing to people is the 
nexus that exists between legislating in the morning and fundraising at 
night with the very same industries. This will prohibit that. We will 
separate these two activities and restore some confidence that people 
are entitled to have in their political process.
  Some people will say this just isn't possible because the Congress is 
always in session. There may be an unintended

[[Page 3992]]

but beneficial consequence. We may have shorter congressional sessions. 
We may get our work done more quickly, and we may be able to thereby 
provide the American people a little less rhetoric, a lot more action, 
a lot more voting, getting their job done and getting home to be with 
the folks and ultimately to meet with these interest groups. If they 
want to support you, fine, but they can't do it while you are about the 
people's business in making law.
  I encourage a unanimous vote, and I ask for the yeas and nays on the 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. McCAIN. Will the Senator yield for a question?
  Mr. SMITH of Oregon. I am happy to yield for a question.
  Mr. McCAIN. Inevitably, I would say to the Senator from Oregon, there 
is going to be a question of constitutionality. It is my understanding, 
from my informed staff, that there was a case in North Carolina that 
was upheld but it has never gone any higher than that.
  Mr. SMITH of Oregon. The Supreme Court, I understand, denied 
certiorari, thereby upholding the fourth circuit decision that allows 
for this kind of prohibition of fundraising from special interest 
groups while the North Carolina legislature is in session.
  Mr. McCAIN. What about the fact that you are clearly saying to an 
individual that because you are in a certain line of work, you are not 
going to be able to do what other citizens do? How do you respond to 
that?
  Mr. SMITH of Oregon. I respond to that by saying that this is not 
unlike other time-and-place regulation of speech issues. People come to 
this building all the time and would love to come in this Chamber and 
protest from the very seats above us. They are not allowed to. They are 
given a place to protest but not to disrupt the public's work.
  What I am saying is, this is a time-and-place regulation of speech. I 
admit that. I am saying it passes the smell test far better than our 
current system.
  Mr. McCAIN. But the Senator does admit that there might be some 
question of the constitutionality of this issue raised.
  Mr. SMITH of Oregon. Clearly, there will be, but ultimately the issue 
of constitutionality is for the Court across the street to decide. It 
does not prohibit them from making a contribution later. It just says 
there is a time to do it and there is a time not to do it.
  I think what disturbs all of us is the notion of holding a hearing on 
an industry in the morning and then going to their fundraiser in the 
evening. That is the nexus that is wrong. That is what, I agree with 
the Senator from Arizona, we ought to do away with. This works in my 
State. It works in your State also. Arizona is one of those States that 
has this restriction. It works. It smells better. It doesn't violate 
constitutional rights, but it does vest us with more of a process of 
integrity.
  Mr. McCAIN. Clearly, Arizona has the finest State government of any 
of the 50, I am sure the Senator from Oregon would agree.
  Again, I ask the Senator from Oregon: There is going to be some 
question in people's minds about the constitutionality of this 
amendment; you would agree?
  Mr. SMITH of Oregon. Absolutely.
  Mr. McCAIN. Therefore, it would seem to me that the Senator from 
Oregon would understand that the whole issue of severability in this 
bill would then take on increased prominence. It is my understanding 
that the Senator from Oregon may be in support of nonseverability. I 
don't get the logic there. You are clearly supporting an amendment that 
has constitutional questions associated with it, and yet at the same 
time you would not understand that this bill may have portions of it, 
particularly during the amending process, that the U.S. Supreme Court 
would deem unconstitutional, including this one which, even if made 
unconstitutional, would not affect the thrust of the bill.
  I am hopeful that the Senator from Oregon will see the logic here--I 
am dead serious--because it is going to be a big issue, the fact that 
there should be, as there have been in all but 12 bills passed by the 
Congress in the last 10 years, a severability clause in this 
legislation.
  I would give a lot more credibility to the amendment of the Senator 
from Oregon if he believed, as he has stated, that there will be 
constitutional questions, that this bill should not rise or fall based 
on a decision concerning what a lobbyist does because there are much 
greater issues at stake. I certainly hope the Senator from Oregon 
understands my logic in that argument.


  Mr. SMITH of Oregon. I do understand that logic. I would be happy to 
include this in any nonseverability amendment that I would propose. As 
a practical matter, as the Senator knows--and I have said this to him 
and Senator Feingold--I have legitimate questions as to the 
constitutionality of McCain-Feingold. I am not a judge. We get really 
angry at judges who act as legislators. We are often acting as a bunch 
of judges. We have a responsibility to uphold the Constitution. It is 
their responsibility to interpret it.
  I don't know how all this will cut. My concern about the severability 
clause or a nonseverability clause, which I will be happy to include 
this in, is that we will leave our country worse off rather than better 
off if we say to the political parties: You can't have a role any 
longer in elections, but the folks who will go into the smoke-filled 
rooms, who are not disclosable to the American people or accountable to 
the American people, will then be the ones who have the power because 
they will run campaigns about candidates.
  Frankly, I have seen this happen with a campaign finance issue in 
Oregon. It was not pretty. It was an ugly situation because the citizen 
and the candidate were disenfranchised by it and were the victims, 
along with democracy in Oregon, because of a system that would empower 
those who are nondisclosable and unaccountable to the American people. 
They get all the power.
  That is my concern, Senator. That is why I have believed a 
nonseverability clause is important in order that we not leave our 
country worse off.
  With that, I am telling you and the whole world, I am prepared to 
vote for your bill, but I think that that is an essential ingredient, 
as I have told you privately. I really believe without it we will leave 
our country worse off based on the experience of my State of Oregon.
  Mr. McCAIN. If the Senator will agree to one more question, I want to 
get back on the bill. First, I hope we will be able to convince the 
Senator from Oregon that any provision in this bill, if passed, would 
make us better off than we are today--any provision, including the 
Senator's. Any part of it that would stand would improve the present 
situation where, indeed, the case exists, and you have heard my 
argument about that before.
  The amendment talks about registered lobbyists, but does it also add 
people who are in charge of political action committees and run PACs? 
Are there additional individuals covered by this amendment?
  Mr. SMITH of Oregon. It does not.
  Mr. McCAIN. It is simply people who are registered lobbyists, who 
have voluntarily decided to register as a lobbyist under the law.
  Mr. SMITH of Oregon. That is correct.
  Mr. McCAIN. I thank the Senator from Oregon. I have enjoyed this 
chance to pose questions to him. I appreciate the courtesy of his 
response and look forward to working with him on this legislation.
  Mr. SMITH of Oregon. I thank the Senator also.
  Mr. FEINGOLD. Will the Senator yield for a question?
  Mr. SMITH of Oregon. I am happy to yield to the Senator from 
Wisconsin.
  Mr. FEINGOLD. First of all, I appreciate the spirit of the amendment. 
Our two States, Oregon and Wisconsin, are

[[Page 3993]]

