[Congressional Record (Bound Edition), Volume 147 (2001), Part 4]
[Senate]
[Pages 5139-5154]
[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 S. 27, which the clerk will 
report.
  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:

       Reed amendment No. 164, to make amendments regarding the 
     enforcement authority and procedures of the Federal Election 
     Commission.

  The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, was any time reserved for any closing 
discussion of the subject prior to the final vote prior to the 5:30 
vote on Monday?
  The ACTING PRESIDENT pro tempore. No time was reserved.
  Mr. McCONNELL. It seems to me, Mr. President, that both the 
proponents and the opponents might want maybe 10 minutes or so each. I 
will discuss that with Senator Dodd and proponents of the legislation 
and come back to that later.
  Mr. DODD. Mr. President, we may want to allocate an hour, I suspect, 
between the two authors of the bill and others who would want to use 5 
minutes or so to put in final statements.
  Mr. McCONNELL. Mr. President, we will discuss that off the floor 
because we will be running time on the budget resolution. That will be 
the main business next week. We certainly are not going to enter into 
an agreement that interrupts that in any major way. We will discuss 
that off the floor of the Senate.
  We are open for business, and we will be processing amendments 
throughout the morning.
  Mr. DODD. Mr. President, I ask unanimous consent to be added as a 
cosponsor of S. 27.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DODD. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Without objection, the pending amendment will be set aside.


                           Amendment No. 165

  Mr. McCAIN. I send an amendment to the desk.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain] proposes an amendment 
     numbered 165.

  Mr. McCAIN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment reads as follows:

       On page 25, beginning with line 23, strike through line 2 
     on page 31 and insert the following:

     SEC. 214. COORDINATION WITH CANDIDATES OR POLITICAL PARTIES.

       (a) In General.--
       (1) Coordinated expenditure or disbursement treated as 
     contribution.--Section 301(8) of the Federal Election 
     Campaign Act of 1971 (2 U.S.C. 431 (8)) is amended--
       (A) by striking ``or'' at the end of subparagraph (A)(i)--
       (B) by striking ``purpose.'' in subparagraph (A)(ii) and 
     inserting ``purpose;'';
       (C) by adding at the end of subparagraph (A) the following:
       ``(iii) any coordinated expenditure or other disbursement 
     made by any person in connection with a candidate's election, 
     regardless of whether the expenditure or disbursement is for 
     a communication that contains express advocacy;
       ``(iv) any expenditure or other disbursement made in 
     coordination with a National committee, State committee, or 
     other political committee of a political party by a person 
     (other than a candidate or a candidate's

[[Page 5140]]

     authorized committee) in connection with a Federal election, 
     regardless of whether the expenditure or disbursement is for 
     a communication that contains express advocacy.''.
       (2) Conforming amendment.--Section 315(a)(7) of the Federal 
     Election Campaign Act of 1971 (U.S.C. 441a(a)(7)) is amended 
     by striking subparagraph (B) and inserting the following:
       ``(B) a coordinated expenditure or disbursement described 
     in--
       ``(i) section 301(8)(C) shall be considered to be a 
     contribution to the candidate or an expenditure by the 
     candidate, respectively; and
       ``(ii) section 301(8)(D) shall be considered to be a 
     contribution to, or an expenditure by, the political party 
     committee, respectively; and''.
       (b) Definition of Coordination.--Section 301(8) of the 
     Federal Election Campaign Act of 1971 (2 U.S.C. 431(8)), as 
     amended by subsection (a), is amended by adding at the end 
     the following:
       ``(C) For purposes of subparagraph (A)(iii), the term 
     `coordinated expenditure or other disbursement' means a 
     payment made in concert or cooperation with, at the request 
     or suggestion of, or pursuant to any general or particular 
     understanding with, such candidate, the candidate's 
     authorized political committee, or their agents, or a 
     political party committee or its agents.''
       (c) Regulations by the Federal Election Commission.--
       (1) Within 90 days of the effective date of the 
     legislation, the Federal Election Commission shall promulgate 
     new regulations to enforce the statutory standard set by this 
     provision. The regulation shall not require collaboration or 
     agreement to establish coordination. In addition to any 
     subject determined by the Commission, the regulations shall 
     address:
       (a) payments for the republication of campaign materials;
       (b) payments for the use of a common vendor;
       (c) payments for Communications directed or made by persons 
     who previously served as an employee of a candidate or a 
     political party;
       (d) payments for Communications made by a person after 
     substantial discussion about the communication with a 
     candidate or a political party;
       (e) the impact of coordinating internal communications by 
     any person to its restricted class has on any subsequent 
     ``Federal Election Activity'' as defined in Section 301 of 
     the Federal Election Campaign Act of 1971.
       (2) The regulations on coordination adopted by the Federal 
     Election Commission and published in the Federal Register at 
     65 Fed. Reg. 76138 on December 6, 2000, are repealed as of 90 
     days after the effective date of this regulation

  Mr. McCAIN. Mr. President, this is an amendment on coordination. We 
have been trying now for 2 weeks to reach an agreement. We have come a 
long way with the hard work of both staffs and a lot of other people 
involved. We have narrowed the gap from our original language, which 
all agreed was not satisfactory to what we believe is a reasonable 
compromise.
  Basically, we are talking about any coordinated expenditure or other 
disbursement, means of payment made in concert or in cooperation with, 
at the request or suggestion of or pursuant to any general or 
particular understanding with such candidate, candidate's authorized 
political committee, or their agents or political party or its agents.
  We are talking about how we can prevent what is really in major 
circumvention of the intent--in fact, in my view, the letter of the 
law--and that is to coordinate soft money, which means that additional 
funds are funneled into political campaigns on behalf of candidates.
  Mr. President, the amendment states:

       Within 90 days of the effective date of the legislation, 
     the Federal Election Commission shall promulgate new 
     regulations to enforce the statutory standards set by this 
     provision. The regulation shall not require collaboration or 
     agreement to establish coordination.

  That is an important point in this amendment.

       In addition to any subject determined by the Commission, 
     the regulation shall address (a) payment for the 
     republication of campaign materials, (b) payment for the use 
     of common vendor, (c) payments for communications directed or 
     made by persons who previously served as an employee of a 
     candidate or a political party, (d) payments for 
     communications made by a person after substantial discussion 
     about the communication with a candidate or a political 
     party.
       The impact of coordinating internal communications by any 
     person to its restricted class has any subsequent ``Federal 
     election activity'' as defined in section 301 of the Federal 
     Election Campaign Act of 1971.

  What we are trying to do is allow legitimate communication within 
organizations, whether they be unions or whether they be organizations 
such as the National Rifle Association, National Right to Life, or any 
other organization--protect their legitimate right to communicate and, 
at the same time, prevent the so-called coordination which has been the 
explosion and exploitation of the loophole which has allowed huge 
amounts, hundreds of millions of dollars, literally, of funds to flow 
into a political campaign.
  I think it is a very legitimate compromise. It favors neither one 
side nor the other. Again, I would like to emphasize, the present 
language in the bill is not satisfactory, as viewed by both sides. I 
hope that this is far more satisfactory, if not totally satisfactory, 
language so we can enforce the law and at the same time not prevent any 
organization from legitimate communication within that organization.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Wisconsin is 
recognized.
  Mr. FEINGOLD. Mr. President, I am pleased to support this amendment. 
It would replace section 214 of the McCain-Feingold bill concerning 
coordination. Section 214 was designed to override an FEC regulation 
issued in December 2000 and scheduled to become effective soon that 
many observers of campaigns who are concerned about evasions of the law 
think is far too narrow to cover what really goes on in campaigns.
  Senators McCain, Levin, Durbin, and I wrote the FEC during the 
rulemaking and expressed our concern about the overly narrow 
interpretation of the law that the FEC had accepted. But almost from 
the very first day we introduced the bill, we have heard from people 
about this provision, and what we have heard has not been pretty. It is 
clear that the provision was not well drafted. It caught what we wanted 
to catch--groups coordinating activities with candidates without a 
specific agreement concerning a specific ad or other communication, but 
it also caught much more, including perhaps legitimate conversations 
between Members of Congress and groups about legislation without 
touching on a campaign.
  I committed to these groups and to my colleagues who expressed 
concern we would address the problems with 214, and we have with this 
amendment. But this amendment simply defines ``coordination'' in a 
general way, using language from current law and language from the 
Supreme Court opinion in the Colorado Republican case that came down in 
1996.
  Then the amendment instructs the FEC to do a new rulemaking, to 
interpret and enforce this new and admittedly general statutory 
provision. The amendment, therefore, gives some guidance to the FEC as 
to what issues it should address, without actually dictating the 
result.
  I think this is a reasonable solution to a difficult problem. I thank 
all the Senators and staff who have been involved in working out this 
amendment.
  There is one thing I want to make very clear and reiterate: While 
this amendment instructs the FEC to consider certain issues in the new 
rulemaking, it doesn't require the FEC to come out any certain way or 
come to any definite conclusion one way or another.
  Of course, I also want to note that the Senator from Kentucky has 
repeatedly said this change is being made at the behest of organized 
labor. That is not true. It is true that labor didn't like the original 
214, but neither did a lot of other groups, including the Christian 
Coalition and the National Right to Life Committee.
  I ask unanimous consent that the letters from these groups that 
contacted us and criticized section 214 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [E-mail from National Right-to-Life]

       Here are some of the key ways in which the McCain-Feingold 
     bill (S. 27) violates First Amendment protections for groups 
     that engage in free speech about politicians and communicate 
     with elected officials and their staffs;

[[Page 5141]]

       Coordination Traps: Under current law, ``coordination'' 
     between a ``candidate'' and a group is established only when 
     there is an actual prior communication about a specific 
     expenditure for a specific project which results in the 
     expenditure being under the direction or control of a 
     candidate, or which causes the expenditure to be made based 
     upon information about the candidate's needs or plans 
     provided by the candidate. But S. 27 (Section 214) would 
     redefine ``coordination'' in extremely expansive terms, to 
     include (for example) mere discussion of elements of a 
     candidate's ``message'' (whatever that is) any time during a 
     two-year period. Thus, if early on Congress representatives 
     of six groups met with Senator Doe to discuss what language 
     they, and he, will use to collectively promote Doe's landmark 
     bill to ban widgets, and Doe subsequently campaigns in part 
     on his leadership on the widget-ban issue, all six groups 
     arguably are ``coordinated'' with Doe.
       Once such so-called ``coordination'' is established, the 
     ``coordinated'' organizations are flatly prohibited from 
     spending money on any public communications deemed to be ``of 
     value'' to Senator Doe--by any media, at any time of the 
     year. For example, a group's literature promoting the widget-
     ban bill could be considered to be ``of value'' to Doe, even 
     if Doe's name is not mentioned, if it is disseminated to his 
     constituents. Moreover, even if these organizations have 
     connected PACs, those PACs would be prohibited from engaging 
     in independent expenditures on Doe's behalf of more than 
     $5,000.
       Under Section 214, ``coordination'' is also triggered by 
     the mere sharing (by a ``candidate'' and a group or person) 
     of certain vendors of ``professional services'' during a two-
     year period, including ``polling, media advice, fundraising, 
     campaign research, political advice, or direct mail services 
     (except for mailhouse services).''
       ``Electioneering Communications'': Section 201 applies 
     additional restrictions to so-called ``electioneering 
     communications,'' defined to cover TV and radio 
     communications that merely mention the name of a federal 
     politician, during ``pre-election'' periods, which include 
     30-day pre-primary periods that begin as early as February of 
     each even-numbered year, as well as a 60-day period before a 
     general election. For example, under the bill, an 
     organization would engage in an ``electioneering 
     communication'' if it purchased a radio ad within 30 days of 
     a primary that said no more than, ``Urge [Congressman X] to 
     vote against [or ``in favor of''] the McCain-Feingold bill.'' 
     The bill flatly prohibits such ``electioneering 
     communications'' by unions and by corporations, including 
     for-profit business corporations, trade associations, 
     veterans' groups, and organizations that hold 501(c)(3) 
     status from the IRS. There is a narrow ``exception'' to the 
     ban: corporations that hold 501(c)(4) or 527 status from the 
     IRS would be permitted to pay for ``electioneering 
     communications,'' but only by setting up a ``segregated 
     fund,'' sort of a quasi-PAC, which could include no corporate 
     or union contributions or business proceeds. The names of 
     donors of over $1,000 to this quasi-PAC would be reported to 
     the government and placed in the public domain.
       Advance Notice Requirements: The ``disclosure'' provisions 
     (for example, Section 202 and Section 212) include 
     requirements that ``electioneering communications'' and 
     independent expenditures be reported as soon as any contract 
     is signed for the communication--which would be, in many 
     cases, weeks in advance of the actual broadcasting of an ad. 
     Such an advance notice requirement might be a boon to some 
     powerful officeholders--an incumbent governor seeking a 
     Senate seat, for example--who could then bring pressure to 
     bear on broadcasters to refuse to sell airtime for the ads, 
     or to back out. But under the First Amendment, Congress lacks 
     authority to demand that NRLC declare in advance when and 
     where we intend to utter a politician's name to the public, 
     just as it lacks authority to utter a politician's name to 
     the public, just as it lacks authority to impose such a 
     burden on newspaper editorial boards.
       Endorsements by Members of Congress: Section 101 of S. 27 
     would prohibit members of Congress from endorsing the 
     fundraising efforts of advocacy groups that use any part of 
     the money for any communication to the public--by any medium, 
     at any time of the year--that ``promotes,'' ``supports,'' 
     ``attacks'' or ``opposes'' a member of Congress (or other 
     ``candidate''). This obviously would cover many of the 
     routine communications that issue-oriented groups use to 
     promote pending legislation. The following statement, for 
     example, would certainly be considered an ``attack'' by some: 
     ``Senator McCain has introduced an awful bill that would 
     restrict the right of pro-life groups to communicate with the 
     public about the voting records of members of Congress. 
     Please write to Senator Jones and urge him to oppose the 
     bill.'' Likewise, ``Senator Baucus has voted to keep the 
     brutal partial-birth abortion method legal, but the bill is 
     coming up again soon. Please call Senator Baucus and urge him 
     to support the bill this time.''
                                  ____


