[Congressional Record (Bound Edition), Volume 147 (2001), Part 4]
[Senate]
[Pages 4883-4910]
[From the U.S. Government Publishing Office, www.gpo.gov]



                 CAMPAIGN REFORM ACT OF 2001--Continued

  Mr. WELLSTONE. Madam President, I ask unanimous consent that I be 
allowed to keep the floor as we move on to the debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. Madam Chair, I have two children who are teachers. I 
can tell you right now that neither one of them can afford to make a 
$1,000 contribution or a $2,000 contribution or $4,000 or $5,000 in an 
election cycle. I can tell you right now that neither one of them can 
afford to make $30,000 worth of contributions. My God, that is, 
frankly, the salary of a good many teachers in this country. They 
cannot afford to make those kinds of contributions.
  On the floor of the Senate we are saying, my gosh, the reality is 
that we have this inflation and $1,000 isn't worth $1,000. The reality 
is that the vast majority of the people in the country don't make these 
big contributions; therefore, we don't pay as much attention to them; 
therefore, they have become increasingly disillusioned, and now as a 
part of this deal we are raising the spending limits--whatever the 
compromise is. It seems to me that it goes exactly in the opposite 
direction than we should be going.
  How are ordinary citizens who can't afford to make these big 
contributions going to feel--that this political process is now going 
to be better for them when we have taken the caps off and have raised 
the contribution level? Now people who are running for office are going 
to be even more dependent on the top 1 percent of the population. How 
is that reform?
  I haven't done the analysis. I do not know how it will add up. My 
guess is that while, on the one hand we are taking the soft money out, 
we are now going to be putting a whole lot more hard money into 
politics. In the election year 2000, 80 percent of the money in 
politics was hard money.
  I am not trying to denigrate taking soft money out--the prohibition 
on soft money that is in McCain-Feingold. But as this legislation moves 
along, I am, in particular, saddened and a little bit indignant that we 
are now defining ``reform'' to raise the limits so those people who can 
afford to make a $1,000 contribution can now make $2,000; those who can 
afford over 6 months--whatever cycle--to make not $2,000 but to now 
make $4,000 contributions will be able to do so.
  The argument that some of my colleagues make is the fact that 99 
percent of the population can't afford to do this doesn't mean we 
shouldn't let the other 1 percent.
  But I tell you what is going to happen. We are going to be even more 
dependent on the big givers. We are going to become even more divorced 
from all of those people who we serve who can't afford to make those 
contributions. We are going to spend even less time. There will be even 
less of an emphasis on the small fund raisers and less of an emphasis 
on grassroots politics. It is a tragedy that we are doing this.
  I do not know how the bill will ultimately go. I think this is a 
terrible mistake. It has that sort of ``made for Congress'' look.
  This is the sort of agreement that is a victory, Minnesotans. This 
victory is for all you Minnesotans who now contribute $1,000 or more. 
You will be able to give even more money to candidates. Minnesotans, 
please listen. The Senate is now pretty soon about to pass a reform 
measure. All of you Minnesotans who contribute $1,000 and $2,000 a year 
and can afford to do it will now be able to double your contributions. 
I am sure people in Minnesota will just feel great about this. I am 
sure people in Minnesota will feel that this is real reform. And I am 
sure 99 percent of the people in Minnesota will feel it is true.
  This is a game we can't play: You pay, you play. You don't pay, you 
don't play.
  I will finish, maybe, but just to make one other point.
  I am looking at this in too personal of a way by showing more 
indignation than I should. People can disagree. That is the way it is. 
You win or lose votes.
  We talk about getting rid of soft money. With what we are now about 
to do on these individual spending limits, there is a bunch of people 
who will never be able to run for this Senate. They are really not. I 
will tell you who those people are. They are women and men who 
themselves don't have a lot of money and who take positions that go 
against a lot of the money interests in

[[Page 4884]]

this country and people who have the economic resources.
  I said earlier that the Chair would be interested in this because of 
her own history. I was talking about the Fannie Lou Hamer Project. 
Spencer Overton from the Fannie Lou Hamer Project was speaking 
yesterday at the press conference. Fannie Lou Hamer, as the Chair 
knows, was this great civil rights leader, daughter of a sharecropper 
family, large family, grew up poor, and became the leader of the 
Mississippi Democratic Party. She was a great leader, a poor person, a 
poor woman, and a great African-American leader.
  He was saying yesterday that there are not any Senators who look like 
Fannie Lou Hamer. He was right. He went on to say that the truth is, 
this isn't an issue of corruption. This is an issue of representation--
of whether there is inclusion or exclusion. The Fannie Lou Hamers of 
this country are going to be even less well represented when we become 
even more dependent on those fat cats who can make these huge 
contributions.
  How is a woman such as Fannie Lou Hamer, a great woman, ever going to 
run? How about people who want to represent the Fannie Lou Hamers? How 
are they going to have a chance to run? They are going to be clobbered.
  Democrats, don't get angry at me, but there are plenty of Democrats 
who will be able to raise the money. That is good. You will be able to 
get the two, or three, or four, or five, or six. I don't know what 
their final deal will be. You will be able to get those big 
contributions. But you will pay a price. Democrats, we will pay a 
price. We are paying that price. We will dilute our policy performance. 
We will trim down what we stand for. We will be more reluctant to take 
controversial positions on test economic issues. We will be less 
willing to challenge economic and political power in America today than 
we are already, and today we are not so willing to challenge that 
power.
  This isn't just like statistics. And here is one proposal to raise 
the money, and here is another one, and now we have a compromise. This 
is about representation.
  Spencer was right. Spencer Overton was right. Fannie Lou Hamers are 
not going to be well represented at all. I doubt whether hardly anybody 
who comes from those economic circumstances today and who take 
positions that are antithetical to economic and political power in 
America--I hate to argue conspiracy. I am just talking about the 
realities. Are they ever going to be able to run? I don't think they 
will be able to run. It is going to be very hard. If you are well known 
or an incumbent, you have a pretty good chance. That is good.
  We get some great people here. We have the Presiding Officer. We have 
Senator Kennedy. Senator Dayton is here--people who have been well 
known for good reasons and who have accomplished a lot in their lives. 
The Chair has. People who have economic resources--Senator Kennedy 
does, and Senator Dayton does--care deeply about these issues. That is 
not my point.
  My point is that as we rely more and more on the big contributors and 
the well oiled and the well heeled and the heavy hitters, all of us who 
are running are going to become more dependent on that money. The 
people who are going to have the most difficult time ever getting 
elected are going to be ordinary citizens, which I think means they are 
the best citizens. I mean that not in a pejorative way but in a 
positive way. They are not going to have a prayer. They are not going 
to have access to this money.
  Let's not kid ourselves. If you believe the standard of a 
representative democracy is that each person should count as one, and 
no more than one, we have moved dangerously far away from that. I do 
not see how any kind of ``compromise,'' defined by the pattern of power 
right here in the Senate today, represents a step forward, where we now 
are going to say that those people who are the big givers are going to 
be able to give more and those people running for office are going to 
be more dependent on them.
  I bet you, Madam Chair, that after this amendment or this compromise 
passes, that over 50 percent of the money that will be raised in the 
next election cycle--the cycle I am in--over 50 percent of the money 
that will be raised will be in these large contributions, raised from, 
again, about 1 percent of the population.
  Now I ask you, how does that represent reform? How does that make 
this a healthier representative democracy? I think it is a huge 
mistake. And, I, for one, am adamantly opposed and want to express my 
opposition.
  I am not out on the floor to launch a filibuster, so I will yield the 
floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Crapo). Without objection, it is so 
ordered.
  Mr. McCONNELL. Mr. President, we expect the group that has been 
working on a compromise on the hard money contribution limit to come 
back to the floor at some point in the next hour or so. Rather than sit 
around and churn, it is agreeable to both sides for Senator DeWine, who 
will have the next amendment after we finish the disposition of the 
Thompson and Feinstein matter, to go on and lay his amendment down, 
which he can set aside when those involved in the discussions come back 
to the floor. He can lay down his amendment and begin the discussion. I 
believe that is all right with the Senator from Connecticut.
  Mr. DODD. Yes. What I suggest is that this requires unanimous consent 
as we go along.
  I ask unanimous consent that the Senator from Ohio be recognized for 
a half hour for the purpose of offering his amendment and speaking on 
his amendment, and that at the hour of 3:30, the Senate would revert to 
a quorum call.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Ohio is recognized until the hour of 3:30.


                           Amendment No. 152

  Mr. DeWINE. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Ohio [Mr. DeWine], for himself, Mr. Hatch, 
     Mr. Hutchinson, Mr. Brownback, and Mr. Roberts, proposes an 
     amendment numbered 152.

 (Purpose: To strike title II, including section 204 of such title, as 
  added by the amendment proposed by Mr. Wellstone (Amendment No. 145)

       Beginning on page 12, strike line 14 and all that follows 
     through page 31, line 8.

  Mr. DeWINE. Mr. President, this is a very simple amendment, which I 
will explain in just a moment. I offer it on behalf of myself, Senator 
Hatch, Senator Hutchinson from Arkansas, Senator Brownback, and Senator 
Roberts.
  Our amendment is very simple. It is a motion to strike title II, the 
Wellstone-Snowe-Jeffords provision from the underlying McCain-Feingold 
bill.
  Mr. President, this amendment is necessary because title II draws an 
arbitrary and capricious and unconstitutional line--a line that 
abridges the first amendment rights of U.S. citizens. Under title II, 
citizens groups--and I emphasize that this is currently in the bill and 
unless our amendment is adopted, it will stay in the bill--American 
citizens would be prohibited from discussing on television or radio a 
candidate's voting records and positions within 60 days before a 
general election or 30 days before a primary.
  That is right, Mr. President, and Members of the Senate. It would be 
illegal for citizens of this country, at the most crucial time, when 
free speech matters the most, when political speech matters the most--
that is, right before an election--this Congress would be saying, and 
the ``thought police'' would be saying, the ``political speech police'' 
would be saying that you cannot mention a candidate's name; you cannot 
criticize that candidate by name.

[[Page 4885]]

  It silences the voices of the people. It silences them at a time when 
it is most important for those voices to be heard. It restricts 
citizens' ability to use the broadcast media to hold incumbents 
accountable for their voting records. It says essentially that the only 
people who have a right to the most effective form of political speech, 
the only people allowed to use television or radio to freely express an 
opinion or to take a stand on an issue when it counts, when it is 
within days of an election, are the candidates themselves and the news 
media. But under the way the bill is written now, not the people--just 
candidates and the news media. Everyone else would be silenced by this 
unconstitutional, arbitrary line.
  Let's suppose for a minute that title II stays in the bill and it 
becomes law. Under this scenario, if you are a candidate running for 
Federal office and it is 60 days before the election, yes, you can go 
on the radio or the local television station and broadcast your 
message. If you are lucky enough to be Dan Rather, Tom Brokaw, or Peter 
Jennings, or the person who anchors the 6 o'clock news or 7 o'clock 
news in Dayton, OH; or in Steubenville, OH; or in Cleveland, you can 
also talk about the issues and candidates, and you can talk about them 
together. You can talk about the candidate's voting record.
  But if you don't fall into either one of these two categories--if you 
are part of a citizens group wanting to enter the political debate and 
engage in meaningful discourse, using the most wide-sweeping medium for 
reaching the people which is TV, under this provision you cannot do 
that. You simply cannot enter the debate using television or radio as a 
mode of communication.
  Title II of this bill makes that illegal. So if you would go in to 
buy an ad and say you want to criticize where the ad mentions the name 
of a candidate who is up for election within that 60-day period, the 
local broadcaster would have to turn to you and say, no, he cannot 
accept that. It is illegal because the U.S. Congress has said it is 
illegal.
  Title II would make it illegal for citizens groups to take to the 
airwaves and even mention a political candidate by name. It would make 
it illegal to state something as simple as to tell the voters whether 
or not a candidate voted yes or no on an issue. It basically just 
throws the rights of citizens groups out of the political ring. It 
throws them right out of the ring. I believe that is wrong and I think 
it is also unconstitutional.
  It represents a direct violation of the people's right to free 
political speech, the right guaranteed to us by the first amendment of 
the Bill of Rights in the Constitution of the United States of America.
  The language in this bill picks the time when political speech is the 
most important and restricts who can use that political speech, and who 
can engage in that political speech.
  Let me tell you an example from the real world. It is an example that 
could have involved me. I have been a proponent for something in Ohio 
we refer to as the Darby Refuge. It would be a wildlife refuge in 
central Ohio. I won't trouble or bother Members of the Senate now with 
the reasons why I have been a strong advocate for this, but I have 
been. I think it is the right thing to do.
  There are also citizens in the State of Ohio who live in that area of 
the State who don't think it is such a good idea. They have exercised 
their first amendment rights time after time to explain to me and to 
other citizens in Ohio who are driving down the highway that it is not 
such a good idea, and that this proposed wildlife refuge is not the 
thing to do. We have seen signs up--and I think they are still up--
which say ``No Darby, Dump DeWine.'' We have seen signs that say ``Get 
Mike DeWine Out of my Backyard.'' That was on a T-shirt. Other signs 
have been around also.
  Obviously, I didn't particularly like the fact that these signs were 
there.
  What was my response to people when they said, What about those 
signs? I tried to explain why I was for the Darby, but I also said: The 
first amendment is there; it is alive and well, and people are 
exercising their constitutional rights.
  Let us suppose this citizens group--actually there are two formal 
citizens groups that oppose the Darby and have been very vocal about 
it. Let us suppose that within 60 days prior to the last November 
election--I was up for reelection last November --let us suppose they 
had put some money together, and let us suppose they went to the 
Columbus TV stations and the Dayton TV stations. Let us also suppose 
this title II was law.
  Let us suppose they took their money and went to buy an ad, and what 
they wanted to talk about in that ad was why the refuge was a bad idea. 
Let us suppose also they wanted to convey another message, and that 
message was: Call Senator Mike DeWine and tell him he is wrong. Call 
Senator Mike DeWine and tell him that you oppose the refuge and you 
think he should as well.
  I would not have liked that. It probably would have irritated me. But 
they have a constitutional right to do that if they want to do it.
  Under the bill as now written, they could not do that. The TV station 
in Dayton or the TV station in Columbus would have had to turn to them 
and say: Oh, no, you cannot say that; there are only certain things you 
can say. You can talk about the refuge being a bad idea, but you cannot 
mention Mike DeWine's name.
  That is when it would become apparent to these citizens that their 
first amendment rights were being abridged, and the person who ran the 
TV station, the general manager, would have had to tell them: Congress 
said you cannot run this type of ad. I submit that is wrong.
  As much as those of us who have been in public office and who have 
faced tough elections do not like criticism, as much as sometimes we 
think political ads that attack us are unfair, as much as we sometimes 
think they distort, as much as sometimes we think they only tell half 
the story, that is just part of the political process. That is what the 
first amendment is all about.
  The fact is that today in a State such as Ohio, my home State, if you 
want to reach the people of the State, there is really only one way to 
effectively do it, and that is the use of television. You have to be on 
the air, and you have to get your message across. That is true whether 
you are running for office and you are the candidate or whether you are 
a group of citizens who decide they want to convey a message, they feel 
strongly about an issue and want to link that issue with a person who 
is running for office. Today they can do that. The way the bill is now 
written, they cannot.
  The fact is, given today's national political discourse in the modern 
age of technology, television and radio play the primary, if not the 
key, role in the spreading of political messages. The whole reason we 
use the names of candidates in political speech on television is to 
emphasize policy positions and alternative policy options. Doing so 
enables people to evaluate and support or criticize incumbents' voting 
records and their positions on issues. That is the basis, the very 
essence, of political speech and debate.
  Messages about the candidates, about their voting records and their 
positions on the issues, speak louder and have a greater impact on 
voters than just generic issue ads about Social Security or about 
Medicare, tax cuts, or whatever is the issue of the day.
  Constitutionally, we cannot deny citizens groups access to the most 
effective means of reaching the largest number of people for the least 
amount of money, and that is TV and radio. We cannot deny them the 
ability to communicate through television and radio during the time 
period most vital to deciding the outcome of an election, the time when 
they can have the most impact. We should not deny them a voice in the 
political debate, but, unfortunately, title II effectively does just 
that.
  Ultimately, political speech is directly tied to electoral speech. We 
cannot escape that. We cannot escape, nor should we try to escape, the 
fact that our Constitution protects the rights of people to support or 
to criticize their Government or the people running for

[[Page 4886]]

Federal office. The founders of this country recognized that. They knew 
from their own personal experience in forming this Nation that 
political speech is of the highest value, particularly during the 
election season, and it must be protected.
  Given that, the last thing we should be doing is restricting 60 days 
before an election the people's right to get the word out to voters 
about the issues and about the candidates. Such a restriction is 
absurd. Such a restriction is wrong. Such a restriction is blatantly, 
certifiably unconstitutional.
  I realize that criticism, very often part of political speech, makes 
incumbents uncomfortable. It makes us all uncomfortable. I know this. I 
have been there. Do I like to be criticized? No. Does anyone like to be 
criticized? No. Do we like to see our voting record picked apart? No.
  The fact remains that no matter how much those in public office do 
not like to hear negative political speech, our Constitution protects 
that very speech. Federally elected officials are here to serve the 
people, and the people deserve the right to cheer us or to chastise us, 
particularly during an election campaign.
  Are we, as Members of this body, becoming the political speech 
police? Are we becoming the guardians of incumbent protection? Are we 
so worried about tough criticism from outside groups, American 
citizens? Are we so concerned about what we consider to be unfairness 
and the potentially misleading nature of their message that we are 
willing to curtail their basic, constitutional, first amendment rights?
  I hope not, and I hope we adopt this amendment and pull back from 
this infringement on people's constitutional rights. We all should be 
offended by the attempt to do that.
  The fact is that the limits imposed by title II on political speech, 
limits on legitimate political discourse, debate, and discussion will 
hurt voters. The voters will have less opportunity to make informed 
choices in elections. It is the voters and the public who ultimately 
will lose.
  Allow me to read directly from the Bill of Rights--and we are all 
familiar with it--amendment I:

       Congress shall make no law respecting the establishment of 
     religion, or prohibiting the free exercise thereof; or 
     abridging the freedom of speech, or of the press; or the 
     right of the people peaceably to assemble, and to petition 
     the Government for a redress of grievances.

  I repeat, ``Congress shall make no law . . . abridging the freedom of 
speech. . . .''
  These are very simple words, but they are some of the most powerful 
and certainly most important words in the Bill of Rights and in our 
Constitution.
  I am certain that my colleagues in the Senate all realize our 
Founding Fathers, when crafting our Bill of Rights and our first 
amendment protections, had political speech--political speech 
specifically--in mind. They knew how important and vital and necessary 
free speech is to our political process and to the preservation of our 
democracy. They knew that democracy is stifled by muzzles and gags. 
They knew that free speech was necessary for our political system--our 
open, free political system--to function and, yes, to flourish. They 
knew that liberty without free speech is really not liberty at all.
  We all understand that none of our rights is absolute. In fact, there 
are constitutionally acceptable limits on political speech. For 
example, the Supreme Court has ruled that the government has an 
interest in regulating political speech when there is a clear and 
present danger that the speech will result in the imminent likelihood 
of violence. Also, the Court has said that defamation laws apply to 
political candidates, so as to protect them from statements that are 
knowingly false. In such situations, the government has a compelling 
interest in restricting the speech. I ask my colleagues: What is the 
government's overriding and compelling interest in restricting core 
political speech 60 days or less from an election--at the time most 
crucial to the public's interest in hearing and learning about 
candidates and their positions and incumbents and their voting records? 
How will restricting the most important speech at the most important 
time further our election process and political system? It clearly will 
not.
  The bottom line, Mr. President, is that core political speech is 
different from other forms of speech. It lies at the heart of the first 
amendment and deserves the highest--the utmost--level of protection. To 
that extent, I agree with Justice Thomas who said that political speech 
is the very speech that our founding fathers had in mind when actually 
drafting our Bill of Rights and our first amendment protection. Justice 
Thomas further argued that the key time for political speech is during 
campaigns. He wrote:

       The Founders sought to protect the rights of individuals to 
     engage in political speech because a self-governing people 
     depend upon the free exchange of political information. And 
     that free exchange should receive the most protection when it 
     matters the most--during campaigns for electrive office.

  The Supreme Court, in Buckley v. Valeo, emphasized the importance of 
protecting political speech. The Court wrote:

       The First Amendment denies government the power to 
     determine that spending to promote one's political views is 
     wasteful, excessive, or unwise. In the free society ordained 
     by our Constitution, it is not the government, but the 
     people--individually, as citizens and candidates, and 
     collectively, as associations and political committees--who 
     must retain control over the quality and range of debate on 
     public issues in a political campaign.

  The Court was telling Congress, essentially, to stay out. It was 
saying don't diminish the first amendment rights of citizens and 
organizations to participate in political debate. Don't restrict the 
means by which the people of this nation make informed decisions about 
candidates running for federal office.
  The fact is, Mr. President, in order to embrace the freedoms 
guaranteed by the first amendment, we must allow others to exercise 
those freedoms. Title II runs counter to that, and in the process, 
violates our Constitution.
  Title II hugely undercuts the McCain-Feingold campaign finance reform 
bill. It has turned the campaign finance debate on its head. It has 
turned the debate into a clear struggle over the soul of the first 
amendment, and ultimately, the preservation of our democracy.
  If we are to protect and preserve our democracy, we must allow the 
people to be heard. Voters cannot make informed decisions about 
candidates when political speech--when ideas and information about 
candidates--is restricted at the most pressing time. As voters, we make 
better decisions when there are more voices, more information, and more 
ideas on the table. Ideas competing with one another. That is the 
essence of democracy.
  That is the basis for political debate and challenges to public 
policy.
  That is the basis for how we make changes in our society--for how we 
make the world a better place. With all of the complexities of today's 
election laws and competing campaign finance reform plans, I think that 
Ralph Winter, the respected judge and former law professor, said it 
best when he noted that the greatest election reform ever conceived was 
the first amendment. He was right. Unfortunately, title II strikes at 
the first amendment by restricting the dissemination of information to 
voters and the open exchange of ideas that we so much treasure.
  The exchange of those ideas, Mr. President--through core political 
speech, whether it's two years, two months, two weeks, or two days 
before an election--is a prerequisite for democratic governance. That 
is the basis of our Constitution. We in Congress have an obligation to 
protect that Constitution--to protect our first amendment and the free 
flow of ideas. That, after all, is the spirit--the essence--the 
foundation of our democracy.
  What all of this means is simply this: If you are a citizens group, 
you are an American citizen, and you don't like what I am saying today 
or what this amendment does, or what my vote will be on final passage 
of this bill, under this bill, as currently written, you could not talk 
about any of this if it were right before a Federal election.

