[Congressional Record (Bound Edition), Volume 147 (2001), Part 4]
[Senate]
[Pages 5182-5184]
[From the U.S. Government Publishing Office, www.gpo.gov]



                        CAMPAIGN FINANCE REFORM

  Mr. NICKLES. Mr. President, I thank my friend and colleague from 
North Dakota. Sometimes when we are here, we get a little impatient 
since we all have places we want to go. I appreciate his comments, and 
I very much look forward to debating the budget and tax bills on the 
floor of the Senate next week and, frankly, over the next couple of 
months, as we do our appropriations bills.
  I enjoy those issues, and I would have preferred doing those instead 
of campaign finance for the last 2 weeks. I would have preferred doing 
the education bill. I, for one, was urging our caucus, and Senator 
McCain and others, to defer on campaign finance so we could take up 
some of the higher priorities which, in my opinion, are education, tax 
reduction, and the budget. I didn't win that debate.
  We have been on the campaign finance bill for the last couple weeks 
because of the tenacity, persistence, and stubbornness of our good 
friends, the Senator from Arizona, Mr. McCain, and the Senator from 
Wisconsin, Mr. Feingold. I compliment them. They have been persistent 
and tenacious in pushing this bill. I also compliment them for their 
efforts in working with many of us who tried to make the bill better. 
We had some successes and we had some failures. In some ways this bill 
is a lot better than it was when it was introduced and in some areas it 
got a lot worse. I will touch on a few of those.
  I had hoped we would be able to improve the bill. I could not support 
the bill when it was originally introduced before the Senate. I had 
hoped we could make some improvements so that this Senator could 
support final passage. I was committed to try to do that. We had some 
success in a couple of areas, but we had some important failures as 
well.
  I also compliment others who worked hard on this bill including 
Senator Thompson and Senator Hagel. Senator Hagel came up with a good 
substitute. Senator Thompson had a good amendment dealing with hard 
money, and I worked with him on that amendment.
  I also compliment Senator McConnell and Senator Gramm, who were 
fierce, articulate opponents and spoke very well. Senator Gramm's 
speech last night was one of the best speeches I have heard in my 
entire Senate career. He spoke very forcefully about freedom of speech 
and the fact that even though the editorial boards and public opinion 
polls say, let's vote for this, that we should abide by the 
Constitution.
  The Presiding Officer, Senator Byrd, reads the Constitution as 
frequently, maybe more frequently than anybody in this body. When we 
are sworn into office, we put up our hand and we swear to abide by the 
Constitution.
  The first amendment to the Constitution, one of the most respected 
and important provisions in the Constitution, states very clearly that 
``Congress shall make no law . . . abridging the freedom of speech, or 
of the press; or the right of the people peaceably to assemble, and to 
petition the Government for redress of grievances.''
  ``Congress shall make no law . . .'' Mr. President, that includes the 
McCain-Feingold bill. In my opinion, this bill restricts our freedom of 
speech, not only in the original version, but especially in the version 
that we have now.
  Some of the different sections of this bill go by different names 
based on their sponsors. I have great respect for my colleagues, and I 
know Senators Snowe and Jeffords worked on a section restricting speech 
before elections by unions, corporations, and by other interest groups. 
This bill restricts their ability to speak, to run ads. This bill 
prohibits them, in many cases, from being able to run ads less than 60 
days prior to an election that mention a candidate's name. There are a 
lot of groups, some on the left, such as the Sierra Club, and some on 
the right, such as National Right To Life, for example, that may want 
to run ads about a bill before Congress. We may be debating partial 
birth abortion or ANWR, and we might be having this debate in September 
on an appropriations bill, less than 60 days before the election. This 
bill will say they cannot run an ad with an individual's name saying 
vote this way or that way, or don't support this person, because he is 
wrong on ANWR, or he is correct on the right to life issue. Their free 
speech would be prohibited. I find that to be unconstitutional.
  I have heard a lot of debate on the floor saying they did not think 
that Snowe-Jeffords is unconstitutional, and other people saying that 
it was. Then Senator Wellstone came up with an amendment that said, 
let's expand that to all interest groups--the same restrictions we had 
on unions and businesses on running ads within 60 days. Let's make that 
apply to them as well. Senators McCain and Feingold said