               [From the Christian Coalition of America]

Protect Free Speech--Oppose H.R. 380, the Shays-Meehan Campaign Finance 
                                  Bill

                                                February 27, 2001.
       Dear Representative: The Christian Coalition of America 
     strongly opposes H.R. 30, the Shays-Meehan campaign finance 
     bill. H.R. 380 contains numerous unconstitutional provisions 
     which are in direct opposition to Supreme Court rulings which 
     have repeatedly upheld the First Amendment right of citizen 
     groups, like the Christian Coalition of America, to educate 
     the public on where officeholders and candidates stand on the 
     issues. Because this legislation could effectively put our 
     voter guides, as well as other voter education and issue 
     advocacy activities at serious risk, we urge you to vote 
     against the Shays-Meehan bill, as well as to actively oppose 
     it on the House floor.
       One of the most egregious of the unconstitutional 
     provisions contained in H.R. 380 applies year-round during 
     the entire two-year election cycle (or six-year cycle with 
     respect to Senators). Section 206 contains a broad definition 
     of ``coordination'' between a candidate and an outside 
     group--so broad that if a representative or an organization 
     were to discuss with an officeholder his ``message'' on a 
     legislative issue, such as partial-birth abortion, anytime 
     during the two-year election cycle, and the officeholder were 
     to later campaign in the issue, the organization would be 
     viewed as having ``coordinated'' with the officeholder. The 
     organization could then be accused of violating the federal 
     election laws if it were to disseminate a communication to 
     the public that is deemed to be ``of value'' to the 
     officeholder in his reelection campaign, even if it did not 
     mention the officeholder by name.
       Section 206 also broadens the definition of 
     ``coordination'' to the point where if an incorporated 
     organization making a voter education expenditure and a 
     campaign were to merely use the services of the same 
     fundraiser or media advisor--without having consulted or 
     coordinated in any way--the expenditure would be considered 
     an illegal contribution to the candidate's campaign if it 
     were deemed to be ``of value'' to the campaign. This is what 
     some have called, a form of ``guilt by association.''
       And, as a catchall definition of ``coordination,'' the bill 
     contains a vaguely worded restriction on payments ``made by a 
     person in cooperation, consultation, or concert with, . . . 
     or pursuant to any general or particular understanding with a 
     candidate'' or candidate's agent.
       Another section of the bill, Section 201, would prohibit 
     incorporated organizations from funding television or radio 
     communications to the public which mention the name of a 
     candidate within 30 days of a primary or 60 days of a general 
     election. This proposed restriction is blatantly 
     unconstitutional. The Supreme Court has repeatedly protected 
     the First Amendment right of like-minded citizens to educate 
     the public on issues and where the officeholders and 
     candidates stand on the issues. In Buckley v. Valeo (1976) 
     and its progeny, the Supreme Court has made clear that issue 
     advocacy (discussion on an issue in the public realm without 
     expressly advocating the election or defeat of a candidate) 
     is protected under the First Amendment from government 
     regulation. Yet, under Section 201 of the Shays-Meehan bill, 
     an organization such as the Christian Coalition of America, 
     would be prohibited from disseminating a broadcast 
     communication regarding an upcoming congressional vote within 
     60 days of an election, if the communication merely advised 
     constituents of the name of their elected representative who 
     would be casting that vote. The communication would also be 
     banned if it merely mentioned the names of the sponsors of 
     the bill, such as a reference to the ``Shays-Meehan'' bill.
       But the Shays-Meehan bill goes even further in bringing 
     issue advocacy by private citizen organizations under federal 
     government regulation. The United States Supreme Court and 
     numerous other federal courts, have repeatedly protected 
     issue advocacy and voter education from government regulation 
     unless it ``expressly advocates'' the election or defeat of a 
     clearly-identified candidate (i.e., ``vote for,'' ``defeat,'' 
     etc.). This clear test ensures that the speaker will know 
     whether they are complying with the law. As the Supreme Court 
     explained in Buckley v. Valeo, the lack of such a clear 
     distinction `'offers no security for free discussion. In 
     these conditions it blankets with uncertainty whatever may be 
     said. It compels the speaker to hedge and trim.'' Yet the 
     Shays-Meehan bill would do just that.
       Section 201 would eliminate this bright-line protection set 
     forth by the Supreme Court and redefine ``express advocacy'' 
     to mean ``expressing unmistakable and unambiguous support for 
     or opposition in one or more clearly identified candidates 
     when taken as a whole and with limited reference to external 
     events.'' This would take the determination beyond words of 
     support or opposition (which is currently the standard in 
     order to protect issue advocacy), to instead move to an 
     examination of the overall context of a communication with 
     respect to a candidate or type of candidate (such as pro-life 
     candidates). Under this vague definition, a communication 
     that contains any negative or positive commentary about an 
     officeholder/candidate's positions or voting record, might 
     become the subject of a complaint to

[[Page 5142]]

     the Federal Election Commission (FEC). This vague definition 
     (in similar language) has been put forth by the Federal 
     Election Commission in regulations and been rejected in 
     court. Congress should reject it as well.
       Lastly, the Shays-Meehan bill purports to contain an 
     ``exception'' for voter guides. But under this exception, an 
     organization could not verbally clarify the voting record or 
     position of an officeholder or candidate for purposes of 
     compiling the voter guide. Moreover, the ``exception'' 
     prohibits the voter guide from containing ``words that in 
     context can have no reasonable meaning other than to urge the 
     election or defeat of one or more clearly identified 
     candidates,'' as well as requiring that the voter guide 
     ``when taken as a whole . . . not express unmistakable and 
     unambiguous support for or opposition'' to a candidate--vague 
     wording that would leave organizations that issue voter 
     guides constantly at risk of being the subject of an FEC 
     complaint and investigation. Furthermore, organizations that 
     wish to issue voter guides would still have to fear violating 
     the broad ``coordination'' prohibitions elaborated on at the 
     beginning of this letter.
       In light of the serious First Amendment ramifications that 
     this bill would have on the week of the Christian Coalition 
     of America, as well as on our nation's ability to discuss and 
     debate issues, we urge you to vote against H.R. 380, the 
     Shays-Meehan campaign finance bill.
           Sincerely,
                                           Susan T. Muskett, J.D.,
                                    Director, Legislative Affairs.

  The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
  Mr. DODD. Mr. President, I rise in support of this amendment as well. 
I think this has been worked out carefully. I commend the Members and 
staffs who worked on this amendment. This is in very sound shape. It 
avoids the potential problems of being overly broad or too vague with 
respect to the language, which would expose too many honest and good 
people who want to be involved in the political process from 
allegations of criminality. None of us want that to occur. This 
amendment is worthwhile.
  Mr. President, if I might, since we are going to be a few minutes 
before we vote on this, I want to take a couple minutes and address 
another matter that may come up this morning which deserves some 
attention. That is what I see as one of the glaring problems still with 
the bill as a result of an amendment we adopted last week dealing with 
the so-called millionaires loophole. I voted against that amendment 
because I thought it was unnecessary. But it is even more so by the 
events over the past week, as we have adopted amendments now which have 
increased the hard dollar limits by 100 percent. Thus, the need for 
providing some additional resources to so-called less wealthy 
candidates is certainly far less than it was a week ago.
  As we all recall, last Tuesday the Senate adopted amendment No. 115 
offered by Senators Domenici, DeWine, Durbin, McConnell, and others. I 
opposed the amendment because it did not appear to me to be reform. It 
added more money to the system and did so in a way to protect 
nonwealthy incumbents with substantial campaign treasuries. The 
amendment that may be offered later this morning would intend to close 
what I think is an unintended loophole in this language.
  The Domenici amendment addressed the situation of a wealthy candidate 
financing his or her own election with personal resources. It granted 
more generous contribution limits to nonwealthy opponents. It sounds 
reasonable enough, but in the case of a nonwealthy incumbent, the 
amendment ignored the substantial resource that such an incumbent may 
have at his or her disposal in their campaign committees' accounts or 
treasuries.
  The amendment that may be offered provides that the amount of such 
campaign balances must be taken into account before a wealthy 
candidate's contributions to his or her own campaign trigger the higher 
contribution limits for the incumbent.
  Last Tuesday, the authors of this amendment described the situation 
of a wealthy candidate financing his or her own election as a 
constitutionally protected loophole. But my colleagues' solution, as 
adopted last week, unwittingly opens a more insidious loophole. One 
that protects incumbents and, more precisely, incumbents' campaign 
treasuries, from a wealthy candidate.
  In describing the purpose of their amendment, which I opposed, my 
colleague contended that the Buckley decision created a substantial 
disadvantage for opposing candidates who must raise campaign funds 
under the current fundraising limitations.
  That was last Tuesday. This week we adopted the Thompson-Feinstein 
amendment which doubled the individual hard money contribution limits 
and indexed those limits for future inflation.
  The Thompson-Feinstein amendment also doubled the contribution amount 
a Senate campaign committee can make directly to candidate to $35,000 
per election cycle and indexed it for inflation also.
  In a period of 1 short week, we potentially gave an incumbent facing 
a wealthy challenger an additional $17,500, plus an additional $4,000 
per couple per election. So the substantial disadvantage that 
incumbents supposedly faced last Tuesday has been substantially 
eliminated by the actions we took during this week on the bill.
  Even so, the entire premise of the Domenici amendment that somehow 
incumbents need protection from wealthy opponents ignores one simple 
fact: Many nonwealthy opponents are actually incumbents sitting on 
healthy campaign accounts. Those campaign war chests can be equal to or 
greater than the personal funds being used by a so-called wealthy 
opponent.
  For example, based on FEC disclosures, some of my colleagues facing 
reelection next year are sitting on campaign accounts with cash 
balances ranging from $100,000 to in excess of $3 million.
  Surely my colleagues cannot be serious that with $1 or $2 million 
sitting in their treasuries, and the advantages of incumbency we have 
automatically, including increased hard money limits, that they somehow 
need protection from a candidate who decides to put $600,000 into their 
own race.
  For example, take a State the size of mine, a State with a little 
over 3 million people. The threshold amount would be $270,000. A 
wealthy candidate who contributed or spent $600,000 of his or her own 
money in that race would trigger contribution limits three times the 
normal for that incumbent, or $12,000 per individual per election, or 
$24,000 per couple. If you double that for primaries, as well as an 
election, you actually get $48,000. That is a substantial increase from 
where we were a week ago.
  If that same incumbent has a war chest of $1 million, he actually has 
a cash balance of $400,000 more than the wealthy challenger.
  Are we really serious that the incumbent in that situation is somehow 
disadvantaged--should he or she be able to raise $24,000 from a couple 
until the difference in the balances are reached? Yet that is exactly 
what the Domenici amendment, which I opposed, will provide.
  Although my colleagues have argued that the tiered trigger system of 
the Domenici amendment is proportional, and that proportionality levels 
the playing field, that is simply not the case when a nonwealthy 
candidate is an incumbent.
  In the case of a nonwealthy incumbent, the provision does anything 
but level the playing field. It becomes essentially an incumbent 
protection provision.
  The amendment that was adopted last week simply goes too far under 
the present circumstances.
  The amendment that may be offered by Senator Durbin, myself, and 
others restores some balance between the incumbents with healthy 
campaign treasuries and individuals with personal wealth. It requires 
that the personal wealth of an opponent be offset by the amount of 
campaign treasury funds of a nonwealthy incumbent before any trigger of 
benefits to that incumbent occurs.
  This amendment effectively adds the amount of the cash-on-hand 
balance reserves of an incumbent's war chest into the calculation of 
the opposition personal funds amount. So in my example, until the 
``wealthy'' challenger spent $1 million in personal funds, that 
``poor'' incumbent with the war chest would not get the advantage of 
the increased limits.
  Just as my colleague's amendment last week was an attempt to correct

[[Page 5143]]

the unintended effects of the Buckley decision, this amendment, which I 
believe will be offered, corrects the unintended effects of the 
amendment adopted last week; namely, protecting incumbents from wealthy 
opponents.
  When that amendment is offered, I urge my colleagues to support it.


