[Congressional Record (Bound Edition), Volume 147 (2001), Part 4]
[Senate]
[Pages 5001-5016]
[From the U.S. Government Publishing Office, www.gpo.gov]



                 BIPARTISAN CAMPAIGN REFORM ACT OF 2001

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now resume consideration of the DeWine amendment, No. 152, 
on which there shall be 15 minutes for closing remarks.
  First, the clerk will report the bill.
  The legislative clerk read as follows:

       A bill, S. 27, to amend the Federal Election Campaign Act 
     of 1971 to provide bipartisan campaign reform.

  Pending:

       Specter amendment No. 140, to provide findings regarding 
     the current state of campaign finance laws and to clarify the 
     definition of electioneering communication.
       DeWine amendment No. 152, to strike certain provisions 
     relating to noncandidate campaign expenditures, including 
     rules relating to certain targeted electioneering 
     communications.

  The ACTING PRESIDENT pro tempore. The Senator from Ohio is 
recognized.


                           Amendment No. 152

  Mr. DeWINE. Mr. President, I yield myself 4 minutes.
  Mr. REID. Will the Senator yield for a minute?
  Mr. DeWINE. I yield.
  Mr. REID. Mr. President, I yield, on behalf of the opponents of this 
measure, 7\1/2\ minutes to the Senator from Maine.
  The ACTING PRESIDENT pro tempore. The Senator from Ohio is recognized 
for 4 minutes.
  Mr. DeWINE. Mr. President, in a few moments the Senate will have an 
opportunity to vote on an amendment I have offered along with Senator 
Hatch, Senator Hutchinson from Arkansas, Senator Brownback, and Senator 
Roberts. This amendment is a very simple amendment. It strikes title II 
from this bill.
  This will be the last opportunity that Members of this Senate will 
have to strike what is blatantly and obviously a unconstitutional 
provision of this bill. We all take an oath to support and defend the 
Constitution. I think it is one thing to say we are not sure how a 
court is going to rule. That is certainly true. We are never totally 
sure. It is one thing to say a provision of a bill may be held 
unconstitutional. But I do not know how anyone can look at the amended 
bill, which is no longer Snowe-Jeffords--it is now Snowe-Jeffords-
Wellstone; it is fundamentally different--I don't know how anyone can 
look at this bill and not know it is blatantly unconstitutional. I 
think everyone knows when it leaves here it will be held 
unconstitutional and that is why we will have, later today, a debate 
about this whole issue of severability. We would not have to have that 
debate if people did not believe this provision is unconstitutional.
  What does it do? What does Snowe-Jeffords-Wellstone do? What will the 
bill say unless we amend it by striking this provision? It will draw an 
arbitrary, capricious, and I submit an unconstitutional line in the 
sand 60 days before an election, and it will say that within 60 days of 
an election free speech goes out the window. No longer can a 
corporation, no longer can a labor union, and most important and 
clearly the most unconstitutional part, no longer will citizen groups 
that come together to run ads on TV or radio be able to do that if they 
mention the candidate's name. That is an unbelievable restriction on 
free speech at a time when it is the most important, when it has the 
most impact--60 days before the election--and in the most effective 
way, on TV and radio.
  This Congress will be saying in this bill, if we pass it and if we 
keep this provision in, that we are going to censure that speech, we 
are going to become the free political speech police corps and we are 
going to swoop in and say you cannot do that.
  Groups that want to run an ad criticizing Mike DeWine or criticizing 
any other candidate will then go into a local TV station to run an ad 
talking about an issue and mentioning the name or putting up our 
picture on the screen and will no longer be able to do that. The 
station manager will have to say: I am sorry, you can't run that ad.
  People will say: Why not?
  The Congress passed a ban on your ability to do that.
  That is clearly unconstitutional.
  What is the criterion? What have the courts held necessary, before 
Congress can abridge freedom of speech? There are certain areas where 
clearly we can do it and the courts have held we can do it. What is the 
test?
  There must be a compelling State interest to do it. If it is done, it 
must be done in the least restrictive way. Least restrictive? What 
could be more restrictive than to say you can't go on TV, you can't 
communicate to people? If this remains in the bill, we will end up with 
a situation in this country where the only people who can speak in the 
last 60 days, to the electorate, will be the Tom Brokaws of the world, 
the TV commentators, the radio commentators, and the candidates. This 
is not a closed system. It is not an exclusive club. It is something in 
which everyone should be able to participate. That is the essence of 
free speech.
  The courts have held all kinds of things to be part of free speech. 
But the most pure form of free speech, the thing that absolutely must 
be protected, the thing that obviously the Framers of the Constitution 
had in mind when they wrote the first amendment, is political speech in 
the context of a campaign when we talk about issues and when we talk 
about candidates.
  I do not like a lot of these ads. My colleagues who come to the 
floor--and by the way, every colleague who came to the floor to oppose 
the DeWine amendment, everyone except Mr. Wellstone--voted against the 
Wellstone amendment. Every single one of them did. I don't know why 
they did. I know why Mr. Edwards did. He said it was unconstitutional, 
and I

[[Page 5002]]

think everybody in this Chamber knows it is unconstitutional. But that 
is what the restriction will be. It is blatantly unconstitutional. It 
does not pass the Supreme Court's test of a compelling State interest.
  What is the compelling State interest to smash free speech within 60 
days before an election? I will stop at this point and reserve the 
remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Maine controls the 
time in opposition.
  The Senator from Maine.
  Ms. SNOWE. I yield 2 minutes to the Senator from Wisconsin.
  The ACTING PRESIDENT pro tempore. The Senator from Wisconsin is 
recognized for 2 minutes.
  Mr. FEINGOLD. Mr. President, I rise to oppose the DeWine amendment. I 
believe the Senator from Ohio raises serious and legitimate issues 
about the Snowe-Jeffords amendment. The fact is, to put it in plain 
terms for the people around the country, they are being subjected to 
ads that about everybody knows are really campaign ads. They are what 
many people call phony issue ads. They know very well they are not just 
issue ads.
  What Senators Snowe and Jeffords have done is to try to come up with 
a formula to get at the heart of the problem, to have the Supreme Court 
have an opportunity for the first time in many years to look at 
legislative language from the Congress, to ask the question: Are these 
ads that are supposed to be protected under the first amendment or are 
they really electioneering ads that everyone would concede have to be 
subject to some kind of regulation in order for there to be fair 
elections in this country?
  That is the question. The only way we can find the answer to the 
question is to pass a bill. We cannot call up Chief Justice Rehnquist 
and say: Say, if we did this, would it be constitutional? We are 
prohibited from asking for those kinds of advisory opinions.
  I believe this is constitutional. I believe it is very carefully 
crafted with a very strong respect for the difficult first amendment 
questions that are involved. But I do think it would be held 
constitutional.
  I expect some of the Justices might find it is not constitutional. 
But that is not how the Supreme Court works. It does not have to be 
unanimous. The question is, What do a majority of the Justices believe? 
I believe a majority of the Justices who see these ads on television 
would conclude, as I do, that they are not issue ads but that they are 
really campaign ads and are appropriately regulated in this manner.
  For that reason, I believe this is an extremely valuable addition to 
the bill. It is the second big loophole in the system. No. 1 is the 
soft money loophole. No. 2 is the phony issue ads. And that is exactly 
what the distinguished Senator from Maine and the distinguished Senator 
from Vermont are opposed to. I thank the Senator from Maine.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Ms. SNOWE. Mr. President, I now yield 2 minutes to the Senator from 
Vermont.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized for 2 minutes.
  Mr. JEFFORDS. Mr. President, I am disturbed at the DeWine attempt to 
solve a problem that is not there. I was one of those back in my last 
election--not the last but the one before that--who was exposed to this 
kind of advertising, who has had to face seeing ads on television which 
totally distort the facts and say terrible things. You watch a 20-
percent lead keep going down and you do not know who is putting them 
on. You know what they are saying is totally inaccurate, but you have 
no way to refute it, other than to try to get people convinced that 
nobody knows who put it there, who is behind it.
  The constitutionality of our provisions is common sense. How can you 
say that something which merely asks the person who put out the ad to 
let everybody know who they are is unconstitutional? How in the world 
can you say that it is unconstitutional to require somebody to disclose 
who they are and what they are?
  That is all we are doing in Snowe-Jeffords.
  The Wellstone amendment does make things a little more confusing in 
that regard.
  Let's remember what we are doing if we vote on this bill without 
leaving in the very critical provisions of Snowe-Jeffords, which say 
that anyone who does ads and does so in a way to attack a candidate, 
they have to let people know who they are. What is wrong with that? I 
think everybody believes that is a positive addition.
  The Snowe-Jeffords provisions also make sure that when the time comes 
down to the very end, that unions and corporations are not precluded 
from ads by any means. But they are required to disclose from where the 
money came and use individually donated hard money.
  It can't be unconstitutional in the sense of the corporations or 
unions using individually donated funds instead of their own funds to 
run these ads. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Ohio.
  Mr. DeWINE. Mr. President, let me briefly respond to my colleague 
from Vermont.
  Look, no one likes these ads. No one likes to be attacked. My friend 
said he is disturbed by these ads; they say terrible things, and they 
are inaccurate. I understand that. All of us have had that experience. 
All of us have been in tough campaigns. All of us have been attacked by 
what we consider to be unjustifiable. All of us have faced attacks 
where people have said things that we just shudder about and just can't 
believe that it is running on television. Our families do not like it. 
Our mothers do not like it. Our kids do not like it. But do you know 
something. That is part of the system. That is part of democracy. This 
is not some other country where we restrict campaigns and what can be 
said at the time campaigns take place.
  It might be easier. It might be cleaner. It might be easier to look 
at. No one ever said democracy was easy and wasn't sometimes messy. But 
that is the first amendment. That is not a justification to put a clamp 
on freedom of speech.
  My friends talk about disclosure. That is not the biggest problem 
with this bill. It is not a disclosure problem so much as it is a 
restriction on free speech within 60 days of an election.
  Let me repeat what it does.
  Within 60 days of an election, you can't run an ad that mentions a 
candidate's name or that has the candidate's image unless you are the 
candidate for that particular office.
  That is what it says. It is wrong to make it unconstitutional.
  I reserve the remainder of my time.
  Mr. FEINGOLD. Mr. President, it is my pleasure to speak in support of 
the provision originally crafted by the distinguished Senators from 
Maine and Vermont, Senators Snowe and Jeffords, and in opposition to 
the DeWine amendment. When the debate on campaign finance reform 
reached a stalemate in the fall of 1997, Senator Snowe and Senator 
Jeffords first came together to draft this language, and it has been a 
vital contribution to reform effort. I thank them both for their 
continued dedication to closing the issue ad loophole which, next to 
soft money, is surely the most serious violation of the spirit of our 
campaign finance laws.
  Snowe-Jeffords gets at the heart of the issue ad loophole. Right now 
wealthy interests are abusing this loophole at a record pace. They are 
flouting the spirit of the law, there is no question about it. They 
advocate for the election or defeat of a candidate, even though they 
don't say those ``magic words,'' such as ``vote for,'' ``vote 
against,'' ``elect'' or ``defeat.'' These ads might side-step the law, 
Mr. President, but they certainly don't fool the public. One recent 
study decided to see how the public viewed sham issue ads. They wanted 
to see if people thought they were really about the issues, or whether 
they were about candidates. The results were definitive.
  Take a look at this chart, which cites the results of a study 
conducted by

[[Page 5003]]

