[Congressional Record (Bound Edition), Volume 150 (2004), Part 1]
[Senate]
[Pages 1009-1012]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     BIPARTISAN CAMPAIGN REFORM ACT

  Mr. McCAIN. Madam President, I join my friend from Wisconsin on the 
floor to discuss the entire issue of the Bipartisan Campaign Reform Act 
and also at a time when the Federal Election Commission is about to 
make some decisions regarding implementation of this legislation.
  I think it is very important that as the Federal Election Commission 
is considering making these rules, that it be made very clear what the 
intent of the authors of the legislation was. Because as I will go into 
in my statement, it was the Federal Election Commission that created 
the loopholes that caused the explosion of soft money in American 
politics. It was not court decisions.
  It is not accidental that the Senator from Wisconsin and I have 
proposed legislation to fundamentally restructure the Federal Election 
Commission. In the meantime, the Federal Election Commission must 
understand and read the U.S. Supreme Court decision--I quote from the 
Court's ruling--stating:

       The main goal of [the national party soft money ban] is 
     modest. In large part, it simply effects a return to the 
     scheme that was approved in Buckley and that was subverted--

  Madam President, the words the U.S. Supreme Court used:

     subverted by the federal electioneering efforts with a 
     combination of hard and soft money. . . . Under that 
     allocation regime--

  That was a decision by the Federal Election Commission--

     national parties were able to use vast amounts of soft money 
     in their efforts to elect federal candidates.

  Now, I hope the Federal Election Commission gets our message. We do 
not, and will not, stand for the creation of new loopholes to violate 
this law.
  Senator Feingold and I began, in 1995, with our first effort to 
reform this system. It took us 8 years until the final decision by the 
U.S. Supreme Court upholding the constitutionality, in a historically 
ironic decision entitled McConnell v. FEC. I hope the irony of those 
words is not lost on my colleagues. We will not stand for the Federal 
Election Commission--which they already have--subverting this law. We 
will not stand for it. We will use every method available to us to be 
sure that the law is enforced as it is written and intended and 
declared constitutional by the U.S. Supreme Court.
  It is time for the Federal Election Commission, rather than being an 
enabler to those who want to subvert the laws, to be a true enforcer of 
the law, a role which they will find strange and intriguing and 
certainly unusual for that Commission.
  I might add, too, we still have two members of the Federal Election 
Commission who declared their firm conviction that this law was 
unconstitutional. If they still hold that belief, as at least one of 
them has stated recently, they should recuse themselves from further 
involvement in a law they believe is unconstitutional. In fact, 
resignation would probably be in order so someone who believes in the 
constitutionality of this law, as affirmed by the U.S. Supreme Court, 
would be empowered to enforce it.
  In 1995, my dear friend Senator Feingold and I first introduced 
legislation designed to limit the influence of special interests on 
Federal campaigns. We began our fight because it had become clear to us 
that our campaign finance system was broken and this breakdown was 
having a detrimental effect on our democracy. Seven years, four 
Congresses, several rewrites, countless hours of debate, amendments, 
and much hard work by dedicated grassroots activists later, the 
Bipartisan Campaign Reform Act became law on March 27, 2002.
  I know my friend from Wisconsin agrees with me. We could not have 
done it without the thousands of Americans who made our cause their 
cause. We could never have achieved this goal. They will have our 
undying gratitude.
  Last month, following an illegal challenge, the Supreme Court ended 
the 7-year-long battle when it upheld the act, or BCRA, in the case of 
McConnell v. FEC. For me it was one of the Court's most needed and 
welcomed opinions. In light of this landmark victory, I want to 
congratulate those who worked so hard to secure it and to talk about 
the work that remains to be done to strengthen our democracy and to 
empower all Americans through civic participation.
  We can already see some benefits from these years of hard work. No 
longer can a Member of Congress call the CEO of a corporation or the 
head of a labor union or a trial lawyer and ask them for a huge soft 
money donation in exchange for access to high-level Government 
officials. That cannot happen today. Just last week, Roll Call reported 
that for the first time in many years, the two parties did not hold any 
high-donor fundraisers at the Super Bowl. The article stated:

       With soft money banned, the parties have come to the 
     conclusion that the yield at a Super Bowl fundraiser doesn't 
     justify the expense.

