E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 105 CONGRESS, FIRST SESSION

Vol. 143 WASHINGTON, MONDAY, OCTOBER 6, 1997 No. 137 Senate The Senate met at 1 p.m. and was today’s session. Senators who desire to I believe we will be in session on Fri- called to order by the President pro speak with regard to the pending day and will probably have votes up tempore [Mr. THURMOND]. amendment or bill are encouraged to until around noon. But we will get do so during today’s session. We should more information on that as the day PRAYER be able to get 5 hours or so of debate in progresses. The Chaplain, Dr. Lloyd John today if the Senators are willing to I yield the floor. Ogilvie, offered the following prayer: speak. f Gracious Father, thank You that I also remind my colleagues that a Your power is given in direct propor- cloture vote is scheduled on the pend- RESERVATION OF LEADER TIME tion to the pressures and perplexities ing amendment regarding paycheck The PRESIDING OFFICER (Mr. protection at 2:15 tomorrow. Also, we face. We are given great courage KYL). Under the previous order, leader- under the provisions of rule XXII, and confidence as we are reminded that ship time is reserved. Members have until the hour of 1:30 You give more strength as our burdens today in order to file timely amend- f increase, and You entrust us with more ments to S. 25. In addition to the clo- wisdom as problems test our endur- BIPARTISAN CAMPAIGN REFORM ture vote on the pending amendment, a ACT OF 1997 ance. We are cheered and comforted to cloture vote may occur on Tuesday on know that You will never leave nor for- the underlying campaign finance re- The PRESIDING OFFICER. Under sake us. Your love has no end, and form bill. the previous order, the Senate will re- Your patience has no breaking point. On Friday, a cloture motion was also sume consideration of S. 25, which the Today we want to affirm what You filed on the Mack-Graham amendment clerk will report. have taught us: that You have called us on immigration to the D.C. appropria- The assistant legislative clerk read to supernatural servanthood empow- tions bill. So it may be necessary to as follows: ered by Your spiritual gifts of wisdom, have a cloture vote during Tuesday’s A bill (S. 25) to reform the financing of knowledge, discernment, and vision. session on that also if an agreement is Federal elections. You lovingly press us beyond our de- not reached. The Senators are working The Senate resumed consideration of pendence on erudition and experience together. I have spoken with them and the bill. alone. Thank You for giving us chal- I am still hopeful that an agreement Pending: lenges that help to recover our humil- can be worked out. Lott amendment No. 1258, to guarantee ity and opportunities that force us to There are some other pending amend- that contributions to Federal political cam- the knees of our hearts. ments on the D.C. appropriations bill, paigns are voluntary. Help us, Lord, to move forward with but we think maybe we will be able to Lott amendment No. 1259 (to amendment our responsibilities by being attentive reach a conclusion on those if we can No. 1258), in the nature of a substitute. to You and obedient in following Your get the immigration amendment by Lott amendment No. 1260 (to amendment No. 1258), to guarantee that contributions to guidance. Give us that sure sense of Senator MACK worked out. Therefore, Federal political campaigns are voluntary. Your presence and the sublime satis- it is possible that we could complete Lott amendment No 1261, in the nature of faction of knowing and doing Your action on the D.C. appropriations bill a substitute. will. Through our Lord and Saviour. tomorrow. Lott amendment No. 1262 (to amendment Amen. This week, the Senate will also be No. 1261), to guarantee that contributions to f considering other available appropria- Federal political campaigns are voluntary. tions conference reports. I talked to Motion to recommit the bill to the Com- RECOGNITION OF THE MAJORITY the chairman, Senator STEVENS, on mittee on Rules and Administration with in- LEADER Friday. We think maybe there could be structions to report back forthwith, with an The PRESIDENT pro tempore. The as many as three that would be ready amendment. able majority leader is recognized. in the next couple of days that we can Lott amendment No. 1263 (to instructions of motion to recommit), to guarantee that f bring up for consideration. We intend, contributions to Federal political campaigns also, to begin consideration of the SCHEDULE are voluntary. ISTEA transportation infrastructure Lott amendment No. 1264 (to amendment Mr. LOTT. Mr. President, today the legislation, and we hope to be able to No. 1263), in the nature of a substitute. Senate will resume consideration of S. go to that on Wednesday or Thursday Lott amendment No. 1265 (to amendment 25, the pending campaign finance re- and spend the remainder of the week, No. 1264), to guarantee that contributions to form bill. As announced last week, except for interruptions for votes on Federal political campaigns are voluntary. there will be no rollcall votes during the conference reports, on that. Mr. REID addressed the Chair.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S10339 S10340 CONGRESSIONAL RECORD — SENATE October 6, 1997 The PRESIDING OFFICER. The Sen- fact, I have to say they are not iden- but that is a decent word—ability to ator from Nevada is recognized. tical rules; they are worse, because in get up and call things the way he sees Mr. REID. Mr. President, I have to the early part of this century Congress them. I disagree with my friend from applaud the opponents of campaign fi- decided it wasn’t appropriate to have Kentucky, but he is willing to debate nance reform. They have done a great corporate money used in campaigns. the issues as they stand. He has been job. They set out to confuse and dis- The Supreme Court came back last willing to do this from the first time it tract from the real issue of campaign year and said, oh, well, you can use was brought up when Senator BYRD reform, and they have succeeded. They corporate money in campaigns. State was majority leader and when Senator have diverted attention from the fact parties can virtually use the money Mitchell was majority leader. He that raising money becomes one of the any way they want. So corporate doesn’t hide how he feels about cam- essential items and activities of those money is now back into elections for paign finance reform. I appreciate his of us who serve in Congress just to re- the first time in 85 or 90 years. Now approach. Many people are hiding be- main competitive. They have done this corporate money is important. tween the nuances of campaign finance by focusing on extraneous matters like I guess we have to be satisfied that reform and side issues. I say to my who made phone calls, where did they there is a debate. I extend my apprecia- friend from Kentucky that I appreciate make them from? tion to the majority leader for allowing his approach. He says he is against We have not focused, as we should, on this debate to take place; a debate campaign finance reform, and he has the continued increased cost of the about campaign financing. I have to never hidden that fact; he has spoken media in campaigns. Consultants have say, though, Mr. President, that we out openly and has been very candid become more controlling. Self-financ- started out saying, well, McCain- about it. I appreciate his approach to ing has become the norm. Opponents, Feingold doesn’t do it all, but it is not it. Mr. President, of real campaign finance a bad bill. That is why I joined as a I do say, however, that I wish that reform are focused on anything to di- sponsor of that legislation. But now we there were others like my friend from vert attention from the fact that cam- are here before the Senate, the original Kentucky who would stand up and de- paigns are very expensive and too long. McCain-Feingold is long gone, and we bate the issue. McCain-Feingold, for The Governmental Affairs Committee are now talking about a mini McCain- example, let’s debate it, and if there hearing has clearly shown, at least in Feingold, which we are now happy that are enough votes to pass it, fine. If not, this Senator’s opinion, that both par- we have, that even though the original let’s go on to another issue. We don’t ties need more constraints, more con- bill was lacking in many elements, now need filibusters on either side. We need trols, and more attention. we are congratulating ourselves for to debate whether or not we need cam- We must bring attention back to going with a slimmed-down version of paign finance reform. We need to go what the real issues are in campaign fi- McCain-Feingold, which we probably forward. nance—that is, the fact that Senators won’t get a chance to vote on because I personally believe that campaigns, I and Representatives spend large of all the extracurricular, extraneous repeat, are too long, too costly, and we amounts of their time and their efforts matters being debated in this. owe an obligation to the American pub- simply raising money in order to pay This watered-down version, I hope, lic to do something about that. for escalating media costs. As I have can be passed. But because opponents Mr. MCCONNELL addressed the said, we have the never-ending, it of campaign finance reform have taken Chair. seems, self-financing of candidates. it upon themselves to expand a Su- The PRESIDING OFFICER. The Sen- Take a small State like the State of preme Court decision, the Beck case, I ator from Kentucky is recognized. Nevada or one like the Presiding Offi- am not sure we are going to be able to. Mr. MCCONNELL. Mr. President, this cer’s State of Arizona, $4 million, I have come to the floor today to re- would be a good time, in the beginning which has a relatively small campaign mind my colleagues that we are not de- of the debate, to thank my colleague fund in this modern era, sadly. To raise bating campaign finance reform to find from Nevada for his kind words. I ap- that much money, you have to raise out if the President had made phone preciate that very much. Also, Mr. about $13,000 or $14,000 a week every calls from an inappropriate place or President, I would like to insert a num- year. You don’t take a week off for whether he should have gone to his ber of things into the RECORD with Christmas. If you do, you have to raise home. Think about that; he could not some explanation, just to make the more money. If you do that 52 weeks a do that because that is on Federal Record complete, before we go to fur- year for 6 years, you can raise enough property. Maybe he should have taken ther debate later this afternoon. There to be competitive in a race; you will Secret Service agents with him and are a number of Senators on my side of raise about $4 million. As we know, in found a pay phone to make those calls. this issue who want to speak, and they some States it takes a lot more money. The fact is, we should be debating will be coming over at various times In those States, you have to raise twice that campaigns take too much time during the course of the afternoon’s de- that much or three times or four times and campaigns are far too long and bate. that much. Instead of raising $13,000 or take too much money. Since 1992, we First, Mr. President, I would like to $14,000 a week, people have to raise have had a $900 million election cycle. submit a sampling of the opinion $50,000 a week. That is what we should In 1996, there was a 70-percent increase, pieces I have authored in the past year. be focusing on, Mr. President—the fact in just those 4 years. In the last 20 One is from January of this year, pub- that these campaigns are very expen- years, congressional races have in- lished by the Washington Times, in sive. creased their spending by some 700 per- which I had a premonition that Presi- Eleven years ago, I came to the Sen- cent. Both political parties, Democrats dent Clinton, as his own campaign fi- ate floor and talked about this cam- and Republicans, know that the cost of nance scandal deepened, would become paign I had been through, a campaign campaigns is the problem. So I think campaign finance reform’s No. 1 fan. where corporate money was used. Com- we should bring back the focus on the Frankly, it’s not that I am particularly plaints had been filed with the Federal real issue of campaign finance reform, clairvoyant, but rather that they are Election Commission. It is 11 years which is that there is too much money so predictable. now, and a number of those complaints being spent and campaigns are too As the Clinton administration and have still never been disposed of by the long. the Democratic National Committee Federal Election Commission. They are I see my friend from Kentucky on the have sunk in a scandalous quicksand of still pending. I thought to myself, I floor. I have to say to him that I appre- their own making, the more they pub- can’t believe there would be another ciate his honesty in this campaign de- licly thrashed around groping for a election with the same rules in effect. bate. From the very first time that he campaign finance bill as if it were a We haven’t had one election since then; took this as a campaign issue, he life preserver. Unfortunately for Amer- we have had six since then where the hasn’t minced any words. He has said ica, the President and Vice President same rules applied to Members of Con- basically that he is opposed to it. We GORE seek to save themselves from gress. I, personally, will begin my third have a lot of people, Mr. President, who their own embarrassing malfeasance in campaign using these same rules. In don’t have the—I won’t say courage, raising money from foreigners and the October 6, 1997 CONGRESSIONAL RECORD — SENATE S10341 other episodes which have been so (in 1996, Perot’s campaign received $30 mil- kind, fighting to prevail in the 1996 elections much in the newspapers. They want to lion from the taxpayers) has opted into the with their recently acquired power intact, save themselves at the expense of core taxpayer-financed spending limits program. and the addition of a Republican-held White constitutional freedoms for all Ameri- Have the tax dollars limited spending or so- House. With Democrats desperate to regain called ‘‘special interests’’? No. Like a rock control of Congress, Republicans having cans. on Jello, the spending limits merely redirect (after four memorable decades in minority Mr. President, I ask unanimous con- the spending into other, unlimited, chan- exile) savored majority status, and momen- sent that an article I wrote for the nels—including party and labor ‘‘soft’’ tous decisions to be made about the role of Washington Times be printed in the money. Spending limits promote subterfuge, government in our society, you may be as- RECORD at this point. which the 1996 Clinton reelection campaign sured that the next few elections will be There being no objection, the article may have taken to new lows (or highs, de- similarly boisterous. This political energy was ordered to be printed in the pending on your perspective). should be applauded, not condemned, and Just as it seized upon the Keating Five certainly not reformed away. RECORD, as follows: scandal seven year ago, so does Washington’s McCain-Feingold proponents have long be- [From the Washington Times, Jan. 30, 1997] reform industry now exploit the emerging lieved that there is ‘‘too much’’ campaign KEEP CAMPAIGN REFORM LEGAL Clinton campaign finance scandal. The spending, a notion that finds, at first blush, (By Mitch McConnell) media-anointed reformers seek to complete a a receptive audience in cynical times. What makes the task of limiting spending so ‘‘Offense is the best defense’’ is a cliche job they started 20 years ago—that is, to put (via the McCain-Feingold bill) the discred- daunting for the reformers and so dangerous and a frequently employed political tactic. for our nation is that, as the Supreme Court Diversion, skillfully applied, also can have ited presidential model of spending limits on congressional campaigns. It is an absurd has repeatedly ruled, in political campaigns great utility in politics. President Clinton is spending limits function as speech limits of hoping both work for him in deflecting at- proposition, but reform groups and politi- cians reap gains—including fawning edi- the most undemocratic and nefarious sort. tention from the waves of campaign finance Ergo, what the campaign finance reform de- scandals lapping up on the White House torials—from the battle. They are adept at massaging the press with snappy soundbites bate is really about are First Amendment lawn. That is why Mr. Clinton strives to be- freedoms of speech, association and the right come campaign finance reform’s No. 1 fan. and voluminous ‘‘studies’’ to build a case for creating a bureaucratic regulatory regime of to petition the government. In our modern Mr. Clinton’s newfound zeal for campaign society, exercising these freedoms is an ex- finance reform is transparent and dangerous. extraordinary proportion to micromanage and ration the speech of candidates and mil- pensive endeavor. That is why McCain- The McCain-Feingold bill around which he Feingold’s convoluted provisions to limit the belatedly rallies is a convenient fig leaf. It is lions of private citizens. Why? Because, they contend that: 1) campaigns spend too much; speech of private citizens, groups, candidates also a tremendous threat to political free- and parties would surely be struck down as dom, as it would restrict political speech and 2) ‘‘legalized bribery’’ is rampant; and 3) spe- cial interests influence is pervasive. unconstitutional. participation. The president’s party hopes it The Supreme Court has emphatically re- The truth is, Americans spend far more on will prevent collateral damage arising from jected the goals of McCain-Feingold’s pro- yogurt than political campaigns, bribery is the latest Clinton scandals. They contend, ponents. On whether government can inter- illegal and the U.S. always has been and will wrongly, that the campaign finance shenani- vene to limit spending, the court has said: be a teeming cauldron of ‘‘special interests.’’ gans making today’s headlines merely illus- ‘‘The First Amendment denies government It is government that is pervasive. It is little trate a systemic problem solvable only the power to determine that spending to pro- wonder that virtually every American has a through comprehensive ‘‘reform.’’ Never mote one’s political views is wasteful, exces- host of ‘‘special’’ interests in their govern- mind that the foreign contributions and con- sive or unwise.’’ As to the reformer conten- tribution-laundering reportedly done on be- ment. In his State of the Union speech, Mr. Clin- tion that campaign spending breeds corrup- half of the Clinton reelection campaign are ton will call for campaign finance reform, tion, the Court held that there is ‘‘nothing illegal, under current law. specifically, the McCain-Feingold bill. He invidious, improper or unhealthy’’ in cam- Mr. Clinton’s ‘‘reform’’ agenda, while a may be so audacious as to bemoan ‘‘special paigns spending money to communicate. And clever diversionary tactic, is unconstitu- interest’’ influence, leaving unspoken his on the reformers’ appealing argument that tional. It is that element which should dis- own culpability in rewarding contributors McCain-Feingold would help ‘‘level the play- turb us most of all. with White House access and nights in the ing field,’’ the Court is contemptuous: ‘‘. . . The Constitution’s First Amendment is the concept that government may restrict America’s premier political reform. It should Lincoln bedroom. It will take great restraint on the part of Congress and the country not the speech of some elements of our society in be the touchstone for campaign finance re- order to enhance the relative voice of others form. But the McCain-Feingold bill and the to hoot and howl during this brazenly hypo- critical call for systemic reform. is wholly foreign to the First Amendment.’’ president instead treat it as an impediment In addition to failing the constitutional President Clinton can do much to restore to be undermined, circumvented, even dimin- test, McCain-Feingold cannot, as a practical confidence in the political process by clean- ished. The McCain-Feingold bill, with its co- matter, achieve its stated aims. Level the ing up his own act. That is why on the sub- erced campaign spending limits and restric- playing field? What is a famous family name ject of campaign finance I have two words of tions on independent speech, is a square peg worth? What is the value of incumbency? advice for the president: Reform yourself. reformers try in vain to pound into the First Spending limits do not take such non-mone- Amendment’s round hole. In tacit recogni- Mr. MCCONNELL. Mr. President, I tary factors into account. Reduce ‘‘special’’ tion of this, the Democrats’ House and Sen- ask unanimous consent that an op-ed interest influence? The reformers cannot ate leaders recently endorsed a constitu- of mine which appeared in the Boston even define ‘‘special’’ interests (the truth is tional amendment to narrow the First Globe in a somewhat altered form on everyone has ‘‘special’’ interests), let alone Amendment so that the unconstitutional Sunday, September 7, be printed in the shoo them out of a democracy. Banish ‘‘le- (the McCain-Feingold bill) could, thus, be- RECORD. galized bribery?’’ That is an oxymoron. Brib- come constitutional. Audacious, to say the There being no objection, the mate- ery is illegal, period. Restore confidence in least. government? That is a tall order for any ‘‘re- The Supreme Court has for years ruled, in rial was ordered to be printed in the form’’ and unlikely to be achieved by a no uncertain terms, that campaign spending RECORD, as follows: measure such as McCain-Feingold which is protected by the First Amendment be- As with a Rorschach test, different people would necessitate a huge bureaucracy to reg- cause communication with voters costs can view the same campaign finance data ulate the political speech of private citizens, money. Hence, spending limits are speech and come away with wildly divergent conclu- groups, parties and thousands of candidates limits which Congress cannot constitu- sions. Supporters of the McCain-Feingold in every election. tionally mandate. Congress must also tread campaign finance ‘‘reform’’ scheme look To illustrate the absurdity of the McCain- lightly on the ability of private citizens and upon the record spending in the 1996 election Feingold approach to reform, consider its bi- groups to participate in campaigns and af- cycle and profess to be horrified— zarre spending limit formula. For Senate fect elections via independent expenditures. hysterically seeing malevolent ‘‘special’’ in- general elections, reformer nirvana is Regrettably, while striking down manda- terests at every turn, poised to plunder our achieved by limiting campaigns to spending tory spending limits, the court ruled two democracy. I look upon that same election an amount equal to: 30 cents times the num- decades ago that the government could pay as the culmination of a fierce, and healthy, ber of the state’s voting-age citizens up to candidates large sums from the U.S. Treas- philosophical battle over how best to ensure four million, plus 25 cents times the number ury in exchange for candidates’ agreeing to a prosperous future for our nation. of voting-age citizens over four million, plus forgo their First Amendment right to unlim- Where I see a vibrant democracy-in-action, $400,000. However, if you are running in New ited spending (i.e., speech). However, the the ‘‘reform’’ agitators see chaos crying out Jersey, 80 cents and 70 cents are substituted spending limit system must be purely vol- for a big government remedy. In the 1996 for 30 and 25. The formula notwithstanding, untary. That is the state of play in the bil- election cycle, the liberal status quo came for all states, regardless of population, the lion-dollar presidential campaign finance roaring back from the 1994 elections in which minimum general election limit would be system, where every major candidate except they had been so profoundly rejected. The $950,000 and the maximum, $5,500,000. The pri- John Connally and the circa-1992 Ross Perot conservative insurgents of 1994 responded in- mary election limit is set at 67 percent of the S10342 CONGRESSIONAL RECORD — SENATE October 6, 1997 general and runoffs are limited to 20 percent. participate in campaigns through volunteer playing field’’ argument. ‘‘The concept that In the unlikely event this atrocity was activities and financial contributions to the government may restrict the speech of some deemed constitutional, it would be a mess to candidates and causes of their choosing. elements of our society in order to enhance administrate, a nightmare to comply with, Campaign contributions are a laudable and the relative voice of others is wholly foreign and a blight on the Republic. honorable means of participation in cam- to the First Amendment.’’ To propel their effort to have the govern- paigns and so long as they are publicly dis- There you have it. The reformers cannot ment ration political speech, McCain- closed and continue to be scrutinized by the achieve their objectives statutorily. To real- Feingold proponents have seized upon the media, voters can judge for themselves what ize the reformers’ campaign-finance nirvana White House-Democratic National Commit- is appropriate. would require essentially repealing the First tee campaign finance scandal which centers Amendment—blowing a huge hole in the Bill on violations of existing law. They exploit Mr. MCCONNELL. Mr. President, this of Rights—via a constitutional amendment. legitimate outrage over illegal foreign con- is a piece I authored and which ap- Frightfully undemocratic? Yes. Out of the tributions in order to restrict political peared in the National Review in its question? No; 38 United States senators speech and participation by American citi- June 30 edition. This op-ed starts out voted to do just that on March 18, 1997. These zens. It is a brazen and despicable strategy. with the observation that proponents 38 senators voted, in the name of ‘‘reform,’;’ Curiously, those most associated with the of spending limits are stuck between a for S.J. Res. 18, a constitutional amendment to empower Congress and the states to limit First Amendment—the news media—display rock and a hard place: The Constitu- a callous disregard for the political freedom contributions and spending ‘‘by, in support of private citizens, groups, candidates and tion and reality. of, or in opposition to, a candidate.’’ Thus parties in McCain-Feingold’s cross hairs. It is my hope that some of the sig- would the entire universe of political speech Newspapers spew forth reams of editorials natories to the Project Independence and participation be subjected to limitation endorsing McCain-Feingold. Television’s petition drive will read this, and par- by congressional edict, and enforcement by talking heads pontificate on the dire need to ticularly paying attention to the government bureaucrats. limit the political speech of non-media polit- McCain-Feingold bill’s absurd spending This wholesale repeal of core political free- ical participants. Why is the media an eager dom registered barely a ripple in the nation’s limits formula—and refrain from sign- media. Perhaps reporters and editorial writ- accomplice in advancing this unconstitu- ing such a misleading and shallow doc- tional and undemocratic ‘‘reform’’ agenda? ers do not appreciate that their campaign One might reasonably conclude that media ument in the future. coverage could be construed as spending ‘‘by, poobahs see an opportunity to fill the void I ask unanimous consent that it be in support of, or in opposition to, a can- left when the political speech of every other printed in the RECORD. didate’’ and, therefore, could be regulated player in the political process is limited by There being no objection, the mate- under a Constitution so altered. It is not a McCain-Feingold. Newspaper editorials and rial was ordered to be printed in the stretch. The television networks and most major newspapers are owned by corporate articles, not to mention television, exert tre- RECORD, as follows: mendous influence on elections. Most media conglomerates (a/k/a ‘‘special interests’’ and THE MONEY GAG outlets are subsidiaries of corporate con- the blurred distinction is already acknowl- glomerates (i.e. ‘‘special’’ interests), yet (By Mitch McConnell) edged in federal campaign law, which cur- they would not be limited by McCain- Proponents of campaign-spending limits rently exempts from the definition of ex- Feingold. On this one point alone is McCain- are stuck between a rock and a hard place: penditure ‘‘any news story, commentary, or Feingold sensitive to the First Amendment. the Constitution and reality. editorial’’ unless distributed by a political That there is no media conspiracy to snuff It is impossible constitutionally to limit party, committee, or candidate. out competitors in the political sphere all campaign-related spending. The Supreme I do not advocate regulating newspaper makes this confluence of support for a legis- Court has been quite clear on this matter, editorials, articles, and headlines. I do not believe that government should compensate lative assault on their core First Amend- most notably in the 1976 Buckley v. Valeo de- candidates who are harmed by television ment freedom no less lamentable. Those in cision: ‘‘The First Amendment denies gov- newscasts or biased anchors. However, the the media should consider that they are but ernment the power to determine that spend- political playing field can never be ‘‘level’’ one ‘‘loophole’’ away—a special exemption ing to promote one’s political views is waste- without such regulation, and it is the only under the Federal Election Campaign Act— ful, excessive, or unwise. In the free society area of political speech upon which the from having their product regulated by the ordained by our Constitution it is not the vaunted McCain-Feingold bill is silent. Federal Election Commission (FEC). Assum- government but the people—individually as McCain-Feingold has provisions to enable ing, of course, that the Courts did not inter- citizens and candidates and collectively as candidates to counteract independent ex- vene. Perhaps some experience with the FEC associations and political committees—who must retain control over the quantity and penditures by every ‘‘special interest’’ in speech police would sensitize editorial writ- America, except the media industry. This range of debate on public issues in a political ers, reporters and TV talking heads to the ‘‘loophole’’ is the only one which editorial insidious effects of regulating election-relat- campaign.’’ For those who do not at first blush see the writers are not advocating be closed by the ed speech. government. link between the First Amendment and cam- The Supreme Court astutely observed six Such regulation of the media may strike paign spending, the Court elaborates: ‘‘A re- decades ago that First Amendment freedom one as an absurd result of the campaign-re- of speech is the ‘‘matrix, the indispensable striction on the amount of money a person form movement, but it is a logical extrapo- condition, of nearly every other form of free- or group can spend on political communica- lation of McCain-Feingold’s regulatory re- dom.’’ Recognizing this, an extraordinary al- tion during a campaign necessarily reduces gime. The McCain-Feingold bill’s spending- liance of citizens groups has coalesced to op- the quantity of expression by restricting the limit formula for candidates is itself ludi- pose the McCain-Feingold bill. Ranging from number of issues discussed, the depth of crous. For Senate general elections: 30 cents the American Civil Liberties Union and the their exploration, and the size of the audi- times the number of the state’s voting-age National Education Association on the left, ence reached. This is because virtually every citizens up to 4 million, plus 25 cents times to the Christian Coalition, National Right to means of communicating ideas in today’s the number of voting-age citizens over 4 mil- Life and the National Rifle Association on mass society requires the expenditure of lion, plus $400,000. However, if you are run- the right, this coalition has little in common money.’’ ning in New Jersey, 80 cents and 70 cents are except a determination to preserve these The reformers do not care or, in some substituted for 30 and 25 because of the dis- core political freedoms for all Americans. In cases, cannot accept that spending limits persed media markets. Moreover, the for- fighting the McCain-Feingold juggernaut, limit speech. They believe that spending lim- mula notwithstanding, for all states the they are doing America a great public serv- its are justified and necessary to alleviate minimum general election limit is $950,000 ice. perceived or actual corruption. But the and the maximum $5,500,000. McCain- No one is arguing that the current cam- Court slapped that argument aside, holding Feingold sets the primary-election limit at paign finance system is ideal but like so that there is ‘‘nothing invidious, improper, 67 per cent of the general-election limit and many things in life, ‘‘reform’’ is in the eye of or unhealthy’’ in campaigns spending money the runoff limit at 20 per cent of the general- the beholder. I believe the current scandal- to communicate. The reformers cannot that election limit. ridden presidential system of squandered spending limits are essential because cam- Reading the Clinton-endorsed McCain- taxpayer funding and illusory spending lim- paign spending has increased dramatically in Feingold bill, one can only conclude that the its should be repealed. Circa-1974 contribu- the past two decades, a woefully lame era of big government is just beginning. The tion limits should be updated to make fund- premise the Court easily dispatched: ‘‘The Courts have repeatedly ruled that commu- raising less time-consuming for all can- mere growth in the cost of federal election nications which do not ‘‘expressly advocate’’ didates and less formidable for challengers campaigns in and of itself provides no basis the election or defeat of a candidate (using who usually do not have a large base of con- for governmental restrictions on the quan- terms such as ‘‘vote for,’’ ‘‘defeat,’’ ‘‘elect’’) tributors from which to draw support. All tity of campaign spending.’’ Appealing to cannot be regulated, yet McCain-Feingold contributions should be purely voluntary Americans’ instinct for fairness, the reform- would have the Federal Election Commission which is why union members’ compulsory ers passionately plead for spending limits to policing such ads if ‘‘a reasonable person’’ dues should not be diverted to politicking. ‘‘level’’ the political playing field. The Court would ‘‘understand’’ them to advocate elec- And more citizens should be encouraged to was utterly contemptuous of this ‘‘level tion or defeat. Out of 260 million Americans, October 6, 1997 CONGRESSIONAL RECORD — SENATE S10343 just which one is to be this ‘‘reasonable per- The $1,000 individual limit was set in 1974, they take some gutsy positions. It is son’’? when a new Ford Mustang cost just $2,700. tough for a liberal group—a label usu- The McCain-Feingold bill seeks to quiet The political parties should be strengthened, ally given to the ACLU—to go against the voices of candidates, private citizens, the present constraints on what they can do groups, and parties. Why? Because, it is said, the liberal grain, particularly on an for their nominees, repealed. These would be issue this high-profile, as this one ‘‘too much’’ is spent on American elections. steps in the right direction. The so-called reformers chafe when I pose which we are debating today. the obvious question: ‘‘Compared to what?’’ Mr. MCCONNELL. Mr. President, this Particularly, Mr. President, I want In 1996—an extraordinarily high-stakes, is also an op-ed which I did for USA to single out Laura Murphy, director of competitive election in which there was a Today—a publication whose word lim- the ACLU’s Washington office, and no fierce ideological battle over the future of its force you to distill your arguments. doubt others in that organization, have the world’s only superpower—$3.89 per eligi- I ask unanimous consent that it be taken a lot of grief for their brave and ble voter was spent on congressional elec- printed in the RECORD. resolute position in defense of political tions. May I be so bold as to suggest that There being no objection, the mate- spending on congressional elections the freedom for all Americans—liberals, equivalent of a McDonald’s ‘‘extra value’’ rial was ordered to be printed in the conservatives, and every ideological meal and a small milkshake is not ‘‘too RECORD, as follows: shade in between. I cannot say enough much?’’ BEWARE SO-CALLED FIXES good things about the work that Laura, The reformers are not dissuaded by facts. (By Mitch McConnell) Joel Gora, Ira Glasser, and other folks Their agenda is not advanced by reason. It is in the ACLU have done on this issue. propelled by the media, some politicians, and The First Amendment of the Constitution is America’s premier political reform. To re- Their effort against McCain-Feingold the recent infusion of millions of dollars in has been truly heroic. Two-hundred foundation grants to ‘‘reform’’ groups. For- formers, it’s a ‘‘loophole.’’ The Supreme tunately, the majority of this Congress is Court has repeatedly ruled that because and sixty million American bene- not ideologically predisposed toward the un- communication with voters costs money, ficiaries of the first amendment owe democratic, unconstitutional, bureaucratic campaign spending is protected by the First these people a debt of thanks. finance scheme embodied in McCain- Amendment and cannot be rationed by the With a few notable and admirable ex- Feingold. Further, a powerful and diverse co- government. That does not stop the so-called ceptions, I have been sorely dis- alition has coalesced to protect American reformers from trying. appointed by the willingness of liberal The presidential system of campaign fi- freedom from the McCain-Feingold jug- groups to walk off a cliff for this bla- gernaut. nance is the monument to reform excess. Ranging from the American Civil Liberties Thanks to the Democratic National Commit- tantly unconstitutional reform effort. Union and the National Education Associa- tee’s apparent penchant for illegal foreign I’m told some have made the cal- tion on the left to the Christian Coalition, contributions, it is also scandal-ridden. A culated decision that if the McCain- the National Right to Life Committee, and post-Watergate ‘‘reform,’’ the presidential Feingold bill passed, liberal causes the National Rifle Association on the right, system gives candidates tax dollars for would benefit. the individual members of the coalition which, in exchange, they agree to campaign I think they are right on that score agree on little except the need for the free- spending limits. But like a rock placed on but it is shameful that so many would dom to participate in American politics. Jello, the spending limits merely shift the eagerly jettison 200 years of core politi- There is perhaps no better illustration of the money into other channels—notably party cal freedom—which benefits all citizens Supreme Court’s observation in 1937 that and union ‘‘soft’’ money. freedom of speech ‘‘is the matrix, the indis- Political parties, unions and newspapers and makes America a uniquely free pensable condition, of nearly every other have a constitutional right to spend as much country—in order to stick it to con- form of freedom.’’ These groups understand as they choose to affect elections. Some servatives and anyone else who does that the First Amendment is America’s newspapers want to neuter the political par- not support the liberal agenda. greatest political reform. ties under the guise of ‘‘reform.’’ The parties These liberal, Democrat-leaning Where do we go from here? After ten years are vital components of the electoral proc- groups know McCain-Feingold is out- of fighting and filibustering against assaults ess, the only entities that will consistently rageous—that its issue advocacy provi- on the First Amendment advanced under the support challengers—of all ideological sions, to name just a few, are uncon- guise of ‘‘reform,’’ I am heartened by the stripes. Their only litmus test is party affili- honest debate in this Congress. In the House scionable assaults on the first amend- ation. They do not have a vote in Congress. ment right of all Americans to petition of Representatives, John T. Doolittle’s bold They are a buffer between so-called ‘‘special proposal to repeal government-prescribed interests’’ and government. the government as individuals, and as contribution limits and the taxpayer-fi- The presidential system of taxpayer-fund- groups, and to weigh in on public is- nanced system of (illusory) presidential ed spending limits is a disaster that should sues. But still some actively promote spending limits has more co-sponsors than be repealed. But so-called reformers instead McCain-Feingold, more simply look McCain-Feingold’s companion bill, the want to extend that debacle to congressional the other way—acquiescing on the side- Shays-Meehan speech-rationing scheme. In elections and exploit the Democrats’ scandal lines of this critical debate over core the Senate, McCain-Feingold’s fortunes cling to justify eviscerating the political parties. constitutional freedoms they get paid pathetically to the specter that the Govern- Rather than admit spending limits have ment Affairs investigation into the Clinton to exercise. failed, the reformers want to add even more Perhaps they believe, correctly I campaign-finance scandal will fuel public layers of bureaucracy to police American po- pressure for reform. litical speech and participation by can- might add, that Republicans will save My goal is to redefine ‘‘reform,’’ to move didates, political parties, private citizens the Nation from McCain-Feingold. I the debate away from arbitrary limits and and groups. Why? The reformers say ‘‘too predict that will be the outcome. toward expanded citizen participation, elec- much’’ is spent on elections. Americans Mr. President, I will now read into toral competition, and political discourse. spend more on yogurt. The reformers be- the RECORD some highlights of the McCain-Feingold is a failed approach to cam- moan ‘‘legalized bribery,’’ an oxymoron. paign finance that has proved a disaster in ACLU’s most recent denunciation of Bribery is illegal, period. They say special- the presidential system. McCain-Feingold the McCain-Feingold bill, dated Octo- interest influence is pervasive. Yet they can- would paper over the fatal flaws in the presi- ber 1, 1997: not define ‘‘special interest.’’ dential spending-limit system and extend Ever since the very first version of the var- Disclosure—not arbitrary, bureaucratic the disaster to congressional elections. Expe- ious McCain-Feingold campaign finance bills rience argues for scuttling it entirely. limits—should be the linchpin of reform. was introduced in the Senate, the ACLU has The best way to diminish the influence of Voters can decide for themselves what is ap- gone on record to assert that each version any particular ‘‘special interest’’ is to dilute propriate. Taxpayers should not be called was fatally and fundamentally flawed when its impact through the infusion of new do- upon to fund a campaign-finance scheme in measured against settled First Amendment nors contributing more money to campaigns which the First Amendment is regarded as a principles. Now the Senate is debating a new and political parties. Those who get off the ‘‘loophole,’’ and so long as America is a de- ‘‘revised’’ incarnation of the bill. While we sidelines and contribute their own money to mocracy, the spending limits can never be are pleased that the sponsors of the new ver- the candidates and parties of their choice more than a facade. sion have abandoned some of the more egre- should be lauded, not demonized. The in- Mr. MCCONNELL. Mr. President, fur- gious provisions that appeared in earlier ver- creased campaign spending of the past few ther, I submit for the RECORD four illu- sions, the ‘‘pared down’’ bill still cuts to the elections should be hailed as evidence of a vi- minating documents from the Amer- core of the First Amendment. We once again brant democracy, not reviled as a ‘‘problem’’ ican Civil Liberties Union. Say what urge you to reject McCain-Feingold’s uncon- needing to be cured. stitutional and unprecedented assaults on My prescription for reform includes con- you will about this organization—one freedom of speech and association. tribution limits adjusted, at the least, for in- that Members on my side, including Although the bill has a number of con- flation. me, are infrequently aligned with— stitutional flaws, this letter focuses on those S10344 CONGRESSIONAL RECORD — SENATE October 6, 1997 that impose restrictions primarily on issue . . . While reasonable people may disagree press opinions and even expressly advocate advocacy. It is important to note at the out- about the proper approaches to campaign fi- the election or defeat of candidates through set that the recent letter from 126 law pro- nance reform, this bill’s restraints on politi- editorials. While the media is totally un- fessors, commenting on McCain-Feingold, cal party funding and issue advocacy raise regulated, as it should be under the First was silent on the issue advocacy restrictions profound First Amendment problems and Amendment, some want to prohibit and in the bill, which are the subject of this let- should be opposed. The bill has a number of heavily regulate issue organizations from ex- ter. other severe flaws, some old, some new, ercising similar free speech. 1. The unprecedented restrictions on issue which we will address in a future commu- Restrictive speech provisions will not advocacy contained in the McCain-Feingold nication. But we wanted to take the oppor- withstand constitutional challenge. There- bill are flatly unconstitutional under settled tunity to share our assessment of two of the fore we oppose any proposals which attempt First Amendment doctrine. most salient problems with the bill now. to bring constitutionally protected issue ad- Last week there was a lot of discus- So, Mr. President, there it is from vocacy under the regulatory control of the sion of a law professor named Burt America’s experts on the first amend- federal government. Thank you for consider- Neumann at the Brennan Center of ing our views. ment, one of whom was one of the law- Sincerely, New York. I believe it is interesting yers in the Buckley case. These are HEIDI H. STIRRUP, that everyone believes Brennan wrote people who are experts on this kind of Director, Government Relations. the Buckley case, one of the ironies of litigation, and that is their opinion (Mr. GORTON assumed the chair.) this debate. Mr. Neumann for 24 years about the constitutionality of McCain- Mr. MCCONNELL. Mr. President, I had said the Buckley decision was Feingold, as revised. will read just a few of the highlights wrong. And he is free to say that. He Now, Mr. President, a September 25, from the cover letter. This is dated Oc- wishes it were otherwise. But his posi- 1997, letter from the Christian Coali- tober 3, 1997. tion and the position of the man he tion. It says: DEAR SENATOR MCCONNELL: Thank you for presumably admires the most, William DEAR SENATOR: The Christian Coalition requesting our comments on the revised Brennan, not only prevailed in the has long supported campaign finance reform McCain-Feingold campaign finance bill. . . . that encourages citizen participation and Buckley case but has been further Much of what the Cato Institute and simi- nonpartisan voter education. Any reform of elaborated on in 21 years of litigation. lar nonprofit research and public policy cor- our system of campaign financing should Thus, the ACLU says under settled porations do could no longer be done or, done allow for educational tools such as non- first amendment doctrine: only if we are comfortable having research partisan voter guides, issue advertising, con- publications, public policy forums, city sem- What we are talking about here is not the gressional scorecards and newsletters. Chris- inars, conferences and the like classified as law as some wish it were but the law as it is. tian Coalition vigorously opposes the ‘‘contributions.’’ In this bizarre scenario, And that is what the ACLU is referring to. McCain-Feingold legislation which unconsti- these ‘‘contributions’’ would have to be paid Further, in another place in the let- tutionally restricts these types of issue ad- for out of our ‘‘PAC’’ (which, of course, we vocacy. ter, Mr. President, they say: would never have), and, probably, could not The unprecedented and sweeping restraints I will just read one other sentence, be done at all since much of the ‘‘anything of on the ‘‘soft money’’ funding of issue advo- Mr. President, from this particular let- value’’ we produce often costs more than the cacy and political activity by political par- ter. This organization says: $5,000 limit on contributions. ties raise severe first amendment problems. Voter education should be encouraged, not Here is a group, Mr. President, not in poli- At another point in the letter, the discouraged. An informed electorate is part tics. They do not go out and create a PAC, ACLU says, ‘‘The same principles that of the solution, not part of the problem. they do not do voter guides, and they think that the most recent version of McCain- protect unrestrained issue advocacy by I could not agree more. issue groups safeguard issue advocacy Feingold is going to make it hard for them I ask unanimous consent that that to function. and activity by political parties.’’ letter be printed in the RECORD. The Cato Institute goes on: So, if issue advocacy has been well There being no objection, the letter For example, if we published a study on laid out by 21 years of court cases for was ordered to be printed in the groups, the same thing applies for po- the flat tax, or tax reform and ever discussed RECORD, as follows: litical parties. the issue with Representative Dick Armey— By the way, Mr. President, this letter CHRISTIAN COALITION, or, heaven forbid, held a policy forum or city CAPITOL HILL OFFICE, seminar with Dick Armey, Steve Forbes, was signed by Ira Glasser, executive di- Washington, DC, September 25, 1997. Reps’ Paxon, Tauzin, Archer, or any of the rector; Laura Murphy, director, Wash- SUPPORT FIRST AMENDMENT—FREE SPEECH other leading proponents of tax reform— ington office; Joel Gora, professor of OPPOSE MCCAIN-FEINGOLD CAMPAIGN FI- under the new McCain-Feingold, these could law at Brooklyn Law School. NANCE BILL become contributions. I might just say a word about Joel I guess the good news is, as Bob Levy says, DEAR SENATOR: The Christian Coalition that ‘‘the September 29 version of McCain- Gora. He was cocounsel in the Buckley has long supported campaign finance reform Feingold reduces the first amendment to case. So my side in this argument is that encourages citizen participation and scrap’’—so blatantly unconstitutional that it that they didn’t have to go out and find non-partisan voter education. Any reform of will never become law. As Bob also says, somebody to certify that they wish the our system of campaign finance should allow ‘‘McCain-Feingold is an insidious and de- for educational tools such as non-partisan law were what it isn’t. These folks structive piece of legislation. It deserves an voter guides, issue advertising, congressional know what the law is, were involved in ignominious burial. To be blunt, either it scorecards, and newsletters. Christian Coali- litigating these cases, and are simply dies, or we do.’’ tion vigorously opposes the McCain-Feingold certifying as to their opinion based legislation which unconstitutionally re- Mr. President, I ask unanimous con- upon deep experience in this field as to stricts these types of issue advocacy. sent that the communication from the the constitutionality of the measure Issue advocacy is constitutionally pro- Cato Institute be printed in the before us. tected free speech. Expressing opinions on is- RECORD, along with another letter from So, here is what they say at the end sues and informing voters where candidates the National Taxpayers Union. of the letter. stand on the issues are constitutionally pro- There being no objection, the mate- Accordingly, we submit that McCain- tected free speech, so long as the election or Feingold’s sweeping controls on the amount defeat of a candidate is not ‘‘expressly advo- rial was ordered to be printed in the and source of soft money contributions to cated.’’ For over 20 years, the Supreme Court RECORD, as follows: political parties and disclosure of soft money has repeatedly ruled that the test must be CATO, disbursements by other organizations con- objective, not subjective. ‘‘Express advo- Washington, DC, October 3, 1997. tinue to raise severe constitutional prob- cacy’’ is defined by using such words as, Hon. MITCH MCCONNELL, lems. Disclosure, rather than limitation, of ‘‘vote against,’’ and ‘‘oppose.’’ The McCain- U.S. Senate, large soft money contributions to political Feingold bill imposes an unconstitutional Washington, DC. parties, is the more appropriate and less re- subjective test. DEAR SENATOR MCCONNELL: Thank you for strictive alternative. Voter education should be encouraged, not requesting our comments on the revised McCain-Feingold’s labyrinth of restric- discouraged. An informed electorate is part McCain-Feingold campaign finance bill. A tions on party funding and political activity of the solution, not part of the problem. copy of Bob Levy’s detailed analysis is at- can have no other effect but to deter and dis- Without voter education efforts, our support- tached (Bob is a senior fellow in constitu- courage precisely the kind of political party ers would be forced to rely entirely on slick tional studies here at Cato.) I think you will activity that the First Amendment was de- political advertising and the news media. In find the first two and closing paragraphs suc- signed to protect. fact, newspapers and other media outlets ex- cinct and to the point. October 6, 1997 CONGRESSIONAL RECORD — SENATE S10345 In summary, much of what the Cato Insti- beyond the Supreme Court’s definition of ex- penditures will not be sustained unless justi- tute and similar non-profit research and pub- press advocacy. The definitions are so vague fied by a compelling state interest and craft- lic policy corporations do, could no longer be that candidates could complain to the Fed- ed to achieve their objective by the least re- done or, done only if we are comfortable hav- eral Election Commission that many criti- strictive means. ing research publications, public policy fo- cisms of their views constitute ‘‘illegal’’ ac- Current proposals to regulate campaign fi- rums, city seminars, conferences and the tivity. Since there would be no cost to com- nance practices cannot survive the kind of like classified as ‘‘contributions.’’ In this bi- plain, complain they will. scrutiny that the First Amendment requires. zarre scenario, these ‘‘contributions’’ would The sponsors of this legislation may claim This study demonstrates that the ban on po- have to be paid for out of our ‘‘PAC’’ (which it would have no cost to taxpayers. We litical action committees, the PAC ban fall- of course, we would never have), and, prob- strongly disagree. Since the proposal is so back provisions, the ‘‘voluntary’’ spending ably, could not be done at all since much of vague and so far-reaching in its application limits, the restrictions on soft money, the the ‘‘anything of value’’ we produce often and attempt to regulate speech and political regulation of issue advocacy, and the propos- costs more than the $5,000 limit on contribu- activity, it would take an enormous and als to expand the enforcement powers for the tions. And, of course, if you know anything costly expansion of the FEC to administer Federal Election Commission all substan- at all about the Cato Institute and our presi- our newly regulated ‘‘free-speech’’ rights. tially infringe on core First Amendment dent, Ed Crane, the last thing we would ever Therefore, we will count a vote against this freedoms, but none serves a compelling in- do is allow ourselves to be in a situation that bill as a pro-taxpayer vote in our annual terest with the least restrictive means. And could be interpreted as making contributions Rating of Congress. the proposal that broadcasters be required to to political candidates. One final note. As a taxpayer organization, provide free TV time to federal candidates is For example, if we published a study on we know a thing or two about complex and constitutionally insupportable. the flat tax, or tax reform and ever discussed vague laws such as our tax code. But if this The shortcomings of current ‘‘reform’’ pro- the issue with Rep. Dick Armey—or, heaven bill becomes law, many of our tax laws will posals are no small matter, given the First forbid, held a policy forum or city seminar be a model of clarity compared to the elec- Amendment’s crucial historical role in pro- with Dick Armey, Steve Forbes, Reps. tion law. And the tax laws will have one ad- tecting our right to self-government and in Paxon, Tauzin, Archer, or any of the other vantage. Audits are not set in motion by the sustaining liberty. For the proposals to pass leading proponents of tax reform—under the frivolous complaints that would be the rule constitutional muster, the First Amendment new McCain-Feingold, these could become under this legislation. would have to be itself ‘‘amended’’ by judi- ‘‘contributions.’’ Sincerely, cial fiat. I guess the good news is, as Bob Levy says, DAVID KEATING, INTRODUCTION Executive Vice President. that ‘‘the September 29 version of McCain- Since the 1996 elections, campaign finance Feingold reduces the First Amendment to Mr. MCCONNELL. Preferring sub- practices have dominated the news. Reports scrap’’—so blatantly unconstitutional that it stance to petitions, I have a couple of of unpalatable fundraising strategies, such will never become law. As Bob also says, constitutional analyses to have printed as renting out the Lincoln bedroom to major ‘‘McCain-Feingold is an insidious and de- in the RECORD. I understand from the donors and using White House telephones to structive piece of legislation. It deserves an solicit contributions, have appeared with dis- ignominious burial. To be blunt, either it Government Printing Office that it will cost approximately $12,000 to print this tressing frequency on the nightly news. The dies, or we do.’’ media tend to portray those actions not as We hope the above and attached is helpful. material in the RECORD. straightforward individual ethical or legal Sincerely, The first is an outstanding disserta- lapses but as self-evidently symptomatic of PEGGY J. ELLIS. tion on the constitutional implications the need for stringent new campaign finance of campaign finance reform by law pro- ‘‘reforms.’’ President Clinton, who claims to Attachment. fessor and renowned legal scholar Lil- have played by the rules in his reelection NATIONAL TAXPAYERS UNION, lian R. BeVier of the University of Vir- campaign, also claims to strongly favor ‘‘re- Alexandria, VA, October 6, 1997. form.’’ Recently, for example, in a ‘‘stop-me- Attention: Campaign Finance Reform Aide. ginia, and again I will just read some of the highlights for the information of before-I-kill-again’’ move, he petitioned the DEAR SENATOR: When you took your oath those listening to the debate. Federal Election Commission to ban politi- of office you said: cal parties from accepting the ‘‘soft-money’’ I, (name), do solemnly swear (or affirm) Professor BeVier appeared before the contributions that provided so much of the that I will support and defend the Constitu- Rules Committee on several occasions. fuel for the 1996 presidential contest. tion of the United States against all en- Her report of September 4, 1997, says: A chorus of those who advocate increased emies, foreign and domestic; that I will bear The shortcomings of current ‘‘reform’’ pro- regulation of the political process is always true faith and allegiance to the same; that I posals are no small matter, given the First available to chant the reform mantras, and take this obligation freely, without any Amendment’s crucial historical role in pro- the mainstream press appears credulously mental reservation or purpose of evasion; tecting our right to self-government and its willing to broadcast them: ‘‘Well-heeled [un- and that I well and faithfully discharge the sustaining liberty. For the proposals to pass equivocally self-serving and never public-re- duties of the office on which I am about to constitutional muster, the First Amendment garding] special interests’’ dominate the po- enter: So help me God (5 U.S.C. 3331.) would have to be itself ‘‘amended’’ by judi- litical process; challengers and incumbents S. 25, the campaign finance bill by Sen- cial fiat. alike, consumed by the need to raise money ators McCain and Feingold, is blatantly un- And that, Mr. President, sums up I for their campaigns, spend ‘‘most of their 1 constitutional under the First Amendment, think quite well what Professor BeVier time . . . scrounging for funds.’’ A Washing- which says in part that ‘‘Congress shall ton Post headline declared, ‘‘The System Has make no law–.–.–.–abridging the freedom of goes on to point out in some greater Cracked under the Weight of Cash.’’ 2 speech, or of the press; or the right to the detail and I ask unanimous consent ‘‘[F]renized fund-raising and freewheeling people peaceably to assemble, and to peti- that that dissertation be printed in the spending . . . [of] torrents of cash’’ now rule tion the Government for a redress of griev- RECORD. the day, and election contests are conducted ances.’’ You cannot ‘‘support the Constitu- There being no objection, the mate- principally via expensive ad campaigns that tion’’ by trying the patience of the Courts. rial was ordered to be printed in the saturate the airwaves.3 Money—dollars con- Therefore, we believe that every Senator has RECORD, as follows: tributed to candidates, given to political a constitutional obligation to vote against parties, and spent on election campaigns— CAMPAIGN FINANCE ‘‘REFORM’’ PROPOSALS—A passage of this bill. undermines the integrity of and ‘‘defeat[s] FIRST AMENDMENT ANALYSIS The restrictions are so absurd that, if the the democratic process’’ 4—or so it is said. bill were law, it would be illegal for any or- (By Lillian R. BeVier) Despite the overheated rhetoric of ganization to energetically lobby for or EXECUTIVE SUMMARY dysfunctionality and doom, the debate about against any legislation within 60 days of any In the wake of recent reports of question- the nature of the changes that ought to be election unless it excluded the names of able campaign finance practices have come made in the present system of campaign fi- their lawmakers. So for at least four months ever more draconian proposals to ‘‘reform’’ nance regulations is often framed as though of every other year, groups could not pay for the campaign finance system. Those propos- short-term political advantage were the only ‘‘any paid advertisement that is broadcast als pose a disturbing threat to the individual thing at stake.5 Republicans, it is said, are by a radio broadcast station or television political freedom guaranteed by the Con- against restricting campaign contributions broadcast station’’ if they identified the stitution. Under current precedents, none of and expenditures—but only because they are name of a local lawmaker. If the Congress them could survive a First Amendment chal- richer and better at raising money. Demo- wants such silly rules, then it should also ar- lenge. crats, on the other hand, favor restrictions— range to be out of session during these 60-day In Buckley v. Valeo (1976), the Supreme but only because they wish to counter the periods, and require that all state congres- Court affirmed that giving money to and perceived Republican money-raising advan- sional primaries he held on the same day. spending money on political campaigns is a tage. Because Republicans control the The bill also proposes to ban, year-round, core First Amendment activity. Accordingly, present Congress, stringent new giving and so-called express advocacy while going far regulations of political contributions and ex- spending regulations are thought unlikely. S10346 CONGRESSIONAL RECORD — SENATE October 6, 1997 And finally, it is said that because the in- ing limits from receiving PAC contributions, limitations would be subject to ‘‘strict scru- cumbents of both parties are ‘‘beneficiaries’’ require them to pay full rates for broadcast- tiny’’ by the Court and would not survive un- of the present system, political reality sug- ing and postage, raise the limits on contribu- less they were found to serve a ‘‘compelling gests that those incumbents are unlikely to tions to their opponents from $1,000 to $2,000, state interest’’ using the ‘‘least restrictive change the system in any way that might and raise the expenditure limits of their op- means.’’ Due to differences it perceived in threaten their reelection. ponents by 20 percent. the relative magnitudes of the First Amend- For all the rhetoric, however, the debate Restrictions on soft money: Bar federal of- ment interests, the Court distinguished be- over campaign finance regulation raises is- ficeholders, candidates, and national politi- tween limits on contributions of money to sues that genuinely transcend the short run, cal parties from accepting unregulated con- politicians or their campaigns and limits on issues of fundamental and permanent signifi- tributions; subject all election-year expendi- campaign expenditures by citizens and can- cance that cry out to be acknowledged. In- tures and disbursements by political parties, didates. A contribution limit, said the Court, deed, though they come to us in the benign including state and local parties that ‘‘might ‘‘entails only a marginal restriction upon guise of ‘‘reform,’’ many of the campaign fi- affect the outcome of a federal election’’—in- the contributor’s ability to engage in free nance regulations that have recently been cluding those for voter registration, get-out- communication,’’ 9 because ‘‘the trans- proposed would require us to renege on a the-vote drives, generic campaign activities, formation of contributions into political de- central premise of our representative democ- and any communication that identifies a fed- bate involves speech by someone other than racy—the individual political freedom our eral candidate—to the full panoply of Fed- the contributor.’’ 10 Hence, such limits could Constitution guarantees. eral Election Campaign Act (FECA) restric- presumably be evaluated using a slightly This study will examine the constitu- tions and compliance and regulatory rules. more lenient standard of review.11 Limits on tionality of current campaign finance regu- Controls on ‘‘issue advocacy’’: Regulate expenditures, on the other hand, ‘‘represent latory proposals. It will also strive to bring communications that do not contain words substantial rather than merely theoretical the stakes in the campaign finance debate of ‘‘express advocacy’’ as defined by the Su- restraints on the quantity and diversity of into the sharpest possible focus—to provide a preme Court in Buckley v. Valeo (i.e., commu- political speech.’’ 12 full accounting of regulation’s cost to politi- nications that do not ‘‘in express terms ad- Thus, whereas the Court strongly sug- cal freedom so that, if they find themselves vocate the election or defeat of a clearly de- gested that limitations on expenditures may tempted to adopt a short-term fix to the fined candidate for federal office’’).6 Define well run afoul of the First Amendment re- campaign finance ‘‘mess,’’ legislators will ‘‘issue advocacy’’ to include a broader range gardless of the context or the purported jus- not fatally underestimate the price. of communications than does ‘‘express advo- tification for their imposition, it held that limitations on contributions are constitu- THE REGULATORY AGENDA cacy’’; regulate it by subjecting groups fund- ing issue advocacy communications to FECA tional if their purpose is the compelling one On the agenda of today’s proponents of re- disclosure requirements and controlling the of preventing corruption (i.e., ‘‘the attempt form are a number of specific, often shifting content of issue advocacy communications to secure a political quid pro quo from cur- legislative proposals. Rather than treat each rent and potential officeholders’’) 13 or the by requiring disclosure of funding sources of those proposals in detail, I will proceed in appearance of corruption. Of particular im- and disclaimers of candidate advocacy. more generic terms, focusing on the broad Free TV: In exchange for, and as a ‘‘public portance to today’s debate, the Court re- outlines of the most frequently recurring— service’’ condition of, the allocation to them jected equalization of political power as even and thus most prominent—individual sugges- of spectrum space, require broadcasters to a permissible, much less a compelling, jus- tions for ‘‘reform.’’ I will consider the follow- tification for restrictions on either contribu- provide substantial amounts of free air time ing proposals: tions or spending, observing that ‘‘the con- to all candidates for federal office. Require The PAC ban: Eliminate political action cept that government may restrict the candidates to appear in person in the free committees (PACs) from federal election ac- speech of some elements in our society in time provided to them and to speak for tivities by banning all expenditures by and order to enhance the relative voice of others themselves. contributions to them for purposes of influ- is wholly foreign to the First Amend- Expand Federal Election Commission en- encing elections for federal office, broadly ment.’’ 14 forcement powers: Grant broad new enforce- defined, except those contributions and ex- Buckley has proven remarkably robust and ment powers to the Federal Election Com- penditures made by political parties and has provided the doctrinal framework for all mission, including the right to go to court to their candidates. seven of the major campaign finance cases seek an injunction against potential offend- The PAC ban fallback: If the complete ban that the Court has since decided. In each of ers on the ground that there is a substantial if found unconstitutional, lower the permis- those cases (briefly summarized in the Ap- likelihood that a violation is about to occur. sible amount of PAC contributions to single pendix), the Court has remained committed candidates from the present $5,000 to $1,000 FIRST AMENDMENT ANALYSIS: GENERAL to Buckley’s major conclusions. That is not and prohibit any candidate from receiving PRINCIPLES to say that the Buckley framework has gone any PAC contribution that would raise that The Buckley Framework unchallenged within the Court itself.15 Still, candidate’s PAC receipts above a given per- To be constitutional, the proposals out- taken as a whole, Buckley and its progeny centage (say, 20 percent) of applicable ex- lined above must not violate principles of po- stand foursquare for the following doctrinal penditure ceilings; ban the ‘‘bundling’’ of in- litical freedom and free political speech as generalizations. Because they represent gov- dividual contributions; ban the receipt by a protected under the First Amendment. The ernmentally imposed constraints on political candidate of PAC monies that exceed 20 per- cornerstone of the Supreme Court’s First activity, cent of the particular election’s campaign Amendment jurisprudence in this area is Restrictions on political contributions and expenditure ceilings; redefine independent Buckley. In that case the Court decided sev- expenditures infringe on rights of speech and expenditures so as to turn more activities eral challenges to the FECA amendments of association. Therefore, the Court will strict- into ‘‘coordinated’’ expenditures (thus sub- 1974.7 FECA was at that time Congress’s ly scrutinize such restrictions, even when jecting them to the contribution limita- most ambitious effort at election campaign they are directed at corporations instead of tions); and broaden the definition of ‘‘express reform. According to its defenders, the act at individuals or groups. Limits on independent expenditures by in- advocacy’’ so as essentially to prohibit ge- was designed to equalize access to and purify dividuals and political groups are likely to neric partisan communications of any kind the political process by ridding it of corrup- be unconstitutional regardless of the context (by defining express advocacy to include any tion and the appearance of corruption. or the purported justification. ‘‘expression of support for or opposition to a Among other things, the plaintiffs in Buckley Preventing corruption or the appearance of specific candidate, to a specific group of can- challenged the act’s stringent limitations on corruption remains the ‘‘single narrow ex- didates, or to candidates of a particular po- the amounts of money individuals could con- ception to the rule that limits on political litical party’’ and to include suggestions ‘‘to tribute to and spend on campaigns for fed- activity’’ are contrary to the First Amend- take action with respect to an election * * * eral office and the act’s provisions for public ment.16 or to refrain from taking action’’). funding of presidential candidates who Since a ballot measure offers no oppor- Spending limits and communication dis- agreed to abide by spending limits during tunity to corrupt elected officials with ei- counts: Impose ‘‘voluntary’’ spending limits their campaigns. The Court sustained the ther contributions or expenditures, the First for candidates in House and Senate races and provisions for public funding of presidential Amendment probably prohibits restrictions prohibit spending of personal funds in excess campaigns and the contribution limitations. on both contributions and expenditures in of 10 percent of that limit; provide to can- It invalidated the expenditure limitations. the context of ballot-measure elections: both didates who agree to be bound by the limits In resolving the Buckley challenges, the kinds of restrictions infringe on First certain amounts of free television time, plus Court correctly took as its central premises Amendment rights without countervailing the right to purchase additional time at re- that ‘‘a major purpose of [the First] Amend- benefit since ‘‘there is no significant state or duced rates, and give them a reduced rate for ment was to protect the free discussion of public interest in curtailing debate and dis- mailing to state voters; limit their receipt of governmental affairs’’ and that contribution cussion of a ballot measure.’’ 17 out-of-state contributions by requiring them and expenditure limitations ‘‘operate in an Equalization of political influence is not a to receive 60 percent of the contributions to area of the most fundamental First Amend- permissible justification for restrictions. their campaign from individuals in their own ment activities.’’ 8 Pursuant to conventional The Court has never wavered in its view that states or districts; and prohibit candidates canons of First Amendment review, that government may not restrict the speech of who do not agree to be bound by the spend- meant that contributions and expenditure some to enhance the relative voice of others. October 6, 1997 CONGRESSIONAL RECORD — SENATE S10347 Applying Buckley: In General In Buckley, the Supreme Court held that The PAC Ban Fallback. The fallback provi- How do the campaign finance regulations the only legitimate and compelling govern- sion—which would lower the permissible that are presently being debated fare when ment interest in restricting campaign con- amount of PAC contributions from $5,000 to subjected to analysis in light of the Buckley tributions and expenditures is to prevent $1,000 per election and would go into effect if framework and the First Amendment foun- corruption or the appearance of corruption. or, more accurately, when the total ban on dation upon which it rests? The first step in And the Court defined corruption precisely PAC contributions was declared unconstitu- the calculus of constitutionality is to deter- and narrowly as entailing a financial quid tional—allegedly serves the same interest as mine the extent to which each proposal in- pro quo: dollars for political favors. the total ban. Since it aims to reduce rather fringes on established First Amendment Despite that, advocates of the PAC ban than prohibit permissible contributions, the offer justifications unrelated to preventing rights. That step is doctrinally fallback provision might appear on its face corruption as the Court defined it in Buckely. uncontroversial, its analytical path clearly to be less problematic than the total ban. Instead, such justifications as they offer are marked, for Buckley and its progeny un- That appearance is deceptive. Although the directed, in vague terms, at reforming ‘‘an equivocally establish that regulations of Court stated in Buckley that contribution unresponsive government and a political limits are easier to defend than expenditure campaign contributions and expenditures op- process that has grown increasingly mean- erate upon fundamental First Amendment limits, it held that strict scrutiny was appro- spirited’’—a view reformers seem to believe priate for both. Thus, the contribution limits rights to free speech and free association. is universally shared. Regarding contribu- Cynically claiming that that central of the fallback provision must run the same tion prohibitions, reformers condemn un- strict scrutiny gauntlet, and their chances of premise of Buckley represents nothing more specified ‘‘elected officials who listen more than capitulation to the idea that ‘‘money surviving are slim to none. to big money and Washington lobbyists than First, note again that the advocates have talks,’’ advocates of regulation mock and de- to their own constituents’’; they decry the mean the premise. In doing so, they miss the not claimed during the course of recent de- ‘‘influence-money culture’’ and claim that bates that the interest being served by re- point entirely. Buckley was not written on a ‘‘our political system is rigged to benefit blank First Amendment slate. Rather, it was ducing the contribution limit from $5,000 to campaign contributors and incumbent office- $1,000 is that of preventing corruption in the firmly grounded upon, and thus was the nat- holders at the great expense of citizens’’; and Buckley sense. It seems quite implausible to ural outgrowth of, a long line of cases that they see an ‘‘inherent problem’’—the nature assert that any politician would be cor- affirmed that the core principles of the First of which they do not define—‘‘with a system rupted—or even appear to be corrupted—in Amendment protected citizens’ right to in which individuals and groups with an in- the quid pro quo sense by a single contribu- speak, to publish, and to associate for politi- terest in government decisions can give sub- tion of even $5,000. Instead, the interest that cal causes, free from government inter- stantial sums of money to elected officials the contribution reduction would serve is, ference or control. Contributing to and who have the power to make those deci- again, the diffuse one of ending the ‘‘domi- spending money on political campaigns— 18 sions.’’ At bottom, the justification they nance’’ and ‘‘influence’’ of PACs. Thus, the whether to advocate the election of particu- offer seems to be that special-interest PAC problem the fallback limitation confronts at lar candidates or to take positions with re- contributions are a dominant force in the fi- the outset is that, even if precisely defined, spect to particular issues—was protected in nancing of federal election campaigns, that it serves an interest that has never been held Buckley not because money talks but because members of Congress are dependent on them to be either legitimate or compelling. And the central purpose of the First Amendment and influenced by them, that the giving of second, instead of being narrowly tailored, PAC money is linked to the particular PAC’s is to guarantee political freedom. The the limitation appears quite ill-suited to legislative agenda, and that PAC money goes amendment ensures that individual citizens serve the interest asserted for it. Indeed, it is overwhelmingly to incumbents. Thus, they may exercise that freedom by speaking, dis- difficult to identify any interest that would justify the PAC expenditure ban not with cussing, publishing, advocating, and persuad- be served by making it so much more difficut reference to preventing corruption but on ing and that they may enhance their individ- than it presently is for candidates to raise the ground that it is a loophole-closing ual voices by joining together in groups, or- money: candidates will hardly be less dis- measure: if independent PAC expenditures ganizations, associations, and societies. The tracted by fundraising if they have to raise continue to be permitted for ‘‘purposes of in- specific rights of citizens to contribute to money from even greater numbers of people fluencing any election for Federal office,’’ and spend money on political campaigns are because of the smaller amounts that any one merely necessary corollaries of their more they will undermine the ability of the con- tribution prohibitions to achieve their pur- individual or PAC may contribute. general rights to speak freely and to associ- Both the contribution ban and the fallback pose of preventing PACs from wielding influ- ate with one another to advocate causes in treat all PACs alike, as though whatever ence. which they believe. cause they espouse and however great (or Having established that regulations of Buckley and its progeny signal quite clear- ly that those ‘‘justifications’’ for the PAC limited) their resources, they all pose pre- campaign contributions and expenditures cisely the same danger—and the same degree impinge on fundamental First Amendment contributions and expenditure ban are nei- ther legitimate nor compelling. The rhetori- of danger—of undermining the integrity of rights, the Court will then apply ‘‘strict our political process. But given the enor- scrutiny’’ and sustain the regulations only if cal parade of horribles cited by the advocates of increased regulation simply does not mous range and diversity of interests that it finds that they serve a compelling govern- PACs represent, treating them all alike ment interest and use the least restrictive amount to corruption as the Court has de- fined it; thus, curing the system of them is makes little sense—and certainly fails the means to do so. The analytical task implicit narrowly tailored, least restrictive means in those second and third steps in the con- not corruption prevention. Even if ridding the political system of the influence of big test. Moreover, it is important to note that stitutional calculus is the identification and even while it was sustaining the particular evaluation of the government interests that money and Washington lobbyists were some- how transformed into legitimate ends of gov- contribution limits in Buckley, the Court supposedly support regulation and the ap- ‘‘cautioned . . . that if the contribution lim- praisal of the means deployed to serve those ernment, a total ban on PAC contributions could not survive, for it is grossly over inclu- its were too low, the limits could be uncon- interests. stitutional.’’ 19 Thus, contribution limits so Performing that task is not as easy as its sive. Eliminating all political committee ac- low as significantly to impair the regulated doctrinal formulation suggests. Although tivity is not narrowly tailored, nor is it the party’s ability to exercise First Amendment the Court has clearly commanded that strict least restrictive means of ridding the system rights (as a $1,000 limit on PAC contributions scrutiny is required, it has not always ad- of the influence of the money culture. would surely do) or so unreasonably below an hered to the implications of that command Unless the advocates of increased regula- amount that would give legitimate rise to a by engaging in rigorous examination of both tion truly intend to denounce all political al- perception that the contributor was acquir- proffered ends and the means chosen to liances—regardless of whether they be ideo- logical, issue driven, or public spirited—on ing ‘‘undue influence’’ (as the $1,000 limit achieve them. In fact, the Court has occa- the ground that they are all, in the very na- would surely be) are constitutionally vulner- sionally been highly deferential and credu- ture of things, bound to represent special in- able. lous in its assessments of ends and means, terests, and unless they think that all at- The only interest served by the fallback making prediction in the present case an un- tempts by individuals to maximize their po- provision’s ban on the bundling of small indi- certain undertaking. Still, if the integrity of litical voices by joining together with others vidual contributions to PACs would be that First Amendment principles is to be pre- of like mind present an inherent problem, it of preventing evasion of the contribution served, it is critically important that both is impossible to imagine how they could jus- limitation. The bundling ban, however, rep- legislators and judges take great care that tify such a draconian measure as a total ban resents a different sort of burden on First rhetoric and assertion not substitute for the on PAC giving and spending. Cutting the Amendment rights than does the constitu- careful analysis that truly strict scrutiny re- heart out of the freedom of political speech tionally doubtful contribution limitation, quires. For that reason, the analysis that fol- and association, and conferring what would which it supposedly serves as a backstop. lows will attempt not merely to summarize amount to a permanent monopoly on politi- For the bundling ban directly burdens the but to examine skeptically the arguments cal parties, is neither necessary nor a nar- associational rights of individual PAC con- and the rhetorical strategies of the advo- rowly tailored means for attaining even the tributors. The Supreme Court recognizes cates of regulation. ill-defined—and probably illegitimate—goal that the right to associate is a ‘‘basic con- Applying Buckley: Specific Proposals of eliminating the influence of big money stitutional freedom’’ 20 and has stated repeat- The PAC Ban and Washington lobbyists. edly that ‘‘the practice of persons sharing S10348 CONGRESSIONAL RECORD — SENATE October 6, 1997 common views banding together to achieve a dorsement of freedom from government as will be to reduce substantially the quantity common end is deeply embedded in the the underlying conception of the First of campaign speech. Indeed, that must be American political process.’’ 21 Amendment, the Court’s aversion to restrict- their purpose, since the restrictions are ex- Advocates of the bundling ban claim that ing the voices of some in order to enhance plicitly motivated by the objective of reduc- it is necessary to forestall PACs’ evading the the voices of others is worth emphasizing. ing excessive spending. As the Eighth Circuit contribution limitations. Thus, whether the Moreover, because it represents such a clear Court of Appeals recently noted when evalu- ban serves a compelling state interest will and definite rejection of the paternalism of ating analogous provisions of state campaign depend upon whether the interest served by those who think they know how much is too finance restrictions, one is ‘‘hard-pressed to the contribution limitations survives review much to spend on political campaigning, it is discern how the interests of good govern- and, if so, whether the ban is narrowly tai- worth quoting the Court’s confirmation that ment could possibly be served by campaign lored—whether the Court sanctions a one- ‘‘the mere growth in the cost of federal elec- expenditure laws that necessarily have the size-fits-all prohibition. Since the contribu- tion campaigns in and of itself provides no effect of limiting the quantity of political tion limitations are unlikely to survive re- basis for governmental restrictions on the speech in which candidates for public office view, and since the one-size-fits-all prohibi- quantity of campaign spending and the re- are allowed to engage.’’ 27 tion is a clumsy solution in any event, the sulting limitation on the scope of federal The spending limitations also do not serve bundling ban is likely to be even more vul- campaigns . . . In the free society ordained the posited goal of creating a level playing nerable than the contribution limitation it by our Constitution it is not the govern- field between incumbents and challengers be- serves. ment, but the people—individually as citi- cause the limitations fail to dissipate the al- The fallback’s prohibition of PAC con- zens and candidates and collectively as asso- ready significant advantages of incumbency. tributions that raise any candidate’s PAC re- ciations and political committees—who must Incumbents begin every electoral race with ceipts above 20 percent of campaign expendi- retain control over the quantity and range of important advantages; equalizing the ture ceilings would also, to a large extent, debate on public issues in a political cam- amount of money that incumbents and chal- stand or fall with the contribution limita- paign.’’ 23 lengers can spend would simply make perma- tions themselves, since the prohibition is de- It is, of course, because mandatory spend- nent the incumbent advantages that already fended in terms of its ability to strengthen ing limits are so clearly unconstitutional exist. When the spending limits are com- the contribution limitations. The First that advocates of the proposed spending lim- bined with the proposed new restrictions on Amendment burden of the 20-percent-of-ex- its insist that they be voluntary. The trans- contributions and the increasingly com- penditure limitation is more onerous than parent objective is to fit the limits into the plicated system of fundraising for chal- first appears, however, for after the 20 per- safe harbor that the Buckley Court provided lengers, they appear narrowly tailored not to cent limit is reached the so-called limitation when it qualified its rejection of expenditure level the playing field for challengers but in- has the effect of a total ban. How such a limitations by the following footnote: stead to transform a challenger’s initial dis- limit would serve a corruption-prevention ‘‘Congress may engage in public funding of advantage into a practically insurmountable objective, moreover, is very difficult to dis- election campaigns and may condition ac- barrier. That is the reason the proposals are cern. Corruption arises when large contribu- ceptance of public funds on an agreement by so susceptible to the charge of being incum- tions are exchanged for particular political the candidate to abide by specified expendi- bent-protection measures. ture limitations. Just as a candidate may favors. If PAC contributions are not individ- Limits on Soft Money ually large enough to create a risk of corrup- voluntarily limit the size of the contribu- Advocates of increased regulation of cam- tion or its appearance, the fact that a can- tions he chooses to accept, he may decide to paign finance often assert that soft money is didate receives many of them—even were he forgo private fundraising and accept public 24 the most dangerous and destructive money to receive 100 percent of his campaign fund- funding.’’ For a number of reasons, all reflecting the in the political system today. Soft money is ing from them—simply does not increase the magnitude of the benefits and burdens at- money contributed by individuals, corpora- risk that he will be corrupted. Thus, the 20- tached to accepting or not accepting the lim- tions, unions, and the like to the national percent-of-expenditure limitation not only is its, it is pure fiction to call them voluntary. and state parties for party-building activi- not narrowly tailored to serve a compelling They simply do not fit the Buckley proviso. ties, voter registration and get-out-the-vote state interest in preventing corruption or its To be specific, significant benefits are prom- drives, and generic issue- (rather than can- appearance but also is not tailored to serve ised to those who accept the voluntary lim- didate-) oriented advertising. It is not sub- any identifiable or legitimate interest at all. ject to contribution limitations imposed by Finally, the attempt to redefine ‘‘inde- its: candidates become eligible for free and 25 FECA because it is not used to advocate ex- pendent expenditure’’—and, in particular, to reduced-rate television time and reduced pressly the election of any clearly identified redefine ‘‘express advocacy’’ so as to include mailing rates while their opponents who do candidate. Reformers want to ban soft any and all partisan communications—runs not accept the voluntary limits receive nei- money because they believe that even flatly counter to the Buckley Court’s explicit ther free time nor reduced rates. Moreover, though it does not go to support particular effort to immunize issue advocacy from reg- candidates who agree to voluntary contribu- candidates it nevertheless has the unseemly ulation or restriction: ‘‘So long as persons or tion limits when their opponents do not get propensity to influence elections. Thus, it in- groups eschew expenditures that in express an added benefit—their contribution limits vites wholesale evasion of the contribution terms advocate the election or defeat of a clearly and expenditure ceilings are raised. But bur- dens come with the benefits as well: can- limits now in place. identified candidate, they are free to spend as The reformers are right, of course: soft much as they want to promote the candidate didates who volunteer to comply with the money does influence elections. But the re- and his views.’’ 22 spending limits must demonstrate a thresh- old level of support (by raising 10 percent of sort to soft-money contributions is exactly ‘‘Voluntary’’ Spending Limits the limit) before becoming eligible for the what one would expect when people are pro- The proposals for voluntary spending lim- benefits; they must agree to raise 60 percent hibited from giving more directly. its keyed to relevant voting age populations of their funds from individuals who reside in Yet a ban on soft-money contributions are said to serve the interest in curbing ex- their own states or districts; and they must would amount to an unprecedented restric- cessive and even obscene campaign spending. agree to limit the use of their own resources. tion on political activity, one whose jus- Spending limits will hold down the costs of In addition, they cannot use their free air tification is not compelling and whose scope running for office and thus prevent one can- time for commercials of less than 30 seconds far exceeds what the First Amendment al- didate from having an excessive advantage in length. lows. Advocates of a soft-money ban defend over another by reason of spending more. When the Court in Buckley sustained the it as a contribution-limitation-loophole-clos- The limits are also touted for their supposed exchange of a presidential candidate’s right ing device: corporations and unions that ability to redress the present imbalance in to make unlimited expenditures in his own would not otherwise be permitted to contrib- favor of incumbents (who have a grossly un- behalf for the right to receive public funding, ute to candidates’ campaigns make large fair advantage in fundraising because most it did so because it concluded that the pur- soft-money donations to political parties; PAC money goes to them). pose of public funding ‘‘was not to abridge, and individuals often contribute soft money Mandatory spending limits confront an im- restrict, or censor speech, but rather to use in excess of the amount they would be enti- penetrable constitutional wall. The Supreme public money to facilitate and enlarge public tled to contribute to particular candidates. Court said in Buckley that expenditure limits discussion and participation in the electoral Such arguments assume, of course, that con- simply do not serve to prevent corruption or process.’’ 26 The purpose of the current pro- tribution limitations represent an appro- the appearance of corruption in the electoral posals to impose voluntary spending limita- priate and inviolable ceiling on the amount process, which is the only justification that tions along with their accompanying burdens of money that individuals, corporations, and the Court has ever accepted for limiting po- and benefits, however, is quite different. unions should be allowed to contribute to litical expression. Indeed, the Court went In the first place, the limits are not im- the political process whether or not the con- further. It explicitly denounced the other posed in exchange for receipt of public fund- tribution funds speech that creates a risk of justifications for spending limits that pro- ing and thus could not be defended as nec- quid pro quo corruption of particular can- ponents had offered in Buckley, namely essary to protect the integrity of a govern- didates. Thus, supporters of the ban make no equalizing speech resources and stemming ment-funded program. Second, the effect of pretense of establishing a link between soft- the rising cost of political campaigns. Be- the proposed expenditure limitations— money contributions and the appearance or cause it represents such an unequivocal en- whether they are deemed voluntary or not— reality of candidate corruption that alone October 6, 1997 CONGRESSIONAL RECORD — SENATE S10349 provides a constitutional predicate for regu- warrant or means for calibrating what con- First Amendment claim that such an obliga- lation.28 stitutes ‘‘undue’’ influence, for the Constitu- tion impinged on their editorial freedom. Calling the soft-money contribution ban a tion does not permit, nor does it provide, a It is clear beyond peradventure that Con- contribution-limit-loophole closure does not metric for discerning how much influence is gress could not constitutionally compel the change the basic fact, however: soft money enough. We have no constitutional print media to provide free space to similarly does not fund speech that ‘‘in express terms Goldilocks to say when the amount of influ- situated political candidates.36 Red Lion advocate[s] the election or defeat of a clearly ence possessed by advocates of particular po- sanctioned a different set of First Amend- identified candidate for federal office,’’ sitions is ‘‘just right.’’ The inherent payoff ment rules for the broadcast media because which is the only kind of speech for which the for political participation in a democracy is the Court was persuaded that the scarcity of Court has held that contributions may be the acquisition of influence, and it is the broadcast spectrum warranted content regu- constitutionally restricted.29 To regulate function of the First Amendment to protect lation of spectrum licensees’ programming contributions for speech that is other than efforts to acquire it, not to limit or con- in the interests of diversity and fairness. express advocacy of the election of particu- strain them.31 Many commentators questioned the ra- lar candidates, the Court said, would create The constitutionality of proposals for reg- tionality of the spectrum scarcity argument intractable vagueness problems and cause ulation, insofar as they require disclosure by even at the time Red Lion was decided.37 Re- unacceptable chilling of protected, issue-ori- groups engaging in issue advocacy, is seri- gardless of whether it provided a plausible ented political speech. It would, in other ously jeopardized by McIntyre v. Ohio Elec- rationale at that time, however, spectrum words, thwart speech debating the merits of trons Commission.32 In McIntyre, the Court scarcity has been rendered obsolete by the government policies and addressing the pub- had before it an Ohio statute that prohibited advent of cable and other technological ad- lic issues that are at stake in an election— the distribution of anonymous campaign lit- vances. And courts, too, have increasingly the very kind of speech that the First erature. Because the statute was a regula- criticized the argument as a justification for Amendment was written primarily to pro- tion of core political speech, the Court sub- government control of the content of broad- 38 tect. Thus, because a ban on soft money aims jected it to strict scrutiny; and, because the cast programming. There is no longer a factual foundation for directly and indiscriminately at core politi- statute did not serve a compelling state in- the argument that spectrum scarcity enti- cal activity, and because its proponents have terest using the least restrictive means, the tles the government, in the public interest, not made their case that soft-money con- Court proceeded to strike it down. to control the content of broadcast speech. tributions pose a danger of quid pro quo cor- Unpersuaded that the ban was justified by Without the spectrum scarcity rationale to ruption, the ban could not pass muster as a Ohio’s asserted interests either in preventing support it, the attempt to control broad- finely tuned means of achieving a compelling fraudulent and libelous statements or in pro- casters’ speech by requiring them to provide state interest. viding voters with relevant information, the free TV time to candidates for office would Also bearing on the First Amendment im- Court also could find no support for the stat- seem doomed to constitutional failure. Even plications of a ban on soft money is the ute in either First National Bank of Boston v. were the spectrum scarcity rationale still Court’s recent decision in Colorado Repub- Bellotti 33 or in arguably relevant portions of viable, the Court has never held that Red lican Federal Campaign Committee v. FEC, Buckley. Lion sanctioned ‘‘government regulations which held limits on independent expendi- In Bellotti, the Court invalidated a state that impose specifically defined affirmative tures by political parties—expenditures not law that prohibited corporations from spend- programming requirements on broad- coordinated with any candidate—to be un- ing money on speech designed to influence casters.’’ 39 The Court has been suspicious of constitutional. The independent expression the outcome of referenda. In the course of any government action that ‘‘requires the of a political party’s views, the Court af- doing so, the Court commented in dicta on utterance of a particular message favored by firmed, is core First Amendment activity, the possibility that a requirement that the the Government,’’ and it has been alert to and limits on it cannot be justified with ref- sponsor of corporate advertising be identi- guard against the ‘‘risk that Government erence to a corruption-prevention rationale. fied might be thought to be permissible on seeks not to advance a legitimate regulatory Indeed, although the majority of the Court account of its ‘‘prophylactic effect.’’ The goal but to suppress unpopular ideas or in- did not reach or address the issue, four jus- McIntyre Court realized that the context of formation or manipulate the public debate tices expressed the further view that, given the Bellotti statement—expenditures by cor- through coercion rather than persuasion.’’ 