                           Amendment No. 165

  Mr. McCONNELL. Mr. President, is the pending amendment the McCain 
amendment on coordination?
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. McCONNELL. Mr. President, unfortunately, the McCain amendment 
coordination provision lets big labor continue to coordinate its ground 
game with the Democrats. As you know, I have been predicting for 2 
weeks that there would be an effort to water down provisions in the 
bill that were offensive to big labor.
  With all due respect to the author of the amendment, the intent is 
quite clear: to mitigate the damage that has caused concern among those 
in organized labor about this bill. I note there is apparently not 
enough concern to get many Democratic votes against on final passage 
Monday, but they are very upset about the coordination provisions of 
this bill, thus the reason for the amendment that has been sent to the 
desk.
  Let me make it clear, the coordination provision lets big labor 
continue to coordinate its ground game with the Democratic Party. It 
does this by changing the ``concept of coordinated activity'' that 
includes the union in-kind activity to ``coordinated expenditures or 
disbursements'' which are legal terms of art that do not encompass in-
kind contributions. This new coordination provision is still 
unconstitutional and will result in Government witch hunts because it 
does not require actual collaboration or agreement to have a finding of 
coordination. This is in direct contravention to Colorado 1 and will 
result in a lengthy onerous investigation of citizens groups.
  Mr. President, there will be a need to have a rollcall vote on the 
McCain amendment at 11 a.m. I do not know whether this is the 
appropriate time to request that rollcall vote or not.
  The ACTING PRESIDENT pro tempore. If the Senator wishes to request a 
vote.
  Mr. McCONNELL. Mr. President, I request the yeas and nays on the 
McCain amendment.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. BOND. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           Amendment No. 166

  Mr. BOND. Mr. President, I send an amendment to the desk.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond] proposes an amendment 
     numbered 166.

  Mr. BOND. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

    (Purpose: To amend the Federal Election Campaign Act of 1971 to 
increase the penalties imposed for making or accepting contributions in 
 the name of another and to prohibit foreign nationals from making any 
                    campaign-related disbursements)

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

     SEC. 305. INCREASE IN PENALTIES IMPOSED FOR VIOLATIONS OF 
                   CONDUIT CONTRIBUTION BAN.

       (a) Increase in Civil Money Penalty for Knowing and Willful 
     Violations.--Section 309(a) of the Federal Election Campaign 
     Act of 1971 (2 U.S.C. 437g(a)) is amended--
       (1) in paragraph (5)(B), by inserting before the period at 
     the end the following: ``(or, in the case of a violation of 
     section 320, which is not less than 300 percent of the amount 
     involved in the violation and is not more than the greater of 
     $50,000 or 1000 percent of the amount involved in the 
     violation)''; and
       (2) in paragraph (6)(C), by inserting before the period at 
     the end the following: ``(or, in the case of a violation of 
     section 320, which is not less than 300 percent of the amount 
     involved in the violation and is not more than the greater of 
     $50,000 or 1000 percent of the amount involved in the 
     violation)''.
       (b) Increase in Criminal Penalty.--
       (1) In general.--Section 309(d)(1) of such Act (2 U.S.C. 
     437g(d)(1)) is amended by adding at the end the following new 
     subparagraph:
       ``(D) Any person who knowingly and willfully commits a 
     violation of section 320 involving an amount aggregating 
     $10,000 or more during a calendar year shall be fined, or 
     imprisoned for not more than 2 years, or both. The amount of 
     the fine shall not be less than 300 percent of the amount 
     involved in the violation and shall not be more than the 
     greater of $50,000 or 1000 percent of the amount involved in 
     the violation.''.
       (2) Conforming amendment.--Section 309(d)(1)(A) of such Act 
     (2 U.S.C. 437g(d)(1)(A)) is amended by inserting ``(other 
     than section 320)'' after ``this Act''.
       (c) Mandatory Referral to Attorney General.--Section 
     309(a)(5)(C) of such Act (2 U.S.C. 437(a)(5)(C)) is amended 
     by inserting ``(or, in the case of a violation of section 
     320, shall refer such apparent violation to the Attorney 
     General of the United States)'' after ``United States''.
       (d) Effective Date.--The amendments made by this section 
     shall apply with respect to violations occurring on or after 
     the date of enactment of this Act.

  Mr. BOND. Mr. President, we talked about imposing a lot of new laws 
and new provisions in some areas where I think we may not be doing what 
we wish to achieve. We are in this bill proposing to take political 
parties out of the campaign process which inevitably is going to shift 
money into other channels. One of the things I don't think we have 
adequately considered is what we do about people who have violated 
existing laws. Certainly, to the extent I have heard concerns about 
campaign finance, it has been about the failure to provide adequate 
penalties for those who violate the laws that are already on the books.
  Under current campaign finance laws, there is no meaningful 
punishment of campaign violators. Over the last several years, we have 
had hearings, investigations and read about key figures in campaign 
scandals only to learn later that they walk. It is small wonder that 
abuse occurs on the scale that we have recently witnessed. It is a 
misdemeanor offense to make a campaign contribution in the name of 
another person, knowingly permit your name to be used for a 
contribution or knowingly accept a contribution made in the name of 
another, in other words make an illegal contribution through a conduit 
(2 U.S.C. 441f).
  Despite this clear prohibition, it came to light that during the 1996 
presidential campaign millions of dollars in illegal donations from 
foreign nations were funneled into party and campaign coffers through 
conduit contributors, some as outrageous as nuns and other people of 
worship. Despite these outrageous abuses, illegal contributions 
totaling hundreds of thousands of dollars in some cases flowed with 
impunity. Under the circumstances, the punishments handed out to those 
caught red-handed can barely be considered slaps on the wrist.
  As simply a misdemeanor offense, those intent on corrupting the 
process do not fear the consequences. Despite the scale of some of the 
abuses, the offense is rarely prosecuted. When it is, the offenders are 
handed minimal fines and no jail time. The message from the so-called 
prosecutions is that there is no threat of jail time for those who 
break campaign finance laws. If it feels good, do it.
  As the gross abuses of the 1996 presidential campaign came to light, 
we heard from the perpetrators of the abuses themselves that what was 
needed was not enforcement of the law but new laws and reform of the 
campaign finance system. Despite their gross indifference to the law, 
it appears they got their wish. We are here debating more laws with no 
discussion about increasing penalties and cracking down on law 
breakers.
  If we are truly serious about reforming the system, we must crack 
down on the lawbreakers. Abusers must be punished accordingly or no new 
law is going to make a difference in cleaning up the system.

[[Page 5144]]

  Violators have to fear punishment or they will continue to violate 
the law as they have abused existing law. There is no reason to think 
that yesterday's lawbreakers will not break tomorrow's laws unless they 
understand there are consequences. New laws cannot be effective if 
``teeth'' are not put in the law. Without this change, ``reform'' talk 
is cheap and just talk.
  My amendment would make it a felony to knowingly make conduit 
contributions, knowingly permit your name to be used for such a 
contribution or knowingly accept a contribution made in the name of 
another. The amendment does not change the conditions of the underlying 
offense, but by making it a felony, it adds some ``teeth'' to the law. 
Maybe the Johnny Chungs and the Charlie Tries of this world will 
understand there are consequences for their actions and no longer 
violate campaign finance laws with impunity.
  As a felony offense, violators will be subject to either jail time or 
a stiff fine, or perhaps both. Fines will be increased dramatically to 
a minimum of not less than 300 percent of the amount involved. The 
amendment requires, not suggests, that the FEC refer these cases to the 
Justice Department. Finally, it broadens the prohibition on donations 
from foreign nationals, ensuring that clever lawyers won't be able to 
move funds to accounts like ``redistricting'' or others. There is a 
prohibition on donations from foreign nationals. This takes away an 
exploitable loophole.
  By taking this step, Congress will be sending a clear message that it 
considers the funneling of illegal campaign contributions a serious 
offense to be punished accordingly.
  It becomes an offense that prosecutors can use in pursuing a case. 
Currently there is little incentive for a suspect to cooperate if they 
are threatened only with a misdemeanor. There is less incentive for 
busy prosecutors to dedicate the time and resources to prosecute this 
offense if it remains a misdemeanor. This amendment gives prosecutors 
something they can use.
  This amendment goes after law-breaking contributors to any candidate 
of any party. Contributors to all parties are required by law to 
disclose their donations properly. Concealing the source of a donation 
is illegal. If you do it, you can expect punishment. Similar 
legislation has been introduced on the House side and has strong 
bipartisan support.
  We in Congress should be very concerned about the growing willingness 
we have seen in recent cycles for people to break the law apparently 
with impunity. We should be further concerned with the meaningless 
punishments handed down and the signal it sends that we will tolerate 
corruption.
  According to news accounts, what has become of these notorious 
abusers of our campaign finance laws?
  Yah Lin ``Charlie'' Trie was convicted of funneling over $1 million 
in conduit contributions during the 1996 cycle, a large percentage of 
the money was traced to Macau. For this, Mr. Trie was sentenced on 
November 1, 1999 to 3 years probation and 4 months home detention and 
fined $5,000--but he received no jail time.
  Mr. Johnny Chung funneled $300,000 he received from a general in the 
Chinese Military Intelligence Agency and made another $350,000 in 
conduit contributions. This individual who brazenly said ``the White 
House is like a subway, you have to put in coins to open the gate,'' 
was sentenced to 3,000 hours of community service for bank fraud, tax 
evasion, and his role in aiding donations to the Clinton campaign, but 
he received no jail time.
  Mr. President, 3,000 hours of community service--if they make enough, 
that ought to be a good year's work for anybody. They ought to be 
willing to do community service not as a punishment but as their 
contribution.
  Next, John Huang pleaded guilty on August 12, 1999, to arranging 
illegal political contributions from overseas. It was found that he 
arranged over $1 million in illegal contributions, primarily with money 
from Indonesia. He was fined $10,000 and sentenced to 1 year probation 
and 500 hours of community service but no jail time.
  I suspect that whatever source provided him the million dollars 
probably helped him cover the amount of that fine. And 500 hours of 
community service, well, that would be a nice year's work.
  Maria Hsia, who funneled over $100,000 through nuns and monks at a 
temple was tried and convicted of five counts. She was sentenced on 
February 6 of this year to a whopping 90 days--90 days--of home 
confinement--that is really tough; you have to stay home for 90 days--
250 hours of community service, 3 years of probation and she was fined 
a whopping $5,000. The ``home confinement,'' of course, permits Ms. 
Hsai to work each day, care for her elderly parents and attend 
religious services--but no jail time. So you can't really say this is 
an onerous penalty.
  Billionaire James Riady agreed on January 11 of this year to pay an 
$8.6 million fine and plead guilty to unlawfully reimbursing donors to 
the 1992 campaign of President Bill Clinton--but he will serve no jail 
time.
  But for a billionaire, $6 million is like me reaching in my wallet to 
buy lunch at the sandwich shop. Do you think that hurt him very much? I 
do not believe so. For $8.6 million, he has every incentive to come 
back and do his trick again. That is a small price to pay for being 
able to exercise inappropriate, unwarranted, and illegal influence on a 
campaign.
  Until this point, this body has focused exclusively on making it more 
difficult for candidates to raise money legally while remaining silent 
on blatant abuses. If we are to get serious about reform, at least we 
should go after those who are willing to break the law. If campaign 
violators refuse to respect the law, then maybe they will respect the 
threat of real, not meaningless, punishment. Congress needs to get 
tough and send a clear message that the days of tolerance for these 
illegal, unlawful, and improper practices are coming to an end. I urge 
my colleagues to adopt this very simple amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields the time?
  Mr. McCAIN addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I thank the Senator from Missouri.
  There is a great deal of redundancy in his amendment. We already bar 
foreign contributions and increase penalties in some areas. But I think 
the Senator from Missouri makes very valid points. I think his 
amendment probably addresses some very helpful areas. I am prepared to 
accept the amendment. I do not know about all Members yet, but we would 
like to run it by them and see if we can't get some agreement on the 
amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. McCONNELL. Would the Senator from Iowa withhold for just a 
moment? We have an amendment that is cleared. I would just like to 
process it if I could.
  The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, the pending amendment is the Bond 
amendment?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. McCONNELL. I ask unanimous consent it be temporarily set aside.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           Amendment No. 167

  Mr. McCONNELL. Mr. President, there is an amendment by Senator Hatch 
with regard to expedited review that has been cleared on both sides. I 
send that amendment to the desk and ask for its immediate 
consideration.
  The ACTING PRESIDENT pro tempore. The clerk will report.

[[Page 5145]]

  The assistant legislative clerk read as follows:

       The Senator from Kentucky [Mr. McConnell], for Mr. Hatch, 
     proposes an amendment numbered 167.

  Mr. McCONNELL. I ask unanimous consent reading of the amendment be 
dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

                 (Purpose: To provide expedited review)

       On page 38, after line 3, add the following:

     SEC. 403. EXPEDITED REVIEW.

       (a) Expedited Review.--Any individual or organization that 
     would otherwise have standing to challenge a provision of, or 
     amendment made by, this Act may bring an action, in the 
     United States District Court for the District of Columbia, 
     for declaratory judgment and injunctive relief on the ground 
     that such provision or amendment violates the Constitution. 
     For purposes of the expedited review provided by this section 
     the exclusive venue for such an action shall be the United 
     States District Court for the District of Columbia.
       (b) Appeal to Supreme Court.--Notwithstanding any other 
     provision of law, any order or judgment of the United States 
     District Court for the District of Columbia finally disposing 
     of an action brought under subsection (a) shall be reviewable 
     by appeal directly to the Supreme Court of the United States. 
     Any such appeal shall be taken by a notice of appeal filed 
     within 10 calendar days after such order or judgment is 
     entered; and the jurisdictional statement shall be filed 
     within 30 calendar days after such order or judgment is 
     entered.
       (c) Expedited Consideration.--It shall be the duty of the 
     District Court for the District of Columbia and the Supreme 
     Court of the United States to advance on the docket and to 
     expedite to the greatest possible extent the disposition of 
     any matter brought under subsection (a).