[[Page 4887]]

You could not use the airways and the TV and radio to criticize me or 
to talk about this vote and to talk about this amendment. If we accept 
this, it will silence a citizen's ability to tell the public about our 
voting records.
  What this language says is that we are afraid to let people tell the 
outside world what we do in the Senate. We can't do that. Rather, I 
believe we must protect the rights of the people. We must preserve our 
Constitution. We must not let that great Constitution, that great Bill 
of Rights, that first amendment be chipped away by efforts clearly 
aimed at protecting the self-interests of the incumbent political 
candidates. To do any less, as we change this, as we amend it, to do 
any less would fly in the face of our democracy and the American people 
whom we are here to serve.
  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. DOMENICI. Mr. President, I ask unanimous consent the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. I ask unanimous consent I may proceed as in morning 
business for 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Mexico is recognized.
  Mr. DOMENICI. I thank the Chair.
  (The remarks of Mr. Domenici pertaining to the introduction of S. 638 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. DODD. 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. DODD. Mr. President, I ask unanimous consent the order for the 
quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Mr. President, I now suggest a period of, say, 15 minutes 
for general discussion on an agreement that has been reached between 
Senator Thompson and Senator Feinstein. On the purpose of that 
discussion, why don't I yield to Senator Thompson of Tennessee to begin 
the discussion and then Senator Feinstein as time permits, as far as 
this agreement, or others who may want to talk about it. My hope would 
then be we would have legislative language which would include this 
compromise which we would be able to offer as a modification of the 
Thompson amendment, and a vote to occur thereon shortly after the 
debate is concluded.
  The PRESIDING OFFICER. Does the Senator have a unanimous consent 
request?
  Mr. DODD. No. We are just going to proceed in this regard.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. THOMPSON. Mr. President, I think the Senator from Connecticut is 
correct. Senator Feinstein and others and I have been meeting, talking 
about how we might come together for a unified modification of my 
amendment. As this body knows, my amendment was not tabled. Senator 
Feinstein's amendment was not tabled. That was the basis for our 
discussion.
  We acknowledge readily that it was certainly appropriate to increase 
the hard money limits in certain important categories.
  We had a full discussion of those categories of concerns and desires 
on either side.
  Pending the language and subject to comments of my distinguished 
colleague from California, I would like to basically outline the 
highlights of the crucial elements of this modification.
  The individual limitation to candidates, which now stands at $1,000, 
will be increased to $2,000 and indexed. The PAC limitation of $5,000 
under current law stays at $5,000. The State local party committees, 
which is now $5,000 a calendar year under current law, will go to 
$10,000 per year. The contribution to national parties, which under 
current law is limited to $20,000 a year, will go to $25,000 a year and 
be indexed at the base.
  The aggregate limit, which is now $25,000 per calendar year under 
current law, will go to $37,500 a year and be similarly indexed.
  We will double the amount that national party committees can give to 
candidates from $17,500 to $35,000 and be similarly indexed.
  A part of our agreement also has to do with the amendment originally 
from Senator Schumer, that was later incorporated into the Feinstein 
amendment, having to do with the 441 situation he described pending the 
Supreme Court decision in the Colorado case; that we expect a part of 
our agreement with regard to this modification is that it will not be a 
part of this Thompson-Feinstein modification but will get a vote 
separately shortly after the vote on this.
  I believe that basically outlines the major provisions of the 
agreement.
  I relinquish the floor and ask my distinguished colleague from 
California to make any statement she cares to.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Thank you very much, Mr. President. I thank the 
Senator from Tennessee, the Senator from Wisconsin, the Senator from 
Arizona, the Senator from Connecticut, the senior Senator from 
Mississippi, as well as the senior Senator from New York--all who 
participated in this negotiation.
  Essentially the question was around whether we could bring enough 
people together to settle what is a question that has become a major 
problem; that is, how do we account for inflation in hard money because 
it is likely we will not address this issue for another 20 or 30 or 40 
years. Therefore, this is a bill that has to stand the test of time.
  Many of us are deeply concerned that once you restrict soft money in 
campaigns and in parties, you create an opportunity for this soft money 
to go into the issue of advocacy of independent campaigns. It is 
undisclosed. It is unregulated. So what we want to try to avoid as much 
as we can is a transfer of millions of dollars of soft money from 
campaigns into millions of dollars of soft money into independent 
campaigns.
  The way we do this is by trying to find a modest vehicle by which we 
can come together and agree on how much an individual contribution 
limit should be raised. I am very pleased to say that contribution 
limit in the bipartisan agreement is $2,000. That $2,000 would be 
indexed, as will the other indexes I will speak about in a moment, for 
inflation from a baseline that is provided for in the statute.
  We came to agreement on the PACs--that PACs should remain the same; 
they should not be increased in amounts; they should remain at $5,000 a 
calendar year.
  We came to agreement on continuing State and local parties at the 
same amount as McCain-Feingold--$10,000. That was clear in the Thompson 
amendment, the Feinstein amendment, as well as the McCain-Feingold 
bill.
  Also, where we had the major discussion--I say a difference of 
viewpoint--was on the aggregate limit and the national party 
committees.
  The people who were negotiating are people who wanted to see a bill. 
And it was very difficult because each of our proposals was at the 
outer limits of our own political party. So it was very difficult to 
find a way to move forward.
  We did, however, in the Thompson amendment, which had $50,000 per 
calendar year for the aggregate limit, and it was agreed that we would 
drop that to $37,500 per year for the aggregate limit and that we would 
drop out of that the split I had proposed earlier in my statement.
  With respect to national parties, that would go from $20,000--just by 
$5,000 a year--to $25,000.
  Additionally, there are four things in this bill that are indexed. 
Again, the indexing is not compounded. It goes to the baseline in the 
statute for the candidate, for the national party per year amount, and 
for the aggregate amount.
  Also, there is a provision in Thompson we agreed to which would 
double the amount that national parties can give to candidates from 
$17,500 to $35,000. That would be indexed on the same baseline formula 
as the other items.

[[Page 4888]]

  In my view, and I hope in Senator Thompson's view, this gives us an 
opportunity to meet the future and to see that there is a modest 
increase. It is not a tripling of the individual limit. It is simply 
increasing it from $1,000 to $2,000 and then indexing it to inflation, 
but that there is a the basis now, we hope, where both sides can come 
together and vote for this bill.
  I, for one, happen to think the indexing is healthy. I think it gives 
us an opportunity that we don't come back again, to reopen the bill, 
but that we live by the bill as it is finally adopted.
  I really thank the Senator from Mississippi who began this fight with 
me. I thank the Senator from Tennessee for our ability to sit down 
together and have a turkey sandwich and also come to this agreement. I 
think it is a very important step forward for the bill.
  I thank the Senators from Wisconsin and Arizona for their persistence 
in moving this bill along.
  I yield the floor.
  May I ask if the modification is available?
  Mr. DODD. As my colleague spoke, an angel brought it. The 
modification has arrived.
  Mr. President, I 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. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cochran). Without objection, it is so 
ordered.


                      Unanimous Consent Agreement

  Mr. McCONNELL. Mr. President, under the provisions of the consent 
agreement, with the concurrence of Senator Feinstein, myself, and 
Senator Dodd, Senator Thompson will now send a modification to the 
desk.
  In addition, I ask unanimous consent that the Feinstein amendment be 
withdrawn and there now be 30 minutes of debate equally divided in the 
usual form prior to the vote on the Thompson amendment, as modified, 
with no amendments in order to the amendment. I further ask consent 
that following the vote, the pending DeWine amendment be set aside, 
Senator Schumer be recognized to offer an amendment, and there be 60 
minutes equally divided in the usual form. Finally, I ask consent that 
following the use or yielding back of the time, the Senate proceed to a 
vote on the Schumer amendment, with no amendments in order to the 
amendment.
  The PRESIDING OFFICER. Is there objection?
  The Chair hears none, and it is so ordered.
  The amendment (No. 151), as modified, was withdrawn.
  Mr. THOMPSON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. THOMPSON. Mr. President, it is my intention to send a 
modification to the desk very shortly. It might take a couple moments.
  Mr. DODD. To save a little time, if my colleague would yield, Mr. 
President, I have been looking at a couple drafting notes from 
legislative counsel. I have spoken on numerous occasions over the last 
several days of my concerns of raising the hard dollar limits that 
individuals may contribute on the theory that I do not think there is 
too little money in politics, on the contrary, I think there is too 
much money. We are shutting down the door of soft money. Fine, as it 
should be. However, my concern is that we are also banging open the 
back door with hard dollars amounts. To the average citizen in this 
country, there is no distinction between hard and soft money. We make 
the distinction for the reasons we are all aware of. What I believe is 
people are sort of disgusted with the volume and amount of money in 
politics. This agreement is one I am going to support. I do so 
reluctantly. However, I support the underlying McCain-Feingold bill. I 
think it is very important that we take steps forward to change the 
present campaign finance system. I regret we are adding to the hard 
dollar limits on contributions that individuals can make to candidates, 
national political parties, and overall aggregate annual limit.
  I come from a small State. I represent a State of 3.5 million people. 
My colleague from California represents a State 10 times that size. I 
recognize that there are distinctions between these States. For 
example, campaigning is far more costly in California than it is in a 
State such as my own. I accept there needs to be some increase.
  The modification Senator Thompson graciously worked out with Senator 
Feinstein exceeds what I would do. It is certainly less than what was 
offered by our colleague from Nebraska, Senator Hagel. It was less than 
what others wanted as well. It reduces substantially the aggregate 
amounts that were originally being offered at $75,000 per year or 
$150,000 a couple, down to $37,500 per calendar year. That still is too 
much, in my view, but it is a lot less than it otherwise could have 
been.
  There are some other changes dealing with individual contributions to 
State and local party committees and the national parties. However, the 
PAC limits remained the same. We provided indexing for inflation. 
Again, this is something I have reservations about. I recognize that in 
any legislative body, if you are trying to put together a bill where 
100 different people have something to say about it, and you have to 
produce 51 votes, then you are going to have to give up something if 
you are going to accomplish the overall goal.
  My overall goal has been for years to get McCain-Feingold adopted 
into law. However, it was not a goal I was going to accept regardless 
of what was in the bill. Had we gone beyond these individual 
contribution limits we had agreed to in these modifications, I would 
have had a very difficult time supporting the McCain-Feingold bill.
  I will support McCain-Feingold. I urge my colleagues to do so. We 
have other amendments to address on both sides. The Members have ideas 
they want to add to this bill. In my view, this is a worthwhile effort. 
I commend my colleague from Tennessee--he is a noble warrior, a good 
fighter and debater, and a good negotiator--and our colleague from 
California who likewise has championed a good cause. I thank Russ 
Feingold and John McCain. I know this goes beyond even what they would 
like to do. We recognize we can't do everything exactly as we would 
like to do it. I believe this modification still is within the realm of 
the McCain-Feingold restrictions. For those reasons, I will support the 
bill.


                     Amendment No. 149, As Modified

  The PRESIDING OFFICER (Mr. Brownback). Under the previous order, the 
Senator from Tennessee has the floor to send the modification to the 
desk.
  Mr. THOMPSON. Mr. President, the modification has been sent to the 
desk.
  The PRESIDING OFFICER. Under the previous order and without 
objection, the amendment is so modified.
  The amendment, as modified, is as follows:

       On page 37, after line 14, insert the following:

     SEC.   . MODIFICATION OF CONTRIBUTION LIMITS.

       (a) Increase in Individual Limits.--Section 315(a)(1) of 
     the Federal Election Campaign Act of 1971 (2 U.S.C. 
     441a(a)(1)) is amended--
       (1) in subparagraph (A), by striking ``$1,000'' and 
     inserting ``$2,000''; and
       (2) in subparagraph (B), by striking ``$20,000'' and 
     inserting ``$25,000''.
       (b) Increase in Aggregate Individual Limit.--Section 
     315(a)(3) of the Federal Election Campaign Act of 1971 (2 
     U.S.C. 441a(a)(3)), as amended by section 102(b), is amended 
     by striking ``$30,000'' and inserting ``$37,500''.
       (c) Increase in Senatorial Campaign Committee Limit.--
     Section 315(h) of the Federal Election Campaign Act of 1971 
     (2 U.S.C. 441a(h)) is amended by striking ``$17,500'' and 
     inserting ``$35,000''.
       (d) Indexing of Contribution Limits.--Section 315(c) of the 
     Federal Election Campaign Act of 1971 (2 U.S.C. 441a(c)) is 
     amended--
       (1) in paragraph (1)--
       (A) by striking the second and third sentences;
       (B) by inserting ``(A)'' before ``At the beginning''; and
       (C) by adding at the end the following:
       ``(B) Except as provided in subparagraph (C), in any 
     calendar year after 2002--
       ``(i) a limitation established by subsections (a)(1)(A), 
     (a)(1)(B), (a)(3), (b), (d), or (h) shall be increased by the 
     percent difference determined under subparagraph (A);

[[Page 4889]]

       ``(ii) each amount so increased shall remain in effect for 
     the calendar year; and
       ``(iii) if any amount after adjustment under clause (i) is 
     not a multiple of $100, such amount shall be rounded to the 
     nearest multiple of $100.
       ``(C) In the case of limitations under subsections 
     (a)(1)(A), (a)(1)(B), (a)(3), and (h) increases shall only be 
     made in odd-numbered years and such increases shall remain in 
     effect for the 2-year period beginning on the first day 
     following the date of the last general election in the year 
     preceding the year in which the amount is increased and 
     ending on the date of the next general election.''; and
       (2) in paragraph (2)(B), by striking ``means the calendar 
     year 1974'' and inserting ``means--
       ``(i) for purposes of subsections (b) and (d), calendar 
     year 1974; and
       ``(ii) for purposes of subsections (a)(1)(A), (a)(1)(B), 
     (a)(3), and (h) calendar year 2001''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to contributions made after the date of enactment 
     of this Act.

  Mr. THOMPSON. I yield 5 minutes to the Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I, too, commend the Senator from 
Tennessee. I would love to have gone further to really provide full 
indexation for the limits that were established in 1974, 26 years ago, 
and were thought to be appropriate at that time. But any increase in 
hard money limits is a step in the right direction.
  To give you an idea of what the world without soft money is going to 
look like for our national parties, we took a look at the 2000 cycle, 
the cycle just completed, and made an assumption that the party 
committees would have had to operate in 100 percent hard dollars, which 
is the way they will have to operate 30 days after this bill becomes 
law. The Republican National Committee would have had 37 million net 
hard dollars to spend had we converted the last cycle to 100 percent 
hard dollars. Under the current system, they had 75 million net hard 
dollars to spend. So the Republican National Committee would go from 75 
million net hard dollars that it had to spend last cycle down to $37 
million.
  The Democratic National Committee, in a 100-percent hard money world, 
last cycle, would have had 20 million net hard dollars to spend on 
candidates. In fact, it had $48 million under the current system. So 
the Democratic National Committee would go from 48 million net hard 
dollars down to 20 million net hard dollars, if you convert the last 
cycle into a 100-percent hard money world.
  Finally, let me take a look at the two senatorial committees. The 
Republican Senatorial Committee last cycle under the current system had 
14 million net hard dollars to spend on behalf of candidates. In a 100-
percent hard money world, they would have had about 1.2 million net 
hard dollars to spend for candidates. Our colleagues on the other side 
of the aisle, the Democratic Senatorial Committee, in the current 
system had 6 million net hard dollars to spend on their candidates. In 
a 100-percent hard money world, they would have had 800,000 hard 
dollars to have spent on all of their 33 candidates.
  The one thing that is not in debate, there is no discussion about it, 
this is going to create a remarkable, a huge shortage of dollars for 
the party committees. At least the Senator from Tennessee is trying, 
through negotiating an increase in the hard money limits for parties 
and providing indexation, to help compensate for some of this dramatic 
loss of funds that all of the party committees are going to experience 
30 days after this bill becomes law.
  I thank the Senator from Tennessee for the effort he made. I wish we 
could have done more. I hear there are plenty on the other side who 
wish we would have done less. This is at least a step in the right 
direction.
  We are going to have a massive shortage of funds in all of the 
national party committees to help our candidates. It is going to be a 
real scramble. Hopefully, this will help a bit make up at least a 
fraction of what is going to be lost on both sides that will be 
available for candidate support.
  I intend to support the amendment of the Senator from Tennessee.
  Mr. THOMPSON. Mr. President, do I control the time?
  The PRESIDING OFFICER. The Senator controls 11\1/2\ minutes.
  Mr. THOMPSON. I ask the Senator from Arizona if he wishes to be heard 
at this time.
  Mr. McCAIN. One minute.
  Mr. THOMPSON. I yield 1 minute to the Senator from Arizona.
  Mr. McCAIN. Mr. President, I want to take a minute to thank Senator 
Feinstein and Senator Thompson. I have been privileged to see 
negotiations and discussions between people of good faith and a common 
purpose. I was privileged to observe that in the case of Senator 
Thompson and Senator Feinstein. The Senator from Oklahoma, Mr. Nickles, 
was very important, as was the Senator from Michigan, Mr. Levin, as 
well as Senator Hagel of Nebraska and others, as well as the Senator 
from New York, Mr. Schumer. I know I am forgetting someone in this 
depiction.
  I am proud that people compromised without betraying principle to 
come to a common ground so we can advance the cause of this effort. I 
express my deep and sincere appreciation to those Senators who made 
this happen, as well as our loyal staffs.
  Mr. THOMPSON. Mr. President, I yield 2 minutes to the Senator from 
Wisconsin.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I thank the Senators who took the lead 
in the negotiations, especially the Senator from Tennessee who, again, 
has had so much to do with this reform, and the Senator from 
California. They were extremely skilled at bringing us together. I 
thank Senator McCain, Senator Cochran, who was part of the effort, 
Senator Feinstein, Senators Dodd, Levin, Schumer, of course, Senators 
Reid and Daschle, Senators Nickles and Hagel, who were all involved.
  I join in the remarks of the Senator from Connecticut. This 
particular amendment doesn't move in the direction that fits my 
philosophy. I believe we should stay where the levels are, as do many 
of my Democratic colleagues. I very regretfully came to the conclusion 
that we had to do it. I realized if we are going to get at the No. 1 
problem in our system today, the loophole that has swallowed the whole 
system, as Senator Thompson has said, we had to make this move.
  I am grateful that we were able to keep the individual limit increase 
to a reasonable level. Although I would prefer that it not be indexed, 
I will note, at least we won't have to hear anymore that it isn't 
indexed for inflation because it is. So the next time Senators have to 
deal with this issue 20 years from now or 30 years from now, at least 
that very troubling and persistent argument will not be there.
  I thank all my colleagues and look forward to the vote on the 
amendment.
  Mr. THOMPSON. How much time is remaining?
  The PRESIDING OFFICER. The Senator from Tennessee controls 8 minutes 
45 seconds. The Senator from Connecticut controls 11 minutes 30 
seconds.
  Mr. DODD. Mr. President, I don't know of any other requests to speak. 
I think people are familiar with this issue. Does my colleague from 
California wish to be heard?
  Mrs. FEINSTEIN. I think I have said what I needed to say. Maybe we 
can concede the rest of our time and have a vote.
  Mr. DODD. I am prepared to yield back our time and go to a vote. We 
have other amendments on this side. There are several over there. We 
have to keep things going.
  Mr. THOMPSON. I am prepared to yield back our time.
  Mr. DODD. We yield back our time.
  Mr. THOMPSON. Have the yeas and nays been ordered?
  The PRESIDING OFFICER. Yes, the yeas and nays have been ordered.
  Mr. THOMPSON. I suggest that we proceed to a vote.
  The PRESIDING OFFICER. The question is on agreeing to the amendment 
of the Senator from Tennessee, Mr. Thompson, No. 149 as modified.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.

[[Page 4890]]

  The PRESIDING OFFICER (Mr. Brownback). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 84, nays 16, as follows:

                      [Rollcall Vote No. 55 Leg.]

                                YEAS--84

     Akaka
     Allard
     Allen
     Bayh
     Bennett
     Bingaman
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Kennedy
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reid
     Roberts
     Rockefeller
     Santorum
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner

                                NAYS--16

     Baucus
     Biden
     Boxer
     Conrad
     Dorgan
     Harkin
     Hollings
     Johnson
     Kerry
     Miller
     Murray
     Reed
     Sarbanes
     Stabenow
     Wellstone
     Wyden
  The amendment (No. 149), as modified, was agreed to.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, again on the wings of angels, the Senator 
from New York has arrived.
  The PRESIDING OFFICER. The Senator from New York is recognized to 
offer an amendment.


                           Amendment No. 135

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

       The Senator from New York [Mr. Schumer] proposes an 
     amendment numbered 135.

  Mr. SCHUMER. 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 express the sense of the Senate regarding the need for 
 Congress to consider and enact legislation during the 1st session of 
     the 107th Congress to study matters related to voting in and 
administering Federal elections and to provide resources to States and 
        localities to improve their administration of elections)

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

     SEC. 305. SENSE OF THE SENATE.

       (a) Findings.--The Senate finds that--
       (1) the right to vote is fundamental under the United 
     States Constitution;
       (2) all Americans should be able to vote unimpeded by 
     antiquated technology, administrative difficulties, or other 
     undue barriers;
       (3) States and localities have shown great interest in 
     modernizing their voting and election systems, but require 
     financial assistance from the Federal Government;
       (4) more than one Standing Committee of the Senate is in 
     the course of holding hearings on the subject of election 
     reform; and
       (5) election reform is not ready for consideration in the 
     context of the current debate concerning campaign finance 
     reform, but requires additional attention from committees 
     before consideration by the full Senate.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that the Senate should schedule election reform legislation 
     for floor debate not later than June 29, 2001.

  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. How much time do I have, Mr. President?
  The PRESIDING OFFICER. Under the previous order, the two sides have 
30 minutes each to debate the amendment.
  Mr. SCHUMER. Mr. President, I am here to urge my colleagues to 
support an amendment that is of great importance to the future of 
McCain-Feingold and to the bill in general that we are debating, 
particularly in light of the fact we have just raised hard money 
limits. Let me explain to my colleagues what this is all about.
  Mr. President, may we have order.
  The PRESIDING OFFICER. The Senate will be in order.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, can I suspend for a minute? I believe 
they have read the wrong amendment at the desk.
  I ask unanimous consent the previous amendment be withdrawn.
  The PRESIDING OFFICER. Without objection, the amendment is withdrawn.
  The amendment (No. 135) was withdrawn.


                           Amendment No. 153

  Mr. SCHUMER. Mr. President, I have an amendment at the desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The bill clerk read as follows:

       The Senator from New York [Mr. Schumer] proposes an 
     amendment numbered 153.

  Mr. SCHUMER. Mr. President, 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 condition the availability of television media rates for 
  national committees of political parties on the adherence of those 
          committees to existing coordinated spending limits)

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

     SEC. __. TELEVISION MEDIA RATES FOR NATIONAL PARTIES 
                   CONDITIONED ON ADHERENCE TO EXISTING 
                   COORDINATED SPENDING LIMITS.