40 the practical identity of interests between porations—was not the same as the context With respect to all speakers except the party and candidate during an election, the of the Ohio statute, which purported to regu- broadcast media, and most certainly with re- corruption-prevention rationale for sustain- late independent expenditures by an individ- spect to candidates for political office, it ing limitations on contributions did not sup- ual. And whereas in Buckley the Court sus- goes almost without saying that any at- port any limits on party spending, whether tained mandatory reporting of independent tempt by the government to dictate the for- coordinated with the candidate or not. Al- expenditures in excess of a threshold level, mat or control the content of speech is con- though present law makes coordinated the justices noted in McIntyre that the inde- stitutionally suspect. In addition to com- spending illegal, Justice Thomas pointedly pendent expenditures to which the disclosure manding broadcasters to donate time so that questioned its rationale: ‘‘What could it requirement applied had been construed to political candidates may speak, the free TV mean for a party to ‘corrupt’ its candidate or mean only those expenditures that expressly proposals contemplate requiring candidates to exercise ‘coercive’ influence over him?’’ 30 advocate the election or defeat of a clearly themselves, and not any surrogates, to speak If the Court were to decide, when squarely identified candidate.34 Thus, in Buckley there in the donated time, thus dictating the for- facing the issue, that party spending on po- was a corruption-prevention rationale to mat of their speech; and several suggestions litical activity cannot be limited, whether or support the expenditure-disclosure require- have been made that the candidates must not coordinated, then contributions to the ment. Such a rationale would lend only the not engage in ‘‘negative’’ campaigning if party to make those expenditures would most tenuous possible support to required they are to receive the free time, thus con- likewise seem to be protected from regula- disclosures of issue advocacy. trolling the content of their entire speech. tion. In sum, from constitutional perspec- McIntyre does not purport completely to Those highly questionable aspects of the free tive, restrictions on soft money are among foreclose disclosure or reporting require- TV proposals cannot be defended on the the least defensible proposals for campaign ments with respect to independent expendi- ground that the government, in pursuit of finance reform. Indeed, arguments purport- tures. It does, however, reaffirm the Court’s the public interest, is subsidizing certain ing to support such restrictions serve only to commitment to scrutinize strictly such re- candidate speech—thus conditioning receipt raise questions about limits on direct con- quirements in order to preserve the right to of its funds on the candidates’ agreement to tributions. engage in issue advocacy unencumbered by respect the contours of the government pro- regulations that burden speech without pro- Issue Advocacy gram. Such was the rationale that underlay ducing a reciprocal benefit in corruption pre- Insofar as they entail broadening the reach the Court’s holding in Rust v. Sullivan,41 vention. of campaign speech regulation to include where the Department of Health and Human speech that does not ‘‘in express terms advo- Free TV Services’ ‘‘gag rule’’ prohibited recipients of cate the election or defeat of a clearly iden- The proposals to require broadcasters to federal family planning funds from providing tified candidate for federal office,’’ proposals provide ‘‘free’’ TV time to federal candidates abortion information. The Rust rationale to control issue advocacy are constitu- do not come under the Buckley rubric. In- could not support the format and content tionally inform for the same reason that the stead, insofar as they apply to broadcasters, controls envisaged by the free TV proponents soft-money ban is constitutionally infirm: their constitutionality is a function of the for the simple reason that the speech would they would regulate—and thus unacceptably unique First Amendment jurisprudence that be subsidized not by the taxpayers but by the chill—core political speech about the merits the Court has developed for the electronic broadcasters.42 of policies and the proper resolution of pub- media. That jurisprudence had its beginnings In fact, what the free TV time proposals lic issues without a corruption-prevention in Red Lion Broadcasting Co. v. FCC,35 in contemplate seems to be a bold end-run rationale for doing so. Proponents of con- which the Court, pointing to ‘‘spectrum scar- around traditional and well-established First trols on issue advocacy claim that controls city,’’ upheld the Federal Communication Amendment principles. The broadcasters are necessary to prevent the acquisition of Commission’s rule that those attacked edi- have no First Amendment right to resist undue influence by advocates of particular torially by the broadcast media had a right compliance, proponents say, because spec- issues. There is, however, no constitutional of reply. Thus it denied the broadcasters’ trum scarcity permits the government to S10350 CONGRESSIONAL RECORD — SENATE October 6, 1997 regulate their editorial judgments in the paign finance jurisprudence, but it is impor- have both.’’ 58 That breathtaking assertion public interest. And the candidates have no tant to appreciate that it was not a novel, performs a real service. It alerts us to the First Amendment right to resist compliance isolated case. Rather, it was laid upon an al- fact that, in the eyes of advocates of reform, with format or content controls because ready existing, solidly constructed First freedom as we know it cannot survive an am- they are being permitted to speak for free. Amendment foundation. Thus, to appreciate bitious program of campaign finance regula- As the analysis above has demonstrated, the its true significance, and understand what is tions. Of equal importance, it begs the all- First Amendment stands as a more effective at stake in the present debate, it helps to see important questions about what a ‘‘healthy defense of freedom than the proponents Buckley as sustaining a First Amendment democracy’’ would look like and why a imagine, and the Supreme Court would sure- tradition that was already deeply embedded healthy democracy is not by definition one, ly have little difficulty detecting the con- at the time the case was decided. Buckley like ours at present, in which freedom of stitutional shell game that the free TV pro- was one in a long and continuing line of speech reigns. posals epitomize. cases that have articulated and upheld, in a Nevertheless, the regulatory proposals Expanded Federal Election Commission wide variety of contexts, the principles of that have recently been placed on the legis- Enforcement Powers free political speech and individual political lative agenda do claim to embody a First Many of the proposals for increased regula- freedom that lie at the very heart of the Amendment vision of sorts. Based not on tion of campaign finance envision a hugely First Amendment. legal precedent but crafted by legal scholars The Constitution is the fundamental char- enlarged enforcement role for the already and judges who adumbrated it in the pages of ter of our representative democracy, the em- overburdened and generally ineffectual Fed- scholarly journals and treatises, the concep- bodiment of our right to self-government and tion of the First Amendment that animates eral Election Commission.43 The wisdom of of all our corollary liberties. The First proposals for campaign finance regulation imposing such a monumental burden on any Amendment’s specification that ‘‘Congress bears almost no resemblance to the freedom- federal agency, much less on this particular shall make no law . . . abridging freedom of oriented conception that actual First one, is questionable; but whether the en- speech or of the press; or of the right of the Amendment doctrine embodies. Indeed, it forcement mechanisms that Congress devises people peaceably to assemble, and to peti- distorts our traditional understandings of for implementing particular regulatory tion the Government for a redress of griev- what the very words of the amendment mean strategies are feasible or not does not usu- ances’’ plays a crucial role in determining and imparts an extraordinary and unprece- ally raise First Amendment issues. the character of our democracy. ‘‘A major One enforcement proposal does raise such dented significance to the phrase ‘‘freedom purpose of [the] Amendment was to protect of speech.’’ Precisely because it animates the issues, however: the proposal to give the FEC the free discussion of governmental af- present reform agenda, however, it warrants power to seek to enjoin potential offenders fairs.’’ 47 Accordingly, it guarantees that in- a brief summary. on the ground that ‘‘there is a substantial dividual citizens may speak, publish, and The conception of the First Amendment likelihood that a violation is about to join together in groups to engage in political that underlies the regulatory agenda of pro- occur.’’ The proposal is vulnerable to two activity to try to achieve the substantive ponents of campaign finance reform is best different First Amendment challenges. The ends they deem desirable.48 They may at- understood as a rejection of the traditional first involves vagueness. Many of the pro- tempt to persuade others and to acquire po- understanding that freedom of speech nec- posed substantive violations are themselves litical influence, and the government may essarily implies individual political liberty vague, and the ‘‘substantial likelihood’’ cri- not interfere with, punish, repress, or other- and the absence of substantive or qualitative terion for FEC action is also vague. The wise impede their efforts.49 regulation of political debate. Proponents of threat of FEC action based on either vague That conception of the First Amendment reform do not perceive that they utter a con- element of that ground would not only have is fleshed out in Supreme Court opinions tradiction when they assert that freedom of an unacceptable chilling effect on many ac- that both pre- and post-date Buckley. Those speech can be ‘‘enhanced,’’ 59 its purposes tivities that are not violations; more signifi- opinions make it clear that implicit in the ‘‘furthered, not abridged,’’ 60 by legislation cantly, it would also invite precisely the First Amendment guarantee of freedom from that regulates and restricts political speech. kind of arbitrary exercise of government government control over what citizens may That is because the proponents of regulation power that the vagueness doctrine is de- say and with whom they may associate as believe that freedom is a quality of political 44 signed to forestall. participants in the political process is the life that can be regulated into existence The second First Amendment challenge to important corollary that citizens may freely rather than an aspect of democracy that gov- giving the FEC power to enjoin campaign ac- contribute or expend the resources at their ernment regulation necessarily and by defi- tivity involves prior restraint on speech. command—their intellect, their time, their nition destroys. They think that the guaran- Prior restraints are the ‘‘most serious and talent, their organizational or rhetorical tee of freedom of speech is in fact a grant of the least tolerable infringement of First skills, their money—to or on political activ- power to, rather than a withholding of power Amendment rights,’’ 45 and they will not be ity.50 The government may not interfere in from, the government. With such power, gov- sustained unless the Court is convinced that their efforts to persuade their fellow citizens ernment can control the content of political ‘‘the gravity of the evil, discounted by its of the merits of particular proposals or of debate and fix the political process so that probability, justifies such invasion of free particular candidates,51 nor may it disrupt ‘‘political reason-giving’’ will prevail. Politi- speech as is necessary to avoid the dan- the free communication of their views,52 nor cal influence will be distributed equally ger.’’ 46 It seems unlikely that the Court penalize them for granting or withholding among groups so that ‘‘people who are able would hold that the mere possibility of vio- their support from elected officials on the to organize themselves in such a way as to lating campaign finance regulations poses basis of the positions those officials spend large amounts of cash [will] not [be] the kind of threat to the national interest espouse.53 Government may neither prescribe able to influence politics more than people that would justify imposing prior restraints an official orthodoxy,54 require the affirma- who are not similarly able.’’ 61 Then money on speech, especially since the kind of speech tion of particular beliefs,55 nor compel citi- will no longer play a role in our politics. put at risk by such an injunction—political zens to support causes or political activities The regulators appear to distrust deeply speech during the course of an election cam- with which they disagree.56 Government may the American people. They unselfconsciously paign—lies at the very core of the First neither punish its critics nor impose unnec- express the concern that ‘‘completely un- Amendment. essary burdens on their political activity.57 regulated [i.e., free] political campaigns will THE FIRST AMENDMENT ACCORDING TO THE Those are the bedrock principles of political degenerate in such a way that the electorate REGULATORS freedom with which Buckley and its progeny would be divested of its power to make a rea- When one looks at Supreme Court prece- are consistent; those are the principles that soned choice among the candidates.’’62 In dents—in particular at Buckley and its prog- impelled the Buckley Court’s conclusion that other words, they believe that the American eny—the First Amendment case against cur- government may not restrict independent people cannot be trusted with the choices rent proposals for more stringent campaign political expenditures and may limit politi- and political responsibilities entailed in a finance regulations appears impregnable. cal campaign contributions only in the name free political system; instead, the govern- But, given the vehemence and surety with of preventing corruption. ment must regulate the political process in which those proposals are advocated, perhaps To remain faithful to those principles, one order to help the people to make appropriate it is well to look more closely both at the must be vigilant to detect the costs to free- decisions. precedents for Buckley and related cases and dom lurking in reform proposals that come In the First Amendment context, three as- at the conception of the First Amendment dressed as benign efforts to achieve a pects of the regulators’ conception deserve the reformers embrace and how that concep- healthy politics. In the course of explaining particular emphasis. The first has already tion differs from the First Amendment that why the First Amendment should be amend- been mentioned: the regulators’ conception is presently embodied not only in our demo- ed, House Minority Leader Richard Gephardt perverts the meaning of the word ‘‘freedom.’’ cratic traditions but in our supreme law. (D-Mo.) baldly stated that formal amend- Second, while decrying the polluting effect An important question to ask is to what ment was needed so that Congress could of wealth on the democratic process and extent the precedents—which stand as bar- enact new and stringent campaign finance celebrating spending and contribution re- riers to so-called reform efforts—are rooted restrictions because ‘‘[w]hat we have is two strictions purporting to keep the voices of in traditions and ideas of freedom that we important values in direct conflict: freedom individual citizens from being drowned out, wish to preserve. Buckley may be the corner- of speech and our desire for healthy cam- reformers exempt the press from their re- stone of the Supreme Court’s modern cam- paigns in a healthy democracy. You can’t form proposals. In the recent debate, of October 6, 1997 CONGRESSIONAL RECORD — SENATE S10351

course, the press has largely bemoaned the CONCLUSION poration organized to ‘‘foster respect for vices of the current system, and ‘‘its myth- In conclusion, current proposals for new human life and to defend the right to life of making has been especially important in the regulation of federal election campaign fi- all human beings . . . through . . . political shaping of mass opinion about reform.’’ 63 nance practices are constitutionally indefen- . . . activities,’’ violated FECA restrictions Simply by virtue of their ability to influence sible. In their general conception, they are on independent spending by corporations the public agenda, the media distort debate, nothing short of a practically complete re- when it financed a special edition of its and the distortion of the political process jection of the individual and associational newsletter in which it identified and advo- that results from media treatment of par- rights of expression and political participa- cated the election of ‘‘pro-life’’ candidates. ticular candidates or issues is likely to be tion that the First Amendment guarantees. The Court held, however, that as applied to significant.64 The Supreme Court has explic- In their specifics, the governmental interests MCFL’s expenditure in this case FECA was itly eschewed defining the rights of the press they claim to serve are neither compelling unconstitutional. First, it burdened the more broadly than speech rights of ordinary nor even legitimate. And the means they de- right of the organization to make independ- 65 citizens. Yet under the reformers’ concep- ploy are neither the least restrictive nor ent expenditures—‘‘expression at the core of tion of the First Amendment, the media and finely tailored. If they were to be enacted, our electoral process and of the First 74 media corporations enjoy privileges not en- and were challenged in court and subjected Amendment freedoms.’’ Second, because joyed by ordinary citizens. to genuinely strict scrutiny, none of the pro- ‘‘it was formed to disseminate political The third noteworthy aspect of the reform- 75 posed regulations could survive review. They ideas, not to amass capital,’’ MCFL did not ers’ conception of the First Amendment is could survive only if the Supreme Court de- pose a threat of ‘‘unfair deployment of that the agenda that conception is used to cided to amend the First Amendment by ju- wealth for political purposes,’’ nor did it promote is neither premised on empirical 76 dicial fiat. ‘‘pose [a] danger of corruption.’’ Thus the analysis, nor derived from established postu- ‘‘concerns underlying the regulation of cor- lates, nor defended in terms of predictions APPENDIX: BUCKLEY’S PROGENY porate political activity are simply absent about testable results. Rather, it rests on Bellotti, widely known as the ‘‘corporate with regard to MCFL.’’ 77 The commission’s pejorative and highly charged rhetoric, is speech’’ case, invalidated a Massachusetts argument that it needed a broad prophy- formulated in ill-defined but evocative law that prohibited banks and business cor- lactic rule like the one the Court had sus- terms, and is defended with extravagant porations from making expenditures to in- tained in National Right to Work Committee claims about benign effects. Yet upon analy- fluence the vote on ballot referenda that did did not persuade the Court. National Right to sis, the picture the regulators paint—both of not materially affect their business, prop- Work Committee involved restrictions on so- political reality and of the goals of reform— erty, or assets. The Court strictly scruti- licitation for a political committee that is so vague that it begs all the important nized the state interests asserted in behalf of made contributions to candidates, whereas questions. the statute and the relationship between the regulation at issue in MCFL was a re- Thus, when the late Judge Skelly Wright, those interests and the spending limitations striction on independent expenditures; more- long in the reform camp, surveyed the politi- alleged to be the means of securing them and over, the administrative convenience of a cal process, he was dismayed to find ‘‘the rather easily concluded that there was an in- bright-line rule is of insufficient weight to polluting effect of money in election cam- sufficient means-end relationship to justify count as a compelling interest in treating paigns.’’ He worried that ‘‘[c]oncentrated the limitations. two unlike entities—business corporations wealth . . . threaten[ed] to distort political Sustaining FEC limits on the amount of and groups like MCFL—alike. campaigns and referenda,’’ and he announced money that an unincorporated association is The particular restrictions on independent that ‘‘[t]he voices of individual citizens are permitted to give to a multicandidate politi- expenditures at issue in MCFL were held un- being drowned out’’ by the ‘‘unholy alliance cal committee, the Court in California Medi- constitutional. On the way to reaching that of big spending, special interests, and elec- cal Association v. Federal Election Commission result, however, the Court appeared to sug- tion victory.’’ 66 Similarly, Professor Cass engaged in lenient review. Contributions are gest that if MCFL had been an ‘‘ordinary’’ Sunstein of the University of Chicago more ‘‘speech by proxy,’’ the Court declared, so corporation—one that posed a threat of cor- recently asserted that ‘‘‘[m]any people think limiting them did not ‘‘restrict the ability of ruption by ‘‘unfair deployment of wealth for that the present system of campaign financ- individuals to engage in protected political political purposes’’ instead of one formed for ing distorts the system of free expression, by advocacy.’’ 68 the particular purpose of engaging in politi- allowing people with wealth to drown out Insisting that ‘‘there is no significant state cal advocacy—the case might have come out people without it. . . . [C]ampaign finance or public interest in curtailing debate and differently. laws might be thought to promote the pur- discussion of a ballot measure,’’ the Court in That suggestion bore fruit in Austin v. pose of the system of free expression, which Citizens against Rent Control v. City of Berke- Michigan Chamber of Commerce,78 in which the is to ensure a well-functioning deliberative ley 69 strictly scrutinized a limitation on con- Court sustained a state law prohibiting the process among political equals.’’ 67 tributions to committees formed to support use of corporate treasury funds to make What do all those words mean? What does or oppose ballot measures. It invalidated the independent expenditures in support of or in the ‘‘pure political process’’—the one that is limitation. opposition to candidates in elections for being ‘‘polluted’’—actually look like? How Federal Election Commission v. National state office. The state defended the expendi- rich are ‘‘people with wealth’’? How poor are Right to Work Committee was a challenge to a ture prohibition on the ground that ‘‘the ‘‘people without it’’? Apart from one person, section of FECA that limited the National unique legal and economic characteristics of one vote, what does it mean to be a ‘‘politi- Right to Work Committee to solicitation of corporations necessitate some regulation of cal equal’’? If it means that one cannot le- ‘‘members.’’ Declaring that it would not their political expenditures to avoid corrup- gitimately attempt to acquire any more po- ‘‘second-guess a legislative determination as tion or the appearance of corruption.’’ Jus- litical influence than anyone else has, what to the need for prophylactic measures where tice Marshall’s majority opinion upholding point is there in participating in even a corruption is the evil feared,’’ 70 the Court the restriction accepted that formulation of ‘‘well-functioning deliberative process’’? And narrowly construed the section and, as so the corruption-prevention rationale and in why isn’t the individual political freedom construed, sustained it against a First doing so seemingly embraced a conception of that is guaranteed by present First Amend- Amendment challenge. legislative power to define and prevent ‘‘cor- ment doctrine the best means of securing a But in the next case, Federal Election Com- ruption’’ different from, more expansive ‘‘well-functioning’’ democracy? mission v. National Conservative Political Ac- than, and much less precise than that which The reason questions like those are impor- tion Committee,71 the Court reasserted its in- the Buckley court had endorsed. Buckley and tant is that the Supreme Court engages in tention and authority strictly to scrutinize its progeny had limited legislative power to strict scrutiny of legislation that restricts corruption-prevention justifications, at least define corruption by focusing on corruption’s campaign giving and spending. That requires when they were offered in support of limita- deleterious effect on the integrity of elected the Court to analyze carefully the asserted tions on expenditures. The decision invali- officials. Corruption that legislatures may relationships between ends and means—a dated § 9012(f) of the Presidential Election prevent occurs only when ‘‘[e]lected officials process that can hardly go forward when the Campaign Fund Act, which prohibited politi- are influenced to act contrary to their obli- ends of the legislation cannot be precisely cal committees from making independent ex- gations of office by the prospect of financial defined and the means can be rhetorically in- penditures in excess of $1,000 to support the gain to themselves or infusions of money voked but not actually spelled out. More- election of a presidential candidate who had into their campaigns. The hallmark of cor- over, since campaign finance reforms have so opted to receive public funding. ‘‘When the ruption is the financial quid pro quo: dollars often turned out to have unintended—indeed First Amendment is involved,’’ then-Justice for political favors.’’ 79 The Austin opinion perverse—consequences for the political Rehnquist said, a ‘‘rigorous’’ standard of re- implied that legislatures could choose to de- process, and since past reforms, far from view is called for and deference to a legisla- fine ‘‘corruption’’ to include imprecisely de- having leveled the political playing field, tive judgment is appropriate only ‘‘where the fined untoward effects that spending might have only entrenched incumbents, it appears evil of potential corruption had long been have not just on the behavior of elected offi- doubly important that the goals of proposed recognized.’’ 72 cials but also on the electoral process it- new regulations be precisely specified and Federal Election Commission v. Massachusetts self.80 that the means chosen to achieve them be Citizens for Life 73 was the next major cam- Although it may signal a departure from persuasively shown to be well targeted and paign finance reform case. Massachusetts Buckley’s limiting principles, the precise ex- genuinely likely to hit their mark. Citizens for Life, a nonprofit, nonstock cor- tent to which Austin undermines Buckley’s S10352 CONGRESSIONAL RECORD — SENATE October 6, 1997 constraints on legislative power to define 6. Buckley v. Valeo, 424 U.S. 1, 44–45 (1976) (per cu- 43 Benjamin Weiser and Bill McAllister, ‘‘The Lit- corruption remains unclear for at least two riam). tle Agency That Can’t: Election Law Enforcer Is reasons. First, the Austin Court made much 7. Pub. L. no. 93–443, 88 Stat. 1263 (1974). Weak by Design, Marginalized by Division,’’ Wash- of the fact that the restriction at issue there 8. Buckley at 14 (quoting Mills v. Alabama, 384 U.S. ington Post, February 12, 1997, p. A1. 214, 218 (1966)). 44 See, for example, Smith v. Goguen, 415 U.S. 566, was imposed on corporate expenditure of 9. Ibid. at 20. 572–73 (1974) (The vagueness doctrine ‘‘requires legis- treasury funds, thus hinting that had the 10. Ibid. at 21. The different treatment accorded to latures to set reasonably clear guidelines for law en- prohibition applied to independent expendi- contributions and expenditures has been subjected forcement officials and triers of fact in order to pre- tures by individuals, or even by separate seg- to scathing criticism both on and off the Court, vent ‘arbitrary and discriminatory enforcement.’ regated corporate political action commit- most recently in Colorado Republican Federal Cam- Where a statute’s literal scope, unaided by a narrow- tees, the result would have been different paign Committee v. Federal Election Commission, 116 S. ing state court interpretation, is capable of reaching and the prohibition would have been struck Ct. 2309, 2325 (1996) (Thomas, J., concurring in the expression sheltered by the First Amendment, the judgment and dissenting in part). doctrine demands a greater degree of specificity down. Second, Justice Marshall’s opinion is 11. Buckley at 25 (Contribution limitations may be than in other contexts.’’) (Citation omitted.) obscure about the meaning it ascribes to the sustained if the state demonstrates a sufficiently 45 Nebraska Press Association v. Stuart, 427 U.S. 539 term ‘‘corruption.’’ Although the opinion is important interest and deploys means closely drawn (1976). See also New York Times Co. v. U.S., 403 U.S. larded with prejorative and evocative ref- to avoid unnecessary abridgment). 713 (1971) (‘‘Any system of prior restraint of expres- erences to the ‘‘influence of political war 12. Ibid. at 19. sion comes to this Court bearing a heavy presump- chests’’81 and the ‘‘corrosive and distorting 13. Ibid. at 26. tion against its constitutional validity.’’) 14. Ibid. at 48–49. 46 Nebraska Press Association at 561. (Citations omit- effects of immense aggregations of 15 The Appendix to this study contains a more de- ted). 82 wealth,’’ it does not describe a normative tailed analysis of how the cases decided since Buck- 47 Mills v. Alabama, 384 U.S. 213, 218 (1966). baseline of legitimacy that would permit a ley have implemented the Buckley framework. 48 NAACP v. Button, 371 U.S. 415 (1963); NAACP v. disinterested observer to detect a genuine 16 Citizens against Rent Control v. Berkeley, 454 U.S. Alabama, 357 U.S. 449 (1958). threat of ‘‘corruption’’ in any particular 290, 296 (1981). 49 Hague v. CIO, 307 U.S. 496 (1939). campaign finance practice. The most the 17 Ibid. at 299. 50 Meyer v. Grant, 496 U.S. 414 (1988). 18 Ann McBride, president of Common Cause, Testi- 51 opinion does in that regard is to suggest that Pickering v. Board of Education, 391 U.S. 563 (1968). mony before the Senate Rules Committee, February 52 Mt. Healthy City School District Board of Edu- the distortion that is a permissible target of 1, 1996. See also, to the same effect, Joan Claybrook, cation v. Doyle, 429 U.S. 274 (1977). the legislature’s concern stems from the fact president of Public Citizen, Testimony before the 53 Elrod v. Burns, 427 U.S. 347 (1976). that ‘‘the resources in the treasury of a busi- Senate Rules Committee; and Becky Cain, president 54 West Virginia Board of Education v. Barnette, 319 ness corporation . . . are not an indication of the League of Women Voters, Testimony before U.S. 624 (1943). of popular support for the corporation’s po- the Senate Committee on Rules and Administration, 55 Wooley v. Maynard, 430 U.S. 705 (1977). March 13, 1996. 56 litical ideas.’’83 Unfortunately, the opinion Communication Workers of America v. Beck, 487 19 Carver v. Nixon, 72 F.3d 633, 637 (1995) (citing fails to explain the First Amendment prin- U.S. 735 (1988); Abood v. Detroit Board of Education, Buckley at 30). 431 U.S. 209 (1977). ciple that gives that fact the power to trans- 20 Kusper v. Pontikes, 414 U.S. 51, 57 (1973). 57 Village of Schaumburg v. Citizens for a Better Envi- form the most highly protected category of 21 Citizens against Rent Control at 294. ronment, 444 U.S. 620 (1980). core political speech into an activity subject 22 Buckley at 45. 58 Quoted in Nancy Gibbs, ‘‘The Wake-Up Call: to complete legislative proscription. 23 Ibid. at 57. Clinton Makes Serious Noises about Campaign Re- The Supreme Court’s most recent pro- 24 Ibid. at 57n. 65. form, But That May Not Be Enough to Change a 25 nouncement on the constitutionality of cam- ‘‘Free’’ in the sense of no cost to them, but not Cozy System That Loves Special Interest Money,’’ free in the sense of ‘‘costless.’’ The cost would be paign finance regulations came in the 1996 Time, February 3, 1997, p. 22. borne by the broadcasters. 59 Laurence H. Tribe, American Constitutional Law, case of Colorado Republican Federal Campaign 26 Buckley at 92–93. 1st ed. (Mineola, N.Y.: Foundation Press, 1978), § 13– Committee, in which the Court held seven to 27 Shrink Missouri Government PAC v. Maupin, 71 27, pp. 802–3. two that independent expenditures by politi- F.3d 1422, 1426 (8th Cir. 1995). 60 Daniel Hays Lowenstein, ‘‘Campaign Spending 28 cal parties cannot constitutionally be lim- People who favor increased regulation indulge in and Ballot Propositions: Recent Experience, Public ited by Congress. Two justices, Stevens and a rhetorical strategy that implicitly equates big Choice Theory, and the First Amendment,’’ UCLA Ginsburg, dissented. They signaled that they money with corruption and undue influence. It is Law Review 29 (1982): 581–82. thus important to recall that seeking to influence 61 Cass R. Sunstein, ‘‘Political Equality and Unin- were prepared to retreat from Buckley; they policy is what political activity—and free speech—is tended Consequences,’’ Columbia Law Review 94 would have held that any spending by a po- all about. We have no metric to tell us when influ- (1994): 1392. litical party represents a contribution to a ence is undue. And the Court has squarely held that 62 Tribe, § 13–26, p. 798. candidate and can accordingly be limited, only activities that create a danger of quid pro quo 63 Frank J. Sorauf, ‘‘Politics, Experience, and the corruption can be constitutionally regulated. and they were prepared to defer to First Amendment: The Case of American Campaign 29 Buckley at 44–45. Congress’s judgment that measures to level Finance,’’ Columbia Law Review 94 (1994): 1356. 30 Colorado Republican Federal Campaign Committee the political playing field were necessary 64 Cf. Sanford Levinson, ‘‘Electoral Regulation: at 2330–31 (Thomas, J., concurring in the judgment and that there was too much spending on po- Some Comments,’’ Hofstra Law Review 18 (1989): 412 and dissenting in part). (‘‘I am unpersuaded by any analysis that expresses litical campaigns. The other justices stayed 31 See Douglas Johnson and Mike Beard, ‘‘’Cam- well within the Buckley framework, and four paign Reform’: Let’s Not Give Politicians the Power justified worry about the impact of money on the of them would have gone further to safe- to Decide What We Can Say about Them,’’ Cato In- behavior of public officials and, at the same time, guard the First Amendment than did Justice stitute Briefing Paper no. 31, July 4, 1997. wholly ignores the power of the media to influence Breyer’s opinion for the Court. Justice Ken- 32 McIntyre v. Ohio Elections Commission, 514 U.S. 334 these same public officials in part through the me- (1995). dia’s ability to structure public consciousness.’’) nedy, for example, got the support of Chief 65 33 First National Bank of Boston v. Bellotti, 435 U.S. Cf. Pell v. Procunier, 417 U.S. 817, 834 (1974) (‘‘The Justice Rehnquist and Justice Scalia for his Constitution does not . . . require government to ac- position that spending by political parties, 765 (1978). 34 McIntyre at 445. cord the press special access to information not even if it is coordinated with candidates, 35 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 shared by members of the public generally.’’) cannot be restricted pursuant to the First (1969). 66 Skelly Wright, ‘‘Money and the Pollution of Pol- Amendment because to restrict party spend- 36 See Miami Herald Publishing Co. v. Tornillo, 418 itics: Is the First Amendment an Obstacle to Politi- ing is to stifle what parties exist to do. Jus- U.S. 241 (1974). cal Equality?’’ Columbia Law Review 82 (1982): 614, tice Thomas, in a strongly argued opinion, 37 See, for example, David Lange, ‘‘The Role of Ac- 622. 67 endorsed abandoning Buckley’s dichotomy cess Doctrine in the Regulation of the Mass Media: Cass R. Sunstein, The Partial Constitution (Cam- bridge, Mass.: Harvard University Press, 1993), p. 84. between contributions and expenditures and A Critical Review and Assessment,’’ North Carolina Law Review 52 (1973): 1. See also Scot Powe, ‘‘Or of 68 California Medical Association v. Federal Election advocated treating contribution and expend- the [Broadcast] Press,’’ Texas Law Review 55 (1976): Commission, 453 U.S. 182, 196, 199n. 20 (1981). iture limitations the same for First Amend- 39. 69 Citizens against Rent Control at 291. ment purposes, subjecting both to strict 38 See, for example, Turner Broadcasting System Inc. 70 Federal Election Commission v. National Right to scrutiny and not permitting broad prophy- v. FCC, 512 U.S., 622, 637–38 (1996) (noting that both Work Committee, 459 U.S. 197, 210 (1982). lactic corruption-preventing measures. courts and commentators have questioned the valid- 71 Federal Election Commission v. National Conserv- ity of the scarcity rationale for disparate treatment ative Political Action Committee, 470 U.S. 480 (1985). NOTES of broadcast and print media); Telecommunications 72 Ibid. at 500. 1. John V. Lindsay, ‘‘Free TV for Political Can- Research & Action Center & Media Access to Project v. 73 Federal Election Commission v. Massachusetts Citi- didates? Yes, to Cleanse the System,’’ New York FCC, 801 F.2d 501 (DC Cir. 1986). zens for Life, 479 U.S. 238 (1986). Daily News, February 20, 1996. 39 Rodney A. Smolla, ‘‘The Culture of Regulation,’’ 74 Ibid. at 251 (citations omitted). 2. Ruth Marcus and Charles R. Babcock, ‘‘The Sys- CommLaw Conspectus 5 (1997): 193, 199. 75 Ibid. at 259. tem Cracks under the Weight of Cash: Candidates, 40 Turner Broadcasting at 641. 76 Ibid. at 260. Parties and Outside Interests Dropped a Record $2.7 41 Rust v. Sullivan, 500 U.S. 173 (1991). 77 Ibid. at 263. Billion,’’ Washington Post, February 9, 1997, p. A1. 42 Cf. CBS, Inc. v. FCC, 453 U.S. 367 (1981), in which 78 Austin v. Michigan Chamber of Commerce, 494 U.S. 3. Ibid, pp. 20–21. the Supreme Court sustained the FCC’s reading of 652 (1990). 4. Frank J. Sorauf, ‘‘Politics, Experience, and the § 312(a)(7) of the Communications Act of 1943, to the 79 Federal Election Commission v. National Conserv- First Amendment: The Case of American Campaign effect that the section created an affirmative, ative Political Action Committee at 497. Finance,’’ Columbia Law Review 94 (1994): 1350 (citing promptly enforceable right of reasonable access to 80 Austin at 659–60. the amicus brief of Common Cause that was filed in the use of broadcast stations for individual can- 81 Ibid. at 659 (quoting Federal Election Commission Buckley v. Valeo). didates seeking federal office. CBS v. FCC provides v. National Conservative Political Action Committee at 5. Helen Dewar and Guy Gugliotta, ‘‘In Campaign no comfort to the proponents of free TV, however, 500–501). Finance, One Party’s ‘Level Playing Field’ Is An- since § 312(a)(7) required only that networks provide 82 Ibid. at 660. other’s Shaky Ground.’’ Washington Post, April 7, access for which candidates were willing and had of- 83 Ibid. at 659 (quoting Federal Election Commission 1997, p. A6. fered to pay. v. Massachusetts Citizens for Life at 258). October 6, 1997 CONGRESSIONAL RECORD — SENATE S10353

Mr. MCCONNELL. Mr. President, I as California and Oregon have adopted ballot speaking power, because that rationale, the will ask to have printed in the RECORD measures imposing limits on the financing of Court said, is ‘‘wholly foreign to the First an excellent treatise on campaign fi- state election campaigns.8 Amendment.’’ 16 Thus, the Court held, the In short, the view that political money nance reform and the Constitution by only way government may bring about polit- should be limited has become mainstream ical expenditure limits is through a quid pro Professor of Law Kathleen M. Sullivan orthodoxy. Against this formidable array of quo of its own: government may induce a of Stanford which was recently pub- thoughtful opinion, I offer here a contrary candidate to accept expenditures limits in lished in the law journal published by view. This Essay first lays out briefly the exchange for public subsidies. the University of California at Davis. current law of political money and the cur- Various cogent criticisms have been lev- Professor Sullivan examines and dis- rent landscape of proposals for its reform. It eled at the contribution/expenditure distinc- misses what she terms the reformers’ then offers a critical guide to the reformers’ tion. First, both contributions and expendi- ‘‘Seven Deadly Sins’’ of political arguments by examining the political theo- tures may equally express political opinions. money. This is must reading for any- ries that more or less explicitly underlie As Justice Thomas wrote last summer: them. It concludes that the much belittled ‘‘Whether an individual donates money to one desiring a better understanding of constitutional case against campaign fi- a candidate or group who will use it to pro- the first amendment’s role in this de- nance limits is surprisingly strong, and that mote the candidate or whether the individ- bate. the better way to resolve the anomalies cre- ual spends the money to promote the can- Mr. President, I ask unanimous con- ated by Buckley v. Valeo may well be not to didate himself, the individual seeks to en- sent that that treatise be printed in impose new expenditure limits on political gage in political expression and to associate the RECORD. campaigns, but rather to eliminate contribu- with likeminded persons. A contribution is There being no objection, the mate- tion limits. simply an indirect expenditure.’’ 17 rial was ordered to be printed in the I. The law of political money This argues for protecting both expendi- tures and contributions alike. Second, an In our political system, political cam- RECORD, as follows: ‘‘independent’’ expenditure may inspire just paigns are generally funded with private [From the University of California, Davis as much gratitude by the candidate as a di- money—the candidates’ own resources plus Winter Law Review, 1997] rect contribution. This argues for regulating contributions of individuals, political par- them both alike. Finally, it has been ob- POLITICAL MONEY AND FREEDOM OF SPEECH ties, and organized groups. The presidential jected, it is unclear why expenditure limits (By Kathleen M. Sullivan) campaign is an exception, funded publicly may be induced with carrots if they may not since the 1976 campaign.9 In our system, can- [Stanley Morrison Professor of Law, Stan- be compelled with sticks.18 This argues for didates also communicate primarily through ford University. This Essay was originally precluding private expenditure limits even entities that are privately owned—the print the Edward L. Barrett, Jr. Lecture on Con- as a condition of public subsidies. and electronic press that provide candidates stitutional Law, delivered at the University These inconsistencies arise from free news coverage and opportunities for paid of California, David School of Law on Feb- theBuckley Court’s attempt to solve an ana- political advertisements. One could imagine ruary 13, 1997. The author is grateful for the logical crisis by splitting the dif- alternate systems, such as public funding of hospitality of Dean Bruce Wolk and the Law ference.Buckley involved nothing less than a parties and candidate elections or public School on that occasion. For helpful com- choice between two of our most powerful tra- ownership of the communications media, but ments, the author thanks Alan Brownstein, ditions: equality in the realm of democratic such systems are not our own, nor likely to Floyd Feeney, and participants in a GALA polity, and liberty in the realm of political be our own any time soon. workshop organized by Sanford Kadish at speech. The Court had to decide whether out- In the 1976Buckley decision, the Court held the University of California, Berkeley. For lays of political money more resemble vot- that restrictions on political spending impli- research assistance, the author thanks Mat- ing, on the one hand, or political debate, on cate freedom of speech. Invalidating some thew Shors.] the other. The norm in voting is equality: portions of the post-Watergate amendments INTRODUCTION one person, one vote. The norm in political to the Federal Elections Campaign Act but speech is negative liberty: freedom of ex- There is much talk about political money upholding others, the Court held change, against a backdrop of unequal dis- in the wake of the 1996 election. Some find thatcontributions to a candidate could con- tribution of resources (it has been said that the sheer volume of money spent impressive: stitutionally be limited, butexpenditures freedom of the press belongs to those who an estimated $3 billion on all elections, $660 could not, except as a condition of receiving own one 19). Faced with the question of which million on electing the Congress, and $1 bil- public funds.10 Thus, afterBuckley, can- regime ought to govern regulation of politi- lion on the presidential election. Others didates may spend all they want, unless they cal money, the Court in effect chose a little focus on the questions raised about alleged are presidential candidates who have taken of both. It treated campaign contributions as fund-raising activities that are forbidden by public money; so may political parties, indi- more like voting, where individual efforts existing laws, such as contributions to polit- viduals, and organized groups such as politi- may be equalized, and campaign expendi- ical parties by foreign nationals. Still others cal action committees (PACs)—as long as tures as more like speech, where they may focus on ‘‘loopholes’’ in the existing laws they act independently of the candidate.11 not. that allow their nullification as a practical But direct donations to a candidate’s cam- matter. Nearly all focus on the presumed paign may be limited in amount. Under cur- II. Leading reform proposals special influence of large contributors on po- rent federal law, an individual is limited in Currently on the table are three type of re- 1 litical outcomes. each election to contributing one thousand form proposals to impose new restrictions on Against this backdrop has arisen a hue and dollars to a candidate, five thousands dollars political money. One advocates further lim- cry for campaign finance reform. Senators to a PAC, and twenty thousand dollars to a iting campaign contributions. The second McCain and Feingold have revived a pro- national party, and must keep the grand proposes more conditioning of benefits upon posed Senate campaign finance reform bill total to twenty-five thousand dollars. PACs corresponding ‘‘voluntary’’ limits on private that withered under filibuster in the 104th may give only five thousand dollars to a can- spending. The third would place outright re- 2 Congress; Representatives Shays and didate, five thousand dollars to another PAC, strictions on campaign expenditures. The Mechan have introduced comparable biparti- and fifteen thousand dollars to a national first two seek to operate within theBuckley san legislation in the House. President Clin- party.12 Political parties, too, face spending framework; the third would overruleBuckley 3 ton has endorsed those bills. Newly retired limits when they contribute to the cam- in part. Democratic Senator Bill Bradley has called paigns of their candidates, though these are The first type of reform proposal would the McCain-Feingold proposal timid and ad- higher than those for PACs.13 ‘‘close loopholes’’ in the existing regulatory vocates more sweeping reforms; he favors a The split regime ofBuckley thus authorizes scheme by extending the reach of contribu- constitutional amendment to overrule Buck- government to limit thesupply of political tion limits. For example, there are currently 4 ley v. Valeo, the 1976 Supreme Court decision money, but forbids it to limitdemand. Why no restrictions on contribution ‘‘bundling’’ holding that some campaign finance limits the distinction?Contributions, the Court said, by intermediaries. One political entre- 5 violate the right of free speech. Other implicate lesser speech interests; they mere- preneur may collect several individual con- prominent advocates of the overrule of Buck- ly facilitate or associate the contributor tributions of one thousand dollars each and ley include twenty-six legal scholars led by with speech. They also raise the specter of turn over the entire sum to the candidate, 6 Ronald Dworkin, and twenty-four state at- ‘‘corruption’’ or the appearance of corrup- PAC, or party—taking political credit for a torneys general who argue that political tion—that is, the danger of a quid pro much larger amount than she personally money threatens the integrity of elections quo.14Expenditures, the Court said, are more could have contributed. Some reform propos- 7 that it is their job to defend. Countless directly expressive, and involve no corrup- als, such as McCain-Feingold, would treat newspaper editorial pages have opined that tion—a candidate cannot corrupt herself, and such ‘‘bundled’’ contributions as contribu- the time is ripe—while public outrage is those who spend independently of the can- tions by the intermediary, and therefore sub- high—to finally do something about cam- didate’s campaign cannot reasonably expect ject to the otherwise applicable contribution paign finance reform. Voters in states such a pay-back.15 Nor, held the Court, could limits.20 In other words, no more bundling.21 spending limits be justified by the alter- Other such proposals would impose con- 1 Footnotes at end of article. native rationale of equalizing political tribution limits on so-called ‘‘soft money’’— S10354 CONGRESSIONAL RECORD — SENATE October 6, 1997 those sums that now may be given without type of constitutional amendment. Most ad- drawn by the Buckley Court, at least with re- limit by individuals, PACs, and even cor- vocates of such a reform support an amend- spect to expenditures. The choice of analogy porations and labor unions (who are forbid- ment authorizing Congress to reimpose ex- is crucial. In the formal realm of voting— den to give directly to candidates) to politi- penditure limits as under the pre-Buckley like other formal governmental settings, cal parties for purposes of grass-roots status quo, while leaving the authority to such as legislative committee hearings and ‘‘party-building’’ activities. Since the 1988 impose contribution limits intact. trials in court—speech may be constrained in campaign, use of soft money to finance de III. The political theory of campaign finance re- the interest of the governmental function in facto campaign advertisements has pro- form, or the supposed seven deadly sins of question. For example, at a town meeting, liferated. Advertisements celebrating one’s political money Robert’s Rules of Order govern to ensure party, its stand on issues, or the accomplish- What political theory supports arguments that orderly discussion may take place; at a ments of its leadership, after all, do serve to for campaign finance reform? Arguments for trial, witnesses testify not to all they know build party loyalty; but to the untutored greater limits on political contributions and but to what they are asked about, subject to eye, they may be difficult to distinguish expenditures typically suggest that any rules of evidence and the constraints of rel- from campaign ads. The same is true of soft claims for individual liberty to spend politi- evant rights of the parties. Likewise, one money ads attacking the other party. The cal money ought yield to an overriding inter- voter does not get ten votes merely because amount of soft money raised by the two est in a well-functioning democracy. But he feels passionately about a candidate or major parties combined has increased from what is meant by democracy here? The an- issue. By contrast, in the informal realm of polit- $89 million in 1992 to $107 million in 1994 to swer is surprisingly complex; several distinct 22 ical speech—the kind that goes on continu- roughly $250 million in 1996. Some reform arguments that democracy requires cam- ously between elections as well as during proposals, again including McCain-Feingold, paign finance limits are often lumped to- 23 them—conventional First Amendment prin- would limit soft money contributions. The gether. I will try to disaggregate them and ciples generally preclude a norm of equality Democratic National Committee has an- critically assess each one. The reformers of influence. Political speakers generally nounced its intention to limit annual soft might be said to have identified seven, sepa- money contributions from an individual, cor- have equal rights to be free of government rate, supposedly deadly sins of unregulated poration, or union to one hundred thousand censorship, but not to command the atten- political money. dollars, and President Clinton said that the tion of other listeners. Under virtually any Democratic Party would stop taking any A. Political inequality in voting theory of the justification for free speech, soft money if the Republicans would do the The first argument for campaign finance legislative restrictions on political speech same.24 limits is that they further individual rights may not be predicated on the ground that Would such new contribution limits be to political equality among voters in an elec- the political speaker will have too great a constitutional under the Buckley regime? tion. This argument starts from the prin- communicative impact, or his competitor Any limit on party expenditures of soft ciple of formal equality of suffrage embodied too little. Conventional First Amendment money would likely be struck down by the in the one person, one vote rule that norms of individualism, relativism, and current Court in light of its recent decision emerged from the reapportionment cases.31 antipaternalism preclude any such affirma- that political parties may make unlimited Each citizen is entitled to an equal formal tive equality of influence—not only as an independent expenditures on behalf of a