very similar in our pride and our reform history. Obviously, this 
amendment is offered in that spirit. I appreciate that.
  My questions are similar to those of the Senator from Arizona, but I 
believe the Senator from Oregon indicated he would consider a 
severability provision with regard to this amendment.
  Mr. SMITH of Oregon. I have so much confidence in its 
constitutionality based on its judicial history already, I would be 
happy to include it in a severability clause because I think everything 
we are doing here has a reasonable constitutional question. We ought to 
ask the Supreme Court to rule on it. This could be among them in terms 
of any nonseverability, as far as I am concerned.
  Mr. FEINGOLD. I was interested in the Senator's remark that we 
shouldn't act as judges here; we should act as legislators. I agree. I 
ask the Senator if he is aware of how infrequently legislatures, in 
particular the U.S. Congress, have actually had a nonseverability 
provision. Does the Senator realize that it is incredibly rare, 
something that is rather unlikely for legislators to do?
  Mr. SMITH of Oregon. I am aware of that, but I think what we are 
debating here is of so fundamental a nature to our liberty--that is, 
our speech; our most important speech being our political speech--that 
I have no doubt this would make it to the U.S. Supreme Court because 
this would fundamentally affect the future of our country.
  Mr. FEINGOLD. One other question: Is the Senator completely opposed 
to the notion of having the entire bill be severable?
  Mr. SMITH of Oregon. I am prepared to include the soft money ban to 
the regulation of the outside groups. And if we want to include this as 
well, I am comfortable with that.
  Mr. FEINGOLD. The reason I am asking this question--the spirit of 
this amendment is very positive, as I have indicated. But what I am 
trying to determine is whether we would have a fair chance to send a 
bill over to the Supreme Court where, if for any reason you were right 
about the constitutionality about this, the rest of the bill could 
still stand. Is that something the Senator is open to?
  Mr. SMITH of Oregon. I am open to discussing it with the Senators.
  Mr. FEINGOLD. One other question. I want to follow up on the scope of 
this amendment. I have the amendment in front of me. Under section 324, 
there are several different paragraphs relating to who is covered. It 
refers to ``any individual who, at any time during the period beginning 
on the first day of the calendar year preceding the contribution and 
ending on the date of the contribution, was required to be listed as a 
lobbyist. . . .''
  Under section (2), it refers to ``an officer, owner, or senior 
executive of any person that, at any time during the period described 
in paragraph (1). . .'' is a lobbyist.
  And then in (3), it says, ``a political committee directly or 
indirectly established, financed, maintained, or controlled by an 
individual . . .''
  And finally, (4), a separate segregated fund.
  I ask the Senator how he can say it only refers to registered 
lobbyists when it has three other categories of people listed in the 
face of the amendment.
  Mr. SMITH of Oregon. This is referring to a registered lobbyist or 
those who employ them.
  Mr. FEINGOLD. What about a political committee?
  Mr. SMITH of Oregon. If they employ them, they are covered by this 
amendment.
  Mr. McCAIN. If the Senator will yield for a question, it counts not 
only registered lobbyists, but it is a person who employs that lobbyist 
as well. In other words, I am the CEO of a company back in Arizona, or 
I am a president of a union back in Arizona, and I am not allowed to 
contribute while Congress is in session because I have employed that 
lobbyist?
  Mr. SMITH of Oregon. Under that guide, that is correct. However, if 
you sent that person a solicitation in the mail asking for a maximum 
hard money contribution as a private citizen, they would be allowed to 
make that contribution. But what I am trying to do is stop us spending 
time, while we are lawmaking, down at the RSCC and the DSCC, spending 
hundreds, even thousands, of hours raising money.
  Mr. McCAIN. Well, if the Senator will yield further, I agree with 
what he is trying to get at. I think that, frankly, also during the 
campaign of President Bush, this was part of his campaign finance 
reform proposal, as I remember. But I think we have to worry about this 
language because if I am the senior executive of a company or 
corporation away from Washington that employs a lobbyist, and I am not 
allowed to contribute at that time, that could be a very large number 
of people. I wonder if we can work on language with the Senator from 
Oregon to achieve this goal, without throwing a pretty wide net here. 
If I am thinking through this legislation, which I am looking at for 
the first time----
  Mr. SMITH of Oregon. I am happy to work with the Senator on an 
amendment to this amendment. I am not locked down. It is offered in the 
spirit of my experience as an Oregonian. I believe Wisconsin and 
Arizona have similar laws. It works. It will be more difficult for 
Congress, but it ought to be done in Congress.
  Mr. FEINGOLD. If the Senator will yield for a further question, I 
will tell you one thing: This certainly will shorten legislative 
sessions, which is a wonderful aspect, as the Senator from Nevada 
pointed out. Under sub (4), it refers to a separate segregated fund. I 
am advised that this basically would include political action 
committees.
  Mr. SMITH of Oregon. That is correct.
  Mr. FEINGOLD. Is it the Senator's intention to prohibit the lobbyist 
from giving individual contributions, but also PACs during this period?
  Mr. SMITH of Oregon. That is correct, during a legislative session. 
When we gavel the session in, you can't do it until you gavel sine die. 
If the world of special interests wants to evaluate what they think of 
your performance and help you in your election, fine. We are 
segregating the function of lawmaking and moneymaking. I think that 
goes a long way to fixing what you think and feel, rightfully, is 
broken in this country.
  Mr. FEINGOLD. Does the Senator believe it could be unconstitutional 
to prohibit PAC contributions?
  Mr. SMITH of Oregon. I don't believe so. It doesn't prohibit them. It 
regulates them in terms of time and place.
  Mr. FEINGOLD. I suggest that the effect of this is to 
unconstitutionally prohibit PAC contributions, and I would be concerned 
about that.
  Mr. McCAIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The Senator from Oregon has the floor.
  Mr. REID. Will the Senator yield for a question?
  Mr. SMITH of Oregon. Yes.
  Mr. REID. There is nobody in this body for whom I have more respect. 
Would this amendment not give a tremendous advantage to wealthy people 
who are members of the national legislature?
  Mr. SMITH of Oregon. I don't believe it would. They can give a hard 
money contribution of $1,000 per campaign.
  Mr. REID. No. What I am saying is, if you are a Member of Congress, 
would you not have an advantage over everyone else if you were rich 
because it would limit so much of the time for people to do the 
fundraising?
  Mr. SMITH of Oregon. There is no question but that this amendment 
will do more to drive money out of politics than anything that has been 
proposed yet. There is no question about that. But we have just passed 
an amendment that doesn't give a perfect playing field to the 
challenger against the multimillionaire, but it gives them a better 
playing field than we have had before.
  Mr. REID. My friend has not answered the question. Would this not 
give an advantage to a Member of Congress who is rich, because during 
the period of time that Congress is in session, basically, there would 
be a tremendous inability to raise money, whereas if somebody finances 
their own campaign, it doesn't matter to them?
  Mr. SMITH of Oregon. I would concede the point. But I would simply 
say

[[Page 3994]]

that what this does is prohibit the challenger or the Member of 
Congress from being involved in this. I think it is a heavy 
restriction, but I think it is the right restriction, and I think if we 
can go to this kind of a standard, it is going to look better to the 
American people and, frankly, it is going to drive a lot of money out 
of politics and clean up our day by making us spend time lawmaking 
instead of fundraising. And at the end of the day, if somebody wants to 
spend their own money, they are going to have to comply with the law or 
the amendment we just passed, and it will equalize it somewhat.
  Mr. REID. One more question. While the Senator's amendment bans 
contributions during the time we have talked about, it doesn't ban 
solicitations during that time; is that right?
  Mr. SMITH of Oregon. It does.
  Mr. REID. It does ban solicitations?
  Mr. SMITH of Oregon. It bans accepting them.
  Mr. REID. It would not ban solicitations. You could go to the NRA, or 
whoever gives money, and you could ask them for money at that time, and 
they would have to give it to you at a subsequent time when we were out 
of session?
  Mr. SMITH of Oregon. It doesn't prohibit that. I don't know how to 
prohibit that constitutionally, but I do know how to constitutionally 
prohibit the time and place in which these activities are engaged. But 
the Senator, in his earlier point, said: What does this mean to a 
Member of Congress? You don't have to be a millionaire to have an 
advantage by being a Member of Congress. You probably have a large 
campaign war chest already carried over from your last campaign, if you 
are a safe incumbent. So these are just the facts of life. I don't know 
how I can make it perfect, but I know this amendment makes it better.
  Mr. THOMPSON. If the Senator will yield, the Senator is doing an 
excellent job taking on these questions from all corners. But it is a 
very interesting amendment. I think my own State of Tennessee has a 
similar amendment. I think what happens is anybody comes to town a 
couple days sooner to collect the money.
  Other than that, my concern, as we consider these amendments, has to 
do with constitutionality issues. I want to make a couple comments and 
then ask a question. Obviously, none of us is going to be able to tell 
what is constitutional or not. But if we have a nonseverability 
clause--and we don't know whether or not we will--after we have a vote, 
any amendments that turn out to be not constitutional bring the whole 
bill down. Some people think that is good. I think we will wind up with 
a hard money increase, which I think is good, and doing something about 
soft money, which I think is good. So I think that would be a bad 
result if that happened.
  Personally, I think this so-called millionaire amendment we just 
passed is of very doubtful constitutionality. That is the reason I 
voted against it. I don't see how you make the kinds of distinctions 
that that amendment made when you have free speech protection with 
regard to his spending his own money, how you then favor one over the 
other, and what you do about the person who wants to make a 
contribution, and he can give up to, say, $5,000 to candidate X, but to 
candidate Y he can only give $1,000.
  We already have an amendment that has been adopted with questions 
about its constitutionality.
  With regard to your amendment, my question is this: Will the issue 
not be resolved on the basis of whether or not there is a compelling 
State interest? It seems to me that is the question, and if that is the 
question, if that is the issue, then I look at it to see whether or not 
what we are doing is of sufficient compelling State interest to 
overcome the first amendment problems.
  Obviously, we are impinging on the first amendment. The Supreme Court 
has said in some cases we can impinge on the first amendment. That is 
what we are doing when we put hard money limits on people. We impinge 
on the first amendment, but the Supreme Court says there is a 
compelling interest to doing that, and that is the appearance of 
corruption.
  The question is, it seems to me, are we doing enough? Is there 
sufficient, compelling State interest for us to do this? Is it really 
helping the system that much in this time-place-manner amendment in 
order to impinge on the admitted free speech rights of a potential 
contributor?
  I take it the Senator thinks we would be doing enough to help the 
system, to help the Nation by placing these kinds of limitations on 
people to overcome an impingement on their first amendment rights. Does 
my colleague agree that is the issue with which we are dealing?
  Mr. SMITH of Oregon. I agree with the Senator. Let me read the exact 
wording of the Fourth Circuit's response to that very question.
  A unanimous Fourth Circuit found the restriction was narrowly 
tailored and served the compelling interest.