David Magleby at Brigham Young University. Nearly 90 percent of 
respondents in the study thought that phony issue ads paid for by 
outside groups were urging them to vote for or against a candidate.
  People didn't need to hear the so-called magic words to know what 
these ads were really all about. That was just as true for issue ads 
paid for by the parties as it was for ads paid for by outside groups.
  Party soft money ads were just as clearly crafted to influence the 
voters. When respondents reviewed party soft money ads, 83 percent 
ranked those ads as ``clearly intended to influence their vote.'' And 
this is perhaps even more interesting, more respondents thought the 
parties' ads were intended to influence their vote than the ads paid 
for by the candidates' campaigns. The party ads, the sham issue ads 
paid for with soft money, were more obviously advocating for or against 
a candidate than the ads the candidates made themselves. That is a 
great example of how soft money and the issue ad loophole have come 
together to warp the current campaign finance system.
  As you can see in this next chart entitled ``Political Party Soft 
Money Ads Overtake. . .'', party spending on soft money ads has now 
overtaken candidate spending on ads in the presidential race. You can 
see on this chart how this shift has taken place between the 1996 and 
2000 elections. The parties are now spending phenomenal amounts of soft 
money on sham issue ads.
  Again, on this chart, you can see how party spending on ads has 
overtaken candidate spending in the race for the Presidency, and dwarfs 
spending by outside groups. And here is the kicker: None of these party 
ads mention party label, but all of them mention the candidate. They 
mention the candidate because they are advocating for the election or 
defeat of that candidate. And yet the law says that doesn't count.
  This doesn't make sense. The magic words test is completely helpless 
to stem the tide of sham issue ads, ads from the parties, ads from 
unions or corporations, or ads from outside groups that are acting on 
behalf of those unions or corporations. We need to close the loophole, 
and Snowe-Jeffords does just that.
  Here is how Snowe-Jeffords navigates the difficult political and 
constitutional terrain of this debate. Here I am talking about the 
original Snowe-Jeffords provision, before adoption of the Wellstone 
amendment. The first thing that the provision does is define a new 
category of communications in the law--we call them electioneering 
communications. These electioneering communications are communications 
that meet three tests: First, they are made through the broadcast 
media--radio and TV, including satellite and cable. Second, they refer 
to a clearly identified Federal candidate--in other words, they show 
the face, or speak the name of the candidate. And third, they appear 
within 60 days of a general election or 30 days of a primary in which 
that candidate is running.
  The original Snowe-Jeffords provides that for-profit corporations and 
labor unions cannot make electioneering communications using their 
treasury funds. If they want to run TV ads mentioning candidates close 
to the election, they must use voluntary contributions to their 
political action committees. We believe that this approach will 
withstand constitutional scrutiny, because corporations and unions have 
long been barred from spending money directly on Federal elections.
  The Supreme Court upheld the ban on corporate spending in the Austin 
v. Michigan Chamber of Commerce case. It noted that a Michigan 
regulation that prohibited corporations from making independent 
expenditures from treasury funds prevented ``corruption in the 
political arena: the corrosive and distorting effects of immense 
aggregations of wealth that are accumulated with the help of the 
corporate form and that have little or no correlation to the public's 
support for the corporation's political ideas.'' According to the 
Court, the Michigan regulation ``ensured that the expenditures reflect 
actual public support for the political ideas espoused by the 
corporations.''
  We are merely saying through this provision that that actual public 
support, shown by voluntary contributions to a PAC, must be present 
when corporations and unions want to run ads mentioning candidates near 
in time to an election.
  The Snowe-Jeffords provision goes on to permit spending on these 
kinds of ads by non-profit corporations that are registered as 
501(c)(4) advocacy groups, by 527 organizations, and by other 
unincorporated groups and individuals. But it requires disclosure of 
the spending and of the large donors whose funds are used to place the 
ads once the total spending of the group on these ``electioneering 
communications'' reaches $10,000.
  A few things should be noted about the disclosure requirement that 
entities other than unions and for-profit corporations are subject to 
if they engage in these kinds of electioneering communications. The 
disclosure is not burdensome; it simply requires a group placing an ad 
to report the spending to the FEC within 24 hours, and to provide the 
name of the group, of any other group that exercises control over its 
activities, and of the custodian of records of the group, and of the 
amount of each disbursement and the person to whom money was paid.
  Second, disclosure is triggered by spending a total of $10,000 or 
more on these kinds of ads. So a small group that spends only a few 
thousand dollars on radio spots will never have to report a thing.
  Third, the disclosure of contributors required is quite limited. Only 
large donors--those who contribute more than $1,000--must be 
identified, and they must be identified only by name and address. And a 
group that receives donations for a wide variety of purposes, including 
some corporate or labor treasury money, can set up a separate bank 
account to which only individuals can contribute, pay for the ads out 
of that account, and disclose only the large donors whose money is put 
in that account.
  The net result will be that the public will learn through this 
amendment who the people are who are giving large contributions to 
groups to try to influence elections. And if a group is just a shell 
for a few wealthy donors, then we will know who those big money 
supporters are and be much better able to assess their agenda.
  On the other hand, if an established group with a large membership of 
small contributors wishes to engage in this kind of advocacy, it need 
not disclose any of its contributors because it can pay for the ads 
from small donor money that has been raised for the special bank 
account for individual donors.
  Mr. President, I believe that these disclosure provisions will pass 
constitutional muster. The Buckley case, it should be remembered, 
rejected limits on independent expenditures but upheld the requirement 
that the expenditures be disclosed. Rules that merely require 
disclosure are less vulnerable to constitutional attack than outright 
prohibitions of certain speech. The information provided by these 
disclosure statements will help the public find out who is behind 
particular candidates. This disclosure can help prevent the appearance 
of corruption that can come from a group secretly spending large 
amounts of money in support of a candidate.
  Some have argued--the Senator from Kentucky among them--that even 
these reasonable disclosure requirements violate the Constitution. They 
cite the case of NAACP v. Alabama from 1958. That is a very important 
case, and one with which I fully agree, but the conclusion that the 
Senator from Kentucky draws from it, with respect to the Snowe-Jeffords 
provision, is simply wrong.
  In the NAACP case, at the height of the civil rights struggle, the 
state of Alabama obtained a judicial order to the NAACP to produce its 
membership lists and fined it $100,000 for failing to comply. The NAACP 
challenged that order and argued that the first amendment rights of it 
members to freely associate to advance their common beliefs would be 
violated by the forced disclosure of its membership lists. It

[[Page 5004]]

pointed out many instances where revealing the identities of its 
members exposed them to economic reprisals, loss of employment, and 
even threats of physical coercion. The Court held that the state had 
not demonstrated a sufficient interest in obtaining the lists that 
would justify the deterrent effect on the members of the NAACP 
exercising there rights of association.
  Snowe-Jeffords is totally different from what the State of Alabama 
tried to do in the NAACP case. Snowe-Jeffords doesn't ask for 
membership lists, it asks for the very limited disclosure of large 
contributors to a specific bank account used to pay for electioneering 
communications. Most membership groups won't have to disclose anything 
if they receive sufficient small donations to cover their expenditures 
on these type of communications. Contributors to the groups that don't 
want to be identified can simply ask that their money not be used for 
the kind of ads that would subject them to disclosure. And finally, the 
disclosure requirement can be avoided altogether by crafting an ad that 
does not specifically refer to a candidate during the short window of 
time right before an election.
  The Supreme Court has shown much more willingness to uphold 
disclosure requirements in connection with election spending than 
opponents of Snowe-Jeffords have been willing to recognize. In the 
Citizens Against Rent Control v. City of Berkeley, a 1981 case, for 
example, the Court struck down a limit on contributions to committees 
formed to support or oppose ballot measures. But the Court noted 
specifically, and I quote, ``the integrity of the political system will 
be adequately protected if contributors are identified in a public 
filing revealing the amounts contributed; if it is thought wise, 
legislation can outlaw anonymous contributions.'' It is worth noting 
that the opinion in that case was by Chief Justice Warren Burger and 
the vote was 8-1. The dissenter, Justice White, thought the limit on 
contributions should be upheld.
  In U.S. v. Harris, the Court upheld disclosure requirements for 
lobbyists, despite the alleged chilling effect that those requirements 
might have on the right to petition the government. And, of course, the 
Buckley Court upheld disclosure requirements for groups making 
independent expenditures.
  Now it is of course true that the Court will have to analyze the 
disclosure requirements in Snowe-Jeffords, and the type of 
communications that trigger it and determine if they pass 
constitutional muster. I will not proclaim that there is no argument to 
be made that the provision is unconstitutional. But to say that there 
is no chance that this provision will be upheld is just not right. 
There is ample constitutional justification and precedent for this 
provision.
  That conclusion is supported by a letter we have received from 70 law 
professors who support the constitutionality of the McCain-Feingold 
bill, including the Snowe-Jeffords provision. This is what they write 
with respect to Snowe-Jeffords:

       [T]he 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. . . . While no one can predict with certainty how 
     the courts will finally rule if any of the these provisions 
     are challenged in court, we believe that the McCain-Feingold 
     Bill, as current drafted, is consistent with First Amendment 
     jurisprudence.

  As the Brennan Center for Justice wrote in an analysis of Snowe-
Jeffords:

       Disclosure rules do not restrict speech significantly. 
     Disclosure rules do not limit the information that is 
     conveyed to the electorate. To the contrary, they increase 
     the flow of information. For that reason, the Supreme Court 
     has made clear that rules requiring disclosure are subject to 
     less exacting constitutional strictures than direct 
     prohibitions on spending. . . . There is no constitutional 
     bar to expanding the disclosure rules to provide accurate 
     information to voters about the sponsors of ads indisputedly 
     designed to influence their votes.

  The opponents of our bill speak with great disdain of the Snowe-
Jeffords provision and act as if it is certainly and indisputably 
unconstitutional. Now I will not pretend that there are not difficult 
constitutional issues raised, but I simply do not think it is accurate 
to say, as our opponents do, that there is no hope for this provision 
before the Supreme Court. And the Supreme Court is going to decide this 
issue, that we know for sure. All the lower court decisions in the 
world on state statutes that don't have a bright line approach as 
Snowe-Jeffords does, don't mean much of anything. The Supreme Court has 
not yet addressed this issue; if we enact this bill, it undoubtedly 
will.
  It is important to note that Snowe-Jeffords contains provisions 
designed to prevent the laundering of corporate and union money through 
non-profits. Groups that wish to engage in this particular kind of 
advocacy must ensure that only the contributions of individual donors 
are used for the expenditures.
  Anyone who opposes this provision must defend the rights of unions 
and corporations using their treasury money, not just citizen groups 
like the National Right to Life Committee or the Christian Coalition, 
or the Sierra Club, to run what are essentially campaign advertisements 
that dodge the federal election laws by not using the magic words 
``Vote For'' or ``Vote Against,'' or to finance those ads through other 
groups.
  Second, they must argue that the public is not entitled to know, in 
the case of advocacy groups that run these ads so close to the 
election, the identities of large donors to group's election-related 
effort. Many opponents of McCain-Feingold have trumpeted the virtues of 
full disclosure. I have at times doubted how serious they were about 
disclosure because they would never acknowledge the important advances 
in disclosure already included in our bill.
  I have discussed here the original Snowe-Jeffords provision. The 
Well- 
stone amendment, in effect, broadens that provision to cover ads run by 
corporations and unions. I voted against adding that amendment. I 
thought and still think that it makes Snowe-Jeffords more susceptible 
to a constitutional challenge, but it passed when many Senators who 
oppose the bill and the Snowe-Jeffords provision voted for it. In any 
event, the Wellstone amendment was written to be severable from the 
remainder of the Snowe-Jeffords provision. That gives even more 
significance to the vote we will have today on severability. But if we 
win that vote, Snowe-Jeffords will survive even if the Wellstone 
amendment is held to be unconstitutional.
  Let me again commend Senators Snowe and Jeffords for crafting a 
provision that treats labor unions and corporations equally. Rather 
than try to give one side or the other an advantage, this provision 
tries to bring back some sanity to our system by recognizing that both 
sides have played fast and loose with the spirit of the election laws 
by running ads that claim to be about issues, but are really candidate 
specific campaign ads.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Maine.
  Ms. SNOWE. Mr. President, how much time is remaining on both sides?
  The ACTING PRESIDENT pro tempore. There is 1 minute 47 seconds for 
the Senator from Ohio, and 3 minutes for the Senator from Maine.
  Ms. SNOWE. Thank you, Mr. President.
  I urge my colleagues to vote against the motion to strike that has 
been offered by my good friend from Ohio, Senator DeWine. Make no 
mistake about it. A vote to strike the Snowe-Jeffords provision 
specifically would be a vote against disclosure.
  It is interesting to hear my colleague describe the amendments and 
the provisions that are contained with the McCain-Feingold legislation; 
that it is a restriction on the first amendment right, the right to 
free speech. That is not only a mischaracterization, but it is false.
  The Supreme Court never said you can't make distinctions in political 
campaigns in terms of what is express advocacy and issue advocacy. That 
is what we have attempted to do with the support of more than 70 
constitutional experts--to design legislation that is

[[Page 5005]]

carefully crafted that says if these organizations want to run ads, do 
it as the rest of us. Use the hard money that we have to raise in order 
to finance those ads 60 days before an election that mention a Federal 
candidate.
  We are seeing the stealth advocacy ad phenomenon multiplying in 
America today--three times the amount of money that is spent on so-
called sham ads in the election of 2000, and three times the amount in 
1996. Why? Because of what they have done to skirt the disclosure laws 
because they do not use the magic words ``vote for or against.'' They 
mention a candidate.
  Is it no coincidence that they are mentioning the candidate's name 60 
days before an election? What for? It is to impact the outcome of that 
election.
  What we are saying is disclose who you are. Let's unveil this 
masquerade. Let's unveil this cloak of anonymity. Tell us who you are. 
Tell us who is financing these ads to the tune of $500 million in this 
last election. The public has the right to know. We have the right to 
know.
  That is what this amendment is all about. It is not an infringement 
on free speech. It is political speech. Even my colleague from Ohio 
said it is political speech, political speech you have to disclose.
  That is what we are talking about in this amendment.
  I ask unanimous consent to have printed in the Record a study 
entitled ``The Facts about Television Advertising and the McCain-
Feingold Bill.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  The Facts About Television Advertising and the McCain-Feingold Bill

               (By Jonathan Krasno and Kenneth Goldstein)

       The McCain-Feingold bill and its House counterpart 
     sponsored by Representatives Shays and Meehan are universally 
     regarded as the most significant campaign finance legislation 
     under serious consideration by Congress in a generation, 
     perhaps since the 1974 amendments to the Federal Election 
     Campaign Act (FECA). This legislation would not expand on the 
     1974 reforms but instead restore them by regulating the two 
     mechanisms that have developed in the intervening decades to 
     circumvent FECA, so-called ``soft money'' and ``issue 
     advocacy.'' Together and separately soft money and issue 
     advocacy have become an enormous part of many federal 
     campaigns, in some cases even eclipsing the efforts of 
     candidates operating under FECA's rules.
       That popularity, naturally, has created a powerful group of 
     donors and recipients who have exploited these loopholes and 
     now oppose any attempt to close them, even as some 
     contributors have begun to complain of the relentless 
     pressure to give money. These political forces, coupled with 
     the putative relationship between soft money, issue advocacy 
     and several core constitutional values, have made McCain-
     Feingold among the most controversial bills facing Congress.
       This paper uses a unique source of data about television 
     commercials to examine some of the most important issues 
     raised in connection to this proposal. It is appropriate that 
     we focus on television advertising since it is the largest--
     and most discussed--single category of expenditures by 
     candidates, parties and interest groups in federal elections. 
     McCain-Feingold's chief impact would surely be seen on the 
     nation's airwaves, on the hundreds of thousands of issue ads 
     paid for with soft money. Indeed, many of the arguments for 
     and against McCain-Feingold are rooted in different 
     interpretations of those very ads.
       For its critics, the huge outlay on issue ads is a 
     dangerous scam perpetrated on democracy, a scam predicated on 
     twin falsehoods that issue ads promote issues and soft money 
     builds parties. For its defenders, the spending on issue 
     advertising is a sign of democracy's vitality and any attempt 
     to limit issue ads or soft money is inherently ham-handed and 
     dangerous. Fortunately, many of these claims are empirical 
     questions; given the proper data they can be carefully 
     dissected and weighed. That is precisely what we do here by 
     using the most extensive data set on television advertising 
     ever developed to explore some of the core assumptions 
     invoked by proponents and opponents of McCain-Feingold.