       (a) Availability of Television Media Rates.--Section 
     315(b)(2) of the Communications Act of 1934 (47 U.S.C. 
     315(b)(2)), as amended by this Act, is amended--
       (1) by striking ``Television.--The charges'' and inserting 
     ``Television.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     the charges''; and
       (2) by adding at the end the following:
       ``(B) Limitations on availability for national committees 
     of political parties.--
       ``(i) Rate conditioned on voluntary adherence to 
     expenditure limits.--If the limits on expenditures under 
     section 315(d)(3) of the Federal Election Campaign Act of 
     1971 are held to be invalid by the Supreme Court of the 
     United States, then no television broadcast station, or 
     provider of cable or satellite television service, shall be 
     required to charge a national committee of a political party 
     the lowest charge of the station described in paragraph (1) 
     after the date of the Supreme Court holding unless the 
     national committee of a political party certifies to the 
     Federal Election Commission that the committee, and each 
     State committee of that political party of each State in 
     which the advertisement is televised, will adhere to the 
     expenditure limits, for the calendar year in which the 
     general election to which the expenditure relates occurs, 
     that would apply under such section as in effect on January 
     1, 2001.
       ``(ii) Rate not available for independent expenditures.--If 
     the limits on expenditures under section 315(d)(3) of the 
     Federal Election Campaign Act of 1971 are held to be invalid 
     by the Supreme Court of the United States, then no television 
     broadcast station, or provider of cable or satellite 
     television service, shall be required to charge a national or 
     State committee of a political party the lowest charge of the 
     station described in paragraph (1) with respect to any 
     independent expenditure (as defined in section 301 of the 
     Federal Election Campaign Act of 1971).''.
       (b) Federal Election Commission Rulemaking.--Section 315(d) 
     of the Federal Election Campaign Act of 1971 (2 U.S.C. 
     441a(d)) is amended by adding at the end the following:
       ``(4) If the limits on expenditures under paragraph (3) are 
     held to be invalid by the Supreme Court of the United States, 
     the Commission shall prescribe rules to ensure that each 
     national committee of political party that submits a 
     certification under section 315(b)(2)(B) of the 
     Communications Act of 1934, and each State committee of that 
     political party described in such section, complies with such 
     certification.''.
       (c) Severability.--If this section is held to be 
     unconstitutional, the remainder of this Act and amendments 
     made by this Act, and the application of the provisions and 
     amendments to any person or circumstance, shall not be 
     affected by the holding.

  Mr. SCHUMER. Mr. President, this amendment is vital to the 
effectiveness of McCain-Feingold, particularly in light of the increase 
in hard money limits which we have passed by a large margin in the 
Thompson-Feinstein amendment. It is necessary because of an impending 
Court decision. The Supreme Court has already heard the case and is 
about to issue a decision related to the 441(a)(d) limits.
  Let me first explain what the 441(a)(d) limits are, what the Court 
case is, what it does, and why it is so important. As we all know, 
there are 441(a)(d) limits, whereby a national party--in this case the 
Democratic

[[Page 4891]]

Senatorial Campaign Committee or the National Republican Senatorial 
Committee--can contribute a certain amount of money directly to a 
candidate. There is complete coordination allowed between the party and 
the candidate by the recent Supreme Court decision. That amount of 
money is limited by the amount of voters in the State. It is 2 cents a 
voter, so it runs from a high of over $2 million in California, $1.8 
million in my State of New York, down to a low in the State of Wyoming 
and places such as that, probably no more than a couple of hundred 
thousand dollars.
  The case before the Supreme Court, which is called FEC v. Colorado 
Republican Federal Campaign Committee, has been argued. There it has 
been argued that those limits should be lifted, that there should be no 
limit as to the amount of money a national party organization can give 
to a candidate for the Senate or for the House.
  What this would do, if the Court should rule favorably and uphold the 
lower court, is very simple. It would allow parties to go around and 
raise money in large, large amounts. After the Feinstein amendment that 
has passed, that would be $25,000 a year or $150,000 per 6-year Senate 
cycle. And then with complete coordination, the party could give that 
money to any particular candidate.
  The consequences are obvious. The $1,000 or $2,000 limit that we now 
have would become much less important and large donors could 
contribute, through the national parties, obscenely large amounts of 
money to candidates. In effect, the Court decision would, if the 
441(a)(d) limits were lifted, pull the rug out from under McCain-
Feingold, all the more so because of the increase we have made in hard 
money limits.
  You can call it hard, you can call it soft--it is large. The whole 
purpose of getting rid of soft money was not that it was soft, per se, 
but rather it was so large that it was unlimited. Imagine, after 
passing McCain-Feingold and having it signed into law--which I hope 
will happen--that the Supreme Court could make that ruling and then we 
basically go right back to the old days, where large contributions 
governed. That, in my judgment, would be a serious error on our part. 
That, in my judgment, would so undermine McCain-Feingold that we would 
have to be back here next year changing the law again.
  I have heard colleague after colleague say we will not come back for 
20 years. If the Court rules in favor of Colorado Republican Federal 
Campaign Committee, which most of those who have looked at the case 
believe they will, we will not be back here in 20 years; we may be back 
here in 20 months.
  The amendment I have offered tries to ameliorate these conditions. In 
all candor, it does not eliminate them, but it does make them better. 
It does it very simply by saying, if a candidate should wish to go 
above the 441(a)(d) limit, the 2 cents per voter in his or her State, 
they cannot take advantage of the low-rate television time that is now 
offered in McCain-Feingold.
  It is an incentive as many other incentives--to have candidates abide 
by limits. Again, could a candidate still violate those limits? Yes. 
They would just pay a lot more for their television advertising, which 
of course is the No. 1 expenditure in just about every hotly contested 
race.
  Some have brought up the issue of constitutionality. Others have 
asked: Why are we legislating this at the time when we do not even know 
how the Court will rule? In answer to the second question, this 
amendment has no effect if the Court rules to keep the 441(a)(d) 
limits. No one can go over them and the mandatory limit will be held as 
constitutional. That is just fine. This amendment is designed to deal 
with the advent, the likely advent that the Supreme Court does rule. If 
we should fail to pass this amendment, which I know is subject to 
heated debate--the parties feel quite differently about this and I 
expect the vote will be very close, but if we should fail to pass it, I 
would say on the individual side, not on the corporate and labor side, 
80 percent, 90 percent of McCain-Feingold will be undone.
  It will allow a couple to give, through the party, $300,000 to a 
Senate candidate. It is true, of course, that the party cannot solicit 
them and say that we will, for sure, contractually almost, give the 
money to that candidate. But they can do virtually everything but. It 
would also allow a party to go to someone and say: Give us $100,000 
over the next few years and we will give $25,000 to our four toughest 
races.
  The whole idea of McCain-Feingold to stick to the $1,000 and the 
$2,000, or now the $2,000 and $4,000 limits, would be undone, again 
constitutionality, which seems to be the major argument against this.
  In the amendment is the severability clause, and in that severability 
clause we say, of course, if this is thrown out, it will not affect the 
rest of the McCain-Feingold bill. Some say that is not necessary. But 
we put it in there just to deal with anyone who was not satisfied with 
the general language in the bill.
  Second, on constitutionality, the courts have ruled repeatedly that 
voluntary limits may be placed on speech to further other goals.
  The underlying case is Buckley v. Valeo which said that a government 
benefit can be conditioned on a candidate's voluntary agreement to 
forego other sources of funding. The $1,000 limit on Buckley v. Valeo 
is very simple. It has been in existence and upheld and would apply in 
this case.
  Another case in 1979 where the Presidential limits were challenged is 
also applicable. It is called RNC, the Republican National Committee, 
versus the FEC. I believe it is a 1979 case before the Supreme Court. 
There again it was stated that in return for limits on campaign 
contributions--in this case, the Presidential limits, which every 
Presidential candidate until George Bush of this year abided by--the 
government could confer benefit, in this case money.
  The only difference with what we are doing is instead of providing 
money to benefit, they are providing low television rates, which is in 
a sense money.
  It is perfectly clear, and it has been repeated by the courts, that a 
voluntary limit on speech in exchange for another benefit that helps 
further that same goal is constitutional.
  I know some have seen the Colorado case. If they bring it up, I will 
rebut it.
  But I want to conclude before I yield my time by pleading with my 
colleagues to support this amendment. I salute all those of us who have 
worked on McCain-Feingold. I salute both the Senator from Arizona and 
the Senator from Wisconsin for their leadership, the Senator from 
Kentucky, and the Senator from Connecticut for conducting this debate 
in a fair, admirable, and open fashion, and all the others who have 
worked on this issue.
  Everyone sort of had a vested interest in seeing that this amendment 
passes. I would like to see it pass. But it would be a shame if we pass 
the amendment only to see it undone in large part 3 months from now. It 
would increase the cynicism of the public. It would increase for 
thousands of us who believe in reform the view that nothing could be 
done, and it would make it harder to continue reform. It would be close 
to a tragedy.
  After all the work done by so many, if the 441(a)(d) limits were 
lifted and hard money could cascade into candidacies just the way soft 
money does now, we would be making a major mistake.
  I urge my colleagues to support this amendment. I reserve the 
remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. McCONNELL. Mr. President, last week Senator Schumer stated that 
the Supreme Court's decision in FEC v. Colorado Republican Federal 
Campaign Committee could deluge the system with unlimited amounts of 
money raised in enormous amounts through the national parties for 
specified campaigns.
  This statement was false.
  As Senator Schumer recognized, the Colorado case is about coordinated 
party expenditures by the national committees on behalf of House and 
Senate candidates.
  The FECA has a formula to calculate these limits based on the size of 
the

[[Page 4892]]

state which ranged from $135,000 in Montana to $3,200,000 in California 
in 2000.
  Senator Schumer's attempt to portray these expenditures as soft 
dollar contributions is false. Coordinated party expenditure always 
have been, and always will be 100 percent hard money.
  The hard money limits to the national committees which were set in 
1974 are $20,000 per year for an individual and $15,000 per year from a 
PAC.
  The coordinated party limits at issue in the Colorado case are the 
last vestige of spending limits in FECA.
  In 1976 the Supreme Court in Buckley struck down expenditure limits 
on candidates and their committees and limits on independent 
expenditures.
  In 1996 the Supreme Court in Colorado I ruled that party committee's 
can make independent expenditures, in addition to coordinated 
expenditures. (See sec. 213 of S. 27) The Court remanded the question 
of the coordinated limits back to the district court which became the 
Colorado case pending before the court today.
  If the Supreme Court strikes down the coordinated party limits in the 
Colorado case, the only impact is that national parties will be able to 
spend unlimited amounts on behalf of their candidates.
  However, these expenditures must still be all hard dollars, raised 
under the limits of FECA.
  As for concern that striking these limits will lead to enormous 
amounts of party money going into the system, I would point out that in 
the 2000 cycle, Republican parties spent $28,000,000 on all coordinated 
expenditures and Democratic parties spent $20,000,000. This is the 
total for all races--Presidential, Senatorial and Congressional--470 
races nation-wide.
  Senator Schumer also presented a scenario where national parties are 
a mere pass-through for candidates.
  This is false for soft dollars.
  For hard dollars it is called earmarking.
  Current law permits donors to earmark contributions through national 
party committees directly to be used on a specific candidate's behalf. 
However, it is subject to the $1,000 contribution limit.
  For example, if a donor gives $1,000 to the RNC and directs it to a 
specific candidate, the $1,000 is a contribution to the candidate.
  However, if a donor gives $20,000 to the DSCC and directs it to be 
spent on behalf of a specific candidate, it is a $20,000 contribution 
to that candidate--a violation of the contribution limits under FECA.
  This has been tried before and squarely rejected.
  In 1995 the DSCC paid the largest civil fine ever by a national 
committee for engaging in this type of activity.
  In that case the DSCC and democratic Senate candidates were raising 
large amounts of money into the DSCC to be ``tallied'' for use on that 
candidate's behalf. These contributions were earmarks and exceeded the 
contribution limits to candidates.
  The DSCC was fined $75,000, forced to end that tally program and was 
and is required to include specific language on all solicitations 
clarifying that money raised into the DSCC is spent ``as the Committee 
determines within its sole discretion.''
  To be clear, coordinated expenditures are made with all hard dollars 
given to the party committees and cannot be restricted for use on 
specific candidates.
  So there is simply no legal way to circumvent that law. The 
constitutional problem with the Schumer amendment is that if the 
Supreme Court strikes down the coordinated limit as unconstitutional, 
then the Schumer provision will require parties to continue to abide by 
an unconstitutional limit in order to get the lowest unit rate.
  This is a classic unconstitutional condition and would make the whole 
bill further subject to problems in Court.
  I hope the Schumer amendment will not be approved.
  It is my understanding that there is a desire on both sides to have a 
quick vote. Is that correct?
  Mr. DODD. Yes. If I may, Mr. President, let me respond to my 
colleague from Kentucky by saying that this amendment has been debated 
and discussed. The Senator from New York has, I know, at on least three 
different occasions explained this amendment and the value of it.
  I think we have had a pretty good debate. I recommend to my friend 
and colleague from Kentucky that we have a vote on or in relationship 
to the Schumer amendment at 5:20.
  I believe there is a meeting for some of our colleagues at the White 
House at around 5:30. My hope would be we might have this vote before 
that meeting occurred. That would give those who would like to be heard 
on this amendment some time to come to the floor and to express their 
views on this.
  Mr. McCONNELL. I say to my colleague from Connecticut, it would be 
helpful if it were even a little bit earlier, at 5:10 or 5:15.
  Mr. DODD. We can do that. I will try to accommodate you on that. The 
message has gone out. Why don't I take a few minutes myself. Certainly 
my colleague from New York should have 5 minutes or so to respond to 
some of the arguments made.
  Let me say in relation to this amendment, the Senator from New York, 
as he has done characteristically throughout his public career--
certainly as long as I have known him as a Member of the other body and 
as a new Member of this body--has literally discovered, in a sense, 
what could be the new soft money loophole if we do not deal with this.
  I say to my colleagues, for those who care about McCain-Feingold, 
care about what we are trying to do on soft money, as almost every 
legal expert in the country who is knowledgeable about campaign finance 
laws has predicted will be the Supreme Court decision in the Colorado 
case II. The section 441(a)(d) coordinated expenditure limits will be 
held unconstitutional by a majority of the Supreme Court in the 
Colorado II case. The practical results is that when spending limits on 
the national parties are removed from the hard dollar cap, then the 
parties can contribute to Federal candidates, directly or indirectly, 
with unlimited sums of money. If I have misspoken here, my colleague 
from New York will correct me. I believe this summarizes the sum and 
substance we believe is about to happen. If, of course, the Supreme 
Court goes the other way and rule the section 441(a)(d) limits 
constitutional, then this amendment has no effect. But if the 
coordinated spending limits are overturned, as the Senator from New 
York has predicted, and as others have suggested, we will not be 
obligated to return to this subject matter. Knowing how painful it is 
to spend as many days as we have already talking about campaign finance 
issues, it could well be another 25 years before we would come back to 
this subject matter.
  In the meantime, we could have a Supreme Court decision that would 
blow open the doors for hard money, or the new soft money loophole, 
having spent all these days working to shut down the existing soft 
money loophole and limiting the hard dollar contributions in order to 
slow down the money chase.
  Let me quickly add, again, I voted for the Thompson modified 
amendment. I did so reluctantly. I disagree with the notion that we had 
to increase these hard dollar limits of individual contributors by as 
much as the Thompson modification allowed.
  Now to reject the Schumer amendment, and by doing so allow unlimited 
hard dollar contributions would fly right in the face of everything a 
majority of us have spent the last 10 days working to accomplish. We 
have improved, in my view, the McCain-Feingold bill. It is a better 
bill in many ways than it was when it came to the floor a week and a 
half ago.
  If we now reject this amendment, in light of what is clearly going to 
happen in the court, we will undo much of what we have done, not only 
over this past week and a half, but what Senator McCain and Senator 
Feingold have achieved, along with those of us who have sponsored or 
cosponsored their efforts over the past several years.
  So I urge my colleagues to take a close look at this. Try to 
understand

[[Page 4893]]

what the Senator from New York is saying here. He is saying if, in 
fact, the coordinated party expenditure limits are ruled 
unconstitutional, then we need to provide a voluntary mechanism for how 
such limitations may be dealt with. He does it in a way that tracks the 
two Supreme Court decisions in the Colorado Republican cases and on 
first amendment issues very successfully. Having read these decisions 
carefully, he has now crafted a proposal that is directly in sync with 
these decisions, including the projected decision in Colorado II, where 
nexus has to occur between the activities and there is no mandatory 
requirement attached.
  While I am not an expert in this area of the constitution, but based 
on what I have read, if you meet the two criteria I suggested, then 
your proposal can pass constitutional muster. I think it is our 
collective judgment to move forward in this area.
  Last week we passed an amendment that would prohibit millionaires 
from running against us incumbents. We allowed the hard dollar 
contributions to immediately go up if someone out there challenges us. 
If the challenger suggests he or she might spend half a million dollars 
of their own money against us, then the trigger threshold comes into 
play. I voted against it because I thought it was a ludicrous 
amendment. But, if you felt comfortable that amendment was adopted and 
you are protected from the personal wealth of challengers, then don't 
start breathing a sigh of relief now. The millionaire amendment is 
here. I would pause before I would enjoy the sense of security. If this 
amendment is rejected, then you could face million-dollar contributions 
going to your opponent if, in fact, the Supreme Court does what many 
think it will do, and strike down the spending limits.
  So, again, whether you are a proponent or opponent of McCain-
Feingold, I think you ought to support this amendment. None of us 
here--nor any challenger--should face the possibility of watching 
almost unlimited contributions come through national or State parties 
to fund these races without any restrictions at all. Particularly after 
a majority of us--a significant majority of us--believe there should be 
some limitations, some slowing down of a process here the amount of 
money is getting out of hand.
  With that, Mr. President, I see my colleague from Michigan who has 
been eloquent on this subject matter and understands it almost as well 
as the Senator from New York and certainly far more than the Senator 
from Connecticut. So I would be happy to yield to him 2 or 3 minutes to 
correct any mistakes I may have made in describing what this amendment 
does and how it works.


  The PRESIDING OFFICER (Mr. Allard). The Senator from Michigan.
  Mr. LEVIN. Mr. President, I thank my good friend from Connecticut. I 
wish I could come close to him in terms of knowledge of this subject, 
or my friend from New York.
  I just want to very briefly say one thing. We have been guided so 
far, a majority of us, by a principle; and that principle is, there 
should be limits. That is what this debate is all about. We have limits 
on individual contributions. We have now decided what those limits 
would be. We have limits on PAC contributions, limits to PACs, limits 
to State and party committees, limits on national party committees, and 
aggregate limits.
  What this debate is about is restoring limits to campaign 
contributions. Without McCain-Feingold, or a variant thereof, we have 
the status quo: Unlimited contributions to campaigns. Despite the fact 
that our law--our law--says there should be limits, there has been a 
loophole created which has destroyed that law--destroyed the limits--
and we have seen the result.
  There is one potential loophole left. That is the loophole which the 
Senator from New York and the Senator from Connecticut have identified. 
That loophole is, assuming the Supreme Court finds as many think is 
likely they will find, the amount of money which could be contributed 
to a candidate by a political party would be unlimited. Without this 
kind of an effort to set some kind of limit on those contributions, it 
seems to me we would be violating the very principle that has guided 
the majority of us in this debate so far.
  So I hope we will not give up on that principle. I hope we will be 
guided by that principle--the principle of the restoration of limits, 
the preservation of limits, the protection of some limits--because the 
unlimited amounts of money which have come into these campaigns, it 
seems to me, have degraded the process, and degraded all of us in the 
process.
  So I commend our good friend from New York for identifying this 
problem. I hope this will be a bipartisan vote of support, to basically 
do what the law already intends to do, to set limits on the 
contributions of parties to candidates. That is in the current law. 
There is a formula that we are simply trying to protect in the event 
that the Supreme Court says that process does not pass constitutional 
muster.
  We knew 25 years ago--and we know now--that limits are important, 
that unlimited, excessive contributions can create a problem in terms 
of public confidence. This is the one area left which is critical to 
the principle in McCain-Feingold.
  I hope that the amendment of the Senator from New York is adopted, 
and that it is adopted with a bipartisan vote, because it is so key to 
this bill accomplishing what it set out to do: Restoration, 
preservation, protection, of some limits on contributions.
  I thank the Chair.
  Mr. DODD. Does my colleague from Kentucky wish to be heard?
  Mr. McCONNELL. I tell my friend from Connecticut, I think we are 
ready to vote.
  Mr. DODD. I think the Senator from New York wants 2 minutes to wrap 
up before the vote.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank the Senator from Connecticut for 
his leadership and his cogent explanation. With my lack of 
articulateness, it has taken a few days for me to convince the Chamber 
that this issue is important, and within 5 minutes the Senator from 
Connecticut and the Senator from Michigan have summed it up well.
  We are here now because we realize how important this issue is. It 
was said exactly right, in answer to the Senator from Kentucky; some 
things that are unconstitutional when mandatory are perfectly 
constitutional when voluntary. This is the case now.
  I find it interesting that my friend from Kentucky is talking about 
the unconstitutionality of this provision when yesterday he voted for 
one and said: I knew it was unconstitutional, but it will help bring 
the bill down. Maybe he wants to do the same on this amendment.
  Mr. McCONNELL. If the Senator will yield.
  Mr. SCHUMER. I am happy to yield.
  Mr. McCONNELL. I will change my position, if he keeps talking.
  Mr. SCHUMER. I want him to change his position. I want to reiterate 
to my colleagues, this is a crucial amendment. If we don't pass it, we 
will come back 6 months from now and say, why didn't we do it, because 
all the work on McCain-Feingold, much of the work on McCain-Feingold--
not all of it but certainly much of it--will be undone.
  As my friend from Michigan said, limits are the theme of this bill. 
To say that we want to limit soft money but put no limits on hard money 
makes no sense. They are both greenbacks. Too much of one and too much 
of the other is not a good thing in our political financing system. 
That is all our amendment seeks to undo. It is reasonable. It is 
completely within the theme of McCain-Feingold.
  I fear that if it is not passed, we will have trouble passing the 
bill as a whole, and, worse than that, we will have undone a good 
portion of what we tried to do with McCain-Feingold.
  Mr. DODD. Mr. President, the proponents of the amendment are prepared 
to yield back the remainder of our time.
  Mr. McCONNELL. Mr. President, I yield back such time as may remain on 
this side.
  Mr. DODD. Mr. President, I ask for the yeas and nays on the Schumer 
amendment.

[[Page 4894]]

  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the Schumer amendment No. 153. 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 52, nays 48, as follows:

                      [Rollcall Vote No. 56 Leg.]

                                YEAS--52

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Torricelli
     Wellstone
     Wyden

                                NAYS--48

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
  The amemdment (No. 153) was agreed to.
  Mr. DODD. I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Connecticut.


