[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 11833-11834]
[From the U.S. Government Publishing Office, www.gpo.gov]



                        COLORADO REPUBLICAN CASE

  Mr. FEINGOLD. Mr. President, on April 2 of this year, the Senate 
voted overwhelmingly to pass the McCain-Feingold bill and ban soft 
money. Even before the roll was called on final passage and 59 Senators 
voted ``aye,'' the Senate's foremost opponent of reform declared that 
he relished the opportunity to bring a constitutional challenge to the 
bill. ``You're looking at the plaintiff,'' the Senator from Kentucky 
announced.
  Opponents of reform have consistently expressed confidence that the 
courts will strike down our efforts to clean up the campaign finance 
system. They regularly opine that the McCain-Feingold bill is 
unconstitutional, and, despite clear signs to the contrary in the 
Court's opinion last term in Nixon v. Shrink Missouri Government PAC, 
express great certainty that the Supreme Court will never allow our 
bill to take effect.
  Well, in its decision yesterday morning in FEC v. Colorado Republican 
Federal Campaign Committee, the Court again dumped cold water on that 
certainty. The court held that the coordinated party spending limits 
now in the law--the so-called ``441a(d) limits''--are constitutional. 
It ruled that the coordinated spending limits are justified as a way to 
prevent circumvention of the $1,000 per election limits on 
contributions to candidates that the Court upheld in the landmark 
Buckley v. Valeo decision in 1976. In my view, the

[[Page 11834]]

decision makes it even more clear that the soft money ban in the 
McCain-Feingold bill will withstand a constitutional challenge.
  The first thing to note about the Court's ruling is that it reaffirms 
the distinction the Court has drawn between contributions and 
expenditures and the greater latitude that the Court has given Congress 
in the case of restraints on contributions. The Court noted that the 
law treats expenditures that are coordinated with candidates as 
contributions, and the Court has upheld contribution limits in previous 
cases with that understanding. It agreed with the FEC that spending by 
a party coordinated with a candidate is functionally equivalent to a 
contribution to the candidate, and that the right to make unlimited 
coordinated expenditures would open the door for donors to use 
contributions to the party to avoid the limits that apply to 
contributions to candidates.
  The Court rejected the Colorado Republican Party's argument that 
party spending is due special constitutional protection. Instead, the 
Court found that the parties are in the same position as other 
political actors who are subject to contribution limits. Those actors 
cannot coordinate their spending with candidates. The Court noted that 
under current law and the Court's previous decision in the first 
Colorado case, the parties are better off than other political actors 
in that they can make independent expenditures and also make 
significant, but limited, coordinated expenditures. The limits on 
coordinated expenditures have not prevented the parties from organizing 
to elect candidates and generating large sums of money to efficiently 
get out their message, the Court noted.
  After determining that limits on party coordinated spending should be 
analyzed under the same standard as contribution limits on other 
political actors, the Court had little trouble in deciding that there 
was ample justification for those limits based on the need to avoid 
circumvention of the contribution limits in the federal election laws. 
It pointed to substantial evidence of circumvention already in the 
current system, and the near certainty that removing the 441a(d) limits 
would lead to additional circumvention. The Court held:

       [T]here is good reason to expect that a party's right of 
     unlimited coordinated spending would attract increased 
     contributions to parties to finance exactly that kind of 
     spending. Coordinated expenditures of money donated to a 
     party are tailor-made to undermine contribution limits. 
     Therefore, the choice here is not, as in Buckley and Colorado 
     I, between a limit on pure contributions and pure 
     expenditures. The choice is between limiting contributions 
     and limiting expenditures whose special value as expenditures 
     is also the source of their power to corrupt. Congress is 
     entitled to its choice.