                        MONITORING THE AIRWAVES

       The sheer amount of television advertising--on 
     approximately 1300 stations in the nation's 210 media markets 
     over the 15 or 16 most popular hours in the broadcast day--
     makes commercials extremely difficult to study. Fortunately, 
     using satellite tracking first developed by the U.S. Navy to 
     detect Soviet submarines, a commercial ad tracking firm, the 
     Campaign Media Analysis Group (CMAG), is able to gather 
     information about the content, targeting and timing of each 
     ad aired. CMAG tracks commercials by candidates, parties and 
     interest groups in the nation's top 75 media markets. 
     Together these markets reach approximately 80 percent of 
     households in the U.S. CMAG's technology recognizes the seams 
     in programming where commercials appear, creates a unique 
     digital fingerprint of each ad aired, then downloads a 
     version of each ad detected along with the exact time and 
     station on which it appeared. The company later adds 
     estimates of the average cost of an ad shown in the time 
     period.
       With funding from the Pew Charitable Trust, CMAG's data for 
     1998 and 2000 were purchased. These data are literally a 
     minute-by-minute view of political advertising across the 
     country--along with ``storyboard'' (a frame of video every 4-
     5 seconds plus full text of audio) for each ad detected 
     during these two election cycles. The storyboards were then 
     examined by teams of graduate and undergraduate students at 
     the University of Wisconsin (2000) and Arizona State 
     University (1998) who coded the content of each commercial.
       Some of the questions--such as whether an ad mentioned a 
     candidate for office by name or urged viewers to ``vote for'' 
     or ``defeat'' a particular candidate--were objective. Others 
     were subjective. These included items asking coders to assess 
     the purpose (to support a particular candidate or express a 
     view on an issue) and tone (promote, attack, or contrast) of 
     an ad. Both types of questions elicited nearly identical 
     responses from different students who assessed the same ad, 
     indicating a reassuring degree of intercoder reliability. In 
     addition, we also took special care to examine the disclaimer 
     in each commercial, the written portion appearing usually at 
     the end of each commercial noting its sponsor (``Paid for by 
     . . .''), where possible. From this we were able to determine 
     whether an ad is sponsored by a candidate, party or interest 
     group, and, if paid for by a party or group, whether it is an 
     issue ad or not.
       Coders ended up examining approximately 2,000 different 
     federal ads (eliminating ads referring to state and local 
     candidates or ballot propositions) in 1998 and nearly 3,000 
     in 2000. As Table One shows, these ads fell into different 
     campaign-finance categories and appeared on the air hundreds 
     of thousands of times. Most of the astonishing growth from 
     1998 to 2000, of course, is attributable to the presidential 
     election, but the number of ads in congressional elections 
     also rose in this two-year period from 302,377 to 420,656 and 
     expenditures nearly doubled. Most of this upsurge came from 
     parties and interest groups.

          TABLE ONE.--TELEVISION ADVERTISING IN TOP 75 MARKETS
             [Estimated cost/number of spots in parentheses]
------------------------------------------------------------------------
                                              1998             2000
------------------------------------------------------------------------
Candidates:
  Total...............................     $140,617,427     $334,571,178
                                              (235,791)        (429,747)
Parties:
  Issue ads...........................       20,526,340      163,586,235
                                               (37,386)        (231,981)
  Hard $ ads..........................        5,296,318       29,166,653
                                                (7,488)         (37,938)
Interest Groups:
  Issue ads...........................       10,371,191       95,893,837
                                               (20,431)        (139,577)
  Hard $ ads*.........................          421,222  ...............
                                                (1,281)  ...............
      Total...........................     $177,232,508     $623,217,897
                                              (302,377)        (839,243)
------------------------------------------------------------------------
*The vast majority of commercials sponsored by interest groups were
  issue ads. We are continuing to examine the data to determine how much
  groups spent on hard money ads (independent expenditures) in 2000.

                           whose ox is gored

       The first question the professional politicians in Congress 
     are asking about McCain-Feingold is who will it affect. Such 
     questions are always perilous since advertisers will 
     undoubtedly try to adapt to any new regulations, searching 
     for new loopholes to exploit. Which direction their search 
     will eventually take them is at best an educated guess. What 
     is more than guesswork, however, is the matter of how much 
     has been spent on issue ads by the parties and their allies 
     over the last two cycles.
       Figure One (not reproducible in the Record) breaks down the 
     issue ads in Table One by party, showing the total number run 
     by various Democratic and Republican party committees and 
     their allies. While Republicans had a noticeable advantage in 
     issue ads in 1998, Democrats claimed a small lead in 2000. 
     This modest reversal illustrates the unpredictability of soft 
     money. Since contributions (to either parties or interest 
     groups) for issue ads are unlimited, the generosity of a 
     relatively small number of well-heeled donors may shift the 
     tide. But equally striking is the near equality between the 
     parties. Total soft money spending for the Democrats and 
     Republicans is separated by no more than $5,000,000 in either 
     year, a relatively small amount among the hundreds of 
     millions spent on political advertising in both years. That 
     is not to say, of course, that no candidates would have been 
     particularly helped or hurt had McCain-Feingold been in 
     effect earlier, only that the Democrats' and Republicans' 
     gains and losses come fairly close to balancing out across 
     the country.


                       regulating issue advocacy

       The working definition of issue advocacy comes from a 
     footnote in the Supreme Court's seminal decision in Buckley 
     v. Valeo

[[Page 5006]]

     (1976) that limited FECA's impact by defining campaign 
     communications as those ``expressly advocating'' the election 
     or defeat of a particular candidate by using words like 
     ``elect,'' ``defeat,'' or ``support.'' The purpose behind the 
     footnote was to protect speech about ``issues''--lobbying on 
     bills before Congress, pronouncements or debate over public 
     policy--from the financial regulations affecting partisan 
     electioneering. The need to distinguish the two is obvious, 
     but whether use of specific words of express advocacy (now 
     widely known as ``magic words'') is an effective way to do so 
     is less clear.
       We sought to evaluate this standard by looking at ads 
     purchased by candidates' campaigns. Candidates are a perfect 
     text case since the purpose of their advertising is so 
     obviously electioneering that the magic words test does not 
     apply to them. Thus, candidates must live with FECA whether 
     or not they use magic words. That might lead one to assume 
     that candidate ads unabashedly urge viewers to vote for one 
     person or defeat another, but it turns out that such direct 
     advocacy is exceedingly rare. In 2000 just under 10 percent 
     of the nearly 325,000 ads paid for by federal candidates 
     directly urged viewers to support or oppose a particular 
     candidate or used a slogan like ``Jones for Congress,'' the 
     full list of magic words in Buckley. Earlier we found just 4 
     percent of 235,000 candidate ads in 1998 used any of the 
     verbs of express advocacy; 96 percent did not ask viewers to 
     vote for or against any candidate. Any device that fails to 
     detect what it was designed to find 9 times out of 10 is 
     clearly a flop. The magic words test simply does not work.
       The failure of the magic words test does not mean, of 
     course, that all issue ads are necessarily electioneering. 
     But several things suggest that a great majority of them are. 
     To begin with, the issues raised in commercials by candidates 
     and in issue ads are virtually identical. Table Two lists the 
     top five themes appearing in both types of ads in 1998 and 
     2000. While occasional variations occur, the overwhelming 
     impression is that issue ads mimic the commercials that 
     candidates run. This may be mere coincidence, but it is a 
     suggestive one. At very least, it contradicts the argument 
     that issue ads by parties and interest groups introduce 
     policy matters into the political arena that are otherwise 
     ignored. The truth is that candidates' agenda is generally 
     the only thing addressed by any advertiser, particularly in 
     the final hectic weeks of the campaign.

   TABLE TWO.--COMPARING THE ISSUES IN CANDIDATE ADS AND ``ISSUE ADS''
------------------------------------------------------------------------
                                                               Percent
------------------------------------------------------------------------
                       CANDIDATE ADS
 
1998:
  1. Taxes.................................................           28
  2. Education.............................................           26
  3. Social Security.......................................           23
  4. Health Care...........................................           14
  5. Crime.................................................            9
2000:
  1. Health Care...........................................           34
  2. Education.............................................           31
  3. Taxes.................................................           26
  4. Social Security.......................................           24
  5. Candidate background..................................           24
 
                         ISSUE ADS
 
1998:
  1. Taxes.................................................           31
  2. Social Security.......................................           23
  3. Health care...........................................           20
  4. Education.............................................           14
  5. Defense...............................................           10
2000:
  1. Health care...........................................           30
  2. Medicare..............................................           21
  3. Social Security.......................................           16
  4. Education.............................................           16
  5. Taxes.................................................           16
------------------------------------------------------------------------
Note.--Ads may mention multiple themes so percentages do not sum to 100.

       There is also the matter of timing. If issue ads were 
     intended only to pronounce on important policy matters we 
     would expect to see them spaced throughout the year or 
     concentrated in periods when Congress is most active. As 
     Figure Two (not reproducible in the Record) demonstrates, 
     however, that is far from the case. While in both 1998 and 
     2000 members of Congress cast a steady stream of votes and a 
     series of what Congressional Quarterly labels as ``key 
     votes'' throughout the year, the greatest deluge of issue ads 
     began appearing after Labor Day (about week 36). Indeed even 
     the most casual inspection of the number of issue ads that 
     appeared each week indicates that this line is much more 
     closely related to the activity of candidates, not the 
     activity of Congress. This relationship of issue advertisers 
     and candidates, repeated over two years, is far too strong to 
     be coincidental. There is no doubt that issue ads are largely 
     inspired by the same cause that motivates candidates, the 
     slow approach of Election Day.
       Despite the overwhelming evidence that the vast majority of 
     issue ads are a form of electioneering, there were 
     commercials in each year that our coders took to be genuine 
     discussion of policy matters (22 percent of issue ads in 
     1998, 16 percent in 2000). Would the definition of 
     electioneering created by McCain-Feingold--any ad mentioning 
     a federal candidate by name in his or her district within 30 
     days of the primary or 60 days of the general election--
     inadvertently capture many of these commercials? We addressed 
     this question by comparing the issue ads that would have been 
     classified as electioneering under McCain-Feingold to the 
     coders' subjective assessment of the purpose of each ad. In 
     1998 just 7 percent of issue ads that we rated as 
     presentations of policy matters appeared after Labor Day and 
     mentioned a federal candidate; in that figure was lower 
     still, 1 percent. In 2000 that number was less than one 
     percent. Critics may argue that chance of inadvertently 
     classifying 7 percent, or even 1 percent, of genuine issue 
     ads as electioneering makes this bill overly broad. In 
     contrast, these percentages strike us as fairly modest, 
     evidence that McCain-Feingold is reasonably calibrated. In 
     addition, our examination suggests that these errors may be 
     reduced with some small additions to the bill.