                           Amendment No. 152

  Mr. DODD. What is the pending business?
  The PRESIDING OFFICER. The pending business is the amendment of the 
Senator from Ohio, Mr. DeWine.
  Mr. DODD. On our side, I know the opponents have a request for about 
20 minutes. I don't know if the Senator from Ohio is prepared to accept 
a time agreement so we know when the next amendment might occur.
  Mr. DeWINE. I am not prepared to enter into a time agreement. I will 
tell my colleague that I don't anticipate it will be very long. We have 
a couple of speakers and we will be done. I don't want to enter into a 
time agreement, but I think the projection we see of votes at 6:30, I 
certainly think we will make that.
  Mr. McCONNELL. Mr. President, for the information of our colleagues, 
on this side of the aisle, I am aware of about eight amendments, some 
of which I hope will disappear. I hope by announcing this I do not 
encourage the proliferation of more. Also, it is my understanding that 
a discussion is underway to water down or mitigate the coordination 
language in the underlying bill at the request of organized labor. I 
assume we will see that amendment at some point during the process. I 
don't know whether Senator Dodd has any idea how many amendments may be 
left on his side.
  Mr. DODD. Mr. President, in response to my friends and colleague from 
Kentucky, I have 21 amendments. Now, we all have been down this road in 
the past. How many of those will actually be offered--I know around 12 
at this juncture. I have asked the authors of these amendments how 
serious they are, and I would say around 12 or 13 feel very adamant. 
They may not need much time. We don't necessarily need 3 hours as the 
bill requires or allows.
  We are constantly working, trying to see if we can't get this number 
down. We have a list. We are prepared to go with several amendments. I 
have Senator Bingaman with amendments ready; Senator Durbin has 
amendments ready; Senator Harkin has amendments ready. We are prepared 
to move along based on the schedule the leadership wants to endorse.
  Mr. McCONNELL. It is my understanding the desire of the leadership is 
to finish up the debate on the DeWine amendment tonight. I understand 
the Senator from Ohio is not interested in a time agreement at this 
point but to have the vote in the morning.
  In the meantime, I say to my colleague from Connecticut and others, 
with regard to any amendment that might be offered to reduce the 
opposition of the AFL-CIO to the bill by massaging the coordination 
language, we would like to see that when it is ready. That is the 
amendment I have been predicting for a week and a half, that there 
would be at some point an effort to water down the coordination 
language in the underlying McCain-Feingold bill in order to placate the 
AFL-CIO. We are anxious to see that language. I am sure it will pass, 
once offered, but we are anxious to take a look and make sure all 
Members of the Senate are aware of the substance of it.
  It looks as though I may have fewer amendments to deal with than 
Senator Dodd. I suspect the sooner we shut up, the Senator from Ohio 
can continue his discussion of his amendment.
  Mr. DODD. I am for that.
  Mr. McCONNELL. I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I have used about 30 minutes of my time 
and I think at this point I yield the opponents some of their time.
  For the information of Members of the Senate, we have one or two 
speakers who will not speak very long, and we will be prepared to vote.
  Mr. DODD. Mr. President, I yield 6 or 7 minutes to my colleague from 
Vermont in opposition to the DeWine amendment.
  Mr. JEFFORDS. Mr. President, I rise today to once again discuss the 
Snowe-Jeffords provisions in the Bipartisan Campaign Reform Act. My 
focus today will be rassuring you that the Snowe-Jeffords provisions 
are constitutional.
  We took great care in crafting our language to avoid violating the 
important prrinciples in the first amendment of our Constitution. In 
reviewing the cases, limiting corporate and union spending and 
requiring disclosure have been areas that the Supreme Court has been 
most tolerant of regulation.
  Since 1907, federal law has banned corporations from engaging in 
electioneering. In 1947, that ban was extended to prohibit unions from 
electioneering as well. The Supreme Court has upheld these restrictions 
in order to avoid the corrupting influences on federal elections 
resulting from the use of money by those who exercise control over a 
large amount of capital. By treating both corporations and unions 
similarly we extend current regulation cautiously and fairly.
  We also worked to make our requirements sufficiently clear and narrow 
to overcome unconstitutional claims of vagueness and overbreadth. This 
required us to review the seminal cases in this area, including Buckley 
v. Valeo. I have heard some of my colleagues argue that Buckley clearly 
shows that the Snowe-Jeffords provisions are unconstitutional. I must 
disagree most strongly with that reading.
  In fact, the language of the case should--must be read to show that 
the Snowe-Jeffords provisions are constitutional. In Buckley the court 
limited spending that was ``for the purpose of influencing an 
election.'' As I noted in my speech last Friday, 80 percent of the 
voters, an overwhelming majority, see these sham issue ads as trying to 
influence their vote and the outcome of the election.
  Buckley also allowed disclosure of all spending, ``in connection with 
an election.'' As I discussed last Friday, 96 percent of the public 
sees these ads as connected with an election. In addition, the chart my 
colleague Senator Snowe presented on the Senate floor last Monday 
clearly demonstrates that these ads are run in lock step with the 
candidate's own ads. This makes sense this clearly proves that these 
sham issue ads are well connected with the election.
  A final point concerning the Buckley decision. The Supreme Court was 
concerned about both deterring corruption and the appearance of 
corruption, plus ensuring that the voters were properly

[[Page 4895]]

informed. The Snowe-Jeffords provision satisfies the Court's concerns. 
We deter the appearance of corruption by shining sunlight on the 
undisclosed expenditures for sham issue advertisements. Corruption will 
be deterred when the public and the media are able to see clearly who 
is trying to influence the election. In addition our provisions will 
inform the voting public of who is sponsoring and paying for an 
electioneering communication. Unlike what our opponents may say, the 
Supreme Court using the standards articulated in the Buckley decision 
would uphold the Snowe-Jeffords provision as constitutional.
  Our opponents also point to the Supreme Court decision in 
Massachusetts Citizens For Life as demonstrating that the Snowe-
Jeffords provisions are unconstitutional. I would agree with my 
opponents that the MCFL decision seems to reaffirm the express advocacy 
test articulated in Buckley, but I would argue in upholding this test 
that the Court actually made it even more likely that the Snowe-
Jeffords provisions would be upheld as constitutional. The MCFL 
decision broadens the standard articulated in Buckley by analyzing the 
context of a communication and divining its ``essential nature.'' As 
the results from the BYU Center for the Study of Elections and 
Democracy study I discussed earlier show, the esential nature of these 
sham issue-ads is to influence the outcome of an election. Presented 
with all of the facts provided by myself and Senator Snowe, the Supreme 
Court would be consistent only in finding our provisions constitutional 
under the standards laid out in Buckley and MCFL. So rather than 
strengthening their case, the MCFL decision shows that the Court is 
willing to examine the issue closely and look beyond a strict 
interpretation of the magic words test that some have said the Buckley 
decision created.
  A final court decision my opponents point to as supporting their 
position that the Snowe-Jeffords provisions are unconstitutional is the 
recent Vermont Right to Life decision in the second circuit. I must 
first point out that as a circuit court opinion it is not the law of 
the land. That can only come from the decisions of the Supreme Court, 
on which the provisions of the Snowe-Jeffords provisions are built.
  Additionally, the facts that faced the second circuit in the Vermont 
Right to Life case are clearly distinguishable from the Snowe-Jeffords 
provisions. Unlike the Vermont statute that was vague and overbroad, 
our provisions are narrowly tailored to avoid overbreadth, and create 
clear standards about what is allowed or required by our provisions, 
thus avoiding the vagueness in the Vermont statute. In addition, the 
court focused much of its discussion in declaring the Vermont statute 
unconstitutional on the effects of the provision on modes of 
communication not covered by Snowe-Jeffords. As the Snowe-Jeffords 
provisions do not cover these types of communication, our language is 
distinguishable from the facts faced by the second circuit. So, don't 
be fooled when the opponents of our provision say that the Vermont 
Right to Life case clearly shows that the Snowe-Jeffords provisions are 
unconstitutional. They are comparing apples with oranges, and such a 
conclusion in inappropriate.
  In conclusion, James Madison once said,

       A popular government without popular information is but a 
     prologue to a tragedy or a farce or perhaps both. Knowledge 
     will forever govern ignorance and a people who mean to be 
     their own governors must arm themselves with the power which 
     knowledge gives.

  The Snowe-Jeffords provisions will give the voters the knowledge they 
need. I ask for my colleagues continued support in this vital effort to 
restore faith in our campaign finance laws.
  It is time to restore the public's confidence in our political 
system.
  It is time to increase disclosure requirements and ban soft money.
  It is time to pass the McCain-Feingold campaign finance reform bill. 
Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, my colleague from the State of Maine wishes 
10 minutes. I am happy to yield 10 minutes to the Senator from Maine.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. SNOWE. Mr. President, I thank the Senator from Connecticut for 
yielding me some time to address some of the issues that have been 
raised by the amendment and the motion to strike by our colleague from 
Ohio, Senator DeWine.
  I urge this body to oppose that motion to strike the provisions known 
as the Snowe-Jeffords provision. A vote to strike these provisions is 
essentially a vote against comprehensive reform. A vote against this 
provision is a vote against balanced reform. A vote against this 
provision is a statement that we are only willing to tackle part--
albeit a vital part--of the problem that is confronting the political 
system of today.
  The other part of the problem that we seek to address through these 
provisions is the glut of advertisements in elections--close to 
election time, close to election day--that seek to influence the 
outcome of Federal elections. So there is no disclosure. We have no 
disclosure. We do not know who is behind those advertisements. Yet they 
are very definitively influencing the outcome of Federal elections.
  To illustrate the amount of advertising, you only have to look at 
what has happened since 1995-1999, when $135 million to $150 million 
was spent on these types of commercials. Now in the election of 2000, 
over $500 million was spent.
  Is everybody saying it does not matter? That we should not know who 
is behind these types of commercials that are run 60 days before the 
election, 30 days before a primary, whose donors contribute more than 
$1,000? Are we saying it does not matter to the election process? Are 
we saying we do not care?
  I know the Senator from Ohio is saying these provisions are 
unconstitutional. I would like to make sure my colleagues understand 
that this provision was not developed in a vacuum. It was developed 
with more than 70 constitutional experts, along with Norm Ornstein, a 
reputable scholar associated with the American Enterprise Institute. 
They looked at the constitutional and judicial implications of the 
Buckley v. Valeo decision back in 1976. They crafted this type of 
approach, which carefully and deliberately avoids the constitutional 
questions that my colleague, the Senator from Ohio, suggests may be 
raised.
  First of all, we designed a provision to address the concerns that 
were raised in the 1976 Buckley decision about overbroad, vague types 
of restrictions on the first amendment. So what we said was that we 
have a right to know who is running these ads 60 days before a general 
election when the group has spent more than $10,000 in a year and whose 
donors have contributed more than $1,000 to finance these election 
ads--over $550 million of which were run in the election of 2000, more 
than three times the amount that was spent in the election of 1996.
  We also went on to say that unions and corporations would be banned 
from using their treasury money financing these ads when they mention a 
candidate 60 days before a general election or 30 days before a 
primary. Again, there is a basis in law extending back to 1907, when we 
had the Tillman Act passed by Congress that banned the participation of 
corporations in elections and, in 1947, the Taft-Hartley Act that 
prohibited unions from participating directly in Federal elections. 
This amendment and provision is building upon those decisions that were 
made by Congress that have been upheld by the Court. In fact, the most 
recent decision of 1990, Austin v. Chamber of Commerce, is again 
upholding those decisions in the prohibition of the use of corporations 
participating in Federal elections.
  That is what we have done. That is what we sought to do when 
designing this amendment.
  Are we saying these ads do not make a difference? We have seen and 
examined a number of studies over the last few years that talk about 
the influence

[[Page 4896]]

of these ads on elections. What have we determined? No. 1, and I guess 
it is not going to come as a surprise to this audience which has 
participated in election after election and have seen these ads, but 
more than 95 percent of the ads that are run in the last 2 months, the 
last 60 days of the election, mention a candidate; 94 percent of those 
ads are seen as attempting to influence the outcome of an election. 
They mention a candidate's name. Virtually all the ads that are run in 
the last 60 days mention a candidate's name. Don't we have the right to 
know who is running those ads, who is supporting those ads, who is 
financing those ads? Yes. The Supreme Court has said it is permissible 
for Congress to have this requirement. It is in our interest. We have 
the right. It is not just the right to free speech. It is similar to 
other restrictions that have been incorporated in Federal election 
laws.
  Ninety-five percent of the ads that are run for the final 2 months of 
an election mention a candidate. The worst thing when organizations run 
these types of ads is that they mention a candidate by name 60 days 
before an election. We have the right to know who the $1,000 donors 
are.
  We are also saying that unions and corporations would be banned from 
running those types of ads using their treasury money when they are 
mentioning a Federal candidate the last 60 days because of preexisting 
law that has stood for almost a century and has been upheld by the 
Federal court.
  The next chart shows that, again, 94 percent have spots during the 2 
months before the election making a case for a candidate.
  Again, we are entitled to know who is behind those types of 
advertisements. We have the right to know. The public has the right to 
know because they are playing a key role.
  We had a number of studies that examined the impact of these ads.
  First of all, it wouldn't come as a surprise to this audience once 
again that 84 percent of the ads that were aired in the last 2 months 
of a Federal election were attack ads. They were negative. And they 
mentioned a candidate's name.
  Again, we are saying we have the right to know. The Supreme Court 
will uphold our right to know and the public's right to know. This is 
sunlight; it is not censorship.
  In this next chart, only 1 percent of the ads were true issue 
advocacy ads.
  In the final 2 months of an election, 99 percent identified a 
candidate by name. They were attack ads. Only 1 percent would be 
construed as being legitimate issue advocacy ads.
  For example, on an ad that would say, ``Call your Senator on an issue 
that is before Congress,'' they would still have that right. If they 
identified a candidate by name, however, they would be required to 
disclose.
  On this chart we see the relationship between TV ads and the 
congressional agenda.
  We are trying to make distinctions between true issue advocacy ads 
and election ads. That is what this Snowe-Jeffords provision does. It 
is carefully crafted to make sure we have a narrow provision 
identifying the time period of 60 days and 30 days. We ban only union 
and corporation money. So the entities know which provisions affect 
them in the election.
  Then we also require disclosure of those donors who contribute more 
than $1,000 to organizations that run ads that mention a candidate in 
the 60-day window.
  Again, groups or individuals will know exactly what is permissible 
and what is not and whether or not they would be running afoul of the 
law. That is what the Supreme Court said--that it not result in an 
overly broad or vague provision to ultimately have a chilling effect on 
the constitutional right of freedom of speech. That is why this 
provision was so narrowly and carefully drawn, with constitutional 
experts examining each and every provision.
  Look at the relationship between TV ads and congressional agenda. In 
the last 60 days we do a lot here in Congress before an election. So 
you are going to affect organizations' abilities to talk about those 
issues in their ads. Guess what. All the ads, virtually speaking, run 
by these organizations that mention or identify a candidate in that 60-
day window parallel the ads that are run by the candidates themselves.
  In the lower line at the bottom, which is the line that reflects the 
issues being debated in Congress, you can see that there is virtually 
no parallel between what we are discussing in Congress and the ads that 
are being run by organizations in that 60-day window. They parallel the 
ads with a candidate's ad, which again reflects one thing--that these 
ads are designed to influence the outcome of an election.
  There was a study of just 735 media markets in this last election. 
Guess what. One hundred million dollars was spent in the last 2 weeks 
of the election on advertisements that identified a Federal candidate 
by name in that 60-day period--in fact, in that 2-week period.
  I think the public deserves the right to know who is financing those 
ads and who is attempting to affect the outcome of an election given 
the amount of money that has been invested in these types of 
commercials. As I said, it was three times the amount in the last 
election compared to the 1996 election. They are ultimately engulfing 
the political process. In some cases, these organizations, whether they 
exist in the State in which they are running these ads or not, are 
having a greater impact than the ads the candidates run themselves.
  It may come as a surprise to you that in the focus group that 
examined the Snowe-Jeffords provision and looked at the ads that were 
run in that 60-day period--guess what--they didn't even see the 
candidate's ads being the ones that influenced the outcome of a Federal 
election. They saw these so-called sham ads as the ones that influenced 
the outcome of a Federal election.
  I think we need to take this step. It is a limited step; it is not a 
far-reaching step.
  The PRESIDING OFFICER. The Senator's 10 minutes has expired.
  Ms. SNOWE. May I have an additional 2 minutes?
  Mr. LOTT. Mr. President, if the Senator will yield, we have a consent 
request with regard to how to proceed for the rest of the night and 
tomorrow.


                      Unanimous Consent Agreement

  Mr. President, I ask unanimous consent that time on the DeWine 
amendment be used during tonight's session and, following that time, 
the Senate proceed to morning business. I further ask unanimous consent 
that the Senate resume consideration of the bill at 9:30 a.m. and there 
be 15 minutes for closing remarks on the amendment, to be equally 
divided, and the Senate then proceed to a vote in relation to the 
DeWine amendment. I further ask unanimous consent that following that 
vote the Senate proceed to the Harkin amendment for 2 hours equally 
divided in the usual form, and following that time the Senate proceed 
to vote on or in relation to the Harkin amendment.
  Let me note that I didn't get a chance to clear this with Senator 
Reid. But I understand Senator Warner has an amendment he wants to 
offer.
  Mr. WARNER. Mr. President, I thank the distinguished leader. I should 
like to offer it, and I shall withdraw it. I will require no more than 
10 minutes of time at the most convenient point this evening before we 
complete our work on this bill.
  Mr. LOTT. I modify the request to say, as I have already read it, 
except that after the DeWine amendment the time be used tonight and 
then go to the Warner amendment at that point. Following that, we would 
go to morning business.
  Mr. REID. Mr. President, reserving the right to object--I will not--I 
hope leadership will recognize the great work done today on this bill. 
I don't know how great it has been, but certainly it has been a lot of 
work. Senators Dodd and McConnell have done an outstanding job moving 
this matter along. It has been very tedious today. I would like for the 
leader and Senator Daschle to recognize what good work they have done.
  Mr. LOTT. Mr. President, I certainly agree with that. These two 
managers of this bill have worked together very

[[Page 4897]]

closely--Senators McConnell and Dodd. Their job has been particularly 
difficult this time because they are trying to accommodate everyone on 
all sides of this issue on both sides of the aisle and are trying to 
also accommodate the wishes of the two leaders on both sides as well as 
the principal sponsors of this bill. They have worked hard to make good 
progress. Without commenting on the work product result, I think they 
certainly deserve a lot of credit for their yeomen efforts to try to 
keep it calm and moving forward.
  Mr. REID. Senator Warner will withdraw his amendment tonight?
  Mr. LOTT. He will.
  The PRESIDING OFFICER (Mr. Bennett). Is there objection?
  Without objection, it is so ordered.
  Mr. LOTT. In light of this agreement, there will be no further votes 
tonight. The next vote will occur at approximately 9:45 a.m. Thursday. 
Also, the managers intend to complete this bill by the close of 
business tomorrow, so that is going to mean a lot more work. There are 
a number of amendments that are still pending. But if Senators expect 
to complete our work tomorrow, we are going to have to put our nose to 
the grindstone and just make it happen. So we should expect numerous 
votes tomorrow. And we would hope to finish at a reasonable hour early 
in the evening or late in the afternoon.
  I yield the floor.
  Mr. McCAIN. Could I be yielded about 4 minutes to speak on the 
amendment?
  Mr. LOTT. Mr. President, I believe Senator Snowe had gotten consent 
for 2 additional minutes.
  The PRESIDING OFFICER. Does the Senator from Maine ask for additional 
time? The consent was not given because of the interruption of the 
majority leader.
  Mr. LOTT. I do not believe there would be any objection.
  Ms. SNOWE. The time is controlled by whom?
  The PRESIDING OFFICER. The time is controlled by the Senator from 
Ohio and the Senator from Nevada.
  Mr. REID. The Senator from Maine is given 3 minutes.
  Ms. SNOWE. I will yield to the Senator from Arizona. He needs 4 
minutes. Can we have 10 minutes?
  Mr. REID. Following the Senator from Maine, the Senator from Arizona 
is yielded 5 minutes.
  Mr. McCAIN. Could we have a total of 10 minutes?
  Mr. REID. Yes.
  Ms. SNOWE. I yield to the Senator from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I thank the Senator from Nevada. Again, I 
thank Senator McConnell for the level and tenor of this debate. I 
understand his concerns about one additional amendment we will have 
tomorrow concerning coordination, and I have given him the language. We 
want to work with him on that particular amendment.
  I also know a lot of time and attention is going to be devoted to the 
issue of severability. I thank the Senator from Maine for a very 
important presentation. I find myself between two of my dearest friends 
on this amendment. I, obviously, am strongly in favor of the Snowe-
Jeffords amendment which the Senator from Maine and the Senator from 
Vermont have worked on for literally years together. This Snowe-
Jeffords amendment, unlike some of the business we do around here, was 
not hastily thrown together. It was crafted after careful consultation 
with constitutional experts all over America. It clearly addresses a 
growing problem in American politics.
  I believe that the Snowe-Jeffords amendment, if removed, would open 
up another huge channel for the use of soft money into so-called 
independent campaigns.
  I also listened with great attention to my friend from Ohio, Senator 
DeWine. I understand his concerns, and I appreciate them. He makes a 
very strong case. But I would like to say why we think Snowe-Jeffords 
is constitutional and why we are convinced of it.
  First, it avoids the vagueness problem outlined in Buckley by 
instituting a bright-line test for what constitutes express advocacy 
versus issue advocacy. People will know if their ads are covered by 
this statute. They will know whether it is covered by Snowe-Jeffords.
  Second, the main constitutional problem with bright-line tests is 
that they eliminate vagueness at a cost of overbreadth--a situation in 
which constitutionally protected speech such as issue advocacy is 
unintentionally swept in by the statute. Specifically, the Supreme 
Court is concerned whether there is ``substantial overbreadth'' as far 
as the statute is concerned.
  Snowe-Jeffords minimizes the overbreadth concern. It only covers 
broadcast ads run immediately before an election that mention a 
specific Federal candidate. Studies show that only a minuscule number 
of these types of ads in this time period are strictly issue ads. 
Anyone who observed the last couple campaigns would attest to that.
  Besides, we all know that Buckley's ``magic words'' are not necessary 
to make a campaign ad. In fact, a Brennan Center for Justice analysis 
of the last congressional election showed that only 1 percent of 
candidates' own campaign advertising used express advocacy language--in 
other words, magic words--to promote the candidate.
  In sum, Buckley left the door open for Congress to define express 
advocacy. That is what Snowe-Jeffords seeks to do, in keeping with the 
Supreme Court's concern about protecting free speech guaranteed by the 
first amendment. In addition, we can demonstrate that the Court's 
definition of ``express advocacy''--magic words--has no real bearing in 
today's world of campaign ads.
  You never see an ad anymore that says ``vote for'' or ``vote 
against.'' You see plenty of them that say: Call that scoundrel, that 
no-good Representative of yours or Senator of yours, who is guilty of 
every crime known to man. Call him. Tell your Senator that you want 
thus and such and thus and such.
  We have seen it all develop to a fine art. I believe Snowe-Jeffords 
is a very vital part of this bill. If it were removed, it would have a 
very significantly damaging effect on our desire to try to enact real 
and meaningful campaign finance reform.
  I thank my friend from Ohio for his impassioned advocacy of the other 
side. I believe this is really what this debate has been all about: 
What we have just seen between Senator DeWine and Senator Snowe, an 
open and honest and informed ventilation of a very important issue to 
the American people. I am very proud of the performance of both because 
I think the American people have learned a lot from this debate, 
especially on this very important amendment.
  Mr. President, I yield back the remainder of my time.
  Ms. SNOWE. Mr. President, I thank Senator McCain for his words 
regarding these provisions and for underscoring the importance and the 
significance and the meaning of the Snowe-Jeffords provision as 
outlined in the McCain-Feingold legislation.
  The preponderance of these ads in the political process has to be 
disturbing to each and every one of us, not to mention the American 
people. That is what it is all about and what we need to address.
  How can we say we are going to allow these so-called sham ads to go 
unchecked? How are we going to say to the American people that somehow 
they or we do not have a right to know who is financing these ads?
  As Senator McCain indicated, even candidates now, who already come 
under the Federal election laws, do not use the magic words ``vote 
for'' or ``against'' because what has become most effective is not 
using those magic words to get the point across. That is why all of 
these organizations have taken to running ads because they know what is 
more effective and more influential.
  In every focus group and study group that has been conducted over the 
last few months, to take the Snowe-Jeffords provisions and use them in 
a focus group, to see what the response was of the individuals included 
in that