  So, Mr. President, I am pleased that the Court upheld Congress's 
right to limit the coordinated spending of the parties. But even more 
than that, I am pleased at the way that the Court looked at the 
constitutional issues in the case and the arguments of the parties. The 
Court's analysis demonstrates an understanding of the real world of 
money and politics that gives me great confidence that it will uphold 
the soft money ban in the McCain-Feingold bill against an inevitable 
constitutional challenge.
  As my partner and colleague, Senator McCain, pointed out to me prior 
to my taking the floor, of course this decision was about hard money; 
but if you really read it, it isn't so much about hard money or soft 
money, it is just about money and the corrupting influence it has on 
our political process.
  For example, the Court noted that ``the money the parties spend comes 
from contributors with their own interests.'' And the Court recognized 
that those contributors give money to parties in an attempt to 
influence the actions of candidates. The Court said:

       Parties are thus necessarily the instruments of some 
     contributors whose object is not to support the party's 
     message to elect party candidates across the board, but 
     rather to support a specific candidate for the sake of a 
     position on one, narrow issue, or even to support any 
     candidate who will be obliged to the contributors.

  This is precisely the point that we who have fought so hard to ban 
soft money have been making for years. These contributions are designed 
to influence the federal officeholders who raise them for the parties, 
and ultimately, to influence legislation or executive policy. The Court 
shows that it understands this use of contributions to political 
parties when it states:

       Parties thus perform functions more complex than simply 
     electing candidates; whether they like it or not, they act as 
     agents for spending on behalf of those who seek to produce 
     obligated officeholders.

  The Court also recognized that the party fundraising, even of limited 
hard money, provides opportunities for large donors to get special 
access to lawmakers. The Court states:

       Even under present law substantial donations turn the 
     parties into matchmakers whose special meetings and 
     receptions give the donors the chance to get their points 
     across to the candidates.

  In a footnote, the Court notes evidence in the record of the 
Democratic Senatorial Campaign Committee establishing exclusive clubs 
for the most generous donors.
  These special clubs and receptions are even more prevalent in the 
world of soft money fundraising. Both parties sell access to their 
elected officials for high dollar soft money contributions. This week a 
Republican fundraiser featuring the President and the Vice President is 
expected to raise over $20 million.
  The corrupting influence of soft money, or at least the appearance of 
corruption created by the extraordinary sums raised by party leaders 
and federal officeholders and candidates, is an argument for the 
constitutionality of a ban on soft money that those who support the 
McCain-Feingold bill would have made even if the Colorado II case had 
come out the other way. But the Court's decision itself is solid 
support for another independent reason that the soft money ban is 
constitutional.
  Corporations and unions are prohibited from contributing money in 
connection with federal elections. And individuals are subject to 
strict limits on their contributions to candidates and parties. The 
soft money loophole allows those limits to be evaded. This is not just 
a theoretical possibility, as in the Colorado case. There is a massive 
avoidance of the federal election laws going on today, as there has 
been for over a decade. The evidence of this is overwhelming. Soft 
money is being raised by candidates for the parties, and it is being 
spent in a whole variety of ways to influence federal elections. In 
recent years, the parties have used soft money to run ads that are 
virtually indistinguishable from campaign ads run by the candidates. 
That is what is going on in the real world.
  A soft money ban will end the circumvention of these crucial limits 
in the law, limits that date back to 1907 in the case of corporations, 
1947 in the case of unions, and 1974 in the case of individuals. The 
Supreme Court's decision yesterday tells us that Congress can 
constitutionally act to end that evasion.
  The remaining question, of course, is whether we will do it. Our vote 
in this body on April 2 was the first step. When the House returns from 
the July 4th recess it will take up campaign finance reform, and I am 
hopeful that it will act decisively to pass a bill that is largely 
similar to the McCain-Feingold bill. Then it will be up to the Senate 
to act quickly and send the bill to President Bush for his signature. 
We are getting close, Mr. President, to finally cleaning up the corrupt 
soft money decision. The Supreme Court's decision yesterday, unexpected 
as it was to many in the Senate and in the legal community, is a major 
boost for our efforts. The Court has spoken. Now Congress must act.
  I yield the remainder of the time under my control to the Senator 
from New York.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. I thank the Chair. Mr. President, I add my thanks and 
gratitude to my good friend from Wisconsin. He has been a leader on 
this whole issue of campaign finance reform for so many years. He 
started as a young boy, and it has taken most of his life. I think 
progress is being made from a most unlikely source. I applaud


the continued perseverance and commitment of the Senator.

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