                            party soft money

       Just as the rules on issue advocacy are intended to 
     safeguard free speech, soft money is also intended to achieve 
     a worthy goal, in this case to strengthen political parties. 
     Parties are a frequently underappreciated fact of political 
     life in democracies. Political scientists have sought ways to 
     buttress them for years, to augment their ability to 
     communicate with and mobilize the public, and to magnify 
     their impact as political symbols.
       The most obvious place to start assessing the value of 
     parties' advertising is with a simple objective question: 
     does the ad mention either political party by name? It is 
     hard to imagine how a commercial might strengthen a party if 
     it neglects to praise its sponsors or at least malign the 
     opposition. Yet, party ads are remarkably shy about saying 
     anything about ``Democrats'' or ``Republicans''--just 15 
     percent of party ads in 1998 and 7 percent in 2000 mentioned 
     either political party by name. By contrast, 95 percent of 
     these ads in 1998 and 99 percent in 2000 did name a 
     particular candidate. It seems fairly clear that these ads do 
     far more to promote the fortunes of individual candidates 
     than the fortunes of their sponsors.
       A piece of supporting evidence for this conclusion comes 
     from the perceived negativity of each ad. Coders found ads by 
     parties to be much more likely to be pure attack ads (60 
     percent in 1998, 42 percent in 2000) than ads by candidates. 
     While we remain agnostic about whether attack advertising is 
     somehow better or worse than other forms, we do note that 
     there is little hope that this flood of negative commercials 
     magically strengthens either party.
       Finally, some defenders of party soft money also argue, in 
     conflict to the claims about building parties, that these 
     commercials help provide vital information to voters in 
     various places and about various candidates which they would 
     not otherwise receive. This is a complicated assertion to 
     unravel. It is obviously debatable whether any particular ad 
     conveys much information to viewers. If we assume--quite 
     charitably--that all political ads help educate voters then 
     the question becomes a matter of allocation. Do party ads 
     appear for candidates about whom little is known or in 
     otherwise neglected districts and media markets? If the 
     answer is yes, then it is fair to conclude that party ads may 
     play an important role in informing the public.
       The truth, however, is that the best predictor of the 
     number of commercials aired by parties in a particular 
     contest and media market is the number of ads aired by 
     candidates in the same location. There are exceptions--the 
     RNC sponsored all of the pro-Bush advertising in California 
     and neither party ran commercials in New York after the two 
     Senate candidates agreed to forgo soft money--but parties 
     overwhelmingly concentrated their efforts in swing states and 
     districts, the very places already saturated by the 
     candidates. One indication of how focused party advertising 
     in congressional races is that in both years the majority of 
     party ads appeared in just three Senate races and a dozen 
     House contests, even though the CMAG system tracks 
     advertising in scores of states and districts. As a result, 
     the educational value of party ads is inevitably limited, as 
     is any effect they might have on the competitiveness of 
     elections.


                               conclusion

       Our examination of television commercials in 1998 and 2000 
     shows that the current campaign finance system is 
     unmistakably flawed. The magic words test supposed to 
     distinguish issue advocacy from electioneering is a complete 
     failure. The rules allowing parties to collect unlimited 
     amounts of soft money to build stronger parties have instead 
     allowed parties to spend on activities unrelated to that 
     goal, and perhaps even in conflict with it. The evidence for 
     both of these conclusions is, in our view, overwhelming. The 
     plain fact is that any contention that most issue ads are 
     motivated by issues or that most soft money builds political 
     parties must ignore a veritable mountain of conflicting 
     evidence. We find such claims completely unsustainable.
       Whether that conclusion should translate automatically into 
     support for McCain-Feingold and Shay-Meehan is a different 
     matter. These decisions inevitably involve a number of 
     factors, starting with the judgment whether these bills are 
     the best response to the manifest weaknesses of our campaign 
     finance laws. We cannot be sure that it is, but

[[Page 5007]]

     our analysis suggests two important facts in its favor. 
     First, the experience of the last two elections suggests that 
     neither Democrats nor Republicans would be disproportionately 
     harmed by a ban on soft money or a stricter definition of 
     issue advocacy. Indeed, neither party stands to gain or lose 
     much against their counterparts since the Democrats' relative 
     financial weakness is proportionately smaller in soft money 
     than in hard, and their allies outspent Republicans' in both 
     years. Past experience suggests that neither party would gain 
     an advantage on TV if the McCain-Feingold bill becomes law.
       Second, we found no evidence that the new dividing line 
     between issue advocacy and electioneering in McCain-Feingold 
     is overly broad and would affect many commercials that we 
     found to be genuine attempts to advocate issues, not 
     candidates. Some critics will surely complain that we have no 
     objective standards for determining which commercials are 
     genuine issue advocacy, but that is untrue. The standards 
     offered in McCain-Feingold are objective. The fact that they 
     perform so well against the subjective judgment of our 
     coders, each of whom examined hundreds of ads, is extremely 
     reassuring. We are always eager to consider improvements, but 
     there is no reason not to conclude that the definition of 
     electioneering in McCain-Feingold is, at the very least, an 
     excellent start.

  Ms. SNOWE. Mr. President, ninety-nine percent of the ads that were 
run in that 60-day period mention Federal candidates. They tested the 
Snowe-Jeffords language. Guess what. Ninety-nine percent were ads that 
mentioned a Federal candidate. Only 1 percent were genuine issue 
advocacy ads. They can run all of the ads they want, but they have to 
disclose.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  The Senator from Ohio.
  Mr. DeWINE. Mr. President, we will be voting in just a few minutes. 
Let me make a couple of comments.
  First of all, the disclosure that is required in this bill is 
constitutionally suspect. I don't think there is any doubt about that. 
But that is not the worst part of this bill. My colleague from Maine 
keeps skipping over what is the worst part. The worst part is this.
  Let's go through one more time what it does because it is so 
unbelievable.
  It basically draws an unconstitutional line of 60 days before the 
election that says labor unions can't run ads, corporations can't run 
ads, nor can any other group run ads if a candidate's name is mentioned 
or if a candidate's image appears on the screen.
  Yes, it is political speech. Yes, they are trying to affect an 
election. They are trying to affect the political discourse as the most 
effective way to do it right before the election when everyone is 
paying attention.
  This bill arbitrarily says that at the most crucial time when free 
speech and political speech is the most important, we are going to 
arbitrarily say you can no longer do it. It is absolutely unbelievable.
  This is the last time on this vote that Members of the Senate are 
going to have the opportunity to strike out what obviously the courts 
will later strike out. That is not Snowe-Jeffords, but it is now Snowe-
Jeffords-Wellstone. It is unconstitutional.
  A vote for the DeWine amendment is a vote for freedom of speech, for 
the first amendment, and for the Constitution.
  I ask my friends when they come to the floor in just a minute to 
remember the oath that all of us took to support the Constitution.
  It is one thing for us to vote on things that are close. This one is 
not close. This one is unconstitutional. It needs to come out of the 
bill.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I ask unanimous consent to have 40 
seconds to respond to my colleague, if he would be so gracious.
  Mr. DeWINE. I have no objection.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. DeWINE. I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
is a sufficient second.
  The yeas and nays were ordered.
  Mr. WELLSTONE. I ask the Chair if I don't use the 40 seconds to give 
me 5 more.
  The ACTING PRESIDENT pro tempore. The Senator asked for 40 seconds.
  Mr. WELLSTONE. Ready, go.
  This is not about a constitutional question. There are lots of groups 
and organizations--left, right, and center--that want to put soft money 
into these sham ads. Any group or organization can run any ad they 
want. They just have to finance it out of hard money. We don't want 
there to be a big loophole for soft money. Not constitutional? The 
League of Women Voters says it is. Common Cause says it is 
constitutional. The former legislative director of ACLU says it is 
constitutional. The House of Representatives passed Shays-Meehan, which 
includes Snowe-Jeffords-Wellstone, that says it is constitutional. In 
all due respect, there are many who think this is constitutional. This 
is all about spending groups and organizations that want to be able to 
use this as a loophole to run sham issue ads.
  Thank you.
  The PRESIDING OFFICER. The Senator's time has expired.
  The question is on agreeing to amendment No. 152. The yeas and nays 
have been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER (Mr. Allen). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 28, nays 72, as follows:

                      [Rollcall Vote No. 57 Leg.]

                                YEAS--28

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     DeWine
     Enzi
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Inhofe
     Kyl
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Thomas
     Thurmond
     Voinovich

                                NAYS--72

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Gramm
     Harkin
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thompson
     Torricelli
     Warner
     Wellstone
     Wyden
  The amendment (No. 152) was rejected.
  Mr. McCONNELL. Mr. President, I move to reconsider the vote.
  Mr. BENNETT. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. McCONNELL. Mr. President, for the information of all Senators, 
the next amendment will be from Senator Harkin, who is in the Chamber 
and ready to go. I want to also announce that the Republican amendment 
after that will be offered by Senator Frist of Tennessee, along with a 
Democratic cosponsor, on the subject of nonseverability, which is one 
of the most important, if not the most important, amendments remaining 
before we complete this bill at some point--the leader says--today.
  With that, I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Iowa, Mr. Harkin, is recognized to offer an amendment on which there 
shall be 2 hours of debate.
  Mr. SPECTER. Mr. President, my distinguished colleague from Iowa has 
consented to let me take just a few minutes at this point to introduce 
a bill. I have checked with the distinguished manager, Senator 
McConnell, and it is agreeable.
  Mr. SPECTER. Mr. President, I ask unanimous consent to proceed for up 
to 10 minutes for the introduction of a bill as in morning business.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, reserving the right to object.

[[Page 5008]]

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I could not hear the request.
  The PRESIDING OFFICER. May we have order in the Senate, please.
  Mr. SPECTER. My request was to proceed for up to 10 minutes as in 
morning business for the introduction of a bill.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. I thank the Chair.
  I ask unanimous consent that the full text of an extensive statement 
be printed in the Record and that the Record reflect--sometimes the 
Record does not reflect the actual language; there is a cutoff. The 
statement is printed, and there is repetition and redundancy. But I ask 
that the Record show that there is a unanimous consent request made 
that the text be printed in the Record, even though there is some 
redundancy with what has been summarized orally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Specter pertaining to the introduction of S. 645 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. SPECTER. I thank the Chair, and I thank my distinguished 
colleague from Iowa for yielding to me.
  The PRESIDING OFFICER. The Senator from Iowa is recognized to offer 
an amendment on which, as I stated earlier, there shall be 2 hours of 
debate. The Senator from Iowa.


                           Amendment No. 155

(Purpose: To amend the Federal Election Campaign Act of 1971 to provide 
   for a voluntary system of spending limits with respect to Senate 
                          election campaigns)

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

       The Senator from Iowa (Mr. Harkin), for himself and Mr. 
     Wellstone, proposes an amendment numbered 155.

  Mr. HARKIN. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. HARKIN. Mr. President, I am proud to have as my cosponsor the 
Senator from Minnesota, Mr. Wellstone.
  I want to recap where we are in this week-long debate on campaign 
finance reform. We have come a long way in the last week and a half on 
this campaign finance reform bill.
  We have debated a wide range of amendments, accepted some, rejected 
others. The good ones we have adopted are: To stop the price gouging on 
TV ads, the Torricelli amendment; to require up-to-date inspection of 
all reports on the Internet, the Cochran-Landrieu-Snowe amendments; 
stronger disclosure rules by the Senator from Nebraska, Mr. Hagel; 
bringing all organizations under the issue ad ban; the Wellstone 
amendment.
  And we rejected some amendments. Attempts to preserve soft money were 
rejected; an attempt to dramatically increase hard money was rejected; 
provisions to silence the workers of America, paycheck protection, were 
rejected. I am a little disappointed that yesterday we did, 
unfortunately, increase the amount of hard money we can raise for 
campaigns. I do not believe increasing the amount of money one can 
raise from hard dollars is reform, but that was adopted by the Senate.
  But, there is something missing in this debate. There is something 
that has been missing for a week and a half from this debate. It is 
like the crazy uncle in the basement who no one talks about. What kind 
of reform can we have when all we are talking about is how we raise the 
money and how much one can raise when we don't talk about how much we 
spend and what can be spent? What I am talking about is the kind of 
reform that includes some limits on how much we can spend.
  With the increase in the amount of hard money we can raise --and we 
have banned soft money, which is good; I voted to ban soft money--that 
just means all of us now will be running our fool heads off raising 
more hard money. We do have the Torricelli amendment that says TV 
stations have to sell us their ads at the lowest unit rate based upon 
last year, and that is fine; I am all for that. It just means we can 
buy more ads. We will raise more money, and we will buy more ads.
  It has gotten so that now we hire ad agencies. They write the ads and 
sell us like soap. We are just a bunch of bars of soap to the American 
people; that is all we are. They see these ads, one ad after another 
come election time, and it is just like selling soap. Can we be 
surprised when the American people treat us like soap, that we are no 
more important in their lives, for example; that we are irrelevant 
except when we annoy them by ban barding them with ads in the weeks 
before the election. What I hear from the American people time and time 
again is: When are you going to talk about the issues in your campaigns 
rather than having all these ads out there?
  We are really missing a serious part of campaign finance reform by 
not talking about it and doing something about it.
  I do not know about any other Senator, but one of the things I hear a 
lot in Iowa and other places around the country when people talk to me 
about campaign finance reform is: When are you going to get a control 
on how much money you spend?
  In the last election cycle, just in Federal elections, we spent over 
$1 billion, I think about $1.2 billion. The American people are upset 
about this. Are they upset about raising soft money and corporations 
and special influence? Yes, they are. They are equally upset about the 
tremendous amount of money we are spending in these campaigns, buying 
these ads and flooding the airwaves.
  We have to think about how we can limit how much we spend on 
campaigns so all of us aren't running around, weekend after weekend, 
week after week, month after month, to see how much hard money we can 
raise to hire that ad agency to buy those ads.
  That is what this amendment Senator Wellstone and I have offered 
does. It is very simple and straightforward. It puts a voluntary limit 
on how much we can spend in our Senate campaigns.
  The formula is very simple. It is $1 million plus 50 cents times the 
number of voting-age residents in the State. Every Senator has on his 
or her desk the chart that shows how much you would be limited in your 
own State. With that limitation, there is a low of $1.2 million in 
Wyoming to $12 million in California. My own State of Iowa would be 
limited to $2.1 million for a Senate campaign. I say to the occupant of 
the Chair, in Virginia the limit would be $3.6 million. I don't know 
how much the Senator spent this last campaign, but I know for myself in 
Iowa, $2.1 million runs a good grassroots campaign as long as your 
opponent does not spend any more than that. I bet the same is true in 
Virginia at $3.7 million.
  The amendment also says if you have a primary, you can spend 67 
percent of your general election limits. If you have a runoff, you can 
spend 20 percent of the general election limit.
  I'd like to stress that this is a voluntary limit. Why would anyone 
abide by the limit? You abide by the limit because the amendment says 
if one candidate goes over the voluntary limits by $10,000, then the 
other person who abided by the limits will begin to get a public 
financing of 2-1. For every $1 someone would go over the limit, you get 
$2.
  For example, in Virginia, if the limit is $3.6 million and the 
Senator from Virginia voluntarily agrees to abide by that limit, if the 
person running against the Senator from Virginia went over $3.6 
million--say they spent $4 million, which would be $400,000 more--the 
Senator from Virginia would get $800,000. Two for one. Now, that is a 
great disincentive for anyone to go beyond the voluntary limits because 
the