       The restrictions are limited to lobbyists and the political 
     committees that employ them, the two most ubiquitous and 
     powerful players in the political arena.

  They found the restrictions cover only that period during which the 
risk of an actual quid pro quo or the appearance of one runs the 
highest risk.
  Again, it is a time-and-place regulation. I suspect people in North 
Carolina, just as the people of Oregon, have a lot more confidence in 
hearings going on in the morning and know there is not a fundraiser 
going on in the evening.
  Mr. THOMPSON. I say to my colleague, that does carry a certain amount 
of logic to it, but we all know that some of these bills carry on for a 
long period of time, and these big issues where people are greatly 
interested and their businesses are greatly affected sometimes go on 
for a period of years and we have fundraisers interspersed with them.
  I do not know that I agree the greatest danger has to do with the 
time proximity of the contribution, but I ask my friend if the rest of 
his bill tracks what they were doing in that Fourth Circuit situation 
in terms of the people involved, in terms of the places limited, in 
terms of the time restriction?
  Mr. SMITH of Oregon. We have tailored this amendment after the North 
Carolina one in order to make sure it passes judicial muster. I believe 
it does. I am willing to put it as part of a nonseverability clause.
  I say to the Senator, my concern about the absence of nonseverability 
is not to every component of this bill. It is the banning of soft 
money, whereas I would limit it, as the Hagel proposal. It is the 
banning of soft money if you do not also include these outside groups.
  The Senator knows firsthand, I am sure, as a Republican, when it 
comes time that you are under attack, you have some very powerful and 
effective groups against you. You have the Sierra Club; you have the 
trial lawyers; you have labor unions, and on and on. They are very good 
at what they do. They hit and they run and are accountable to no one. 
They do not even have to tell the truth. But the only rescue for a 
Republican is the Republican Senate Campaign Committee.
  Just in fairness, if you are going to empower such groups, if you are 
not going to include them, then, frankly, I think we do great damage. 
To Democrats who may say this is to our advantage, let me say what will 
happen.
  The day this is enacted and soft money is banned and held 
constitutional, every Republican dollar flowing to that Senate 
committee is going to find its way immediately into a Republican Sierra 
Club, and all of this will not be disclosable, it will not be 
accountable, and we will have dumbed down America's democracy.
  That is the point I am trying to make. That is why those two 
components, soft money versus regulating outside groups, have to be 
tied together if we are to make our country better instead of worse.
  Mr. REID. Will the Senator yield for a question?
  Mr. SMITH of Oregon. I will be happy to yield.
  Mr. REID. The Senator said there would not be fundraisers held. There 
would be nothing wrong. You could have fundraisers and solicit the 
money. You just could not collect it; is that right?

[[Page 3995]]


  Mr. SMITH of Oregon. If you wanted to tighten up the bill even more 
on that account, I would be happy with an amendment you might offer to 
that effect. I am trying to go as far as I can constitutionally and say 
there can be no exchange of cash when you are in a legislative session 
because it does not look good. It does not smell good. We ought to 
change it, and a lot of States are cleaning up their State governments 
with this very kind of law. We should do no less in this Congress.
  Mr. REID. I appreciate the point. I wanted to make sure the record 
reflected, in response to a question from the Senator from Tennessee, 
that there would not be any fundraisers. There may not be as many, but 
certainly you could have as many fundraisers as you wanted and solicit 
the money at the fundraisers. You just could not collect the money that 
night or that day.
  Mr. SMITH of Oregon. I guess my question is, Would the Senator like 
to amend the amendment to include the prohibition of these kinds of 
solicitations?
  Mr. REID. Of course, we cannot amend anything the way the unanimous 
consent agreement is in place. I think the Senator from Arizona wishes 
to discuss possible amendments with the Senator, and that would be 
something.
  Mr. SMITH of Oregon. Would it be appropriate to call for a quorum 
call to work it out?
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bennett). Without objection, it is so 
ordered.
  Mr. McCAIN. Mr. President, I realize there is a time constraint here 
because, under the UC, we have a vote at 6 o'clock. We have been trying 
to work out an agreement on this amendment. We have been unable to do 
so. We will go ahead and have the vote at 6. I will make a tabling 
motion, but I am committed to working with Senator Smith to see if 
there is a way that we can work it out to his and everyone's 
satisfaction. It is overly broad in its language at this time, but we 
have not been able to reach a conclusion.
  I regret that because I agree with Senator Smith's intent, and I 
think he is trying to do something that would cure a very bad 
perception that persists in Washington.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is out of time.
  Mr. DODD. Mr. President, how much time do I have?
  The PRESIDING OFFICER. The Senator from Connecticut controls the 
remainder of the time, 16 minutes 40 seconds.
  Mr. DODD. I am glad to yield to my colleague for a couple minutes.
  Mr. SMITH of Oregon. That would be all I would need.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH of Oregon. I thank Senator Dodd. I know this is not easy. I 
know Congress meets for a long time. I know State legislatures are 
different just in terms of time. In every other respect, this law is as 
valid here as it is other places, in my view. If we are worried about 
appearance, if we want to move soft money, if we want to move money out 
of politics, nothing will do that better than this amendment. Nothing 
will shorten congressional sessions more than this amendment.
  In my opinion, we ought to vote on it. We ought to pass it. I will 
pledge my best efforts to work with Senator McCain to get it in a shape 
that wins his support as well. It is consistent with the spirit of 
McCain-Feingold.
  I thank my colleague for the time.
  Mr. DODD. Mr. President, I am happy to yield 4 minutes to my 
colleague from Tennessee.
  Mr. THOMPSON. I thank the Senator.
  Mr. President, following up on my earlier comments, I am concerned 
about this amendment because I fear it may very well be 
unconstitutional. If one of these amendments is unconstitutional and 
the reform side does not win on the severability issue, the whole thing 
falls. Obviously, the question of constitutionality is always 
important, but it is even more important now.
  My concern is this: We have to clearly have a compelling governmental 
interest to override the first amendment rights of people to give money 
to candidates. They clearly have that right here. We are clearly 
overriding it. The question is whether or not there is a sufficient 
governmental interest.
  The case that was cited from the Fourth Circuit--and that case was in 
North Carolina--pointed out that it only covered a narrow area and that 
the Legislature of North Carolina only met for a few months out of the 
year.
  This body sometimes meets the entire year. There is no way a person 
could raise any money at any time during the year under those 
circumstances. Clearly, the Fourth Circuit is not authority for the 
constitutionality of this bill. It might be wrong. The Fourth Circuit 
might be incorrect in its analysis that it should be narrowly tailored. 
But that causes me a great deal of concern and difficulty. As well 
meaning as this amendment is, and in many ways as much as I would like 
to see it, it causes me great concern to vote for an amendment with 
what I believe raises pretty serious constitutionality questions.
  Mr. DODD. Mr. President, I yield 5 minutes to my colleague from 
Wisconsin.
  Mr. FEINGOLD. Mr. President, it is not pleasant to oppose this 
amendment. The Senator from Oregon is a wonderful Senator. We have 
worked together on a lot of issues, in the Foreign Relations Committee, 
the Budget Committee, and the like. We do share a great progressive 
tradition in our two States of Wisconsin and Oregon. That is the spirit 
of this amendment.
  I have to agree with the distinguished Senator from Tennessee. This 
does raise some real questions because it doesn't apply to State 
legislatures. It applies to this Congress. It may make sense for State 
legislatures that convene for a few months every year, but it doesn't 
make sense for this Congress. In the year 2000, this Congress went into 
session in January and, as we painfully remember, did not adjourn until 
December. There was even a possibility that we were going to go up to 
New Year's Eve. So it is not realistic to have this kind of limitation 
that we have in States such as Wisconsin and Oregon at the Federal 
level.
  The cost of campaigns is regrettably high. Obviously, future reforms 
should address this problem. As has been said by other speakers, this 
amendment is overly broad in its attempt to prohibit congressional 
candidates from accepting contributions while the Congress is in 
session from all the following individuals or entities. It is not just 
registered lobbyists, as some thought when the amendment was first 
described. It is much more than that. It is registered lobbyists that 
are affected, PACs, senior executives, officers, or owners of any 
organization that employed or retained a registered lobbyist during a 
calendar year preceding the contribution.
  It would prohibit not just contributions from lobbyists but, as the 
Senator from Arizona has pointed out, contributions from executives of 
any company that employs a lobbyist--the executives of General Motors, 
of Federal Express, and every other company. It would prohibit all 
union and corporate PACs from contributing basically almost all year-
round because, as I pointed out, we are in session so much of the year.
  I am afraid this amendment also gives a huge advantage to wealthy 
incumbents or any incumbents who have a substantial war chest. Under 
the Smith amendment, while challengers are unable to raise funds from 
those listed above throughout this very extensive time period in a 
year, the incumbents who have a lot of resources would be able to rely 
on their existing war chests or personal wealth. That concerns me as 
well.
  Finally, as the Senator from Tennessee has focused on, there is a 
serious question of the constitutionality of this amendment. This is 
one of the reasons I asked the Senator from Oregon at the beginning 
about whether this affected PACs. He conceded that banning