  However, let me be clear, this in no way means reform is complete. 
Our work and the work of thousands of Americans engaged at the 
grassroots level, the efforts of numerous reform groups, is far from 
over. While the basis for BCRA, that large, unregulated political 
contributions cause both the appearance and reality of corruption by 
elected officials, is self-evident, mustering the evidence needed to 
prove this to the Court was an extraordinary feat. The mountain of 
evidence that was compiled, however, provided a solid foundation for 
the Supreme Court's decision to close loopholes through which were 
flowing hundreds of millions of dollars in soft money.
  The evidence collected included sworn statements from elected 
officials acknowledging they had been forced to raise large 
contributions for the political parties, internal memos from political 
party leaders to elected officials reminding them who gave big 
contributions prior to key votes, and testimony from business leaders 
who were provided a ``menu of access'' by party officials showing how 
$50,000 gets you a meeting with an elected official, $100,000 gets you 
a 15-minute meeting with another elected official.
  The strength of the evidence on the extent of corruption and the 
appearance of corruption as well as the creativity with which the 
campaign finance laws were being evaded led the Supreme Court to uphold 
BCRA, which sought to close the loopholes that had been opened in the 
Federal Election Campaign Act.
  Significantly, the evidence also led the Supreme Court to find that 
Congress needed and possessed broad authority to enact laws to reduce 
the corrupting influence of unregulated money in politics. The Court 
also made a powerful statement about the so-called regulators of the 
corrupting soft money system, the Federal Election Commission. 
According to the Court, the soft money system was the result of a 
series of loopholes opened by the FEC and exploited by the party 
committees. I also quoted what Justices Stevens and O'Connor wrote.
  While the Supreme Court in the McConnell case recognized the role the 
FEC had played over the years in eroding the campaign finance laws, it 
was not asked to consider the rules the commission adopted just last 
year to implement BCRA--rules that, true to the FEC's history, 
undermined the integrity of campaign finance law. The Court, however, 
may soon be asked to do this. Shortly after the FEC took a big bite out 
of BCRA through its rulemaking process, Representatives Shays and 
Meehan filed a lawsuit challenging the regulations. This action is on a 
fast track in Federal District Court.
  Since its inception, BCRA has been reviled by the political party 
establishments that decried the eminent demise of our two-party system. 
Yet in the midst of a hotly contested Presidential campaign, evidence 
suggests the opposite is true. Under BCRA, both the Democratic and 
Republican national parties are reporting a resurgence of grassroots 
support and significant increases in new hard money donors. In

[[Page 1010]]