  Mr. HATCH. Mr. President, I am offering an amendment that will 
provide for expedited judicial review of the provisions of the McCain-
Feingold Bipartisan Campaign Finance Reform Act of 2001. Without this 
amendment, American citizens and public interest groups, among others, 
will be subject to controversial, unworkable, and in my mind, likely 
unconstitutional provisions that infringe free speech rights protected 
by the first amendment.
  Supporters of the bill should welcome this amendment as well. All of 
us, supporters and opponents alike, stand to gain by a prompt and 
definite determination of the constitutionality of many of the bill's 
controversial provisions.
  For those who oppose the bill, these controversial provisions pose 
imminent danger not only to individuals' rights to free speech, but 
also to our cherished two party system. Because the harm these 
provisions will cause is serious and irreparable, it is imperative that 
we afford the Supreme Court the opportunity to pass on the 
constitutionality of this legislation as soon as possible.
  The way the amendment works is simple, and I believe it should be 
noncontroversial. Those who challenge the constitutionality of the 
legislation must bring their case in the district court of the District 
of Columbia. Furthermore, only those who can show cognizable harm under 
the legislation will be permitted to bring a case. The district court, 
of course, has the authority to consolidate all the challenges brought 
against the legislation. To make certain that the district court 
considers the case promptly, my amendment directs the court to 
``expedite to the greatest possible extent the disposition of [the] 
matter.''
  My amendment also provides for an expedited appeal of the district 
court's ruling to the Supreme Court. The hearing of this appeal by the 
Supreme Court, however, follows the customary procedures for a writ of 
certiorari--that is, the Supreme Court has the discretion whether or 
not to review the case. If the Supreme Court declines to review the 
ruling, then the district court's ruling would stand.
  Now some may complain that with this approach we are bypassing the 
Circuit Courts of Appeal. To them I say this: Such a procedure is not 
unprecedented. Indeed, the Supreme Court's own rules allow for such a 
procedure when it is authorized by law or when the case is of such 
imperative public importance as to justify deviation from normal 
appellate practice. I think we can all agree that the issues presented 
by this legislation meet that threshold.
  I hope that my colleagues--whether they support or oppose the 
underlying legislation--will support my amendment. It is in all of our 
interests to have the prompt, authoritative, and final resolution of 
these issues that an expedited appeal will provide.
  Mr. FEINGOLD. Mr. President, this amendment is acceptable to those 
who support this bill because we agree with the Senator from Utah that 
questions about its constitutionality should be resolved promptly. A 
procedure similar to the one set up in this amendment was used when the 
1974 act was challenged, and although not all of us agree with 
everything that the Supreme Court decided in the Buckley case, the 
process served the country relatively well.
  Let me make just a few points of clarification. First, the amendment 
makes no change in what would otherwise be the law on the issue of who 
has legal standing to sue. The text of the amendment is absolutely 
clear on that point. Second, as the Senator from Utah notes, the venue 
for actions challenging the constitutionality of the bill will be in 
the United States District Court for the District of Columbia, with 
direct appeal to the United States Supreme Court. The district court 
will have the power to consolidate related challenges into a single 
case.
  Finally, and most importantly, although the amendment provides for 
the expedition of these cases to the greatest possible extent, we do 
not intend to suggest that the courts should not take the time 
necessary to develop the factual record and hear relevant testimony if 
necessary. And we do believe that the Court should allow interested 
parties to intervene, or become amici curiae as was done in the 
litigation that led to the Buckley decision. This case will be one of 
the most important that the Court has heard in decades, with 
ramifications for the future of our political system for years to come. 
By expediting the case, we in no way want to rush the Court into making 
its decision without the benefit of a full and adequate record and the 
opportunity for all interested parties to participate.
  With that understanding, I support the amendment and I commend the 
Senator from Utah for thinking ahead to the inevitable legal challenges 
that await this bill and coming up with a fair and expeditious 
procedure to handle them.
  Mr. DODD. Mr. President, we have been able to work out the amendment 
offered by my colleague from Utah, Senator Hatch, with regard to an 
expedited review of the McCain-Feingold measure.
  While I strongly disagree with my colleague's conclusion that absent 
review, the citizens of this Nation will be subjected to 
unconstitutional provisions that infringe on speech, I do support the 
intent of this amendment. I believe that this measure, S. 27, is a 
balanced attempt to follow the requirements laid down in Buckley and 
the Shrink Missouri PAC cases. The Court has essentially invited 
Congress to express our will in this area, and the McCain-Feingold 
legislation does just that.
  My support for the Senator's amendment should in no way be read to 
suggest that I think there are provisions of this measure that are 
unconstitutional. To the contrary, I believe it will pass 
constitutional review. However, I understand the Senator's desire to 
put this question to the test in an expedited manner.
  This is not an unusual request for such far-reaching and important 
legislation. The purpose of this amendment is to provide expedited 
judicial review of this legislation. In this Senator's mind, this is a 
good idea. I am confident that the Supreme Court will ultimately uphold 
this legislation and it is in everyone's best interest to know that as 
soon as possible.
  But by saying that, however, I do not want to suggest that the Court 
should not take adequate time to review any such challenge. 
Furthermore, I am not suggesting that such an expedited review be 
conducted at the expense of allowing all interested parties to 
intervene in this matter in order to provide

[[Page 5146]]

assistance to the Court in its decision. This may be the first major 
effort to reform this Nation's campaign finance laws in nearly 25 years 
that becomes law, and there is a wealth of expertise on this issue in 
both Congress and the private sector which can be of immense assistance 
to the Court in its review.
  Finally, I express my appreciation to the Senator from Utah for his 
willingness to clarify that any such expedited challenge to this 
measure must be brought exclusively in the District Court for the 
District of Columbia.
  I urge the adoption of the amendment.
  Mr. McCONNELL. Mr. President, I believe we are ready to adopt it.
  Mr. DODD. Mr. President, there is no objection to the amendment on 
this side.
  The ACTING PRESIDENT pro tempore. Is there further debate on the 
amendment? The question is on agreeing to the amendment.
  The amendment (No. 167) was agreed to.
  Mr. DODD. I move to reconsider the vote.
  Mr. McCONNELL. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. McCONNELL. I yield the floor.


                           Amendment No. 168

  The PRESIDING OFFICER (Mr. Kyl). The Senator from Iowa.
  Mr. HARKIN. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Iowa [Mr. Harkin] proposes an amendment 
     numbered 168.

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

(Purpose: To add a nonseverability provision with respect to the ban on 
           soft money and the increase in hard money limits)

       On page 37, strike lines 15 through 24 and insert the 
     following:

    TITLE IV--NONSEVERABILITY OF CERTAIN PROVISIONS; EFFECTIVE DATE

     SEC. 401. NONSEVERABILITY OF CERTAIN PROVISIONS

       (a) In General.--Except as provided in subsection (b), if 
     any provision of this Act or amendment made by this Act, or 
     the application of a provision or amendment to any person or 
     circumstance, is held to be unconstitutional, the remainder 
     of this Act and amendments made by this Act, and the 
     application of the provisions and amendment to any person or 
     circumstance, shall not be affected by the holding.
       (b) Nonseverability of Prohibition on Soft Money of 
     Political Parties and Increased Contribution Limits.--If any 
     amendment made by section 101, or the application of the 
     amendment to any person or circumstance, is held to be 
     unconstitutional, each amendment made by sections 101 or 308 
     (relating to modification of contribution limits), and the 
     application of each such amendment to any person or 
     circumstance, shall be invalid.

  Mr. HARKIN. Mr. President, this is a very simple amendment. All it 
does is provide that if the soft money ban is struck down in the 
courts, then the hard money increases now included in the bill will 
also be taken out.
  During the debate on raising the hard money limits, we heard a lot of 
discussion about, if we are going to ban all the soft money, then we at 
least ought to raise the hard money limits. I happened to personally 
oppose that, but obviously I was on the losing side of that issue. So 
the hard money limits were raised. There is some question as to whether 
or not the ban on soft money is going to be upheld in the courts. There 
are those who say that it can withstand constitutional scrutiny; there 
are others who say it won't. I don't know. It is sort of a tossup on 
that one.
  All my amendment says is that if the courts strike down the ban on 
soft money, then the increase in hard money that we included will go 
back to the limits we now have in law. It is very simple. I don't know 
that I need to describe it any more than that.
  We would be a laughing stock if, in fact, the courts struck down the 
soft money ban so that now we have soft money and an increase in hard 
money. What kind of reform is that? Obviously, if the soft money ban is 
found to be constitutionally secure, then we have the increases in the 
hard money.
  That is all this amendment does. There is more I could say about how 
much people give in hard money, but that has already been discussed. I 
don't need to go through that. It would cast a bad light on reform if 
in fact the courts struck down the soft money ban so now we have soft 
money and more hard money. That would be the total antithesis of what 
we are trying to do here.
  That is what the amendment is. It is very simple. It is 
straightforward. Again, my amendment says, if the courts strike down 
the ban on soft money, then the increases we have put in here on hard 
money will go back to the levels we have had for the last 25 years.
  Mr. DODD. Will my colleague yield for a question?
  Mr. HARKIN. I am glad to yield.
  Mr. DODD. I think this is an amendment that makes some sense. He is 
absolutely correct. There is some question about the soft money 
constitutionality. If that ban is found to be unconstitutional, then 
the door is wide open again. As my colleague knows, while I supported 
the Thompson-Feinstein compromise, I did so reluctantly, having spoken 
out against the increases. I agree with my colleague on that point. I 
have some concerns over the so-called millionaires amendment as well 
which allows for an exponential increase in contributions if someone 
challenges us with personal wealth. I know that makes Members uneasy, 
but it allows for a factor as high as presently six times the hard 
dollar limits.
  Mr. HARKIN. That is correct.
  Mr. DODD. I don't know if his amendment includes reaching that 
provision. Even if we go back to the original hard dollar limits, we 
still include the millionaires which would allow those numbers to go 
up. I was curious as to whether or not the amendment touched on that 
provision.
  Mr. HARKIN. I don't think it touches that. No, we did not touch on 
that provision with the amendment.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, the Senator from Iowa voted against 
nonseverability yesterday. After Senator McCain and Senator Thompson 
and others went through this painful compromise of working out an 
appropriate hard money increase that only had 16 votes against it, the 
Senator from Iowa wants to come in here at the last minute and unravel 
that compromise. I thought we were past that on this bill, I say to the 
Senator from Arizona. I thought we were down to a few wrap-up items. 
This amendment ought to be defeated overwhelmingly, and we should stick 
with the compromise that was so painstakingly worked out the other day.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, the Senator from Kentucky is exactly 
right. This whole thing has been a series of fragile compromises. This 
would unravel the whole effort. Although the Senator from Kentucky and 
I are not in agreement on the amount, there is no doubt that we have to 
increase hard money. To say that we would not increase hard money at 
all and do away with all the soft money is just not a viable proposal. 
I hope the Senator from Iowa will recognize that there is overwhelming 
opposition to this amendment, and we could voice vote it at this time.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Wisconsin.
  Mr. FEINGOLD. I join in the opposition to the Harkin amendment. There 
was a very good discussion yesterday about the rarity and lack of 
wisdom of the nonseverability provisions. To head in that direction, 
given the rarity of it, given the clear intention of the Senate 
yesterday, is unwise. We oppose this amendment.
  The PRESIDING OFFICER. Who yields time?
  Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.

[[Page 5147]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, it is my understanding that the pending 
amendment is one I had sent up earlier. To summarize the amendment, 
which is now under consideration, it is simple and straightforward. It 
says if the courts strike down the ban on soft money, then the 
increases in the hard money limits we put in this bill would also go 
back to the levels we have right now. So we would not be faced with a 
situation later on that. If the court struck down the soft money ban, 
we get to raise soft money and also get the increases in the hard money 
limit.
  Senator Dodd pointed out that my amendment does not reach to the 
millionaire amendment that we adopted. It doesn't. I did not include 
that. These are the things I understand that are going to have to be 
worked out in conference with the House. I am hopeful that as we go 
into conference, the problem I just pointed out would also be 
addressed. We certainly don't want to wind up having both the soft 
money and the increases in hard money--at least I don't think.
  In talking with colleagues on this side, that is why I decided to 
offer this amendment. But I understand that it would not be adopted; I 
understand the lay of the land.
  I ask that we just proceed to a voice vote on the amendment and, 
hopefully, the managers would consider this when they get into 
conference.
  Mr. McCONNELL. Mr. President, there is bipartisan opposition to the 
amendment of the Senator from Iowa. We will be voting no on the voice 
vote.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 168) was rejected.
  Mr. McCONNELL. I move to reconsider the vote. I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  Mr. DODD. Mr. President, I suggest the absence of a quorum to be 
charged to both sides.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, what is the pending amendment?
  The PRESIDING OFFICER. The Bond amendment No. 166.


                     Amendment No. 166, As Modified

  Mr. McCONNELL. Mr. President, on behalf of Senator Bond, I send a 
modification to the amendment to the desk.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified.
  The amendment, as modified, is as follows:

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

     SEC. 305. INCREASE IN PENALTIES IMPOSED FOR VIOLATIONS OF 
                   CONDUIT CONTRIBUTION BAN.