[[Page 3996]]

PAC contributions does raise constitutional questions. It calls into 
question the whole bill.
  Of course, if the Senator from Oregon, as we proceed with this bill, 
is willing to work with us on making sure this entire bill is severable 
so that each provision can stand on its own and the Court can determine 
each one, that could be a different story with regard to that argument, 
but that is the kind of discussion we need to have.
  I want him to know I am eager to have those discussions. I appreciate 
his attitude toward reform, and I hope that in the end perhaps we can 
work something out relating to this, but even more importantly, he can 
be part of our efforts. In light of these concerns, I will urge that 
all those supporting the McCain-Feingold bill should oppose the Smith 
amendment.
  Mr. DODD. Mr. President, I don't know if others want to be heard on 
this. If my colleague would like to rebut, I will be willing to yield 
some time to him.
  Mr. SMITH of Oregon. I thank the Senator from Connecticut. I recommit 
to work with Senator McCain and Senator Feingold and see if we can 
narrow this down. We worked on this a long time. It is hard to do. We 
are intruding upon speech, there is no question about it. The question 
is whether this is a permissible time-and-place regulation and is there 
a legitimate State interest. Absolutely, because you are separating the 
fundraising from lawmaking. That not only will drive money out of 
politics, it will help us to focus more on lawmaking and less on 
fundraising.
  There is a time and a season for everything. That season is after we 
do our business. Everybody can have their say and make their 
contribution. You just can't do it when we are doing the people's 
business.
  Mr. DODD. Mr. President, if I may, I will take a couple minutes to 
conclude. I have great respect for my friend from Oregon. We serve on 
committees together, and I enjoy working with him on numerous issues. 
There has been a lot described as to why the amendment is troublesome. 
There is one element not included in the language that I find 
appealing, and the public might be attracted to the fact that this may 
have the net effect of abbreviating sessions of Congress. That may have 
some appeal to a certain number of Americans. If you can only fundraise 
when Congress is not in session, we might be through with business in 
April or May. Seriously--I am not being facetious in those comments--
this is a provision that concerned me a little bit. It goes back to the 
debate we had earlier in the day about the nonincumbent. I understand 
the effort may be to modify this amendment and bring it back at a later 
time as a modified amendment. But it also affects the nonincumbent.
  As I understand the last provision of the bill, ``beginning on the 
first day of any session of the body of Congress to which the 
individual holds office, or for which the candidate seeks nomination 
for election or election,'' and it could be, of course, that someone in 
a larger State would begin to challenge one of us as incumbents 2 or 3 
years out, which is not uncommon today in larger States, and if we are 
in session in those years, obviously, a challenger who wants to be 
heard, where you have a State such as California, or Texas, or 
Illinois, or New York, you may want to begin that process earlier and 
they would be restrained from raising any money if this amendment were 
adopted as presently crafted.
  So I, too, respect immensely my colleague's motivations. We talked 
over the last 2 days about the fact that under present circumstances in 
an average Senate race of $6 or $7 million--that is what an individual 
has to raise in a contested race--a Member would literally have to 
raise thousands of dollars every day, 7 days a week, 52 weeks a year, 
for the entire 6-year term. Somebody pointed out that in the State of 
California that number is more like $10,000 a day every day when you 
start talking about $20 million or $30 million. Obviously, for any 
Member of this body who is raising $10,000 a day every day for 6 years, 
there is a portion of your responsibilities, to put it mildly, as a 
Member of this body that is suffering.
  It goes to the very heart of what Senators McCain and Feingold are 
trying to achieve in this legislation. I don't subscribe to the notion 
that it is an inevitability that campaigns should increase in cost 
exponentially as they have been. I think you can put on the brakes. And 
what Senators McCain and Feingold are doing is trying to put the brakes 
on a bit in the area of soft money. Our colleague from Oregon is also 
trying to put on some brakes, and I respect that.
  For the reasons articulated by Senators McCain, Feingold, Thompson of 
Tennessee, and others, I reluctantly oppose this amendment, and I will 
look for an opportunity when a modified version may come back. I thank 
our colleague for raising the subject matter. I urge rejection of the 
amendment.
  I don't know if any more time is being sought. We can yield back the 
time left. I think our colleague from Arizona may want to make an 
appropriate motion. We are prepared to yield back time on our side.
  Mr. McCAIN. Would the Senator yield me 1 minute?
  Mr. DODD. I am happy to yield.
  Mr. McCAIN. I say to Senator Gordon Smith what I said to him before. 
We have our staffs working. I believe I will be able to table this 
amendment, but if not, he wins. If it is tabled, we want to work 
together with him. It is the unseemly appearances the American people 
don't like. We ought to try to fix it. I think there should be both 
time and effort in the consideration of this legislation to narrow this 
amendment so it does meet constitutional concerns expressed by Senator 
Thompson and others.
  I thank Senator Smith not only for his involvement in this issue but 
in the entire issue of campaign finance reform. I know he comes from a 
State where there is a lot of interest in this issue, as there is in 
mine--the ``clean campaign'' State referendum. I think he is 
representing his constituents when he is heavily involved in this 
issue. I look forward to working with him not only on this one, but as 
we approach some of the more important issues in the coming days. I 
thank him for his efforts.
  Mr. President, if it is an appropriate time, I move to table the 
Smith amendment, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion to table the amendment.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from South Dakota (Mr. Daschle) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 74, nays 25, as follows:

                      [Rollcall Vote No. 40 Leg.]

                                YEAS--74

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Conrad
     Corzine
     Craig
     Crapo
     Dayton
     DeWine
     Dodd
     Dorgan
     Durbin
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Hagel
     Harkin
     Hatch
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Sarbanes
     Schumer
     Shelby
     Specter
     Stabenow
     Thomas
     Thompson
     Torricelli
     Voinovich
     Wellstone

                                NAYS--25

     Brownback
     Bunning
     Burns
     Campbell
     Collins
     Domenici
     Edwards
     Ensign
     Gregg
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Lugar
     McConnell
     Murkowski
     Santorum
     Sessions
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thurmond
     Warner
     Wyden

[[Page 3997]]



                             NOT VOTING--1

       
     Daschle
       
  The motion was agreed to.
  Mr. SMITH of Oregon. I move to reconsider the vote and I move to lay 
that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER (Mr. Voinovich). The Senator from Connecticut.
  Mr. DODD. Mr. President, as I understand it now there will be no more 
votes today. The intention is to lay down an amendment to be offered by 
my colleague from New Jersey, and that debate tomorrow will begin at 
whatever time the majority leader brings us into session. Hopefully, we 
might even complete the debate in less than 3 hours.
  I ask my colleague from New Jersey if that were possible. In which 
case, the very latest would be somewhere around 12:30, if we follow 
today's pattern at all. After that, I understand our colleague from 
Mississippi has an amendment, and after that I think Senator Kerry of 
Massachusetts has an amendment, as do Senator Wyden and Senator 
Wellstone. We have not worked that out yet, but it will be one of those 
three amendments to be offered.
  Mr. McCONNELL. I say to my friend from Connecticut, since Senator 
Cochran is aligned with your side on this issue, we may want to talk 
about who comes after Senator Torricelli.
  Mr. DODD. OK.
  Mr. McCONNELL. We will discuss that and get the lineup set.
  I have been told the majority leader would like us to come in at 
9:30, so we can anticipate a vote on the Torricelli amendment at 12:30 
or before, depending on what time is yielded back.
  Mr. DODD. I yield whatever time the Senator from New Jersey would 
care to take for the purpose of introducing his amendment.
  The PRESIDING OFFICER. The Senator from New Jersey.


                           Amendment No. 122

  Mr. TORRICELLI. Mr. President, I have an amendment at the desk. I ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Jersey [Mr. Torricelli] for himself, 
     Mr. Durbin, Mr. Corzine, and Mr. Dorgan, proposes an 
     amendment numbered 122.

  Mr. TORRICELLI. I ask unanimous consent the reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To amend the Communications Act of 1934 to require television 
  broadcast stations, and providers of cable or satellite television 
service, to provide lowest unit rate to committees of political parties 
                purchasing time on behalf of candidates)

       On page 37, between lines 14 and 15, insert the following:

     SEC. 305. TELEVISION MEDIA RATES.