[[Page 5183]]

the Wellstone amendment was unconstitutional. If that was 
unconstitutional, then the underlying bill was unconstitutional 
because, basically, Senator Wellstone copied it.
  Why would we pass a bill we know is going to be unconstitutional? And 
that relates to the nonseverability amendment, described as a killer 
amendment. Why? Because they know some of the bill is going to be 
declared unconstitutional. Why would we pass legislation we know is 
going to be unconstitutional? Yet, some of the proponents are basically 
admitting it is going to be unconstitutional.
  The big fight was on severability. The sponsors had to have that 
because we more than suspect that parts of this bill will be declared 
unconstitutional. I think they are right, because the people sitting at 
the Supreme Court are going to say: does this bill restrict an 
organization's ability to communicate and mention a Member's name, or 
mention an issue that is before Congress? It will restrict that right. 
So it will restrict their ability to have freedom of speech.
  I think parts of this bill--not all of it, but certainly parts of 
it--will be determined unconstitutional. I think we should not be 
passing unconstitutional bills. I think we should not say, let's just 
pass it and let the courts do the homework on it. I guess you can do 
that, but I think we have the responsibility to uphold the 
Constitution, respect the Constitution, and not to be passing things we 
know are unconstitutional, that won't uphold a constitutionality test.
  In addition, I mentioned that we had some victories and some defeats. 
One of the victories, in my opinion, was when we increased the hard 
money limits, which have been frozen at the 1974 levels. I compliment 
Senators Hagel and Thompson because they pushed that amendment. I 
helped them negotiate the compromise. We increased what individuals can 
do. They were frozen, since 1974, at $1,000, and we doubled that amount 
and indexed that for inflation. So we improved that section. 
Individuals can now participate more fully and extensively. That was a 
good amendment. Not everything in this proposal is bad. There are good 
things and bad things. I came to this debate thinking I might be 
willing to ban so-called soft money, if it could be done 
constitutionally, if we could increase hard money, the money that is 
completely reported and that everybody says is legitimate. I wanted to 
stop the practice that both parties have used, used quite well on the 
Democrat side, with the so-called joint committees, where individuals 
exceed the individual amount, and contribute thousands and thousands of 
dollars more through a special committee, through either the Republican 
Senatorial Campaign Committee or the Democratic Senate Campaign 
Committee.
  The Democrats did it to the tune of $21 million last year, and the 
Republicans did it to the tune of $5 million last year. In one race in 
New York, there was $13 million of soft money directed toward one 
candidate. How can you have limits and then have other people 
contributing millions of dollars outside those limits? Everybody has 
heard about that Denise Rich contribution. She contributed over 
$100,000 to one Senate candidate, and I thought the law was only $1,000 
for a primary and $1,000 for a general election. But Denise Rich 
contributed over $100,000 through the use of a joint committee. That 
was an abuse. It needed to be stopped.
  Now, let me turn to the issue of coordination. I mentioned this last 
night on the floor. The coordination section in the underlying McCain-
Feingold bill was grossly inadequate in its respect for free speech. 
The sponsors of the bill, Senators McCain and Feingold, admitted as 
much and said we needed to fix it. The bill had a several-page 
definition of coordination, saying if a union or interest group 
coordinated with a campaign, they would have to report everything they 
did and consider it as a contribution. And if you didn't do so, there 
could be fines and penalties against that organization and against the 
candidate. You could make them criminal violations because they would 