[[Page 5009]]

other person gets twice as much money as the person who went over the 
limits.
  I point out the difference between my amendment and the one offered 
earlier by Senator Biden and Senator Kerry. Their amendment included 
public financing from the beginning. This amendment does not. This 
amendment says, raise money however we decide to let you raise money. 
That is the way you raise it. PACs, personal contributions, whatever 
limits we decide on around here, you raise that money. There are no 
public benefits. The only time public benefits kick in is if someone 
went over the voluntary limits.
  My friend from Kentucky said the other day on the floor that all of 
the polls show the American people don't like public financing. They 
don't want their tax dollars going to finance Lyndon LaRouche and other 
such people.
  First of all, the money we use here to counter what someone might 
spend over the limits is not raised from tax dollars; it is a voluntary 
checkoff and from FEC fines.
  Second, if the Senator from Kentucky is right, and I think he may 
well be--I don't know--that the American people don't want public 
financing of campaigns, then that is a second hammer on discouraging 
someone from going over the voluntary limits. If someone goes over the 
voluntary limits, that person is responsible for kicking in public 
financing. That person is responsible for kicking in public financing, 
not from a tax but from a voluntary checkoff and from FEC fines.
  There are two prohibitions here to keep someone from going over the 
voluntary limits. One, your opponent gets twice as much money as 
whatever you spent over those limits; second, there would be a built in 
public reaction against someone who did it because it would cause 
public financing to kick in.
  Another issue was raised regarding this limit. Someone said: You have 
the voluntary spending limits, but what about all the independent 
groups out there? They are buying all the ads running against you; you 
are limited but they are not.
  With the Snowe-Jeffords provision and the Wellstone amendment we 
adopted and just reaffirmed this morning, that is not the case. Those 
independent groups cannot raise that kind of money from the 
corporations and they cannot run those ads with your name in them.
  Someone said: That is all well and good, but what if the Supreme 
Court throws out the Wellstone amendment, throws out Snowe-Jeffords, 
and says that is unconstitutional? Then we are left with your limits 
and these independent groups can go ahead and raise all this money and 
run those ads.
  The amendment says if the Supreme Court finds the Wellstone amendment 
or the Snowe-Jeffords provisions unconstitutional, my amendment falls. 
It will not be enacted. It will not be part of the campaign finance 
reform law.
  If the Supreme Court finds the Wellstone amendment is 
unconstitutional and these groups go ahead and raise that money and run 
those ads against you, then the limits in my amendment do not pertain. 
All bets are off. But as long as Wellstone is constitutional, as long 
as Snowe-Jeffords is constitutional, then the voluntary limits would be 
there and the provisions of a 2-for-1 match, if you went off, would 
also pertain.
  Bob Rusbuldt, executive vice president of the Independent Insurance 
Agents of America, said recently, ``campaign finance reform is like a 
water balloon; You push down on one side, it comes up on the other.''
  I think that is what will happen. We ban the soft money; we increase 
hard money. Push down one side, it goes up the other side. Who are we 
kidding? We are going to continue to raise hundreds of millions, 
billions of dollars for these campaigns. My amendment will burst that 
water balloon and make the existence of loopholes irrelevant, by 
creating voluntary spending limits and providing a strong incentive for 
candidates to comply with them. That is what this amendment is about.
  Again, I am going to be very frank. The voluntary limit for my State 
of Iowa would be about $2.1 million. In 1996, when I ran for 
reelection, I spent $5.2 million. Can I abide by $2.1 million? You bet 
I can. As long as my opponent has to--fine. We can run our campaigns 
the old fashioned way--at the grassroots. Then we will not have to be 
buying ad after ad after ad, countering back and forth and all that 
stuff. Then maybe we will get down to real debates about issues and 
things people care about, without just hiring ad agencies to buy all 
these ads.
  On each desk is a copy of basically what the amendment does, and a 
list by State of what the limits would be.
  I conclude this portion of my remarks by saying, again, this is the 
crazy uncle in the basement no one wants to talk about. Everybody wants 
to talk about stopping how we raise money, getting rid of soft money, 
but no one wants to talk about cutting down on how much we spend. Let's 
start talking about it. Now is the time to do something about it. This 
voluntary limit is constitutional and it will answer the other side of 
the campaign finance reform debate that heretofore we have not 
addressed.
  I yield whatever time the Senator from Minnesota requires. How much 
time do I have remaining?
  The PRESIDING OFFICER. The Senator from Iowa has 44 minutes 
remaining.
  Mr. HARKIN. I yield 15 minutes to the Senator.
  Mr. WELLSTONE. I may not need 15 minutes. The Senator from North 
Dakota is here, as are others.
  First, I say to my colleague from Iowa and other Senators, I do want 
to talk about the amount of money we spend. I am very honored to be a 
cosponsor of this amendment with the Senator from Iowa. I think this is 
a great amendment. This amendment could very well pass in the Senate 
because it makes a lot of sense. It is just common sense.
  My colleague from Iowa has described what this amendment is about. I 
do not know that I need to do that again. We are talking about 
voluntary limits. Then what we are saying is, if you agree to that 
voluntary limit but the opponent doesn't, then you get a 2-to-1 match 
for however many dollars your opponent goes over this limit. This 
amendment makes the McCain-Feingold bill, which deals with the soft 
money part, quite a strong reform measure.
  I say to my colleague from Iowa, I believe so strongly in this 
amendment for a couple of different reasons. First of all, here is 
something else we have not talked about, and we need to, as incumbents. 
In all too many ways the system is wired for incumbents. This amendment 
probably comes as close as you can come to creating a more level 
playing field. It really does. Many more people would have an 
opportunity to run with this amendment part of the law. They really 
would.
  I think there is quite a bit of pressure on people. It seems to me, 
if this is the law of the land and candidates step forward and say, 
absolutely we will agree to this limit because we do not want to be 
involved in this obscene money chase, we will agree with this limit 
because we want there to be more debate and fewer of these poison ads 
and all the rest, we will agree because we know people in Iowa and 
Connecticut and North Dakota and Minnesota do not like to see all this 
money spent, I think it is going to be much more difficult for another 
candidate to say, no, I won't agree with this limit; I want to buy this 
election. Then you have the additional disincentive of the 2-to-1 
match.
  This is a perfect marriage. In one stroke, it dramatically reduces 
the amount of money spent, dramatically reduces the power of special 
interest groups, dramatically reduces the cynicism and disillusionment 
people have about politics in the country, and dramatically increases 
the chances of a lot of citizens thinking they can run for the Senate, 
that they might be able to do this, they might be able to raise this 
amount of money and they would not lose because someone could just 
carpet bomb them with all sorts of ads and all sorts of resources. This 
is a great reform amendment.
  I also make another point. I just finished saying the system is wired 
for incumbents but that I think all of us are going to want to support 
this amendment. The truth is, in one way it is

[[Page 5010]]

wired--but it is so degrading. Who wants to have to constantly be on 
the phone asking for money? Who wants to be traveling all around the 
country constantly having to raise money? Who wants, every day of the 
week during your reelection cycle when you want to be out on the floor 
debating issues and doing work for people on your State, to have to be 
on the phone for whatever time, every single day, making these calls?
  None of it is right. This amendment is just a commonsense amendment, 
such a modest amendment, yet it has such major, major ramifications, 
all in the positive and all in the good for how we finance campaigns.
  This is really one of the great amendments. I thank Senator Harkin 
for his work on it, and I am very proud to be a part of this effort.
  I am going to finish by making two other quick points. I say this 
being a little facetious, but I do not think it is a bad point to make. 
I say to Senator Harkin and Senator Dorgan, this should be called the 
good food amendment. The reason I think it should be called the good 
food amendment is when you no longer have to go to these hotels for the 
$1,000--oh, I forgot, now it is $2,000, actually $4,000--when you no 
longer have to go to these hotels for these $2,000 and $4,000 
contributions and eat the rubber chicken meals, now you get to campaign 
in the neighborhoods. I get to eat Thai food and Vietnamese food and 
Somalian food and Ethiopian food and Latina and Latino food. You get to 
be at real restaurants with real people out in the neighborhoods, out 
in the communities. You get to stump speak. You get to debate. This is 
the good food amendment. We will all be healthier if we support this 
amendment. I am trying to get to my colleagues through their stomachs, 
I guess.
  This is the last point I want to make because I want to end on a very 
serious note. The voluntary spending limit for Minnesota would be 
$2,604,158. Could I campaign and have a chance to ``get my message 
out'' on $2.6 million if we would have both candidates agree? 
Absolutely. Do I, today on the floor of the Senate, want to make a 
commitment that if this amendment is agreed to and becomes the law of 
the land that I will abide by this voluntary spending limit if my 
opponent would do so or--I am sorry, it doesn't matter. The answer is: 
Yes, I am ready to do this. This would be a gift from Heaven, from my 
point of view, because I am tired of all of the fundraising. And I 
haven't even started. I am not even doing what I am supposed to do. I 
am tired of it. So I am ready to say right now, if this amendment 
becomes the law of the land, I am going to abide by it. I want to be 
one of the first Senators to step forward and say I agree.
  I think a lot of Senators will. I think it will be a lot better for 
us, whether we are Democrats or Republicans. It will be a lot better 
for the people we represent. It will be a lot better for Iowa and 
Minnesota. It will be a lot better for representative democracy. It 
will be a lot better for our country.
  This is a great amendment. I hope it gets overwhelming support.
  I yield the floor.
  Mr. HARKIN. I thank my friend from Minnesota. The Senator makes a 
good point. I am going to have some more data on how much money was 
raised in the last cycle and what this might mean, but in terms of 
time, let's be honest about it. How much time do we spend on the phone 
raising money and traveling on weekends, going here and there? This 
would help us because now we can spend more time in our States, meet 
with people, spend more time, as you say, around the coffee tables in 
the small cafes and restaurants rather than running all over the 
country trying to raise money all the time. I think the Senator makes a 
good point on that. It will bring us closer to representative 
democracy.
  Mr. WELLSTONE. It would bring us closer to the people we represent 
and bring the people closer to us, all of us, in whatever State.
  Mr. HARKIN. Mr. President, so far as I see, we have done a lot of 
good things in the McCain-Feingold bill. We rejected a lot of bad 
amendments. It looks good. But all in all, the way our campaigning 
financing system is today, it is still an incumbent protection system. 
It is still incumbent protection.
  For example, in the 2000 election, the average incumbent raised $4.5 
million, while the average challenger raised $2.7 million. This helps 
to level that playing field a little bit.
  I also point out the statistics that in the 2000 election cycle, 
Senate candidates spent $434.4 million in hard money. If we had had 
this voluntary limit in existence in the 2000 election, Senate 
candidates would have spent $113.4 million, a difference of $321 
million less than Senate candidates would have had to raise in the 2000 
election.
  I think we would have had better campaigns, and we would have had 
better issue-oriented campaigns in the 2000 election cycle. That $321 
million represents how many hours, how many days, and how many times 
Senators have to travel all over the country and have to get on the 
phone to raise the money, as Senator Wellstone said, when those 
Senators could be in their home State meeting with their constituents?
  I yield 10 minutes to my colleague from North Dakota.
  The PRESIDING OFFICER (Mr. Allard). The Senator from North Dakota is 
recognized.
  Mr. DORGAN. Mr. President, I thank the Senator from Iowa for yielding 
the time.
  Mr. President, there are some who continue to insist that, gosh, 
there is not too much money in politics. In fact, they say there is not 
enough. What we really ought to do is make sure that everything is 
reported and let anyone contribute any amount at any time they want to 
contribute. I think that is a fairly bankrupt argument.
  I ask the American people if they think, in September or October of 
an election year as they turn on their television sets, that there is 
too little politics or too little money in politics. They understand 
there is far too much money in this political system. We ought to 
change it.
  The Supreme Court, in a rather bizarre twist, which happens from time 
to time across the street, said Congress can limit contributions. That 
is constitutional. But it cannot limit expenditures of campaigns. That 
would be unconstitutional. The Supreme Court struck down a provision in 
a previous reform that had some limits and said: We are going to limit 
contributions, but you can't limit expenditures.
  In this debate for nearly 2 weeks about campaign finance reform, 
there are no serious discussions about limited expenditures, except for 
the discussion initiated today by Senator Harkin from Iowa. You can't 
get at this problem unless you begin to talk about trying to find a way 
to limit expenditures in campaigns. How do you do that?
  Some stand up and want to test the waters. Some want to make waves. 
Fortunately, the Senator from Iowa wants to make waves. There is a big 
difference. He wants to do something that works.
  There are some in this debate who want to do just enough to make the 
American people think they have done something but not so much that we 
would solve the problem.
  I am for campaign finance reform, some would think, but I am really 
not for that which has enough grip to solve this problem.
  You don't solve this problem unless you find a way to deal with this 
question of campaign spending.
  This has become, as some of my colleagues have said, almost like 
auctions rather than elections, with massive quantities of money moving 
in every direction--hard money, soft money, $1 million here, $500,000 
there, and $100,000 in this direction.
  So we have McCain-Feingold. I support McCain-Feingold. But I must say 
it has changed in the last 6 or 8 days. I regret that yesterday the 
McCain-Feingold bill was changed by my colleagues who said we need to 
add more hard money into the political system. That is not a step 
forward. That is a retreat. Nonetheless, I will still vote for McCain-
Feingold.
  But the Harkin amendment makes this McCain-Feingold bill a better 
bill.