       (a) Lowest Unit Charge.--Subsection (b) of section 315 of 
     the Communications Act of 1934 (47 U.S.C. 315) is amended--
       (1) by striking ``(b) The charges'' and inserting the 
     following:
       ``(b) Charges.--
       ``(1) In general.--Except as provided in paragraph (2), the 
     charges'';
       (2) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B), respectively; and
       (3) by adding at the end the following:
       ``(2) Television.--The charges made for the use of any 
     television broadcast station, or a provider of cable or 
     satellite television service, by any person who is a legally 
     qualified candidate for any public office in connection with 
     the campaign of such candidate for nomination for election, 
     or election, to such office shall not exceed the lowest 
     charge of the station (at any time during the 365-day period 
     preceding the date of the use) for the same amount of time 
     for the same period.''.
       (b) Rate Available for National Parties.--Section 315(b)(2) 
     of such Act (47 U.S.C. 315(b)(2)), as added by subsection 
     (a), is amended by inserting ``, or by a national committee 
     of a political party on behalf of such candidate in 
     connection with such campaign,'' after ``such office''.
       (c) Preemption.--Section 315 of such Act (47 U.S.C. 315) is 
     amended--
       (1) by redesignating subsections (c) and (d) as subsections 
     (f) and (g), respectively; and
       (2) by inserting after subsection (c) the following new 
     subsection:
       ``(d) Preemption.--
       ``(1) In general.--Except as provided in paragraph (2), a 
     licensee shall not preempt the use of a television broadcast 
     station, or a provider of cable or satellite television 
     service, by an eligible candidate or political committee of a 
     political party who has purchased and paid for such use 
     pursuant to subsection (b)(2).
       ``(2) Circumstances beyond control of licensee.--If a 
     program to be broadcast by a television broadcast station, or 
     a provider of cable or satellite television service, is 
     preempted because of circumstances beyond the control of the 
     station, any candidate or party advertising spot scheduled to 
     be broadcast during that program may also be preempted.''.
       (d) Random Audits.--Section 315 of such Act (47 U.S.C. 
     315), as amended by subsection (d), is amended by inserting 
     after subsection (d) the following new subsection:
       ``(e) Random Audits.--
       ``(1) In general.--During the 45-day period preceding a 
     primary election and the 60-day period preceding a general 
     election, the Commission shall conduct random audits of 
     designated market areas to ensure that each television 
     broadcast station, and provider of cable or satellite 
     television service, in those markets is allocating television 
     broadcast advertising time in accordance with this section 
     and section 312.
       ``(2) Markets.--The random audits conducted under paragraph 
     (1) shall cover the following markets:
       ``(A) At least 6 of the top 50 largest designated market 
     areas (as defined in section 122(j)(2)(C) of title 17, United 
     States Code).
       ``(B) At least 3 of the 51-100 largest designated market 
     areas (as so defined).
       ``(C) At least 3 of the 101-150 largest designated market 
     areas (as so defined).
       ``(D) At least 3 of the 151-210 largest designated market 
     areas (as so defined).
       ``(3) Broadcast stations.--Each random audit shall include 
     each of the 3 largest television broadcast networks, 1 
     independent network, and 1 cable network.''.
       (e) Definition of Broadcasting Station.--Subsection (f) of 
     section 315 of such Act (47 U.S.C. 315(f)), as redesignated 
     by subsection (c)(1) of this section, is amended by inserting 
     ``, a television broadcast station, and a provider of cable 
     or satellite television service'' before the semicolon.
       (f) Stylistic Amendments.--Section 315 of such Act (47 
     U.S.C. 315) is amended--
       (1) in subsection (a), by inserting ``In General.--'' 
     before ``If any'';
       (2) in subsection (f), as redesignated by subsection (c)(1) 
     of this section, by inserting ``Definitions.--'' before ``For 
     purposes''; and
       (3) in subsection (g), as so redesignated, by inserting 
     ``Regulations.--'' before ``The Commission''.

  Mr. TORRICELLI. Mr. President, tomorrow I will join my colleagues, 
Senators Durbin, Corzine and Dorgan, to support an amendment designed 
to reduce broadcast rates for political candidates and parties. This 
will be discussed at length tomorrow. For this evening's purposes, it 
is probably best to introduce the amendment with the words of David 
Broder today in the Washington Post who writes the current campaign 
finance debate:

       . . .focuses too much on the people who write the checks. 
     It's time to question, as well, where the money goes.

  There remains no greater factor in the astronomical expense in 
political campaigns than the rising cost of televised political 
advertising. Nearly $1 billion was spent on political advertising in 
the 2000 Federal campaign, a 76 percent increase since 1996. As demand 
for advertising time rose, advertising rates have risen as well.
  In Philadelphia and in New York City, the cost of some political ads 
increased 50 percent between Labor Day and Election Day. Political 
candidates were held hostage by the calendar and the television 
networks took full advantage. By law, candidates are supposed to pay 
the lowest unit rate for a station's most favored commercial 
advertisers.
  That is the law.
  The problem is that to ensure their advertisements do not get 
displaced, candidates often end up paying the highest rates available.
  This Congress had an intent, and it wrote a law that Members of the 
Congress have available the lowest unit rate available by station. But 
it isn't happening. That is the purpose of this amendment.
  In Detroit, 88 percent of the advertisements at one television 
station were sold above the lowest rate. In Minneapolis, 95 percent of 
all the advertising sold was above that minimum rate. The lowest unit 
rate has become

[[Page 3998]]

 a fiction. Political candidates are competing with General Motors, 
Procter & Gamble, Ford, and the greatest advertisers in the Nation. We 
are in a bidding war against commercial interests in order to 
communicate public policy issues with the American people.
  There is no greater hypocrisy in our time than the television 
networks that have maintained the need for a change of a campaign 
finance system at the same time they are increasing rates during the 
fall campaigns and gouging political candidates for more and more 
money. Indeed, political advertising is now the third greatest source 
of revenue for the television networks behind retailers and the 
automobile companies.
  The Torricelli-Durbin-Corzine amendment prevents broadcasters from 
gouging candidates and parties into paying the highest rates for fixed 
time by:
  One, requiring stations to charge candidates and parties the lowest 
rate available throughout the year;
  Two, ensuring that candidates and party ads are not bumped by other 
advertisers willing to pay more for the time in the bidding war in 
which we are now engaged with commercial parties;
  Three, requiring the FCC to conduct random checks during the 
preelection period to ensure compliance with the law.
  Candidates in markets of all sizes would benefit. A candidate in 
Alabama could save at least 400 percent on one station alone. We have 
calculated that a candidate in Los Angeles could save 75 percent at one 
station by having this lower rate available.
  This amendment does not require broadcasters to allocate candidates 
free time, as indeed is done in almost every other industrial democracy 
in the world. Many of my colleagues believe such free time is the 
answer. We are not requiring that in this amendment.
  We are not altering the content of their programming nor charging a 
fee for use of the public spectrum. All we are doing is requiring what 
we required so long ago, but now enforcing it --now ensuring that it 
happens in practice; that is, that the lowest unit rate be made 
available.
  This will be discussed in length tomorrow. But it is eminently 
reasonable that in a public policy debate, in choosing leaders of this 
country, the public airwaves provided on license to the television 
networks not be a financial opportunity for the networks to get 
candidates in a bidding war against commercial advertisers, and not 
taking advantage of those weeks before an election when advertisers, by 
necessity, must be placed and, therefore, an opportunity for the 
networks to increase their rates to take advantage of the calendar.
  This simply assures fair access at a fair price. It is a necessary 
component of campaign finance reform. If we are to reduce the amount of 
money that is available as part of the effort to perform, reduce the 
amount of political money in this system in order to ensure the 
integrity of our Government and increase public confidence, and if we 
are to reduce these expenditures without reducing the cost of 
advertising, there is only one possible result: Less campaign 
fundraising will result in less communication, less informed voters, 
and candidates unable to bring their message to the people.
  There is only one way to avoid this eventuality: Reduce the amount of 
campaign money by reducing campaign costs. That is at the heart of the 
Torricelli - Corzine - Dorgan - Durbin amendment.
  I will return tomorrow morning with my colleagues. We will present 
our case at length and I think make a real and lasting contribution to 
the fight for reform.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. TORRICELLI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TORRICELLI. Mr. President, I yield to Senator Ensign of Nevada.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. ENSIGN. Mr. President, I have been in four very tough campaigns 
in the last 8 years. I have a lot of experience buying television time. 
Being a small State, the State of Nevada, in which we only have two 
media markets, it is a lot less expensive than in the State of my good 
friend from New Jersey.
  In 1994, our television time was a lot less expensive. Just in the 
last 8 years, television has literally at least tripled in price in my 
State. At election time, when the Senator was talking about the 
gouging--whatever term you want to use--by the station, there are so 
many independent expenditures and so many candidates advertising on 
television that the price goes up. As a matter of fact, at the 
beginning when you are doing your budgeting for your campaign and you 
are trying to get the lowest unit rate, it is supposedly going to be at 
the end of the campaign so that you can determine how much money you 
will be able to spend on television and how much you will be able to 
put your message out to the voters.
  I remember asking my people: What about this lowest unit rate we 
heard about? I always hear about that in every campaign. My campaign 
people say that is really a farce, because the lowest unit rate is 
something that is preemptible time, so we don't recommend that you ever 
buy the lowest unit rate. I think we bought a few spots at the lowest 
unit rate. But other than that, we had to buy nonpreemptible time so we 
would make sure we had the slots and our message would get to the 
people to whom we wanted to get.
  Mr. TORRICELLI. If I could interrupt the Senator, on tomorrow we will 
present to the Senate correspondence illustrating exactly the 
phenomenon to which the Senator from Nevada was speaking. Political 
candidates will place an ad for $20,000 in compliance with Federal law 
at the lowest unit rate, and the television station will write back and 
say: You have an advertisement placed at $20,000, and you should know 
there is a commercial buyer for that time. If you do not send us 
another $20,000, you will lose the slot. We will move your ad where we 
intend to move it, which means the middle of the night.
  In fact, they take a candidate's time trying to communicate to the 
American people in accordance with Federal law at the lowest unit rate, 
and then you get into a bidding war with the commercial interests 
because the station is trying to take advantage of the time. They know 
you advertise in October and September.
  Tomorrow we are going to have a complete example of what the Senator 
is discussing.
  Mr. ENSIGN. If the Senator will yield again, my personal experience 
with this has gone on. We just had the broadcasters from Neveda in our 
office last week. I don't blame them for wanting to make a profit. That 
is their business. I don't blame them at all. But we have to spend a 
lot more time and effort raising money. And this drives up the cost of 
all of our campaigns simply because of what has happened in the last 
few election cycles. This phenomenon we are seeing has really happened 
in the last three or four election cycles--this bidding up of the 
prices right before election day.
  As a matter of fact, when I first got into this in 1994, the 
television stations didn't like the political season because it was the 
time when they lost money because they used to give out a lot of low 
unit rates. But today they love the election cycles. It is one of their 
highest profit margin times--at least that is what they tell me--simply 
because there are so many people trying to get on the air to advertise. 
Candidates cannot get the lowest unit rate. They don't choose to do it 
anymore. And they have to bid up this time.
  So I applaud the three Senators for bringing this amendment up. I 
think it is the right thing to do. I do not know whether the amendment 
is going to be adopted, but I certainly think it is the right thing to 
do. I will be joining with you tomorrow in voting for this.