[[Page 4898]]

group--guess what--they were most influenced by those organizational 
ads that mention a candidate by name but do not use those magic words. 
The Supreme Court said there isn't one single permissible route to 
getting where we are going in terms of restrictions and changes in 
election laws. And the fact is, since 1976, Congress has not passed a 
law concerning campaign financing, has not sent any law to the Court 
because we have not passed anything in the last quarter of a century. 
So it has no guidepost. But the Court was addressing in 1976 what was 
happening in 1976. We well know what has changed and transpired in over 
a quarter century. We have seen the kind of development and evolution 
of these ads that has taken a very disturbing trend and change in the 
election process.
  I hope we defeat the motion to strike by my colleague, the Senator 
from Ohio, because truly we are getting at a very serious problem that 
has characterized the political process in a way that does not engender 
confidence in the American people.
  These ads are intended to affect an election. They are overwhelmingly 
negative. Ninety-nine percent mention a candidate in that 60-day 
window. Are we saying that we should allow them to go unchecked? I say 
no.
  I know the Supreme Court will uphold this provision because in 
analyzing every decision since and in analyzing what the Court had said 
even previously, this is not treading on the constitutional rights of 
those who are willing to express themselves.
  This is a monstrosity that has evolved in terms of the so-called sham 
ads that are having a true impact on our election process in a way that 
I do not think the Supreme Court could foresee back in 1976, and we, as 
candidates, could not possibly envision. I ran for Congress in 1978. No 
one heard of these ads. Independent expenditures were even rare at that 
moment in time. What has happened in the election process has taken 
place in the last few years. Those expenditures have tripled in these 
types of advertisements that are having a true impact on elections.
  That is what we are talking about. I have a chart that shows the 
degree to which the ads were intended to influence your vote. The 
candidates' ads are less influential than these ads to which we are 
referring in the Snowe-Jeffords amendment. They have more influence in 
the overall election than the candidates' ads.
  We do have a right to know. We are talking about disclosure. The 
Supreme Court will uphold that view that, yes, the public does have a 
right to know. These provisions are not chilling first amendment 
rights. People will have very defined guidance under these provisions 
that would inform any group, any individual who has an intention of 
running these types of advertisements.
  Norman Ornstein, who was instrumental in developing this provision, 
along with numerous constitutional experts, spoke in a column recently. 
I ask unanimous consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       [From Congress Inside Out]

  Limits On So-Called ``Issue Advocacy`` Will Pass Constitutional Test

                        (By Norman J. Ornstein)

       Is McCain-Feingold unconstitutional? When campaign finance 
     reform is debated in the Senate this week, the answer to this 
     question will be a key one. There will no doubt be questions 
     raised about banning soft money, but despite the bleating of 
     reform opponents, that proposal seems to be on sound 
     constitutional footing. Soft money, after all, was neither a 
     natural development nor a court-generated phenomenon; rather 
     it was created in 1978 by a bureaucratic decision of the 
     Federal Election Commission. If a regulatory commission could 
     invent soft money, Congress can uninvent it.
       More problematic is the campaign reform measure's provision 
     on so-called issue advocacy, an amendment known as Snowe-
     Jeffords. Would it pass Supreme Court muster? No doubt some 
     Senators opposed to reform will offer elaborate smoke screens 
     to scare their colleagues. But there is legitimate concern 
     about the constitutionality of the proposal, even among many 
     sympathetic to it.
       Changes in the rules surrounding anything close to issue 
     advocacy, as opposed to express advocacy to elect or defeat 
     candidates, are delicate and tricky. This area is at the 
     heart of the First Amendment and cannot be reformed lightly. 
     Still, when Senators take a careful look at Snowe-Jeffords 
     and the reasoning behind it, their concerns should be 
     assuaged. There is every reason to believe that this measure 
     will withstand constitutional scrutiny.
       The challenge here starts with the language of the landmark 
     1976 Supreme Court decision Buckley v. Valeo that accepted 
     parts of a 1974 Congressional act reforming the campaign 
     finance system and rejected others, and continues to govern 
     our campaign finance rules. The court rejected as overly 
     broad the 1974 Congressional decision to include in its 
     regulatory net any communication ``for the purpose of 
     influencing'' a federal election. Instead, the court drew a 
     line between direct campaign activities, or ``express 
     advocacy,'' and other political speech. The former could be 
     regulated, at least in terms of limits on contributions; the 
     latter had greater First Amendment protection. How to define 
     express advocacy? The High Court in a footnote gave some 
     suggestions to fill the resulting vacuum and to define the 
     difference between the two kinds of advocacy. Express 
     advocacy, the justices said, would cover communications that 
     included words such as ``vote for,'' ``vote against,'' 
     ``elect'' or ``defeat.'' The residual category included 
     ``issue'' advocacy.
       The court did not say that the only forms of express 
     advocacy are those using the specific words above. Those were 
     examples. However, political consultants and high-priced 
     campaign lawyers are like the raptors in ``Jurassic Park''--
     they regularly brush up against the electric fence of 
     campaign regulation, trying to find dead spots or make the 
     fence fall down entirely. In this case, they egged on parties 
     and outside groups to behave unilaterally as if any 
     communication that did not use these specific so-called 
     ``magic words''--no matter what else they did say--was by 
     definition ``issue advocacy'' and thus was exempt from any 
     campaign finance rules. By this logic, ads or messages 
     without any issue content whatsoever that is clearly designed 
     (usually by ripping the bark off a candidate) to directly 
     influence the outcome of an election could use money raised 
     in any amount from any source, with no disclosure required.
       Ads of this sort have exploded in the past few elections, 
     with outside groups and political parties exploiting a 
     loophole to run campaign spots outside the rules that apply 
     to candidates. In the past couple of election cycles, solid, 
     substantial and comprehensive academic research, examining 
     hundreds of thousands of election-related ads, has 
     demonstration two things. One was that only a minuscule 
     proportion of the ads run by candidates themselves--the sine 
     qua non of express advocacy--actually used any of the so-
     called ``magic words'' that shaped the court's definition of 
     express advocacy a quarter century ago. Secondly, hundreds of 
     millions of dollars in political ads--nearly all viciously 
     negative, personality-driven attacks on candidates without 
     issue content--have blanketed the airwaves right before the 
     elections, dominating and drowning out candidate 
     communications. The parties and outside groups that have run 
     them have declared that they fall under ``issue advocacy,'' 
     meaning no disclosure and no limits on contributions are 
     required.
       These sham issue ads have drastically altered the landscape 
     of campaigns, reducing candidates to bit players in their own 
     elections and erasing a major share of accountability for 
     voters. But under Buckley, as interpreted by the campaign 
     lawyers, this process has been unchallenged. Lower courts 
     have routinely upheld the framework and most of the specifics 
     of Buckley, leading reform opponents and many objective 
     observers to question whether any change in the Buckley 
     standards or framework could possibly pass constitutional 
     muster in the Supreme Court.
       That view ignores a fundamental reality. Since it spoke in 
     1974, Congress has been essentially silent on campaign 
     finance reform. Buckley v. Valeo is in effect the law of the 
     land because Congress has not superseded it by filling the 
     vacuum in the quarter century that followed. If Congress 
     acted, the Supreme Court would give it due deference. In a 
     1986 decision on campaign finance and the role of 
     corporations (Federal Election Commission v. Massachusetts 
     Citizens for Life), Chief Justice William Rehnquist, in a 
     separate opinion joined by three other justices, noted, ``We 
     are obliged to leave the drawing of lines such as this to 
     Congress if those lines were within constitutional bounds.''
       The lines Congress drew in 1974 were not within 
     constitutional bounds. But other lines, different from the 
     Congress in 1974 and the court's in Buckley, can be, 
     especially if Congress makes clear that its views are based 
     on both careful deliberation and strong emotional evidence.
       Two years ago, I led a group of constitutional scholars in 
     careful and systematic deliberation over the judicial and 
     constitutional framework behind Buckley v. Valeo, the 
     dramatic changes in campaign behavior that have occurred in 
     the past several years, and the ways, within the Buckley 
     framework, that the system can be brought back into 
     equilibrium.
       The result was a new approach, which was embraced by Sens. 
     Olympia Snowe (R-Maine)

[[Page 4899]]

     and Jim Jeffords (R-Vt.) and several of their colleagues, and 
     converted into legislation.
       The Snowe-Jeffords provision defines ``electioneering'' as 
     a category of communication that is designed to directly 
     shape or change the outcome of federal elections. Unlike the 
     1974 overly broad Congressional definition, Snowe-Jeffords is 
     much more specific, with a definition that includes 
     substantial broadcast communications run close to an election 
     and that specifically targets a candidate for office in that 
     election. Research has shown that only a sliver of all issue 
     ads meeting this definition in the last campaign (well under 
     1 percent) were by any standard genuine issue ads. If 
     Senators are wary that even this definition is too broad, it 
     is easily possible to refine the definition of targeting to 
     reduce the number to perhaps 1/10th of 1 percent of the ads.
       Snowe-Jeffords bans the use of union dues or corporate 
     funds for broadcast electioneering communications within 60 
     days of an election and requires disclosure of large 
     contributions designated for such ads. As recently as 1990, 
     in Austin v. Michigan Chamber of Commerce, the Supreme Court 
     reaffirmed the notion that corporations lack the same free-
     speech rights as individuals and some other groups; other 
     decisions have made the same point about unions.
       In Buckley itself, the court said that disclosure 
     requirements are permissible if they provide citizens with 
     the information they need to make informed election choices 
     or help safeguard against corruption and reduce the 
     appearance of corruption. As long as disclosure doesn't 
     produce the chilling effect of requiring an organization to 
     disclose all of its donors, which Snowe-Jeffords avoids, it 
     clearly meets court guidelines. Sen. Mitch McConnel (R-Ky.) 
     regularly refers to the court's 1958 decision NAACP v. 
     Alabama to argue that disclosure requirements are 
     unconstitutional. However, that is a misinterpretation of the 
     decision, which said that a requirement of an organization to 
     disclose all its contributors would be inappropriate. That is 
     not at all what Snowe-Jeffords does.
       Now add together the clear deference to Congress' views 
     that Chief Justice Rehnquist has expressed, the clear 
     evidence from impeccable academic research showing the 
     fallacy behind the so-called ``magic words'' test in Buckley, 
     and the restrained and carefully drawn language in Snowe-
     Jeffords defining a narrow category of ads and relying on 
     past court decisions about disclosure and the roles of unions 
     and corporations. These three factors make it reasonable to 
     believe that the Supreme Court would rule that a reform that 
     includes Snowe-Jeffords is within constitutional bounds.

  Ms. SNOWE. He said:

       The court rejected as overly broad the 1974 Congressional 
     decision to include in its regulatory net any communication 
     ``for the purpose of influencing'' a federal election. 
     Instead, the court drew a line between direct campaign 
     activities, or ``express advocacy,'' and other political 
     speech. The former could be regulated, at least in terms of 
     limits on contributions; the latter had greater first 
     amendment protection. How to define express advocacy? The 
     High Court in a footnote gave some suggestions to fill the 
     resulting vacuum and to define the difference between the two 
     kinds of advocacy. Express advocacy, the justices said, would 
     cover communications that included words such as ``vote 
     for,'' ``vote against,'' ``elect'' or ``defeat.'' The 
     residual category included ``issue'' advocacy.
       The court did not say that the only forms of express 
     advocacy are those using the specific words above. Those were 
     examples.

  Now we hear the only way we can have these ads covered is if they use 
those magic words. As Norman Ornstein is saying in his column, the 
Court was citing examples back in the Buckley v. Valeo decision in 
1976. He went on to say, the fundamental reality is that Congress had 
been essentially silent on campaign finance reform since it spoke in 
1974.

       Buckley v. Valeo is in effect law of the land because 
     Congress has not superseded it by filling the vacuum in the 
     quarter century that followed. If Congress acted, the Supreme 
     Court would give its due deference.
       The lines Congress drew in 1974 were not within 
     constitutional bounds. But other lines, different from 
     Congress' in 1974 and the court's in Buckley, can be, 
     especially if Congress makes clear its views are based on 
     both careful deliberation and strong empirical evidence.

  The PRESIDING OFFICER. The time of the Senator has expired.
  Ms. SNOWE. Mr. President, I hope my colleagues will vote against the 
motion to strike that has been offered by our colleague from Ohio. It 
would remove a fundamental provision in the legislation before us. We 
cannot have comprehensive reform without addressing this egregious 
development that has occurred in the election process.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, in a moment I will yield to the chairman 
of the Judiciary Committee, Senator Hatch. I do want to briefly respond 
to the comments of my friend from Maine, my friend from Vermont, and my 
friend from Arizona. I appreciate very much their comments.
  One thing they did not mention and that is important for us to 
remember, as we look at this amendment and as we look at how the bill 
is currently written, is that Snowe-Jeffords is now Snowe-Jeffords-
Wellstone. It is fundamentally different than the original provision 
about which my colleagues have talked for the last 20 minutes or so.
  Very simply, Snowe-Jeffords, as originally written, did this: Under 
current law express advocacy is not restricted for unions and 
corporations. What Snowe-Jeffords did is to say that 60 days out from 
an election, unions and corporations--it is usually unions who are 
doing it--would be prohibited from mentioning the name of a candidate. 
It is a major change in what is going on today, a major restriction on 
a union's ability to communicate, a fundamental change in the law.
  Under Snowe-Jeffords, express advocacy is expanded to include any 
message with the candidate's name 60 days before the election and, if 
they do that, it is illegal.
  That is not what we are talking about. Snowe-Jeffords is now Snowe-
Jeffords-Wellstone, and it has been dramatically changed and expanded. 
I think the original language, quite candidly, you can argue either way 
whether it is constitutional. Frankly, no one in this Senate is going 
to know until the Supreme Court tells us. The Wellstone language that 
is now a part of Snowe-Jeffords is absolutely unconstitutional. I have 
talked to a number of Members on the floor who voted on both sides of 
the original Wellstone amendment. I haven't found one yet--I am sure 
someone will come to the floor in a minute; I am sure my colleague from 
Minnesota may come--who will tell me it is constitutional because what 
does it do? It takes the original Snowe-Jeffords and expands it and 
says, not only will labor unions not be able to do this within 60 days 
of an election, not only will corporations not be able to do it, but 
now everybody else can't do it. Any groups that want to get together 
and buy an ad that mentions the candidate's name will no longer be able 
to do that.
  So within 60 days of an election, at the time when political debate 
should be the most respected, when political debate has its greatest 
impact, the Snowe-Jeffords-Wellstone amendment now says, no, you can't 
do it.
  That is absolutely unconstitutional. That is the state of the bill 
today. That is what Members have to ask themselves when they vote on 
this amendment. Are you willing to accept a bill that in all 
probability is going to pass that has a provision in it that is 
blatantly unconstitutional? I hope on reflection my colleagues on both 
sides of the aisle, when they look at that, will say: I don't want to 
do that. I don't want to cast a vote for a bill that is blatantly 
unconstitutional.
  The only chance Members are going to have to correct that is with the 
DeWine amendment.
  I yield at this time to the distinguished chairman of the Senate 
Judiciary Committee, the Senator from Utah, Mr. Hatch.
  Mr. HATCH. Mr. President, as my colleagues in this body are aware, 
unlike contributions to a candidate's campaign, expenditures of money 
to influence public opinion has been accorded nearly ironclad first 
amendment protection by the U.S. Supreme Court. In fact, I know those 
who would argue it is absolutely ironclad.
  The reason for this protection is simple to understand. Freedom of 
speech is one of the bedrock protections guaranteed for our citizens 
under the Constitution of the United States. Nowhere is the role of 
free speech more important than in the context of the elections we hold 
to determine the leaders of our representative democracy. As the 
Supreme Court stated in Buckley:

       Discussion of public issues and debate on the 
     qualifications of candidates are integral to the operation of 
     the system of government established by our Constitution. The 
     First Amendment affords the broadest protection to such 
     political expression in order

[[Page 4900]]

     to assure the unfettered interchange of ideas. . . .

  Obviously, we would have no democracy at all if government were 
allowed to silence people's voices during an election. I have spoken 
before more generally on some of the constitutional limits on our 
efforts to regulate campaigns. Today I rise to speak more specifically 
about the limitations on expenditures.
  Under our Constitution, a person simply cannot be barred from 
speaking the words ``vote for Joe Smith.'' Under our Constitution, a 
person simply cannot be barred by speaking the words ``lower my 
taxes.'' Under our Constitution, a person cannot be simply barred from 
speaking the words ``provide our seniors with a prescription drug 
benefit.'' The right to speak any of these phrases at any time is 
protected as a core fundamental right under the first amendment.
  It is especially important to our democracy that we protect a 
person's right to speak these phrases during an electoral campaign 
because it is through elections that the fundamental issues of our 
democracy are most thoroughly defined. It is through elections that the 
leaders of our democracy are put in place to carry out the people's 
will.
  Not only does a person have a right to speak out during a campaign 
regarding candidates and issues, a person also has a right to speak out 
in an effective manner. The right to speak would have little meaning if 
the government could place crippling controls on the means by which a 
person was permitted to communicate his or her message. For instance, 
the right to speak would have little meaning if a person was required 
to speak in an empty room with no one listening.
  Accordingly, the Supreme Court has consistently ruled that Congress 
may not burden a person's constitutional right to express his or her 
opinion during an electoral campaign. And to effectuate these rulings, 
the Court has consistently held that Congress may not burden a person's 
right to expend money to ensure that his or her opinion reaches the 
broadest possible audience.
  In Buckley, the Supreme Court made a fundamental distinction that has 
survived to this day, a distinction that must inform our discussion of 
campaign finance, and a distinction that continues to place significant 
limitations on what reforms are permissible under the strictures of the 
first amendment of the U.S. Constitution.
  With respect to expenditures, the Court has said this:

       A restriction on the amount of money a person or group can 
     spend on political communication during a campaign 
     necessarily reduces the quantity of expression by restricting 
     the number of issues discussed, the depth of their 
     exploration, and the size of the audience reached.  . . . The 
     expenditure limitations contained in the Act represents 
     substantial rather than merely theoretical restraints on the 
     quantity and diversity of political speech. The . . . ceiling 
     on spending . . . would appear to exclude all citizens and 
     groups . . . from any significant use of the most effective 
     modes of communication.

  As recently as last year, in the case of Nixon v. Shrink Missouri 
Government PAC--and that is a 2000 case--the Court reaffirmed its 
holding in Buckley, quoting extensively from the Buckley opinion and 
reiterating that expenditure restrictions must be viewed as ``direct 
restraints on speech,'' irreconcilable with the first amendment.
  As I said before, the McCain-Feingold legislation is well intentioned 
in its effort to remove the influence of big money from our electoral 
process. However, several provisions of the proposed legislation are 
simply irreconcilable with the first amendment of the U.S. 
Constitution. It is not Congress' role to pass unconstitutional 
legislation and stand by while that legislation is struck down by the 
courts.
  The provision of the McCain-Feingold legislation that 
unconstitutionally burdens free speech is section 201, the so-called 
Snowe-Jeffords amendment. That is what the current DeWine amendment 
seeks to address. Snowe-Jeffords is designed to address what many have 
characterized as a loophole in the campaign finance laws that allows 
third parties prior to an election to fund advertisements which relate 
exclusively to an issue and refrain from the expressly urging to vote 
for or against a particular candidate. Recent experience has shown that 
such speech may effectively advance the prospects of one candidate over 
another, even though it refrains from express advocacy of the 
candidate.
  I applaud my colleagues for their ingenuity in seeking to address 
this avenue by which money, unregulated by our electoral laws, may play 
a role in our elections.
  You can call a dog a hog and it still remains a dog. I think trying 
to say their amendment and this particular clause in this bill is not 
violative of the first amendment free speech rights fits the 
description of trying to call a dog a hog. Still, it remains a dog.
  The problem I have with this portion of the legislation is that issue 
advocacy prior to an election simply cannot be viewed as a loophole in 
the election laws that we must endeavor to close with appropriate 
legislation. Viewed through the lens of the first amendment, this issue 
advocacy is exactly the type of speech that must be accorded the 
ultimate protection of the first amendment. The Supreme Court has 
consistently refused to sanction disclosure requirements on issue 
advocacy, unless the communication in question directly advocates for 
or against a particular candidate.
  Look, issue advocacy generally is used against us Republicans. There 
is not much doubt about that. That is where the money is. It is used 
against both from time to time, but really against us. I remember back 
in 1982 there was tremendous issue advocacy against me by the trade 
union movement. It was very difficult to put up with some of the ads 
used against us, both in print and otherwise. But it was a free speech 
right, and I would fight to my death to defend those rights of free 
speech.
  The Snowe-Jeffords amendment seeks to redraw the line between 
protected issue advocacy and nonprotected express advocacy of a 
candidate in order to regulate a larger chunk of public speech prior to 
an election. Section 201 of the proposed legislation broadens the 
Federal Election Commission Act's regulatory scope to include any 
individual or group that expends at least $10,000 a year on 
electioneering communications. Now that is free speech.
  Let's go further. Electioneering communications are defined as any 
communications in the electorate within 60 days before a general 
election that ``refers to a clearly identified candidate''--regardless 
of whether such communication urges a vote for or against that 
candidate.
  The problem with this line-drawing exercise is that the Supreme Court 
has already done it. In Buckley v. Valeo the Supreme Court defines what 
types of issue advocacy could, consistent with the Constitution, be 
made subject to FECA's regulatory requirements. The Court found that 
only communications that expressly advocated for or against a specific 
candidate were subject to regulation. The Snowe-Jeffords amendment 
invades the constitutionally protected territory of pure issue 
advocacy. In fact, that invasion is the sole purpose of the provision.
  It may well be true that third parties are, in fact, able to 
influence the electorate for or against the candidate by running 
independent issue advertisements, uncoordinated with a candidate's 
campaign, in the weeks leading up to the election. That phenomenon does 
not manifest a flaw in the regulatory scheme established by our current 
campaign finance laws. For better or for worse, that phenomenon 
manifests the free interchange of ideas in an open society. Such issue 
advocacy is free speech, protected by the first amendment, and 
accordingly, the McCain-Feingold legislation is unconstitutional.
  In Snowe-Jeffords, those provisions are fatally overinclusive. They 
try to sweep away our first amendment political speech. The Supreme 
Court has been more than clear on this. What the authors are attempting 
to do is understandable, it is well intentioned, but unfortunately it 
is unconstitutional. That is one reason I have to stand here

[[Page 4901]]

today and speak out for the amendment of the distinguished Senator from 
Ohio.
  I believe he is right in his motion to strike. I believe he is right. 
I believe we ought to support him, and I hope our colleagues will.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, on behalf of the opponents of this 
legislation, I yield 20 minutes to the Senator from North Carolina, 20 
minutes to the Senator from Maine, and 10 minutes to the Senator from 
Minnesota. We have 50 minutes left. Whatever time is left we will yield 
back.
  I recognize my friend from Ohio is controlling the time on the other 
side. After Senator Edwards, I understand it will be his time to 
allocate. That is the only time we have requested tonight. That is how 
we will allocate our time.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. I thank the Chair.
  Mr. President, we talked at great length in this debate about the 
need to return this democracy to the voters and to remove the influence 
of big money or the appearance of influence of big money.
  Tonight I want to talk about two things: First, the two critical 
provisions of the McCain-Feingold bill; and, second, I want to speak in 
opposition to the DeWine amendment.
  As most people who follow this debate know, the two most critical 
provisions of this bill are the ban on soft money and the Snowe-
Jeffords provision. I first want to speak to the constitutionality of 
the ban on soft money.
  There has been some suggestion during the course of this debate that 
there is a serious question about constitutionality. In fact, there is 
no serious question about that. The U.S. Supreme Court in the Buckley 
case said that in order for the Congress to regulate these sorts of 
contributions, the only constitutional test that must be met is a 
finding of a compelling State interest.
  In the Buckley case, the U.S. Supreme Court went on to find, in fact, 
that preventing the actuality or appearance of corruption constitutes a 
compelling State interest. The language of the Court is:

       Congress was justified in concluding that the interest in 
     safeguarding against the appearance of impropriety requires 
     the opportunity of abuse inherent in the process of raising 
     large monetary contributions be eliminated.