par- opportunity, ex ante, to influence the out- end-state but even as an aspiration. Indeed, ticular candidate.25 But limits on contribu- come of an election. Moreover, each person’s such equality of participation as speakers in tions, under Buckley, are another matter. vote is inalienable; it may not be traded to political debate is foreign even under the The Court has previously upheld ceilings on others for their use, nor delegated to agents. more collectivist approach to political individual contributions to PACs on the Literal vote-buying is regarded as a para- speech outlined by Alexander Meiklejohn, ground that such restrictions prevent end digm instance of undemocratic conduct. We who famously noted that the First Amend- runs around limits on contributions to can- no longer countenance gifts of turkeys or ment ‘‘does not require that, on every occa- didates.26 Bundling and soft money contribu- bottles of liquor to voters on election day, sion, every citizen shall take part in public tion limits might be defended along similar nor the counting of dead souls. These quali- debate. . . . What is essential is not that ev- lines, although they also raise novel and ties of voting distinguish the electoral eryone shall speak, but that everything questionable burdens on the right of associa- sphere from the marketplace, where goods worth saying shall be said.’’ 35 tion.27 and services, unlike votes, are fungible, com- A few perceptive reform advocates have The second category of reform proposal mensurable, and tradeable. noticed this problem and sought to fill in the would find new means to use public funds or Reformers often proceed from the premise missing step—the analogy between political other public benefits to induce candidates to of equal suffrage in elections to the conclu- finance and voting that would make equality agree to ‘‘voluntary’’ spending limits—a sion that equalization of speaking power in norms relevant to both. For example, Ronald practice that Buckley held constitutional, at electoral campaigns is similarly justifiable Dworkin, who largely accepts arguments for least as to full public financing of presi- in furtherance of democracy. The most radi- unfettered political speech in other contexts, dential campaigns. Extending full public cal of such proposals would bar expenditures rests his argument for campaign finance lim- funding with attached spending limits from of private campaign funds altogether, and its on the proposition that the right to equal presidential to congressional campaigns limit candidates to spending public funds al- participation as voters must be understood would be the most obvious version of such located to each voter equally in the form of to entail a corollary right to equal participa- reform, but is probably politically infeasible. vouchers that could be used solely for elec- tion as advocates in the electoral campaigns Some proposals seek to offer smaller carrots, tion-related speech.32 The principle here that precede and determine the vote: including ones that would not directly incur would be one person, one vote, one dollar.33 ‘‘Citizens play two roles in a democracy. public expense. For example, the McCain- More commonly, however, the analogy to As voters they are, collectively, the final ref- Feingold Senate bill would extract from voting is meant to be suggestive, not literal; erees or judges of political contests. But broadcasters free and discounted broadcast few go so far as to say that campaign finance they also participate, as individuals, in the time. The bill would in turn give the time, as limits are constitutionally compelled, as contests they collectively judge: they are well as postage discounts, to those Senate equipopulous districts are. Nor do most ad- candidates, supporters, and political activ- candidates who complied with specified vocates of campaign finance reform argue for ists; they lobby and demonstrate for and spending limits.28 California’s Proposition literal equality in electoral expenditures; against government measures, and they con- 208 would give free space in the ballot state- the asserted right to equal political influ- sult and argue about them with their fellow ment and allow higher contributions to can- ence on the outcome of electoral campaigns citizens. . . . [W]hen wealth is unfairly dis- didates who adopted spending limits.29 is usually depicted as aspirational. But re- tributed and money dominates politics, . . . Such proposals too raise First Amendment formers argue that the goal of equal citizen though individual citizens may be equal in questions despite the public funding ruling participation in elections at least helps to their vote and their freedom to hear the can- in Buckley. For example, while a private justify campaign finance limits as constitu- didates they wish to hear, they are not equal funding ban might reasonably further the tionally permissible.34 On this view, cam- in their own ability to command the atten- goal of full public financing of an election— paign finance amounts to a kind of shadow tion of others for their own candidates, in- in order to level the playing field—it is hard- election, and unequal campaign outlays terests, and convictions.86 ly clear that private spending limits are amount to a kind of metaphysical gerry- In other words, formal equality of voting equally justified by the relatively trivial mander by which some votes count more power implies a corollary right to equality communications subsidies proposed in these than others in that shadow election. in the opportunity to speak out in politics— bills. And of course, the broadcasters might Such arguments from formal equality of at least in the particular subset of political object to the extraction of ‘‘free’’ air time as the franchise to campaign finance restric- speech that is made in connection with elec- an unconstitutional compulsion of speech.30 tions, however, often fail to articulate a cru- toral campaigns.87 The third, most dramatic type of proposal cial intermediate step: that political finance But what are the boundaries of an elec- would overrule the expenditure holding in sufficiently resembles voting as to be toral campaign? Dworkin does not suggest Buckley and permit spending limits outright. regulable by the equality norms that govern that equalization of speaking power is a sat- Since the current Court seems quite uninter- voting. There is an alternative possibility: isfactory justification for limitations of po- ested in overruling Buckley, the most plau- that political finance more resembles politi- litical speech in other contexts. Yet his own sible vehicle for such a reform would be some cal speech than voting. That is the analogy examples belie any easy distinction between October 6, 1997 CONGRESSIONAL RECORD — SENATE S10355 the formal realm of electoral discourse, ideas it backed than was warranted. Funds no issue of personal inurement; the money is which he would regulate, and the informal raised for expressly political purposes and not going into candidates’ pockets but into realm of ongoing political discourse, which segregated in a separate political fund or television advertisements, the earnings of he presumably would not. For example, he corporate PAC, by contrast, would represent paid political consultants, and various other lists ‘‘lobbying’’ and ‘‘demonstrations’’ as a more accurate proxy for the popularity of campaign expenses that increase the chances examples of relevant forms of citizen partici- the ideas they supported. of election or reelection. This is true a pation. But lobbying and demonstrations Campaign finance reformers would extend fortiori for expenditures made independent could not, without great alteration in ordi- this antidistortion principle beyond the par- of the candidate’s campaign. nary First Amendment understandings, be ticular problems of the corporate form at The claimed harm here is not, as the term regulated on the ground that their leaders issue in Austin. They suggest that the ability ‘‘corruption’’ misleadingly suggests, the im- had amassed too many resources. Further, to amass political funds in general does not proper treatment of public office as an object elections are seamlessly connected to the in- correlate closely with voter preferences. for market exchange, but a deviation from formal political debates that continue in the Rather, the unequal distribution of cam- appropriate norms of democratic representa- periods between them. The more electoral paign resources leads to misrepresentation of tion. Officeholders who are disproportion- campaign speech is continuous with such or- constituents’ actual preferences and inten- ately beholden to a minority of powerful dinary informal political discourse, the less sities of preference. The wealthy (or those contributors, advocates of finance limits say, campaign finance resembles voting, and the who are good at fund-raising) can spend more will shirk their responsibilities to their more it partakes of a realm of inevitable in- money on a candidate they care relatively other constituents, altering decisions they equality.88 little about than can the poor (or those who otherwise would have made in order to repay The reformers might answer that the are inept at fundraising) on a candidate to past contributions and guarantee them in equality principle could be confined to whom they are passionately committed. To the future. Thus, properly understood, the speech made expressly by candidates or their the extent such ‘‘distorted’’ campaign speech ‘‘corruption’’ argument is really a variant on committees during formal electoral cam- influences voting, candidates will be elected the problem of political equality; unequal paigns, defined by reference to some particu- and platforms endorsed that differ from what outlays of political money create inequality lar period in relation to elections. But now voters would otherwise choose. in political representation. practical difficulties arise even as analytical This argument has both practical and con- Again, the difficulties with the argument difficulties subside. Such an approach would ceptual difficulties. First, a candidate’s abil- are both practical and conceptual. First, po- litical money is not necessarily very effec- leave unregulated advocacy that redounds to ity to attract funds is at least to some ex- tive in securing political results. The behav- the benefit of candidates by persons, parties, tent an indicator of popularity.44 Money may ior of contributors provides some anecdotal and organizations independent of them. To flow directly in response to the candidate’s support: Many corporate PACs, to borrow the extent such independent speech operates ideas or indirectly in response to the can- Judge Posner’s phrase, are ‘‘political her- as a substitute for express candidate didate’s popularity with others as reflected maphrodites’’;50 they give large sums to both speech—even if an imperfect one—the prin- in poll numbers and the like.45 To the extent major parties. This hedging strategy sug- ciple of equality of voter participation ad- that fundraising accurately reflects popu- gests a weak level of confidence in their abil- vanced by the limits on formal campaign ex- larity, the reformers exaggerate the degree ity to obtain results from any particular penditures will be undermined. of distortion. Second, there are limits to how beneficiary of their contributions. An alternate response by reformers might far private funding can permit a candidate to President Clinton captured the same point be to question conventional First Amend- deviate from positions acceptable to the at a press conference where he said that he ment principles generally, and to assert po- mass of noncontributing voters; the free gives major donors an opportunity for a ‘‘a litical equality as a justification for regulat- press will to some extent correct informa- respectful hearing’’ but not a ‘‘guaranteed ing a wide range of informal political dis- tion provided in the candidate’s advertise- result.’’ 51 While this comment might elicit course. Such an approach raises large ques- ments, and polls will discipline the candidate skepticism, the proposition that campaign tions that go beyond the topic here. The key to respond to preferences other than those of donations are a relatively unreliable invest- point for now is simply that, short of major his wealthiest backers.46 ment has empirical support. Various studies revision of general First Amendment under- A third and deeper problem is that the con- of congressional behavior suggests that con- standings, campaign finance reform may not cept of ‘‘distortion’’ assumes a baseline of tributions do not strongly affect congres- be predicated on equality of citizen partici- ‘‘undistorted’’ voter views and preferences. sional voting patterns, which are for the pation in elections unless electoral speech But whether any such thing exists exoge- most part dominated by considerations of can be conceptually severed from informal nously to political campaigns is unclear. party and ideology.52 Of course, such evi- political discourse. But formal campaign Popular attitudes about public policy do not dence may be countered 53 by noting that speech has so many informal political sub- exist in nature, but are formed largely in re- contributors may be repaid in many ways be- stitutes that this proposition is difficult to sponse to cues from political candidates and sides formal floor votes—for example, by rel- sustain. party leaders. Moreover, the institutional atively invisible actions in agenda-setting press—itself owned by large corporations B. Distortion and drafting in committees. Furthermore, commanding disproportionate power and re- A second argument against unregulated the few votes that are dominated by con- sources—plays a large role in shaping public private campaign finance is related to the tributions may occur when there is the opinion. Any attempt to equalize campaign first, but focuses less on individual rights greatest divergence between contributors’ spending would still leave untouched any than on collective consequences. This argu- and other constituents’ interests. Still, the ‘‘distortion’’ from the role of the press.47 ment says that the unequal deployment of case that contributions divert representative resources in electoral campaigns causes the C. Corruption, or political inequality in responsiveness is at best empirically uncer- wrong people to get elected, distorting the representation tain, and not a confident basis for limiting true preferences of voters.89 Good candidates A third argument for limiting political political speech. who cannot surmount the high financial bar- contributions and expenditures is often made A second and deeper problem with the riers to entry never get to run, and the under the heading of fighting political ‘‘cor- ‘‘corruption’’ argument, once it is properly choice among those who do is influenced by ruption.’’ This is a misnomer. Properly un- recast as an argument about democratic rep- spending power that is not closely correlated derstood, this argument is a variation on the resentation, is conceptual. The argument to the popularity of the candidate’s ideas. On political inequality argument.48 But unlike supposes that official action should respond this view, unequal funding leads both can- the first argument above, it focuses not on to the interests of all constituents, or to a didates and voters to misidentify the elec- the unequal influence of voters on elections, notion of the public good apart from the ag- torate’s actual preferences and intensities of but on the elected legislators’ unequal re- gregation of interests, but, in any event, not preference. sponsiveness to different citizens once in of- to the interests of a few by virtue of their The Supreme Court has accepted such an fice. The charge against unregulated politi- campaign outlays. But legislators respond argument as sufficient to justify some ad- cal money here is that it makes citizens un- disproportionately to the interests of some ministrative burdens on the deployment of equal not in their ability to elect the can- constituents all the time, depending, for ex- political money. In Austin v. Michigan Cham- didates of their choice, but in their ability to ample, on the degree of their organization, ber of Commerce,40 the Court upheld a state affect legislative outcomes.49 the intensity of their interest in particular requirement that corporations (except non- The Court in Buckley held contribution issues, and their capacity to mobilize votes profit corporations organized solely for ideo- limits permissible to prevent ‘‘corruption’’ to punish the legislator who does not act in logical purposes 41) make political expendi- or the appearance of corruption of legislators their interests. On one view of democratic tures solely from separate segregated politi- by contributors of significant sums. Popular representation, therefore, there is nothing cal funds, not from their general treasuries.42 rhetoric about political money often em- wrong with private interest groups seeking The Court reasoned that the government’s ploys similar metaphors: polls show substan- to advance their own ends through electoral interest in preventing the ‘‘distortion’’ of tial majorities who say that Congress is mobilization and lobbying, and for represent- the apparent strength.43 A corporation that ‘‘owned’’ by special interests or ‘‘for sale’’ to atives to respond to these targeted efforts to spent, for political purposes, money raised the highest bidder. It is important to note, win election and reelection.54 It is at least for investment purposes, would make it ap- however, that the ‘‘corruption’’ charged here open to question why attempts to achieve pear that there was more enthusiasm for the is not of the Tammany Hall variety. There is the same ends through amassing campaign S10356 CONGRESSIONAL RECORD — SENATE October 6, 1997 money are more suspect, at least in the ab- cially risky to attempt by amendment to would have to do if contributions could be sence of personal inurement.55 overrule a constitutional decision that is unlimited in amount. Concern about time, But the question whether disproportionate part of the general fabric of First Amend- therefore, may involve a tradeoff with con- responsiveness to contributors is ultimately ment law, as the anomaly created by the new cern about disproportionate influence. consistent with democratic representation amendment might well have unanticipated F. Quality of debate need not be answered to see the problem effects on other understandings of free with the reformers’ argument. That problem speech.60 A sixth critique of the unregulated outlay is that selecting one vision of good govern- D. Carpetbagging of political money arises on the demand side ment is not generally an acceptable jus- A fourth strand of the reform argument is rather than the supply side. The problem, in tification for limiting speech, as campaign fi- a variant of the third, with special reference a word, is television. Where does all this po- nance limits do. Rather, what constitutes to geography. Except in presidential elec- litical money go? The biggest expense is the proper representation is itself the most es- tions, we vote in state or local constitu- cost of purchasing advertising time on tele- sentially contested question protected by encies. The fundamental unit of representa- vision (though increasingly, political con- freedom of speech. The ban on seditious tion is geographic. But money travels freely sultants take a hefty share). The critics re- libel, the protection of subversion advocacy, across district and state lines. Thus, politi- gard repetitious, sloganeering spot adver- and the general hostility to political view- cal money facilitates metaphysical carpet- tisements as inconsistent with the enlight- point discrimination illustrate that free bagging. Contributions from or expenditures ened rational deliberation appropriate to an speech, under current conceptions, protects advanced democracy. It is not clear what debates about what constitutes proper self- by nonconstituent individuals and groups di- vert a legislator’s representation away from golden age of high-minded debate they hark government from ultimate settlement by back to; the antecedent of the spot ad is, legislatures. To be sure, legislatures are the constituents in his district and toward after all, the bumper sticker. Nonetheless, often permitted or compelled to select nonconstituents, whether they are foreign these critics clearly aspire to something among democratic theories, or to privilege corporations or national lobbies. Various re- wiser and better. Ronald Dworkin’s lament one version of representation over its com- form proposals seek to limit carpetbagging is representative: ‘‘The national political petitors in setting up the formal institutions by localizing funding: McCain-Feingold, for ‘debate’ is now directed by advertising ex- of government. ‘‘One person, one vote,’’ for example, would require candidates not only example, privileges egalitarian conceptions to limit expenditures but also to raise a min- ecutives and political consultants and con- over various alternatives—such as the imum percentage of contributions from resi- ducted mainly through thirty-second, ‘sound inegalitarian representation provided by the dents of their home state in order to receive bite’ television and radio commercials that 64 United States Senate. But the right to public benefits, such as broadcast and post- are negative, witless, and condescending.’’ speak—and, it might be added, to petition— age discounts.61 Political expenditure limits, some suggest, includes the right to challenge any provi- Again, this seeks to decide by legislation a would cut off the supply of oxygen to this sional settlement a legislature might make question of what constitutes proper rep- spectacle and force candidates into less cost- of the question of what constitutes appro- resentation. To some, it might be legitimate ly but more informative venues such as writ- priate democratic representation. for a legislator to consider the views of na- ten materials and town hall debates. tional lobbies. For example, those lobbies In other words, the ‘‘anticorruption’’ argu- To the extent this rationale for campaign might share strong overlapping interests ment for campaign finance reform claims the finance reform is made explicit, it would ap- superiority of a particular conception of de- with her own constituents. Or the legislator might conceive her obligation as running to pear flatly precluded by conventional First mocracy as a ground for limited speech. As a Amendment antipaternalism principles. Per- result, it runs squarely up against the pre- the nation as well as a particular district. For the reasons just given, a privileged the- mitting limitations on speech because it is sumptive ban on political viewpoint dis- too vulgar or lowbrow would wipe out a good crimination.56 Campaign finance reformers ory of what constitutes proper political rep- resentation cannot serve as an adequate many pages of U.S. Reports. Surely a judg- necessarily reject pluralist assumptions ment that speech is too crass or appeals to about the operation of democracy and would ground for limitation of speech, for free speech is itself the central vehicle for debat- base instincts is a far cry from Robert’s restrict speech, in the form of political Rules of Order or other principles of ordered money to foster either of two alternative po- ing that very question. liberty consistent with government neutral- litical theories. First, they might be thought E. Diversion of legislative and executive ener- ity toward the content of speech. to favor a Burkean or civic republican view, gies in which responsiveness to raw constituent A fifth critique of the current role of polit- In any event, the indirect means of limit- preferences of any kind undermines the rep- ical money, made often by politicians them- ing expenditures may not do much to solve resentative’s obligation to deliberate with selves and sometimes elaborated as an argu- this problem. Why not directly ban political some detachment about the public good. Al- ment for campaign reform, is that fundrais- advertising on television outright? Then ev- ternatively, they might be thought to favor ing takes too much of politicians’ time.62 eryone could campaign on smaller budgets. a populist view in which the representative Many think that incumbents spend so much British politicians, for example, are barred ought be as close as possible to a transparent time fundraising that governance has be- from taking out paid spots on the airwaves. vehicle for plebiscitary democracy, for the come a part-time job. But Britain has strong parties and small dis- transmission of polling data into policy. Ei- This argument supposes a sharp divide be- tricts; we have neither. Banning television ther way, they conceive democracy as some- tween the public activity of governing and advertising in our political culture would thing other than the aggregation of self-re- the private role of fundraising. But this dis- impair politicians’, especially challengers’, garding interests, each of which is free to tinction is hardly clear. The ‘‘marketing’’ in- ability to reach large masses of the elector- seek as much representation as possible.57 volved in fundraising consists principally of ate. Banning television advertisements But surely the endorsement of civic repub- conveying and testing response to informa- might make us more republican, but it is licanism or populism—or any other vision of tion about past and future policy positions. hardly clear that it would make us more democracy—may not normally serve as a How this differs from the standard material democratic. Moreover, the special First valid justification for limiting speech. Legis- of all political campaigning is unclear, and it Amendment dispensation the Court has lators may enforce an official conception of may well be continuous with governing. If shown for broadcast regulation is increas- proper self-government through a variety of the need for fundraising were eliminated, ingly tenuous, and has not been extended to means, but not by prohibiting nonconform- legislators would still have to nurture their other, increasingly competitive media. To be ing expression. constituencies in various ways between elec- fully effective, a ban on television advertis- Campaign finance reformers might object tions. Some might think that nurturing ing might have to extend to cable and the that, after all, campaign finance limits in no grass roots is a more wholesome activity internet, where the constitutional plausibil- way stop would-be pluralists from advocating than nurturing fat cast; but in that case, the ity of regulation is even more dubious. pluralism, but only from practicing it. The diversion of energies problem simply col- G. Lack of competitiveness utterances being silenced are performative, lapses back into the problem of inequality in not argumentative. Such a response, how- political representation discussed earlier.63 Finally, a last argument would locate the ever, is in considerable tension with a long To the extent the candidate makes secret key problem in current campaign finance tradition of First Amendment protection for promises to PACs or wealthy individuals practices in the advantage it confers on in- symbolic and associative conduct.58 A fur- that would be unpopular with the mass of cumbents over challengers. Here the claim is ther objection might be that this argument the electorate, there are strong practical that a healthy democracy depends on robust extends only to legislative campaign finance limits to such strategies, such as the danger political competition and that campaign fi- reform, and not to a constitutional amend- of press exposure and constituent retalia- nance limits are needed to ‘‘level the playing ment such as Senator Bradley and others tion. field.’’ The reformers contend that unfet- have proposed.59 That is surely correct, as an However serious the problem of incursion tered political money confers an anti- amendment could obviously revise the exist- on the candidate’s time might be, one thing competitive advantage upon incumbents. ing First Amendment conceptions on which is clear: the split regime of Buckley exacer- This advantage arises because incumbents the argument rests. But, apart from general bates it. Contribution limits mean that a participate in current policymaking that af- reasons to tread cautiously in amending the candidate has to spend more time chasing a fects contributors’ interests. Thus, they Constitution, it might well be thought espe- larger number of contributors than she enjoy considerable fundraising leverage October 6, 1997 CONGRESSIONAL RECORD — SENATE S10357 while in office, and indeed, incumbents re- tures and contributions are limited, the re- drove President Clinton’s poll numbers into ceived on average four times as much in con- formers’ justifications attenuate as the law a temporary freefall.74 Political money tributions than challengers in the 1996 con- reaches the informal political speech that would itself be an election issue; a candidate gressional election.65 This incumbent advan- serves as a partial substitute for formal cam- would have to decide which was worth more tage, reformers argue, limits turnover and paign speech. Without altering conventional to her—the money, or the bragging rights to makes challengers less effective at monitor- free speech norms about informal political say that she did not take it. ing and checking incumbents’ responsive- discourse, there are outer limits on the abil- Of course, the harms of political money ness. It is no accident that, for such reasons, ity of any reform to limit these substitution cannot be expected to be entirely self-limit- some prominent supporters of campaign fi- effects. ing. The deregulation outlined here is only nance reform, such as Republican Senator What scenario are we left with if both po- partial; compelled disclosure avoids a regime Fred Thompson of Tennessee, a cosponsor of litical expenditure and contribution limits of absolute laissez-faire. Even this partial the McCain-Feingold bill, are also prominent are deemed unconstitutional? Will political deregulation might have unintended con- supporters of term limits. money proliferate indefinitely, along with sequences. Some of the reformers’ goals are But there is some practical reason to think its accompanying harms? Not necessarily, widely shared and might require market this argument gets the competitiveness provided that the identity of contributors is intervention. For example, achieving ade- point backwards. Campaign finance limits required to be vigorously and frequently dis- quate competitiveness in elections might re- themselves may help to entrench incumbents closed. Arguments against compelled disclo- quire some public subsidies for challengers in office.66 Incumbency confers enormous sure of identity, strong in contexts where who can demonstrate certain threshold lev- nonfinancial advantages: name recognition, disclosure risks retaliation,72 are weaker in els of support—floors but not ceilings for po- opportunity to deliver benefits, publicity the context of attempts to influence can- litical expenditures.75 But the possibilities from the free press, and the franking privi- didate elections, as the Buckley decision it- outlined here at least suggest some hesi- lege. To offset these advantages, challengers self recognized in upholding the disclosure tation before deciding which way the split must amass substantial funds. Challengers’ requirements of the 1974 FECA amend- regime of Buckley ought to be resolved. lack of prominence may make it more dif- ments.73 Weekly disclosure in the news- FOOTNOTES ficult for them to raise funds from large papers, or better, daily reporting on the 1 See generally David E. Rosenbaum, In Political numbers of small donations. They may internet, would be a far cry from earlier Money Game, the Year of Big Loopholes, N.Y. Times, therefore depend more than incumbents on failed sunshine laws. If the lists of names Dec. 26, 1996, at Al (discussing amounts of money on concentrated aid from parties, ideologically and figures seemed too boring to capture political campaigns). sympathetic PACs, or even wealthy individ- general attention, enterprising journalists 2 See Bipartisan Campaign Reform Act of 1997, S. 25, 105th Cong. (reintroducing proposed measures to ual private backers.67 Of course, once again, could ‘‘follow the money’’ and report on any reform campaign financing); Senate Campaign Fi- contribution limits under the split regime of suspect connections between contributions nance Reform Act of 1996, S. 1219, 104th Cong. (pro- Buckley exacerbate the problem, as incum- and policymaking. posing measures for campaign finance reform). bents are more likely to be able to raise a Under this regime—in which contributions 3 See Excerpts From the First News Conference of Clin- large number of capped contributions than and expenditures were unlimited, but the ton’s Second Term, N.Y. Times, Jan. 29, 1997, at B6 challengers can. identities of contributors were made mean- [hereinafter Press Conference Excerpts]. The effect of regulation or nonregulation ingfully public—there would be at least three 4 424 U.S. 1 (1976). 5 on the competitiveness of elections is a dif- reasons for modest optimism that the harms See id. at 143; Bill Bradley, Congress Won’t Act, 68 Will You?, N.Y. Times, Nov. 11, 1996, at A15 [herein- ficult empirical question. But any pre- the reformers fear from unlimited political after Bradley, Congress Won’t Act]; Bill Bradley, Per- diction that campaign regulation will in- money would in fact be limited. spectives on Campaign Finance; Money in Politics, Ants crease electoral competitiveness and turn- A. Increased supply in the Kitchen, L.A. Times, Jan. 31, 1997, at B9. over is, by virtue of its very empirical uncer- 6 See Leslie Wayne, After the Election: Campaign Fi- If contributions, like expenditures, could tainty, at least a questionable ground for nance; Scholars Ask Court to Backtrack, Shutting not be limited in amount, the total level of limiting political speech. Floodgates on Political Spending, N.Y. Times, Nov. 10, contributions might be expected to increase 1996, at § 1, 30 (describing scholars’ letter advocating CONCLUSION as there might be a net shift from expendi- demise of Buckey v. Valso). The discussion to this point has sought to tures to contributions. The supply of politi- 7 See David Stout, State Attorneys General Urge Lim- disentangle the separate elements of the cal money to candidates would be increased. its on Campaign Spending, N.Y. Times, Jan. 28, 1997, campaign finance reformers’ arguments This might be expected to lower the ‘‘price’’ at A14 (stating that campaign spending threatens in- about the evils of unregulated political to the candidate of a political contribution. tegrity of elections). 8 California’s 1996 ballot measure is under court money and to suggest why the proposed cure With more quids on offer, a politician has challenge. See California Political Reform Act of for the seven deadly sins might be worse less reason to commit to any particular quo. 1996, Proposition 208, Cal. Gov’t Code § 85600 (West than the disease, even on the reformers’ own In this politicians’ buyers’ market, concerns Supp. 1997). Many provisions of Oregon’s 1995 ballot assumptions.69 I have sought also to show about unequal political influence that arise measure, Measure 9, including contributions limits, why limits on political money are in deeper under the misleading ‘‘corruption’’ heading were invalidated under the free expression provision tension with current First Amendment con- would arguably attenuate, and contributors on the Oregon Constitution in Vannatta v. Keisling, ceptions than is often supposed. Buckley’s might curtail their outlays in response to No. SC 542506, 1997 Ore. LEXIS 5, at *42*53 (Or. Feb. 6, 1997). declaration of the impermissibility of redis- their declining marginal returns. 9 Some states have also experimented with public tribution of speaking power has been widely B. Decreased symbolic costs from subterfuge funding of state elections. See generally Kenneth R. criticized; 70 the effort here has been to show If contributions could be made in unlim- Mayer & John M. Wood, The Impact of Public Financ- alternative reasons why the justifications ing on Electoral Competitiveness: Evidence from Wiscon- ited amounts, would-be contributors would for campaign finance reform might trigger sin, 1964–1990, 20 Legis. Stud. Q 69 (1995) (finding that not have to resort to the devices of independ- First Amendment skepticism. These reasons Wisconsin’s public subsidies did not increase elec- ent advertisements or party contributions as include the inseverability of campaign toral competitiveness). substitutes. Public perception of a campaign 10 See Buckley, 424 U.S. at 145–11 (sustaining indi- speech from ordinary political discourse and finance system gone out of control rests at vidual contribution limits but invalidating limits on the viewpoint basis inherent in campaign fi- least in part on the view that politicians, campaign expenditures). nance reform’s selection of one conception of 11 parties, and donors skirt existing laws by ex- See FEC v. National Conservative Political Ac- democratic representation over its competi- tion Comm., 470 U.S. 480, 501 (1985) (invalidating lim- ploiting evasive ‘‘loopholes.’’ To the extent tors as a basis for curtailing speech. its on independent expenditures by PACs); Colorado that all functional contributions are made as If these alternative reasons have any force, Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. explicit contributions, the symbolic costs of then it is easier to see why campaign finance 2309, 2310–20 (1996) (invalidating limits on independ- the current split regime of Buckley would de- ent expenditures by political parties). reform is especially prone to following the crease. 12 See Federal Election Campaign Act of 1971, 2 law of unintended consequences: for exam- U.S.C. §§ 431–455 (1994) (defining campaign contribu- ple, limits on individual contributions C. Voter retaliation tion limits). helped to increase the number of PACs; lim- With contributions fully disclosed and 13 For explication of campaign expenditure limita- its on hard money contributions stimulated their effects on political outcomes subject to tions on political parties, see Colorado Republican, the proliferation of soft money contribu- monitoring by the free press, voters would be 116 S. Ct. at 2313–14. tions; and limits on contributions generally empowered to penalize candidates whose re- 14 See Buckley, 424 U.S. at 26 (discussing potential corruption that large contributions may bring). spurred the growth of independent expendi- sponsiveness to large contributors they 15 See id. at 46–48 (stating that independent expend- 71 tures. The reason is not just that the de- deemed excessive. Voters could do retail itures are not as likely to lead to abuse as large con- mand for political money is peculiarly in- what campaign finance reform seeks to do tributions). elastic and thus, like the demand for other wholesale: encourage diversification in the 16 See id. at 49. addictive substances, likely to create black sources of campaign funding. Political chal- 17 Colorado Republican, 116 S. Ct. at 2327. markets in the shadow of regulation. The lengers could capitalize on connections be- 18 See Daniel D. Polsby, Buckley v. Valeo; The Spe- reason is that grim efforts to close down tween political money and incumbents’ offi- cial Nature of Political Speech, 1976 Sur. Ct. Rev. 1, 26– 31 (arguing that ‘‘the Court made a mistake in al- every ‘‘loophole’’ in campaign finance laws cial actions. A striking demonstration of lowing expenditure ceilings to ride in on the coat- will inevitably trench unacceptably far upon this point arose in the 1996 presidential elec- tails of public financing’’). current conceptions of freedom of political tion, when the Dole campaign’s attack on al- 19 See, e.g., Mark Tushnet, Corporations and Free speech. Even if formal campaign expendi- leged Democratic fund-raising scandals Speech, in The Politics of Law 253, 256–57 (David S10358 CONGRESSIONAL RECORD — SENATE October 6, 1997 Kairys ed., 1982) (discussing free-speech rights avail- the aspects of politics, such as voting, that are ‘‘le- sire to be reelected, are both permissible and nec- able to powerful and, most specifically, corpora- gally created and structured’’ and ‘‘specially de- essary in modern elections). tions). signed to fairly achieve certain results,’’ in which 55 See Strauss, supra note 34, at 1371–75 (discussing 20 See Bipartisan Campaign Reform Act of 1997, S. speech may be limited, and the realm of informal relationship between campaign finance and other 25, 105th Cong. § 231 (providing for treatment of bun- political debate and dialogue that ‘‘occurs as much techniques of legislative influence). dled contributions). between elections as during them,’’ in which speech 56 Indeed, the mere fact that campaign contribu- 21 For a critique of bundling, see Fred Wertheimer ought to be ‘‘unbounded.’’ See id. Like Dworkin, tions may be consistent with some notions of demo- & Susan Weiss Manes, Campaign Finance Reform: A Baker allocates political finance to the formal rath- cratic theory clearly demonstrates the content basis Key to Restoring the Health of Our Democracy, 94 er than the informal realm, and hence regulable by of campaign finance laws. See Cain, supra note 44, at Colum. L. Rev. 1126, 1140–42, 1155–56 (1994). Note that norms of equality. See id. But like Dworkin, Baker 120–40 (examining private contributions under proce- does not explain how campaign speech may be sev- the ultimate antibundling measure would be a ban dural view of democracy). on PAC contributions to political campaigns. How- ered for informal political speech. 57 On the distinctions between these pluralist, pop- ever, even ardent reformers regard such a measure 38 See, e.g., Sanford Levinson, Regulating Campaign ulist, and Burkean (or civic republican or trustee) as a probable infringement of the right of associa- Activity: The New Road to Contradiction?, Mich L. tion. See id. at 1155. Rev. 939, 945–48 (1985) (book review) (noting financial models of political influence in the campaign fi- 22 See Rosenbaum, supra note 1, at Al (reporting inequalities in political influence, including dis- nance context, see BeVier, supra note 38, at 1269–76 statistics on campaign expenditures). proportionate political influence of media conglom- (1994); Cain, supra note 44, at 112–22; Stephen E. Gott- 23 See S. 25, §§ 211–213 (limiting soft money con- erates); id, at 948–49 (noting nonfinancial inequal- lieb, The Dilemma of Election Campaign Finance Re- tributions). ities in campaign resources, including leisure time form, 18 Hofstra L. Rev. 215, 232–37 (1989); Daniel Hays 24 See James Bennet, Clinton Announces New Limits and celebrity status); see also Lillian R. BeVier, Lowenstein, Political Bribery and the Intermediate on Fund-Raising by Democrats, N.Y. Times, Jan. 22, Campaign Finance Reform: Specious Argument, Intrac- Theory of Politics, 32 UCLA L. Rev. 784, 805–42, (1985). 1997, at AI. table Dilemmas, 94 Colum. L. Rev. 1258, 1267 (1994) 58 See generally United States v. O’Brien, 391 U.S. 25 See Colorado Republican Campaign Comm. v. (cataloguing nonfinancial inequalities in campaign- 367 (1968) (addressing draft-card burning); NAACP v. FEC, 116 S. Ct. 2309, 2317 (1996) (invalidating limits ing). Button, 371 U.S. 415 (1963) (addressing constitu- on independent expenditures by political parties). 39 See generally Daniel Hays Lowenstein, On Cam- tionality of Virginia statute limiting litigation 26 See California Med. Ass’n v. FEC. 453 U.S. 182, paign Finance Reform: The Root of All Evil is Deeply rights). 197–98 (1981) (upholding $5000 limit on contributions Rooted, 18 Hofstra L. Rev. 301 (1989) (proposing re- 59 See Bradley, Congress Won’t Act, supra note 5, at to multi-candidate committees because without form package for legislative general elections). A15 (noting that reform will depend on concerned such limits, contribution limits upheld in Buckley 40 494 U.S. 652 (1990). citizens). ‘‘could be easily evaded’’). 41 See FEC v. Massachusetts Citizens for Life, Inc., 60 See generally Kathleen M. Sullivan, Constitutional 27 See, e.g., NAACP v. Alabama ex rel. Patterson, 457 479 U.S. 238, 256–65 (1986) (invalidating funding seg- Constancy: Why Congress Should Cure Itself of Amend- U.S. 449, 460–61 (1958) (holding that freedom of asso- regation requirement for ideological corporations ment Fever, 17 Cardozo L. Rev. 691, 691–704 (1996) (dis- ciation is indispensable aspect of liberty protected formed for political purposes). cussing reasons why Congress should hesitate before 42 by Fourteenth Amendment), rev’d, 360 U.S. 240 (1959). Similar federal requirements govern corpora- proposing constitutional amendments). 28 See S. 25, §§ 101–104 (setting forth benefits for po- tions and labor unions. Since 1907, corporations have 61 See Bipartisan Campaign Reform Act of 1997, S. litical candidates who limit their campaign expendi- been barred from spending corporate treasury funds 25, 105th Cong. § 101 (1997). tures). in federal election campaigns, and, since 1947, so 62 See Vincent Blasi, Free Speech and the Widening 29 See CAI. Gov’t Code 85600 (West Supp. 1997). Sec- have labor unions. See 2 U.S.C. § 441b (1994) (prohibit- tion 85600 was enacted by the California Political ing use of general funds). Thus, separate political Gye of Fund-Raising: Why Campaign Spending Limits Reform Act of 1996, Proposition 208. funds are their only vehicle for contribution. See id. May Not Violate the First Amendment After All, 94 30 Compelled carriage of unwanted speech normally (allowing use of segregated funds). Since enactment Colum. L. Rev. 1281, 1281 (1994) (stating that can- triggers strict First Amendment scrutiny. See Pa- of the 1974 FECA amendments, even government didates spend too much time fund-raising). cific Gas & Elec. Co. v. Public Utils. Comm’n, 475 contractors have been permitted to form segregated 63 See Strauss, supra note 48, at 156–57 (concluding U.S. 1 20–21 (1986) (invalidating forced inclusion of political funds. See id. § 441c(b) (permitting govern- that time-diversion argument has little force inde- environmentalist statements in public utility’s bill- ment contractors to establish and use separate pendent of inequality argument). ing envelope). The Court does not apply strict scru- funds). 64 Dworkin, supra note 36, at 19. tiny where the government’s reason for the compul- 43 See Austin, 494 U.S. at 657–60 (examining reasons 65 See Rosenbaum, supra note 1, at Al (comparing sion bears no relation to the content of the com- behind state regulation of corporate expenditures). historical campaign fund amounts with those of pelled speech. See Turner Broadcasting Sys., Inc. v. 44 See, e.g., Janet M. Grenzke, PACs and the Con- 1996). FCC, 512 U.S. 622, 641–42 (1994) (reviewing content- gressional Supermarket: The Currency Is Complex, 33 66 See Lillian R. BeVire, Money and Politics: A Per- neutral law requiring cable operators to carry un- Am. J. Pol. Sci. 1, 19–20 (1989) (concluding that in spective on the First Amendment and Campaign Finance wanted broadcast stations under intermediate scru- most cases, PACs do not substantially affect can- Reform. 73 Cal. L. Rev. 1045, 1069–78 (1985) (arguing tiny). Broadcasters, however, have been held subject didates’ actions in office, absent popular approval); that, given legislators’ inherent interest in main- to compelled carriage requirements that would be see also Bruce E. Cain, Moralism and Realism in Cam- taining incumbency advantages, courts should be unconstitutional if applied to non-broadcast speak- paign Finance Reform, 1995 U. Chi. Legal F. 111, 127 suspicious of campaign finance reform adopted pur- ers. Compare Red Lion Broadcasting Co. v. FCC, 395 (noting that money signals intensity of support in portedly to equalize speech opportunities). U.S. 367, 400–01 (1969) (upholding mandatory reply ob- ways voting cannot). 67 See generally Gottlieb, supra note 57, at 232–37 45 ligations applicable to broadcasters), with Miami See Bradley A. Smith, Faulty Assumptions and (discussing inequality in election campaigns be- Herald Pub. Co. v. Tornillo, 418 U.S. 241, 256 (1974) Undemocratic Consequences of Campaign Finance Re- tween incumbents and challengers). (invalidating mandatory reply obligations applica- form, 105 Yale L.J. 1049 1065 (1996) (stating that ‘‘[t]he 68 See Grenzke, supra note 44, at 19–20 (concluding ble to newspapers). With the obsolescence of the ability to raise money is evidence of political prow- that contributions generally reflect preexisting sup- spectrum scarcity argument on which Red Lion was ess and popularity that would normally translate port for candidates): Gary C. Jacobson, Campaign Fi- premised, it is unclear whether broadcasters would into votes, regardless of spending’’). nance and Democratic Control: Comments on Gottlieb have a compelled-speech objection to the extraction 46 See Grenzke, supra note 44, at 20 (stating that and Lowenstein’s Papers, 18 Hofstra L. Rev. 369, 371– of free or discounted air time for candidates as a PACs do not ‘‘distort’’ politics because politicians 74 (1989) (discussing arguments that campaign fi- condition of their receipt of public licenses. primarily act based on popularity of legislation). nance regulation hurts competitiveness): Gary C. 31 See Reynolds v. Sims, 377 U.S. 533, 561–68 (1964) 47 See Sanford Levinson, Frameworks of Analysis Jacobson, The Effects of Campaign Spending in House (holding that state’s legislative apportionment and Proposals for Reform: A Symposium on Cam- Elections: New Evidence of Old Arguments, 34 Am. J. scheme violates Equal Protection Clause); Baker v. paign Finance: Electoral Regulation: Some Com- Pol. Sci. 334, 356–58 (1990) [hereinafter Jacobson, Carr, 369 U.S. 186, 208–37 (1962) (concluding that such ments, 18 Hofstra, L. Rev. 411, 412–13 (1989) (criticiz- House Elections] (concluding that, in determining claims of equal protection violations are ing campaign finance reformers’ lack of attention to jusiticiable). role of press). electoral outcomes, amounts raised by challengers are far more important than amounts raised by in- 32 See Bruce Ackerman, Crediting the Voters: A New 48 See David A. Strauss, What Is the Goal of Cam- Beginning for Campaign Finance, Am. Prospect, paign Finance Reform?, 1995 U. Chi. Legal F. 141, 144 cumbents); Mayer & Wood, supra note 9, at 70 (con- Spring 1993, at 71, 72 (stating that voucher is an al- (noting that ‘‘once inequality is removed,’’ corrup- cluding that public financing had ‘‘no effect at all’’ ternative to campaign finance reform). tion argument has little independent merit). on competitiveness of elections in Wisconsin). 69 33 See generally Edward B. Foley, Equal-Dollar-Per- 49 Cf. Pamela S. Karlan, The Rights To Vote: Some For further argument that campaign finance re- Voter: A Constitutional Principle of Campaign Finance, Pessimism About Formalism, 71 Tex. L. Rev. 1705, form may be ineffective in promoting its own as- 94 Colum. L. Rev. 1204 (1994) (arguing that each voter 1712–18 (1993) (distinguishing voting as aggregation serted goals, see Smith, supra note 45, at 1071–86. should be constitutionally guaranteed equal finan- of preferences for candidates in an election from 70 See, e.g., Sunstein, supra note 34, at 1397–99 (argu- cial resources for expenditures on electoral speech). voting as means of controlling ongoing governance). ing that Buckley may be modern analogue of discred- 34 See, e.g., David A. Strauss, Corrpution, Equality, 50 LaFalce v. Houston, 712 F.2d 292, 294 (7th Cir. ited case of Lochner v. New York, 198 U.S. 45 (1905)). and Campaign Finance Reform, 94 Colum, L. Rev. 1369, 1983), cert. denied, 454 U.S. 1044 (1984). 71 See id., at 1400–11 (cataloguing such efforts). 1383 (1994) (suggesting that ‘‘one person, one vote’ is 51 See Press Conference Excerpts, supra note 3, at 72 See NAACP v. Alabama ex rel. Patterson, 357 U.S. indeed the decisive counterexample to the sugges- B6. 449, 462–54 (1958) (shielding NAACP membership lists tion that the aspiration [of equalizing political 52 See, e.g., Grenzke, supra note 44, at 19–20 (ob- from compelled disclosure to prevent economic and speech] is foreign to the First Amendment’’); Cass R. serving that while money gives PACs access to legis- physical retaliation against its members), rev’d, 360 Sunstein, Political Equality and Unintended Con- lators, it is insufficient to garner support for legisla- U.S. 240 (1959); McIntyre v. Ohio Elections Comm’n, sequences, 94 Colum. L. Rev. 1390, 1392 (1994) (stating tion absent popular approval); John R. Wright, Con- 514 U.S. 334, 342–43 (1995) (invalidating Ohio’s ban on that ‘‘the ‘one person-one-vote’ rule exemplifies the tributions, Lobbying and Committee Voting in the anonymous campaign literature). commitment to political equality’’ and that U.S. House of Representatives, 84 Am. Pol. Sci. Rev. 73 See Buckley v. Valeo, 424 U.S. 1, 60–84 (1976) (dis- ‘‘[l]imits on campaign expenditures are continuous 417, 433–35 (1990) (finding that lobbying, not money, cussing reporting and disclosure requirements). with that rule’’). affects committee behavior). 74 See Dole Cuts Clinton Lead in One Poll, Orange 35 Alexander Meiklejohn, Free Speech and Its Rela- 53 For a review and critique of this evidence, see County Reg., Nov. 2, 1996, at A27 (stating Clinton tion to Self-Government 25 (1948). Lowenstein, supra note 39, at 306–35. dropped in polls because of Dole’s attacks on his 36 Ronald Dworkin, The Curse of American Politics, See generally Frank J. Sorauf, Inside Campaign campaign financing methods). N.Y. Rev. Books, Oct. 17, 1996, at 19, 23. Finance: Myths and Realities (1992) (discussing his- 75 See Jacobson, House Elections, supra note 68, at 37 For a similar argument by an advocate of the tory of campaign finance reform); Frank J. Sorauf, 356–58 (concluding that, because amounts raised by overrule of Buckley and campaign finance reform, see Money in American Elections (1988) (exploring meth- challengers are more important than those raised by C. Edwin Baker, Limits on Campaign ‘Speech’ Are Just ods of election campaign financing). incumbents, once threshold requirement of popu- an Extension of Existing Rules, Philadelphia Inquirer, 54 See Cain, supra note 44, at 115–16 (conducting larity has been met, floors without ceilings might Jan. 28, 1997, at A11. Baker distinguishes between that so-called ‘‘inappropriate motives,’’ such as de- increase competitiveness). October 6, 1997 CONGRESSIONAL RECORD — SENATE S10359