[[Page 3999]]


  Mr. TORRICELLI. I thank the Senator for his help. I believe we will 
succeed tomorrow on a bipartisan basis. I think people recognize the 
purpose of campaign finance reform is not that the United States have 
less political debate, not that the American people will be less 
informed, but that there will be less money in the system. If we are to 
achieve both--and that is, to have people to be well informed but have 
less money in the system, and build confidence--we have to lower the 
cost of campaigns. This is the way to do it--on the public airways.
  Unfortunately, we are not doing what is done in Britain or France or 
England, which is providing this time free because they are public 
airwaves. We are taking a very modest step. Indeed, we are only putting 
into law what really, in fact, was in the law but now is being evaded, 
and that is this requirement of lowest unit rate.
  Indeed, the Senator's experience in Las Vegas is not unusual. He has 
seen a 300-percent increase during this decade. As I pointed out, the 
national average, in just 4 years, is 76 percent. There is no cost of 
business for any industry I know of that is rising faster than the cost 
of advertising for a political candidate. But what is unbelievable is, 
in the entire national debate on campaign finance reform, this has 
largely been absent.
  It is as if candidates are raising money because they enjoy it, that 
somehow people like to raise money because it is entertaining. People 
are raising these phenomenal amounts of money for one purpose: to feed 
the television networks that are demanding it, and holding the 
political system hostage.
  So I suggest that tomorrow Mr. Brokaw and Mr. Jennings and Mr. 
Rather, who have led this campaign for campaign finance reform--we are 
joining them and going to make the point that rather than being a 
critic of it, you can make a contribution. This is their way of making 
a contribution. We are going to lead them to do so tomorrow.
  Would the Senator like to add a point?
  Mr. ENSIGN. If the Senator will further yield, to just give the 
American people a little bit of insight into how campaigns work, when 
you are setting up your budget, in the beginning you set up your TV 
target market and how much you want to advertise--not how many dollars 
you want to put into it but what level of penetration into the market 
you want to get, something called the gross rating point. And we 
determine each week from election day backward approximately how many 
points we would like to get in the market. That will determine how much 
of our message gets to the voters. Then we try to figure out, after we 
do that, approximately how much the stations are going to charge us for 
each one of those commercials we put on television.
  In the last few years, because of the huge increases, obviously, we 
have had to adjust our budgets. From that point we go forward and 
determine how much money we need to raise in our campaigns. That is why 
the cost of campaigns has continued to go up and up and up and up. From 
1995 to 1998, we spent about $3.5 million in our first Senate race. In 
our second Senate race, just 2 years later, we spent almost $5 million. 
That is the reality. Mail costs about the same, and radio has gone up a 
little bit but not too badly, and almost all of the increase has been 
because of the cost of television.
  Mr. TORRICELLI. If I could share one of my own experiences: In 1996, 
in my own Senate race, we tried to buy the advertising in advance. We 
knew, as did the Senator, how many points we wanted to buy. We offered 
to send the money to television. They would not take it because they 
wanted to increase the rates. They told us in advance: These rates will 
not hold. We will not take your money. The more they see the demand 
from political candidates, the more they increase the cost.
  Now, to the point, if we are to have a $1,000 limit on all 
expenditures under McCain-Feingold--no soft money--only $1,000 
contributions, in the city of New York an ad covering much of the State 
of New Jersey can be $60,000 or $70,000. So it will take 70 people 
writing $1,000 contributions to pay for one ad--one.
  The point becomes, how many people do you need? How much do you have 
to raise to run a television campaign? Effectively, for a candidate in 
New York today, we will never see another Senate campaign that costs 
less than $25 million. At that rate, how many thousands and thousands 
and thousands of people have to write $1,000 contributions? There is no 
escaping this addiction of money until we lower these costs.
  I am very grateful the Senator from Nevada has joined this cause. I 
am very grateful on a bipartisan basis it seems overwhelmingly the 
Senate is prepared now to have the second leg on the chair of campaign 
finance reform--control the money, control the costs, and then we have 
a balanced program for genuine reform.
  I thank the Senator. I look forward to being with him in the debate 
tomorrow.
  I yield the floor.
  Mr. WARNER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I commend our colleagues from New Jersey 
and Nevada. This exchange between these two fine Senators represents 
the quality of the debate the Senate is now experiencing on this 
important issue of campaign finance reform.
  Mr. McCONNELL. Mr. President, I would like to read into the Record 
the following article by Stanford law professor Kathleen Sullivan, 
entitled ``Paying Up Is Speaking Up.'' In it, she notes that politics 
and political campaigns are far cleaner today than they were in the 
days of Tammany Hall. She also notes that in Bucklay v. Valeo the 
Supreme Court made things worse by striking down expenditure limits 
while upholding contribution units, resulting in a situation where 
government may limit the supply of political money but not the demand.
  Professor Sullivan says:

       Those who claim that our political system is awash in 
     money, corruption and influence peddling were predictably 
     upset that the Senate again defeated the campaign finance 
     restriction proposed by Senators Russell Feingold and John 
     McCain. The Senate's failure to ban ``soft money''--large 
     contributions to political parties that are made to avoid 
     tight restrictions on donations to candidates--drew laments 
     from editorial pages to corporate boardrooms, where some 
     business executives now plead, ``Stop us before we spend 
     again.''
       The advocates of new, improved campaign finance reform are 
     well-intentioned but misguided. Of course none of us wishes 
     to live in a plutocracy, where wealth alone determines 
     political clout. But as Senator Mitch McConnell noted in a 
     heated exchange with Senator McCain, American politics today 
     is far from ``corrupt'' in the traditional sense. And the 
     most troubling features of political fund-raising today are 
     the unintended consequences of earlier efforts at campaign 
     finance reform.
       Begin with the allegations of ``corruption.'' Contributions 
     to candidates and parties today do not line anybody's 
     pockets, as they did in the heyday of machines like Tammany 
     Hall. Vigilant media and law enforcement now nip improper 
     personal enrichment in the bud, as politicians involved in 
     the savings and loan scandals found out to their detriment.
       Political money today instead goes directly into political 
     advertising, a quintessential form of political speech. Our 
     large electoral districts and weak political parties force 
     candidates to communicate directly with large groups of 
     voters. This depends on the use of the privately owned mass 
     media. Thus getting the candidate's message out is expensive.
       Reformers sometimes decry today's political advertising as 
     repetitious and reductive. But it is not clear what golden 
     age of high-minded debate they hark back to; the antecedents 
     of the spot ad are, after all, the bumper sticker and slogans 
     like ``Tippecanoe and Tyler, Too.''
       Nor is there any doubt that restrictions on political money 
     amount to restrictions on political speech. Reformers 
     sometimes say they merely seek to limit money, not speech. 
     But a law, say, barring newspapers from accepting paid 
     political advertisements or limiting the prices of political 
     books would also limit only the exchange of money. Yet no one 
     would question that it would inhibit political speech--as do 
     restrictions on campaign finance.
       Unfortunately, the Supreme Court only half recognized this 
     point when, in 1976, it struck down limits on political 
     expenditures while upholding limits on political gifts. 
     Expenditures, the Court reasoned, may not be