be violating the law. We didn't want to make people criminals and put 
them in jail because, basically, they were exercising their 
constitutional rights.
  Senators McCain and Feingold said they would fix that. I looked at 
the fix, and they fixed it for the unions, but not for everybody else. 
For the unions, they excluded the in-kind contributions. Unions don't 
have to report those, disclose them, and they are not considered 
coordination. That affects a lot of money, maybe to the tune of in 
excess of $100 or $200 million. That in-kind contribution is excluded 
from the coordination fix we just adopted earlier today. But we didn't 
fix the expenditures side of that.
  So if you have other groups, such as National Right To Life or the 
Sierra Club, and so on, that make expenditures and are working on 
campaigns and handing out leaflets and so on, that may well be 
considered a coordinated activity that has to be reported and disclosed 
both by the candidate and by the organization. Right now, they don't 
have to do that. We are going to say that could be illegal activity. 
What I am saying is that they took care of the unions, but not of these 
groups.
  I don't like this coordinated section because I think it goes way too 
far. We are risking telling people who are exercising their 
constitutional rights engaging in campaigns, they better not do that or 
the heavy hand of the Federal Government might come in and say they 
violated the law. The people accused will say, what law? These are 
people that might be trying to convince people not to drill in ANWR, or 
maybe that we should. Maybe we want to change the mining laws, or maybe 
we should not change the mining laws. They should have a right to 
petition Congress. That is what the First Amendment says. We should not 
abridge anybody's right to petition the Government for a redress of 
grievances. But we do under this bill if it is during a campaign or 
within 60 days of an election. You are certainly going to be 
handicapping their ability to redress a grievance to the Government--
their right to petition the Government.
  Again, we have the Constitution, and we have this bill. I find this 
bill to be in violation of the Constitution. Under my reading of the 
Constitution--and I am not a constitutional scholar--I believe we are 
eliminating or reducing an individual's ability to be able to petition 
the Government, and an individual's ability to have freedom of speech 
to say, ``I agree with them,'' or ``I disagree with them,'' or ``I 
disagree with Senator so-and-so,'' or ``I agree with Senator so-and-
so,'' right before the election. This bill says, no, you can't do it. 
If you do it, you might well be in trouble.
  But, oh, we have a little fix for the unions. We will just run it 
through on the last amendment of the day, which is what happened.
  Do you know what else concerning the unions is missing in this bill? 
You would think in the year 2001 we would say that all campaigns 
contributions would be voluntary. Guess what? They are not in America 
today. There are millions of Americans who are compelled to contribute 
to campaigns they don't support. They would rather not. Some people say 
these people don't have to contribute because they don't have to join 
the union. In some States, they have to join, or if they don't, they 
have to join under an agency fee arrangement, and they have to pay 
dues. They may not want to, but they have to. They have to pay the dues 
or the agency fee. A lot of that money--maybe in excess of $10, or $15, 
or $20 a month--is used for political activity. That individual may not 
want it to be used for that.
  He might disagree with the leadership of the union that money is 
going to candidates to whom he or she is totally opposed. We wanted to 
have a provision that says no one should be compelled to contribute to 
a campaign; they would have to give their permission before money can 
be taken out of their paycheck every month.
  Oh, no, that amendment could not be accepted. To be fair, the 
amendment that was offered was not a good amendment, in my opinion, 
because it also included shareholders, and there is no