  What the U.S. Supreme Court held in Buckley was in order to regulate 
these soft money contributions, there must first be a compelling State 
interest. They then went on to find that, in fact, there was a 
compelling State interest created by the appearance of impropriety 
associated with raising these large monetary contributions.
  The Buckley case has already decided the question of whether a ban on 
soft money contributions is, in fact, constitutional. The U.S. Supreme 
Court has held that, in fact, that ban is constitutional and there is 
no serious or legitimate question about the constitutionality of the 
soft money ban.
  Now I want to move to the Snowe-Jeffords provision. There has been 
some suggestion, including by my friend from Ohio in offering his 
amendment, that there are very serious questions raised by the Snowe-
Jeffords provision of the McCain-Feingold bill. I will first summarize 
what Snowe-Jeffords does.
  Snowe-Jeffords bans for the 60-day period prior to a general election 
or a 30-day period prior to a primary election broadcast television ads 
by unions or corporations paid for out of general treasury funds. It 
also contains certain disclosure provisions for other entities who may 
want to run such ads.
  The suggestion is made that under the criteria established by the 
U.S. Supreme Court in Buckley, Snowe-Jeffords does not meet 
constitutional muster. In fact, it is very clear if you look at the 
language of the U.S. Supreme Court in Buckley and if you look at the 
cases that come after Buckley, Snowe-Jeffords does exactly what the 
U.S. Supreme Court in Buckley required in order to meet the test of 
constitutionality. First I will talk about that test.
  The U.S. Supreme Court has established four requirements in order for 
the Snowe-Jeffords provision to be found to be constitutional.
  The first of those requirements is that it cannot be vague. The 
second is that it must serve a compelling State interest. The third, it 
must be narrowly tailored to serve that interest. The fourth, it cannot 
be substantially overbroad.
  The Court, in reaching that conclusion, first recognized that the 
first amendment in the case of electioneering--which is what we are 
talking about, campaign ads--is not absolute. There are certain 
circumstances where first amendment rights can be restricted, but only 
if these tests are met.
  The first question, ``cannot be vague.'' The Snowe-Jeffords provision 
is by any measure, a clear, easy-to-identify, bright-line test. It 
requires that the ad be within the 60 days before the general election 
or within 30 days of the primary election; second, that it contain the 
likeness of a candidate or the name of the candidate; and third, that 
it be a broadcast television ad.
  No one reading that definition could have any misunderstanding. It is 
specific. It is clear. It is a bright-line test. By any measure, it is 
not vague. It would meet the first test established by the U.S. Supreme 
Court in Buckley.
  Second, it ``must serve a compelling State interest.'' Just as in the 
case of the soft money ban, the U.S. Supreme Court has already held 
that avoiding the appearance of impropriety is, in fact, a compelling 
State interest. The Court has already held that the reason for the 
Snowe-Jeffords provision is a compelling State interest. So that test 
is easily and clearly met by the language of the Court in Buckley v. 
Valeo.
  The third, it ``must be narrowly tailored to serve that interest.'' 
First of all, why did Senators Snowe and Jeffords offer this provision 
as part of McCain-Feingold? They offered it because in order to avoid 
legitimate campaign election laws in this country, what has been 
occurring is people have been broadcasting what has been described as 
issue ads as opposed to campaign ads. Now there is a ban, of course, on 
the broadcasting of campaign ads with General Treasury funds, so 
instead they call these ads issue ads, not campaign ads, in an effort 
to avoid that legitimate legal restriction.
  In fact, what we know both empirically and from our own experience, 
many of these so-called issue ads--not many, the vast majority--of 
these so-called issue ads are campaign ads, particularly when they fall 
within that 60-day period.
  Let me stop on this test for just a moment and give a couple of 
pieces of evidence. First, the empirical studies show in the year 2000 
election, 1 percent of the ads that fall within the test of Snowe-
Jeffords--that is, within 60 days of the general election, mention the 
name or show the likeness of the candidate, broadcast television ads--1 
percent constituted legitimate issue ads; 99 percent constituted 
campaign ads. We know what our gut would tell us, anyway. We know from 
our own experience from watching these television ads, and voters would 
know from their own experience, that when they see these ads on 
television, in fact, they are campaign ads. They are not issue ads. 
They are advocating for the election or defeat of a particular 
candidate, not for some particular issue.
  We now know empirically in the case of the 2000 election, 99 percent 
of those ads covered by Snowe-Jeffords are campaign ads and not issue 
ads. They are sham issue ads. They are a fraud under the campaign 
election laws that exist in this country.
  Snowe-Jeffords is trying to eliminate that fraud, eliminate that 
sham. What we now know, the ads covered by Snowe-Jeffords, 99 percent 
of those ads are not issue ads but are campaign ads.
  I have one or two examples. This is an ad run in a congressional 
election in 1998:

       Announcer: The Daily reports criminals are being set free 
     in our neighborhoods.
       In May, Congressman X voted to allow judges to let violent 
     criminals out of jail, rapists, drug dealers, and even 
     murderers.

[[Page 4902]]

       X's record on drugs is even worse. X voted to reduce 
     penalties for crack cocaine. And in April, X voted to use 
     your tax dollars to give free needles to illegal drug users.
       Call X. Tell him he's wrong. Dangerous criminals belong in 
     jail.

  This doesn't use the language used as illustrative by the U.S. 
Supreme Court in Buckley. It doesn't say ``vote for;'' it doesn't say 
``elect;'' it says ``call.'' But any rational person, including all the 
people who watched this ad on television, know that this ad is aimed at 
defeating Congressman X in the campaign. That is exactly what it is 
about.
  That is what was demonstrated in my chart, 99 percent of the ads that 
fall within the test of Snowe-Jeffords are ads just like this. They are 
pure campaign ads, plain and simple. These ads are being paid for by 
contributions that otherwise would violate the legitimate election laws 
of this country.
  What we are trying to do in Snowe-Jeffords, we have a very narrowly 
tailored provision that catches ads that are clearly campaign ads. We 
now know that 99 percent of those ads that fall within Snowe-Jeffords 
are campaign ads, plain and simple; not issue ads.
  So what conclusion do we draw from this? If 99 percent of the ads are 
campaign ads, if, in fact, 99 percent of the ads are like the one I 
have just shown as illustrative, they ``must be narrowly tailored'' to 
pass constitutional muster.
  It is not vague, a clear, bright-line test, we have compelling State 
interest, and now we know this provision is narrowly tailored, and that 
goes hand in glove, by the way, with the fourth provision, which means 
it ``cannot be substantially overbroad.''
  The Court recognized that any time you have a bright-line test that 
is not vague, you are, by definition, going to catch some stray 
advertisements that are not intended to be included. They don't just 
require that there be no overbreadth. There has to be substantial 
overbreadth in order to be unconstitutional.
  What we now know empirically, 99 percent of the ads that meet Snowe-
Jeffords are exactly what are intended to be targeted by Snowe-
Jeffords. The empirical evidence clearly supports the notion that 
Snowe-Jeffords is not substantially overbroad, on top of the fact that 
the provisions of the bill itself are not substantially overbroad. They 
are narrowly tailored. They do exactly what the U.S. Supreme Court has 
required.
  I suggest that, in fact, Senators Snowe and Jeffords have done a 
terrific job of meeting the constitutional test because they have made 
the provision for bright line, they have made it clear it is not vague, 
and at the same time it is sufficiently narrow to meet the 
constitutional requirements of Buckley v. Valeo.
  What we now know and can see by looking at the constitutional 
requirements is that Snowe-Jeffords meets all those requirements. The 
U.S. Supreme Court has established these requirements, has defined what 
they mean, and Snowe-Jeffords, we know, meets those requirements. The 
empirical evidence shows it is not overly broad, it is not 
substantially overbroad, that it reaches very few ads that are, in 
fact, issue ads.
  One argument made is that Buckley v. Valeo uses a test in order for 
an ad to be a campaign ad, as opposed to an issue ad: ``Vote for,'' 
``elect,'' ``support,'' ``cast your ballot for.'' The people who are 
making that argument are not reading the U.S. Supreme Court opinion. 
Because what the Court said was, in order to make the existing election 
laws--as of the time of this opinion--constitutional, we are going to 
establish a test since Congress did not do it. They go on and invite us 
to do it, to establish the test. Instead of saying ``this is language 
that is required,'' they say:

       This construction would restrict the application of section 
     608 . . . to communications containing express words of 
     advocacy of election or defeat, such as `vote for,' `elect'. 
     . . .

  It is obvious from the ``such as'' language that the Court by no 
means intended this list to be exhaustive. The Court fully recognized 
that given the imagination of campaign managers and people who prepare 
these ads, that they could not even begin to do an exhaustive list. 
This list is nothing but illustrative, never intended to be anything 
but illustrative.
  For those who come to the floor and say, wait a minute, Snowe-
Jeffords doesn't use the magic language, doesn't use ``vote for,'' 
doesn't use ``elect''--what the U.S. Supreme Court made clear in their 
case was these are nothing but illustrations of what changes an ad from 
an issue ad to a campaign ad.
  Sure, if they say ``vote for'' and ``elect'' they become a campaign 
ad, but as we have shown from the illustration a few moments ago, it is 
just as simple to have a pure campaign ad that never says ``vote for,'' 
that never says ``elect,'' that simply says: Call Congressman so-and-
so, call Senator so-and-so. But any rational person looking at the ad 
would know it was calling for the election or defeat of a particular 
candidate and it was nothing, on its face, but a pure campaign ad.
  The point is, it is not a legitimate argument that because Snowe-
Jeffords does not use these magic words--the language I have heard 
during the course of the debate--it cannot pass constitutional muster.
  The Supreme Court established four tests in Buckley v. Valeo. The 
Supreme Court, in fact, invited us, the Congress, to decide what 
language ought to be used to determine whether ads, in fact, are 
prohibited or not prohibited. They have left it to us to define what 
ads are prohibited.
  The only thing they require in order to do that is that we meet the 
four tests they established, which we talked about before. Snowe-
Jeffords clearly meets all those tests. It is not vague. It is a clear, 
easy to understand bright-line test. The U.S. Supreme Court already 
said what we are attempting to do serves a compelling State interest, 
it is narrowly tailored--60 days before a general election, 30 days 
before a primary, likeness or name of the candidate, broadcast ads. And 
it is not substantially overbroad. As we have already established in 
the last election, 99 percent of the ads that fall within the 
definition of Snowe-Jeffords are, in fact, campaign ads and not issue 
ads.
  If you look carefully at the U.S. Supreme Court opinion in Buckley, 
and if you look at the tests that have been established by the U.S. 
Supreme Court, first of all, the soft money ban of McCain-Feingold is, 
on its face, constitutional. There is not even a legitimate argument 
that it is not constitutional.
  Second, the Snowe-Jeffords provision of the McCain-Feingold bill, 
which bans broadcast ads during this defined period, paid for out of 
union or corporation treasury funds, also clearly meets all the 
constitutional tests established by the Court in Buckley v. Valeo. It 
is a critical component of the McCain-Feingold bill because without it 
we are going to continue to see these sham issue ads run solely for 
campaign purposes being paid for by funds that are not legitimate and 
are not legal.
  The only way we can bring this thing to conclusion is to not only do 
what we have already done during this debate, which is pass the ban on 
soft money; but to, second, pass the Snowe-Jeffords provision. Because, 
number one, it is constitutional and, number two, it is absolutely 
critical to going about reestablishing the public faith in our 
campaigns and the public faith in our election system. Because not only 
are people worried about the flow of money, they are worried about what 
happens when they turn their television sets on in the 30 or 60 days 
before an election. They are sitting there watching television with 
their kids and what do they see? They see these nasty, personal 
attacks, in a huge percentage of the cases being paid for as issue ads, 
out of funds that are not intended to be used for that purpose.
  That is what Snowe-Jeffords is intended to stop. Snowe-Jeffords is 
clearly constitutional. We should defeat the DeWine amendment as a 
result.
  I yield the floor.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, first of all, let me thank my colleague 
from North Carolina for his excellent dissertation. I just loved it 
when he

[[Page 4903]]

was going through these ads. I want to make it real clear that for all 
of these different groups and organizations--I don't want to keep my 
colleague from North Carolina--on the floor, but I know he will agree 
with this very important distinction--that all of these groups and 
organizations, whether they are left, right, center, lean Democratic, 
lean Republican, you name it, they can run all the ads in the world 
they want and they can finance those ads with soft money; in other 
words, money they get in contributions of hundreds of thousands of 
dollars, and it is absolutely fine as long as the focus is on the 
issue. As long as those are genuine issue ads and it is not 
electioneering, they have all of the freedom in the world to do that--
period. No question about it.
  Second, if they want to do the electioneering and they want to do 
these sorts of ads where you say ``call' as opposed to ``vote against 
candidate x,'' you bash the candidate, whatever party--they can run all 
the ads they want and they can have all of the freedom of speech in the 
world. The only thing is, they have to finance it out of hard money. 
That is all. They cannot pretend that these are ``issue ads'' when they 
are sham issue ads and we all know it is electioneering. That is the 
point. But they can do it. They just have to raise their money under 
the campaign limits that deal with hard money. That is the whole point 
of some of the amendments to this bill.
  From my own part, one more time--and the more I talk to people, I 
think the people agree this is a very important strengthening 
amendment--what we want to make sure of is when we do the prohibition 
on soft money to the parties, all of a sudden that money, again, like 
pushing Jell-O, doesn't just shift to these sham issue ads where a 
variety of existing groups and organizations, much less the 
proliferation of all the new groups and organizations, will take 
advantage of a loophole and just pour all of their soft money into 
these sham issue ads which are really electioneering. In that case, 
what will we have accomplished if we have, roughly speaking, just as 
much soft money spent but it is just going to be spent in a different 
way, unaccountable big dollars?
  That is what the amendment I introduced the other night was all 
about.
  I only came to the floor because I want to make sure the Record is 
clear. My colleague from Maine was gracious enough to give me a little 
bit of time. Let me make three quick points.
  Point No. 1. The amendment I introduced the other night--since this 
amendment has been mentioned several times by my colleague--uses the 
exact same sham issue test ad, with some additional targeting, as the 
Snowe-Jeffords language in the bill which is constitutional. In fact, 
actually the targeting language I use makes the amendment more likely 
to survive any constitutional challenge.
  Point No. 2, the Snowe-Jeffords test is a bright-line test, as my 
colleague from North Carolina pointed out. It is perfectly obvious on 
its face, whether an ad falls under this definition. This means there 
will be no ``chilling effect'' on protected speech, which was a concern 
raised by the Supreme Court in the Buckley decision because every 
group, every organization would be uncertain if an ad they intended to 
run would be covered or not. We make sure everybody would be certain.
  Point No. 3, the test is not overly broad. A comprehensive study 
conducted by the Brennan Center, which did a whole lot of work on 
campaign finance ads during the 1998 election, found that only two 
genuine issue ads, out of hundreds run, would have been inappropriately 
defined as a sham issue ad.
  This is a really important one for the Record.
  On February 20, 1998, a letter signed by 20 constitutional scholars, 
including the former director of the ACLU, which analyzed the Snowe-
Jeffords provision on electioneering communications, argued that even 
though the provision was written to exempt certain organizations from 
the ban on electioneering communication, such omission was not 
constitutionally necessary.
  I quote from these scholars, including a former director of the ACLU:

       The careful crafting of the Snowe-Jeffords amendment stands 
     in stark contrast to the clumsy and sweeping prohibition that 
     Congress originally drafted. Congress could, if it wished, 
     apply the basic rules that currently govern electioneering to 
     all spending that falls within this more realistic definition 
     of electioneering. Congress could, for example, declare that 
     only individuals, PAC's and the most grassroots of nonprofit 
     corporations could engage in electioneering that falls within 
     the broad definition. It could impose fundraising 
     restrictions prohibiting individuals from pooling large 
     contributions towards such electioneering.

  Fifth point: If you believe that the amendment that passed the other 
night that I introduced covers certain groups unconstitutionally--if 
that is what you believe--then you must also believe that the current 
Shays-Meehan bill--the version passed by the House of Representatives--
and the 1997 version, and all previous versions of the McCain-Feingold 
bill are also unconstitutional because they cover the same groups.
  Point No. 6: In September 1999, Don Simon, then-executive vice 
president and general counsel of Common Cause, argued in a memo to all 
House Members that the Shays-Meehan bill is fully constitutional. That 
is exactly the amendment we passed the other night on the floor of the 
Senate.
  Finally, in the event of constitutional problems, the amendment 
passed the other night is fully severable.
  I make five arguments as to why this is a very different question.
  First, this amendment, and indeed the Snowe-Jeffords provision 
already in the bill, only covers broadcast communications. It does not 
cover print communications like the one at issue in Massachusetts 
Citizens for Life. Indeed, the group argued that the flyer should have 
been protected as a news ``editorial.'' Snowe-Jeffords specifically 
exempts editorial communications.
  Second, the court based its decision in part on the logic that 
regulation of election related communications was overly burdensome to 
small, grass roots, nonprofit organizations and so would have a 
chilling effect on speech. But the Snowe-Jeffords standard that the 
amendment would apply has a high threshold that must be met before a 
communication is covered. A group would have to spend $10,000 on 
broadcast ads that mention a federal candidate 60 days before an 
election before this provision would kick in. This meets the Court's 
requirement in the case that minor communications be protected.
  Third, the federal law that the court objected to was extremely broad 
and the Court specifically cited that fact as one of reasons it reached 
the decision it did, saying ``Regulation that would produce such a 
result demands far more precision that [current law] provides.'' This 
amendment provides that precision. The Snowe-Jeffords language is very 
narrowly targeted and has a very high threshold before it applies, 
which further protects amateur, unsophisticated, or extremely limited 
communications.
  Fourth, the Court actually argued that the election communications of 
non-profit corporations--such as the ones covered by amendment--could 
be regulated once it reached a certain level. In fact, the Court held 
that, quote:

       . . . should MCFL's independent spending so extensive that 
     the organization's major purpose may be regarded as campaign 
     activity, the corporation would be classified as a political 
     committee . . . As such, it would automatically be subject to 
     the obligations and restrictions applicable to those groups 
     whose primary objective is to influence political campaigns.