fact, recent figures show there have been 600,000 new hard money donors 
to the Democratic Party and 1 million new Republican hard money donors. 
That is what we intended.
  The Court was right to uphold the new reform law. Implemented 
correctly, it will go a long way to restoring people's faith in our 
democratic system. That said, reform is not a one-time fight. We must 
continue the work to strengthen our democracy and reconnect the people 
to the political process. The adoption and Court sanction of BCRA 
enables Congress to push forward with important reforms that help 
improve our system of Government and reduce barriers to political 
participation.
  It is critical that we ensure BCRA is not negated by widespread 
circumvention of the new law by the FEC and by outside political 
committees. While we are challenging FEC's implementing regulations, we 
must also act to restructure the commission so it will not only 
implement campaign finance laws effectively but actively enforce them.
  The American political system needs an agency that will give effect 
to our campaign laws fairly and free from the partisan influence that 
currently dominates the commission structure. Without this key reform, 
no campaign finance reform law can work well.
  We must fix the ailing Presidential public funding system. For many 
years, the system gave Americans a viable opportunity to run for our 
highest office and increased competition in our Presidential elections, 
but the system is now outdated and bankrupt. Senator Feingold and I 
have introduced a proposal to fix it, and we are committed to educating 
the public about the importance of doing this and to building the 
coalition needed to make it happen.
  Ongoing reform efforts are needed not only at the Federal level but 
also at the State level. Working at the State level, we can help to 
restore faith in the political process by improving contribution 
disclosure laws, promoting clean election programs, and encouraging an 
independent and noncorrupt campaign finance system.
  To break down the barriers to political participation, we must 
improve ballot access, promote open primaries, and fix the 
redistricting process.
  This is not a partisan issue. It should not advantage one party over 
the other. What reform does is create transparency, equality, and 
participation, and inspire confidence in those we represent. The 
strength and real muscle in this fight lies with the American people. 
During the long battle in the Senate to pass campaign finance reform, 
we called on the American public to make their voices heard on Capitol 
Hill. They answered, and the impact was astounding. The phone calls, e-
mails, and letters that flooded into Members' offices had a tremendous 
impact. Constituent communications translated into votes for reform.
  Reform is an ongoing process. It didn't end with Teddy Roosevelt in 
1907, and it will not end with John McCain and Russ Feingold in the 
Senate. I am very much a realist. From the beginning of this fight, I 
have said that as soon as the soft money loopholes addressed in BCRA 
were closed, there would be very smart people all over Washington 
trying to find ways around the law. I am sad to report these folks 
wasted no time in attempting to circumvent it again.
  The recent creation of certain new organizations under section 527 of 
the Internal Revenue Code is the first broad-scale attempt to undermine 
BCRA.
  Let me be clear on one thing. There are many legitimate 527 
organizations whose method of operation is not in question here. They 
are nonpartisan. They work to do the things we want to further the 
goals of democracy. There are, however, some groups that have recently 
been set up for the sole purpose of raising or spending tens of 
millions of dollars in soft money to influence the 2004 Presidential 
and congressional elections.
  Madam President, various groups have been created expressly to spend 
large sums of soft money on partisan voter mobilization drives and sham 
``issue advocacy'' to influence Federal elections. These groups have as 
their overriding, if not sole purpose, the influencing of Federal 
elections.
  Federal election law requires such groups to register as political 
committees with the FEC. Federal political committees may only accept 
and spend hard money--that is, money limited in amount and source. I 
will repeat that if a 527 is nonpartisan in nature, we have no problem. 
If a 527 is engaged in partisan activity, they then fall under the same 
restrictions that any other political committee does that is engaged in 
partisan activity. That should be obvious to the Federal Election 
Commission.
  These new groups, however, which have made clear that their purpose 
is to influence Federal elections--they have not made any bones about 
it--have purportedly set up ``non-Federal'' accounts to accept 
corporate and labor union funds and large contributions from 
individuals. They plan to use these moneys, we are told, to finance 
partisan voter drives and run sham issue ads aimed at influencing the 
2004 Federal elections. This blatant end run around the campaign 
finance laws should not be tolerated.
  When a political committee has an overriding purpose to influence 
Federal elections, it cannot be allowed to circumvent campaign finance 
laws by establishing a ``non-Federal account'' and claiming that the 
money being raised and spent to influence Federal elections is not for 
that purpose. These committees cannot be permitted to transform 
contributions that are clearly for the purpose of influencing Federal 
elections into ``allowable soft money'' simply by depositing those 
funds into ``non-Federal accounts.'' These groups are clearly political 
committees that should be registered as such with the FEC and must 
operate accordingly within the hard money amount and source 
limitations.
  After the success of McConnell v. FEC, we cannot sit idly by and 
allow this potentially massive circumvention of campaign finance laws. 
BCRA finally closed soft money loopholes and, again, new ones should 
not and cannot be tolerated. I am pleased to see that the FEC has 
recognized the immediate need to examine these soft money problems. I 
hope the Commission will not make the mistakes it has made in the past 
and will act swiftly and comprehensively to protect the integrity of 
our campaign finance laws.
  Madam President, I also wish to comment on one of the things that 
happened. We have seen, in the last Presidential campaign, a dramatic 
reduction in negative campaign ads run by the various candidates. Why 
is that? It is because of an amendment that was added by the Senator 
from Maine, Ms. Collins, and the Senator from Oregon, Mr. Wyden, which 
was called ``stand by your ad,'' I believe. Guess what. Every time 
there is a message, the candidate says, I am so and so and I approve of 
this ad. They would not approve a lot of the trash put in and negative 
attacks, which has one effect, we all know, and that is drive down 
voter turnout. It has a very salutary effect.
  I have to admit that I never thought of that in the 8 years Senator 
Feingold and I looked at every aspect of campaign finance reform; we 
had not thought of that amendment. It has a marvelous positive affect, 
having the candidate say: I am so and so and I approve of this ad.
  I also say there was a marvelous team that argued our case before the 
U.S. Supreme Court. I ask unanimous consent to have a list of names 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Lawrence H. Norton, Richard B. Bader, Stephen E. 
     Hershkowitz, David Kolker, Theodore B. Olson, Peter D. 
     Keisler, Paul D. Clement, Malcolm L. Stewart, Gregory G. 
     Garre, Douglas N. Letter, James J. Gilligan, Michael S. Raab, 
     Dana J. Martin, Terry M. Henry, Rupa Bhattacharyya, Andrea 
     Gacki.
       Roger M. Witten, Seth P. Waxman, Randolph D. Moss, Edward 
     C. DuMont, Paul R.Q. Wolfson, Purt Neuborne, Frederick A.O. 
     Schwarz, Jr., Charles G. Curtis, Jr., David J. Harth, 
     Michelle M. Umberger, Bradley S. Phillips, E. Joshua 
     Rosenkranz, Alan B. Morrison, Scott L. Nelson, Eric J. 
     Mogilnicki, Michael D. Leffel, A. Krisan Patterson, Jennifer 
     L. Mueller, Stacy E. Beck, Jerrod C.