Mr. MCCONNELL. Mr. President, no Issue Advocacy Through Buckley,’’ and Part cacy groups ranging ideologically from the discussion of the issue advocacy provi- III, ‘‘FEC Efforts to Stifle Issue Advocacy.’’ left to the right, from environmental activ- sions in the McCain-Feingold bill can Part IV will focus on ‘‘Other Protection for ist groups to pro-business organizations, and be complete without the input of Free Political Expression,’’ discussing (1) from gun control enthusiasts to the National MCFL-type organizations, (2) members, (3) Rifle Association. The broad-based agree- James E. Bopp, Jr., who is perhaps the anonymous literature, (4) caps on contribu- ment on protecting free expression rights in most experienced lawyer in America in tions and expenditures, (5) political commit- the election context was symbolized recently this area of the law and the bane of the tees, (6) burden of proof, and (7) prior re- when James Bopp, Jr., General Counsel for FEC’s irresponsible battalion of law- straint of speech. In Part V, ‘‘A Proposal for the National Right to Life Committee yers who have made it their mission in Speech-Enhancing Campaign Reform,’’ the (NRLC) and co-author of the present article, life to harass citizen groups. For that article will conclude with a proposal for con- presented testimony on behalf of the Free worthy accomplishment, Mr. Bopp de- stitutionally-permissible campaign finance Speech Coalition before the U.S. Senate serves special commendation. reforms which would enhance, rather than Committee on Rules and Administration suppress, the free flow of speech about can- considering campaign finance reform.26 I ask unanimous consent to have didates and issues of public concern which is These public policy groups agree on little printed in the RECORD Jim Bopp’s re- essential to our democratic Republic. else, but they agree that the First Amend- cent law review article entitled, ‘‘The I. A PRIMER ON PROTECTED POLITICAL ment protects their right to advocate on is- First Amendment Is Not the Loop- EXPRESSION sues on public concern. This is the market- hole,’’ which he coauthored with Rich- Our political system is based on the model place of ideas at work, with opposing groups ard E. Coleson. of an open and free marketplace of ideas. The vying for the blessing of public opinion on There being no objection, the mate- Framers of our Constitution believed that their issue. It is America working at its 27 rial was ordered to be printed in the good ideas will triumph over bad ideas if the best. This battle for First Amendment liberty is RECORD, as follows: People are free to debate and to champion the ideas they find convincing. Free speech being fought over several types of activities. [Reprinted from University of West Los is not only valuable intrinsically as a per- It will be helpful to consider some of them Angeles Law Review, Volume 28, 1997] sonal liberty, but it is a necessary pre- briefly and note some terms of art. THE FIRST AMENDMENT IS NOT A LOOPHOLE: requisite for limited representative govern- A ‘‘political action committee’’ (PAC) PROTECTING FREE EXPRESSION IN THE ELEC- ment, particularly in free elections.7 This (also sometimes known as a ‘‘political com- TION CAMPAIGN CONTEXT has been well stated by the District of Co- mittee’’ in statutes) is nothing more than in- (By James Bopp, Jr.* and Richard E. lumbia Circuit: ‘‘If popular elections form dividuals uniting to promote issues and can- Coleson**) the essence of republican government, free didates more effectively than they could do 28 ‘‘Congress shall makes no law. . . abridg- discourse and political activity formed the on their own. A PAC may lawfully engage ing the Freedom of Speech. . . .’’1 prerequisite for popular elections. As Madi- in ‘‘express advocacy,’’ i.e., expressly advo- son wrote, a government which is ‘elective, cate the election or defeat of a clearly iden- INTRODUCTION limited and responsible’ to the people re- tified candidate, 29 and make contributions The First Amendment plainly states that quires ‘a greater freedom of animadversion’ to candidates. First Amendment rights do Congress is to ‘‘make no law’’ which would than one not so structured.’’ not diminish in any way because persons as- ‘‘abridg[e] the freedom of speech,’’2 yet Con- In our day, the Supreme Court has recog- sociate to advocate for their cause more ef- gress enacted the Federal Election Campaign nized that ‘‘debate on the qualifications of fectively; in fact, the right of citizens to Act of 1971 (FECA), as amended in 1974,3 pre- candidates [is] integral to the operation of band together in PACs is specifically pro- cisely to abridge certain forms of speech in the system of government established by our tected by the First Amendment’s freedom of election campaigns. In the landmark case of Constitution.’’ Because the electoral process association protections.30 Thus, pejorative Buckley v. Caleo,4 the United States Supreme plays so central a role in our conception of a references to PACs as ‘‘special interests’’ Court struck down many FECA provisions on free government, ‘‘it can hardly be doubted which need to be stifled are actually mis- free expression grounds. that the constitutional guarantee [of the guided attacks on the core First Amendment For the two decades since Buckley, the First Amendment] has its fullest and most rights of free political expression and asso- Federal Election Commission (FEC) has urgent application precisely to the conduct ciation. The marketplace-of-ideas response fought to close the perceived loopholes cre- of campaigns for political office.’’ 8 to a PAC message one opposes is not to si- ated by Buckley in the federal election laws, lence PACs but to form one’s own associa- so that the agency could regulate all speech * * * * * This effort goes by the innocuous name of tion of persons to advocate an opposing mes- relating in any way to federal elections. 31 campaign finance reform. While ‘‘reform’’ is sage in the marketplace. The cacophony of Throughout this period, the Supreme Court generally considered a salutary goal, ‘‘re- competing communications may sometimes has repeatedly proclaimed that the First form’’ is not good when it is a euphemism for be deafening and disquieting, but that is the Amendment is not a loophole—free expres- silencing the voice of the People at election way of liberty. The road to serfdom is the sion must be protected amidst the rush to time. quiet and quiescent road. Recognizing free impose campaign finance restrictions. The Supreme Court and lower courts have speech as an inherent good and the necessity Undeterred, the FEC has created new theo- repeatedly had to protect the First Amend- of free political debate and association in a ries in an attempt to bypass Supreme Court ment rights of the People against misguided democratic republic, the Supreme Court has holdings and pursued regulation of constitu- 32 ‘‘reform’’ efforts which impinge on essential permitted only limited regulation of PACs. tionally-protected expression. On June 26, liberties.24 Truly beneficial ‘‘reform’’ would Litigation often arises over the scope of a 1996, the United States Supreme Court de- enhance the power of the People to commu- state’s definition of a political committee or cided the case of Colorado Republican Federal nicate and promote their ideas, not repress PAC. Often states try to channel all individ- Campaign Committee v. FEC (Colorado Repub- it. Proper reform would return power to the uals and groups, who advocate on issues in a lican),5 again rejecting the FEC’s creative ef- People, not enhance the power of media manner which would in any way ‘‘influence’’ forts to regulate political speech protected elite, wealthy candidates, and Washington an election, into the political committee by the First Amendment. This article dis- insiders to influence elections—which is the category so that they will have to register cusses the Colorado Republican case in its his- ultimate outcome if the People’s voice and report as if they were a political com- torical context of conflict between federal 33 through their political parties and political mittee. However, an organization cannot court protection of free expression and at- committees is muffled or silenced.25 constitutionally be required to register and tempts, by the FEC and various states, to Bopp writes that this fight against uncon- report as a political committee unless it regulate protected expression in the name of stitutional political speech restrictions ad- ‘‘major purpose’’ is the nomination or elec- campaign finance reform. vanced under the guise of ‘‘reform’’ is bipar- tion of candidates. Imposing the relatively The article is written from a practical per- tisan. That may be the case in the outside burdensome reporting requirements which spective, i.e., what the courts have held, not world but, regrettably, that is not the situa- may be imposed on PACs on issue-advocacy what certain theoreticians would like the tion in the Senate where it appears Demo- groups is simply too heavy a burden on free 6 courts to hold. In Part I, ‘‘A Primer on Pro- crats are going to join hands in delivering a expression to be permitted. 34 There is no tected Political Expression,’’ the authors crushing blow to First Amendment freedom compelling governmental interest to justify will summarize briefly some of the key theo- that Americans have savored for two hun- such a burden on First Amendment rights. retical debates, but will primarily focus on dred years. An ‘‘independent expenditure’’ is an ex- the principles undergirding free political ex- The battle to preserve free speech rights in penditure made for a communication which pression, discuss some terms of art, and ex- the election context is bi-partisan and non- contains ‘‘express advocacy’’ and is made plain the sorts of activity over which litiga- ideological, as evidenced by the existence of without any prior consultation or coordina- tion usually arises. The robust First Amend- the Free Speech Coalition. This Coalition is tion with a candidate. An entity which ment protection of issue advocacy will be the co-chaired by Ellie Smeal of the Fund for the makes an independent expenditure may be topic of Part II, ‘‘Supreme Court Defense of Feminist Majority and David Keene of the required to report that expenditure, even if American Conservative Union and is made it is not required to register and report as a See footnotes at end of article. up of approximately 50 public interest advo- political committee. 35 S10360 CONGRESSIONAL RECORD — SENATE October 6, 1997 ‘‘Issue advocacy’’ is advocacy of issues permit regulation of only express advocacy, ‘advocating the election or defeat of’ a can- without engaging in express advocacy. 36 For in order to shield the statutes from constitu- didate.’’ 58 example, if a pro-life group publishes a tional attack. Moreover, the Supreme Court However, as the Buckley Court noted, this newletter on the eve of an election describ- has established two bright-line tests to pro- construction merely refocused the vagueness ing Candidate D as pro-life and Candidate C tect the advocacy of issues in the election problem. The real problem, the Court noted, as pro-abortion rights in an article about the context: (1) the ‘‘express advocacy test’’ and as that: ‘‘the distinction between discussion two candidates, that is issue advocacy, not (2) the ‘‘major purpose test.’’ 47 These will be of issues and candidates and advocacy of express advocacy, because there have been discussed in turn. election or defeat of candidates may often no explicit words expressly advocating the A. THE BRIGHT-LINE EXPRESS ADVOCACY TEST dissolve in practical application. Candidates, especially incumbents, are often intimately election or defeat of a clearly identified can- In a series of cases, the United States Su- 37 tied to public issues involving legislative didate for public office. The candidates preme Court has drawn a distinction between have been clearly identified, they are run- proposals and governmental actions. Not express advocacy, which may be regulated, only do candidates campaign on the basis of ning for public office, but saying that Can- and issued advocacy, which may not be regu- didate D is pro-life is not express advocacy, their positions on various public issues, but lated. As shall be seen, both enjoy full First campaigns themselves generate issues of it is issue advocacy. This is so even though Amendment protection, but the compelling the statement is made in a pro-life news- public interest.59 interest in preventing corruption (or its ap- Because of the problem described, the Su- letter, in a discussion of candidates, on the pearance) in the election process is only suf- 38 preme Court settled on the express advocacy eve of an election. ficiently compelling to warrant some regula- A ‘‘voter guide’’ is a table showing the po- test as marking the line of demarcation be- tion of express advocacy.48 No governmental sitions of candidates on various issues. If it tween the permitted and the forbidden. This interest is sufficiently compelling to regu- does not expressly advocate the election or test is constitutionally mandated because late issue advocacy. defeat of any of the identified candidates, only a statute regulating the express advo- In 1948, the Supreme Court considered the the voter guide is pure issue advocacy and cacy of a clearly identified federal candidate case of United States v. Congress of Industrial may not be regulated by the FEC or any has a sufficiently bright line of distinction Organizations (C.I.O).49 C.I.O. concerned a state. The voter guide may even indicate to make it constitutionally defensible. The federal statute prohibiting a corporation or what is the response preferred by the organi- Supreme Court, in Buckley, explained the labor organization from making ‘‘any ex- zation publishing the guide, e.g. by indicat- problem with a quotation from Thomas v. penditure in connection with a federal elec- ing a favorable answer (from the perspective Collins: ‘‘[W]hether words intended and de- tion.’’ 50 Under this provision, an indictment of the publisher) with a (+) and an unfavor- signed to fall short of invitation would miss was returned against the C.I.O. and its presi- able response with a minus ( ). Or the voter the mark is a question both of intent and of ¥ dent for publishing, in The CIO News, a guide can word the questions in such a way effect. No speaker, in such circumstances, statement urging all members of the C.I.O. that a candidate giving favored responses safely could assume that anything he might to vote for a particular candidate for Con- will have a ‘‘yes’’ answer for every question, say upon the general subject would not be gress in an upcoming election.51 In affirming while a candidate giving disfavored re- understood by some as an invitation. In a dismissal of the indictment, the Court ob- sponses will have all ‘‘no’’ answers.39 These short, the supposedly clear-cut distinction served: ‘‘If § 313 were construed to prohibit voter guides may be paid for and distributed between discussion, laudation, general advo- the publication, by corporations and unions by any individual or organization.40 cacy, and solicitation puts the speaker in in the regular course of conducting their af- Because they discuss candidates, are dis- these circumstances wholly at the mercy of fairs, of periodicals advising their members, tributed at election time, and may actually the varied understanding of his hearers and stockholders or customers of danger or ad- influence elections, voter guides have been consequently of whatever inference may be vantage to their interests from the adoption the target of intense efforts by the FEC,41 drawn as to his intent and meaning. Such a of measures, or the election to office of men state legislatures,42 and the Democrat distinction offers no security for free discus- espousing such measures, the gravest doubt Party 43 in an effort to force voter guide ac- sion. In these conditions it blankets with un- would arise in our minds as to its constitu- tivity into the definition of express advocacy certainty whatever may be said. It compels tionality.’’ 52 and, thereby, prohibiting citizens groups the speaker to hedge and trim.60’’ A lengthy footnote appended to this state- which publish them from doing so unless Thus, the Supreme Court, in Buckley, said ment set forth several passages from case they register and report as political commit- that ‘‘[t]he constitutional deficiencies de- law wherein the Court had declared the spe- tees. Such efforts have been repeatedly re- scribed in Thomas v. Collins can be avoided cially protected nature of free speech con- jected as courts have followed the bright-line only by reading § 608(e)(1) [placing a ceiling cerning public policy and political matters: express advocacy test set out by the United on independent expenditures] as limited to ‘‘Free discussion of the problems of society States Supreme Court to protect issue advo- communications that include explicit words is a cardinal principle of Americanism—a cacy. of advocacy of election or defeat of a can- principle which all are zealous to preserve. Advocates of McCain-Feingold cling to a didate.’’ 61 Penekamp v. Florida, 328 U.S. 331, 345 [(1946)]. groundless belief that the Supreme Court is Without such a clear line of demarcation, ‘‘The case confronts us again with the duty going to do a 180 and suddenly retreat on then, a speaker is forced to ‘‘hedge and trim’’ our system places on this Court to say where decades of jurisprudence blasting such gross comments made on issues of public impor- the individual’s freedom ends and the State’s government intrusion into First Amendment tance for fear he will be charged with forbid- power begins. Choice on that border, now as speech. A notion Bopp dispels. den electioneering. This is too heavy a bur- always delicate, is perhaps more so where den on First Amendment Rights to be con- II. SUPREME COURT DEFENSE OF ISSUE the usual presumption supporting legislation stitutionally permitted.62 ADVOCACY THROUGH BUCKLEY is balanced by the preferred place given in The Buckley Court concluded that ‘‘[t]he The United States Supreme Court has long our scheme to the great, the indispensable constitutional deficiencies’’ of such unclear and carefully watched over efforts to regu- democratic freedoms secured by the First statutory language could only be cured by late political speech in order to ensure that Amendment. Thomas v. Collins, 323 U.S. 516, reading the statute ‘‘to apply to expendi- the guarantees of the First Amendment 44 are 529–30 [(1945)]. tures for communications that in express not denied. This is because such restrictions ‘‘For the First Amendment does not speak terms advocate the election of a clearly ‘‘limit political expression ‘at the core of our equivocally. It prohibits any law ‘abridging identified candidate for a public office.’’ 63 electoral process and of First Amendment the freedom of speech, or of the press.’ It The Court added that ‘‘[t]his construction freedoms.’ ’’ 45 All political speech, including must be taken as a command of the broadest would restrict the application of § 608(e)(1) to communications which expressly advocate scope that explicit language, read in the con- communications containing express words of election or defeat of Supreme Court has de- text of a liberty-loving society, will allow, advocacy of election or defeat, such as ‘vote clared: ‘‘[T]he First Amendment right to Bridges v. California, 314 U.S. 252, 263 for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘speak one’s mind . . . on all public institu- [(1941)].’’ 53 ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ tions’ includes the right to engage in ‘‘ ‘vig- In 1976, the Supreme Court considered a ‘reject.’ ’’ 64 orous advocacy’ no less than ‘abstract dis- successor statute to the one discussed in The Buckley Court then proceeded to deter- cussion.’ ’’ Advocacy of the election or defeat C.I.O., the Federal Election Campaign Act of mine whether the statute, ‘‘even as thus nar- of candidates for federal office is no less en- 1971, as amended in 1974.54 This new statute rowly and explicitly construed, titled to protection under the First Amend- was reviewed in Buckley v. Valeo.55 impermissibly burdens the constitutional ment than the discussion of political policy Buckley dealt, inter alia, with a provision right of free expression.’’ 65 The Court deter- generally or advocacy of the passage or de- which limited ‘‘any expenditure . . . relative mined that the government could not ad- feat of legislation.’’ 46 to a clearly identified candidate.’ ’’ 55 The vance an interest in support of the statute Not only has the Court afforded strong provision placed a limit on the amount of an sufficient to ‘‘satisfy the exacting scrutiny constitutional protection for political speech independent expenditure on behalf of a can- applicable to limitations on core First in general, but it has afforded exceptionally didate. However, this provision was consid- Amendment rights of political expression.’’ 66 strong constitutional protection for issue- ered to be unconstitutionally vague.57 There- In sum, the Court established the express oriented speech. As a result, the Court has fore, the Court construed it with another advocacy test as a bright-line rule to distin- repeatedly given a narrowing construction to provision of the same statute to require guish political advocacy, which could be reg- statutes regulating political speech, so as to ‘‘ ‘relative to’ a candidate to be read to mean ulated, from issue advocacy, which may not. October 6, 1997 CONGRESSIONAL RECORD — SENATE S10361

B. THE BRIGHT-LINE MAJOR PURPOSE TEST croachment on issue advocacy. However, as litical system that is could only be cured by In Buckley, the Supreme Court also estab- shown in the next section, the FEC and some imposing on the organization the heavy bur- lished the bright-line ‘‘major purpose’’ test. state legislatures have spent the next two dens imposed on PACs. The answer, of In practical application, this test means that decades trying to evade the Court’s pro- course, would be that fully disclosed con- government may not require an organization nouncements. tributions, which are a small fraction of an which makes contributions and independent Before proceeding, however, comment organization’s activities, pose not credible expenditures to register and report as a po- needs to be made on the recent case of Akins threat of corruption or the appearance there- 73 litical committee unless the ‘‘major pur- v. FEC. That case held that the major pur- of. Therefore, imposing the limitations and pose test applied when an organization en- broad disclosure requirements, which are pose’’ of the organization is the election or gaged in independent expenditures, but not placed on political committees, on an orga- nomination of candidates for political of- when it made contributions. The decision, nization whose major purpose is not the fice.67 Government may, however, require however, was wrongly decided because the nomination or election of candidates would that the independent expenditures be re- court did not engage in the most basic First violate the First Amendment in the same ported by the organizations making them Amendment analysis, which would have led way that the Constitution is violated in the and that contributions be reported by the to a different result. context of such organizations making inde- candidate receiving them. However, there is The case involved a complaint to the FEC pendent expenditures. no sufficiently compelling interest to justify that the American Israel Public Affairs Com- It may safely be assumed that, at such a imposing the onerous burdens imposed on a mittee (AIPAC) was a ‘‘political committee’’ time as the United States Supreme Court political committee on an issue advocacy subject to the broad disclosure requirements has the opportunity to review the issue 68 group. and limits imposed on political committees. raised in Akins, the major purpose test will This test was set forth in the Buckley The FEC dismissed the complaint because be reasserted in the context of contributions, Court’s discussion of 2 U.S.C. § 434(e), which the Committee did not met its definition for as well as independent expenditures. Mean- required ‘‘[e]very person (other than a politi- a political committee. The definition re- while, it is clearly in force with respect to cal committee or candidate) who makes con- quired that a committee (1) meet the $1,000 independent expenditures and with respect tributions or expenditures’’ aggregating over expenditure threshold and (2) have as its to contributions in all but the D.C. Circuit. $100 in a calendar year ‘‘other than by con- major purpose the nomination or election of The FEC filed a petition for a writ of certio- tribution to a political committee or can- candidates. The FEC ‘‘determined that rari on April 7, 1997.81 didate’’ to file a statement with the Commis- AIPAC likely had made campaign contribu- III. FAILED FEC EFFORTS TO STIFLE ISSUE sion. Unlike the other disclosure provisions, tions exceeding the $1,000 threshold, but con- ADVOCACY this section does not seek the contribution cluded that there was not probable cause to The FEC apparently did not like the an- list of any association. Instead, it requires believe AIPAC was a political committee be- swers the Supreme Court gave in Buckley 82 direct disclosure of what an individual or cause its campaign-related activities were because it soon began challenging the deci- 69 group contributes or spends.’’ only a small portion of its overall activities sion with enforcement actions and rule- ‘‘In considering this provision,’’ the Court and not its major purpose.’’74 The FEC ar- making that did not follow the express advo- wrote, ‘‘we must apply the same strict stand- gued that Buckley required it to include a cacy and major purpose tests. This resulted ard of scrutiny, for the right of associational major purpose exception for such contribu- in a long string of litigation, traced below, privacy developed in NAACP v. Alabama de- tions in its rules implementing 2 U.S.C. highlighted by judicial rebuffs and rebukes. rives from the rights of the organization’s § 431(4)(A) (the definition of ‘‘political com- In this twenty-year effort to suppress po- members to advocate their personal points of mittee’’).75 Ironically, as the FEC properly litical speech by circumventing Buckley, the view in the most effective way.’’ 70 followed and defended the Buckely major pur- FEC has treated the First Amendment as a The Court continued: pose test in this instance, it was overruled. loophole in the Federal Election Campaign ‘‘When we attempt to define ‘expenditure’ The D.C. Circuit’s analysis reviewed the Act which it is the FEC’s duty to close, and . . . . [a]lthough the phrase, ‘for the purpose language of Buckley and decided that the the FEC has treated United States Supreme of . . . influencing’ an election or nomina- major purpose test was only established by Court decisions against it as inconveniences tion, differs from the language used in the Court in the context of expenditures.76 to be overcome. As a result, the FEC has en- § 608(e)(1), it shares the same potential for The Akins court similarly dismissed the lan- gaged in a sustained and unprecedented as- encompassing both issue discussion and ad- guage about the major purpose test in sault on the First Amendment, consuming vocacy of a political result. The general re- MCFL 77 as only applying in the context of enormous FEC resources. Rather than en- quirement that ‘political committees’ and independent expenditures, so that ‘‘the force the many uncontroversial and clearly candidates disclose their expenditures could Court’s rationale in MCFL and Buckely is constitutional provisions of the FECA, the raise similar vagueness problems, for ‘politi- simply inapplicable to the present case.’’ 78 FEC has used its limited resources to launch cal committee’ is defined only in terms of The Akins court proceeded with some policy a series of regulatory changes and enforce- amount of annual ‘contributions’ and ‘ex- arguments about how the FEC’s interpreta- ment actions with the intent of expanding penditures,’ and could be interpreted to tion ‘‘would . . . allow a large organization its powers to regulate free speech. This effort reach groups engaged in purely issue discus- to contribute substantial sums to campaign has resulted in a series of court cases strik- sion. . . . To fulfill the purposes of the Act activity, as long as the contributions are a ing down these regulations 83 and defeating they need only encompass organizations that small portion of the organization’s overall the FEC’s enforcement actions.84 are under the control of a candidate or the budget, without being subject to the limita- The courts have, therefore, frustrated the major purpose of which is the nomination or tions and requirements imposed on political unlawful efforts of the FEC to impinge on election of a candidate. Expenditures of can- committees.’’ 79 Of course, that is so and is as free speech, but at an enormous cost in tax- didates and ‘political committees’ so con- it should be. The very idea of the major pur- payer funds and in attorney fees for success- strued can be assumed to fall within the core pose test is that the heavy limits and disclo- ful victims of the FEC’s enforcement ac- area sought to be addressed by Congress. sure requirements imposed on political com- tions. The cost to the free speech of those in- They are, by definition, campaign related. mittees are too great a burden on the First timidated by the heavy hand of the FEC, ‘‘But when the maker of the expenditure is Amendment rights of organizations whose however, cannot be calculated. Instead of en- not within these categories—when it is an major purpose is not campaign advocacy. It forcing the important and uncontroversial individual other than a candidate or a group is sufficient that the details of each inde- provisions of the Act, the FEC has focused other than a ‘political committee’—the rela- pendent expenditure or contribution to a its attention on ‘‘grassroots groups and citi- tion of the information sought to the pur- candidate be disclosed to the FEC as matters zens who want to take part in the political poses of the Act may be too remote. To in- of public record. debate, too—groups far less well-funded and sure that the reach of § 434(e) is not What was glaringly absent from the Akins less capable of extricating themselves from impermissibly broad, we construe ‘expendi- opinion was a constitutional analysis.80 A the tangle of FEC regulations.’’ Thus, the ture’ for purposes of that section in the same proper constitutional analysis would have FEC has functioned ‘‘more and more as a way we construed the terms of § 608(e)—to begun with the strong First Amendment pro- censor of political expression, especially by reach only funds used for communications tection for all forms of political expression, issue-oriented, grassroots activists.’’ 85 Some that expressly advocate the election or de- including contributions. Next, the analysis of the most significant cases are reviewed feat of a clearly identified candidate.’’ 71 would have asked whether there was any below. So construed, the reporting of independent compelling governmental interest sufficient A. FEC V. AFSCME (1979) expenditures is justified by the substantial to override the First Amendment’s protec- In FEC v. American Federation of State, governmental interest in ‘‘sched[ding] the tion. A proper analysis would have noted County and Municipal Employees (AFSCME),86 light of publicity on spending that is unam- that the only interests found sufficiently the District of Columbia district court re- biguously campaign related,’’ 72 i.e., an inter- compelling by the Court are the interests in jected the FEC’s contention that a poster est in preventing corruption in the political preventing corruption and its appearance in qualified as express advocacy because it con- process. the political process. The analysis would tained a clearly identified candidate, ‘‘may After the Supreme Court’s 1976 Buckley de- have then asked whether contributions to have tended to influence voting,’’ and cision, the express advocacy test and the candidates from an organization whose ‘‘contain[ed] communication on a public major purpose test were clearly deployed as major purpose is education and lobbying issue widely debated during the cam- twin defenses against governmental en- posed such a threat of corruption to the po- paign.’’ 87 The AFSCME union had printed a S10362 CONGRESSIONAL RECORD — SENATE October 6, 1997

poster with a caricature of President Ford C. FEC. V. NCPAC (1985) expenditures ‘‘in connection with any elec- wearing a button reading ‘‘Pardon Me’’ and In 1985, the Supreme Court considered FEC tion,’’ by publishing a voter guide. embracing President Nixon, but it did not re- v. National Conservative Political Action Com- The voter guide, published by MCFL, was port the expenditure as express advocacy. mittee (NCPAC).97 This case involved a declar- contained in a ‘‘Special Edition’ newsletter The district court held that this was issue atory judgment action seeking to have a pro- which encouraged readers to ‘‘Vote Pro-Life’’ 106 advocacy, not express advocacy, because it vision of the Presidential Election Campaign and identified the pro-life candidates. A contained no express words urging the elec- Fund Act 98 declared constitutional. It was complaint was filed with the FEC alleging tion or defeat of a clearly identified can- originally initiated by the Democrat Na- that MCFL had violated the ban on cor- didate.88 The AFSCME court noted that tional Committee in hopes that it could pre- porate expenditures found at 2 U.S.C. 107 ‘‘[t]he Buckley analysis of the limits of polit- vent NCPAC and another conservative PAC § 441b. The Supreme Court decided that ical activity is based on long recognized (Fund For A Conservative Majority) from this ‘‘Special Edition’’ did not qualify for the 108 principles: (1) political expression, including implementing their expressed intent to newspaper exemption found in the FECA, and that MCFL had engaged in express advo- discussion of candidates, is afforded the spend large sums of money to aid the 1984 re- cacy, but that the First Amendment re- broadest protection under the first amend- election of President Ronald Reagan.99 ment; and (2) discussion of public issues The disputed provision made it a criminal quired a special exemption from § 441b’s pro- 109 which are also campaign issues unavoidably offense for an independent political commit- hibitions for MCFL-type corporations. Under the FECA, ‘‘expenditure’’ means to draws in candidates and tends to inexorably tee ‘‘to expend more than $1,000 to further [a] provide anything of value ‘‘for the purpose of exert influence in voting at elections.’’ 89 . . . candidate’s election,’’ if the ‘‘Presi- influencing any election for Federal of- dential candidate elects public financing.’’ 100 B. FEC V. CLITRIM (1980) fice.’’ 110 This ‘‘influencing’’ language was the Undeterred, the FEC brought suit against The Supreme Court declared the $1,000 cap same terminology construed by the Supreme the Central Long Island Tax Reform Imme- on independent expenditures unconstitu- Court in Buckley to mean only express advo- diately Committee for the Organization’s tional because such independent expendi- cacy, in order to save a different provision of failure to report funds expended to publish tures enjoyed full First Amendment protec- the FECA from unconstitutionality for and distribute a leaflet advocating lower tion and there was no compelling state inter- sweeping issue advocacy within its ambit. taxes and smaller government. The Second est to override this right of free expres- In MCFL, the Supreme Court considered Circuit, in FEC v. Central Long Island Tax Re- sion.101 the contention of MCFL ‘‘that the definition form Immediately Committee (CLITRIM),90 ad- In NCPAC, the Supreme Court stated the of an expenditure under § 441b necessarily in- hered to the express advoacy test set forth in only interest sufficiently compelling to jus- corporates the requirement that a commu- Buckley and, therefore, ruled against the tify regulation of political speech in the nication ‘expressly advocate’ the election of FEC. form of contributions and expenditures: candidates,’’ relying on Buckley.111 The FEC The first provision at issue required ‘‘any ‘‘We held in Buckley and reaffirmed in Citi- argued that the express advocacy test should ‘person . . . who makes contributions or zens Against Rent Control that preventing cor- not be extended to this provision barring independent expenditures expressly advocat- ruption or the appearance of corruption are corporate expenditures. ing the election or defeat of a clearly identi- the only legitimate and compelling govern- The MCFL Court held, however, that the fied candidate’ ’’ in excess of one hundred ment interests thus far identified for re- express advocacy rationale must be extended dollars to file a report with the FEC.91 The stricting campaign finances. . .. to restrictions on expenditures by corpora- second provision required ‘‘any person who ‘‘Corruption is a subversion of the political tions.112 The Court said that, if a ceiling on ‘makes an expenditure for the purpose of fi- process. Elected officials are influenced to independent expenditures, at issue in Buck- nancing communications expressly advocating act contrary to their obligations of office by ley, had to be construed to apply only to ex- the election or defeat of a clearly identified the prospect of financial gain to themselves press advocacy of the election or defeat of a candidate’ . . . through media, advertising or or infusions of money into their campaigns. clearly identified candidate (in order to mailing to state whether the communication The hallmark of corruption is the financial eliminate the constitutional deficiencies de- 102 is authorized by a candidate. . . .’’ 92 quid pro quo: dollars for political favor.’’ scribed in Buckley), ‘‘this rationale requires The CLITRIM court noted ‘‘the broad pro- The Court went on to state that: ‘‘The fact a similar construction of the more intrusive tection to be given political expression,’’ 93 that candidates and elected officials may provision [at issue in MCFL] that directly as indicated by the Supreme Court in Buck- alter or reaffirm their own positions on is- regulates independent spending.’’ 113 ley, and observed that: ‘‘[t]he language sues in response to political message paid for The Supreme Court rejected the FEC’s ar- quoted from the statutes was incorporated by PACs can hardly be called corruption, for gument that extending the express advocacy by Congress in the 1976 FECA amendments one of the essential features of democracy is protection to corporations and labor unions to conform the statute to the Supreme the presentation to the electorate of varying ‘‘would open the door to massive undisclosed 103 Court’s holding in Buckley v. Valeo that points of view.’’ political spending.’’ 114 Nevertheless, the FEC The implication of these statements should speech not by a candidate or political com- continued to treat constitutionally-pro- have been clear, even to the FEC. For years mittee could be regulated only to the extent tected issue advocacy as a loophole which the FEC has maintained the position that it that the communications ‘‘expressly advo- ought to be closed because it limited the ought to be able to regulate issue advocacy cate the election or defeat of a clearly iden- FEC’s ability to regulate anything that in the form of voter guides which tell where 115 tified candidate.’’ 94 might possibly influence an election. candidates stand on issues, on the theory The court further observed that limiting E. FEC V. FURGATCH (1987) that issue-advocacy groups were actually en- the statutes to reach only express advocacy In 1987, the United States Court of Appeals gaging in express advocacy or making a con- ‘‘is consistent with the firmly established for the Ninth Circuit decided the case of FEC tribution to the candidates who favored their principle that the right to speak out at elec- v. Furgatch.116 This case contained obiter issues.104 Voter guides might have the effect, tion time is one of the most zealously pro- dicta suggesting that the court was applying the argument would go, or persuading can- tected under the Constitution.’’ 95 a broadened express advocacy test to the didates to support the organization’s views The CLITRIM court held that: ‘‘[t]he his- FECA’s requirement that independent ex- tory of §§ 434(c) and 441d thus clearly estab- on an issue. However, if the only compelling interest penditures by an individual over $250 must be lish that, contrary to the position of the 117 for restricting speech at election time is cor- reported to the FEC and must contain a FEC, the words ‘‘expressly advocating’’ 118 ruption (or its appearance), and if persuading disclaimer. mean[ ] exactly what they say. The FEC, to Buckley held that only ‘‘explicit words’’ politicians to a different viewpoint of advo- support its position, argues that ‘[t]he TRIM ‘‘expressly advocating the election or defeat cacy of issues is not corruption, then there bulletins at issue here were not disseminated of a clearly identified candidate,’’ constitute can be no compelling governmental interest for such a limited purpose’ as merely inform- express advocacy.119 However, the Ninth Cir- which would permit restriction of issue advo- ing the public about the voting record of a cuit wrote that a court could look beyond cacy. If this is true of PACs, then a fortiori government official. Rather the purpose was the explicit words of the communication to there can be no corruption or appearance of to unseat ‘big spenders.’ Thus, the FEC consider the context in which the words were corruption resulting from issue advocacy by would apparently have us read ‘expressly ad- communicated.120 Furgatch considered news- any issue advocacy groups. Undeterred, the vocating the election or defeat’ to mean for paper advertisements which made a number FEC rejected the clear teaching of the Su- the purpose, express or implied, of encourag- of allegations about President Jimmy Carter preme Court in Buckley, CLITRIM, and ing election or defeat. This would, by statu- followed by the phrases, ‘‘And we let him,’’ NCPAC and continued its efforts to attempt tory interpretation, nullify the change in the ‘‘And we let him do it again,’’ ‘‘We are let- to regulate issue advocacy. statute ordered in Buckley v. Valeo and ting him do it,’’ and following paragraphs: adopted by Congress in the 1976 amendments. D. FEC V. MCFL (1986) ‘‘He continues to cultivate the fears, not The position is totally merit-less.’’ 96 In 1986, the Supreme Court again consid- the hopes, of the voting public by suggesting From the CLITRIM decision, it seemed ered the constitutional protection afforded the choice is between ‘peace and war,’ ‘black clear that the express advocacy test was issue advocacy in the case of FEC v. Massa- or white,’ ‘north or south,’ and ‘Jew vs. firmly ensconced as black-letter constitu- chusetts Citizens for Life (MCFL),105 The FEC Christian.’ His meanness of spirit is divisive tional law. Nevertheless, the FEC continued had brought an enforcement action against and reckless McCarthyism at its worst. And its campaign to eliminate freedom of speech MCFL, alleging that the organization had from a man who once asked, ‘Why Not the on issues at election time. violated 2 U.S.C. § 441b, a ban on corporate Best?’ October 6, 1997 CONGRESSIONAL RECORD — SENATE S10363 ‘‘It is an attempt to hide his own record, or power, the FEC launched a campaign to The First Circuit expressly applied the lack of it. If he succeeds the country will be apply its totality-of-the-circumstances ‘‘ex- ‘‘bright-line’’ test of Buckley in accordance burdened with four more years of incoher- press advocacy’’ test in a wide range of con- with the speech-protective rationale of that ences, ineptness and illusion, as he leaves a texts. case: ‘‘In our view, trying to discern when legacy of low-level campaigning. F. FEC V. NOW (1989) issue advocacy in a voter guide crosses the 121 ‘‘DON’T LET HIM DO IT.’’ In the case of FEC v. National Organization threshold and becomes express advocacy in- Noticeably absent from this communica- for Women (NOW),132 the FEC again brought vites just the sort of constitutional ques- tion are any words of express advocacy. No- an enforcement action employing its broadly tions the Court sought to avoid by adopting where does the communication contain ex- defined express advocacy test. The FEC the bright-line express advocacy test in plicit words such as ‘‘vote for’’ or ‘‘defeat.’’ 143 charged that membership solicitation letters Buckley.’’ The Ninth Circuit, however, decided that the discussing issues to pay inequality, abortion, H. FEC V. SURVIVAL EDUCATION FUND (1994) context should be consulted: ‘‘We conclude and the Equal Rights Amendment (ERA) In FEC v. Survival Education Fund,144 the that speech need not include any of the constituted express advocacy. The letters at U.S. District Court for the Southern District words listed in Buckley to be express advo- issue expressly criticized the Reagan Admin- of New York rejected an FEC attempt to cacy under the Act, but it must, when read istration and the Republican Party, includ- broaden the express advocacy test of Buckley as a whole, and with limited reference to ex- ing the following phrase which the FEC and MCFL. The case involved letters sent ternal events, be susceptible of no other rea- found damming: ‘‘Politicians listen when four months before an election by Dr. Ben- sonable interpretation but as an exhortation they think an organized group of citizens can jamin Spock that were hostile to President to vote for or against a specific can- help elect or defeat them.’’ Another letter Reagan and condemned his policies. The FEC didates.’’ 122 criticized by name Senators Helms, Hatch, Applying its contextual standard, the argued that the letters constituted express and Thurmond and spoke of ‘‘a renewed ef- Ninth Circuit determined that Mr. Furgatch advocacy and, therefore, were prohibited po- fort now being launched by New Right reac- had engaged in express advocacy. litical communications by a corporation. Four key facts should be noted about tionary groups in preparation for the 1984 The court, however, pointed to the ‘‘express Furgatch. First, although the MCFL decision elections,’’ which phrase the FEC condemned words’’ formula in Buckley and held that: ‘‘It was issued on December 15, 1986, and the as electioneering. A third letter made the is clear from the cases that expressions of Furgatch decision was issued just days later case for the ERA and condemned President hostility to the positions of an official, im- on January 9, 1987, Furgatch made no men- Reagan and named several senators ‘‘up for plying that that official should not be re- tion of the newly announced MCFL decision, reelection in 1984,’’ who ‘‘must be made to elected—even when the implication is quite which clearly reaffirmed the bright-line understand that failure to pass the ERA will clear—do not constitute the express advo- Buckley approach. Second, as discussed result in powerful campaigns to defeat cacy which runs afoul of the statute. Obvi- 133 below, the Furgatch contextual approach has them’’ As a result of these statements, the ously, the courts are not giving a broad read- not been followed by other courts and has, in FEC claimed that NOW has violated the cor- ing to this statute.’’ 145 fact, been expressly repudiated by some.123 porate prohibition on candidate-related I. FEC V. CHRISTIAN ACTION NETWORK (1995) Third, the broader test was employed in a speech. In FEC v. Christian Action Network,146 a Vir- The NOW court referred to both the Buck- case which involved only a failure to report ginia district court considered advertise- ley test 134 and the Furgatch ‘‘broad test.’’135 an expenditure to the FEC.124 Fourth, the ments, run during the 1992 election cam- However, the NOW court held that there sim- Fourth Circuit has recently demonstrated in paign, which the FEC considered to be ex- ply was no express advocacy under any a careful exegesis of Furgatch that the Ninth press advocacy of the defeat of presidential test,136 tying its holding explicitly to the Circuit did not go to the extreme to which candidate Clinton. Because the ads did not Buckley principles: ‘‘At issues in this case is the FEC has tried to stretch it and that the contain ‘‘explicit words or imagery advocat- political speech, which lies at the core of the actual holding of Furgatch conforms quite ing electoral action,’’ the court held that First Amendment. Discussion of public is- closely to Buckley and MCFL.125 they constituted protected issue advocacy sues and the qualifications of candidates for Thus, the Furgatch test was decided in, and and not electioneering.147 The Court followed public office is integral to a system of gov- only logically applies to, the very narrow the ‘‘strict interpretation’’ of the express ad- ernment in which the people elect their lead- context of disclosure provisions. The vocacy test: ‘‘In the nineteen years since the ers. In order to make informed choices about Furgatch court noted the Supreme ‘‘Court’s Supreme Court’s ruling in Buckley v. Valeo, its leaders, the citizenry needs to hear the directive that, where First Amendment con- the parameters of the ‘express advocacy’ free exchange of ideas. The First Amendment cerns are present, we must construe the standard have been addressed by several fed- affords the broadcast protection to such po- words of the regulatory statute precisely and eral courts in a variety of circumstances. litical expression.’’ 137 narrowly, only as far as is necessary to fur- * * * Acknowledging that political expres- ther the purposes of the Act.’’ 126 The court G. FAUCHER V. FEC (1991) sion, including the discussion of public issues then devoted a full page to discussing the It should have been clear to the FEC that and debate on the qualifications of can- importance of disclosure, the purposes served the Supreme Court meant what it said in didates enjoys extensive First Amendment thereby, and the minimal burden imposed by Buckley about issue advocacy being sac- protection, the vast majority of these courts disclosure.127 Because it concluded that dis- rosanct when the Court reaffirmed the test have adopted a strict interpretation of the closure ‘‘serves an important Congressional in a new context in MCFL. However, the FEC ‘express advocacy’ standard.’’ 