[[Page 5184]]

way in the world you can include a shareholders provision, in my 
opinion. But the voices were clear: You are not going to win on that 
Paycheck Protection amendment.
  Senator Hatch offered another amendment that said at least let's have 
disclosure on businesses and unions on how much money they are putting 
into campaigns. I thought surely that amendment was going to be 
adopted. That amendment was not adopted.
  I will say right now that I believe organized labor put hundreds of 
millions of dollars into the campaigns last cycle, and we do not know 
and we will not know because this bill does not require that they tell 
us. Everybody else has to disclose contributions; organized labor does 
not. They do not have to disclose their independent activities. They do 
not have to disclose their indirect, in-kind contributions to 
campaigns. They have thousands of people making phone calls day after 
day that are paid full salaries, benefits, at a station set up for 
political activity, and most of that is not disclosed. We do not know 
and this bill does not help us know. Is this a balanced package? It 
looks to me more and more that it is not.
  Originally, this bill had language supposedly to codify Beck, Beck 
being a decision that if a union person did not want their money used 
for political purposes, they could file notice and get a refund. I 
never thought that case was satisfactory because their money would be 
used in ways with which they still would not agree, but it was better 
than nothing. They could get a refund.
  If somebody does not want money used for political purposes, they 
should say no and not have to contribute.
  The underlying bill purported to codify Beck, but it did not do that. 
I raised that issue with Senator McCain and Senator Feingold, and they 
concurred with me. We struck the language that weakened Beck, in my 
opinion, significantly. That made the bill a little better.
  I want to give credit when credit is deserved. Certainly this bill is 
improved by the hard money increase. I think it was improved by 
striking the language, what I would call the false Beck. That language 
was taken out of the bill. That made it a little bit better.
  Then there was another provision this Senator fought very strongly 
against, but only at the last minute because I just found out about it 
at the last minute, and that was the amendment by our friend and 
colleague from New Jersey, Senator Torricelli, that dealt with lower 
advertising rates for politicians.
  I fought it, but we only had 30 votes against it. Under that 
amendment, broadcasters have to offer the lowest unit rate to 
candidates for each type of time over a 365-day period. That is an 
outlandish, enormously expensive subsidy for politicians. And while 
people say, this is great, we are limiting money in politics, and so 
on, what we have given politicians is an enormous multimillion-dollar 
gift through this amendment, a multimillion-dollar gift. We defeated a 
couple amendments that dealt with public financing of campaigns, but 
this amendment is indirect public financing of campaigns because it is 
going to allow politicians to get the rates cheaper than anybody else 
in America. It also has a little provision that says the politicians's 
ads cannot be preempted.
  To give an example, prior to the election in October, it gets 
expensive because a lot of people are trying to buy time. There is a 
lot of competition. A lot people watch ``Monday Night Football.'' I 
like to watch it. I am sure commercial ads get expensive on Monday 
night or any night of high visibility.
  We said: Politician, you get the cheapest rate of the year, and you 
can use that time on Monday night, you can use it on any great night. 
You get to have the cheapest time of the year. You get your time, and 
it may be one-tenth as expensive as normal rates for ``Monday Night 
Football'' or some other program. You get the lowest rate of anybody 
throughout the entire year, and they cannot preempt you. You buy the 
time, you've got it.
  Maybe the broadcaster is in rural West Virginia or Oklahoma and has a 
radio station or a TV station and is scraping to get by. They are going 
to get paid the lowest rate they charge on a hot summer night. The 
broadcaster may think: This is good, we have the new ``ER'' or some 
other new show that is really popular, so we can make some money. But 
they are going to have politicians swamping them saying: Give that time 
to me.
  We passed an enormous subsidy for politicians. It is an enormous 
advantage for incumbents because incumbents usually outraise their 
challengers most of the time. We just increased the advantage 
incumbents have by millions of dollars. Thank you very much. We should 
pat ourselves on the back: Hey, this is good, and we were able to slide 
this through. People don't know--they think we are reforming campaigns, 
and we are giving politicians enormous subsidies and acting as if it is 
reform, and being proud of it. We are going to slap everybody on the 
back about our great reform. We did a little nice thing to which nobody 
paid attention. Politicians, you get the lowest rate of anybody all 
year long, and you get to use it the night before an election. That is 
our little gift to ourselves to which nobody paid attention. It is 
another good reason, in my opinion, that this bill should be defeated.
  I look at groups who are active in campaigns, and they will say: You 
are infringing on our ability to get our message out, to communicate, 
to run ads, to mention names, vote for, vote against. We are making it 
very difficult, in some cases illegal, under this bill. It is wrong and 
unconstitutional. We also greatly increase subsidies for politicians. I 
think that is absolutely shameful. We should not have done it, but we 
did it.
  While this bill may be an improvement over present law on the whole, 
it is unconstitutional and it includes an egregious subsidy for 
politicians. It should be defeated, and I will vote no on this measure 
when we vote on Monday.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Massachusetts is recognized.
  Mr. KENNEDY. I thank the Chair.

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