       (a) Increase in Civil Money Penalty for Knowing and Willful 
     Violations.--Section 309(a) of the Federal Election Campaign 
     Act of 1971 (2 U.S.C. 437g(a)) is amended--
       (1) in paragraph (5)(B), by inserting before the period at 
     the end the following: ``(or, in the case of a violation of 
     section 320, which is not less than 300 percent of the amount 
     involved in the violation and is not more than the greater of 
     $50,000 or 1000 percent of the amount involved in the 
     violation)''; and
       (2) in paragraph (6)(C), by inserting before the period at 
     the end the following: ``(or, in the case of a violation of 
     section 320, which is not less than 300 percent of the amount 
     involved in the violation and is not more than the greater of 
     $50,000 or 1000 percent of the amount involved in the 
     violation)''.
       (b) Increase in Criminal Penalty.--
       (1) In general.--Section 309(d)(1) of such Act (2 U.S.C. 
     437g(d)(1)) is amended by adding at the end the following new 
     subparagraph:
       ``(D) Any person who knowingly and willfully commits a 
     violation of section 320 involving an amount aggregating 
     $10,000 or more during a calendar year shall be fined, or 
     imprisoned for not more than 2 years, or both. The amount of 
     the fine shall not be less than 300 percent of the amount 
     involved in the violation and shall not be more than the 
     greater of $50,000 or 1000 percent of the amount involved in 
     the violation.''.
       (2) Conforming amendment.--Section 309(d)(1)(A) of such Act 
     (2 U.S.C. 437g(d)(1)(A)) is amended by inserting ``(other 
     than section 320)'' after ``this Act''.
       (c) Effective Date.--The amendments made by this section 
     shall apply with respect to violations occurring on or after 
     the date of enactment of this Act.
  Mr. DODD. Mr. President, while I will not object to the adoption of 
the amendment by my colleague from Missouri, Mr. Bond, I do not believe 
that it presents the best approach for ensuring comprehensive 
enforcement of this new law. In particular, I disagree with the method 
of appearing to single out one type of violation for enhanced 
enforcement or prosecution, namely conduit contributions in the name of 
another.
  My lack of objection should not be read to infer that either this 
Senator, or this body, believe that conduit contributions represent the 
most serious abuse of campaign finance laws nor that such an abuse 
requires selective enforcement and prosecution apart from other 
violations of the Act.
  I also want to be clear that I do not completely agree with the 
characterizations of the Senator from Missouri of the alleged campaign 
finance abuses in the 1996 Presidential and Congressional elections. 
Let me also be clear, campaign finance violations are already subject 
to civil enforcement and prosecution as both misdemeanor and felony 
offenses. The remedies Senator Bond is proposing appear to already be 
available in law if the facts or evidence in such cases include 
aggrevated circumstances.
  An unintended result of the amendment of Senator Bond may be the 
appearance and reality of selective prosecution. Such a result is 
avoided by the approach of my colleagues from Tennessee, Senator 
Thompson, and Connecticut, Senator Lieberman. Theirs is the preferred 
approach which provides for comprehensive enforcement of all violations 
of the new law. I am pleased that their provision has also been 
included in S. 27, the McCain-Feingold legislation, and believe that it 
should be applied across the act to all violations.
  We all agree that existing civil and criminal laws must be vigorously 
and uniformly enforced. I believe that this will be the case.
  Mr. McCONNELL. Mr. President, this has been worked out now and is 
acceptable to both sides.
  Mr. DODD. The Senator from Kentucky is correct.
  The PRESIDING OFFICER. Without objection, the amendment, as modified, 
is agreed to.
  The amendment (No. 166), as modified, was agreed to.
  Mr. DODD. I move to reconsider the vote.
  Mr. McCONNELL. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. McCONNELL. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I am very cognizant of the very short 
period of time remaining under the UC agreement on amendments. We have 
been working on a modification of the so- called millionaires 
amendment. I believe we are very close in trying to equalize this 
situation so that when a person contributes a certain amount of money, 
then the incumbent or the candidate without the money will be able to 
have not an unfair advantage.
  We have been in consultation, and I hope we can reach an agreement 
under the UC, if all sides agree, to have an amendment adopted after 
the vote. That is up to Senator McConnell. I want to hear from him on 
this issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I missed the first part of the comment 
of

[[Page 5148]]

the Senator from Arizona. I gather it was whether this amendment can be 
offered after 11 o'clock.
  We have been on this bill 2 weeks. This was adopted the first day of 
the 2-week debate, and here we are at 2 minutes to 11 still trying to 
fix it. With all due respect to the Senator from Michigan, I am not 
going to agree to a modification of the consent agreement so it can be 
offered after 11 o'clock. I will be happy to work with him on whether 
it can be included as a technical amendment at the end on Monday. I am 
not going to agree to change the consent under which we are currently 
operating.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I understand Senator McConnell's position. 
It has been long debated. I had hoped we would reach agreement that by 
unanimous consent we could offer an amendment after 11 o'clock because 
we are still working on some of the technical aspects of this 
amendment. But if the Senator from Kentucky believes he has to object 
to that unanimous consent request, then I will offer this amendment at 
this time. I ask the Senator if that is his position.
  Mr. McCONNELL. I think the Senator should offer the amendment because 
this, at the risk of repeating myself, is the first amendment we dealt 
with 2 weeks ago, and here we are 1 minute to 11 trying to modify it. 
My colleague had plenty of time to do that. The Senator can go ahead 
and do that if he wants.
  Mr. DURBIN. I thank the Senator.


                           Amendment No. 169

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

       The Senator from Illinois [Mr. Durbin] proposes an 
     amendment numbered 169.

  Mr. DURBIN. 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 amendment is as follows:

 (Purpose: To limit the increase in contribution limits in response to 
    expenditures from personal funds by taking into consideration a 
                      candidate's available funds)

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

     SEC.     . RESTRICTION ON INCREASED CONTRIBUTION LIMITS BY 
                   TAKING INTO ACCOUNT CANDIDATE'S AVAILABLE 
                   FUNDS.

       Section 315(i)(1) of the Federal Election Campaign Act of 
     1971 (2 U.S.C. 441a(i)(1)), as added by this Act, is amended 
     by adding at the end the following:
       ``(E) Special rule for candidate's campaign funds.--
       (i) In general.--For purposes of determining the aggregate 
     amount of expenditures from personal funds under subparagraph 
     (D)(ii), such amount shall include the net cash-on-hand 
     advantage of the candidate.
       (ii) Net cash-on-hand advantage.--For purposes of clause 
     (i), the term `net cash-on-hand advantage' means the excess, 
     if any, of
       (I) the aggregate amount of 50% of the contributions 
     received by a candidate during any election cycle (not 
     including contributions from personal funds of the candidate) 
     that may be expended in connection with the election, as 
     determined on June 30 and December 30 of the year preceding 
     the year in which a general election is held, over
       (II) the aggregate amount of 50% of the contributions 
     received by an opposing candidate during any election cycle 
     (not including contributions from personal funds of the 
     candidate) that may be expended in connection with the 
     election, as determined on June 30 and December 30 of the 
     year preceding the year in which a general election is held.

  Mr. DURBIN. Let me explain.
  Mr. DODD. Will the Senator yield?
  Mr. DURBIN. I am happy to yield.
  The PRESIDING OFFICER. The hour of 11 o'clock has arrived, and there 
are 2 minutes equally divided.
  Mr. DODD. Parliamentary inquiry: Is it permissible for a modification 
to be sent to the desk and considered prior to the vote of an amendment 
that has already been submitted?
  The PRESIDING OFFICER. By unanimous consent.
  Mr. DURBIN. Could I ask for clarification? I have 2 minutes to 
explain the amendment?
  The PRESIDING OFFICER. Two minutes, equally divided.
  Mr. DURBIN. This was one of the first amendments, the Domenici-
DeWine-Durbin amendment, related to the millionaire candidates who are 
showing up more and more.
  Since this amendment was originally adopted, some people have noted 
the fact that some incumbents may have cash on hand and that ought to 
be taken into consideration when you consider the triggers as to 
millionaires' expenditures. That is what this amendment addresses.
  We also had changed the hard money contributions. We have raised the 
level of the contributions, which affects the same amendment, the 
Domenici amendment. I am only addressing the cash on hand aspect. I 
hope my colleagues would agree with me that we want to get as close to 
possible to a level playing field but not create incumbent advantage. 
That is what this amendment seeks to do.
  Mr. DODD. I thank my colleague for doing this. I opposed the 
millionaires amendment for the very reason that the Senator from 
Illinois outlined this morning. The reason he has offered this 
amendment is to correct it; it creates a giant loophole.
  Talk about incumbent protection, we allow now six times the new 
levels of hard money. It allows literally someone to receive a check 
from one couple of $48,000, vastly in excess of what Members intended 
when they adopted this amendment a week ago.
  Under the Feinstein-Thompson increase in hard dollars, we need to 
come back to this. The Senator from Illinois offered a reasonable, 
sensible amendment to correct this problem. I urge its adoption.
  Mr. DURBIN. I ask unanimous consent for 30 additional seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I make the record clear. We asked for unanimous consent 
so we could continue to work on this amendment. I only addressed the 
cash on hand.
  I agree completely with the Senator from Connecticut when it comes to 
the increased hard money contribution. I hope to address that in my 
technical amendment, if not in conference. I agree with him completely 
on the point. We have not had the time this morning to include that.
  Mr. McCONNELL. If ever that were a faulty excuse, this is the time. 
This was the first amendment adopted 2 weeks ago and the Senator from 
Illinois is here at the last minute trying to unravel an amendment that 
got 70 votes. A Domenici amendment was passed 70-30 2 weeks ago and 
here at the last minute we are trying to unravel it.
  It is no surprise that there is some confusion about what is going 
on. My conclusion is that a vote that got 70 Members of the Senate 
maybe ought to stand. I think the Durbin amendment should be opposed.


                     Amendment No. 164, as Modified

  Mr. DODD. Is it permissible to move to a second amendment? I want to 
send a modification on behalf of the Senator to the desk on the Reed 
amendment.
  Mr. McCONNELL. Reserving the right to object--I do not object.
  The PRESIDING OFFICER (Mr. Allen). Without objection, it is so 
ordered.
  The amendment will be so modified.
  The amendment, as modified, is as follows:

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

     SEC. __. AUDITS.

       (a) Extension of Period During Which Campaign Audits May Be 
     Begun.--Section 311(b) of the Federal Election Campaign Act 
     of 1971 (2 U.S.C. 438(b)) is amended by striking ``6 months'' 
     and inserting ``12 months''.

     SEC. __. AUTHORITY TO SEEK INJUNCTION.

       Section 309(a) of the Federal Election Campaign Act of 1971 
     (2 U.S.C. 437g(a)) is amended--
       (1) by adding at the end the following:
       ``(13) Authority to seek injunction.--
       ``(A) In general.--If, at any time in a proceeding 
     described in paragraph (1), (2), (3), or (4), the Commission 
     believes that--
       ``(i) there is a substantial likelihood that a violation of 
     this Act is occurring or is about to occur;
       ``(ii) the failure to act expeditiously will result in 
     irreparable harm to a party affected by the potential 
     violation;
       ``(iii) expeditious action will not cause undue harm or 
     prejudice to the interests of others; and
       ``(iv) the public interest would be best served by the 
     issuance of an injunction;


[[Page 5149]]


     the Commission may initiate a civil action for a temporary 
     restraining order or a preliminary injunction pending the 
     outcome of the proceedings described in paragraphs (1), (2), 
     (3), and (4).
       ``(B) Venue.--An action under subparagraph (A) shall be 
     brought in the United States district court for the district 
     in which the defendant resides, transacts business, or may be 
     found, or in which the violation is occurring, has occurred, 
     or is about to occur.'';
       (2) in paragraph (7), by striking ``(5) or (6)'' and 
     inserting ``(5), (6), or (13)''; and
       (3) in paragraph (11), by striking ``(6)'' and inserting 
     ``(6) or (13)''.

     SEC. __. INCREASE IN PENALTY FOR KNOWING AND WILLFUL 
                   VIOLATIONS.

       Section 309(a)(5)(B) of the Federal Election Campaign Act 
     of 1971 (2 U.S.C. 437g(a)(5)(B)) is amended by striking ``the 
     greater of $10,000 or an amount equal to 200 percent'' and 
     inserting ``the greater of $15,000 or an amount equal to 300 
     percent''.

     SEC. __. USE OF CANDIDATES' NAMES.

       Section 302(e) of the Federal Election Campaign Act of 1971 
     (2 U.S.C. 432(e)) is amended by striking paragraph (4) and 
     inserting the following:
       ``(4)(A) The name of each authorized committee shall 
     include the name of the candidate who authorized the 
     committee under paragraph (1).
       ``(B) A political committee that is not an authorized 
     committee shall not--
       ``(i) include the name of any candidate in its name, or
       ``(ii) except in the case of a national, State, or local 
     committee of a political party, or with the express 
     authorization of the candidate, use the name of any candidate 
     in any activity on behalf of such committee in such a context 
     as to suggest that the committee is an authorized committee 
     of the candidate or that the use of the candidate's name has 
     been authorized by the candidate.''.

     SEC. __. EXPEDITED PROCEDURES.