[[Page 5011]]

It addresses the bull's eye of the target by saying we can construct a 
set of voluntary spending limits with mechanisms that will persuade 
people to stay within those limits. Because if someone waltzes in and 
says they are worth a couple billion dollars, that they intend to spend 
$100 million on the Senate seat, if they do not like it, tough luck. We 
have a series of mechanisms now described by my colleague in this 
amendment that says that is going to cost them. They have every right 
to spend that money, but, by the way, their opponent is going to have 
the odds evened up because their opponent is going to get twice as much 
as they are spending over the voluntary limit through fees that are 
through checkoffs of income tax, from a fund that provides some balance 
in our political system.
  The funding of politics has almost become a political e-Bay. It is 
kind of an auction system. If you have enough money, get involved, and 
the bid is yours. We bid on a Senate seat. Here is how much money we 
have. We have big friends and bank accounts. So this Senate seat is 
ours.
  That is not the way democracy ought to work. That is not the way we 
ought to have representative government work.
  Some while ago, I was in the cradle of democracy where 2,400 years 
ago in Athens, the Athenian state created this system of ours called 
democracy. This is the modern version of it. What a remarkable and 
wonderful thing.
  But democracy works through representative government when you have 
the opportunity for people to seek public office and the opportunity to 
win in an election in which the rules are reasonably fair.
  There are circumstances where that still exists.
  I come from a family without substantial wealth. I come from a family 
without a political legacy. I come from a town of 300 people. I come 
from a high school class of nine students. I come from a rural ranching 
area in southwestern North Dakota, and I pinch myself every day 
thinking: What a remarkable privilege it has been for the many years 
that I have had the opportunity to serve in the Congress. It still 
happens.
  But I must say that in modern elections, in cycle after cycle, it is 
less and less likely that someone without massive quantities of money 
is going to be able to be successful against other candidates who have 
access to barrels of money that they can pour into the television 
commercials, along with their partners and the independent 
organizations that can pour massive amounts of unlimited money into the 
same election and affect the result.
  My colleague says we can change that. I like the mechanism that he 
establishes to do that. I don't think it does violence to the McCain-
Feingold bill at all. In fact, this bill is reform. If you come to the 
Senate floor and say you support McCain-Feingold because you stand for 
reform of campaign finance, then you must, it seems to me, come to this 
floor and say you stand for this amendment because this amendment is 
real reform added to this bill.
  I will not diminish the McCain-Feingold bill. I have great respect 
for Senators McCain and Feingold. And I have long supported this 
legislation and have not wavered from that support. I commend them for 
what they have done and for establishing leadership on this issue. Were 
it not for them, we would not be on this floor at this time discussing 
this subject.
  Make no mistake. While this may not lead in the polls, this subject 
is important to the preservation and strength of this democracy of 
ours.
  But, I say again, I don't want people to tell me that we must oppose 
this amendment because we must keep this fundamental bill pure. This 
bill will be better, this bill will be strengthened, and this bill will 
move further in the direction of reform with the amendment offered by 
Senator Harkin.
  In the last debate some 6 or 8 years ago in the Senate on this 
subject, I offered an amendment that was reasonably similar to this. It 
said that you establish voluntary spending limits, and if someone goes 
over the spending limit, they pay a fee equal to 50 percent of that 
which they are over the spending limit, and the FEC collects the fee 
and transmits that fee to the opponent, which I thought was a delicious 
and wonderful way to penalize those who want to spend millions and 
millions and millions of dollars in an attempt to buy a seat in the 
U.S. Congress.
  We ought not have advantages for incumbents. We ought to have 
elections that are contests of ideas between good men and women who 
want to offer themselves for public service. The outcome should not 
always be determined by who has the most money.
  The amendment offered by my colleague from Iowa is a very significant 
step in the right direction. It is voluntary spending limits, but 
spending limits that are attached to a construction of a pool of money 
that would be available through checkoffs available to help challengers 
and others in circumstances where one candidate says they are going to 
open the bank account and spend millions and millions in pursuit of 
purchasing a seat in the U.S. Congress.
  I am happy to come today to support this amendment. I say to my 
colleagues, if you have been on the floor talking about reform in the 
last 2 weeks, do not miss this opportunity to vote the way you talk. 
This is reform. This adds to and strengthens McCain-Feingold, make no 
mistake about it.
  So I am very pleased to support this amendment. I hope my colleagues 
will support this amendment. I hope we can adopt this amendment because 
this is a significant step.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. DODD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. How much time does the Senator from Iowa have remaining on 
this side?
  The PRESIDING OFFICER. Twenty-five minutes.
  Mr. DODD. I inquire of my friend and colleague from Kentucky, I 
presume if we need some additional time, as Members come over, we can 
let it flow. Two and a half hours, is that what we have agreed to on 
this amendment?
  The PRESIDING OFFICER. Two hours evenly divided.
  Mr. DODD. Two hours.
  If we need a little time for some reason--obviously, Members may want 
to be heard--I presume we will follow some rule of comity.
  Mr. McCONNELL. Yes. I say to my friend from Connecticut, there should 
not be a problem. I do not think we will be swamped with speakers on 
this side. We will be glad to try to work to accommodate this and have 
the vote before lunch.
  Mr. DODD. I thank the Senator.
  The PRESIDING OFFICER. Who yields time?
  Mr. DODD. I ask for 10 minutes.
  Mr. HARKIN. I am happy to yield it.
  Mr. DODD. Mr. President, I commend my colleague from Iowa and my 
colleagues, as well, who have spoken today--Senator Dorgan and Senator 
Wellstone--for their support of this amendment. I, too, support this 
amendment.
  Senator Dorgan has said it well. Senator Wellstone has said it well. 
This is true reform. If we are really interested in doing something 
about the money chase, both in terms of contributions and the rush to 
spend even more in the pursuit of political office in this country, 
then the Harkin amendment offers a real opportunity for those who would 
like to do something about this overall problem by casting their vote 
in favor of his amendment.
  Senator Harkin has explained this amendment very well. It is a 
voluntary provision. It does level the playing field. I, too, over and 
over again over the past week and a half have expressed my concerns and 
worry about the direction we are going. I made the point the other day 
that we are shrinking the pool of potential candidates for public 
office in this country.
  At the founding of our Nation, back more than 200 years ago, the only 
people who could seek public office and could vote were white males who

[[Page 5012]]

owned property. Pretty much those were the parameters. Of course, we 
abandoned those laws years ago. Nonetheless, that restricted the number 
of individuals, obviously, who could seek a seat in the Congress--the 
Senate or the House--or a gubernatorial seat.
  Unfortunately, what has happened over the years, particularly in the 
last 25 years or so, is we have created new barriers to seeking public 
office. The largest of those barriers is the cost of running for public 
office, the cost of raising the dollars, and the cost of getting your 
voice heard. One of the reasons that has occurred, and one of the 
difficulties we have had, is because of the Supreme Court decision back 
in 1974 that said money is speech.
  Justice Stevens, to his great credit, in a minority opinion in that 
decision, said money is not speech; money is property. He was exactly 
right. But the majority of the Court held otherwise. And because of 
that decision, we have been plagued with our inability to come up with 
a structure that would slow down and provide some ability to manage 
what has become a reckless system, in my view, that is only available 
to those who can afford to ante up and enter it.
  There are those, obviously, who will be able to emerge in this 
process, even though they do not have the financial resources. But the 
problem is those are going to become more the exceptions than the rule. 
That is my great concern and worry; there will be fewer and fewer 
people, who have great ideas, great ambition, great energy, a great 
determination to do something, who can even think about holding or 
running for a seat in the Senate or the House of Representatives.
  We have taken the concept that is included in the Harkin amendment 
and applied it to Presidential contests--not exactly, but at least the 
notion of public financing. Every single Presidential candidate for the 
last 25 years has embraced public financing for Presidential races. 
Even the most conservative of those candidates has taken the public 
moneys in order to try to keep down the cost of running for the 
Presidency, and that is an expensive undertaking. It has not made it 
inexpensive to do it, but I would suggest, in the absence of those 
provisions--and it is a voluntary system--President Bush, the present 
occupant of the White House, did not take public moneys during the 
primary season, but when it came to the general election, he did. There 
will be reasons you will hear of why he did, but the fact is, by doing 
so, he accepted limitations on how much would be spent in those races.
  Ronald Reagan, to his great credit, one of the great heroes of the 
conservative movement, accepted public moneys in both the primary and 
the general election, as has every other candidate. But what Senator 
Harkin has offered, and those of us who are supporting him--while not 
applying that same set of rules--is the same philosophical idea.
  Mr. HARKIN. No public financing.
  Mr. DODD. No public financing, but the notion that we have public 
controls, in a sense, limitations on how expenditures are made, if you 
are faced with challengers who are going to spend unlimited amounts of 
their own personal resources in order to be heard.
  I happen to believe, as I said a moment ago, that money is not 
speech, anymore than I think this microphone that is attached to my 
lapel is speech or anymore than the speaker system in this Chamber is 
speech. Those are vehicles by which my voice is heard; it is amplified. 
You can hear me better than you would if I took this microphone off and 
the speakers were turned off. If I spoke loud enough, you might hear 
me, but in the absence of those technological assistances, my voice 
would be that of any other person without the ability to have it 
amplified.
  Money allows your voice to be amplified. It is not speech. It just 
gives you a greater opportunity to be heard. So I fundamentally 
disagree with the Court's decision on the issue of money being speech.
  In fact, the notion of free speech in American politics today is, as 
one editorial writer in my home State of Connecticut said, an oxymoron. 
There is nothing free about political speech in America today. It 
belongs to those who can afford to buy it. That is what it is. There is 
nothing free about it.
  So this amendment really does give us an opportunity to control the 
expenditure side, which is tremendously valuable. As some have said 
repeatedly over the last several days, we may not get back to this 
subject matter again, considering how difficult it was to get here. It 
may have been Senator Dorgan who made the point we owe a debt of 
gratitude to our colleagues from Arizona and Wisconsin, Senator McCain 
and Senator Feingold, for insisting that this debate be part of the 
public agenda this year; and that if their opponents, or even some of 
their supporters, are accurate, it might be another quarter century 
before we come back to this debate again, and then the appropriateness 
of the Harkin amendment is even more so. Because if we do not come back 
to the expenditure side of this, at some future date our successors in 
these seats will be looking at campaigns that are double and triple and 
quadruple the amount we are spending today.
  If you look at what we were spending 25 years ago--the Senator from 
Iowa and I arrived on the very same day in the Halls of Congress; both 
a little leaner and had a little more dark hair in those days----
  Mr. HARKIN. That is true.
  Mr. DODD. But we have been here together for those many years.
  In those days, statewide races in Iowa and Connecticut were a 
fraction of what they are today. If we extrapolate those numbers and 
advance them 20 years or so down the road, we are doubling it, which 
would probably be around $10 to $13, $14 million to seek a seat in Iowa 
or Connecticut in a contested contest, maybe more. Imagine how 
difficult it would be for some young person, some young man or woman in 
Iowa or Connecticut today, thinking one day they might like to be a 
candidate for the Senate. We ought to tell them today, if they are 
thinking about it, in the absence of the Harkin amendment being 
adopted, they had better be prepared to finance themselves or have 
access to something in the neighborhood of $10 to $15 million.
  The pool of people I know in my State and, I suggest, in Iowa--and 
the Senator knows his State better than I do--is a relatively small 
number of people who could even think about coming to the Senate under 
that set of circumstances.
  I applaud the Senator for this amendment. I urge my colleagues to 
support it. I am fearful we are not going to get very far with this. I 
hope I am wrong on that, but I tell the Senator from Iowa, if we don't 
pass this today, someday we will. It will take some other outrageous 
set of circumstances, much as it did in 1974, to provoke this 
institution to do what it should have done before then. Unfortunately, 
it will probably take that happening again to bring this body and the 
other Chamber around to the point the Senator from Iowa has embraced 
with this amendment.
  I commend him for it. I support it. I am hopeful our colleagues will 
join him in adopting the amendment. This will add immensely to the 
label ``reform'' on the McCain-Feingold legislation.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that an 
outstanding column by George Will on the subject we have been debating 
for the last 9 days, from this morning's Washington Post, be printed in 
the Record.
  There being no objection, the column was ordered to be printed in the 
Record, as follows:

               [From the Washington Post, Mar. 29, 2001]

                        The Senate's Comic Opera

                          (By George F. Will)

       The overture for the Senate's campaign finance opera--opera 
     bouffe, actually--was indignation about President Bush's 
     decision against cutting carbon dioxide emissions. Reformers 
     said the decision was a payoff for the coal industry's 
     campaign contributions. But natural gas interests, rivals of 
     the coal interests, suffered from Bush's decision--yet they 
     gave Republicans more money ($4.8 million) last year then 
     coal interests gave ($3.37 million).
       The ``reforming'' senators began their reforming by 
     legislating for themselves an even stronger entitlement to 
     buy television

[[Page 5013]]

     time at a discount, and by voting themselves a right to take 
     larger contributions (up to $6,000, rather than just $1,000) 
     when running against a rich, self-financing opponent. The 
     Supreme Court says the only permissible reason for limiting 
     political speech by limiting money is to prevent corruption 
     or the appearance thereof. The Senate did not explain why it 
     is corrupting to take $6,000 when running against an opponent 
     with a net worth of X but not corrupting when running against 
     an opponent with net worth of 10 times X.
       The Senate refused to ban, as nine states do, lobbyists 
     from contributing to legislators when the legislature is in 
     session. John McCain, at last noticing the Constitution, and 
     this inhibition on political giving is constitutionally 
     problematic, presumably because it restricts the rights to 
     political expression and to petition for redress of 
     grievances.
       Constitutional scrupulousness is a sometime thing for 
     McCain, who once voted to amend the First Amendment to 
     empower government to do what his bill now aims to do--ration 
     political communications. For example, his bill would 
     restrict broadcast ads by unions and corporations and groups 
     they support in the two months before a general election or 
     30 days before a primary if the ads mention a candidate.
       In a cri de coeur revealing the main motive for many 
     ``reform'' politicians--a motive having nothing to do with 
     corruption or the appearance of it--Sen. Pat Roberts (R-Kan.) 
     said: ``I'm suffering an independent expenditure missile 
     attack, and I don't have my shield.'' Campaign finance reform 
     is primarily an attempt by politicians to shield themselves 
     from free speech--from, that is, the consequences of the 
     shield James Madison wrote to protect the people from 
     politicians: ``Congress shall make no law . . . abridging the 
     freedom of speech.''
       Last Saturday McCain's partner, Wisconsin Sen. Russell 
     Feingold, delivered the Democrats' response to President 
     Bush's weekly radio address. With the reformer's 
     characteristic hyperbole, Feingold attempted to reconnect 
     reform with ``corruption.'' He said: ``Members of Congress 
     and the leaders of both political parties routinely request 
     and receive contributions for the parties of $100,000, 
     $500,000, $1 million.''
       Well. There are 535 members of Congress. In the last two-
     year (1999-2000) election cycle, there were 1,564 
     contributions of $60,000 or more from individuals and 
     organizations. So all those legislators supposedly 
     ``routinely'' receiving such contributions for their parties 
     receive, on average, fewer than two a year. The total value 
     of all 1,564 was $365.2 million, a sum equal to one-
     fourteenth the amount Procter & Gamble spent on advertising 
     during the same period.
       The New York Times accurately and approvingly expresses 
     McCainism: ``Congress is unable to deal objectively with any 
     issue, from a patients' bill of rights to taxes to energy 
     policy, if its members are receiving vast open-ended 
     donations from the industries and people affected.'' Oh. If 
     only people affected by government would stop trying to 
     affect the government--if they would just shut up and let 
     McCain act ``objectively.''
       If you doubt that reformers advocate reform because they 
     believe that acting ``objectively'' means coming to 
     conclusions shared by the New York Times, read ``Who's Buying 
     Campaign Finance Reform?'' written by attorney Cleta Mitchell 
     and published by the American Conservative Union Foundation. 
     It reveals that since 1996, liberal foundations and soft 
     money donors have contributed $73 million to the campaign for 
     George Soros, founder of drug legalization efforts and other 
     liberal causes, has contributed $4.7 million, including more 
     than $600,000 to Arizonans for Clean Elections--more than 71 
     percent of the funding of ACE.
       Soros and seven other wealthy people founded and funded the 
     Campaign for a Progressive Future. One of those people, 
     Steven Kirsch, contributed $500,000 to campaign ``reform'' 
     groups in 2000--and $1.8 million against George W. Bush. 
     Another reformer, Jerome Kohlberg, donated $100,000 to a 
     group that ran ads saying ``Let's get the $100,000 checks out 
     of politics.''
       Let's be clear. These people have and should retain a 
     constitutional right to behave in this way, putting the 
     bouffe in the opera bouffe.

  Mr. McCONNELL. Mr. President, a professor of law at the University of 
Kentucky College of Law also wrote an excellent op-ed piece in the 
Lexington-Herald Leader in my home State on Tuesday, essentially 
echoing many of the arguments a number of us have made against the 
underlying bill over the last 9 days. I ask unanimous consent that 
article be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From the Lexington-Herald Leader, Mar. 27, 2001]

               Campaign Finance Bill Treads on Our Rights

                          (By Paul Salamanca)

       I've heard it said that more than a hundred legal academics 
     agree that the McCain-Feingold campaign finance reform bill 
     does not violate the First Amendment. I'm not one of them.
       Believe it or not, political parties are expressive 
     associations. The First Amendment protects one's right to 
     speak freely, to write freely, to assemble peaceably and to 
     petition the government for redress of grievances (in other 
     words, to complain). The first, second and fourth of these 
     precious, hard-fought liberties are most effectively 
     exercised through association.
       That's because almost all of us--me included--are too busy, 
     too poor or too inarticulate to speak effectively by 
     ourselves. But when we pool our time, talent and treasure, we 
     can move mountains, expressively speaking. And the third of 
     these liberties, peaceable assembly, explicitly protects 
     association.
       Because political parties are dedicated to the discussion 
     and formulation of ideas, and to the identification and 
     promotion of people who will implement those ideas, the First 
     Amendment protects the American Civil Liberties Union, the 
     Sierra Club, the National Association for the Advancement of 
     Colored People and the National Right to Life Committee. Like 
     these associations, the Democratic and Republican parties are 
     expressive. Thus, limitation on the amount of money people 
     can give to political parties is constitutionally 
     indistinguishable from a limitation on the amount of money 
     people can give to the ACLU or the NAACP.
       The upshot of this is simple: The giving of ``soft money'' 
     to political parties is an exercise of First Amendment 
     rights, and a flat ban on soft money is unconstitutional.
       One argument to the contrary is that soft money is a weak 
     form of bribery. But this argument operates from the 
     implausible assumption that political parties are, in fact, 
     the government. But this cannot be true. If an association 
     formed to criticize the government is, in fact, the 
     government, then we have a case of a shark trying to eat 
     itself.
       Another provision of McCain-Feingold would ban or sharply 
     limit advertising by private groups that refers to a 
     candidate by name. This too would violate the First 
     Amendment. At its core, the First Amendment is designed to 
     facilitate discussion of political issues and candidates by 
     the ultimate sovereign in the United States: ``We the 
     People.'' So, if the First Amendment doesn't protect a 
     group's right to say ``Vote for X because of X's position on 
     such-and-such issue,'' it wouldn't be worth the toner it 
     takes to print it.
       Thus, issue advertising, so much maligned these days, is an 
     important form of advocacy. In fact, it's the most effective 
     form of speech available to non-profit expressive 
     associations, such as the NAACP.
       To preclude such groups from running ads that refer to 
     candidates before elections--or to impose so many regulations 
     on their ability to do so that many would give up trying--
     would seriously interfere with free speech.
       There are those who say that issue ads--ads that end by 
     saying something like ``Please call X and tell X that such-
     and-such a policy is bad'' (in other words, the very ads that 
     McCain-Feingold would limit or ban)--are nothing more than 
     thinly veiled pieces of express advocacy.
       But this couldn't be a more cruel irony because non-profits 
     would love to expressly advocate the election of X or the 
     rejection of Y without mincing words. The only reason they 
     don't is fear of overly aggressive interpretation of existing 
     federal law by the Federal Election Commission.
       Indeed, this state of affairs gives rise to two distinct 
     anomalies. First, people watching TV are annoyed by issue ads 
     that don't come right out and express a preference, when the 
     associations running the ads would dearly love not to mince 
     words. Second, people, like Sens. John McCain and Russ 
     Feingold can use this annoyance, which itself is the product 
     of federal regulation, to justify further regulation of 
     speech.
       And make no mistake: McCain-Feingold would regulate speech. 
     To the extent the bill would fall short of literally banning 
     issue advertising, it would accomplish about the same thing, 
     at least with regard to small associations and associations 
     whose members want to remain anonymous, by imposing onerous 
     accounting and reporting requirements on issue advertisers.
       McCain-Feingold is unconstitutional. If it passes Congress, 
     the president should veto it--with or without paycheck 
     protection, with or without a severability clause. And 
     Kentucky's senior senator, Mitch McConnell is right to oppose 
     it.

  Mr. McCONNELL. Mr. President, there is much not to like in the Harkin 
amendment and one provision that has some appeal. I will talk about the 
provision that has some appeal at the end.
  As I understand the Harkin amendment, it is taxpayer funding with a 
little different twist. What the Senator from Iowa has shrewdly done is 
suggest that the spending limit in his amendment is voluntary.
  What in fact happens is, you have candidate A and candidate B. Let's 
assume candidate A, who is a well-known

[[Page 5014]]