148 policy and a very strong First Amendment continued to press ahead with its efforts to On August 2, 1996, the United States Court interest,’’ and, because the burden imposed regulate issue advocacy. Included in its ef- of Appeals for the Fourth Circuit issued a would be ‘‘minimally restrictive,’’ the Ninth fort was the promulgation of new rules regu- brief per curiam opinion affirming the dis- Circuit adopted a totality of the cir- lating voter guides. trict court.149 128 In Faucher v. FEC,138 the First Circuit cumstances test. Therefore, if Furgatch is J. FEC V. GOPAC (1996) good law, it should be limited to its context. struck down the Federal Election Commis- FEC v. GOPAC,150 the FEC’s much Moreover, as mentioned, the Fourth Cir- sion’s regulations of voter guides as being ballyhooed enforcement action against cuit’s careful analysis has demonstrated that beyond the authority of the FEC under 2 GOPAC (which Newt Gingrich served as the core Furgatch holding closely conforms U.S.C. § 441b as interpreted by the Supreme chairman), amply demonstrates the FEC’s to the Buckley and MCFL express advocacy Court in MCFL. The regulation at issue, 11 refusal to recognize the constitutional pro- test and that any more broadly worded lan- C.F.R. § 114.4(b)(5), required that a voter tection afforded issue advocacy by the guage was both dicta and contrary to Su- guide by ‘‘nonpartisan,’’ which the FEC de- bright-line express advocacy test and the preme Court precedent,129 a fact the FEC fined by reference to six factors. These fac- major purpose test. Despite the fact that clearly understood at the time.130 In fact, the tors included whether ‘‘the wording of their GOPAC did not have as its major purpose the Fourth Circuit has recently excoriated the questions presented . . . suggest or favor any election or nomination of candidates for fed- FEC, and awarded attorneys’ fees against it, position on the issues covered’’ and whether eral office, the FEC pushed for a test that for bad faith prosecution in duplicitous reli- ‘‘the voter guide expressed (any) editorial would make an organization a political com- ance on a broad interpretation of Furgatch opinion concerning the issues presented.’’ 139 when the FEC had demonstrated its clear un- The United States District Court for the mittee if it ‘‘engage[s] in ‘partisan politics’ 151 The court rejected derstanding of the true narrowness of the District of Maine struck the regulations or ‘electoral activity.’ ’’ this approach and granted GOPAC summary Furgatch holding in its Brief for Respondent in down for trespassing upon constitutionally judgment because the test proposed was not Opposition to Mr. Furgatch’s petition for a protected issue advocacy and for reaching that of the Supreme Court in .152 writ of certiorari to the U.S. Supreme beyond the authority of the Federal Election Buckley Court.131 The Fourth Circuit’s censure of the Commission under § 441b, which bars cor- K. NEW FEC REGULATIONS (OCTOBER 5, 1995) FEC for its duplicity and dissembling with porate political speech.140 The First Circuit After the Faucher decision in 1991, which regard to Furgatch is discussed at greater affirmed the decision of the District Court,141 struck down FEC regulations prohibiting length below. declaring that ‘‘[t]he first amendment lies at voter guides from expressing a position on an Nevertheless, energized by its success in the heart of our most cherished and pro- issue,153 the FEC needed to revise or delete opposing Supreme Court review of Furgatch tected freedoms. Among those freedoms is its regulation dealing with voter guides. All and preserving the broadly-worded Furgatch the right to engage in issue-oriented politi- that was needed to bring the regulation into dicta, which was useful for expanding FEC cal speech.’’ 142 compliance with the First Amendment was a S10364 CONGRESSIONAL RECORD — SENATE October 6, 1997 small excision in the definition of ‘‘non- guard protected issue advocacy in this arena, guide, than other participating candidates, partisan,’’ so that the factors for what con- and it would afford the FEC great latitude in or substantially more space for re- stituted ‘‘nonpartisan’’ would not include its enforcement.158 sponses.’’176 Voter guides shall not contain 177 whether a question is worded in a way that L. MAINE RIGHT TO LIFE COMMITTEE V. FEC (1966) an ‘‘electioneering message.’’ Finally, the supports the position of a candidate on the The FEC’s new express advocacy definition regulation mandates that a ‘‘voter guide and 154 its accompanying materials shall not score issue covered. took effect on October 5, 1995. On November or rate the candidates’ responses in such a The FEC took from 1991 to late 1995 to pro- 22, 1995, Maine Right to Life (also a plaintiff 155 way as to convey an electioneering mes- mulgate its new rules. When the new rules in the Faucher case) filed a complaint and sage.’’ 178 Thus, to do a voter guide after writ- were published, there was no mere excision motions seeking declaratory and injunctive ten contact with a candidate, the corpora- or minimal editing to fix the First Amend- relief.159 On February 13, 1996, the United ment problem with issue advocacy. Rather, tion had to surrender its constitutionally- States District Court for the District of protected right to engage in issue advocacy the new FEC regulations were an expansive Maine declared the latest regulations of the effort to bypass the First Amendment juris- in voter guides. FEC seeking to define express advocacy 160 to Having been repeatedly frustrated by the prudence of the federal courts. The rules be ‘‘invalid as not authorized by the Federal were a transparent attempt to incorporate courts in its attempt to regulate voter Election Campaigns Act of 1971, as inter- guides as expenditures because of the express the FEC’s interpretation of the Furgatch to- preted by the United States Supreme Court tality of the circumstances test into the FEC advocacy test, the FEC based its new voter in Massachsuetts Citizens for Life, and by the guide regulations on a new ‘‘contribution’’ rules in the hope that the FEC could sell the United States Court of Appeals for the First federal courts on the notion that deference theory. This theory attempted to avoid the Circuit in Faucher, because it extends beyond express advocacy test by labeling179 expendi- should be granted to the agencies interpreta- issue advocacy.’’ 161 The district court struck 156 tures for a voter guide as ‘‘in-kind contribu- tion in federal law in this area. down a definition of ‘‘[e]xpressly advocat- If such deference were forthcoming, the tions’’ to the candidate, which are also pro- ing,’’ 162 which ‘‘comes directly from’’ FEC would have accomplished by rule- hibited by corporations under § 44lb. The Furgatch.163 The district court relied on the making what it had failed in years of litigat- FEC’s hope was that, if an expenditure for a fact that, contrary to the Ninth Circuit’s de- ing enforcement actions to achieve, i.e., im- communication was labeled as an ‘‘in-kind cision in Furgatch, the Supreme Court in posing its broad interpretations of the contribution,’’ then the courts would not re- Buckley and MCFL created a bright-line pro- Furgatch test in place of the Supreme Court’s quire that the communication contain ex- tection of issue advocacy, ‘‘even at the risk bright-line express advocacy test. As shall be press advocacy but merely influence an elec- that it is used to elect or defeat a can- seen, the deference was not forthcoming. tion. Furthermore, this theory took a very didate.’’ 164 The FEC issued its copious new post- expansive view of when an expenditure was On October 18, 1996, the First Circuit issued Faucher rules in two sets in late 1995. The requested by or coordinated with a can- a brief per curiam opinion affirming ‘‘for first set was to take effect on October 5, 1995. didate, which is an essential element to substantially the reasons set forth in the dis- The revision of the FEC voter guide regula- make an expenditure into an ‘‘in-kind con- trict court opinion.’’165 tribution.’’ In both respects, however, the tions necessitated by Faucher four years be- The FEC, however, has obstinately taken fore occurred in a later set of rules to take FEC violated existing court precedents. the position that these regulations are still The FECA made it unlawful for any cor- effect March 13, 1996. in effect in all other jurisdictions than the The October 5 set of rules contained a new poration or union ‘‘to make a contribution First Circuit, even though the action was definition of express advocacy, tracking the or expenditure in connection with any elec- brought under the Administrative Procedure 180 FEC’s broad interpretation of Furgatch: tion’’ The FECA defines ‘‘contribution or Act and the First Circuit held that the FEC ‘‘Expressly advocating means any commu- expenditure’’ to include ‘‘any direct or indi- was without authority to promulgate these rect payment, . . . or gift of money, or serv- nication that— 166 ‘‘(a) uses phrases such as ‘vote for the regulations and, thus, they are void. ices, or anything of value . . . to any President,’ ‘re-elect your Congressman,’ M. NEW FEC REGULATIONS (MARCH 13, 1996) candidate . . . in connection with any elec- 181 ‘support the Democratic nominee,’ ‘cast your After releasing the regulations which were tion.’’ Of course, it was this language that ballot for the Republican challenger for U.S. struck down in Maine Right to Life Committee, the Court in MCFL held must contain ‘‘ex- Senate in Georgia,’ ‘Smith for Congress,’ the FEC next released revised rules setting press advocacy,’’ if an expenditure were to be ‘Bill McKay in 94,’ ‘vote Pro-Life’ or ‘vote forth the FEC’s requirements for ‘‘voter considered an independent expenditure. How- ever, the FEC is shifting from the word ‘‘ex- Pro-Choice’ accompanied by a listing of guides’’ and ‘‘voting records.’’ 167 They be- penditure’’ to the word ‘‘contribution,’’ clearly identified candidates described as came effective on March 13, 1996.168 Under the which encompasses both direct and indirect Pro-Life or Pro-Choice, ‘vote against Old new voter guide regulation,169 the amount of contributions. A direct contribution is made Hickory,’ ‘defeat’ accompanied by a picture contact that a corporation had with a can- by actually giving money to the candidate. didate regarding the voter guide severely af- of one or more candidate(s), or communica- An in-kind contribution occurs when some- fected the content of the voter guide. tions of campaign slogan(s) which in context thing of value (like a mailing list) is given to First, if the corporation had any oral com- can have no other reasonable meaning than the candidate or when a person pays, at the munications with a candidate regarding the to encourage the election or defeat of one or request of the candidate or an agent of his voter guide, the publication of the voter more clearly identified candidate(s), such as campaign, for an expense that the campaign guide was absolutely prohibited. A prohib- posters, bumper stickers, advertisements, itself would otherwise pay (like a billboard) etc. which say ‘Nixon’s the One,’ ‘Carter 76,’ ited oral communication would even include in lieu of a direct contribution to the can- ‘Reagan/Bush’ or ‘Mondale!’; or contacting the candidate to clarify a can- didate. However, Congress did not intend for 170 ‘‘(b) when taken as a whole and with lim- didate’s position on an issue. As a result of ‘‘in-kind contributions’’ to be a broad cat- ited reference to external events, such as the the oral communication, the publication of egory. In adopting the concept of an ‘‘in-kind proximity to the election, could only be in- the voter guide was considered by the FEC to contribution,’’ the Senate Report described terpreted by a reasonable person as contain- be an in-kind contribution to the candidate an ‘‘in-kind contribution’’ as ‘‘the use of an ing advocacy of the election or defeat of one and, thus, a prohibited corporate contribu- individual’s resources to aid a candidate in a or more clearly identified candidate(s) be- tion under § 441b. manner indistinguishable in substance from cause— However, if the corporation had no oral or the direct payment of cash to a can- 171 ‘‘(1) The electoral portion of the commu- written contact with the candidate, the didate.’’182 nication is unmistakable, unambiguous, and corporation retained its right to state a posi- Thus, an ‘‘in-kind contribution’’ has two suggestive of only one meaning; and tion on the issues of the voter guide (a First elements. The first element is the nature of ‘‘(2) Reasonable minds could not differ as Amendment right recognized in the Faucher the expenditure. According to the courts, an to whether it encourages actions to elect or case). Of course, it is very difficult to pre- expenditure for a communication must con- defeat one or more clearly identified can- pare a voter guide without sending a written tain ‘‘express advocacy’’ to be an independ- didate(s) or encourages some other kind of questionnaire to the candidates asking them ent expenditure. The logic of the courts’ action.157’’ to state their positions on the issues, so analysis suggests that this extends to in- While the first part of subsection (a) gen- written questionnaires are the common prac- kind contributions. According to the FEC, erally followed Buckley, specifying explicit tice.172 Because the use of a questionnaire is however, an in-kind contribution may exist and express words of advocacy in the com- so important to an effective voter guide, where there is only issue advocacy. The sec- munication itself, the second part of sub- most organizations would feel compelled to ond element is whether it is made with the section (a) added a contextual factor, relying at least contact the candidate in writing, re- consent or in coordination with the can- on Furgatch. Subsection (b) was wholly pat- sulting in severely limiting their issue advo- didate. Here, the FEC also has a very expan- terned after the FEC’s broad interpretation cacy. sive view of coordination. of Furgatch. Of course, such a definition of If an organization had written contact Ironically, the FEC had previously adopted express advocacy would leave the speaker with the candidate,173 the content of the the correct position that express advocacy is uncertain whether the FEC would find a voter guide was severely restricted.174 First, necessary in order to transform a protected communication to constitute express advo- ‘‘all of the candidates for a particular seat or expenditure into a prohibited contribution. cacy, consequently chilling protected speech. office shall be provided an equal opportunity In Orloski v. Federal Election Commission,183 a Such a definition would abandon the bright- to respond . . . .’’ 175 Second, ‘‘no candidate political opponent of an incumbent Con- line test Buckley said was essential to safe- may receive greater prominence in the voter gressman challenged the FEC’s failure to October 6, 1997 CONGRESSIONAL RECORD — SENATE S10365 find ‘‘reason to believe’’ that the Act had also ‘‘issue advocacy.’’ As the Court stated, promote a candidate in a U.S. senatorial been violated. The case concerned a senior ‘‘[t]he new regulations go far beyond the lan- race.199 The case arose as a result of adver- citizens’ picnic at which the Congressman guage of section 441(b) as interpreted by tisements purchased in April 1986 by the Fed- spoke and to which several corporations had MCFL. Under the provisions for voter guides, eral Campaign Committee of the Colorado provided food and services such as transpor- the FEC test is not whether a corporation is Republican Party. The radio advertisements tation. engaging in issue advocacy ‘on behalf of a attacked Democrat Timothy Wirth, who was At issue was the FEC’s interpretation of candidate’ (a test which MCFL would sup- then a U.S. Congressman and the most likely what constituted a corporate contribution port), but whether it has had any ’contact’ Democrat candidate for the open Senate under § 441b(a). The FEC had previously ‘‘in- with the candidate. The regulations permit seat.200 He had announced in January 1986 terpreted the Act to mean the corporate unrestricted issue advocacy only if there is that he would run for the Senate.201 At the funding of events sponsored by congressmen no contact, oral or written in connection time of the advertisements, the Republican who are candidates for reelection is not pro- with a voter guide. Any oral contact con- Party had not chosen its nominee from hibited by § 441(b)(a) if those events are non- cerning the content of a voter guide—ques- among the three persons competing for the political.’’184 In order to determine whether tions to clarify a candidate’s position for ex- nomination.202 an event is non-political, the FEC adopted ample—results in outright prohibition of The record revealed how the expenditure the following test: ‘‘An event is non-political corporate issue advocacy through use of the for the advertisements was made. The GOP if (1) there is an absence of any communica- guide. Even written contact with candidates state chairman arranged for the script on his tion expressly advocating the nomination or results in severe constraints on issue advo- own initiative.203 He approved it without election of the congressman appearing or the cacy otherwise entitled to broad First input from others.204 In sum, he did not actu- defeat of any other candidate, and (2) there Amendment protection under the teachings ally coordinate the expenditure with any is no solicition, making, or acceptance of a of Buckley and MCFL.’’ 193 candidate. It was what normally would be campaign contribution for the congressman Also under the ostensible statutory au- considered an independent expenditure. in connection with the event.’’ 185 thority of 2 U.S.C. § 441(b), the FEC promul- However, the FEC argued that, because of Because the FEC found that there was no gated 11 C.F.R. § 114.4(c)(4) which purported the relationship between a party and its can- express advocacy at the picnic in question, it to govern corporate preparation and dis- didates, ‘‘coordination with candidates is found that the event was ‘‘non-political’’ tribution of the ‘‘voting records’’ of Members presumed,’’ 205 even though there was factu- and, thus, that it did not entail a violation of Congress to the general public. That regu- ally none in this case.206 The lead opinion of of the corporate contribution prohibition of lation provided that ‘‘the decision on con- Justice Breyer, joined by Justices O’Connor § 441b. As the Orloski court explained: ‘‘the tent and the distribution of voting records and Souter, rejected this presumed coordina- mere fact that corporate donations were shall not be coordinated with any candidate, tion approach, declaring that, because ‘‘the made with the consent of the candidate does group of candidates or political party.’’ record shows no actual coordination as a not mean that a ‘contribution’ within the The district court agreed with Plaintiffs’ matter of fact,’’ 207 ‘‘we therefore treat the meaning of the Act has been made. Under contention that the ‘‘voting record’’ regula- expenditure, for constitutional purposes, as the Act this type of ‘donation’ is only a con- tion also impermissibly restricted issue ad- an ‘independent’ expenditure, not an indirect tribution if it first qualifies as an ‘expendi- vocacy. Noting that the regulation provided campaign contribution.’’ 208 This rejection of ture’ and, under the FEC’s interpretation, that the decision on ‘‘content’’ could not be presumed coordination in the context of ex- such a donation is not an expenditure unless ‘‘coordinated’’ with a candidate, the Court penditures by a political party to attack an someone at the funded event expressly advocates asked: ‘‘Does that prohibit discussion with opposing candidate for office makes it highly the reelection of the incumbent or the defeat of the candidate of what a particular vote unlikely that a presumption of coordination an opponent . . .’’186 meant and a summary of the outcome in the will be permitted in situations where there is In its new regulations, however, the FEC published voting record? If there are three less basis for a presumption. Coordination now sought to repudiate its former, reason- apparently inconsistent votes and the MRLC will have to be actual before an expenditure able position that corporate expenditures are asks the candidate for a explanation in the will be considered a contribution.209 not political contributions which can be pro- publication, is that prohibited coordination Because Justices Breyer, O’Connor, and hibited under § 441(b) unless they involve ex- of a decision on content? These are exactly Souter rejected the notion of presumed co- press advocacy. The new regulations gov- the types of issue advocacy undertaken by ordination, they also rejected the notion erned the ‘‘electioneering message’’ of voter the MRLC and, as I understand the FEC’s that the expenditures at issue were actually guides on the porported authority derived counsel at oral argument, such activities are contributions. Therefore, they decided it from converting expenditures for voter indeed prohibited by the new regulations.’’ 194 would be prudential not to reach the issue of guides into contributions. Because the district court found that both whether a cap on coordinated expenditures The new regulations also adopted an ex- regulations restricted issue advocacy, not by a political party is constitutional, as pansive view of what constitutes ‘‘coordina- just express advocacy, it held that they were urged by the Colorado Republican Party. tion.’’ The FEC apparently has two theories: invalid under Faucher, MCFL and Buckley: However, an opinion by Justice Kennedy, (1) the contact coordination theory, and (2) ‘‘It is equally clear after Buckley and MCFL joined by Chief Justice Rehnquist and Jus- the presumed coordination theory.187 The that corporate expenditures in connection tice Scalia, opined that the party contribu- contact coordination theory was employed in with a federal election or primary cannot tion limit to candidates was unconstitu- the new voter guide regulations. As the constitutionally be limited except when they tional on its face, but concurred in a judg- structure of the voter guide regulation made are devoted to express advocacy of the elec- ment vacating the court of appeals decision clear, the FEC viewed any contact between tion or defeat of a particular candidate or and remanding the case,210 as did Justice the corporation publishing the voter guide candidates.’’ 195 Thomas.211 and a candidate to constitute coordination of The FEC has appealed the decision to the From the Colorado Republican case, it the voter guide and the greater the contact First Circuit.196 seems clear that any theory that presumed the greater the taint. Thus, oral communica- O. COLORADO REPUBLICAN FEDERAL CAMPAIGN coordination can convert independent ex- tions resulted in an absolute prohibition on COMMITTEE V. FEC penditures into contributions must fail. Only publishing a voter guide; written commu- actual coordination will achieve such a re- While there has been a great deal of ongo- nication forfeited the corporation’s right to sult. Of course, this is also true where a ing litigation in state and federal courts over engage in issue advocacy in their voter voter guide merely contains issue advocacy. election laws, the 1996 case of Colorado Re- guide. publican Federal Campaign Committee v. FEC v. Christian Action Network N. CLIFTON V. FEC (1996) FEC 197 is significant as the most recent word After the Fourth Circuit affirmed the dis- In response to these newly-issued FEC reg- from the Supreme Court on election law is- trict court’s dismissal of FEC charges in FEC ulations restricting voter guides, Maine sues. The case revealed steadfast support on v. Christian Action Network,212 the Christian Right to Life Committee 188 again filed suit the Court for protecting First Amendment Action Network filed a petition for attor- under the Administrative Procedure Act to rights in the election law context. neys’ fees and costs under the Equal Access have the regulations declared beyond the au- Significantly, the case completely under- to Justice Act, which permits fee awards for thority of the FEC under 2 U.S.C. § 441(b), as cut the FEC’s presumed coordination theory. enforcement actions that are not ‘‘substan- construed by the Supreme Court in MCFL.189 Colorado Republican did not involve § 441(b) tially justified.’’ 213 The Fourth Circuit deter- The case, Clifton v. FEC,190 challenged the (barring corporate campaign expenditures mined that the FEC’s enforcement in reli- regulations,191 which ‘‘restrict(ed) contact or and contributions), but its rejection of the ance on its broad interpretation of Furgatch coordination between a corporation and a presumed coordination theory is a clearly was not ‘‘substantially justified,’’ but was in candidate when the corporation publishes transferable concept relevant to the FEC’s ‘‘bad faith.’’ 214 candidate voting records or voter guides.’’ 192 efforts to regulate corporate political speech The Fourth Circuit cataloged the reasons On May 20, 1996, the district court granted under § 441(b).198 Moreover, the opinions in why the express advocacy test, as set forth Plaintiffs’ request for a declaration that the the case revealed strong support for the ex- in Buckley and MCFL, was so clear that fail- regulations were void as beyond the statu- press advocacy test in this context as well. ure to follow it constituted bad faith.215 The tory authority of the FEC. The district court The case involved FEC allegations that the court focused especially on the Furgatch de- found that the voter guide regulation re- Colorado Republican Party had exceeded cision, on which the FEC had based its au- stricted not only ‘‘express advocacy’’ but FECA limits on what a party could spend to thority to prosecute the Christian Action S10366 CONGRESSIONAL RECORD — SENATE October 6, 1997 Network.216 After carefully analyzing marized the clarity of the precedent and the Eighth Circuit held that a Minnesota state Furgatch, the Fourth Circuit summarized the danger of FEC’s overreaching as follows: statute that narrowed the MCFL exemption holding of that case: ‘‘Indeed, the simple ‘‘[T]he Supreme Court has unambiguously to such an extent that it did not apply to holding of Furgatch was that, in those in- held that the First Amendment forbids the MCCL was unconstitutional. This case, stances where political communications do regulation of our political speech under such therefore, established a de minimis test with include an explicit directive to voters to indeterminate standards. ‘Explicit words of respect to MCFL-type organizations which take some course of action, but that course advocacy of election or defeat of a can- receive some minimal corporate contribu- of action is unclear, ‘context’—including the didate,’ ‘express words of advocacy,’ the tions. timing of the communication in relation to Court has held, are the constitutional mini- Subsequent to Day, the FEC promulgated the events of the day—may be considered in ma. To allow the government’s power to be regulations at 11 C.F.R. § 114.10, purporting determining whether the action urged is the brought to bear on less, would effectively be to define the circumstances under which the election or defeat of a particular candidate to dispossess corporate citizens of their fun- MCFL exemption is available to nonprofit for public office.’’ 217 damental right to engage in the very kind of ideological corporations under the FECA. In The fourth Circuit then pointed out that political issue advocacy the First Amend- it’s ‘‘Explanation and Justification’’ for the the FEC had fully understood that explicit ment was intended to protect—as this case regulation, the FEC explicitly admitted that words expressly advocating the election or well confirms.’’223 its regulation was in direct conflict with Day defeat of a clearly identified candidate were In summary, as this section has shown, v. Holahan: ‘‘In that case, the Eighth Circuit essential to ‘‘express advocacy’’ when it op- there has been a long and relentless effort by decided that a Minnesota statute that close- posed Supreme Court review of the Furgatch the FEC to close what it has perceived to be ly tracked the Supreme Court’s three essen- case: a loophole with respect to issue advocacy— tial features was unconstitutional as applied ‘‘That the commission knows well the the First Amendment. The Supreme Court’s to a Minnesota nonprofit corporation. The Court’s holdings in Buckley and MCFL is fur- express advocacy test and major purpose test Commission believes the Eighth Circuit’s de- ther confirmed by the agency’s subsequent remain as the twin bulwarks against this en- cision, which is controlling law in only one action in Furgatch. . . . Because Furgatch, de- croachment of liberty. circuit, is contrary to the plain language used spite its narrow holding, does include broad IV. OTHER PROTECTION FOR FREE POLITICAL by the Supreme Court in MCFL, and therefore dicta which can be read (or misread) to sup- EXPRESSION is of limited authority.’’ 229 port the FEC’s expansive view of its author- In addition to its zealous safeguarding of Thus, the FEC promulgated 11 C.F.R. ity, the agency vigorously opposed certiorari issue advocacy in the election context, the § 114.10 despite its recognition that the regu- in the case. United States Supreme Court has provided lations would directly violate the Eighth ‘‘Wishing to have the opinion preserved in- safeguards for other forms of speech related Circuit’s holding in Day. tact, the Commission in its submissions to political matters. The seven key protec- The FEC’s regulations disallowed an ex- there, in contrast to its submissions before tions have to do with (1) MCFL-type organi- emption unless, inter alia, each of the fol- this court, quoted Buckley as ‘requir[ing] zations, (2) members, (3) anonymous lit- lowing criteria were met: (1) the corpora- ‘‘explicit words of advocacy of election or de- erature, (4) caps on contributions and ex- tion’s ‘‘only express purpose is the pro- feat of a candidate.’’’ The Commission even 230 penditures, (5) political committees, (6) the motion of political ideas,’’ (2) the corpora- took the position that Furgatch did . . . inter- burden of proof, and (7) prior restraint of tion ‘‘cannot engage in business activi- pret the Federal election Campaign Act’s 231 speech. These topics will be dealt with in ties,’’ (3) the corporation has ‘‘[n]o persons corporate disclosure statutes as ‘narrowly turn. who are offered or who receive any benefit limited to communications containing lan- that is a disincentive for them to disasso- A. MCFL-TYPE ORGANIZATIONS guage ‘‘susceptible to no other reasonable in- ciate themselves with the corporation on the 224 terpretation but as an exhortation to vote’’ ’ In FEC v. Masschusetts Citizens for Life, basis of a political issue.’’ 232 and (4) the cor- . . . . the Supreme Court did two important poration can ‘‘demonstrate through account- ‘‘Moreover, the FEC argued to the Su- things: (1) it reasserted the bright-line ex- ing records’’ that it ‘‘does not . . . accept do- preme Court that Furgatch was fully consist- press advocacy test for protecting issue ad- nations or anything of value from business ent with Buckley and MCFL precisely be- vocacy, and (2) it also created an exemption corporations’’ or that it ‘‘has a written pol- cause the opinion focused on the specific lan- to the ban on corporate express advocacy icy against accepting donations from busi- guage of Furgatch’s advertisement and con- found in 2 U.S.C. § 441b for nonprofit, ness corporations. . . .’’ 233 cluded that express advocacy existed only nonstock, ideological corporations. Other The FEC regulations further required 234 because the advertisement ‘explicitly ex- cases have refined this test for MCFL-type that a corporation which is not a political horted’ voters to defeat then-President organizations. As would be expected, the committee file a certification that it com- Carter. Thus, there is no doubt the Commis- FEC has attempted to overrule the case law plied with the provisions of the regula- sion understands that its position that no with new regulations, which have promptly tions 235 and, therefore, was eligible for an ex- words of advocacy are required in order to been declared unconstitutional. These devel- emption from the prohibition on corporate support its jurisdiction runs directly counter opments will be considered in turn. expenditures. The regulations also required to Supreme Court precedent.’’ 218 Section 441b of the Federal Election Cam- that ‘‘[w]henever a qualified nonprofit cor- The fourth Circuit took the FEC to task paign Act of 1971 prohibits corporations from poration solicits donations, the solicitation for ‘‘dissembling before th[e] court’’ for making ‘‘expenditures’’ in connection with a shall inform potential donors that their do- 225 ‘‘quot[ing] the very sentence from page 80 of federal election. The United States Su- nations may be used for political purposes, Buckley in which the Court uses the phrase preme Court, however, has limited the scope such as supporting or opposing can- of § 441b’s corporate expenditure prohibition. ‘express advocacy,’’’ but leaving out ‘‘the didates.’’ 236 sentence’s footnote 108’’ (which defined ex- In MCFL, the Supreme Court held that the The FEC’s new regulations were clearly press advocacy ‘‘to mean ‘express words of prohibition on corporate expenditures could unconstitutional. They constituted another advocacy,’’) without ‘‘any reference, by par- not constitutionally be applied to certain transparent effort by the FEC to expand its enthetical or otherwise to the fact that foot- nonprofit ideological membership corpora- power and to limit political speech, as set 219 note 108 appears in that sentence. tions because they did not pose a threat of out below. The Fourth Circuit concluded that the corruption to the political system.226 FEC had acted in bad faith by bringing an Specifically, the ‘‘MCFL exemption’’ from 1. MCFL’s Test for an Exemption from § 441b enforcement action against the Christian Ac- the prohibition on corporate political speech Must Be Read in the Context of That Case’s tion network in the face of absolutely clear applies to those nonprofit corporations Protection of Free Speech precedent on the express advocacy test: ‘‘In which were established to promote political The Supreme Court’s decision in MCFL is the face of the unequivocal Supreme Court ideas, have no shareholders or members with essentially a speech-protective holding. The and other authority discussed, an argument economic disincentives to disassociate with Court’s fashioning of the ‘‘MCFL exemption’’ such as that made by the FEC in this case, the corporation if they disagree with its po- was rooted in the very principles of public that ‘no words of advocacy are necessary to sition on an issue, were not established by a policy and governance which animate the expressly advocate the election of a can- business corporation or labor union, and do First Amendment, and which bear brief reit- didate,’ simply cannot be advanced in good not act as ‘’conduits’’ for funneling money eration. The Court stated that ‘‘[f]reedom of faith (as the disingenuousness in the FEC’s from such organizations into the political speech plays a fundamental role in a democ- submissions attests), much less with ‘sub- marketplace.227 racy. . . .’’ 237 As the Court had previously stantial justification.’’’ 220 In Day v. Holahan,228 the Eighth Circuit stated in Buckley: ‘‘Discussion of public is- The Fourth Circuit further concluded that, held that the MCFL exemption applied to sues and debate on the qualifications of can- even if the precedent were not unequivocally Minnesota Citizens Concerned for Life didates are integral to the operation of the clear, the court ‘‘would bridle at the power (MCCL), despite the face that the organiza- system of government established by our over political speech that would reside in the tion received some corporate contributions. Constitution. The First Amendment affords FEC under’’ the FEC’s interpretation of the The court held that MCCL was the type of the broadest protection to such political ex- express advocacy test.221 The FEC’s interpre- corporation which did not pose a threat of pression in order to assure [the] unfettered tation, said the court boils down to ‘‘an ar- corruption to the political marketplace and, interchange of ideas for the bringing about gument that the FEC will know ‘express ad- therefore, under the Constitution, was enti- of political and social changes desired by the vocacy’ when it sees it.’’ 222 The court sum- tled to the MCFL exemption. As a result, the people.’’ 238 October 6, 1997 CONGRESSIONAL RECORD — SENATE S10367 Freedom of speech, particularly political The import of the above discussion is that pressly described’’ as donations for political speech, is thus necessary to the functioning the specific legal rules which the Supreme purposes, as well as any ‘‘advertising or pro- of a representative democracy. As such, it is Court has developed (such as the MCFL ex- motional activity which results in income to also ‘‘the matrix, the indispensable condition emption) have not been fashioned in a vacu- the corporation.’’ 255 The Supreme Court, of every other form of freedom.’’ 239 That is, um. Rather, they have a discernible origin in however, was concerned solely with the im- because freedom of speech protects our very the public policies which inform the First pact on the political marketplace caused by form of government, it necessarily plays a Amendment. Those policies, in turn, are de- the use of funds which are unrelated to the pivotal and essential role in protecting the terminative of the rationales upon which the corporation’s political ideas.256 other freedoms which are safeguarded by the specific holdings are based. The MCFL Court recognized that § 441b Constitution. Finally, as the MCFL Court However, in fashioning its ‘‘MCFL exemp- took account of this distinction by allowing pointed out, ‘‘First Amendment speech is not tion’’ regulations, the FEC read MCFL as if corporations to make political expenditures necessarily limited to such an instrumental those policies and rationales did not give through a separate segregated fund or PAC. role.’’ 240 In other words, the First Amend- meaning to its holdings. The FEC, therefore, Expenditures by a PAC are permitted pre- ment protects speech not only because it fos- justified its regulation almost completely by cisely because they come from voluntary ters free government, but because it fosters reference to the eight sentences toward the contributions and, therefore, reflect political the development of the individual by pro- end of the MCFL opinion which contain a support: ‘‘the money collected is that in- tecting freedom of thought and conscience. summary of the Court’s specific holding,247 tended by those who contribute to be used Quoting Justice Brandeis, the Court stated: while largely ignoring the lengthy discussion for political purposes and not money di- ‘‘Those who won our independence believed of the rationale for the holding which com- verted from another source.’’ 257 The FEC that the final end of the State was to make prises the previous eight pages. However, it failed to recognize that, just as PACs do not men free to develop their faculties; and that is rudimentary that ‘‘black letter law’’ can- pose the problem sought to be addressed by in its government the deliberative forces not be understood without reference to the § 441b, i.e., ‘‘that substantial general purpose should prevail over the arbitrary. They val- judicial reasoning which undergirds it. treasuries should not be diverted to political ued liberty both as an end and as a means.’’ 241 In sum, the FEC sought a ‘‘modest diminu- purposes,’’ 258 neither do ideological corpora- Thus, free speech plays a vital role in pro- tion’’ in speech based on ‘‘government ends’’ tions such as MCFL. tecting democracy itself, thereby making other than the protection of free speech. As the MCFL Court explained, ‘‘the power possible the other freedoms we enjoy and al- However, the FEC has been unable to meet of a corporation may be no reflection of the lowing people to develop their faculties to its heavy burden of demonstrating that its power of its ideas.’’ 259 Unlike business cor- the fullest extent possible. asserted interests are compelling and that porations, however, the resources of which Given the centrality of free speech, it is its speech restriction is narrowly tailored. ‘‘are not an indication of popular support,’’ not surprising that the Supreme Court has the resources available to corporations such 2. The Scope of Each of the MCFL Features been extremely solicitous to protect it. The as MCFL exist precisely because of their po- Was Determined by the Rationales Which Un- MCFL Court explained that, because free litical support, i.e., the fact that the ideas derlaid It speech is fundamental, ‘‘we must be as vigi- that they propound are considered to be im- lant against the modest diminution of speech The Court in MCFL identified ‘‘three fea- portant to those who, for example, patronize as we are against the mode3st diminution of tures essential’’ to its holding that MCFL its bake sales. speech as we are against its sweeping restric- could not be prohibited from independent po- The Supreme Court could not have been tion.’’ 242 The Court’s solicitude for free litical spending: ‘‘First, it was formed for the clearer about its rationale in this regard: speech, in turn, caused it to fashion the fun- express purpose of promoting political ideas, ‘‘[r]egulation of corporate political activity damental principle which both mandates and and cannot engage in business activities. Sec- thus has reflected concern not about the use explains the Court’s holding in MCFL: ond, it has no shareholders or other persons of the corporate form per se, but about the un- ‘‘Where at all possible, government must affiliated so as to have a claim on its assets fair deployment of wealth for political purposes. curtail speech only to the degree necessary to or earnings. Third, MCFL was not estab- Groups such as MCFL do not pose that dan- meet the particular problem at hand, and lished by a business corporation or labor ger of corruption.’’ 260 must avoid infringing on speech that does not union, and it is its policy not to accept con- In its ‘‘Explanation and Justification’’ for 248 pose the danger that has prompted regula- tributions from such entities.’’ the challenged regulation, the FEC dem- As will be seen, the FEC took these ‘‘essen- tion.’’ 243 onstrated its complete misunderstanding of The quoted statement is, in reality, a re- tial features’’ literally and provided in its the above-quoted language: ‘‘[i]n order to formulation of the ‘‘strict scrutiny’’ test regulations that, if a corporation did not pose no such threat, a corporation must be (i.e., speech regulation must be narrowly tai- have these identical features, it was denied free from resources obtained in the economic lored to serve a compelling state interest) the ‘‘MCFL exemption.’’ As will be dem- marketplace. Only those corporations that which the Supreme Court applies in all cases onstrated, however, each of these features cannot engage in business activities are free where a regulation is challenged as a con- was explicitly tied to a rationale which both from these kinds of resources.’’ 261 However, tent-based restriction on speech.244 In es- explained the feature and defined its scope. as demonstrated, the Court’s rationale in sence, the Court was saying that, because as a. The first MCFL feature assured that political this regard did not constitute a condemna- a Nation we value free speech so highly, our resources reflected political support tion of the political use of ‘‘resources ob- government is permitted to regulate it only The first feature which mandated an ex- tained in the economic marketplace’’; rath- where the government’s interest is compelling emption from § 441(b) was that the corpora- er, it was only concerned with the diversion and only to the extent absolutely necessary to tion in question was ‘‘formed for the express of funds acquired in the economic market- achieve that interest. purpose of promoting political ideas, and place to the political marketplace where The burden of demonstrating the existence cannot engage in business activities.’’ 249 As those funds were acquired in a manner which of such an interest is squarely on the govern- the Supreme Court stated, this feature ‘‘en- was unrelated to the political purposes of the ment. As the Supreme Court explained in sures that political resources reflect politi- corporation. First National Bank v. Bellotti, ‘‘where, as cal support.’’ 250 The underlying reason for Groups such as MCFL, however, do not here, as a prohibition is directed at speech this concern was ‘‘to protect the integrity of pose a threat of the danger that funds unre- itself, and the speech is intimately related to the marketplace of political ideas’’ from lated to the corporation’s political goals will the process of governing, the State may pre- ‘‘the corrosive influence of concentrated cor- be funneled into the political marketplace of vail only upon showing a subordinating in- porate wealth.’’ 251 ideas. This is so because ‘‘[t]he resources it terest which is compelling and the burden is In fashioning this feature, the Court was has available are not a function of its suc- on the Government to show the existence of concerned that ‘‘[d]irect corporate spending cess in the economic marketplace, but its such an interest. Even then, the State must on political activity raises the prospect that popularity in the political marketplace.’’ 262 employ means closely drawn to avoid unnec- resources amassed in the economic market- Contributors give money to such groups pre- essary abridgement. . . .’’ 245 place may be used to provide an unfair ad- cisely because they wish to further the The MCFL Court pointed out the danger vantage in the political marketplace.’’ 252 As groups’ political goals, i.e., ‘‘because they re- which looms whenever speech is sought to be the Court later clarified in Austin v. Michi- gard such a contribution as a more effective regulated, i.e., the incremental loss of free- gan Chamber of Commerce, the danger was not means of advocacy than spending the money dom which may begin when we first allow simply the infusion of money into the politi- under their own personal direction.’’ 263 Like- speech to be restricted in pursuit of other cal marketplace, but infusion of funds wise, a person who engages in ‘‘business ac- governmental goals. ‘‘Our pursuit of other amassed in the economic marketplace which tivities’’ with such an organization does so governmental ends, however, may tempt us were unrelated to support for the corpora- with the same underlying motivation. He to accept in small increments a loss that tion’s political ideas.253 does not spend money at a bake sale or a would be unthinkable if inflicted all at However, as the FEC’s broad prohibition of flower sale primarily to get cookies or car- once.’’ Thus, courts should, wherever pos- ‘‘business activities’’ 254 demonstrated, the nations. Rather, he does so to benefit the or- sible, avoid the slippery slope of speech regu- FEC misconstrued this rationale as prohibit- ganization and to further its political goals, lation altogether—for although a particular ing any business income by the corporation. which he realizes are better served by con- restriction on speech may appear to be The FEC regulation reached ‘‘any provision certed action than by his individual efforts. ‘‘modest,’’ no restriction of speech is ever of goods or services which results in income Thus, the money which changes hands is di- ‘‘minor.’’ to the corporation’’ and which is not ‘‘ex- rectly related to the political purposes of the S10368 CONGRESSIONAL RECORD — SENATE October 6, 1997 organization and does not come within the duits for the type of direct spending that cre- exemption, and instead looked to the par- permissible rationale for restricting all cor- ates a threat to the political market- ticular characteristics of the nonprofit as porate expenditures. place.’’273 they relate to the purpose of § 441(b) and the The FEC, however, ignored the distinction In its regulation, however, the FEC not members’ First Amendment rights. Thus, between business activities which are unre- only required that corporations be in fact Day casts serious doubt on § 114.10(c)(1)’s re- lated to political ideas and those which are independent of the influence of business cor- quirement that a qualified nonprofit’s ‘only’ related to political ideas in their regula- porations, but also that they either have a express purpose be the expression of political tions. Through its denial of the exemption to policy against accepting any donations from ideas and § 114.10(c)(3)(ii)[’s] requirement any corporation which engages in any ‘‘busi- business corporations or do not accept, ei- that a qualified nonprofit not have members ness activities’’ (so broadly defined as to in- ther directly or indirectly, donations from which receive ‘any’ benefit which is disincen- clude such insensibly politically-motivated business corporation. As the Second Circuit tive to associate themselves from the cor- transactions as purchases made at bake sales recognized in FEC v. Survival Education Fund poration.’’ 282 and sales of an ad in a newsletter), the FEC (SEC),274 however, the rationale of this fea- The FEC appealed the decision to the had extended its regulation to ‘‘speech that ture does not depend on whether a corpora- Eighth Circuit, which decided Day, appar- does not pose the danger that has prompted tion has a policy against accepting corporate ently on the hope that the circuit would regulation.’’ 264 donations, but upon whether it is, in fact, change its mind about its understanding of b. The Second MCFL Feature Assured That independent of the influence of corporate do- the MCFL exemption.283 On May 7, 1977, the Members Would Not Have a Disincentive to nations. That Court explained: Eighth Circuit affirmed the decision of the Disassociate With a Corporation With Which ‘‘To be sure, an express policy against ac- district court.284 They Disagree cepting corporate or union contributions is B. MEMBERS The second MCFL feature was that a cor- clear proof that no such danger exists, as the Another protection for speech about politi- poration ‘‘has no shareholders or others asso- Court in MCFL duly found. But a nonprofit cal matters by organizations is the First ciated so as to have a claim on its assets or political advocacy corporation, which in fact Amendment guarantee that organizations earnings.’’ 265 Like the other MCFL features, receives no significant funding from unions may communicate with their members this one cannot be understood apart from the or business corporations, does not surrender unencumbered by governmental regulation. rationale for its formulation. The Supreme its First Amendment freedoms for want of This protection was recognized in 1948 by the Court explained that the absence of such per- such a policy. Supreme Court in United States v. Congress of ‘‘Under MCFL, a nonprofit political advo- sons ‘‘ensures that persons connected with Industrial Organizations (CIO).285 As noted cacy corporation having no shareholders or the organization will have no disincentive earlier in this article, this case involved a members with financial disincentives to dis- for disassociating with it if they disagree prohibition on ‘‘any expenditure in connec- 266 associate from the corporation if they dis- with its political activity.’’ In developing tion with a federal election’’ by a corpora- agree with its views is exempt from § 441b as this feature, the Supreme Court was con- tion or labor organization.286 Charges were long as it is independent in fact from signifi- cerned with situations which may arise with brought against the CIO for publishing in its cant business or labor influence. The exist- respect to the ordinary business corporation membership newsletter a statement urging ence of a policy against accepting contribu- or labor union. It is conceivable that people members to vote for a particular federal can- tions from business corporations or unions is who are associated with such entities would didate.287 The Court cited several authorities relevant to, but not dispositive of, the issue not want their dues or investment funds used about the sacrosanct nature of free expres- of independence.’’275 for political purposes. As the Court ex- sion and dismissed the indictment, stating In addition, it is not necessary that the plained: ‘‘such persons . . . contribute in- that: ‘‘If § 313 were construed to prohibit the corporation receives no business contribu- vestment funds or union dues for economic publication, by corporations and unions in tions. As the court in Day v. Holahan found, gain, and do not necessarily authorize the the regular course of conducting their af- ‘‘the key issue here is the amount of for-prof- use of their money for political ends. Fur- fairs, of periodicals advising their members, it corporate funding a nonprofit receives, thermore, because such individuals depend stockholders or customers of danger or ad- rather than the establishment of a policy not on the organization for income or for a job it vantage to their interests from the adoption to accept significant amounts.’’276 is not enough to tell them that any unhappi- of measures, or the election to office of men Thus, the Eight Circuit in Day recognized, ness with the use of their money can be re- espousing such measures, the gravest doubt like the Second Circuit in SEF, that ‘‘the dressed simply by leaving the corporation or would arise in our minds as to its constitu- factual findings of MCFL [did not] translate the union.’’ 