       Section 309(a) of the Federal Election Campaign Act of 1971 
     (2 U.S.C. 437g(a)), as amended by this Act, is amended by 
     adding at the end the following:
       ``(14) Expedited procedure.--
       ``(A) 60 days preceding an election.--If the complaint in a 
     proceeding is filed within 60 days immediately preceding a 
     general election, the Commission may take action described in 
     this paragraph.
       ``(B) Resolution before election.--If the Commission 
     determines, on the basis of facts alleged in the complaint 
     and other facts available to the Commission, that there is 
     clear and convincing evidence that a violation of this Act 
     has occurred, is occurring, or is about to occur and it 
     appears that the requirements for relief stated in clauses 
     (ii), (iii), and (iv) of paragraph (13)(A) are met, the 
     Commission may--
       ``(i) order expedited proceedings, shortening the time 
     periods for proceedings under paragraphs (1), (2), (3), and 
     (4) as necessary to allow the matter to be resolved in 
     sufficient time before the election to avoid harm or 
     prejudice to the interests of the parties; or
       ``(ii) if the Commission determines that there is 
     insufficient time to conduct proceedings before the election, 
     immediately seek relief under paragraph (13)(A).
       ``(C) Complaint without merit.--If the Commission 
     determines, on the basis of facts alleged in the complaint 
     and other facts available to the Commission, that the 
     complaint is clearly without merit, the Commission may--
       ``(i) order expedited proceedings, shortening the time 
     periods for proceedings under paragraphs (1), (2), (3), and 
     (4) as necessary to allow the matter to be resolved in 
     sufficient time before the election to avoid harm or 
     prejudice to the interests of the parties; or
       ``(ii) if the Commission determines that there is 
     insufficient time to conduct proceedings before the election, 
     summarily dismiss the complaint.''.

     SEC. __. AUTHORIZATION OF APPROPRIATIONS FOR FEDERAL ELECTION 
                   COMMISSION.

       Section 314 of the Federal Election Campaign Act of 1971 (2 
     U.S.C. 439c) is amended--
       (1) by inserting ``(a)'' before ``There'';
       (2) in the second sentence--
       (A) by striking ``and'' after ``1978,''; and
       (B) by striking the period at the end and inserting the 
     following: ``, and $80,000,000 (as adjusted under subsection 
     (b)) for each fiscal year beginning after September 30, 
     2001.''; and
       (3) by adding at the end the following:
       ``(b) The $80,000,000 under subsection (a) shall be 
     increased with respect to each fiscal year based on the 
     increase in the price index determined under section 315(c) 
     for the calendar year in which such fiscal year begins, 
     except that the base period shall be calendar year 2000.''.

     SEC. __. EXPEDITED REFERRALS TO ATTORNEY GENERAL.

       Section 309(a)(5) of the Federal Election Campaign Act of 
     1971 (2 U.S.C. 437g(a)(5)) is amended by striking 
     subparagraph (C) and inserting the following:
       ``(C) The Commission may at any time, by an affirmative 
     vote of at least 4 of its members, refer a possible violation 
     of this Act or chapter 95 or 96 of the Internal Revenue Code 
     of 1986, to the Attorney General of the United States, 
     without regard to any limitation set forth in this 
     section.''.

  The PRESIDING OFFICER. There are 2 minutes equally divided. All time 
on the Reed amendment has expired.
  Mr. REED. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The PRESIDING OFFICER. The question is on agreeing to the Reed 
amendment numbered 164, as modified.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Nevada (Mr. Ensign), 
the Senator from Texas (Mr. Gramm), the Senator from North Carolina 
(Mr. Helms), the Senator from Alaska (Mr. Murkowski), and the Senator 
from Wyoming (Mr. Thomas) are necessarily absent.
  Mr. REID. I announce that the Senator from New Mexico (Mr. Bingaman), 
the Senator from Louisiana (Mr. Breaux), the Senator from Minnesota 
(Mr. Dayton), and the Senator from Georgia (Mr. Miller) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 41, nays 50, as follows:

                      [Rollcall Vote No. 62 Leg.]

                                YEAS--41

     Akaka
     Bayh
     Biden
     Byrd
     Cantwell
     Carnahan
     Carper
     Cleland
     Conrad
     Corzine
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Fitzgerald
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wellstone
     Wyden

                                NAYS--50

     Allard
     Allen
     Baucus
     Bennett
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Clinton
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Feinstein
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner

                             NOT VOTING--9

     Bingaman
     Breaux
     Dayton
     Ensign
     Gramm
     Helms
     Miller
     Murkowski
     Thomas
  The amendment (No. 164), as modified, was rejected.
  Mr. McCONNELL. I move to reconsider the vote.
  Mr. DODD. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. McCONNELL. Mr. President, let me report to the Members of the 
Senate that there may only be one more rollcall vote. I ask unanimous 
consent--there could be more than one but maybe only one--that the next 
vote in the series be limited to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona has 1 minute.


                           Amendment No. 165

  Mr. McCAIN. Mr. President, I urge adoption of this amendment. It 
basically codifies regulation. It requires the Federal Election 
Commission to promulgate new regulations to enforce the statutory 
standards. It shall not require collaboration or agreement to establish 
coordination, in addition to any subject determined by the Commission. 
In other words, we are asking the FEC to promulgate regulations to 
crack down on the abuses of coordination. I think it is legitimate. It 
neither favors unions nor business and corporations.
  It may not be the answer that we both wanted, but it is a far 
significant improvement from the present language. I look forward to 
working with the Senator from Kentucky in trying to improve it even 
further.
  I urge the adoption of the amendment.

[[Page 5150]]

  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I urge that the amendment be opposed. I 
particularly want to get the attention of the Republican Senators. I 
have been predicting for 2 weeks that at the end there would be an 
effort to water down offending language that big labor did not like 
that was inadvertently included, or maybe on purpose included, in the 
original McCain-Feingold. This is that effort. What it does is let big 
labor continue to coordinate its ground game with the Democratic Party.
  This is a modification of the original language in McCain-Feingold 
which the AFL-CIO thought was offensive. It is now being modified in a 
way that makes it bite less. So this will complete the job.
  You noticed, all the amendments during the course of the last 2 weeks 
that had any impact on labor at all were defeated. Now the provision 
that was in the bill that was offensive to labor is being watered down. 
I urge that this amendment be opposed.
  Mr. DODD. Mr. President, is there any time remaining?
  The PRESIDING OFFICER. All time has expired.
  Mr. DODD. Mr. President, I ask unanimous consent for 20 seconds, if I 
can.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. I ask unanimous consent for 20 seconds.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. DODD. This amendment covers every organization. If you are for 
McCain-Feingold, you don't want to put people in the situation where 
you are potentially becoming a criminal because you had a conversation. 
So this covers the NRA, pro-life groups, every organization. Without 
the adoption of this amendment, you have a situation that is inviting 
criminality. I do not think any of us want to see that be the case. 
Senator McCain and others have worked this out. I urge the adoption of 
the amendment.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized for 20 
seconds.
  Mr. McCONNELL. Let me sum this up. This is the last gift to the AFL-
CIO right here at the end of the bill. It will allow them to continue 
to coordinate their ground game with the Democrats. I urge opposition 
of the amendment.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
165. The yeas and nays have been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Nevada (Mr. Ensign), 
the Senator from Texas (Mr. Gramm), the Senator from North Carolina 
(Mr. Helms), the Senator from Alaska (Mr. Murkowski), and the Senator 
from Wyoming (Mr. Thomas), are necessarily absent.
  Mr. REID. I announce that the Senator from New Mexico (Mr. Bingaman), 
the Senator from Louisiana (Mr. Breaux), the Senator from Minnesota 
(Mr. Dayton) and the Senator from Georgia (Mr. Miller) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 57, nays 34, as follows:

                      [Rollcall Vote No. 63 Leg.]

                                YEAS--57

     Akaka
     Baucus
     Bayh
     Biden
     Boxer
     Byrd
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Thompson
     Torricelli
     Warner
     Wellstone
     Wyden

                                NAYS--34

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchinson
     Inhofe
     Kyl
     Lott
     McConnell
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Stevens
     Thurmond
     Voinovich

                             NOT VOTING--9

     Bingaman
     Breaux
     Dayton
     Ensign
     Gramm
     Helms
     Miller
     Murkowski
     Thomas
  The amendment (No. 165) was agreed to.
  Mr. COCHRAN. Mr. President, I move to reconsider the vote.
  Mr. DODD. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. McCONNELL. Mr. President, there is one amendment remaining, and I 
believe it has been worked out. I believe Senator Durbin has to modify 
it.


                     Amendment No. 169, As Modified

  Mr. DURBIN. Mr. President, I ask unanimous consent that the 
modification I have delivered to the desk be agreed to.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 169), as modified, was agreed to, as follows:

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

     SEC.  . RESTRICTION ON INCREASED CONTRIBUTION LIMITS BY 
                   TAKING INTO ACCOUNT CANDIDATE'S AVAILABLE 
                   FUNDS.

       Section 315(i)(1) of the Federal Election Campaign Act of 
     1971 (2 U.S.C. 441a(i)(1)), as added by this Act, is amended 
     by adding at the end the following:
       ``(E) Special rule for candidate's campaign funds.--
       (i) In general.--For purposes of determining the aggregate 
     amount of expenditures from personal funds under subparagraph 
     (D)(ii), such amount shall include the gross receipts 
     advantage of the candidate's authorized committee.
       (ii) Gross receipts advantage.--For purposes of clause (i), 
     the term ``gross receipts advantage'' means the excess, if 
     any, of
       (I) the aggregate amount of 50% of gross receipts of a 
     candidate's authorized committee during any election cycle 
     (not including contributions from personal funds of the 
     candidate) that may be expended in connection with the 
     election, as determined on June 30 and December 31 of the 
     year preceding the year in which a general election is held, 
     over
       (II) the aggregate amount of 50% of gross receipts of the 
     opposing candidate's authorized committee during any election 
     cycle (not including contributions from personal funds of the 
     candidate) that may be expended in connection with the 
     election, as determined on June 30 and December 31 of the 
     year preceding the year in which a general election is held.

  Mr. DURBIN. Mr. President, I ask unanimous consent that Senators 
Domenici, DeWine, and Levin be shown as cosponsors of the modified 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Mr. President, I am going to oppose the modified Durbin 
amendment. Quite simply, it preserves all of the incumbency protection 
provisions of the original Domenici amendment.
  I compliment my colleague from Illinois on his attempt to correct his 
amendment of last week, but this modification does not get the job 
done.
  Let me review for my colleagues what happened last Tuesday and which 
provisions of the Domenici amendment are most objectionable to this 
Senator.
  Last Tuesday the Senate adopted amendment number 115 offered by 
Senators Domenici, DeWine, Durbin, McConnell and others regarding 
wealthy candidates. The proponents of this amendment claimed that it 
addressed an unintended effect of the Buckley decision--namely, that 
wealthy candidates have a constitutional right to use their own 
resources to finance a campaign. My colleagues argued at the time that 
the Buckley decision created a substantial disadvantage for opposing 
candidates who must raise campaign funds under the current fund-raising 
limitations.
  That is an outrageous statement. Who among us really believe that we 
are disadvantaged by hard money contribution limits? The benefits of 
incumbency are well known and are recognized obstacles for challengers 
to overcome.

[[Page 5151]]