incumbent who doesn't need to spend as much to get his message home, is 
up against an unknown challenger, and that unknown challenger knows he 
needs to spend more to have a chance to win. As soon as that unknown 
challenger encroaches above the Government's specified spending limit, 
the Treasury of the United States provides $2 out of our tax money for 
every $1 the noncomplying candidate gets to spend. In other words, a 
hammer comes down on a noncomplying candidate just as soon as they 
encroach above the Government-specified speech limit--hardly voluntary.
  That is sort of like a robber putting a gun to your head and saying: 
I would like to have your wallet but you, of course, really don't have 
to give it to me.
  If you choose to exercise your right to speak beyond the Government-
prescribed limit, bad things happen to you. The Federal Treasury of the 
United States gives you $2 for every $1 your opponent is spending to 
bludgeon you into submission.
  The second part of the Harkin amendment is interesting in that it 
relies on volunteered tax money to provide the funding. This is 
different from the Presidential system where, as we know, we are able, 
if we choose, to check off $3 of tax money we already owe and to divert 
it away from things such as children's nutrition and food stamps and 
other worthwhile activities into a fund to pay for the Presidential 
elections. As I understand the Harkin checkoff, the taxpayer is 
actually asked to volunteer an additional sum of money from his return.
  I predict to my friend from Iowa, there is going to be darn little 
participation in that. We know what the checkoff rate has been among 
taxpayers when it doesn't even add to their tax bill. The high water 
mark was in 1980, when it was slightly under 30 percent of taxpayers. 
There has been a steady trend downward to the point last year there 
were 11.8 percent of taxpayers volunteering money they already owed--it 
didn't add to their tax bill; it was money they already owed--to go to 
pay for buttons and balloons and campaign commercials and national 
conventions.
  My colleagues get the drift. There is not a whole lot of interest on 
the part of the American taxpayer to pay for our political campaigns. 
In fact, we have a huge poll on that every April 15. The most massive 
poll ever taken on any subject is taken on the subject of using tax 
dollars for political campaigns. That poll is taken every April 15 on 
our tax return. Even when it doesn't add to our tax bill, about 10 
percent of Americans choose to participate; 90 percent choose not to.
  I say to my friend from Iowa, I don't think this will be a very 
reliable source of funds if the taxpayer actually has to ante up and 
provide money for a candidate he doesn't know. The chances of an 
American taxpayer choosing to donate money to a nameless candidate is 
virtually nil, I suggest.
  A slightly differently nuanced version of taxpayer funding than we 
had before us earlier, the Kerry amendment, got 30 votes. I hope this 
amendment will get no more than 30 votes.
  We have come a long way on this subject. Earlier in the Senate 
careers of the Senator from Connecticut and the Senator from Iowa and 
myself, we were actually debating taxpayer funding of elections and 
spending limits for campaigns on the floor of the Senate. That kind of 
bill actually passed the Senate in 1993. We have come a long way.
  It is noteworthy that the underlying McCain-Feingold bill does not 
have any PAC ban in it. It doesn't have any tax money in it. It doesn't 
have any spending limits on candidates in it. We have come a long way.
  Now all we are debating is whether or not we are going to destroy the 
great national parties, which I think is a terrible idea. We will get 
back to that issue later.
  The Senator from Iowa sort of resurrects one of the golden oldies, 
one of the ideas from the past that sort of moved right on out of the 
public debate, by offering once again an opportunity for the taxpayers 
to subsidize candidates. There is a serious constitutional problem in 
the Treasury of the United States bludgeoning a noncomplying candidate 
who chooses to speak as much as he wants to with a 2-for-1 match out of 
the Treasury, $2 out of the Treasury for every $1 the poor challenger 
is trying to raise to get his name out. It seems to me that has serious 
constitutional problems.
  There is one provision in the amendment of the Senator from Iowa I do 
find intriguing, and I commend him for it. That is the importance of 
the principle of nonseverability in this kind of debate. As I think our 
colleagues may remember--if they don't, let me remind them--the last 
three campaign finance reform bills that cleared the Senate, that 
actually got out of this body, had nonseverability clauses in them. In 
fact, on this subject of campaign finance, it is more common to have 
nonseverability clauses in them than out of them. The norm has been to 
have nonseverability clauses in campaign finance reform bills.
  The Senator from Iowa--I commend him for this--links his amendment to 
the Snowe-Jeffords language in a nonseverability clause. And I commend 
the Senator from Iowa for doing that because it is a clear 
understanding that these kinds of bills are fraught with constitutional 
questions--fraught with them. And it is entirely appropriate to have 
linkages within these bills. It doesn't necessarily have to apply to 
the whole bill. And the amendment that the Senator from Tennessee, Mr. 
Frist, will be offering early today does not link the whole bill. But 
it is entirely common and appropriate to add nonseverability clauses in 
these kinds of bills. I commend the Senator from Iowa for recognizing 
that principle. Even though I don't like the substance of his 
amendment, I do think the recognition of the importance of that 
principle is worthy of commendation. I commend him for that.
  Mr. President, beyond that, I find not much to like about the 
amendment of the Senator from Iowa. I hope it will not be approved. I 
don't know if we will have other speakers on this side. For the moment, 
I reserve the remainder of my time, which is how much?
  The PRESIDING OFFICER. The Senator has 51 minutes.
  Mr. DODD. Before my colleague from Iowa speaks, I wonder if we might 
do this. For the purpose of informing our colleagues who are inquiring 
as to when this vote might occur, is it a noon vote? Is that how my 
colleague feels about that, another half hour?
  Mr. HARKIN. That is fine.
  Mr. DODD. A noon vote. To let people know, why don't we do a 
unanimous consent request.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that at noon a 
vote occur on the Harkin amendment.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Iowa is recognized.
  Mr. HARKIN. Mr. President, I want to respond and maybe get in a 
little colloquy with my friend from Kentucky. I appreciate the struggle 
he has had with the logic of his argument. But, quite frankly, I think 
the logic is somewhat unsound. My friend from Kentucky talks about a 
challenger out there, someone who wants to run for the Senate who has a 
message, such as Senator Dodd talked about, someone who has an idea, 
some convictions and issues they want to bring out. They want to run 
for the Senate.
  The Senator from Kentucky says, rightfully, that they need some money 
to get that message out and, by putting this limit on it, they would 
not be able to spend any more to get their message out than, say, an 
incumbent. Of course, we have access to the airwaves and the newspapers 
and all that kind of stuff. So a challenger might want to have more 
money.
  Well, again, to attack the logic of that is to look at the facts. In 
the 2000 election, the average incumbent raised $4.5 million--the 
incumbent--us--to get our message out. The average challenger raised 
$2.7 million. So under the present system, the challenger can't get 
that message out. He is swamped by what we can raise.
  Mr. McCONNELL. Will the Senator yield?
  Mr. HARKIN. Yes, I will, in a second.

[[Page 5015]]

  Now in the amendment I am offering, they would be equal in terms of 
how much they could raise to spend. In fact, this amendment would help 
any of those challengers out there to get the message out.
  Mr. McCONNELL. I say to my friend from Iowa, the problem is that 
spending is not important to the incumbent. As the Senator pointed out, 
the incumbent is already well known at the beginning of the campaign. 
If you liken this to a football field, the incumbent is down on the 
opponent's 40-, maybe 35- or 30-yard line at the beginning of the race, 
the typical challenger is back on his own 5. If they both have the same 
amount of money to spend, the incumbent wins. Spending beyond the 
Government-prescribed amount is way more important to the challenger 
than it is to the incumbent.
  So simply adding up the figures doesn't tell you much. I mean, it is 
true that incumbents spend more than challengers; but it is almost 
irrelevant to the problem of the challenger, which is to have enough to 
get his message across. Having enough clearly is in the eye of the 
beholder. We incumbents, of course, will always set the limits low 
enough to make it very difficult for anybody to get at us.
  For example, I believe the spending limit in Kentucky is $2.5 million 
under the Senator's proposal. That is about $300,000 or $400,000 more 
than I spent 17 years ago in a race in which I was outspent by the 
incumbent and won. That is about what two competitive House candidates 
spent last year, each, in one of our six congressional districts.
  The proposal of the Senator from Iowa would be a big advantage to me, 
unless I happen to have been running against Jerome Kohlberg, about 
whom we have been talking every day. I will get back to that later 
today in another context. That billionaire put this full-page ad in the 
Post a couple days ago. These kinds of people are going to be more and 
more running the show--people of great wealth. This may help you guys 
because most rich people are liberals. We are going to have to come up 
with really rich conservatives, too, unless I am running against Jerome 
Kohlberg, in which case I am going to clearly be outspent. I don't need 
the Government, if I am a challenger, telling me how much I can spend, 
and I certainly don't need the Government giving the incumbent $2 out 
of the Treasury just as soon as I am beginning to get my message across 
and trying to catch up with that guy to head toward the end zone.
  So I understand what the Senator is doing. I appreciate his 
recognition of the importance of nonseverability clauses. But this 
won't help challengers at all. In fact, it will be a great boon to 
incumbents.
  Mr. HARKIN. Mr. President, again, the Senator's reasoning flies in 
the face of facts. That is why his reasoning is specious. Look at the 
data. In the last election cycle, incumbents had $4.5 million, 
challengers had $2.7 million. I will tell you what; I dare my friend 
from Kentucky to go out and ask any challenger who ran in the last race 
if they would have accepted this kind of a deal. They could spend as 
much money as the incumbent in the campaign. I will bet you, you would 
find very few who would turn that offer down, if they could keep the 
incumbent down, keep them at the same level. That is why I say I think 
the reason flies in the face of the facts.
  Mr. McCONNELL. The challenger might accept it, but it would be good 
for second place. The point is, if in a typical race, if you are a 
challenger, your biggest problem, unless you are very wealthy, or a 
celebrity, or war hero, is that nobody knows who you are. The Senator 
set the spending limits at such a level that almost no incumbent would 
ever lose.
  Mr. HARKIN. Let's take this analogy of the football field. You are 
right. Both of us have been on the same side. I have been a challenger 
running against a sitting Senator, and so have you. And we have run as 
incumbents. We have seen both sides of this. Now, I suppose all things 
being equal, I would rather be an incumbent, obviously. But there are 
certain advantages to not being an incumbent. As I remember, when I 
ran, I had an open field. I am on the 5-yard line, the incumbent 
Senator is on the 30-yard line. But guess what. I am out there every 
day. I am in that State every day getting my message out from town to 
town, community to community, newspaper to newspaper, radio show to 
radio show. The person sitting here has to be in the Senate all year 
long. So I had a great advantage. The challenger has a great advantage. 
That field is open. The Senator starting on the 30-yard line goes from 
one side, to the other side, to the other side before he gets down to 
the end of the field. That challenger is open.
  So I have to tell you that even though the incumbent has some 
advantages of being an incumbent in the newspapers and elsewhere, a 
challenger has advantages from being out there all the time. You know 
that as well as I do. We have done that in the past.
  Mr. McCONNELL. It may be an advantage to be out there all the time, 
but if you don't have the money to be on TV, and the Government tells 
you how much you can advertise, it is not much of an advantage up 
against the incumbent who is getting all this free coverage--the 
advantage that any incumbent will have no matter how you structure the 
deal.
  Mr. HARKIN. You are getting that anyway.
  Mr. McCONNELL. It is a great asset.
  Mr. HARKIN. Not only are you getting all of this free press and stuff 
from being a Senator, you are getting the money, too.
  Mr. McCONNELL. Right.
  Mr. HARKIN. There is nothing I can do about you getting publicity. 
That comes with the territory of being a Senator. I am saying you 
should not have it both ways; you should not have the money and all of 
the protections that incumbents have. You can't do anything about all 
the stuff--the stuff a Senator gets. We can set voluntary limits.
  I say to my friend from Kentucky I know how strongly he feels about 
public financing. Perhaps my friend was right the other day when he 
said polls show that people don't want their tax dollars used for 
public spending for people such as Lyndon LaRouche. My friend is 
probably right there. That is why I think there is another hammer--and 
you are right, this is a hammer--because there is no public financing 
in my amendment unless and until someone exceeds the limits. It is that 
person who triggers, then, the financing that comes from a voluntary 
checkoff.
  Now, my friend says, well, there probably won't be enough money there 
because the people are not checking off as much money as they used to. 
Is that right? I think the Senator said that is what is happening. 
Well, the fact is, I have talked to a lot of people about the checkoff. 
Do you know why they don't want to give money to the checkoff? We just 
spend it.
  We buy more TV ads, we hire more ad agencies, and the price keeps 
going up and up. They say: Why should I check off money to give to a 
candidate and all I do is see more of these soap ads, selling them like 
soap to me?
  Under my amendment, a person checking off the money is putting money 
into a reserve fund to prevent that from happening. There is another 
hammer there because the person who exceeds the limits is the one who 
triggers the public financing.
  If my friend is right, that people do not like public financing, that 
is another reason why someone would not exceed the limits. That is 
another reason why I think people would be more prone to check off the 
money because the money would basically be used to prevent this 
unregulated, unlimited spending on ads.
  I say to my friend from Kentucky, I do not know if he listened to my 
argument on that, but this will get people to check off more money 
because then it would be used not to just add to the coffers of 
spending and buying more TV ads, but it would be put into a reserve 
fund as a hammer to keep us from spending more and more money.
  Mr. McCONNELL. I say to my friend from Iowa, he is counting on people 
who do not contribute to candidates they know to contribute to 
candidates they do not know, to contribute their money to a nameless 
candidate and cause with which they might not agree.

[[Page 5016]]

  The Senator from Iowa is correct; under his amendment there would be 
no taxpayer funding provided you complied with the Government speech 
limit. The problem is, if you do not, your complying opponent gets tax 
dollars from the Government to counter your excessive speech. That is 
the constitutional problem with the proposal of the Senator from Iowa.
  I do not think that makes the spending limit voluntary if, when you 
encroach above the Government-prescribed speech limit, the Government 
subsidizes your opponent. That is more than a hammer, that is a 
sledgehammer.
  Also, it is worthy to note that all of the challengers who won last 
year, as far as I can tell--and the Senator from Iowa can correct me if 
I am wrong--I believe all the challengers who won last year spent more 
than the spending limits in his amendment, further proving my point 
that a challenger needs the freedom to reach the audience. To the 
extent we are drawing the rules, crafting this in such a way that we 
make it very difficult for the challenger to compete, we are going to 
win even more of the time. Of course, incumbents do win most of the 
time, but we would win more of the time if we had a very low ceiling.
  In any event, my view is this is clearly unconstitutional. It is 
taxpayer funding of elections, more unpopular than a congressional pay 
raise, widely voted against every April 15 by the taxpayers of this 
country.
  We have had this vote in a slightly different way on two earlier 
occasions. The Wellstone amendment got 36 votes; the Kerry amendment 
got 30. I hope the amendment of the Senator from Iowa will be roundly 
defeated.
  I do applaud him, however, for recognizing the importance of 
nonseverability clauses in campaign finance debates.

                          ____________________