[[Page 1011]]

     Patterson, Fred Wertheimer, Alexandra Edsall, Trevor Potter, 
     Glen M. Shor.

  Mr. McCAIN. Madam President, I particularly thank Mr. Ted Olson, the 
Solicitor General, who entered into this situation as one who did not 
agree with campaign finance reform and became a strong advocate. He 
made compelling arguments to the U.S. Supreme Court. I also thank Seth 
Waxman and his team of lawyers, who did a marvelous job. There are so 
many people and so many organizations that continue to work on our 
behalf.
  Finally, I wish to make two closing points. One, the Federal Election 
Commission cannot be allowed to undermine this law. The U.S. Supreme 
Court is very clear about the role of the Federal Election Commission. 
So we cannot let these 8 years of hard work--not because of Senator 
Feingold and me but because of the thousands and thousands of Americans 
who worked so hard to clean up this system that has either corruption 
or the appearance of corruption associated with it.
  Finally, one of the great pleasures of my life in public service is 
to have the opportunity to know and appreciate and have the undying and 
everlasting friendship of my dear friend from Wisconsin, who is one of 
the most honest and decent Americans with whom I have ever had the 
privilege of knowing and serving. I would be honored to serve with him 
under any circumstance.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Madam President, let me say how fitting it is that the 
Senator from Maine is presiding at this point, who has made a 
tremendous contribution to our efforts on campaign finance reform. It 
is a tremendous privilege to come to the floor with my good friend and 
longtime partner in campaign finance reform, the senior Senator from 
Arizona, Mr. McCain. Everybody knows we fought side by side for nearly 
7 years to see our bill enacted into law.
  Finally, on December 10, nearly 2 years after President Bush signed 
the bill, the Supreme Court upheld our work against a constitutional 
challenge. It has been a long and hard struggle, and, frankly, we could 
not possibly be happier with the result. The Court's decision in 
McConnell v. FEC is a complete vindication of our effort to help rid 
politics of the corruption of soft money. We are very proud of and also 
humbled by the Court's ruling.
  We are not here to gloat. It is not polite or useful to do so. But if 
I had a dollar for every time someone said on this floor or in the 
media that our bill would never stand up in court, I would actually be 
a wealthy man. Rather, we are here to thank our colleagues who joined 
with us to pass this historic reform, to review the Supreme Court 
landmark decision, and briefly take a look forward, as Senator McCain 
has already done. As we often noted during the debate, the McCain-
Feingold bill was not intended to be the last word on the topic of 
campaign finance reform. The Court's decision will serve as a guidepost 
for future reform initiatives.
  First, I thank all of the Members of this body who worked so hard 
with us to pass the bipartisan Campaign Reform Act.
  For many, this was a labor of love. For others, it was a difficult 
fight because of resistance from their own party or from political or 
campaign advisers. In the end, as Senator McCain said it so well, this 
bill passed because the American people demanded it and because 
courageous Senators and Members of the House were willing to stand up 
to the defenders of the status quo.
  I particularly thank the Democratic leader, Senator Tom Daschle, and 
his counterpart at the time in the House, Representative Dick Gephardt. 
Their leadership and strong support made it possible to get the bill 
through all the complicated legislative obstacles we faced and onto the 
President's desk.
  Also deserving of special thanks is the core bipartisan group of 
supporters of reform who worked closely with us to pass the bill. 
Senators Levin, Collins, Lieberman, Thompson, Snowe, Schumer, Jeffords, 
Cochran, Cantwell, Edwards, and Kerry all made major contributions to 
the law that the Supreme Court upheld.
  I think it is actually hard to imagine a more clear statement from 
the Supreme Court than the one delivered in December in McConnell v. 
FEC. The margin of the Court was narrow, as it often is in complicated 
and highly contested cases. But the majority could not have been more 
emphatic that what we did in McCain-Feingold was a constitutional 
approach to the problems of soft money and also phony issue advocacy 
that Congress identified and we tried to address.
  I have to tell you, that was enormously gratifying after the hard 
work we did in this body to pay attention to the Court's previous 
decisions. It meant a great deal to me personally that we looked at 
what the Court had said about the first amendment of the Constitution 
and crafted our legislation with respect to that. That is exactly what 
we did.
  We drafted this bill specifically to be consistent with what the 
Court had said in the past in analyzing the first amendment implication 
of campaign finance legislation. We worked hard to shape a legislative 
record demonstrating the need for the reforms we proposed.
  In upholding the law, the Court recognized the difficult and 
painstaking work we did to stay within the constitutional framework set 
out in previous cases.
  The Court said:

       We are mindful that in its lengthy deliberations leading to 
     the enactment of BCRA, Congress properly relied on the 
     recognition of its authority contained in Buckley and its 
     progeny.

  I was particularly pleased at the deference the Court showed to 
congressional judgments about the problems with the system and the best 
way to address them. That deference has often been lacking in recent 
opinions in other areas, but this time the Court realized that Congress 
has special expertise in this area and needs to have the authority to 
actually address real world problems in the way that it believes will 
be most effective.
  This is enormously important for the future of reform. It shows that 
the Court understands that under our Constitution, Congress is not 
powerless to address threats to the health of our democratic or 
political processes.
  In no way, of course, did the Court give to Congress unbridled power. 
It simply upheld a reasonable and measured response to the soft money 
problem that many on both sides of the aisle had come to believe was 
extremely harmful.
  One aspect of the Court's opinion is worth noting as we look forward 
to future reform efforts. The Court laid responsibility for the soft 
money problem squarely where it belongs, and as Senator McCain just did 
again--with the Federal Election Commission. As Senator McCain noted, 
the Court specifically stated that the FEC ``subverted'' the law by 
allowing soft money to be used to aid Federal candidates.
  The Court said:

       [T]he FEC's allocation regime has invited widespread 
     circumvention of FECA's limits on contributions to parties 
     for the purpose of influencing Federal elections.

  The Supreme Court agreed with us that soft money was a loophole that 
Congress could legitimately try to plug, and that the loophole was 
improperly created by the FEC. With this validation of the position 
taken by reformers for many years, the Court underlined a cautionary 
note that we have sounded many times before on this floor. No law in 
this area can be self-executing. To be successful, campaign finance 
reform must be implemented and enforced by an agency that is dedicated 
to carrying out the will of Congress, not to frustrate it.
  The new law instructed--instructed--the FEC to act quickly to develop 
regulations to explain and implement BCRA. Time after time, instead the 
FEC adopted rules that weakened the law. Senator McCain and I 
participated in those rulemaking proceedings, but our advice on many 
important issues was ignored.
  As currently structured, the FEC seems simply incapable of properly 
applying the law that this Congress enacted. Virtually every 
complicated