  The contention of my colleagues, who supported the Domenici amendment 
last week, is that the current limits are simply too low for incumbents 
to overcome challengers who have independent wealth. Consequently, 
their amendment establishes threshold amounts, based on the voting 
population of the state, which if exceeded by contributions of personal 
wealth by a candidate, would trigger outlandish benefits to an 
incumbent. Benefits of 4 to 6 times the contribution limits of current 
law.
  I opposed that amendment because it clearly created yet another 
advantage of incumbency--that of ignoring the significant wealth that 
incumbents also have in the form of campaign treasuries.
  Moreover, the benefits afforded to an incumbent with a war chest were 
way out of line with the threshold limits that triggered these 
benefits.
  For example, in my State of Connecticut, the voting age population is 
roughly 2.5 million. Under the Domenici amendment, a wealthy candidate 
would only have to expend $250,000 of his or her own resources to 
trigger benefits to an incumbent. And what are those benefits? Well, it 
depends upon how much the wealthy candidate spends.
  If the wealthy candidate spends $500,000 of his or her own money--not 
an insignificant sum, but not huge either--the amendment would triple 
the contribution rates for the incumbent. That means that the incumbent 
could raise funds, equal to 110% of the $500,000, in amounts three 
times as large as current law. The incumbent facing this moderately 
wealthy challenger in the State of Connecticut would be able to solicit 
$6,000 per individual, per election for a total of $12,000, or $24,000 
per couple. That is hardly reform.
  But what if that moderately wealthy challenger expends twice that 
amount in personal resources, or $1 million? In that case, the so-
called disadvantaged incumbent can raise contributions from individuals 
at 6 times the current rate. In that instance, the incumbent could 
legally solicit funds from an individual in the amount of $12,000, or 
$24,000 per election cycle, or $48,000 per couple.
  Is there anyone who believes that asking a couple to write a check in 
the amount of $48,000 is reform or in the best interest of this 
Democracy? I think not.
  But let me add another twist. Suppose this same incumbent, facing the 
wealthy challenger, has a campaign account--as almost all incumbents 
do. And in that campaign account there is a balance of $1,000,000, not 
an unrealistic amount for many incumbents. And yet, even though that 
incumbent has $1 million in the bank, and the wealthy candidate spends 
only $500,000 of their personal funds, the incumbent still gets 3 times 
the benefits. What is fair about that?
  Some of my colleagues suggest that their campaign accounts are not 
the same as a challenger's personal wealth--that they have worked hard 
to raise those campaign dollars, living within the current limits of 
only $1,000 per individual per election. Before my colleagues feel too 
sorry for themselves, let me point out that I am sure that wealthy 
candidate believes he has worked equally hard for his personal wealth. 
And like the wealthy candidate who, alone, controls whether to spend 
those resources, the incumbent is similarly in charge of his or her 
campaign account.
  There is simply no way to justify treating an incumbent's war chest 
differently than a challenger's personal wealth. And yet, both the 
original Domenici amendment and this so-called fix offered today do.
  The amendment by the Senator from Illinois also ignores what has 
transpired since last Tuesday and the adoption of the original 
amendment. Since that time, the Senate has adopted the Thompson-
Feinstein amendment which doubled the hard money contribution limits 
for individuals and indexed them for future inflation, so we are now up 
to $2,000 per year, or $4,000 per election, $8,000 per couple. That 
amendment also doubled the amount that a Senate campaign committee can 
give such a candidate to $35,000 and indexed it for inflation also.
  In the period of a short week, we potentially gave an incumbent 
facing a wealthy challenger an additional $17,500, plus an additional 
$4,000 per couple per election. To address these increased limits would 
require additional reform which Senator Durbin's amendment does not 
address--that is, whether the benefits of this provision providing for 
a triple or 6 times current rates, are now too great. When the original 
amendment was drafted, the contributions limits were one-half of what 
they are today. Consequently, any benefits offered by this amendment 
should recognize that fact.
  Moreover, this so-called fix is not a fix at all. To fairly level the 
playing field, an incumbent's campaign treasury should be matched 
dollar-for-dollar by a wealthy candidate's spending of personal funds 
before any benefits accrue to the incumbent. But that is not what the 
amendment before us does. Rather, it allows an incumbent to disregard 
50% of the funds in his or her war chest before matching such balances 
against the personal spending of a challenger.
  So again, in the example of a race in Connecticut, the incumbent has 
a war chest of $1,000,000, but only $500,000 of that is considered. So 
when the wealthy candidate spends $500,000 of his or her own money, no 
benefits are triggered. But as soon as that wealthy candidate spends 
$1,000,000, the triple limits apply. That simply does not make sense. 
The entire balance of the incumbent's campaign treasury should be 
counted.
  I opposed the original amendment because it did not appear to me to 
be reform, and I oppose this so-called fix as well. I urge my 
colleagues in the House to take a close look at this provision and 
either completely eliminate the Domenici provision from the bill--which 
would be preferable--or amend it to eliminate the substantial loophole 
for incumbents.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for the third reading and was 
read the third time.
  Mr. McCONNELL. Mr. President, that essentially completes the 
underlying bill, upon which final passage will occur at 5:30 on Monday. 
There will be no more rollcall votes.
  Mr. DODD. Mr. President, I know the leaders were discussing this.
  I ask unanimous consent that there be 1 hour on Monday, off the 
budget resolution, prior to the vote at 5:30 for Members to come over 
to make final comments about the adoption of this important piece of 
legislation.
  Mr. McCONNELL. Reserving the right to object, we need to check with 
our leader in terms of how that might impact the running of the clock 
on the budget resolution, which is the most important item for next 
week, obviously. I will have to object, until I get some word from the 
leader.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. Mr. President, I think it is appropriate to have at 
least a brief discussion before final passage--very brief because we 
have been on this 2 weeks. People do have a sense of what this issue is 
about.
  One possibility, of course, would be to let that time we use on this 
subject count on the budget resolution. That would probably smooth the 
passage to approving this. We will get a report from our leader 
shortly.
  Mr. DODD. Mr. President, I point out we are not on the budget 
resolution yet. I was just looking for time for Members to speak on the 
bill, to get a little time to be heard prior to final passage.
  It seems to me that is not an unreasonable request. Given the 2 weeks 
we have spent on this bill, I think Members would like to spend a few 
minutes expressing their thoughts on this legislation. Rather than take 
the time of the Senate today, I thought prior to the vote on Monday was 
the time to do that.
  Mr. McCONNELL. The perfect time to do it is right now. We are 
basically finished with business for today, and

[[Page 5152]]

anybody who believes they need to express themselves on this matter 
further after 2 weeks of robust debate might want to take advantage of 
morning business, or something along those lines, today.
  Mr. DODD. Mr. President, I suggest the absence of a quorum until we 
come to some understanding.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Roberts). Without objection, it is so 
ordered.
  Mr. McCONNELL. Mr. President, Stuart Taylor, Jr. of the National 
Journal, has been among the more insightful and persuasive voices 
emerging against the so-called reformers' campaign finance effort.
  In the January 1, 2000 edition of that publication, in a piece 
entitled The Media Should Beware of What it Embraces, Mr. Taylor 
cautions the media to reconsider its hypocrisy in so zealously 
attacking the first amendment freedom of every other participant in the 
political process.
  This is especially significant because at one point not long ago, Mr. 
Taylor had advocated banning party soft money.
  I ask unanimous consent that this article by Mr. Taylor and an 
article by Michael Barone, which ran in U.S. News, be printed in the 
Record.
  There being no objection, the articles were ordered to be printed in 
the Record, as follows:

               [From the National Journal, Jan. 1, 2000]

              The Media Should Beware of What It Embraces

                        (By Stuart Taylor, Jr.)

       The uncritical enthusiasm of most media organizations for 
     abolishing ``soft money'' and restricting issue advertising 
     by ``special interests'' prompts this thought: How would the 
     networks and The New York Times like a law imposing strict 
     limits on their own rights to editorialize about candidates? 
     After all, if some of their favored proposals were to be 
     enacted, the media would be the only major interest still 
     enjoying unrestricted freedom of political speech.
       A few liberal legal scholars have proposed such laws as a 
     long-term component of any ``reform'' aimed at purging the 
     influence of private money and promoting true political 
     equality. Associate Professor Richard L. Hasen of Loyola 
     University Law School (Los Angeles) put it this way in the 
     June issue of the Texas Law Review:
       ``If we are truly committed to equalizing the influence of 
     money on elections, how do we treat the press? Principles of 
     political equality could dictate that a Bill Gates should not 
     be permitted to spend unlimited sums in support of a 
     candidate. But different rules [now] apply to Rupert Murdoch 
     just because he has channeled his money through media outlets 
     that he owns. . . . The principle of political equality means 
     that the press too should be regulated when it editorializes 
     for or against candidates.''
       Far-fetched? Politically impossible? Blatantly 
     unconstitutional?
       Perhaps. But I'm not the only one worried about the lack of 
     a stopping point on the slippery slope that runs from such 
     seemingly modest proposals as the McCain-Feingold bill to the 
     notion of censoring New York Times editorials. Listen to 
     former acting Solicitor General (and former Deputy White 
     House Counsel) Walter Dellinger, the most widely respected 
     constitutional expert to come out of the Clinton 
     Administration:
       ``I've been struck by how shallow the thought has been 
     about whether McCain-Feingold is a good idea. There's a 
     credible argument that political parties may be the least bad 
     place for monies to be funneled, and yet that's where money 
     would be limited.
       ``[And] it's odd to see the press clamoring for restricting 
     independent spending on campaigns by everybody other than the 
     media. Even assuming that it would be desirable to say to one 
     individual or group that you may not spend more than X 
     dollars for television ads--while allowing another individual 
     to buy a television network and spend as much as he wishes 
     promoting a candidate or a party--it may be impossible under 
     the First Amendment to restrict the `media,' and it may be 
     technically impossible in the age of the Internet to draw 
     lines between the `media' and everyone else.''
       Part of Dellinger's point is what more-conservative critics 
     of campaign finance restrictions stress: that each 
     incremental step advocated by us reformers would create new 
     problems and new inequities, fueling demands for more and 
     more sweeping restrictions on political speech.
       I say ``us reformers'' because I have been among the 
     advocates of banning unlimited gifts of soft money to the 
     political parties. (See NJ, 9/11/99, p. 2535.) But while John 
     McCain and Bill Bradley have been riding a wave of media 
     acclaim for pushing various reforms, I've been having second 
     thoughts.
       Banning soft money has considerable attraction because it 
     would stop corporations, unions, and wealthy individuals from 
     giving political parties the huge gifts that emit such a 
     strong stench of corruption, or at least of influence-
     peddling.
       But unless accompanied by a major increase in the caps on 
     individual contributions of ``hard money''--which most 
     campaign finance reformers vehemently oppose--a soft-money 
     ban could muffle the voices of the parties and their 
     candidates while magnifying the influence of the independent 
     groups (``special interests'') that have already come to 
     dominate some election campaigns. These include ideologically 
     based groups ranging from the National Right to Life 
     Committee on the right to the Sierra Club on the left.
       Would it make sense to shift power from broad-based 
     political parties to ideologically driven interest groups 
     that are relatively unknown to the electorate? Dellinger 
     thinks not: ``It wasn't a political party that did the Willie 
     Horton ad. It was an independent expenditure group. . . . 
     They are free to do drive-by political character 
     assassinations without political accountability.''
       In part for this reason--and in part because of the simple 
     urge to quiet their critics--many members of Congress insist 
     that any soft-money ban be coupled with restrictions on fund 
     raising by independent groups that use issue ads to influence 
     elections.
       The House-passed Shays-Meehan bill would restrict fund 
     raising by such independent groups. And while those 
     restrictions have been stripped from the Senate bill (McCain-
     Feingold) in order to pick up more votes for the effort to 
     abolish soft money, most reformers see that move as only a 
     temporary, tactical concession.
       A further complication is the likelihood that the current 
     Supreme Court majority would strike down the Shays-Meehan 
     restrictions on independent groups, even it if upheld the 
     provision abolishing soft money. The reason is that the 
     danger of corruption that has persuaded the Justices to 
     uphold caps on hard-money contributions to candidates (and 
     that might persuade them to uphold a ban on soft-money 
     contributions to parties) seems far more remote when 
     independent groups are raising and spending the money.
       Indeed, the urge of many reformers to restrict independent 
     groups has less to do with preventing corruption than with 
     equalizing the political clout of all citizens by reducing 
     that of people (and groups) with money. And that goal clashes 
     with the Court's crucial holding in 1976, in Buckley vs. 
     Valeo, that ``the concept that government may restrict the 
     speech of some elements of our society in order to enhance 
     the relative voices of others is wholly foreign to the First 
     Amendment.''
       Suppose, however, that Congress does eventually abolish 
     soft money and tightly restrict issue ads and that the 
     Supreme Court goes along--and thereby abandons its First 
     Amendment ruling in Buckley. One result would be to weaken 
     the political parties and the independent groups alike by 
     restricting their fund raising.
       Another result, liberal and conservative scholars agree, 
     would be to enlarge greatly the power of the big media 
     companies, because they would be the only major organizations 
     still free to raise and spend unlimited amounts of money to 
     amplify their speech about political campaigns. A.J. 
     Liebling's line--``freedom of the press is guaranteed only to 
     those who own one''--would become truer than he ever 
     imagined. In such an environment, what justification would 
     remain for continuing to exempt the institutional media from 
     the pervasive regulation of everyone else?
       Would the media be protected by their image of themselves 
     as disinterested, politically neutral guardians of democracy? 
     Hardly. The public is already properly skeptical of the 
     accuracy and fairness of the big media companies. Many of 
     them are already owned by commercial conglomerates, such as 
     General Electric (which owns NBC and half of MSNBC), Disney 
     (which owns ABC), and Rupert Murdoch's empire (which owns the 
     Fox network, The New York Post, The Weekly Standard, and 
     more). Many are even big soft-money donors.
       And a media monopoly on freedom of political speech would 
     enhance the already considerable incentives for monied 
     interests seeking political clout to go into the media 
     business.
       Could the media count on the Supreme Court to strike down 
     any congressional restrictions on their rights to 
     editorialize? Dellinger believes so. I'm a bit less 
     confident. For if we ever reach that point, Buckley vs. Valeo 
     will already be dead, the First Amendment will be 
     unrecognizable, and political speech will no longer be deemed 
     a fundamental freedom, but rather a privilege to be rationed.
       In such a ``post-Buckley era,'' Hasen enthuses, ``op-ed 
     pieces or commentaries expressly advocating the election or 
     defeat of a candidate for federal office could no longer be 
     directly paid for by the media corporation's funds. Instead, 
     they would have to be

[[Page 5153]]

     paid for either by an individual (such as the CEO of the 
     media corporation) or by a PAC set up by the media 
     corporation for this purpose. The media corporation should be 
     required to charge the CEO or the PAC the same rates that 
     other advertising customers pay for space on the op-ed 
     page.''
       This scenario seems very remote now. But it suggests some 
     questions that we should ask ourselves before jumping aboard 
     the campaign finance reform bandwagon: How far do we want to 
     go? Is there a good place to stop? Who will be at the 
     controls? And will we be any happier in the end that the 
     campaign finance reformers of 1974 have been with the system 
     they helped create?
                                  ____


                    [From U.S. News, Nov. 15, 1999]

                       Money Talks, as It Should

                          (By Michael Barone)