  Yet since the decision, such groups have actually operated outside 
the law with impunity. Take for example, the organization ``Republicans 
for Clean Air.''
  Despite it's innocuous name, this was an organization created for the 
sole purpose of promoting the candidacy of George W. Bush during the 
Republican primary during the last election. Another example is the 
Club for Growth. This was an outfit that ran attack ads against 
moderate Republican congressional candidates in Republican 
congressional primaries. Both groups,

[[Page 4904]]

which would be covered by my amendment--but not the current Snowe-
Jeffords provision--could clearly be banned from running these sham 
issue ads with their treasury funds under the Massachusetts Citizens 
for Life decision.
  Fifth, the court's decision was based on a premise that may have been 
true in 1986, but certainly is not the case today: that non-profit 
groups such as the one at issue in the decision did not play a major 
rule in federal elections. In fact, the court held that: ``the FEC 
maintains that the inapplicability of [current law] to MCFL would open 
the door to massive undisclosed spending by similar entities . . . We 
see no such danger.'' Today, it is clear that the FEC had it exactly 
right and the Court had it exactly wrong.
  In fact, the Campaign Finance Institute at George Washington 
University in a February 2001 report found this to be the case and 
stated quote: ``These undisclosed interest group communications are a 
major force in U.S. not little oddities or blips on a screen.'' Perhaps 
in 1986 it was a ``blip on the screen'' but today we are talking about 
tens of millions of dollars just in these sham issue adds. These groups 
have become major players in our elections but the law does not hold 
them accountable.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. SNOWE. Mr. President, I want to conclude the debate on the motion 
to strike that has been offered by my colleague from Ohio by making 
several points on the Snowe-Jeffords provision. We will conclude the 
debate tomorrow before the vote. But I think it is critical for my 
colleagues to understand that the essence of this provision, as the 
Senator from North Carolina so eloquently stated, the legal rationale 
for the underpinnings of this amendment, was drafted with an abundance 
of caution. It was carefully crafted to specifically address the issues 
that were raised in the Buckley decision in 1976 with respect to the 
restrictions being either too vague or too broad, and so they in effect 
would not have a chilling effect on the public's right to free speech.
  Since that time, as I indicated earlier, in the 25 years or 26 years 
that have ensued, there has been no other major campaign finance law 
that has been passed by this Congress or that has come before the 
Supreme Court because we have not acted. We have not taken any action 
on campaign finance reform or changes in our campaign finance laws 
since that time.
  We have seen the evolution and the eruption of the so-called sham 
issue ads that supposedly were operating under the guise of being 
advocacy ads. But in reality, as we all well know, with the studies 
that have been done recently on the influence and impact they are 
having on the election because they mention the candidates by name, 
they come into that very narrow window of 60 days before an election.
  That is not just happenstance; it is because the election is 
occurring. They design these ads to mention a candidate and to avoid 
using those magic words ``for or against'' but knowing full well that 
it will have an effect on the intended audience on a candidate's 
election.
  We are very definitive. We are very specific in the Snowe-Jeffords 
provision in the McCain-Feingold legislation that is before us. It has 
to identify. It has to mention a candidate. The ad has to run 60 days 
before a general election and 30 days before a primary. The ad has to 
run in a candidate's State or district.
  Those criteria are very specific, and therefore anybody who has the 
intention of running those ads will know exactly whether or not they 
are treading constitutional grounds. That is why 70 constitutional 
scholars and experts signed a letter in support of these provisions, 
because they know they don't run afoul of constitutional limitations in 
the first amendment because it is very specifically drafted to address 
those issues.
  Fundamentally, it really comes down to whether or not we are truly 
interested in disclosure. The Supreme Court said we have a right to 
disclosure. It is in the public interest. It is a compelling public 
interest for disclosure. The Supreme Court has said clearly in a number 
of cases for constitutional purposes that electioneering is different 
from other speeches. That was handed down as one decision by the 
Supreme Court in 1986.
  Of course, in the Buckley case, it said Congress has the power to 
enact campaign financing laws that extend electioneering through a 
variety of ways, even though spending in other forms of political 
speech is entitled to absolute first amendment protection. It said, as 
an example, to ``vote for'' or ``vote against'' are the magic words but 
that it was not all-inclusive.
  The Supreme Court could not possibly have foreseen the evolution of 
the kinds of ads that are pervading the election process today. They 
are escaping. They are coming in under the radar of disclosure.
  We are saying those major donors of $1,000 or more--that is five 
times the requirement for disclosure that we have to provide as 
candidates under Federal election laws--but we are saying five times 
higher before the trigger for disclosure occurs to organizations that 
run ads in that 60-day window, in the 30-day window in the primary, 
that mention a candidate because it is clear that the intent is 
designed to influence the outcome of an election.
  In Buckley, it said Congress has broader latitude to require 
disclosure of election-related spending than it does to restrict such 
spending. Disclosure rules, according to the Court, are the least 
restrictive means of curbing the evils of campaign ignorance and 
corruption.
  Congress banned corporate union contributions as upheld in United 
States v. UAW in 1957, reaffirmed, as I said earlier, in the Austin v. 
Michigan Chamber of Commerce decision in 1990. It is all weighted in 
sound legal precedent. That is what the Snowe-Jeffords provision is all 
about.
  I really do think we have to come to grips with the realities of what 
is occurring in our elections when 99 percent --99 percent is almost as 
high as it gets--99 percent of all of the ads that are aired during 
that period of time before the election mention candidates. And their 
intent is clear, because all the focus groups that responded to the 
Snowe-Jeffords provision used that as an analysis and viewed these ads, 
and identified these ads as being the most influential, negative, and 
intended to effect an outcome. So that is essentially what we are 
talking about.
  I think the vote tomorrow to strike this provision is basically 
coming down to whether or not we want fundamental reform, if we are 
willing to take back the process, if we are willing to take back the 
process as candidates.
  I want to control my own campaign. As I said in my previous 
statement, in 1978 when I first ran for the House of Representatives, 
these phenomena were virtually unknown. It was rare to even have an 
independent expenditure--and that is another story--under Federal 
election laws. That is a different thing. But we did not even have 
that.
  These elections should be between and among the candidates 
themselves. Do we really think it is in our interest, in the public's 
interest, to have organizations of whom we know little, if anything, to 
influence, to impact, our elections--In fact, to spend more than the 
candidates themselves in some of these elections? Sometimes these 
organizations spend more than the candidates themselves who are 
involved in these elections. Are we saying that that is in our public 
interest?
  They hide behind the cloak of anonymity. We do not even know who they 
are. I have a list here. Some of them we would probably readily 
identify by name, at least in terms of their interests. But while you 
do not know most of them, this is a list of 100 organizations. And this 
is not all of them. This is not all inclusive. But you have the 
Americans for Hope, Growth & Opportunity, Americans for Job Security, 
Coalition to Protect Americans Now, Coalition to Protect America's 
Health Care, Committee for Good Common Sense. Those all sound very 
appropriate, meritorious, but who are they? Who are they?

[[Page 4905]]

  We are not saying they can't run ads. They can run ads all year long. 
They can do whatever they want in that sense. But what we are saying 
is, when they come into that narrow window, we have the right to know 
who are their major contributors who are financing these ads close to 
an election.
  There are no guaranteed rights to anonymity when it comes to 
campaigning. Even the Supreme Court has said it is in our public 
interest to have disclosure. In fact, the Court has said time and time 
again, disclosure is in the public's interest because it gives details 
as to the nature and source of the information they are getting. That 
is why 70 constitutional scholars have endorsed the Snowe-Jeffords 
provision.
  Mr. President, I ask unanimous consent to have this letter from the 
Brennan Center for Justice printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

         Brennan Center for Justice at NYU School of Law,
                                     New York, NY, March 12, 2001.
     Senator John McCain,
     Senator Russell Feingold,
     U.S. Senate, Washington, DC.
       Dear Senators McCain and Feingold: We are scholars who have 
     studied and written about the First Amendment to the United 
     States Constitution. We submit this letter to respond to a 
     series of public challenges to two components of S. 27, the 
     McCain-Feingold Bill. Critics have argued that it is 
     unconstitutional to close the so-called ``soft money 
     loophole'' by placing restrictions on the source and amount 
     of campaign contributions to political parties. Critics have 
     also argued that it is unconstitutional to require disclosure 
     of campaign ads sponsored by advocacy groups unless the ads 
     contain explicit words of advocacy, such as ``vote for'' or 
     ``vote against.'' We reject both of those suggestions.
       As constitutional scholars, we are deeply committed to the 
     principles underlying the First Amendment and believe 
     strongly in preserving free speech and association in our 
     society, especially in the realm of politics. We are not all 
     of the same mind on how best to address the problems of money 
     and politics. However, we all agree that the nation's current 
     campaign finance laws are on the verge of being rendered 
     irrelevant, and that the Constitution does not erect an 
     insurmountable hurdle to Congressional efforts to adopt 
     reasonable campaign finance laws aimed at increasing 
     disclosure for electioneering ads, restoring the integrity of 
     the long-standing ban on corporate and union political 
     expenditures, and reducing the appearance of corruption that 
     flows from ``soft money'' donations to political parties.
       The problems of corruption and the appearance of corruption 
     that the McCain-Feingold Bill attempts to address are ones 
     that inhere in any system that permits large campaign 
     contributions to flow to elected officials and the political 
     parties. These problems have been brought to the public's 
     attention in a rather stark manner through the recent 
     presidential pardon issued to fugitive financier Marc Rich. 
     Regardless of underlying merits of that presidential 
     decision, the public perception that flows from the publicly-
     reported facts is that large political contributors receive 
     both preferred access to and preferential treatment from our 
     elected government officials. These perceptions, regardless 
     of their truth or falsity in any individual case, are 
     ultimately very corrosive to our democratic institutions.


  I. Limits on ``Soft Money'' contributions to Political Parties from 
Corporations, Labor Unions, and Wealthy Contributors Are Constitutional

       To prevent corruption and the appearance of corruption, 
     federal law imposes limits on the source and amount of money 
     that can be given to candidates and political parties ``in 
     connection with'' federal elections. The money raised under 
     these strictures is commonly referred to as ``hard money.'' 
     Since 1907, federal law has prohibited corporations from 
     making hard money contributions to candidates or political 
     parties. See 2 U.S.C 441b(a) (current codification). In 1947, 
     that ban was extended to prohibit union contributions as 
     well. Id. Individuals, too, are subject to restrictions in 
     their giving of money to influence federal elections. The 
     Federal Election Campaign Act (``FECA'') limits an 
     individual's contributions to (1) $1,000 per election to a 
     federal candidate; (2) $20,000 per year to national political 
     party committees; and (3) $5,000 per year to any other 
     political committee, such as a PAC or a state political party 
     committee. Id. Sec. 441a(a)(1). Individuals are also subject 
     to a $25,000 annual limit on the total of all such 
     contributions. Id. Sec. 441a(a)(3).
       The soft money loophole was created not by Congress, but by 
     a Federal Election Commission (``FEC'') ruling in 1978 that 
     opened a seemingly modest door to allow non-regulated 
     contributions to political parties, so long as the money was 
     used for grassroots campaign activity, such as registering 
     voters and get-out-the-vote efforts. These unregulated 
     contributions are known as ``soft money'' to distinguish them 
     from the hard money raised under FECA's strict limits. In the 
     years since the FEC's ruling, this modest opening has turned 
     into an enormous loophole that threatens the integrity of the 
     regulatory system. In the recent presidential election, soft 
     money contributions soared to the unprecedented figure of 
     $487 million, which represented an 85 percent increase over 
     the previous presidential election cycle (1995-96). It is not 
     merely the total amount of soft money contributions that 
     raises concerns, but the size of the contributions as well, 
     with donors being asked to give amounts of $100,000, 
     $250,000, or more to gain preferred access to federal 
     officials. Moreover, the soft money raised is, for the most 
     part, not being spent to bolster party grassroots organizing. 
     Rather, the funds are often solicited by federal candidates 
     and used for media advertising clearly intended to influence 
     federal elections. In sum, soft money has become an end run 
     around the campaign contribution limits, creating a corrupt 
     system in which monied interests appear to buy access to, and 
     inappropriate influence with, elected officials.
       The McCain-Feingold bill would ban soft money contributions 
     to national political parties by requiring that all 
     contributions to national parties be subject to FECA's hard 
     money restrictions. The bill also would bar federal 
     officeholders and candidates for such offices from 
     soliciting, receiving, or spending soft money. Additionally, 
     state parties that are permitted under state law to accept 
     unregulated contributions from corporations, labor unions, 
     and wealthy individuals would be prohibited from spending 
     that money on activities relating to federal elections, 
     including advertisements that support or oppose a federal 
     candidate.
       We believe that such restrictions are constitutional. The 
     soft money loophole has raised the specter of corruption 
     stemming from large contributions (and those from prohibited 
     sources) that led Congress to enact the federal contribution 
     limits in the first place. In Buckley v. Valeo the Supreme 
     Court held that the government has a compelling interest in 
     combating the appearance and reality of corruption, an 
     interest that justifies restricting large campaign 
     contributions in federal elections. See 424 U.S. 1, 23-29 
     (1976). Significantly, the Court upheld the $25,000 annual 
     limit on an individual's total contributions in connection 
     with federal elections. See id. at 26-29, 38. In later cases, 
     the Court rejected the argument that corporations have a 
     right to use their general treasury funds to influence 
     elections. See, e.g., Austin v. Michigan Chamber of Commerce, 
     494 U.S. 652 (1990). Under Buckley and its progeny, Congress 
     clearly possesses power to close the soft money loophole by 
     restricting the source and size of contributions to political 
     parties, just as it does for contributions to candidates, for 
     use in connection with federal elections.
       Moreover, Congress has the power to regulate the source of 
     the money used for expenditures by state and local parties 
     during federal election years when such expenditures are used 
     to influence federal elections. The power of Congress to 
     regulate federal elections to prevent fraud and corruption 
     includes the power to regulate conduct which, although 
     directed at state or local elections, also has an impact on 
     federal races. During a federal election year, a state or 
     local political party's voter registration or get-out-the-
     vote drive will have an effect on federal elections. 
     Accordingly, Congress may require that during a federal 
     election year, state and local parties' expenditures for such 
     activities be made from funds raised in compliance with FECA 
     so as not to undermine the limits therein.
       Any suggestion that the Supreme Court's decision in 
     Colorado Republican Federal Campaign Committee v. FEC, 1518 
     U.S. 604 (1996), casts doubt on the constitutionality of a 
     soft money ban is flatly wrong. Colorado Republican did not 
     address the constitutionality of banning soft money 
     contributions, but rather the expenditures by political 
     parties of hard money, that is, money raised in accordance 
     with FECA's limit. Indeed, the Court noted that it ``could 
     understand how Congress, were it to conclude that the 
     potential for evasion of the individual contribution limits 
     was a serious matter, might decide to change the statute's 
     limitations on contributions to political parties.'' Id. at 
     617.
       In fact, the most relevant Supreme Court decision is not 
     Colorado Republican, but Austin v. Michigan Chamber of 
     Commerce, in which the Supreme Court held that corporations 
     can be walled off from the electoral process by forbidding 
     both contributions and independent expenditures from general 
     corporate treasuries. 494 U.S. at 657-61. Surely, the law 
     cannot be that Congress has the power to prevent corporations 
     from giving money directly to a candidate, or from expending 
     money on behalf of a candidate, but lacks the power to 
     prevent them from pouring unlimited funds into a candidate's 
     political party in order to buy preferred access to him after 
     the election. See also Nixon v. Shrink Missouri Govt. PAC, 
     120 S. Ct. 897 (2000) (reaffirming Buckley's holding that 
     legislatures may enact limits on

[[Page 4906]]

     large campaign contributions to prevent corruption and the 
     appearance of corruption).
       Accordingly, closing the loophole for soft money 
     contributions is in line with the longstanding and 
     constitutional ban on corporate and union contributions in 
     federal elections and with limits on the size of individuals' 
     contributions to amounts that are not corrupting.


 II. Congress May Require disclosure of Electioneering Communications, 
and It May Require Corporations and Labor Unions to Fund Electioneering 
  Communications With Money Raised Through Political Action Committees

       The current version of the McCain-Feingold Bill adopts the 
     Snowe-Jeffords Amendment, which addresses the problem of 
     thinly-disguised electioneering ads that masquerade as 
     ``issue ads.'' Snowe-Jeffords defines the term 
     ``electioneering communications'' to include radio or 
     television ads that refer to clearly identified candidates 
     and are broadcast within 60 days of a general election or 30 
     days of a primary. A group that makes electioneering 
     communications totaling $10,000 or more in a calendar year 
     must disclose its identity, the cost of the communication, 
     and the names and addresses of all its donors of $1,000 or 
     more. If the group has a segregated fund that it uses to pay 
     for electioneering communications, then only donors to that 
     fund must be disclosed. Additionally, corporations and labor 
     unions are barred from using their general treasury funds to 
     pay for electioneering communications. Instead, they must 
     fund electioneering communications through their political 
     action committees.
       The Supreme Court has made clear that, for constitutional 
     purposes, electioneering is different from other speech. See 
     FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 249 
     (1986) (``MCFL''). Congress has the power to enact campaign 
     finance laws that constrain the spending of money on 
     electioneering in a variety of ways, even though spending on 
     other forms of political speech is entitled to absolute First 
     Amendment protection. See Buckley v. Valeo, 424 U.S. 1 
     (1976). Congress is permitted to demand that the sponsor of a 
     campaign and disclose the amount spent on the message and the 
     sources of the funds. And Congress may prohibit corporations 
     and labor unions from spending money on campaign ads. This is 
     black letter constitutional law about which there can be no 
     serious dispute.
       There are, of course, limits to Congress's power to 
     regulate election-related spending. But there are two 
     contexts in which the Supreme Court has granted Congress 
     freer reign to regulate. First, Congress has broader latitude 
     to require disclosure of election-related spending than it 
     does to restrict such spending. See id. at 67-68. In Buckley, 
     the Court declared that the governmental interests that 
     justify disclosure of election-related spending are 
     considerably broader and more powerful than those justifying 
     prohibitions or restrictions on election-related speeding. 
     Disclosure rules, the Court opined, in contrast to spending 
     restrictions or contribution limits, enhance the information 
     available to the voting public. Plus, the burdens on free 
     speech rights are far less significant when Congress requires 
     disclosure of a particular type of spending than when it 
     prohibits the spending outright or limits the funds that 
     support the speech. Disclosure rules, according to the Court, 
     are ``the least restrictive means of curbing the evils of 
     campaign ignorance and corruption.'' Id. at 68. Thus, even if 
     certain political advertisements cannot be prohibited or 
     otherwise regulated, the speaker might still be required to 
     disclose the funding sources for those ads if the 
     governmental justification is sufficiently strong.
       Second, Congress has a long record, which has been 
     sustained by the Supreme Court, of imposing more onerous 
     spending restrictions on corporations and labor unions than 
     on individuals, political action committees, and 
     associations. Congress banned corporate and union 
     contributions in order ``to avoid the deleterious influences 
     on federal elections resulting from the use of money by those 
     who exercise control over large aggregations of capital.'' 
     United States v. UAW, 352 U.S. 567, 585 (1957). As recently 
     as 1990, the Court reaffirmed this rational. See Austin v. 
     Michigan Chamber of Commerce, 491 U.S. 652 (1990); FEC v. 
     National Right to Work Committee, 459 U.S. 197 (1982). The 
     Court emphasized that it is constitutional for the state to 
     limit the electoral participation of corporations because 
     ``[s]tate law grants [them] special advantages--such as 
     limited liability, perpetual life, and favorable treatment of 
     the accumulation of and distribution of assets.'' Austin, 491 
     U.S. at 658-59. Having provided these advantages to 
     corporations, particularly business corporations, the state 
     has no obligation to ``permit them to use `resources amassed 
     in the economic marketplace' to obtain `an unfair advantage 
     in the political marketplace.' '' (quoting MCFL, 479 U.S. at 
     257). Snowe-Jeffords builds upon these bedrock principles, 
     extending current regulation cautiously and only in the areas 
     in which the First Amendment protection is at its lowest ebb.
       Contrary to the suggestion of some of the critics of Snowe-
     Jeffords, the Supreme Court in Buckley did not promulgate a 
     list of certain ``magic words'' that are regulable as 
     ``electioneering'' and place all other communications beyond 
     the reach of campaign finance law. In Buckley, the Supreme 
     Court reviewed the constitutionality of a specific piece of 
     legislation--FECA. One section of FECA imposed a $1,000 limit 
     on expenditures ``relative to a clearly identified 
     candidate,'' and another section imposed reporting 
     requirements for independent expenditures of over $100 ``for 
     the purpose of influencing'' a federal election. The Court 
     concluded that these specific provisions ran afoul of two 
     constitutional doctrines--vagueness and overbreadth--that 
     pervade First Amendment jurisprudence.
       The vagueness doctrine demands clear definitions. Before 
     the government punishes someone--especially for speech--it 
     must articulate with sufficient clarity what conduct is legal 
     and what is illegal. A vague definition of electioneering 
     might ``chill'' some political speakers who, although they 
     desire to engage in discussions of political issues, may fear 
     that their speech could be punished.
       Even if a regulation is articulated with great clarity, it 
     may still be struck as overbroad. A restriction that covers 
     regulable speech (and does so clearly) can be struck if it 
     sweeps too broadly and covers a substantial amount of 
     constitutionally protected speech as well. But under the 
     overbreadth doctrine, the provision will be upheld unless its 
     overbreadth is substantial. A challenger cannot topple a 
     statute simply by conjuring up a handful of applications that 
     would yield unconstitutional results.
       Given these two doctrines, it is plain why FECA's clumsy 
     provisions troubled the Court. Any communication that so much 
     as mentions a candidate--any time and in any context--could 
     be said to be ``relative to'' the candidate. And it is 
     difficult to predict what might ``influence'' a federal 
     election. The Supreme Court could have simply struck FECA, 
     leaving it to Congress to develop a clearer and more precise 
     definition of electioneering. Instead, the Court intervened 
     by essentially rewriting Congress's handiwork itself. In 
     order to avoid the vagueness and overbreadth problems, the 
     Court interpreted FECA to reach only funds used for 
     communications that ``expressly advocate'' the election or 
     defeat of a clearly identified candidate. In an important 
     footnote, the Court provided some guidance on how to decide 
     whether a communication meets that description. The Court 
     stated that its revision of FECA would limit the reach of the 
     statute ``to communications containing express words of 
     advocacy of election or defeat, such as `vote for,' `elect,' 
     `support,' `cast your ballot for,' `Smith for Congress,' 
     `vote against,' `defeat,' `reject,' '' Buckley, 424 U.S. at 
     44 n.52.
       But the Court did not declare that all legislatures were 
     stuck with these magic words, or words like them, for all 
     time. To the contrary, Congress has the power to enact a 
     statute that defines electioneering in a more nuanced manner, 
     as long as its definition adequately addresses the vagueness 
     and overbreadth concerns expressed by the Court.
       Any more restrictive reading of the Supreme Court's opinion 
     would be fundamentally at odds with the rest of the Supreme 
     Court's First Amendment jurisprudence. Countless other 
     contexts--including libel, obscenity, fighting words, and 
     labor elections--call for delicate line drawing between 
     protected speech and speech that may be regulated. In none of 
     these cases has the Court adopted a simplistic bright-line 
     approach. For example, in libel cases, an area of core First 
     Amendment concern, the Court has rejected the simple bright-
     line approach of imposing liability based on the truth or 
     falsity of the statement published. Instead the Court has 
     prescribed an analysis that examines, among other things, 
     whether the speaker acted with reckless disregard for the 
     truth or falsity of the statement and whether a reasonable 
     reader would perceive the statement as stating actual facts 
     or merely rhetorical hyperbole. Similarly, in the context of 
     union representation elections, employers are permitted to 
     make ``predictions'' about the consequences of unionizing but 
     they may not issue ``threats.'' The courts have developed an 
     extensive jurisprudence to distinguish between the two 
     categories, yet the fact remains that an employer could 
     harbor considerable uncertainty as to whether or not the 
     words he is about to utter are sanctionable. The courts are 
     comfortable with the uncertainty of these tests because they 
     have provided certain concrete guidelines.
       In no area of First Amendment jurisprudence has the Court 
     mandated a mechanical test that ignores either the context of 
     the speech at issue or the purpose underlying the regulatory 
     scheme. In no area of First Amendment jurisprudence has the 
     Court held that the only constitutionally permissible test is 
     one that would render the underlying regulatory scheme 
     unenforceable. It is doubtful, therefore, that the Supreme 
     Court in Buckley intended to single out election regulations 
     as requiring a mechanical, formulaic, and utterly unworkable 
     test.
       Snowe-Jeffords presents a definition of electioneering 
     carefully crafted to address the Supreme Court's dual 
     concerns regarding vagueness and overbreadth. Because the 
     test

[[Page 4907]]

     for prohibited electioneering is defined with great clarity, 
     it satisfies the Supreme Court's vagueness concerns. Any 
     sponsor of a broadcast will know, with absolute certainty, 
     whether the ad depicts or names a candidate and how many days 
     before an election it is being broadcast. There is little 
     danger that a sponsor would mistakenly censor its own 
     protected speech out of fear of prosecution under such a 
     clear standard.
       The prohibition is also narrow enough to satisfy the 
     Supreme Court's overbreadth concerns. Advertisements that 
     name a political candidate and are aired close to election 
     almost invariably are electioneering ads intended to 
     encourage voters to support or oppose the named candidate. 
     This conclusion is supported by a comprehensive academic 
     review conducted of television advertisements in the 1998 
     federal election cycle. See Buying Time: Television 
     Advertising in the 1998 Congressional Elections (Brennan 
     Center for Justice, 2000). This study examined more than 
     300,000 airings of some 2,100 separate political commercials 
     that appeared in the nation's 75 largest media markets in 
     1998. The study found that there were a total of 3,100 
     airings of only two separate commercials that met the Snowe-
     Jeffords criteria of naming a specific candidate within 60 
     days of the general election and that were judged by academic 
     researchers to be true issue advocacy. This, the Snowe-
     Jeffords general election criteria were shown to have 
     inaccurately captured only 1 percent of the total political 
     commercial airings, and represented an insignificant 0.1 
     percent of the separate political commercial airings in the 
     1998 election cycle. This empirical evidence demonstrates 
     that the Snowe-Jeffords criteria are not ``substantially 
     overbroad.'' The careful crafting of Snowe-Jeffords stands in 
     stark contrast to the clumsy and sweeping prohibition that 
     Congress originally drafted in FECA.