[[Page 1012]]

 issue is approached from a political perspective, and the political 
parties have extraordinary sway over the Commission's actions.
  Senator McCain and I viewed the BCRA rulemaking process as a test, if 
you will, a final chance for the FEC to change its approach and to 
finally begin to faithfully enforce the law in a nonpartisan fashion. 
We were very disappointed in the result. We have, therefore, concluded 
that the FEC, as currently constituted, cannot provide the strong and 
consistent enforcement of the Federal election laws that this country 
needs. So together we have proposed to replace the agency with a new 
body, the Federal Election Administration.
  We need to have an agency led by people who are respected by both 
sides of the aisle and will carry out their responsibilities in a 
nonpartisan manner rather than simply having representatives from each 
of the parties canceling each other out with a partisan approach to 
their jobs. Our bill makes individuals who have worked for or served as 
counsel to parties or candidates ineligible to serve as administrators.
  We have no illusions that this reform will be easy to pass. Those who 
opposed our bill will undoubtedly oppose replacing the agency that is 
responsible for the rulings that made our bill necessary and that 
continue to undermine the new law. But reform of the FEC is essential 
if the will of Congress and BCRA is to be carried out.
  I am also pleased to join Senator McCain in introducing a bill to 
reform the Presidential public funding system. That system did actually 
work well for seven consecutive Presidential elections from 1976 to 
2000. In those elections, Republicans were elected four times and 
Democrats three times and challengers actually defeated incumbents in 
three out of the five races where an incumbent was a candidate.
  This year, unfortunately, candidates from both parties have opted out 
of the public funding system for the primaries. Everyone knows the 
system needs to be updated to keep it functioning in future elections.
  I happen to come from a State that had a very good public funding 
system for State elections for many years. In fact, I won my first race 
for the Wisconsin Senate, frankly, only because of that system. But the 
legislature in my State failed to update and revise that system to keep 
pace with the changing realities and costs of political campaigns, and 
now hardly anyone uses it. We can't let that happen to the Presidential 
public funding system.
  Again, when I look at the Presiding Officer, I know these kinds of 
systems can work because they have made them work in her State of 
Maine. The bill we have introduced is a starting point only, much like 
the first McCain-Feingold bill in 1995. We want to work with our 
colleagues on both sides of the aisle to come up with a bill that this 
Senate can support to preserve the public funding system that has 
served the country so well since the excesses of the Watergate era 
demonstrated that private financing of Presidential elections is really 
not a very good thing for our democracy.
  I hope our colleagues will work with us over this year to perfect a 
bill that can be quickly passed in the next Congress after this 
Presidential election has been held.
  Senator McCain and I have also introduced a bill to provide free air 
time to congressional candidates. The cost of television advertising 
has skyrocketed, and we believe the Nation's broadcasters, who make 
great profits from a public resource--the airwaves--should contribute 
to improving the democratic process. I look forward to continuing to 
discuss this bill with our colleagues as well.
  We do not expect any one of these three major reform bills will be 
considered on the Senate floor this year. But there is one bill that 
can and should be enacted very quickly. That is a bill we have 
introduced to require electronic filing of Senate campaign finance 
reports. Right now, the Senate lags way behind the House in providing 
current and complete disclosure of contributions to and expenditures on 
our campaigns. This is really an embarrassment. It is possible the 
Rules Committee can quickly correct this problem, but if not, Senator 
McCain and I have introduced a bill to bring the Senate into the 21st 
century, and we should enact it promptly.
  Again, I thank all my colleagues who supported the McCain-Feingold 
bill. I hope they are as proud of their accomplishment as I am of them. 
I am convinced we have begun to change this system for the better. 
Senator McCain discussed there is already evidence of that. I think as 
the 2004 campaign heats up, we will see plenty more examples of how the 
system has improved, but we cannot rest on our laurels. We saw what 
happened when Congress essentially left the field for 20 years after 
passing the post-Watergate reforms. We must be vigilant to protect what 
we did in BCRA, and we must look ahead and continue to fight for a 
campaign finance system that enhances, rather than suffocates, the 
power of individual citizens and voters in our democracy.
  Finally, I again express my admiration and appreciation for all 
Senator McCain has done on this issue. For one final time I thank him 
for calling me in late 1994 and saying he wanted to work with me on 
this project. Next time tell me it is going to take 8 years. I am more 
than grateful for this terrific opportunity to not only work with a 
great American hero, but to have my name associated with him to the 
point where Senator McCain has said that some people think my first 
name is McCain.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.

                          ____________________