[[Page 4000]]

     limited in order to level the playing field, but political 
     contributions may be limited to prevent the reality or 
     appearance that big contributors will have disproportionate 
     influence. So we still have in place the 1974 law limiting 
     individual contributions to a Federal candidate to $1,000 per 
     election--the equivalent of about $383 in 1999 dollars--and, 
     perversely, candidates must spend ever more time chasing an 
     ever larger number of donors.
       The Court's noble but flawed attempt at compromise leaves 
     us in the worst of all possible worlds: government may limit 
     the supply of political money but not the demand. This is a 
     situation that in a commercial setting would produce a black 
     or gray market, and politics is no different. Instead of 
     money flowing directly to candidates, it flows to parties as 
     soft money, or to independent advocacy organizations for 
     issue ads that often imply support for or opposition to 
     specific candidates.
       Political spending and speech thus have been shifted away 
     from the candidates, who are accountable to the voters, to 
     organizations that are much harder for the voters to monitor 
     and discipline--a result that turns democracy on its head.
       Reform proposals such as McCain-Feingold proceed on the 
     assumption that the answer is to keep on shutting down 
     ``loopholes'' in the system. But in a system of private 
     ownership and free expression, we can never shut all the 
     loopholes down. If the wealthy cannot bankroll campaigns, 
     they can buy newspapers or set up lobbying organizations that 
     will draft legislation rather than campaign ads. When the 
     cure has been worse than the disease, the solution is not 
     more doses of the same medicine.
       Does this mean we should eliminate all campaign finance 
     regulation? Certainly not. Even if we give up on contribution 
     limits, we should retain and enhance mandatory disclosure and 
     public subsidies--two kinds of government intervention that 
     are consistent with both democracy and the Constitution.
       Mandatory disclosure of the amounts and sources of 
     political contributions enables the voters themselves, aided 
     by the press, to follow the money and hold their 
     representatives accountable if they smell the foul aroma of 
     undue influence. Such disclosure is an extraordinarily 
     powerful and accessible tool in the age of the Internet.
       And more widespread public subsidies, like those now given 
     in presidential and some state races, could, if given early 
     in campaigns, help political challengers reach the critical 
     threshold amounts they need to get their messages out.
       In ongoing debates about campaign finance reform, it is 
     worth remembering that free speech principles bar the 
     creation of ceilings on political money, but they do not bar 
     the raising of floors.

  Mr. President, I would also like to read into the Record a recent 
article by Stuart Taylor Jr. of the National Journal entitled ``How 
McCain-Feingold Would Constrict Speech.'' It explains how McCain-
Feingold would make our political system worse, not better. It notes 
that each new step down the road of restricting political speech and 
political spending actually creates new problems.
  Mr. Taylor's article says:

       It all sounds so clean, so wholesome, so righteous: close 
     the loopholes in our campaign finance laws. End what Sen. 
     John McCain, R-Ariz., calls the ``corrupting chase for `soft 
     money.' '' Curb the influence of corporations and labor 
     unions. Stop special interests from polluting our politics 
     with ``sham issue ads.'' Mandate greater public disclosure of 
     political spending.
       But in reality, the McCain-Feingold-Cochran campaign 
     finance bill would make our politics worse, not better, by 
     further entrenching incumbents against challengers, by 
     weakening our political parties, by increasing the influence 
     of wealthy individuals and huge media corporations, by 
     stifling political debate, and by attacking the First 
     Amendment's premise that political speech should be free and 
     uninhibited, not hobbled by a maze of prohibitions and 
     regulations.
       We might be able to make our politics cleaner and fairer by 
     supplementing private campaign funding with some form of 
     public financing to help give voice to candidates and causes 
     with scant financial resources. (More on that next week.) We 
     will not achieve this by piling onerous new restrictions on 
     privately funded speech.
       Our experience with the current curbs on campaign 
     contributions, which were enacted in the early 1970s, should 
     be sobering. Spread through hundreds of pages of almost 
     indecipherable legalese understood only by specialists, these 
     curbs are filled with traps, technicalities, and 
     opportunities for selective enforcement by politically 
     appointed bureaucrats and judges. Their main impact has been 
     to force federally elected officials and their challengers to 
     spend a huge percentage of their waking hours soliciting 
     ever-smaller (after inflation) contributions from ever-larger 
     numbers of people. Meanwhile, incumbents have become harder 
     to defeat, the influence of special interests has grown, 
     voter turnout has declined, and public confidence in our 
     political system has plunged.
       The solution, say McCain and other ``reformers,'' is to 
     plug loopholes in the current laws--first and foremost, by 
     ending the ability of wealthy individuals, corporations, and 
     unions to circumvent the limits on ``hard-money'' 
     contributions to candidates by giving their political parties 
     unlimited sums of soft money to be spent promoting the 
     candidates. This would make it harder for politicians to 
     extort money from those who would prefer not to give. That is 
     good. But it would also weaken the parties' ability to 
     finance indisputably healthy grass-roots activities such as 
     voter education, registration, and turnout drives, while 
     spurring the many companies, unions, and individuals who want 
     to be active in politics to take their money elsewhere. That 
     is very bad.
       The most obvious outlet for private money would be to fund 
     so-called issue advertisements praising their preferred 
     candidates and attacking their adversaries, either directly 
     or by giving to one or more of the interest groups that buy 
     such ads. These groups range from the Chamber of Commerce, 
     the National Right to Life Committee, and the National Rifle 
     Association on the right to labor unions, Planned Parenthood, 
     and the Sierra Club on the left. Such a governmentally 
     engineered shift of money and power from the parties--our 
     most broad-based vehicles for citizen participation in 
     politics--to single-issue groups and other ideologically 
     driven organizations would warp our political discourse.
       Not to worry, McCain and his allies say, we also have a 
     plan to curb the financial clout of corporations, unions, and 
     independent interest groups. This proposal (Title II of the 
     bill) would severely restrict such organizations' spending on 
     issue ads and other activities designed to disparage or 
     promote federal candidates. Indeed, for some incumbents 
     facing re-election battles, these provisions are the main 
     attraction of the McCain-Feingold-Cochran bill. ``We're 
     totally defenseless against the juggernaut of huge, 
     unregulated, undisclosed expenditures'' by independent 
     groups, Sen. Thad Cochran, R-Miss., who faces an election 
     next year, told the Wall Street Journal.
       This part of the bill would, in the words of Brooklyn Law 
     School professor Joel M. Gora, who has long worked with the 
     American Civil Liberties Union on campaign finance issues, 
     ``effectively silence a great deal of issue speech and 
     advocacy by non-partisan citizen groups, organizations, labor 
     unions, corporations, and individuals.'' It would altogether 
     bar for-profit corporations and unions from buying television 
     or radio ads, or giving independent groups money to buy ads, 
     that so much as mention--let alone criticize or praise--a 
     federal candidate during the critical 60 days before an 
     election and the 30 days before any primary. These are 
     precisely the periods during which the public is most 
     attentive to debate about political issues and candidates. 
     The bill would also prohibit independent groups from buying 
     such pre-election issue ads unless they set up unwieldy 
     separate, segregated funds that shun corporate and union 
     money and publicly disclose all individual contributions 
     above $1,000.
       An even more radical provision would expose such groups to 
     possible legal sanctions if they do anything, at any time, 
     that might help any candidate with whom they have 
     ``coordinated''--a term defined so broadly and vaguely as to 
     encompass almost any contacts with candidates or their 
     aides--in working on issues of mutual interest. So 
     restrictive are these ``coordination'' rules that some of 
     McCain-Feingold-Cochran's biggest champions might have run 
     afoul of them had they been in effect during the 1999-2000 
     election cycle. Common Cause, for example, worked closely 
     (``coordinated'') with McCain in late 1999 on strategies for 
     promoting his bill, while spending lots of its own soft money 
     touting the bill (and McCain) to the public, at a time when 
     McCain himself was putting campaign finance reform at the 
     center of his presidential candidacy. Under his own bill, 
     such routine political activities involving Common Cause and 
     McCain might be deemed illegal corporate campaign 
     contributions.
       Nor is McCain-Feingold-Cochran's requirement that 
     independent groups disclose the names of all donors of more 
     than $1,000 for pre-election issue ads as innocuous as it may 
     seem. It is, some independent groups argue, mainly for the 
     benefit not of the public, but of powerful incumbents and 
     other politicians who might use pressure and intimidation to 
     deter people from funding issue ads the politicians don't 
     like. Thus could a bill that purports to curb the influence 
     of Big Money in politics have the effect of increasing the 
     power of politicians to silence critics both big and small.
       Fortunately, McCain-Feingold-Cochran's proposed 
     restrictions on issue ads and independent groups will have 
     trouble getting through Congress now that the AFL-CIO is 
     opposing them--a major break with its usual Democratic 
     allies. And even if enacted, these restrictions have little 
     chance of surviving judicial review. They fly in the face of 
     rules laid down by the Supreme Court in a long line of First 
     Amendment decisions that guarantee that issue advocacy by 
     independent groups, corporations, and unions will enjoy