                               Conclusion

       McCain-Feingold is a reasonable approach to restoring the 
     integrity of our federal campaign finance laws. The 
     elimination of soft money will close an unintended loophole 
     that, over the last few election cycles, has rendered the 
     pre-existing federal contribution limits largely irrelevant. 
     Similarly, the incorporation of the Snowe-Jeffords Amendment 
     into the McCain-Feingold Bill is a well-reasoned attempt to 
     define electioneering in a more realistic manner while 
     remaining faithful to First Amendment vagueness and 
     overbreadth concerns. It seeks to provide the public with 
     important information concerning which private groups and 
     individuals are spending substantial sums on electioneering, 
     and it prohibits corporations and labor unions from skirting 
     the ban on using their general treasury funds for the purpose 
     of influencing the outcome of federal elections. While no one 
     can predict with certainty how the courts will finally rule 
     if any of these provisions are challenged in court, we 
     believe that the McCain-Feingold Bill, as currently drafted, 
     is consistent with First Amendment jurisprudence.
           Respectfully submitted,
     Erwin Chemerinsky,
       Sydney M. Irmas Professor of Public Interest, Law, Legal 
     Ethics, and Political Science, University of Southern 
     California.
     Ronald Dworkin,
       Quain Professor of Jurisprudence, University College 
     London; Frank H. Sommer Professor of Law, New York University 
     School of Law.
     Abner J. Mikva,
       Visiting Professor, University of Chicago School of Law.
     Norman Ornstein,
       Resident Scholar, American Enterprise Institute.
     Norman Dorsen,
       Stokes Professor of Law, New York University School of Law.
     Frank Michelman,
       Robert Walmsey University Professor, Harvard University.
     Burt Neuborne,
       John Norton Pomeroy Professor of Law, New York University 
     School of Law.
     Daniel R. Ortiz,
       John Allan Love Professor of Law & Joseph C. Carter, Jr. 
     Research Professor, University of Virginia School of Law.
       (All Institutional Affiliations are for Identification 
     Purposes Only)

  Ms. SNOWE. They illustrate exceptionally well the legal validity and 
rationale for this provision. It charts a very narrow course. That is 
why they have every confidence it will withstand constitutional 
scrutiny.
  You hear some who say: Oh, no, it will create a loophole. On the 
other hand, it creates too many restrictions.
  Well, which is it? I think we have reached the point in time where we 
have to stand up and be counted as to whether or not we want to hide 
behind the guise of anonymity, of organizational anonymity, to shape 
the direction and influence of these elections. I say that is the wrong 
direction.
  The Annenberg Center did a study. It showed, as I said earlier, $100 
million was spent in the final weeks of the campaign. And guess what. 
They mentioned a candidate by name. They mentioned a candidate by name. 
That is no coincidence. It had nothing to do with influencing the issue 
agenda because, as I showed on a chart earlier, what was happening in 
Congress and what was happening out in the elections was not parallel. 
The ads run by these organizations tracked the ads run by candidates 
and had nothing to do, virtually speaking, with what Congress was 
addressing at that point in time.
  So that is why this legislation becomes so important. It is an 
integral part of the reform that is before us embodied in the McCain-
Feingold legislation. It does represent a balanced approach.
  Mr. President, I ask unanimous consent to have a statement by persons 
who have served the American Civil Liberties Union printed in the 
Record.
  There being no objection, the statement was ordered to be printed in 
the Record, as follows:

Statement of Persons Who Have Served the American Civil Liberties Union 
in Leadership Positions Supporting the Constitutionality of the McCain-
                     Feingold Bill, March 22, 2001

       We have served the American Civil Liberties Union in 
     leadership positions over several decades. Norman Dorsen 
     served as ACLU General Counsel from 1969-76 and as President 
     of the ACLU from 1976-1991. Jack Pemberton and Aryeh Neier 
     served as Executive Directors of the ACLU from 1962-1978. 
     Melvin Wulf, Burt Neuborne, and John Powell served as 
     National Legal Directors of the ACLU from 1962-1992. Charles 
     Morgan, Jr., John Shattuck, and Morton Halperin served as 
     National Legislative Directors of the ACLU from 1972-1992. 
     Together we constitute every living person to have served as 
     ACLU President, ACLU Executive Director, ACLU Legal Director, 
     or ACLU Legislative Director, with the exception of the 
     current leadership.
       We have devoted much of our professional lives to the ACLU, 
     and to the protection of free speech. We are proud of our 
     ACLU service, and we continue to support the ACLU's matchless 
     efforts to preserve the Bill of Rights. We have come to 
     believe, however, that the ACLU's opposition to campaign 
     finance reform in general, and the McCain-Feingold Bill in 
     particular, is misplaced. In our opinion, the First Amendment 
     does not forbid content-neutral efforts to place reasonable 
     limits on campaign spending and establish reasonable 
     disclosure rules, such as those contained in the McCain-
     Feingold Bill.
       We believe that the First Amendment is designed to 
     safeguard a functioning and fair democracy. The current 
     system of campaign financing makes a mockery of that ideal by 
     enabling the rich to set the national agenda, and to exercise 
     disproportionate influence over the behavior of public 
     officials.
       We recognize that the Supreme Court's 1976 decision in 
     Buckley v. Valeo makes it extremely difficult for Congress to 
     reform the current, disastrous campaign finance system, and 
     we believe that Buckley should be overruled. However, even 
     within the limitations of the Buckley decision, we believe 
     that the campaign finance reform measures contained in the 
     McCain-Feingold Bill are constitutional.
       We support McCain-Feingold's elimination of the ``soft 
     money'' loophole, which allows unlimited campaign 
     contributions to political parties and undermines Congress's 
     effort to regulate the size and source of campaign 
     contributions to candidates. There can be little doubt that 
     large ``soft money'' contributions to the political parties 
     can corrupt, and are perceived as corrupting, our government 
     officials.
       We also support regulation of the funding of political 
     advertising that is clearly intended to affect the outcome of 
     a specific federal election, but that omits the magic words 
     ``vote for'' or ``vote against.'' The McCain-Feingold Bill 
     treats as electioneering any radio or television ad that 
     names a federal candidate shortly before an election and is 
     targeted to the relevant electorate. It would ban the use of 
     corporate and labor general treasury funds for such ads, and 
     it would require public disclosure of the sources of funding 
     for such ads when purchased by other groups and individuals. 
     We believe that these provisions are narrowly tailored to 
     meet the vagueness and overbreadth concerns expressed by the 
     Supreme

[[Page 4908]]

     Court in Buckley, and thus are constitutional.
       Finally, we believe that the current debate over campaign 
     finance reform in the Senate and House of Representatives 
     should center on the important policy questions raised by 
     various efforts at reform. Opponents of reform should not be 
     permitted to hide behind an unjustified constitutional 
     smokescreen.

     Norman Dorsen.
     Morton Halperin.
     Charles Morgan, Jr.
     Aryeh Neier.
     Burt Neuborne.
     Jack Pemberton.
     John Powell.
     John Shattuck.
     Melvin Wulf.

  Ms. SNOWE. Mr. President, every previous president of the ACLU has 
endorsed this legislation. They uphold it. As we know, they are an 
organization apt to take either side to preserve the freedom and the 
right to speak. But they believe this meets the constitutional 
soundness as crafted in previous decisions by the Supreme Court.
  The Supreme Court did not say forever and a day you could never pass 
any other legislation to address what might develop. As I said, the 
Court could not possibly foresee 25 years later the emergence and the 
preponderance of the kind of ads that are clearly overtaking the 
process.
  The time has come, I say to my colleagues in the Senate, to recognize 
we have to stand up and be counted on this very significant issue. And 
it comes down to disclosure. It comes down to disclosure. I hope the 
Senate will stand four-square behind disclosure and sunlight and 
against the unchecked process of these electioneering ads that are 
certainly transforming the political landscape in ways that we could 
not possibly desire or embrace.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, may I inquire of the Chair how much time I 
have remaining?
  The PRESIDING OFFICER. The Senator has 47\1/2\ minutes.
  Mr. DeWINE. Let me inform the Chair and my colleagues, I do not 
intend to take that entire time. I am sure the Chair is pleased by 
that.
  I do request of the Chair, though, in case I do get carried away, if 
the Chair would notify me when I have 10 minutes remaining. I don't 
expect to get to that point. If the Chair will do that, I would 
appreciate it.
  I have listened to my colleagues from Vermont and Maine, Arizona and 
North Carolina. I agree with a lot of what they have had to say. I 
don't like a lot of these ads either. I have the same fear that every 
incumbent does; that is, that the next time I run there is going to be 
a group that will come in and spend a whole bunch of money on Ohio TV 
and tell people what a bad Senator Mike DeWine has been. We all live in 
fear of that. We all live with a lot of money coming in, and we have 
the fear of very tough ads that use our name, that use our picture, and 
tell the voters why we are not doing such a good job. We have that 
fear.
  The problem is, the Snowe-Jeffords-Wellstone amendment is 
unconstitutional. There is the first amendment. Even though we may not 
like it when people say things about us, that is part of their rights 
under the first amendment.
  I will respond specifically to a couple comments that have been made. 
My colleague from Maine and before that my colleague from Minnesota 
made the statement about former directors of the ACLU. Let me respond 
to that by referencing a letter from the current ACLU opposing this 
language, opposing the bill. In part, in referencing this section of 
the bill, they say:

       Simply put, the bill is a recipe for political repression 
     because it egregiously violates longstanding free speech 
     rights.

  There is more to the letter, but that is the essence of it.
  With the exception of my colleague from Minnesota, everyone who has 
come to the floor this afternoon and this evening to argue against the 
DeWine amendment, each one of those individuals, while I have a great 
deal of respect for them and while they were all very eloquent, each 
one of them, with the exception of Senator Wellstone, voted against the 
Wellstone amendment. I can't tell my colleagues why in each case, but 
each one of them did. The fact we must remember, and I ask my 
colleagues to remember, is we no longer are dealing with Snowe-
Jeffords. We now are dealing with Snowe-Jeffords-Wellstone. That is 
what is in the bill, not the original Snowe-Jeffords.
  Ninety percent of the debate we have heard this evening is about 
Snowe-Jeffords. That is not where we are. I didn't come to the floor to 
offer an amendment to take out Snowe-Jeffords. It has been changed. It 
has been fundamentally changed. Members need to think about it.
  My friend from North Carolina who voted against the Wellstone 
amendment said this in his closing statement when he argued why he was 
going to vote against it:

       So the reason Senator Feingold and Senator McCain are 
     opposing this amendment is the same reason that I oppose this 
     amendment. It raises very serious constitutional problems. 
     The U.S. Supreme Court, in fact, in 1984, specifically ruled 
     on this question.

  That is what Senator Edwards said on this floor a short time before 
we voted on the Wellstone amendment. Every person who has come to the 
floor, with the exception of Senator Wellstone, every one who opposes 
the DeWine amendment opposed the Wellstone amendment. There had to be a 
reason.
  Again, what we are dealing with now is a changed bill, a changed 
playing field. It is a different ballgame. It is a different bill. I 
say to each one of you who took an oath to uphold the Constitution of 
the United States, it is a different bill that we now are going to be 
voting on tomorrow or the next day.
  My amendment makes it a better bill. It makes it a constitutional 
bill.
  Now, where are we? What does the new bill with the Wellstone 
amendment now say? It has the original provisions of Senator Snowe and 
Senator Jeffords: 60 days out, corporations, unions no longer can 
engage in express advocacy. They no longer can run ads that are now 
allowed by law. That is a fundamental change. It is a gag on unions for 
the last 60 days during the period of time when it counts the most.
  The bill now goes further. Not only does it cover unions for 60 days, 
not only does it cover corporations for 60 days, now it says virtually 
nobody can run an ad that mentions the candidate's name except the 
candidates. And no one can engage in discussion about candidates' 
voting records when they mention their names. I don't know how you 
discuss a candidate's voting record without mentioning their name, but 
you can't talk about a candidate's voting record within 60 days of an 
election unless you are the candidate or the other candidate, or unless 
you own a TV station, or unless you are the commentator for the nightly 
news. Everybody else, every other citizen is silenced for 60 days.
  Do we really want to do that? Putting aside whether it is 
constitutional or not constitutional--I think it is blatantly 
unconstitutional, certifiably unconstitutional, but even if it wasn't--
do we still want to do that in this country and say within 60 days 
before the election all these people can't talk anymore? I don't think 
we do.
  Yes, speech is effective. My colleague from Maine in essence says it 
is too effective. She didn't use those words, but she said it is having 
an impact. Yes, it is having an impact. That is what political speech 
is all about. It is supposed to have an impact.
  Everything seems to be reversed. At the crucial time when political 
speech matters most to the voters, those who hear it or see it, the 
bill as now written says: You can't do it. Sixty-one days out, you 
could run one of these ads, and you could talk about Mike DeWine's 
record. Fifty-nine days out from the election, you no longer can do it. 
And 3 days before the election, when everyone is paying attention, you 
can't run those ads. During the period of time when it is most 
effective, you can't run the ad.
  Not only does it pick out the time when it is the most effective, but 
the bill also picks out the way candidates today communicate on TV and 
radio and says that is one method of communication you can't use. That 
is how we get our messages across. Whether we

[[Page 4909]]

are candidates or whether we are opposing candidates or whether we are 
issue groups, whoever we are, we get it across through TV.
  You can't compete and you cannot reach people in the State of Ohio 
unless you are on TV. That is a fact. Whether you are an issue group 
attacking Mike DeWine or whether you are an independent expenditure 
group, whoever you are, you can't reach people, or whether you are the 
candidate, you can't reach people unless you are on TV. So they pick 
the most effective way to do it and the most important time, and they 
have taken those off the table and said during that period of time, you 
can't be on TV. It is a direct, absolute attack on the first amendment.
  What I have a hard time understanding is some of my colleagues and my 
friends who, on other days are the most vehement advocates for the 
first amendment, somehow don't think this violates the first amendment.
  Mr. President, it is a direct attack on the first amendment.
  I talked this afternoon about my own campaign, my last campaign. I 
want to get back to that. I emphasize, most of what my colleagues fear 
and have said I agree with. Each one of us lives in fear of a group 
putting an ad on TV that criticizes us. We don't become any less human 
when we get into politics or when we come to the Senate. No one likes 
criticism. And no one likes criticism that they think is unfair. Do you 
know what. That is part of what we do. That is part of what you have to 
accept in the United States of America if you run for office--maybe not 
in some other countries but here you do. That is what makes us 
different.
  I told a story this afternoon about a group in Ohio--several groups 
that are mad at me over my proposal and support of a wildlife refuge in 
Ohio, the Darby Refuge. I happen to think it is a good idea; they 
don't. For some period of time, throughout the roads that I travel 
close to my home, and up through the different counties it takes me to 
go through where this refuge would be in Madison County, I see an awful 
lot of signs which say, ``Dump DeWine.'' I see signs that say, ``No 
Darby, No DeWine,'' and variations of that. I don't like it. But do you 
know what. That is part of the first amendment. If those people who put 
those signs up had decided to run TV ads, it seems to me they ought to 
have a right to do that. Again, I would not like it, but I think they 
have a right to do that. I think they have the right to pick the most 
effective way to get their message across, during the most crucial 
time, when people are really focused and paying attention, which is 60 
days before the election, and to get their message out. If they want to 
put out a message on TV that basically says, ``Dump DeWine, `` or, 
``Call Mike DeWine and tell him Darby is a bad idea,'' or variations of 
that, they ought to have a right to do that--as much as I would not 
like it.
  It is a question of the first amendment. There has been a lot of 
talk, not just on the floor but among my colleagues for the last at 
least 3 days, almost nonstop, about the issue of severability. It is an 
issue we are going to get and vote on tomorrow. We would not have that 
discussion if it weren't so abundantly clear that the Wellstone 
provision, which is now part of Snowe-Jeffords, is unconstitutional. 
Members know it. They tell you that privately. Some have said it 
publicly. But virtually everyone gets that it is unconstitutional and 
the Court is going to throw it out.
  This big debate tomorrow on severability and whether or not when one 
part of the bill goes down, another part should go down, or whether we 
should fence off one part of the bill--that discussion, and a fairly 
close vote tomorrow, will come about because people know the Wellstone 
amendment is unconstitutional. If it weren't so, we would not be having 
that debate. That is going to be the thing that is unspoken tomorrow 
when we get to that debate.
  I want to talk for a moment about my colleague from North Carolina, 
who is a very good lawyer. He and I had the opportunity, during the 
impeachment hearings, to work together, along with Senator Leahy and 
others. I saw how good he is. My colleague came to the floor this 
evening and talked about the constitutionality of Snowe-Jeffords. I 
respect what he has to say. Again, I point out, though, that this is 
the same Member of the Senate--not much more than 24 hours ago--who 
came to the floor and basically said the Wellstone amendment was 
unconstitutional. I understand that his comments tonight were about 
Snowe-Jeffords; but the problem is that title II is no longer Snowe-
Jeffords, it is Snowe-Jeffords-Wellstone, and it contains that 
provision which Senator Edwards said is unconstitutional, or certainly 
implied it. I read it in the Congressional Record.
  My colleague from North Carolina went through the tests that have 
been laid down by the Supreme Court. There are tests as to whether or 
not you can basically infringe on the first amendment. The courts will 
look at any restriction on the first amendment from a strict scrutiny 
point of view. One of the tests is, is there a compelling State 
interest? In other words, the burden upon someone asserting that it is 
constitutional to prohibit speech. That person has to prove to a 
court's satisfaction that there is a compelling State interest to do 
that, to restrict that speech, because the presumption is you can't 
restrict speech. I talked this afternoon about that.
  There were some areas where the courts have acknowledged that it is 
constitutional to restrict speech, but they are very narrow. They have 
held that it has to be a compelling State interest, and the burden of 
proof is on those who assert the constitutionality. It also has to be 
narrowly tailored. In other words, when the language is written to 
restrict speech, it has to be narrowly tailored.
  I have failed to hear any discussion of any convincing nature of what 
the compelling State interest is. What is the compelling State interest 
that permits the U.S. Congress to say that within 60 days before an 
election we will stifle--shut off --free speech? What compelling State 
interest is there, and how is it narrowly drawn for Congress to say no 
speech within 60 days that mentions a candidate's name? How is that 
narrow? That is a sledgehammer that comes down on the first amendment 
and shatters it. It is certainly not narrowly tailored. And certainly 
the proponents of the constitutionality of this provision have not 
shown there is any compelling State interest.
  Now, the Court talked, in Buckley, about the appearance of 
corruption. Proponents of this constitutionality provision have made 
the flat assumption and assertion that there is an appearance of 
corruption. Yet that is all they say. I don't know what the evidence is 
of that appearance of corruption. They made the flat out assertion that 
there is corruption, or there is the appearance of corruption, and that 
gives them authority to write this type of legislation. I think they 
have failed in their burden of proof. Again, I state what the law is. 
The law is that they have a burden of proof.
  Again, in conclusion, my amendment will strike article II of the 
bill. Article II prohibits what I believe is constitutionally protected 
free speech on TV, within the last 60 days of an election, by labor 
unions, corporations and, most importantly, by all outside interest 
groups, by all groups of U.S. citizens who have come together to talk 
in the one way that is the most effective; that is, on television. It 
bans that. There is no compelling State interest to do it. It is 
clearly unconstitutional.
  My friend and colleague from Maine also made another interesting 
comment. She said, ``I want to control my own campaign.'' I am sure the 
Presiding Officer thinks the same way. I can tell you I think the same 
way. I want to run my own campaign. I have had a lot of experience 
doing it. I have won some and lost some. I want to run my own campaign. 
She also said that this debate should be between the candidates 
themselves. Debate goes back and forth on TV.
  I sort of agree with that, too. At least I understand what she means 
by that. You run against someone and you want to have that debate 
between the

[[Page 4910]]

two of you. You start to get nervous when someone else gets involved in 
the debate. They may be trying to help you or your opponent. You do not 
know what they are doing. Sometimes they do not know what they are 
doing. I understand where she is coming from.
  This is not an exclusive club we are talking about. There should be 
no walls built up in the political arena to keep people out. This is 
America. This is the United States. We do have a first amendment.
  One of the basic beliefs of our founders was that public discussion 
of issues is essential to democracy. They did not have TV in those 
days, obviously. They did not have radio. The main method of 
communication was the printed press, posters being put up, or speeches 
directly given and directly heard, but the principle is the same. The 
more people you can involve in political discussion, the better it is.
  There can be no walls built around the political arena where we say 
no one else can enter except the candidates. No one can participate 
except the candidates. No one can talk about issues in relationship to 
candidates, except the candidates.
  That is just not what we do in the United States. That is not what 
this country is about. That is not how our political debates should 
take place. In essence, in a very revealing comment, my friend and my 
colleague from Maine certainly implied that. That is part of the 
problem with the way this bill is currently crafted.
  This is the United States. I know many times when our campaigns drag 
on and on and they get pretty messy, and they get pretty rough, a lot 
of people say: Gee, why don't we do it the way this country does or 
that country, such and such a country. They do not mess around. They 
call an election in 6 weeks. They were strict when you could be on TV. 
They have their election, and it is over. Much as we might long for 
that sometimes when our campaigns drag on, or when Presidential 
campaigns start basically a couple months after one Presidential 
election is over and Senate races start several years in advance and 
House races seem to never stop, much as we long for that tranquility 
and the order, if we really thought about it, I do not think we would 
really want it.
  As long as the Wellstone amendment stays in the bill, clearly this 
bill is going to be held to be unconstitutional.
  What is different about us and other countries is our first 
amendment. It is our first amendment that is at issue. Many countries 
do not have the equivalent of our first amendment that protects 
political speech, that protects free speech. We do and we are much 
better for it. Our political discussion is much better for it and it is 
more informed.
  We are different. I hope when Members of the Senate think about this 
tonight and prepare to vote tomorrow, they will remember the importance 
of the first amendment. They will vote for the DeWine amendment. They 
will vote to make this a better bill. They will vote to give this bill 
a much better chance of being held to be constitutional.
  It is not just a question of the Constitution; it is also a question 
of public policy. Putting aside the constitutional issue, I do not 
think we want to be in a position where this Congress says, basically 
as the thought police in this country, political speech police, that 
within 60 days of the election we are going to dramatically restrict 
who can speak in the only way that is effective in many States, and 
that is to be on TV. I do not think we want to do that, Mr. President.
  I thank my colleagues, and I thank the Chair.

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