       ``How a company lets its cash talk,'' read the headline in 
     the New York Times last month. The article tells of the 
     success of Samuel Heyman, chairman of GAF Corp., in lobbying 
     for a bill to change rules for asbestos lawsuits. The article 
     sets out how much money Heyman, his wife, and GAF's political 
     action committee have contributed to politicians and both 
     parties, and the reader is invited to conclude that this 
     billionaire and his company are purchasing legislation that 
     will benefit them. Money buys legislation, which equals 
     corruption: It is the theme articulated by John McCain in the 
     Senate last month and on the campaign trail; it was the 
     premise of questions asked at the Hanover, N.H., candidates' 
     forum and taken for granted by Al Gore and Bill Bradley in 
     their responses; it is the mantra of countless editorial 
     writers and of Elizabeth Drew in her book The Corruption of 
     American Politics.
       But is it true? Careful readers of the Times's ``cash 
     talks'' story can find plenty of support for another 
     conclusion: ``Strong arguments talk.'' For 25 years, asbestos 
     lawsuits have transferred billions of dollars from companies 
     that once manufactured asbestos (it was banned in the 1970s) 
     to workers exposed to asbestos and their lawyers. Asbestos 
     causes sickness in some but by no means all workers many 
     years after exposure. But most claimants who have recovered 
     money are not sick and may never be, while those who are sick 
     must often wait years for claims to be settled. The biggest 
     winners in the current system are a handful of trial lawyers 
     who take contingent fees of up to 40 percent and have made 
     literally billions of dollars.
       Heyman's proposal, altered somewhat by a proposed House 
     compromise, would stop nonsick plaintiffs from getting any 
     money, while setting up an administrative system to determine 
     which plaintiffs are sick and to offer them quick settlements 
     based on previous recoveries. The statute of limitations 
     would be tolled, which means that nonsick plaintiffs could 
     recover whenever signs of sickness appear. Sick plaintiffs 
     would get more money more quickly, while companies would be 
     less likely to go bankrupt; 15 asbestos firms are bankrupt 
     now, and the largest pays only 10 cents on the dollar on 
     asbestos claims. The two groups who lose, according to 
     Christopher Edley, a former Clinton White House aide and 
     Harvard Law professor who has worked on the legislation, 
     would be nonsick plaintiffs who might get some (usually 
     small) settlements under the current system and the trial 
     lawyers who have been taking huge contingent fees.
       These are strong arguments, strong enough to win bipartisan 
     support for the bill, from Democratic Sens. Charles Schumer 
     and Robert Torricelli as well as House Judiciary Chairman 
     Henry Hyde and Senate Majority Leader Trent Lott. You would 
     expect Hyde and Lott to support such a law, but for Schumer 
     and, especially, Torricelli, it goes against political 
     interest: Torricelli chairs the Senate Democrats' campaign 
     committee, and Democrats depend heavily on trial lawyer 
     money. One can only conclude that Schumer and Torricelli were 
     convinced by strong arguments, which was certainly the case 
     for Democrat Edley, who was writing about cases long before 
     Heyman's bill was proposed. When McCain charged that the 
     current campaign finance system was corrupt, Republican Mitch 
     McConnell challenged him to name one senator who had voted 
     corruptly. Certainly no one who knows the issues and the 
     senators involved would have cited this case.
       Air pollution? And not just this case. When a government 
     affects the economy, when it sets rules that channel vast 
     sums of capital, people in the market economy are going to 
     try to affect government. They will contribute to candidates 
     and exercise their First Amendment right to ``petition the 
     government for a redress of grievances,'' i.e., lobby. Both 
     things will continue to be true even if one of McCain's 
     various campaign finance bills is passed. There is no 
     prospect for full public financing of campaigns (Gore says 
     he's for it, but he has never really pushed for it); one 
     reason is that it leaves no way to prevent frivolous 
     candidates from receiving public funds. (Look at the zoo of 
     candidates competing for the Reform Party's $13 million pot 
     of federal money). Reformers speak of campaign advertisements 
     as if they were a form of pollution and try to suppress issue 
     ads as if no one but a candidate (or newspaper editorialist) 
     had a First Amendment right to comment on politicians' 
     fitness for office. And to communicate political ideas in a 
     country of 270 million people you have to spend money.
       The idea that the general public interest goes 
     unrepresented is nonsense. There is no single public 
     interest; reasonable people can and do disagree about every 
     issue, from asbestos lawsuits to zoo deacquisitions. This 
     country is rich with voluntary associations ready to 
     represent almost anyone on anything; any interest without 
     representation can quickly get some. Even when the deck seems 
     stacked, as it has for trial lawyers on asbestos regulation, 
     there will be a Samuel Heyman with, as Edley puts it, ``the 
     moxie to act on his convictions.'' Money talks, as it always 
     will in a free society. But in America, and on Capitol Hill, 
     strong arguments can talk louder, and do.

  Mr. McCONNELL. Mr. President, it has been encouraging to see the 
evolution of this debate over the years. While the New York Times and 
Washington Post are a broken record, repeating ad nauseam the tired and 
disproven cliches of the reform industry, there has been a marked 
increase in dissents put forth op-eds and scholarly works.
  Among the leading columnists who has weighed in on behalf of the 
first amendment perspective is Charles Krauthammer.
  I ask unanimous consent that Mr. Krauthammer's column of March 23, 
2001 in the 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. 23, 2001]

                        McCain's Costly Crusade

                        (By Charles Krauthammer)

       Pharmaceutical companies live on patent protection. They 
     make their profits in the few years they enjoy a monopoly on 
     the drugs they have discovered. They fight fiercely to 
     protect their turf, and given generously to politicians to 
     make sure they protect that turf too.
       Who, then, do you think has just issued a report showing 
     that changes in law and regulation have effectively doubled 
     the drug companies' patent protection time? Some tiny, 
     Naderite public interest group? Some other representative of 
     the little guy?
       No. A nonprofit institute founded and largely funded by the 
     insurance companies. Insurance companies, you see, pay the 
     bill for patent protection by drug companies. And they don't 
     like it. There is more than one 800-pound gorilla in this 
     room.
       You wouldn't know that from hearing John McCain talk about 
     how special interests buy their way in Washington. They try 
     to, but they run up against the classic Madisonian structure 
     of American democracy. Madison saw ``factions,'' what we now 
     call interests, not only as natural, but as beneficial to 
     democracy because they inevitably check and balance each 
     other.
       His solution to the undue power of factions? More factions. 
     Multiply them--and watch them mutually dilute each other. For 
     two centuries we followed the Madisonian model. But now 
     McCain's crusade calls for restriction rather than 
     multiplication: curtailing the power--and inevitably the 
     right to petition and the right to free speech--of special 
     interests.
       True, money in politics in corrupting; opponents of McCain 
     should admit as much. Generally one can't prove quid pro 
     quos. But it is obvious that legislators are more attentive 
     to the views of those who give money. Otherwise, they 
     wouldn't give it. The problem, however, is that like all 
     attempts to banish sin from public life--Prohibition, for 
     example--campaign reform comes at a fearful price.
       There are three basic ways to conduct effective political 
     speech: own a printing press; buy a small piece of space (or 
     time) in a medium owned by others, say, 30 seconds on TV or a 
     page in a newspaper; or bypass the media and directly support 
     a political actor--candidate, leader, party--whose views 
     reflect yours.
       McCain-Feingold would drastically restrict the third, by 
     banning ``soft money'' contributions to parties. The Snowe-
     Jeffords amendment would drastically restrict the second by 
     curtailing political ads by outside groups.
       This is bad policy, first of all, on principle. Free speech 
     is the first of all the amendments not by accident. It is the 
     most important. Which is why we regulate it with the most 
     extreme circumspection. It borders on the comic that the 
     First Amendment should be (correctly) interpreted as 
     protecting nude dancing and flag-burning but not political 
     speech. And there are few more effective ways for someone who 
     does not own a printing press to express and promote his 
     political views than by contributing to a party that reflects 
     them.
       Hence, the second problem with McCain-Feingold. It purports 
     to eliminate the influence of money and power in politics. In 
     fact, it eliminates only some influence. It does not end 
     influence peddling. It only skews it.
       By restricting Madison's multiple factions, McCain-Feingold 
     radically tilts the playing

[[Page 5154]]

     field toward (a) incumbent politicians, who enjoy the 
     megaphone of public office; (b) the very rich, who can buy 
     unlimited megaphone time (which is why so many now populate 
     the Senate); and (c) media moguls, who own the megaphones.
       The conceit of McCain-Feingold is that politicians 
     prostitute themselves only for big corporate or individual 
     contributors. But they give far more care and feeding, 
     flattery and deference to the lords of the media. It stands 
     to reason.
       They can be helped or hurt infinitely more by the New York 
     Times or network news shows than by any lobbyist. By 
     restricting the power of contributors, McCain-Feingold 
     magnifies the vast power of those already entrenched in 
     control of information.
       How to mitigate the effects of money? By demanding absolute 
     transparency, say, full disclosure on the Internet within 48 
     hours of a contribution, so that contributions can be the 
     subject of debate during, not after, the campaign. And by 
     requiring TV stations, in return for the public licenses that 
     allow them to print money, to give candidates a substantial 
     amount of free air time.
       Far better to reduce the demand for political money rather 
     than the supply. For the Robespierre of American politics, 
     however, such modest steps are almost contemptible. McCain's 
     mission is not the mitigation of sin but its eradication. Yet 
     like all avengers in search of political purity, McCain would 
     leave only wreckage behind: a merely different configuration 
     of influence-peddling--and far less freedom.

  Mr. McCONNELL. Mr. President, William Raspberry has also made some 
astute observations on this issue over the years. In the March 23, 2001 
Washington Post, in a column entitled ``Campaign Finance Frenzy,'' Mr. 
Raspberry makes a refreshing observation, conceding that while he is 
drawn to ``reform'' he is not sure just what ``reform'' means. What is 
it? A fair question.
  ``I don't quite get it,'' Mr. Raspberry writes. He's for it but 
confesses to not being sure what it is.
  I venture to guess Mr. Raspberry speaks for a lot of people who are 
not intimately familiar with the McCain-Feingold bill and the 
jurisprudence which governs this arena.
  I ask unanimous consent that Mr. Raspberry's column 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. 23, 2001]

                        Campaign Finance Frenzy

                         (By William Raspberry)

       When it comes to campaign finance reform, now being debated 
     in the Senate, I don't quite get it.
       I know what the problem is, of course: People and 
     organizations with big money (usually people and 
     organizations whose interests are inimical to mine) are 
     buying up our politics--and our politicians. It is 
     disgraceful, and I'd like it to stop.
       What I don't get is how the reform proposals being debated 
     can stop it.
       Up to now, I've been too embarrassed to say so. I think I'm 
     for McCain-Feingold, but that's largely because all the 
     people whose politics I admire seem to be for it. Besides, 
     John McCain looks so sincere (I don't really have a picture 
     of Russ Feingold in my mind) and the Arizonan has made 
     campaign finance reform such an important matter that he was 
     willing to risk offending a president of his own party. I'm 
     attracted to people of principle.
       Similarly, I've been denouncing the substitute lately put 
     forward by Sen. Chuck Hagel (R-Neb.) because my colleagues 
     who know about these things say it is a sham--even a step 
     backward. I don't like shams.
       The problem is (boy, this is humiliating!) I don't know 
     what I want.
       Do I want to keep rich people from using their money to 
     support political issues? Political parties? Political 
     candidates? No, that doesn't seem right.
       Didn't the Supreme Court say money is speech, thereby 
     bringing political contributions under the protection of the 
     First Amendment? That pronouncement, unlike much that flows 
     out of the court, makes sense to me. If you have a First 
     Amendment right to use your time and shoe leather to harvest 
     votes for your candidate, why shouldn't Mr. Plutocrat use his 
     money in support of his candidate? If it's constitutional for 
     you to campaign for gun control, why shouldn't it be 
     constitutional for Charlton Heston and the people who send 
     him money to campaign against it?
       If money is speech--and it certainly has been speaking 
     loudly of late--how reasonable is it to put arbitrary limits 
     on the amount of permissible speech? Is that any different 
     from saying I can make only X number of speeches or stage 
     only Y number of rallies for my favorite politician or cause?
       But if limits on money-speech strike me as illogical, the 
     idea that there should be no limits is positively alarming. 
     Politicians--and policies--shouldn't be bought and sold, as 
     is happening far too much these days.
       The present debate accepts the distinction between ``hard'' 
     and ``soft'' contributions--hard meaning money given in 
     support of candidates and soft referring to money contributed 
     to political parties or on behalf of issues.
       McCain-Feingold would put limits on hard money 
     contributions and, as I read it, pretty much ban soft money 
     contributions to political parties. Hagel would be happy with 
     no limits on contributions to parties but has said he might, 
     in the interest of expediency, accept a cap of, say, $60,000 
     per contribution.
       Hagel's view is that the soft money given to parties is not 
     the problem, since we at least know where the money is coming 
     from. More worrisome, he says, are the ``issues'' 
     contributions that can be made through nonpublic channels and 
     thus protect the identity of the donors.
       Why has money--hard or soft--come to be such a big issue? 
     Because it takes a lot of money to buy the TV ads without 
     which major campaigns cannot be mounted. Politicians jump 
     through all sorts of unseemly hoops for money because they're 
     dead without it.
       So why aren't we debating free television ads for political 
     campaigns? Take away the politician's need for obscene sums 
     of money and maybe you reduce the likelihood of his being 
     bought. We'd be arguing about how much free TV to make 
     available or the thresholds for qualifying for it, but at 
     least that is a debate I could understand.
       All I can make of the present one is that I'm for campaign 
     finance reform, and I'm against people who are against 
     campaign finance reform. I just don't know what it is.

                          ____________________