[[Page 4001]]

     broad protection from all forms of official regulation, 
     including public disclosure requirements.
       In any event, any portion of McCain-Feingold-Cochran that 
     manages to get through Congress and past the courts would not 
     take Big Money out of politics. The bill would, rather, 
     increase the relative power of those moneyed interests that 
     remain unregulated. These would include individuals rich 
     enough to finance their own campaigns, such as Ross Perot, 
     Steve Forbes, and the four Senate candidates (all Democrats) 
     who each spent more than $5 million of their own money to win 
     their races. This group was topped by Jon Corzine's $60 
     million purchase of a seat to represent New Jersey. Power 
     would also flow to the national news media, which are owned 
     by huge corporations such as AOL-Time Warner and General 
     Electric, are staffed by journalists with their own biases, 
     and are busily clamoring for restrictions on the campaign-
     related spending and First Amendment rights of everybody 
     else.
       Those reformers who are most serious about driving Big 
     Money out of politics see McCain-Feingold-Cochran as only a 
     first, tiny step. They would also cap campaign spending by 
     wealthy candidates--a step that would require overruling the 
     Supreme Court's landmark 1976 decision in Buckley vs. Valeo. 
     And a few reformers have asserted that, in the words of 
     associate professor Richard L. Hazen of Loyola University Law 
     School in Los Angeles: ``The principle of political equality 
     means that the press, too, should be regulated when it 
     editorializes for or against candidates.''
       Each new step down this road of restricting political 
     spending and speech creates new problems and new inequities, 
     fueling new demands to close ``loopholes'' by adding ever-
     more-sweeping restrictions. How far might campaign finance 
     reformers go if they could have their way? Was McCain serious 
     when he said on Dec. 21, 1999. ``If I could think of a way 
     constitutionally, I would ban negative ads''? Shades of the 
     Alien and Sedition Acts.
       Politics will always be a messy business. Money will always 
     talk. And the cure of legislating political purity and 
     purging private money will always be worse than the disease.

  Finally, Mr. President, I would like to read into the Record an 
article by Judge James Buckley entitled ``Campaign Finance: Why I Sued 
in 1974.'' Judge Buckley was the lead plaintiff in the landmark 
campaign finance case of Buckley v. Valeo. This article provides an 
important historical context to the current debate over restricting 
Campaign finances further.
  It says:

       Twenty-five years ago, I was a member of the Senate 
     majority that voted against the legislation that gave us the 
     present limitations on campaign contributions. Having lost 
     the debate on the floor, I did what any red-blooded American 
     does these days: I took the fight to the courts as lead 
     plaintiff in Buckley v. Valeo. This is the case in which the 
     Supreme Court held that the 1974 act's restrictions on 
     campaign spending were unconstitutional but that its limits 
     on contributions were permissible in light of Congress's 
     concern over the appearance of impropriety.
       The issue of campaign finance is again before the Senate. 
     Unfortunately, today's reformers are apt to make a badly 
     flawed system even worse.
       To understand why, it is instructive to take a look at the 
     Buckley plaintiffs. I had squeaked into office as the 
     candidate of New York's Conservative Party. My co-plaintiffs 
     included Sen. Eugene McCarthy, whose primary challenge caused 
     President Lyndon Johnson to withdraw his bid for re-election; 
     the very conservative American Conservative Union; the 
     equally liberal New York Civil Liberties Union; the 
     Libertarian Party; and Stewart Mott, a wealthy backer of 
     liberal causes who had contributed $200,000 to the McCarthy 
     presidential campaign. We were a group of political underdogs 
     and independents; and although we spanned the ideological 
     spectrum, we shared a deep concern that the 1974 act would 
     dramatically increase the difficulties already faced by those 
     challenging incumbents and the political status quo.
       Incumbents enjoy formidable advantages, including name 
     recognition, access to the media, and the goodwill gained 
     from handling constituent problems. A challenger, on the 
     other hand, must persuade both the media and potential 
     contributors that his candidacy is credible. This can require 
     a substantial amount of seed money. As we testified, Sen. 
     McCarthy could not have launched a serious challenge to a 
     sitting president and I could not have won election as a 
     third-party candidate under the present law. Large 
     contributions from a few early supporters established us as 
     viable candidates. Once the media took us seriously, we were 
     able to reach out to our natural constituencies for financial 
     support and to attract the cadres of volunteers that 
     characterized our campaigns.
       Although we won a number of the arguments we presented in 
     Buckley, we lost the critical one when the court held that 
     the limits on contributions were constitutional. Experience, 
     however, has vindicated our worries over the practical 
     consequences of these and other provisions of the 1974 act.
       The legislation was supposed to de-emphasize the role of 
     money in federal elections and encourage broader 
     participation in the political process. Instead, by limiting 
     the size of individual contributions, it has made fund 
     raising the central preoccupation of incumbents and 
     challengers alike; and it created a bureaucracy, the Federal 
     Election Commission, that has issued regulations governing 
     independent spending that are so complex and have made the 
     costs of a misstep so great that grassroots action has 
     virtually disappeared from the political scene. Today, anyone 
     intrepid enough to engage in such activities is well advised 
     to hire a lawyer; and even then, he must be prepared to 
     engage in protracted litigation to prove his independence.
       Legislation that was supposed to democratize the political 
     process has served instead to reinforce the influence of the 
     political establishment. By compounding the difficulties 
     faced by challengers, it has consolidated the advantages of 
     incumbency and increased the power of the two major parties. 
     By limiting individual contributions to $1,000, it has 
     enhanced the political clout of both business and union 
     political action committees--the notorious PACs.
       Moreover, if today's reformers succeed in their efforts to 
     restrict ``issue advocacy,'' the net effect will be to 
     increase the already formidable power of the media. The New 
     York Times or The Wall Street Journal will be free to throw 
     their enormous influence behind a particular candidate or 
     cause through Election Day. But public interest groups would 
     be denied the right to advertise their disagreement with the 
     Times or the Journal during the final weeks of a campaign.
       What is needed is not more restrictions on speech but a re-
     examination of the premises underlying the existing ones. 
     Recent races have exploded the myth that money can ``buy'' an 
     election. Ask Michael Huffington, who lost his Senate bid in 
     California after spending $28 million. The voters always have 
     the final say. What money can buy is the exposure challengers 
     need to have a chance. And while large contributions can 
     corrupt, studies of voting patterns confirm that that concern 
     in vastly overstated. The overwhelming majority of wealthy 
     donors back candidates with whom they already agree, and they 
     are far more tolerant of differences on this point or that 
     than are the PACs to which a candidate will otherwise turn.
       An alternative safeguard against corruption is readily 
     available--the daily posting of contributions on the 
     Internet. This would enable voters to judge whether a 
     particular contribution might corrupt its recipient. What 
     makes no sense is to retain a set of rules that make it 
     impossible for a Stewart Mott to provide a Eugene McCarthy 
     with the seed money for a challenge to a sitting president, 
     or that make elective politics the playground of the super 
     rich.
       The problem today is not that too much money is spent on 
     elections. Proctor & Gamble spends more in advertising than 
     do all political campaigns and parties in an election cycle. 
     The problem is that the electoral process is saddled by a 
     tangle of laws and regulations that restrict the ability of 
     citizens to make themselves heard and that rig the political 
     game in favor of the most privileged players. And because 
     congressional incumbents are the beneficiaries of the tilted 
     playing field, it is fanciful to believe that Congress will 
     re-write the rule book to give outsiders an even break.
       We have nothing to fear from unfettered political debate 
     and everything to gain. American democracy can ill afford 
     government control of the political marketplace; but that is 
     where today's reformers would lead us.

     

                          ____________________