267 tionality.’’ 288 into absolutes in legal application.’’277 The Based on this reasoning, the MCFL Court In 1982, the Supreme Court revisited the scope of each of these features can be under- concluded that, although it was reasonable subject in FEC v. National Right to Work Com- stood only by understanding the particular for Congress to require the establishment of mittee (NRWC).289 This case involved solicita- evil that the Supreme Court in MCFL sought separate segregated funds to which such per- tion by NRWC to ‘‘some 267,000 persons for to avoid. For that reason, governmental reg- sons could make voluntary contributions, contributions to a separate segregated fund ulation is permissible only to the extent ‘‘[t]his rationale for regulations is not com- [a PAC] that it sponsored.’’ 290 NRWC was a ‘‘necessary to meet the particular problem pelling with respect to independent expendi- nonstock corporation.291 The issue was 268 at hand,’’278 However, the FEC overstepped tures by [MCFL].’’ This is because, as ex- whether NRWC had limited its solicitations the zone of permissible regulation and has plained above, MCFL had no stockholders or to ‘‘members’’ within the meaning of 2 sought to regulate speech which is protected members who could share in the corpora- U.S.C. §§ 441b(b)(4)(A) and (C), which provide by a proper understanding of the purposes tion’s assets or earnings. that a nonstock corporation may solicit con- and rationales which account for the MCFL In fashioning its new regulation, however, tributions to its PAC only from ‘‘members’’ exemption. the FEC again failed to take account of the of the corporation.292 The organic documents underlying rationale and how it affects the 3. Minnesota Citizens Concerned for Life v. FEC of NRWC stated that it would have no mem- scope of the feature. In denying the exemp- Held the FEC’s New MCFL Regulations Un- bers.293 Although NRWC had mailed millions tion to corporations who offer any benefit, lawful of letters promoting its opposition to com- 269 no matter how de minimis to its members, A challenge, under the Administrative Pro- pulsory unionism and soliciting donations, the FEC failed to recognize that the primary cedures Act, to the new FEC regulations of none mentioned membership.294 When NRWC purpose of the feature was to protect those MCFL-type organizations was brought in the created its PAC (because corporations could who ‘‘depend on the organization for income Eighth Circuit case of Minnesota Citizens not contribute to candidates under 2 U.S.C. or for a job,’’ that is, those who may have a Concerned for Life v. FEC.279 The district § 441(b)), it solicited persons who had made 270 ‘‘claim on its assets or earnings.’’ Thus, as court declared the new regulations void as donations to NRWC. Upon examining the with the first MCFL feature, the scope of beyond the statutory authority of the FEC brief legislative history of § 441(b), the Su- this feature can only be understood by ref- as construed by the federal courts. preme Court decided that the congressional erence to the rationale for its creation. The court based its rejection of the regula- intent was ‘‘that some relatively enduring c. The Third MCFL Feature Assured That Ex- tions on the ‘‘functional interpretation’’ of and independently significant financial or empt Corporations Did Not Act as Conduits Day rather than the ‘‘formal interpretation’’ organizational attachment is required to be for the Type of Spending That Created a of the FEC.280 In examining the regulations, a ‘member’ under § 441b(b)(4)(C).’’ 295 As a con- Threat to the Political Marketplace the District Court specifically found that the sequence, the Court held that NRWC did not The third MCFL feature concerned the fact ‘‘prohibition against any ‘business activi- have members ‘‘under any reasonable inter- that ‘‘NCFL was not established by a busi- ties’ ’’ and the ‘‘prohibition against the re- pretation of the statute.’’ 296 The Court reit- ness corporation or labor union, and it was ceipt of corporate donations [are], unques- erated the high constitutional protection ac- its policy not to accept contributions from tionably, too restrictive.’’ 281 corded associational rights,297 holding that, such entities.’’271 In Austin, the Court de- In addition, the district court also implied in this case, ‘‘the associational rights as- scribed this feature as ensuring ‘‘the organi- that the third and fourth provisions were of serted by respondents may be and are zation’s independence from the influence of questionable validity under the approach overborne by the interests Congress has business corporations.’’272 The rationale for taken by the Eight Circuit in Day. As the sought to protect in enacting § 441(b).’’ 298 this feature is that such independence ‘‘pre- district court states, ‘‘Day rejected a ‘bright- Not content with the statutory definition vents such corporations from serving as con- line’ approach to implementing the MCFL of ‘‘member,’’ with the new gloss of NRWC, October 6, 1997 CONGRESSIONAL RECORD — SENATE S10369 the FEC set about to define ‘‘member’’ in there be a mandated disclaimer identifying ley approved reporting requirements for ex- new regulations. As usual, the FEC pursued the author or any writing intended to ‘‘influ- press advocacy; it did not approve disclaim- a speech and association suppressing ap- ence’’ an election is unconstitutional. In- ers on this type of speech. Indeed, McIntyre proach, attempting to define ‘‘member’’ as deed, the Supreme Court upheld the right of recognized that Buckley did not even address narrowly as possible in order to limit as an individual or organization to publish the issues of disclaimers or anonymous much as possible the class of persons to anonymously concerning the advocacy of po- speech: ‘‘Ohio vigorously argues that our whom the corporation may communicate its litical causes. opinions in First National Bank of Boston v. political messages and from whom it may so- In McIntyre, the Court considered an Ohio Bellotti, .. . and Buckley v. Valeo, .. . amply licit PAC funds. election practices statute in the context of support the constitutionality of its disclo- An older definition of ‘‘member’’ had been an enforcement action against a woman, sure requirements [i.e., disclaimer]. Neither promulgated by the FEC in 1976. The regula- Margaret McIntyre, who distributed flyers case is controlling: . . . [Buckley] concerned tion defined the term as: ‘‘all persons who generated on a home computer and printed mandatory disclosure of campaign-related are currently satisfying the requirements for at her own expense relating to a referendum expenditures [i.e., reporting requirements]. membership in a membership organization, on a proposed school tax levy.308 Some of her Neither case involved a prohibition of anony- trade association, cooperative, or corpora- handbills identified her as the author, while mous campaign literature. ’’323 tion without capital stock. . . . A person is others contained the identifier ‘‘CON- McIntyre went on to recognize that Buckley not considered a member under this defini- CERNED PARENTS AND TAX PAYERS.’’ 309 upheld reporting requirements for express tion if the only requirement for membership Margaret was fined $100 by the Ohio Election advocacy, and unlike disclaimers, such re- is a contribution to a separate segregated Commission for failure to use the required quirements advance the interest in obtaining fund.’’ 299 disclaimer.310 On appeal of the case, the U.S. information without unduly impinging upon The new definition of ‘‘member,’’ promul- Supreme Court struck down the Ohio statute protected speech: ‘‘True, in another portion gated in 1993, defined the term much more imposing a state-mandated disclaimer on lit- of [Buckley] we [approved] a requirement restrictively: erature intended to ‘‘influence the voters in that even independent expenditures in excess ‘‘Members means all persons who are cur- any election.’’ 311 of a certain threshold level be reported. * ** rently satisfying the requirements for mem- Noting that the statute was a content- But that requirement entailed nothing more bership in a membership association, affirm- based ‘‘limitation on political expression’’ at than an identification * * * of the amount atively accept the membership association’s ‘‘the core of the protection afforded by the and use of money expended in support of a invitation to become a member, and either: First Amendment,’’ the Court applied ‘‘ex- candidate [through a report]. Though such ‘‘(i) Have some significant financial at- acting scrutiny.’’ 312 The Court noted that in mandatory reporting undeniably impedes tachment to the membership association, addition to ‘‘exacting scrutiny’’ such a re- protected First Amendment activity, the in- such as a significant investment or owner- striction on ‘‘core political speech’’ must be trusion is a far cry from compelled self-iden- ship stake (but not merely the payment of ‘‘narrowly tailored to serve an overriding tification [i.e., disclaimers] on all election- dues); state interest.’’ 313 related writings.’’ 324 ‘‘(ii) Are required to pay on a regular basis Ohio asserted two interests to justify its The Court concluded that ‘‘the Ohio stat- a specific amount of dues . . . and are enti- disclaimer: (1) an ‘‘interest in preventing ute’s infringement on speech [disclaimers,] tled to vote directly either for at least one fraudulent and libelous statements’’ and (2) [is] more intrusive than the Buckley disclo- member who has fully participatory and vot- an ‘‘interest in providing the electorate with sure requirement [reporting].’’ 325 Both ing rights on the highest governing body of relevant information.’’ 314 The High Court means provide the State with information; the membership association, or for those noted that free expression includes the right however, reporting requirements are more who select at least one member . . .; or to release what information one desires and narrowly tailored to do so.326 that the name of a private citizen would be ‘‘(iii) Are entitled to vote directly for all D. CONTRIBUTION & EXPENDITURE CAPS those on the highest governing body of the meaningless to most readers anyway with re- Another protection afforded political membership association.’’ 300 gard to the reader’s ability to evaluate the speech by the First Amendment and recog- The U.S. Chamber of Commerce and the message.315 The Court dismissed the interest nized by the United States Supreme Court is American Medical Association were both af- in informing the public as ‘‘plainly insuffi- the limitation on the extent to which gov- fected by the new regulation and ‘‘ceased cient to support the constitutionality of its ernment may place caps on contributions making their traditional political solicita- disclosure requirements.’’ 316 and expenditures. While the Court permits tions’’ to persons they had considered their The Court gave more weight to Ohio’s in- some caps on contributions, there are limits members.301 They filed suit seeking a dec- terest in preventing fraud and libel, noting as to how low the caps may go. No caps are laration that the FEC had violated their that this interest ‘‘carries special weight permitted on independent expenditures. First Amendment rights by ignoring the dis- during election campaigns when false state- Buckley’s point of departure is the prin- junctive ‘‘or’’ in the Supreme Court’s state- ments, if credited, may have serious adverse 317 ciple that any restriction of the amount of ment quoted above,302 treating it rather as a consequences for the public at large.’’ The money that can be spent in campaigns is sus- conjunctive ‘‘and.’’ 303 Court, noted, however, that Ohio had a stat- pect. The Supreme Court stated that [a] re- The United States Court of Appeals for the ute setting forth penalties for false state- striction on the amount of money a person District of Columbia Circuit found fatal ments during political campaigns, so that or group can spend on political communica- flaws in the new FEC regulations. The court the disclaimer provision was ‘‘not its prin- 318 tion during a campaign necessarily reduces faulted the notion that dues to a nonstock cipal weapon against fraud.’’ The Court the quantity of expression by restricting the corporation were less of a financial attach- noted that the disclaimer provision served as number of issues discussed, the depth of ment to the organization than was owner- an ‘‘aid to enforcement’’ and a ‘‘deterrent to their exploration, and the size of the audi- ship of a single share of stock in a public cor- the making of false statements by unscrupu- ence reached.327 poration.304 The court also faulted the re- lous prevaricators,’’ but these ‘‘legitimate’’ Thus, a regulation which seeks to regulate quirement that a ‘‘member’’ who paid dues benefits did not justify the ‘‘extremely 319 political spending is subject to a presump- must vote directly for a member of the high- broad’’ disclaimer mandate. tion of invalidity. In Buckley, the Supreme est governing body, noting that this ex- This is so the Court said, inter alia, be- Court did, however, enunciate a constitu- cluded without justification many hier- cause the broad prohibition ‘‘encompasses tional distinction between ‘‘expenditures’’ archical organizations.305 As a result, the documents that are not even arguably false and ‘‘contributions.’’ The Court stated that: court declared the regulations void under the or misleading. It applies not only to the ac- ‘‘although the Act’s contribution and ex- Administrative Procedures Act. tivities of candidates and their organized penditure limitations both implicate fun- Based on the case law, therefore, to be a supporters, but also to individuals acting damental First Amendment interests, its ex- ‘‘member’’ of a nonstock organization to re- independently and using only their own mod- 320 penditures ceilings impose significantly ceive a corporation’s or labor union’s politi- est resources. . . .’’ more severe restrictions on protected free- cal communications and to be solicited for The Court distinguished its upholding in doms of political expression than do its limi- PAC purposes, one must have some financial Buckley of a requirement that expenditures tations on financial contributions.’’ 328 connection with the organization (usually in excess of a certain amount be reported to Expenditures could not be regulated unless done with dues payments) and have a right the FEC, declaring that the Ohio disclaimer they constituted ‘‘express advocacy’’ of the to vote at least at a local level for persons requirements is ‘‘more intrusive than the election or defeat of a clearly identified can- who will chose the voting representative of a Buckley disclosure requirement’’ and ‘‘rests didate (and if they were ‘‘independent ex- local organization to the larger governing on different and less powerful state inter- penditures’’ they could not be limited even if body of the organization (typically done by ests.’’ The Court noted that the FECA ‘‘regu- they did constitute express advocacy).329 On allowing local members to vote for the local lates only candidate elections, not referenda the other hand, contributions were, under delegate to the state-wide governing body of or other issue-based ballot measures; and we construed ‘independent expenditures’ to the reasoning of Buckley, more susceptible of the organization.306 mean only those expenditures that ‘expressly regulation. C. ANONYMOUS LITERATURE advocate the election or defeat of a clearly The Court’s reasons for making a distinc- In McIntyre v. Ohio Election Commission,307 identified candidate.’ ’’ 321 tion of constitutional dimension in this re- the United States Supreme Court declared Reporting requirements, like disclaimers, gard were essentially twofold. First, the that a broadly worded requirement that are a type of disclosure mechanism.322 Buck- Court found that contribution limitations S10370 CONGRESSIONAL RECORD — SENATE October 6, 1997 did not place significant burdens on pro- the First Amendment than discussion of po- on legislatures which enact a ‘‘law . . . tected speech and associational freedoms. litical policy generally or advocacy of the abridging the freedom of speech.’’ 358 Because Second, the Court found that contributions passage or defeat of legislation.’’ 343 free expression and association are such could be limited because, unlike expendi- In contrast to contributions, however, ‘‘ex- cherished American rights, they are pro- tures, they posed the danger of quid pro quo penditures’’ which are not coordinated with tected as fundamental rights against in- corruption (and the appearance thereof) to a candidate or campaign do not pose a dan- fringement. To be valid, a law burdening or the political system. Unless both of these ra- ger of corruption or its appearance. Thus, chilling these rights must serve a compelling tionales are satisfied, contributions cannot there is no compelling interest in their limi- interest and be narrowly tailored to effect be limited. tation. This is so because a candidate does only that interest.359 I. Contributions Can Only be Limited Because not necessarily benefit from (and may well Once a plaintiff has demonstrated that a They Threaten Corruption to the Political even be harmed by) an expenditure which is statute infringes the exercise of his or her System made independently of his campaign. As the First Amendment rights, the burden is on As noted above, the Buckley Court began Supreme Court recognized, ‘‘[u]nlike con- the state to justify this infringement. As the its analysis with the proposition that limits tributions, such independent expenditures United States Supreme Court declared in on spending in connection with campaigns may well provide little assistance to the can- 1978: ‘‘The constitutionality of § 8’s prohibi- are presumptively invalid. It did, however, didate’s campaign and indeed may prove tion of the ‘exposition of ideas’ [a ban on cor- permit the government to limit contribu- counterproductive. The absence of pre- porate contributions or expenditures to in- tions to candidates or campaigns. One of the arrangement and coordination of an expendi- fluence the outcome of a referendum] by cor- two fundamental rationales for allowing ture with the candidate or his agent not only porations turns on whether it can survive such restrictions was that, unlike expendi- undermines the value of the expenditure to the exacting scrutiny necessitated by a tures, contributions pose a threat of corrup- the candidate, but also alleviates the danger state-imposed restriction of freedom of tion to the political system. The Court stat- that expenditures will be given as a quid pro speech. Especially where, as here, a prohibi- ed that ‘‘[t]o the extent that large contribu- quo for improper commitments from the can- tion is directed at speech itself, and the 344 tions are given to secure a political quid pro didate.’’ speech is intimately related to the process of quo from current and potential office hold- Thus, because as a practical matter the governing, ‘the State may prevail only upon ers, the integrity of our system of represent- candidate may well not benefit from an ex- showing a subordinating interest which is penditure made without coordination, the ative democracy is undermined.’’ 330 compelling’ ‘and the burden is on the Govern- In addition, the Court was concerned with danger of quid pro quos is obviated. This re- ment to show the existence of such an interest.’ ‘‘appearance of corruption stemming from sults not only in alleviating the danger of Even then, the State must employ means public awareness of the opportunities for corruption, but the appearance of corruption ‘closely drawn to avoid unnecessary abridg- abuse inherent in a regime of large individ- as well. ment. . . .’ ’’ 360 ual financial contributions.’’ 331 Therefore, In addition, in contrast to limits on con- The state’s effort to carry its burden must the Court permitted governmental limita- tributions that ‘‘entail[s] only a marginal re- be done under ‘‘the closest scrutiny.’’ 361 As tions on contributions 332 because of the gov- striction on the contributor’s ability to en- the U.S. Supreme Court has stated: ‘‘When 345 ernmental interest ‘‘in the prevention of cor- gage in free communication,’’ the Court the government defends a regulation on ruption and the appearance of corruption reasoned that, ‘‘because virtually every speech . . . it must do more than simply spawned by the real or imagined influence of means of communicating ideas in today’s ‘‘posit the existence of the disease sought to large financial contributions on candidates’ mass society requires the expenditure of be cured.’’ . . . It must demonstrate that the positions and on their actions if elected to money,’’ the ‘‘expenditure limitations con- recited harms are real, . . . and that the reg- office.’’ 333 tained in the Act represent substantial rath- ulation will in fact alleviate these harms in The Supreme Court in Buckley then pro- er than merely theoretical restraints on the a direct and material way.’’ 362 ceeded to approve an aggregate contribution quantity and diversity of political In Carver v. Nixon,363 a case involving cam- 346 cap of $1,000 for each election by any person speech.’’ Whereas a contribution to a can- paign contribution caps, the Eighth Circuit to any candidate for federal office.334 The didate merely ‘‘serves as a general expres- declared that the government must produce Court found that the interest in limiting sion of support for the candidate and his ‘‘evidence to demonstrate that the limits ‘‘the actuality and appearance of corruption views, but does not communicate the under- were narrowly tailored to combat corruption 347 resulting from large individual financial con- lying basis for the support,’’ ‘‘a restriction or the appearance of corruption. . . .’’ 364 tributions’’ justified ‘‘the limited effect upon on the amount of money a person or group ‘‘The record is barren of any evidence of a First Amendment freedoms caused by the can spend on political communication during harm or disease that needed to be ad- $1000 contribution ceiling.’’ 335 More pre- a campaign necessarily reduces the quality dressed,’’ the court proclaimed.365 of expression by restricting the number of is- cisely, the Court found that in 1976 a $1,000 In Shrink Missouri Government PAC v. sues discussed, the depth of their explo- limit on contributions was sufficiently high Maupin,366 the U.S. District Court for the to be narrowly tailored to limit corruption, ration, and the size of the audience Eastern District of Missouri observed that 348 while allowing individuals and organizations reached.’’ ‘‘[d]efendants wholly failed to adduce any As a result, the Court has struck down lim- to assist to a ‘‘substantial extent in support- evidence of actual corruption taking place. its on independent expenditures by individ- ing candidates and committees with finan- . . . The harm that the defendants seek to uals 349 and political committees.350 cial resources.’’ 336 eradicate must exist and its cure must spe- However, contribution caps are not one of E. POLITICAL COMMITTEES cifically be directed toward the elimination those things where, if a little is good, more As noted by the Court in Buckley,351 ‘‘the of that harm. . . . . The defendants fail to is better. Efforts to set lower limits have First Amendment protects political associa- point to one incident wherein a[n] . . . offi- been routinely struck down. In several post- tion as well as political expression.’’ As a re- cial . . . has cast a vote or agreed to influ- Buckley decisions, courts have upheld con- sult, citizens have the ‘‘freedom to associate ence a vote, during the general assembly’s tribution limits above $1,000,337 but have with others for the common advancement of regular session, in exchange for a contribu- struck down those below it. In Carver v. political beliefs and ideas.’’ 352 ‘‘Govern- tion. As for the appearance of corruption, Nixon,338 the Eighth Circuit struck down a mental action which may have the effect of the defendants’ two witnesses testified in $300 limit on direct contributions in state curtailing the freedom to associate is subject general terms of their belief that the public elections on the ground that it was not nar- to the closest scrutiny.’’ 353 perceives the acceptance of contributions rowly tailored to advance the state’s interest Political action committees (PACs) are as- during the legislative session as ‘‘inappropri- in combating corruption.339 It noted that sociations organized to enhance the political ate’’. No factual basis was given for these Buckley upheld a $1,000 limit twenty years expression of citizens by joining individual witnesses’ perception that the electorate be- ago because such a limitation focused pre- contributions with those of others so that lieves that contributions accepted during the cisely on the problem with large campaign they may more effectively participate in po- general assembly’s regular session reflect contributions without unduly impinging on litical speech.354 As a result, the Supreme corruptive deal-making.’’ 367 protected speech, i.e., it was narrowly tai- Court has ‘‘reject(ed) the notion that the In sum, when the government makes a law lored to achieve its goal.340 Similarly, in Day PACs form of organization or method of so- abridging free speech, it has an extremely v. Holahan,341 the Eighth Circuit struck down licitation diminishes their entitlement to heavy burden of proof that there is a compel- a $100 limit on contributions to and from po- First Amendment protection,’’ 355 and ex- ling interest, and this burden must be met litical committees.342 pressly held that they are protected by the with the clearest of facts carefully estab- 2. Expenditures, However, Cannot be Limited First Amendment freedom of association.356 lished, not with mere speculation about pos- Because Doing So Imposes Restrictions on the Furthermore, any disparate treatment of a sible corruption. There are two obvious rea- Freedoms of Speech and Association That are political committee, such as lower contribu- sons for this. Not Justified by a Compelling Interest tion limits for PACs as opposed to individ- First is the premier protection given to As the Buckley Court explained, independ- uals, would violate the PACs freedom of as- free speech and free association rights in our 357 ent expenditures are entitled to full con- sociation. constitutional system. Because of the su- stitutional protection: ‘‘Advocacy of the F. BURDEN OF PROOF preme importance of free political speech election or defeat of candidates for federal A final protection for free political speech and association to the very democratic foun- office is no less entitled to protection under and association is the burden of proof placed dations of our Republic, government should October 6, 1997 CONGRESSIONAL RECORD — SENATE S10371 make no law abridging these expressly pro- finance reform are based, and set out some 4. (Faculty Premise #4) The Only Way to Re- tected activities on the basis of unproven proposals for speech-enhancing reform. dress the Balance Is to Stifle the Speech of speculation about corruption. Some Rather than to Enhance it for All A. FAULTY PREMISES TO BE AVOIDED Second is the fact that the legislation Some promoters of campaign finance re- Recent campaign finance proposals 380 in abridging political speech is being enacted form believe that the system needs to change the U.S. Congress have been based on certain by incumbent politicians. Justice Thomas in because it has eroded the power of individual premises that have been thoroughly rejected his concurrence in Colorado Republican put voices and amplified the voices of special in- by the United States Supreme Court in the the matter well when he referred to the no- terests. In pursuit of equalizing speech, they tion of according special deference to con- seminal election law case of Buckley,381 and take the approach of limiting, penalizing, gressional judgments about campaign fi- its progeny. As a result of these faulty prem- and prohibiting speech of some in order to nance as ‘‘letting the fox stand watch over ises, the proposals themselves are fundamen- enhance it for others. the henhouse.’’ 368 He added, ‘‘What the argu- tally flawed and have diverted attention However, the United States Supreme Court ment for deference fails to acknowledge is from reform measures that would survive has expressly rejected this proposition in the potential for legislators to set the rules constitutional scrutiny and that would cor- Buckley: ‘‘the concept that government may of the electoral game so as to keep them- rect current perceived problems in the politi- restrict the speech of some elements of our selves in power and to keep potential chal- cal system. These faulty premises are as fol- society in order to enhance the relative voice lengers out of it.’’ 369 lows. This warning has been echoed by various of others is wholly foreign to the First 385 commentators. For example, Lillian BeVier 1. (Faulty Premise #1) The First Amendment Is Amendment.’’ Thus, this approach is fun- points out the importance of three scope-of- a Loophole in the Federal Election Campaign damentally flawed. review issues in protecting constitutional Act (FECA) Which Should Be Narrowed or But even more tragically, the ‘‘solution’’ rights in the political speech area: (a) courts Closed of stifling speech diverts attention away must ‘‘insist on a rigorous definition of ‘cor- As set forth in detail above, the First from positive, constitutional measures ruption’ as well as an intelligible description Amendment protects political freedoms that which would redress the imbalance in the of both empirical counterparts of this cor- are vital to our representative democracy. current system by enhancing the speech of ruption and the purified political order it To limit these freedoms is to fundamentally citizens and issue advocacy groups. These hopes to attain’’ 370; (b) courts ‘‘should adopt undermine the ability of our citizens to free- speech enhancing measures would restore a a ‘premise of distrust’ with respect to legis- ly select their representatives and to hold proper balance between the voices of ‘‘spe- lative means’’ 371; and (c) courts should take them accountable for their governance. As cial interests’’ and the voices of individual note of the realities of campaign finance re- has been shown, there is no indication what- citizens. form—such as ‘‘unintended consequences’’ soever that the courts are prepared to co- Some campaign finance reform advocates and ‘‘at least temporary reallocations of po- operate in any endeavor to limit First believe that the only way that meaningful litical advantage’’ and sanction ‘‘only re- Amendment freedoms in this area.382 reform will be enacted is for members to put forms that are practically guaranteed to aside partisan differences and work together 2. (Faulty Premise #2) The Political System Is achieve a clearly specified and unquestion- to make it happen. While this may be one ably legitimate corruption-prevention Only about Elections, Not about Political necessary precondition to reform, it is not Ideas and the Accountability of Elected Offi- goal.’’ 372 Similar warnings have come from the fundamental one. For meaningful reform John Hart Ely 373 and Ralph Winter,374 among cials to the Public for Their Positions on Is- to occur, Congress must abandon the notion others. sues that it is empowered to limit free speech in Thus, the burden is on the government to The debate about campaign finance reform order to redress any imbalance in speech and establish by clear evidence the compelling seems to focus only on elections on the as- instead find ways to level the playing field interest in corruption or its appearance sumption that the political process is only by enhancing the speech of citizens and issue which it proposes as supporting its decision about elections. However, elections are only advocacy groups. to make a law abridging free expression in a part of the political process. More impor- B. POSITIVE PROPOSALS FOR REFORM BY the vital realm of political speech. tantly, elections are simply a part of our ENHANCING SPEECH G. PRIOR RESTRAINT OF SPEECH system of democratic representative govern- In contrast to the serious constitutional The United States Supreme Court has long ment which fundamentally depends on ‘‘the obstacles to efforts to curtail speech, Con- 383 held that ‘‘the loss of First Amendment free- free discussion of governmental affairs.’’ gress is free to adopt measures that will en- doms, for even minimal periods of time, un- Thus, issue advocacy during an election, hance and encourage speech. As the Buckley questionably constitutes irreparable in- even though it may influence the election, is Court explained, in upholding the provision jury.’’ 375 This is particularly true with polit- also about the discussion of issues of public of the FECA providing public funds for elec- ical speech since ‘‘timing is of the essence concern and about holding public officials tions: ‘‘Although ‘Congress shall make no . . . when an event occurs, it is often nec- accountable for their positions on these is- law . . . abridging the freedom of speech, or essary to have one’s voice heard promptly, if sues. Representative government cannot sur- of the press.’ [public funding of elections] is 376 it is to be considered at all.’’ Therefore, a vive without this ‘‘free discussion of govern- a congressional effort, not to abridge, re- prior restraint, even for ‘‘a day or two’’ may mental affairs.’’ strict, or censor speech, but rather to use be intolerable when applied ‘‘to political 3. (Faulty Premise #3) The Rising Cost of Politi- public money to facilitate and enlarge public speech in which the element of timeliness cal Campaigns Justifies Severe Government discussion and participation in the electoral 377 may be important.’’ Restrictions on Campaigns process, goals vital to a self-governing peo- As set forth above, the First Amendment ple. Thus, [the provision] furthers, not protects, as political speech, both political Some promoters of campaign finance re- abridges, pertinent First Amendment val- contributions and political expenditures, in- form assert that the rising cost of elections ues.’’ 386 cluding both issue advocacy and independent and the growing size of special interest dona- expenditures. Unfortunately, injunctions tions has corrupted the democratic process. But public funding of campaigns is only have been sought and, on occasion, issued by On that basis, they believe that severe limi- one way for Congress to ‘‘facilitate and en- lower state courts for alleged ‘‘violations’’ of tations on campaigns imposed by govern- large public discussion and participation in state election law.378 These injunctions were ment are justified. the electoral process.’’ The best antidote to the ‘‘undue influence of special interests’’ is sought to restrain the distribution of voter However, the United States Supreme Court to encourage citizens to take a more active guides and were overturned on appeal,379 but has made it clear that it is up to the people, part, as individuals and in association with the damage to First Amendment rights still not the government, to determine what is others, in the political process. occurred. spent on political campaigns. As the Court In addition, Congress should act to reign in V. A PROPOSAL FOR SPEECH-ENHANCING stated in Buckley: ‘‘In any event, the mere the FEC’s effort to expand its power and reg- CAMPAIGN REFORM growth in the cost of federal election cam- ulate issue advocacy. The incorporation of paigns in and of itself provides no basis for While most efforts at campaign finance re- the Court’s speech protective holdings in ap- government restrictions on the quantity of form have been misguided and based on propriate provisions of the FECA and the campaign spending and the resulting limita- flawed assumptions, there is room for adoption of certain administrative reforms tion on the scope of federal campaigns. The speech-enhancing reform. Key to any reform of the FEC itself are necessary to accomplish First Amendment denies government the to be attempted is the need to protect and this task. The following measures are de- power to determine that spending to pro- enhance constitutionally guaranteed free ex- signed to do just that.387 pression. The case law is clear that such mote one’s political views is wasteful, exces- speech is constitutionally protected, and, as sive, or unwise. In the free society ordained 1. Section 441b of the FECA Should Be Amended set forth above, the United States Supreme by our Constitution it is not the govern- to Reflect the Protections of Issue Advocacy Court has shown no sign whatsoever that it ment, but the people—individually as citi- and of the Political Speech of Not-for-Profit is prepared to back away from ensuring full zens and candidates and collectively as asso- Corporations First Amendment protection to the political ciations and political committees who must Section 441(b) of the FECA makes it unlaw- speech involved in campaigns. retain control over the quantity and range of ful for any corporation ‘‘to make a contribu- This section will summarize the flawed debate on public issues in a political cam- tion or expenditure in connection with any premises on which most efforts at campaign paign.’’ 184 [federal] election.’’ However, as set forth S10372 CONGRESSIONAL RECORD — SENATE October 6, 1997 above, the United States Supreme Court in The effect of Congress’s failure to modify 7. The Individual Contribution Limit to Political MCFL,388 imposed two significant limitations the definition of ‘‘political committee’’ 390 to Parties Should Also Be Raised on this prohibition. meet Buckley’s requirements has been to en- Individual contributions to any national First, the Court interpreted § 441b to be courage the FEC to run amuck trying to im- political party are limited to $15,000 per year limited to expenditures for ‘‘express advo- pose on issue advocacy groups the require- by § 441(a)(a)(2)(B). This limitation has di- cacy.’’ Second, the Court held that the prohi- ments for PACs in the FECA.391 This has had minished the relative influence of political bition on corporate expenditures was not ap- the effect of chilling the legitimate issue-ori- parties and encouraged them to seek soft plicable to certain not-for-profit corpora- ented activities of such groups and has im- money. Increasing the individual contribu- tions. These limitations should be incor- posed substantial costs on them in their ef- tion limit to $50,000 would help strengthen porated by Congress in § 441(b) by amending forts to resist such unconstitutional imposi- parties that can provide an effective coun- it. tions. Congress should make this change now terweight to ‘‘special interests.’’ 394 Further- After Buckley, Congress amended the FECA by amending § 431(4)(a) by adding at the end more, most agree that political parties serve to incorporate changes in the statute re- ‘‘and which is under the control of a can- quired by the Court. For instance, Congress a beneficial mediating role in the political didate or the major purpose of which is the process that should be enhanced. Both of amended § 434(c) to reflect that disclosure of nomination or election of a candidate.’’ expenditures by organizations that were not these benefits would be derived by increasing 395 political committees were limited to ‘‘inde- 4. Congress Should Allow Certain Not-for-Profit the contribution limit to political parties. pendent expenditures’’ and adopted a defini- Corporations to Make Contributions to Fed- 8. The Amount Political Parties Can Spend in tion of ‘‘independent expenditure’’ in eral Candidates Coordinated Expenditures with Federal Can- § 431(17). Since the Supreme Court held in MCFL didates Should Also Be Increased Similarly Congress should amend § 441(b) to that certain not-for-profit corporations do With the increase in the individual con- incorporate the holdings of MCFL by provid- not pose any threat to corrupt the electoral tribution limit to political parties, Congress ing that it is unlawful for any corporation process, because contributions to them are should increase the coordinated expenditure ‘‘to make a contribution or to make an ex- generated by their advocacy of political limits provided in § 441(a)(d). These limits penditure which expressly advocates the ideas, and they are thus free to make inde- have also been in existence since 1974 and election or defeat of a clearly identified can- pendent expenditures, there is no justifica- were not indexed for increases in the didate.’’ tion to prohibiting them from also making consumer price index as were the expendi- In addition, § 441(b) should be amended to contributions to federal candidates.392 ture limits on presidential campaigns.396 Be- add a new subsection which provides that the This change would expand the pool of pos- cause of the increase in the cost of federal prohibition on a corporation making an ex- sible contributors to candidates and, since campaigns, the influence of political parties penditure which expressly advocates the these nonprofit organizations often promote has diminished. Congress should restore this election or defeat of a clearly identified can- important political ideas, rather than nar- balance and also index the new limits to in- didate does not apply to a not-for-profit row economic interests, their addition to the flation.397 membership corporation which (1) does not pool of possible contributors would help off- engage in substantial business activities, 9. The FEC Should be Mandated, in its Regu- set these ‘‘special interests.’’ other than traditional fundraising activities latory Activities, to Observe the Limits Im- of not-for-profit organizations, that are un- This change could be made by modifying posed by the First Amendment the new subsection proposed for § 441(b) in related to the charitable, educational or po- Since the admonitions of the courts have Section 1, supra, by providing that the prohi- litical activities of the organization, (2) has left the FEC unchastened in its regulatory bition on a corporation making a contribu- no shareholders or other persons affiliated so efforts to contain issue advocacy, Congress tion or an expenditure which expressly advo- as to have a claim on its assets or earnings, should mandate that, in its regulatory ac- cates the election or defeat of a clearly iden- and (3) was not established by a business cor- tivities, the FEC should act in a manner that tified candidate does not apply to the not- poration or a labor union and does not re- will have the least restrictive effect on the for-profit membership corporations described ceive a substantial portion of its contribu- rights of free speech and association pro- therein. tions from such entities. tected by the First Amendment. To give this These changes would conform with the 5. Certain Not-for-Profit Corporations Should provision some teeth, a reviewing court Court’s decision in MCFL, and would signal Be Allowed to ‘‘Bundle’’ Individual Contribu- should be authorized to hold unlawful and the willingness of Congress to abide by this tions to Candidates set aside any action of the Commission that important issue advocacy protecting deci- Bundling of individual contributions to did not use the least restrictive means avail- sion. Furthermore, incorporating these candidates is currently limited to PACs. able. changes in the statute will make it readily Even if certain not-for-profit corporations apparent to all that this provision is narrow 10. Reasonable Attorneys Fees Should Be Au- are not allowed to contribute to candidates, on its face; where now one has to read the thorized by Congress if any Provision of the Congress should allow them to solicit from United States Reports to know about this FECA of Action of the FEC Violates Constitu- their members individual contributions to significant limitation. tionally Protected Rights candidates that are then ‘‘bundled’’ and 2. The Definition of Contribution Should Be The provisions of 42 U.S.C. § 1988, authoriz- given to the candidate. This could be accom- ing an award of attorney fees to prevailing Amended to Clarify that It Does Not Apply to plished by specifically allowing this activity Issue Advocacy party who vindicates constitutional rights as in the amendment to § 441(b) proposed above. against a state, are a substantial deterrent The Federal Election Commission’s effort Providing this new method of encouraging to regulate and restrict issue advocacy by to states violating the guarantees of federal individual contributions will enhance politi- law. While federal law currently allows for claiming that it is a contribution to a can- cal giving by individual citizens, diminishing didate and subject to the contribution limits an award of attorney fees against federal the relative influence of PACs and ‘‘special agencies in limited circumstances,398 the if the expenditure for the issue advocacy was interests.’’ This ‘‘bundling’’ activity should coordinated with a candidate should also be broader guarantees provided in § 1988 are jus- be reported by amending § 434(c) to so pro- tified in this case for two reasons. addressed. There is no justification for issue vide. advocacy losing its protected status just be- First, the FECA uniquely involves the at- cause it has been communicated to a can- 6. The Individual Contribution Limit Should be tempt by government to regulate vital First didate. Increased to $2,500 and the Aggregate Limit to Amendment rights that are ‘‘indispensable This misguided attempt to circumvent the $100,000 democratic freedoms.’’ Particularly in light protection of issue advocacy in Buckley can The individual contribution limit of $1,000, of the efforts by some to pass provisions be prevented by adding to those items listed found in § 441(a)(a)(1) (A), and the aggregate know to be unconstitutional, a provision in § 431(8)(B) as not being included in the def- contribution limit of $25,000, found in § 441(a) that allows an award of attorney fees for a inition of ‘‘contribution’’ ‘‘any expenditure (a)(3), has been in effect since 1974. While a successful effort to strike down a portion of 399 for a communication which does not ex- $1,000 contribution represented a large con- the FECA is warranted. Second, the FEC has a sorry history of re- pressly advocate the election or defeat of a tribution in 1974, it does not today.393 Fur- clearly identified candidate.’’ thermore, allowing individuals to make larg- peated attempts to unconstitutionally ex- 3. The Definition of Political Committee Should er contributions will enhance the ability of pand its powers to regulate issue advocacy. Be Amended to Reflect the Court’s Major Pur- individual citizens to influence the political A significant deterrent to such intran- pose Test process while helping to offset the influence sigence, and a justified effort to compensate the victims of it, would be to award attorney The Court in Buckley held that an organi- of ‘‘special interests’’ and PACs. The individ- fees to those private parties that prevail in zation cannot be considered a ‘‘political ual contribution limit should be raised to FEC enforcement actions or against new committee’’ unless the organization is $2,500 and be indexed for inflation. FEC regulations. ‘‘under the control of a candidate or the Furthermore, to accommodate the in- major purpose of the organization is the crease in individual contributions to can- 11. The Act Should Establish Term Limits for nomination or election of a candidate.’’ 389 didates and to political parties, suggested FEC Commissioners, Staff Director, and Gen- Unfortunately, when Congress amended the below, the aggregate individual contribution eral Counsel FECA after Buckley, this limitation was not limit, found in § 441(a)(a)(3), should be in- The six commissioners of the FEC are cur- included. creased to $100,000. rently appointed for six year terms and are October 6, 1997 CONGRESSIONAL RECORD — SENATE S10373 eligible for reappointment.400 The FEC is ad- heavy hand of the censors at the FEC. Until acted the $100 limit on contributions to political ministered by a staff director and general the FEC has demonstrated a proper sensitiv- committees and funds, and the governor who signed counsel appointed by the Commission.401 Be- ity for First Amendment rights, it should the limit into law, approved limits on election-year not be entrusted with further authority to contributions to themselves that were many times cause of the strong institutional bias toward higher than the $100 limit on contributions to com- regulating free speech in the FEC, fresh intrude into the vital workings of our rep- mittees and funds.’’ Day v. Holahan, 34 F.3d 1356, blood is needed at the higher echelons of the resentative democracy. 1365 N.8 (8th Cir. 1994). Commission. This could be established by FOOTNOTES 26. Campaign Finance Reform: Hearings before the United States Senate Committee on Rules and Ad- providing term limits for the Commis- *James Bopp, Jr., B.A., Indiana University, 1970; ministration (Mar. 13, 1996). The proposals in Sec- sioners, staff director, and the general coun- J.D., University of Florida, 1973; Attorney, Bopp, tion V of this article are largely based on the rec- Coleson & Bostrom, Terre Haute, Indiana; General sel. ommendations made in this testimony. Counsel, National Right to Life Committee, Inc.; 12. The Tax Credit for Small Political 27. Similarly, in the November 1996 election, na- Vice Chairman, Free Speech and Election Law Prac- tional labor unions spent $35 million dollars (by Contributions Should Be Restored tice Group of the Federalist Society; Editor-in- their own account) in the weeks before the Novem- Chief, ISSUES IN LAW & MEDICINE. The 1974 amendments to the FECA con- ber 1996 election for advertisements attacking tar- **Richard E. Coleson, B.A. Indiana Wesleyan Uni- tained a 50% individual tax credit for politi- geted U.S. congressional candidates on various is- versity, 1973; M.A.R., Asbury Theological Seminary, cal contributions up to $100. This tax credit sues. Apart from questions raised about the accu- 1975; J.D., Indiana University School of Law—Indi- provided a substantial incentive for small racy of some of the advertisements (some have been anapolis, 1987; Attorney, Bopp, Coleson & Bostrom, refused by broadcasters on accuracy grounds) and political contributions. This incentive Terre Haute, Indiana. the voluntariness of the use of union member’s dues should be restored to encourage small con- The authors wish to thank the following members for pro-Democrat attack ads, such issue advocacy is tributions from a greater number of citizens. of their law firm for research and writing assistance: an appropriate part of the American political sys- John K. Abegg, Paul R. Scholle, and Dale L. Wilcox. 13. Limits on Issue Advocacy for Tax Exempt tem. The present authors and the First Amendment Copyright 1997 by James Bopp, Jr. and Richard E. Groups in the Internal Revenue Code Should strongly support the right of the labor unions to en- Coleson, all rights reserved. gage in robust issue advocacy, even at election time. Be Eliminated 1. U.S. CONST. amend. 1. The solution for those opposed to such issue advo- 2. Id. The Internal Revenue Code imposes limits cacy is not to silence the labor unions but to mount 3. Federal Election Campaign Act of 1971, 2 U.S.C. on issue advocacy for tax exempt organiza- an effective counter-attack. However, concomitant tions. Specifically, the Internal Revenue § 431 et seq. (amended 1974). 4. Buckley v. Valeo, 424 U.S. 1 (1976). efforts by the FEC to intimidate the Christian Coa- Code prohibits groups exempt under 5. Colorado Republican Federal Campaign Comm. lition (and thereby similar groups) from advocating § 501(c)(3) from ‘‘participat[ing] in, or v. FEC, 116 S. Ct. 2309 (1996). essentially opposing issues through voter guides, is interven[ing] in [including the publishing or 6. The authors are practicing attorneys who have abhorrent to First Amendment principles. distributing of statements], any political been heavily engaged in litigation against misguided 28. ‘‘Effective advocacy of both public and private points of view, particularly controversial ones, is campaign on behalf of any candidate for pub- campaign reform efforts (on constitutional and Ad- ministrative Procedure Act grounds) since their undeniably enhanced by group association.’’ MCFL, lic office.’’ Organizations that are exempt 479 U.S. at 264 (quoting NAACP v. Alabama, 357 U.S. under § 501(c)(4) may engage in political ac- seminal victory against the FEC in Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991), cert. denied sub nom. FEC 449, 460 (1958)). tivity but such activity must be ‘‘insubstan- v. Keefer, 112 S. Ct. 79 (1991). Throughout the article, 29. Express advocacy consists of explicit words of tial’’ and is subject to a tax under § 527. note will be taken of cases in which the authors and advocacy, such as ‘‘vote for Candidate X’’ or ‘‘defeat Unfortunately, the Internal Revenue Serv- other members of the law firm of Bopp, Coleson & Candidate Y.’’ Buckley, 424 U.S. at 44. ice has given this provision a very expansive Bostrom are or have been engaged. 30. Federal Election Commission v. National Con- interpretation which clearly encompasses 7. Free speech is both an end and a means, as stat- servative Political Action Committee, 470 U.S. 480 (1985). issue advocacy. For instance, in Revenue ed by the United States Supreme Court in FEC v. Massachusetts Citizens for Life (MCFL): 31. The public policy struggle over abortion rights Ruling 78–248, the IRS interpreted this provi- ‘‘[w]hile this market metaphor has guided con- is a good example of the checks and balances in the sion to include voter guides, even though gressional regulation in the area of campaign activ- free marketplace of ideas. Abortion-rights advocates they only contained issue advocacy and did ity, First Amendment speech is not necessarily lim- promote their favored candidates by making dona- not contain any ‘‘express advocacy.’’ As a re- ited to such an instrumental role. As Justice Bran- tions through PACs such as Emily’s List, while pro- sult, not-for-profit groups have been chilled deis stated in his discussion of political speech in his life advocates contribute to PACs such as the Na- in the exercise of their constitutional right concurrence in Whitney v. California, 274 U.S. 357, tional Right to Life Political Action Committee. 375 . . . (1927): 32. The Court, for instance, has approved statutory to issue advocacy. requirements that PACs register and report their fi- Congress should correct this clear viola- ‘‘Those who won our independence believed that the final end of the State was to make men free to nancial activities. Buckley, 424 U.S. at 60–68. tion of First Amendment speech by bringing develop their faculties; and that in its government 33. See e.g., West Virginians for Life v. Smith, 919 this provision into compliance with Buckley. the deliberative forces should prevail over the arbi- F. Supp. 954 (S.D.W.V. 1996). Co-author James Bopp, This provision should be amended to read trary. They valued liberty both as an end and as a Jr. was lead counsel representing the Plaintiffs in that this exemption is available to § 501(c)(3) means.’’ MCFL, 479 U.S. 238, 257 n. 10 (1986) (emphasis this case. organizations that ‘‘do not contribute to any added) (internal citation omitted). ‘‘It is the fact of 34. The heavy burden imposed on PACs was well- participation in the political process that the First described with respect to federal PACs in FEC v. political candidate, political committee, or Machinists Non-Partisan Political League, 655 F.2d political party and do not make any expendi- Amendment protects, not [merely] its qualities of sanity and objectivity.’’ West Virginians for Life v. 380, 392 (D.D.C. 1981), cert. denied, 454 U.S. 897 (1981), tures expressly advocating the election or Smith, 919 F. Supp. 954, 958 (S.D.W. Va. 1996) which noted that, once an organization is labelled a defeat of a clearly identified candidate for (quoting Lillian R. BeVier, The First Amendment and ‘‘political committee,’’ it must ‘‘then submit to an political office.’’ Furthermore, Congress Political Speech: An Inquiry Into the Substance and elaborate panoply of FEC regulations requiring the should make it clear in the statute that Limits of Principle, 30 STAN. L. REV. 299, 317 (1978)). filing of dozens of forms, the disclosing of various § 501(c)(4) organizations are not subject to a 8. FEC v. Machinists Non-Partisan Political activities, and the limiting of the group’s freedom of League, 655 F.2d 380, 389 n. 17 (D.C. Cir. 1981) (quoting political action to make expenditures or contribu- tax except on any contribution to a political tions.’’ candidate, committee, or party and on any Buckley, 424 U.S. at 14-15 and Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)). 35. Buckley, 424 U.S. at 74–82. independent expenditure expressly advocat- 9. The Federalist No. 10 (James Madison) (setting 36. Id. ing the election or defeat of a clearly identi- forth the principle that in our federal system the 37. Of course, if the pro-life newsletter were to fied federal candidate. ambition of one group was to be checked and bal- combine in its election issue the words ‘‘vote pro- life’’ and the words ‘‘Candidate D is pro-life,’’ the CONCLUSION anced by other groups, as all argued for public sup- port of their positions). The Supreme Court has al- communication contains express advocacy. MCFL, As the U.S. Congress considers campaign ways held that certain categories of speech did not 479 U.S. at 249–50. This is based on the unremarkable finance reform, it has a unique opportunity have First Amendment protection, e.g., slander, algebraic formula that, if a=b and b=c, then a=c. to make significant changes that will im- libel, fraud, fighting words, obscenity, criminal con- 38. This is so because the Supreme Court has in- prove our electoral process. There are two spiracy or incitement, treason, and communicating sisted that the bright-line express advocacy test national security secrets. See e.g., John E. Nowak, must govern any effort to bar or restrict commu- paths that beckon. One to limit, stifle, pun- nications about candidates, parties, and ideas in the ish and penalize speech is doomed to failure Ronald D. Rotunda & J. Nelson Young, Constitu- tional Law 827 (3d ed. 1986) (Chapter 16, Freedom of election context. The Court has done so because at the doorstep of the United States Su- Speech). America believes in free expression on issues of the preme Court. The other to encourage, pro- day, even at election time, or, more correctly, espe- mote and enhance speech will not only pass * * * * * cially at election time. What good would a First constitutional muster but will restore the 24. Most notable among these has been Buckley it- Amendment be if it did not protect communicators balance that many believe is critically need- self, which struck down several provisions of the at precisely the time when free speech would be Federal Election Campaign Act Amendments of 1974, most effective and is most important? The fact that ed. Pub. L. No. 93–443, 88 Stat. 1263. issue advocacy might affect an election is constitu- Moreover, the FEC must be reigned in to 25. Bradley Smith makes a convincing case that tionally inconsequential because the First Amend- protect the constitutional rights of the peo- campaign finance reform as it has been practiced ment right of issue advocacy must be preserved. In ple. The FEC is an agency out of control. In- has led to undemocratic consequences by entrench- fact, to the Framers of the Constitution and the stead of carrying out its legitimate adminis- ing the status quo, promoting influence peddling, re- First Amendment, the constitutional protection of trative role, it has expended considerable re- ducing accountability, and empowering social elites free expression was precisely to protect the advo- sources seeking to restrict, stifle and punish (such as news reporters and wealthy candidates) at cacy of issues and ideas in the political context. the expense of grass-roots, populist efforts. Bradley ‘‘Freedom of speech plays a fundamental role in a constitutionally protected free speech. Con- A. Smith, 105 YALE L.J. at 1071–84. In Day v. democracy . . . [I]t ‘is the matrix, the indispensable gress has an urgent duty to reorder the pri- Holahan, the United States Court of Appeal for the condition of nearly every other freedom.’ ’’ MCFL, orities of the FEC in order to protect citi- Eighth Circuit noted one example of incumbent self- 479 U.S. at 264 (quoting Palko v. Connecticut, 302 zens and grassroots organizations from the protection: ‘‘It appears that the legislators who en- U.S. 319 (1937)). ‘‘[T]he right of free public discussion S10374 CONGRESSIONAL RECORD — SENATE October 6, 1997 . . . [is] a fundamental principle of the American tion. See FEC v. Machinists Non-Partisan Political 85. Susan Hayward & Allison R. Hayward, Gagging form of government.’’ New York Times v. Sullivan, League, 655 F.2d 380, 392 (D.C. Cir. 1981). on Political Reform, REASON 20 (Oct. 1996). 376 U.S. 254, 274 (1964) (paraphrasing James Madison, 69. Buckley, 424 U.S. at 74–75 (footnotes omitted). 86. FEC v. American Federation of State, County 6 Writings of James Madison 341 (G. Hunt ed. 1908)). The threshold amount for reporting independent ex- and Mun. Employees, 471 F. Supp. 315 (D.D.C. 1979) 39. Faucher, 928 F.2d 468. penditures has been increased to $250. 2 U.S.C. (AFSCME). 40. A voter guide may be distributed by any indi- § 434(c)(1). 87. Id. at 317. vidual or organization, including churches and non- 70. Id. at 75. 88. Id. profit entities organized under 501(c)(3) and 501(c)(4) 71. Id. at 79–80 (emphasis added). 89. Id. of the Internal Revenue Code. 72. Id. at 81. 90. FEC v. Central Long Island Tax Reform Imme- 41. See infra Section III. 73. Akins, 101 F.3d 731. diately Committee, (CLITRIM) 616 F.2d 45 (2d Cir. 42. See e.g., West Virginians for Life, 919 F. Supp. 954 74. Id. at 734. 1980) (en banc) (per curiam). (permanently enjoining a state statute which de- 75. Id. at 735. 91. Id. at 52 (quoting 2 U.S.C. § 434(e)) (emphasis fined the distribution of a voter guide within 60 days 76. Id. at 742. supplied by court. of an election to constitute express advocacy of the 77. MCFL, 479 U.S. 238. 92. Id. (quoting 2 U.S.C. § 441d) (emphasis supplied election of a candidate). 78. Akins, 101 F.3d at 742. by court). 43. Virginia Society for Human Life v. Caldwell, 79. Id. at 743. 93. Id. at 53. 906 F. Supp. 1421, 1073–74 (W.D. Va. 1995) (recounting 80. From the opinion, it would appear that the 94. Id. (citations omitted). cases brought by the Virginia Democrat Party to en- FEC did not make a vigorous First Amendment de- 95. Id. (citations omitted). join the distribution of voter guides by Concerned fense. Rather, it appears to have relied on interpre- 96. Id. (citations omitted) (emphasis in original). Women for America and The Family Foundation). tation of precedent, statutory interpretation, and a 97. FEC v. Nat’l Conservative Political Action Co-author James Bopp, Jr. is lead counsel represent- plea for deference to its interpretation of the stat- Comm. (NCPAC) 470 U.S. 480 (1985). ing Plaintiffs in this case. ute in its regulations. Id. at 740–44. 98. 26 U.S.C. § 9001 et seq. 44. ‘‘Congress shall make no law respecting an es- 81. Akins v. FEC, 101 F.3d 731, petition for cert. filed, 99. NCPAC, 470 U.S. at 483. tablishment of religion, or prohibiting the free exer- 65 U.S.L.W. 3694 (U.S. Apr. 7, 1997) (No. 96–1590). 100. Id. at 482 (citing 26 U.S.C. § 9012(f)). cise thereof; or abridging the freedom of speech, or 82. The Fair Government Foundation’s special re- 101. Id. at 493–501. of the press, or of the right of the people to peace- port, The FEC’s Express War on Free Speech 18 102. Id. at 496. ably assemble, and to petition the Government for a (1996), sums up some of the evidence of the FEC’s 103. NCPAC 470 U.S. at 497. redress of grievances.’’ U.S. Const. amend. I. hostility to the Supreme Court’s bright-line protec- 104. See e.g., Faucher, 928 F.2d 468; Clifton v. FEC, 45. Buckley, 424 U.S. at 39 (quoting Williams v. tion of issue advocacy in Buckley and MCFL: 927 F. Supp. 493 (D.Me. 1996). Rhodes, 393 U.S. 23, 32 (1968)). ‘‘That the Commission dragged its feet in revising 105. MCFL, 479 U.S. 238. 46. Id. at 48 (citations omitted) (ellipsis in origi- its rules to conform them with the Supreme Court 106. Id. at 243. nal). rulings suggests that the FEC sought to prolong its 107. Id. at 244. 47. Buckley, 424 U.S. at 44, 79. concession to the Supreme Court in the hope of 108. 2 U.S.C. § 431(9)(B)(i). 48. Id. At 45. changing the high court’s mind. .. . During an open 109. MCFL, 479 U.S. at 249, 251, 263. 49. United States v. Congress of Industrial Organi- meeting of the FEC, Commission chairman Trevor 110. 2 U.S.C. § 431(9)(A)(i). zations (C.I.O.). 335 U.S. 106 (1948). Potter . . . expressed concern whether the Commis- 111. MCFL, 479 U.S. at 248. 50. Id. at 106–107 n.1. sion was remaining faithful to Supreme Court prece- 112. Id. at 249. 51. Id. at 108. dent. Potter questioned whether ‘enforcing the law 113. Id. 52. Id. at 121. in specific matters and then in drafting a definition 114. Id. at 262. 53.* * * in general, is consistent with the very narrow lan- 115. As discussed infra in the treatment of Faucher, 54. 2 U.S.C. 431 guage’ of . [End note: ‘Federal Election Com- et seq. Buckley the FEC sought to dismiss the Supreme Court’s ap- 55. Buckley, 424 U.S. 1. mission Open Meeting (Aug. 11, 1994) (taped tran- plication of the express advocacy test in MCFL to 56. Buckley, 424 U.S. at 41 (quoting 12 U.S.C. script available at Commission).’] corporate expenditures as nonbinding obiter dictum. § 608(e)(1)). ‘‘In the end, the Commission simply would not ac- 116. FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), 57. Id. at 41. cept the plain meaning of the Buckley decision be- cert. denied 484 U.S. 850 (1987). 58. Id. at 42. cause it so conflicted with a majority of commis- 117. 2 U.S.C. § 434(c)(1). 59. Id. at 42. sioners’ fervently held regulatory beliefs. Beliefs 118. 2 U.S.C. § 441d. 60. Buckley, 424 U.S. at 43 (Quoting Collins, 323 U.S. that were less a product of the FECA or court cases 119. Buckley, 424 U.S. at 42. at 535). than a personal philosophical disposition. 120. Furgatch, 807 F.2d at 864. 61. Id. The Buckley court also quoted approvingly ‘‘Comments of the FEC’s chairman during consid- the comments of the United States Court of Appeals eration of the proposed rules reveal what in retro- 121. Id. at 858. for the District of Columbia, which it affirmed: spect must seem like inadvertent candor, as they 122. Id. at 864. ‘‘Public discussion of public issues which also are demonstrate a willful disregard of the Supreme 123. See, e.g., Maine Right to Life Committee v. campaign issues readily and often unavoidably Court’s commands. Chairman Trevor Potter, who FEC, 914 F. Supp. 8, 13 (D. Me. 1996), aff’d 98 F.3d 1 draws in candidates and their positions, their voting cast the decisive fourth vote to approve the revised (1st Cir. 1996) (per curiam). records and other official conduct. Discussions of rules, unabashedly revealed that the Commission is 124. Furgatch, 807 F.2d at 858. those issues, and as well more positive efforts to in- ‘close to being on a different planet from the Su- 125. FEC v. Christian Action Network, WL 157269 fluence public opinion on them, tend naturally and preme Court in terms of what we are looking at.’ In (4th Cir. 1997). inexorably to exert some influence on voting at elec- Chairman Potter’s mind, ‘the [Supreme] Court 126. Id. at 861. tions.’’ Id. at 42 n.50 (quoting, Buckley, 171 U.S. App. doesn’t understand[.]’ as its rulings are ‘directly 127. Id. at 862. D.C. 172, 226, 519 F.2d 821, 875 (D.C. Cir. 1975)). contrary to what the Commission understands the 128. Id. 62. There are strong arguments that a person wish- purpose of the Act [FECA] to be . . . . ’ Id. 129. FEC v. Christian Action Network, 110 F.3d 1049 ing to express an opinion on any candidate to print ‘‘Commissioner Danny Lee McDonald, who also (4th Cir. 1997). and distribute flyers opposing or supporting can- voted for the revised rules, was similarly dismissive 130. Id. (citing the FEC’s brief opposing U.S. Su- didates, or to give a donation to a campaign, should of the Supreme Court’s edicts. He concluded that preme Court review). not have to think at all about possible laws restrict- ‘the Court just didn’t get it.’ ’’Id. 131. Id. ing his or her speech in America. That is the spirit 83. See e.g., 11 C.F.R. § 114.4(b)(5) (invalidated in 132. FEC v. National Organization for Women, 713 of the First Amendment, which says that ‘‘Congress Faucher v. FEC, 928 F.2d 468); 11 C.F.R. § 114.1(e)(2) F. Supp. 428 (D.D.C. 1989), appeal dismissed (D.C. Cir.: shall make no law . . . abridging the freedom of (invalidated in Chamber of Commerce v. FEC, 69 Oct. 11, 1991). speech . . . .’’ U.S. Const. amend. I (emphasis added). F.3d 600 (D.C. Cir. 1995)); 11 C.F.R. § 100.22 (invali- 133. Id. at 431–32. That one could today suffer penalties for political dated in Maine Right to Life Committee v. FEC, 914 134. Id. at 433–34. speech which is not libelous or fraudulent would, no F. Supp. 8 (D. Me. 1996), aff’d, 98 F.3d 1 (1st Cir. 135. Id. at 434. doubt, be astounding and disconcerting to the Fram- 1996)); 11 C.F.R. § 114.10 (invalidated in Minnesota 136. Id. at 435. ers of the First Amendment. Citizens Concerned for Life v. FEC, 936 F. Supp. 633 137. Id. at 429. However, the Supreme Court has said that, at a (D. Minn. 1995)); and 11 C.F.R. § 114.4(c)(4) & (5) (in- 138. Faucher v. FEC, 928 F.2d 468. The present au- minimum, one should not have to think twice about validated in Clifton v. Federal Election Commission, thors were counsel for plaintiffs in this case. speaking out on issues of public concern for fear of 927 F. Supp. 493 (D. Me. 1996)). Co-author James 139. 11 C.F.R. § 114.4(b)(5)(i) (C) and (D). violating some law. The result of laws which limit Bopp, Jr. was lead counsel for Plaintiffs in all of 140. Faucher, 743 F. Supp. 64. speech in the campaign arena is to chill speech by these cases except for Chamber of Commerce. 141. Id. 928 F.2d 468. individuals and grassroots citizen groups and to en- 84. See e.g., FEC v. AFSCME, 471 F. Supp. 315 142. Id. at 472. hance the speech of organized advocacy interests (D.D.C. 1979); FEC v. CLITRIM, 616 F.2d 45 (2d Cir. 143. Id. who can afford to hire lawyers to watch over all 1980); Machinists Non-Partisan Political League, 655 144. FEC v. Survival Education Fund, 1994 WL 96 their publications and expenditures. Bradley A. F.2d 380; FEC v. Phillips Publishing, 517 F. Supp. (S.D.N.Y. 1994), aff’d in part and rev’d in part, 65 F.3d Smith, 105 Yale L.J. at 1077. This reality runs ex- 1308 (D.D.C. 1981); MCFL, 479 U.S. 238; FEC v. NOW, 285 (2d Cir. 1995). actly counter to the populist rhetoric of most cam- 713 F. Supp. 428 (D.D.C. 1989); FEC v. GOPAC, 871 F. 145. Id. at 3. The Second Circuit avoided the ex- paign finance reformers. Supp. 851 1466, 917 F. Supp. (D.D.C. 1994); FEC v. Sur- press advocacy issue by holding that Survival Edu- 63. Buckley, 424 U.S. at 44. vival Education Fund, 65 F.3d 285 (2nd Cir. 1995); FEC cation Fund was an MCFL-type organization so that 64. Id. at 44 n.52. v. Christian Action Network, 894 F. Supp. 946 (W.D. it could do express advocacy, but that it was re- 65. Id. at 44. Va. 1995), aff’d, 92 F.3d 1178 (4th Cir. 1996); and Colo- quired to include disclaimers on its communications 66. Id. at 44–45. rado Republican, 116 S. Ct. 2309. These enforcement that solicit contributions that were to be used for 67. Buckley, 424 U.S. at 79. The U.S. Court of Ap- actions, however, are only the tip of the iceberg its express advocacy. Survival Education Fund, 65 peals for the District of Columbia has recently de- since many enforcement actions never progress be- F.3d at 285. cided that the major purpose test does not apply to yond the administrative level. Such administrative 146. FEC v. Christian Action Network, 894 F. Supp. contributions, but only to independent expenditures. investigations, however, can be equally chilling on 946 (W.D. Va. 1995), aff’d, 92 F.3d 1178 (4th Cir. 1996) Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996). This case free speech. See e.g., MUR 4203 regarding U.S. Term (per curiam). will be analyzed infra. Limits; MUR 4204 regarding Americans for Tax Re- 147. Id. at 948. 68. These burdens include not only detailed record- form; Colorado Republican Federal Campaign Com- 148. Id. at 951. keeping and reporting requirements for all of the or- mittee v. FEC, 116 S. Ct. 2309 (1996); and FEC v. 149. FEC v. Christian Action Network, 92 F.3d 1178. ganizations financial activities but also disclaimer Christian Action Network, 110 F.3d 1049 (4th Cir. 150. FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996). requirements on their publications and limits on the 1997) (awarding attorneys’ fees against FEC for bad 151. Id. at 859. contributions that may be received by the organiza- faith prosecution). 152. Id. at 867. October 6, 1997 CONGRESSIONAL RECORD — SENATE S10375 153. Faucher, 928 F.2d 468. 187. The presumed coordination theory will be dis- 246. MCFL, 479 U.S. at 264–65. 154. 11 C.F.R. § 114.4(b)(5)(i)(A)–(F). cussed in context of the Colorado Republican case 247. See id. at 264. 155. The Fair Government Foundation’s special re- below. 248. Id. at 264. port on The FEC’s Express War on Free Speech in- 188. Maine Right to Life Committee was also a 249. Id. at 264. cludes the following succinct chronology of the plaintill in Faucher, 928 F.2d at 468, and in Maine 250. Id. at 264. FEC’s rulemaking efforts to regulate express advo- Rights to Life Committee, 914 F. Supp. at 8. James 251. Id. at 257. cacy: Anatomy of a Rulemaking—The FEC’s Twenty Bopp, Jr., one of the present authors, was lead coun- 252. Id. (emphasis added). Year Struggle Over Express Advocacy: sel in all three of these cases brought by Maine 253. Austin v. Michigan Chamber of Commerce, 494 1976—Buckley v. Valeo decided. Right to Life against the FEC. U.S. 657, 659 (1990). 1976—FEC rule defining ‘‘express advocacy’’ adopt- 189. MCFL, 479 U.S. at 238. 254. The regulations defined the term ‘‘business ac- ed. 190. Clifton, 927 F. Supp. at 493. tivities’’ to include: (A) Any provision of goods or 1986—Massachusetts Citizens for Life decided. 191. 11 C.F.R. § 114.4(c)(4) & (5). services that results in income to the corporation; 1987—Petition for Rulemaking filed. 192. Clifton, 927 F. Supp. at 494. and (B) Advertising or promotional activity which 1988—Advanced Notice of Proposed Rulemaking. 193. Id. at 497. results in income to the corporation, other than in 1988—FEC holds public hearing. 194. Id. at 497–98. the form of membership dues or donations. 11 C.F.R. 1990—Request for Further Comment. 195. Id. (citing Faucher) (emphasis in the original). § 114.10(b)(3)(i). Thus, business activities would en- 196. Clifton, 927 F. Supp. at 494, appeal docketed, 1992—Notice of Proposed Rulemaking. compass income directly related to the promotion of No. 96–1812 (1st Cir. July 18, 1996) (oral argument 1992—FEC holds public hearing. the corporations political ideas, such as advertising conducted December 4, 1996). 1994—FEC open meeting to consider proposed rule. in its newsletter and sale of educational material, as 197. Colo. Republican Federal Campaign Comm. V. 1995—FEC open meeting to consider Final Rule. well as unrelated business income. FEC, 116 S. Ct. 2309 (1996). 1995—Final Rule transmitted to Congress. 198. For instance, the FEC has also adopted a regu- 255. 11 C.F.R. § 114.10(b). 1995—Revised Express Advocacy rules take effect. lation at 11 C.F.R. § 109.1(b)(4)(i)(B) which states that 256. MCFL, 479 U.S. at 259. 1996—Revised rules struck down; Id. at 16. the Commission will presume expenditures ‘‘made 257. Id. at 258. 156. See, e.g., Main Right to Life Committee 914 F. by or through any person who is, or has been, au- 258. Id. Supp. at 12 (considering and * * * deference to the thorized to raise or expend funds, who is, or has 259. Id. FEC’s interpretation on which these new regulations been, an officer of an authorized committee, or who 260. Id. (emphasis added). were based). is, or has been, receiving any form of compensation 261. 60 Fed. Reg. 35292, 35299 (1995). 157. 11 C.F.R. § 100.22. or reimbursement from the candidate, the can- 262. MCFL, 479 U.S. at 259. 158. In this first set of 1995 regulation (released Oc- didate’s committee or agent’’ to be coordinated. 263. Id. at 261. tober 5), the FEC also tacked on a set of rules deal- This regulation is also of doubtful validity as a re- 264. Id. at 265. ing with MCFL-type organizations as established by sult of the Colorado Republican decision. 265. Id. at 264. the United States Supreme Court in MCFL, 479 U.S. 199. Section 441a(d) of the FECA permits political 266. Id. at 264. 238. This part of the regulations will be discussed, parties to spend $20,000 or $.02 per person of voting 267. Id. at 260. infra, under a separate heading. age in the state, whichever is greater, adjusted for 268. Id. 159. James Bopp, Jr., co-author of this article, was inflation since 1974. Colorado Republican, 116 S. Ct. at 269. The FEC regulations specifically included lead counsel in the case. 2313–44 (lead opinion of Breyer, J., joined by O’Con- ‘‘credit cards, insurance policies or savings plans,’’ 160. 11 C.F.R. § 100.22. nor and Souter, JJ.). Thus, the Colorado Republican as well as ‘‘training, education, or business informa- 161. Maine Right to Life Committee, 914 F. Supp. at Party was permitted to spend in 1986 about $103,000 tion,’’ in its list of disincentives to disassociate. 11 13. ‘‘in connection with the general election campaign C.F.R. § 114.10(c)(3)(ii)(A) and (B). 162. Id. at 10. of a candidate for the United States Senate.’’ Id. at 270. MCFL, 479 U.S. at 260, 264. 163. Id. at 11–12; Furgatch, 807 F.2d at 857 (citations 2314. 271. Id. at 264. omitted). 200. Id. 272. Austin, 495 U.S. at 664 (emphasis added). 164. Id. at 13. 201. Id. 273. Id. 165. Maine Right to Life Committee, 98 F.3d at 1. 202. Id. at 2315. 274. FEC v. Survival Education Fund, 65 F.3d 285 166. Petition for Rehearing and Suggestion for Re- 203. Id. at 2315. (2d Cir. 1995). hearing in Banc at 8, Maine Right to Life Commit- 204. Id. 275. Id. at 293. tee, No. 96–1532 (1st Cir. 1996). 205. Id. at 2318 (citing FEC advisory opinion AO 276. Day, 34 F.3d 1356, 1364 (8th Cir. 1994) (emphasis 167. 11 C.F.R. § 114.4(c)(4) & (5). The new regulations 1988–22). in original). also governed several other things, including can- 206. Id. at 2315. 277. Id. at 1363. See also SEF, 65 F.3d at 292 (‘‘The didates appearances at corporate meetings and use 207. at 2317. Id. Court’s listing of the factors essential to its holding of corporate letter-head in relation to campaigns. 208. Id. at 2315. on the facts of a particular case does not impose a 168. 61 Fed. Reg. at 10269. 209. Id. at 2321. code of compliance that other nonprofit corpora- 169. The regulation, 11 C.F.R. § 114.4(c)(5), was pro- 210. Id. at 2323. tions must follow to the letter.’’). mulgated under the ostensible statutory authority 211. Id. at 2331. 278. 479 U.S. at 265. of 2 U.S.C. § 441b (the broad statutory prohibition on 212. FEC v. Christian Action Network, 894 F. Supp. MCFL, corporate ‘‘expenditures’’ and ‘‘contributions’’). 946 (W.D. Va. 1995), aff’d, 92 F.3d 1178 (4th Cir. 1996) 279. Minnesota 936 F. Supp. 633 (D. Minn. 1995). 170. Clifton, 927 F. Supp. at 497. (per curian). See supra Section III.I. James Bopp, Jr. was lead counsel in the case. 171. 11 C.F.R. § 114.4(c)(5)(i). Paragraph (c)(5)(i) pro- 213. 28 U.S.C. § 2412. 280. Id. at 638. vides that corporations ‘‘shall not contact . . . the 214. FEC v. Christian Action Network, 110 F.3d 281. Id. at 642. candidates, the candidates’ committees or agents re- 1049, 1064 (4th Cir. 1997). 282. Id. at 643. garding the preparation, contents and distribution 215. Id. at 1051–56, 1061–64. 283. MCFL, 479 U.S. at 643, appeal docketed, No. 96– of the voter guide. . . .’’ 216. Id. at 1052–55, 1069–61. 2612 MNST (8th Cir. 1996) (oral arguments held Feb- 172. It is difficult to imagine how an organization 217. Id. at 1054. ruary 10, 1997). could prepare a voter guide which would be helpful 218. Id. at 1063 (citations omitted) (footnotes omit- 284. 1997 WL 225120 (8th Cir. 1997). to the voters without contacting the candidates and ted) (emphasis added). 285. United States v. Congress of Industrial Orga- asking for responses to a survey form. The organiza- 219. Id. The FEC also failed to quote even once key nizations (CIO), 335 U.S. 106 (1948). tion would be left to glean candidate views from footnote 52 of Buckley, although it quoted the sen- 286. Id. at 106–107 n.l. campaign literature, news accounts, and the like. tence to which the footnote was attached. Id. at 287. Id. at 108. Information from such sources would often be inac- 1063. 288. Id. at 121. curate, incomplete, or subject to the ‘‘spin’’ supplied 220. Id. at 1064. 289. FEC v. National Right to Work Committee, by a campaign strategist or reporter. Questions 221. Id. at 1061. (NRWC) 459 U.S. 197 (1982). framed by advocacy organizations elicit much truer 222. Id. at 1057. 290. Id. at 197. pictures of candidates’ positions than candidates 223. Id. at 1064. 291. Id. often are willing to admit without such careful 224. MCFL 479 U.S. 238. 292. Id. at 198. framing. 225. 2 U.S.C. § 441b. 293. Id. at 199. 173. 11 C.F.R. § 114.4(c)(5)(ii) 226. MCFL, 479 U.S. at 263. 294. Id. at 200. 174. 11 C.F.R. § 114.4(c)(5)(ii) (A) through (E). Para- 227. Id. at 264. 295. Id. at 204. graph (c)(5)(ii) provides that a ‘‘corporation . . . 228. Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994). Co- 296. Id. at 211. shall not contact . . . the candidates, the can- author James Bopp, Jr. was counsel for Plaintiff 297. Id. at 206–07. didates’ committees or agents regarding the prepa- Minnesota Citizens Concerned for Life, Inc. in this 298. Id. at 207. ration, contents and distribution of the voter guide, case. 299. 11 C.F.R. § 114.1(e) (1977–1993). except that questions may be directed in writing to 229. 60 Fed. Reg. 35292, 35297 (1995) (emphasis 300. 11 C.F.R. § 114.1(e)(2) (emphasis in original). the candidates included in the voter guide and the added). 301. Chamber of Commerce v. FEC, 69 F.3d 600, 602 candidates may respond in writing. . . .’’ 230. 11 C.F.R. § 114.10(c) (1). (D.C. Cir. 1995). 175. 11 C.F.R. § 114.4(c)(5)(ii)(B). 231. 11 C.F.R. § 114.10(c) (2). 302. ‘‘[S]ome relatively enduring and independ- 176. Id. 232. 11 C.F.R. § 114.10(c) (3) (ii). ently significant financial or organizational attach- 177. Id. 233. 11 C.F.R. § 114.10(c) (4) (ii) and (iii). ment is required to be a ‘member’ under 178. 11 C.F.R. § 114.4(c)(5)(ii). 234. 11 C.F.R. § 114.10(e)(1). § 441b(b)(4)(C).’’ NRWC, 459 U.S. at 204 (emphasis 179. The Supreme Court, however, has repeatedly 235. At 11 C.F.R. § 114.10(c)(1)–(5). added). rejected the effort of government to ‘‘foreclose the 236. 11 C.F.R. § 114.10(f). 303. Chamber of Commerce, 69 F.3d at 604. exercise of constitutional rights by mere labels.’’ 237. MCFL, 479 U.S. at 264. 304. Id. at 605. NAACP v. Button, 371 U.S. 415, 429 (1963). 238. Buckley, 424 U.S. at 14 (citations omitted). 305. Id. at 606. Some hierarchical organizations had 180. 2 U.S.C. § 441b(a). 239. MCFL, 479 U.S. at 264 (emphasis added). been given specific exemptions from this require- 181. 2 U.S.C. § 441b(b)(2). 240. Id. at 258. ment in the regulations, but others had not received 182. S. Rep. No. 94–677, 94th Cong., 2d Sess., 59 241. Id. at 258 n.10 (quoting Whitney v. California, such treatment, leading the court to brand the regu- (1976), 1976 U.S.C.C.A.N. (90 Stat.) 974. 274 U.S. 357, 375 (1927)) (emphasis added). lations ‘‘arbitrary and capricious.’’ Id. 183. Orloski v. Federal Elections Commission, 795 242. Id. at 265. 306. See NRWC, 69 F.3d 600. F.2d. 156 (D.C. Cir. 1986). 243. MCFL, 479 U.S. at 265 (emphasis added). 307. McIntyre v. Ohio Election Commission, 115 S. 184. Id. at 160. 244. Id. at 251–52. Ct. 1511 (1995). 185. Id. (emphasis added). 245. First National Bank v. Belloti, 435 U.S. 765, 786 308. Id. at 1514. 186. * * * (1978). 309. Id. S10376 CONGRESSIONAL RECORD — SENATE October 6, 1997 310. Id. 359. See e.g., Buckley, 424 U.S. at 25–28; MCFL, 479 maintain the balance between them struck by Con- 311 Ohio Rev. Code Ann. § 3599.09(A). U.S. at 256. gress in any new law. 312. McIntyre, 115 S. Ct. at 1518–19 (citing Buckley, 360. First National Bank of Boston v. Bellotti, 435 398. 28 U.S.C. § 2411(d)(1)(A) allows for an award of 424 U.S. at 14–15). U.S. 765, 786 (1978) (emphasis added) (footnote omit- attorneys fees against a federal agencies for its ac- 313. Id. at 1519. ted) (citations omitted). tions, ‘‘unless the court finds that the position of 314. Id. 361. Buckley, 424 U.S. at 25. the United States was substantially justified or that 315. Id. at 1520. 362. United States v. Nat’l Treasury Employees special circumstances make an award unjust.’’ How- 316. Id. at 1520 (citing Buckley, 424 U.S. at 14–15). Union, 115 S. Ct. 1003, 1017 (1995), quoting Turner ever, the amount of the attorneys fees is limited to 317. Id. Broadcasting System v. FCC. 114 S. Ct. 2445, 2470 $75 an hour and only private parties with modest as- 318. Id. at 1521. (1994) (Kennedy. J., plurality). In Colorado Repub- sets are eligible for the award. Id. at § 2411(d)(2)(A) 319. Id. lican, the Court cited this passage in Turner after and (B). There are no similar limitations on award 320. Id. at 1521 (footnote omitted). noting that the FEC did not ‘‘point to record evi- of attorneys fees for prevailing private parties under 321. Id. at 1523. See Shrink Missouri Government dence or legislative findings suggesting any special § 1988. PAC v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995) (ap- corruption problems’’ that would support its posi- 399. Current federal law does not allow an award of plying McIntyre analysis in materials relating to tion. Id. 116 S. Ct. at 2317. attorney fees against the United States for the candidate elections), holding not appealed in 71 F.3d 363. Carver, 72 F.3d 633. striking down of a federal statute for violation of 1422 (8th Cir. 1995); State v. Moses, 655 So. 2d 779 (La 364. Id. at 643. constitutional protections. Ct. App. 1995) (holding unconstitutional a ban on 365. Id. 400. 2 U.S.C. § 437c(a)(2). anonymous campaign literature). 366. Shrink Missouri Government PAC v. Maupin, 401. 2 U.S.C. § 437c(f). 322. Buckley, 424 U.S. at 75 (‘‘disclosure provi- 923 F. Supp. 1413 (E.D. Mo. 1996). sions’’); McIntyre, 115 S. Ct. at 1522 (rejecting conten- 367. Id. at 1420–21. Mr. MCCONNELL. I yield the floor. tion that Buckley ‘‘supports the constitutionality of 368. Colorado Republican, 116 S. Ct. at 2330 n.9. Mr. MCCAIN addressed the Chair. its disclosure requirement,’’ to wit, a disclaimer). 369. Id. The PRESIDING OFFICER. The Sen- 323. McIntyre, 115 S. Ct. at 1522 (emphasis added) 370. Lillian R. BeVier, 94 Col. L. Rev. at 1278. (internal citation omitted). 371. Id. This is so because ‘‘[s]uch legislation car- ator from Arizona. 324. Id. at 1523. ries significant potential to achieve incumbent pro- Mr. MCCAIN. Mr. President, I ask 325. Id. tection instead of enhancing political competition. unanimous consent that Brad Vynalek, 326. Cf. Virginia Society for Human Life, 906 F. Supp. It arouses the uncomfortable suspicion that the cor- who is a legal intern on my staff, be 1071 (issuing a preliminary injunction against Vir- ruption-prevention banner is an all-too-convenient ginia’s disclaimer requirement on literature con- subterfuge for the deliberate pursuit of less savory granted full privilege of the floor dur- cerning state candidates or referenda). or less legitimate goals.’’ Id. at 1279. ing consideration of S. 25. 327. Buckley, 424 U.S. at 19. 372. Id. The PRESIDING OFFICER. Without 328. Id. at 23. 373. John H. Ely, Democracy and Distrust 106 329. Nevertheless, states have made unsuccessful (1980). objection, it is so ordered. efforts to place a cap on independent expenditures. 374. Ralph Winter, Political Financing and the Con- Mr. MCCAIN. Before Senator MCCON- For example, a $1,500 cap on independent expendi- stitution, 486 Annals Am. Acad. Pol. & Soc. Sci. 34, NELL leaves the floor, I want to thank tures has been struck down by a federal district 40, 48 (1986). him for again the dialog that has taken court in Georgia, Georgia Right to Life v. Reid, No. 375. Elrod v. Burns, 427 U.S. 347, 373 (1979). 1:94–CV–2744–RLV, slip. op. (N.D. Ga. Jan. 22, 1996) 376. Shuttlesworth v. City of Birmingham, 394 U.S. place during this debate, and I look for- (unpublished decision), and a $1,000 per state elec- 147, 163 (1969). ward to its finality. tion cap on independent expenditures by PACs in 377. Carroll v. President and Commissioners of I also urge his consideration, since he New Hampshire has been struck down by the First Princess Anne, 393 U.S. 175, 182 (1968). Circuit. New Hampshire Right to Life Political Ac- 378. See Family Foundation v. Brown, 9 F.3d 1075 has included in the RECORD so many ar- tion Committee v. Gardner, 99 F.3d 8 (1st Cir. 1996). (1993); Virginia Society for Human Life v. Caldwell, ticles, the piece that was in the Wash- James Bopp, Jr. was lead counsel in both of these 906 F. Supp. 1071 (W.D. Va. 1995) (reciting history of ington Post yesterday by two fairly cases. prior restraints in Virginia). Co-authors James well known Americans, former Presi- 330. Buckley, 424 U.S. at 26–27. Bopp, Jr. and Richard E. Coleson were both counsel 331. Id. at 27. for Plaintiffs in these two cases. dents Jimmy Carter and Gerald Ford, 332. As noted above, however, this holding of Buck- 379. Id. who have said: ley is in jeopardy due to the recently expressed views 380. See e.g., S. 25, 105th Cong., 1st Sess. (1997) In order to accomplish this goal— of four members of the Supreme Court that con- (sponsored by Senators McCain and Feingold); H.R. tribution limits are also unconstitutional. See Colo- 493, 105th Cong., 1st Sess. (1997) (sponsored by Rep- Talking about it is particularly im- rado Republican, 116 S. Ct. 2323 (Rehnquist, C.J., and resentative Shays); H.R. 600, 105th Cong., 1st Sess. portant now to seize this opportunity Kennedy and Scalia, JJ., concurring); Colorado Re- (1997) (sponsored by Representative Farr). publican, 116 S. Ct. 2331 (Thomas, J., concurring.) 381. Buckley, 424 U.S. at 1. of reform now so that it can improve 333. Buckley, 424 U.S. at 25. 382. In obvious recognition of this fact, various the next Presidential election. 334. Id. at 24–25. proposed constitutional amendments have been in- In order to accomplish this goal, both par- 335. Id. at 26–30 (emphasis added). troduced in Congress that would overrule many of ties must lay down their partisanship and 336. Id. at 29. the speech-protecting rulings of the courts. See e.g., 337. See California Med. Ass’n v. FEC, 453 U.S. 182 S.J. Res. 2, 105th Cong., 1st Sess. (1997), reprinted in rise to meet this challenge together. Leaders (1981) (upholding $5,000 annual limitation on con- Cong. Rec. S.557 (daily ed. Jan. 21, 1997). of both parties have demonstrated their abil- tributions to political committees); Mintz v. 383. Mills v. Alabama, 384 U.S. 214, 218 (1966). ity to work together on crucial and conten- Barthelemy, 722 F. Supp. 273, 281–282 (E.D. La. 1989, 384. Buckley, 424 U.S. at 57. tious issues to do what is right for the coun- aff’d, 891 F.2d 520 (5th Cir. 1989) (upholding $5,000 385. Id. at 48–49. try. There is another such issue where co- contribution limitation for local mayoral election); 386. Id. at 92–93. operation is the only road to results. It is Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980) ($5,000 387. It can be hoped that the FEC will be more impossible to expect one side to disarm uni- contribution limitation upheld); Matter of willing to follow the enactments of Congress than Vandelinde, 366 S.E.2d 631, 636 (W. Va. 1988) (uphold- they have been willing to respect the pronounce- laterally in this massive arms race for funds. ing $1,000 contribution limit); Florida v. Police Be- ments of the United States Supreme Court. Rather, both sides must agree that bilateral nevolent Ass’n v. Florida Election Comm’n, 430 388. MCFL., 479 U.S. 238. limits are the only rational course of action So.2d 483 (Fla. Dist. Ct. App. 1983) ($1,000 contribu- 389. Buckley, 424 U.S. at 79. to preserve the moral integrity of our elec- tion limitation upheld). 390. 2 U.S.C. § 431(4)(a). toral system. One item that we should all 338. Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995). 391. See e.g., GOPAC, 917 F. Supp. 851. agree on is a banning of so-called soft money 339. Id. at 633. 392. In fact, a prohibition of contributions by cer- for national parties and their campaign com- 340. Id. at 638–43. tain not-for-profit corporations is currently being 341. Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994). tested before the 6th Circuit Court of Appeals in mittees. Soft money was initially intended 342. See also National Black Police v. Dist. of Col Kentucky Right to Life v. King, No 95–6581 (6th Cir. exclusively for party building activities but Bd. of Education, 924 F. Supp. 270, 282 (D.D.C. 1996) 1996) (oral arguments conducted November 13, 1996). has metamorphosed into a supplemental (striking down a contribution limit of $100). Co-author James Bopp, Jr. is lead counsel represent- source of cash for campaigns and candidates. 343. Buckley, 424 U.S. at 48. ing Plaintiffs in this case. It is one of the most corrupting influences in 344. Id. at 47. 393. In fact, based on figures from the Consumer modern elections because there is no limit 345. Id. at 21–22. Price Index, $1,000 in 1974 was worth $2,604.57 in 1994. on the size of donations, thus giving dis- 346. Id. at 19. 394. See e.g., Colorado Republican, 116 S.Ct. at 2317 347. Id. at 21. (‘‘If anything, an independent expenditure made pos- proportionate influence to those with the 348. Id. at 19. sible by a $20,000 donation (by an individual), but deepest pockets. 349. Id. at 23. controlled and directed by a party rather than the And they conclude, Mr. President, by 350. National Conservative Political Action Committee, donor, would seem less likely to corrupt than the 470 U.S. at 480. See also New Hampshire Right to Life same (or a much larger) independent expenditure saying: Political Action Committee v. Gardner, 99 F.3d 8 (1st made directly by that donor.’’). We must demonstrate that a government Cir. 1996). 395. Efforts to limit soft money contributions to of the people, by the people and for the peo- 351. Buckley, 424 U.S. at 15. political parties have the opposite effect. If political ple is not a thing of the past. We must redou- 352. Id. parties must use hard money for administration, ble our efforts to assure voters that public 353. Id. at 25. legal and accounting services, and generic, rather 354. Id. at 22. than candidate specific, voter registration and get- policy is determined by the checks on their 355. Nat’l Conservative Political Action Comm., 470 out-the-vote activities, then their relative influence ballots rather than the checks from special U.S. at 494. with candidates is diminished and the influence of interests. 356. Id. ‘‘special interests,’’ is increased. Mr. President, I would note that al- 357. See Vote Choice v. DiStefano, 4 F.3d 26 (1st Cir. 396. See 2 U.S.C. § 441a(c). 1993). 397. Indeed, Congress should index all expenditures though former President Bush’s name 358. U.S. Const. amend. 1. and contributions limits to inflation in order to is not on that op-ed piece, former October 6, 1997 CONGRESSIONAL RECORD — SENATE S10377 President Bush joined former President matically, significantly more in favor ‘‘Which of the following phrases better Carter and former President Ford in a of the incumbents, $282 million, with describes most politicians?’’ Mr. Presi- letter asking for the outlawing of soft $97 million in PAC funds; in the case of dent, 36 percent, ‘‘dedicated public money. challengers, $75 million they raised, servant,’’ 36 percent of the American Why should three former Presidents and $14 million in PAC funds. So you people believe that most politicians are join in such an almost unprecedented had, in this present scheme, the dedicated public servants; 44 percent, statement? present way that campaigns work—you ‘‘lying windbag,’’ lying windbag. Maybe Let me start from the beginning, in had $282 million raised by incumbents, there is a number of reasons why 44 the 1991–92 election cycle. There was $75 million raised by challengers, and percent of the people contacted in this $85 million in the 1991–92 cycle—$85 of course about a 5- or 6-to-1 advantage poll believe that their politicians, their million. In the 1995–96 election it is in PAC money as well. elected representatives, are lying wind- now up to $250 million. And the infor- Which of these statements comes bags, and those reasons may be a little mation that we have, disturbingly, is closer to your point of view? Some hard to define, all of them. And all of that it is growing exponentially, again, campaign finance reform is needed? those reasons—at least some of those in the year 1997. Mr. President, 77 percent of the Amer- reasons may be in the eye of the be- So here is the point. It is out of con- ican people; some campaign finance re- holder. But I don’t think anybody trol, as I have said. And the second form is not needed, 18 percent; and could deny that one of the major rea- point is that it was not always like don’t know, 5 percent. I have a more sons—the major reason why the Amer- this. Campaigns were not always fi- and more difficult time finding people ican people have such a low opinion of nanced by these massive amounts of who are in that 18 percent bracket. Be- their elected representatives is because soft money. They were not. In fact, cause, as every scandal unfolds, as of campaign finance reform and the after we reformed the campaign system every new revelation is exposed to us system with which we elect our people, in 1974, there was a dramatic improve- in the morning paper and over radio their representatives, and perhaps ment. and over television, there are more and more important how their elected rep- Campaign spending by Presidential more Americans who are joining that resentatives behave once in office and candidates, 1976–96, over the last 20 already huge 77 percent, who are say- what they do to stay in office. years. If you look down here, these ing we need to change the system. All of us should be disturbed at poll- total figures were a little over $100 mil- I don’t expect the American people to ing numbers like this, all of us who be- lion in 1976 and now are approaching know the difference between hard lieve, as we all do, public service is the $400 million in 1996. Remember that money and soft money. I don’t expect most honorable of professions. All of us this was after we passed laws that were them to know how much money a PAC should be disturbed about it, try to supposed to restrain the expenditures has raised versus that number, and I find the reasons for it, and solve it. I in a Presidential campaign. Let me don’t expect them to have read every would argue, again, that campaign fi- just point out again, this far exceeds fundraising letter that has gone out. I nance reform is a way to solve it. On ‘‘Late Edition,’’ in March 1997 a inflation—far, far exceeds inflation. wish they had. I wish they had because lady from Bartlesville, OK, described it House and Senate campaign expendi- then that 18 percent would literally best. She said, ‘‘* * * I’m a Republican tures have followed roughly the same disappear. But what they do know is supposedly. I’m more Independent than track, only more dramatically. From that something is wrong. There is real- anything else. But I want to ask you roughly $300 million in the total spent ly something seriously wrong here and something. At $735 a month, how much on House and Senate campaigns in 1976, they believe, as I do, that it needs to be freedom of speech do I have? I cannot there was a drop in the 1986 election repaired and it needs to be repaired contribute to these big campaigns.’’ but, aside from that, it has been an in- soon. The lady from Bartlesville, OK, Mr. exorable rise to well in excess of $700 I want to go back to a recurring President, I think, described the prob- theme that I have articulated through- million, nearly $800 million. lem in her own very compelling fash- The soft money has grown and grown out—not only this debate but for the ion. and grown and grown. In 1992, the Re- last couple of years. If you think, as 77 I paid attention to Senator MCCON- publican Party raised nearly $50 mil- percent of the American people do, NELL, as I always do, and listened to lion in soft money; the Democrat that we need to fix this system, then him and saw the learned treatises that Party, around $36 million. In 1994 it let’s sit down and reason and talk to- he put down by various special interest went up to the point where, in 1996, the gether. Let’s do that. OK? If you don’t groups, most of them headquartered Republican Party raised $138 million in think so, then obviously we will engage here in Washington, appealing why we soft money and the Democrat Party, in vigorous debate. But please don’t can’t abandon soft money, why we $123 million in soft money—all of them use the excuse or the rationale that can’t reform the system, why the sta- exponential increases, only over a 4- you are for campaign finance reform tus quo is the only constitutional path year period. but not this kind. Because Senator we could pursue. We have spent a lot of Again, I want to emphasize for those FEINGOLD and I have made it very time on the floor here with dueling who say the system has always been clear, we will discuss any aspect, any constitutional lawyers. I still think the same and we have always had to and all aspects of the campaign abuses Senator FEINGOLD and I, with 126, have contend with these massive amounts of that exist today and ways to fix them. the overwhelming advantage. money, the figures do not indicate We are willing to sit down and agree And, you know, that is kind of fun. that. I might add, this does not indi- and compromise. That has been the But the reality is no matter what we cate what, of course, labor did, which path we have taken on numerous other enact it will be challenged in the U.S. was very, very significant in the cam- reform issues ranging from the line- Supreme Court. It will be challenged paign of 1996. item veto to the gift money to even if all of us were in total agree- Senate candidates, dollars raised, and Ramspeck repeal to putting Congress ment that whatever we enacted was here is the problem. Here is a signifi- under the laws that apply to the Amer- constitutional. But the fundamental cant problem because it shows, also, ican people, and a variety of other is- point here is that if the American peo- why it is going to be so difficult for sues—repeal of the earnings test— ple believe that $735 a month doesn’t Members of this body to vote to change many others. Please, let’s not hear the buy them much freedom of speech, this system. I want to emphasize, these excuse that, Yes, the system is broken. then it seems to me we ought to do numbers show why it is so difficult in Yes, it needs to be fixed, but that is not what we can to restore their confidence the face of overwhelming numbers of my solution. If you have a better solu- and their faith in their ability. Americans who want us to fix this sys- tion, let me hear it because I would Mr. President, there is a book writ- tem. In 1996, the incumbents in the love to join it. ten by Mr. Michael Louis called ‘‘Trail Senate races raised $96 million in PAC A couple of months ago—in fact Feb- Fever.’’ It is really an enlightening funds. The challengers raised $43 mil- ruary 1997, more than a couple of book. I enjoyed reading it very much. I lion. In the House the numbers are dra- months ago—there was a Fox poll, Fox commend it to anyone who is inter- matically more different, in fact dra- News poll. It says the following, ested in the 1996 campaign. S10378 CONGRESSIONAL RECORD — SENATE October 6, 1997

Political ads fall broadly into two cat- FEINGOLD—let me emphasize again, as I Let me also reiterate an offer that I egories: those designed to inflate the can- have throughout to the point where it made last week. Last week, I said we didate’s appeal and those intended to destroy is getting monotonous, we want to ne- would be prepared to take up S. 9, the the candidate’s opponent. The Clinton ads, gotiate a reasonable settlement Lott amendment, independent of this which the president himself helped to write, were mainly of the second type. The bulk of amongst both parties that is fair to legislation. He has, in the parliamen- them were directed at the elderly and de- both parties, that the American people tary usage of the term, filled the tree. signed to prey on their natural fear of aban- believe is equitable, and that the He has precluded our opportunity to donment. The message they conveyed could American people believe is progress. offer amendments, to have a construc- be summarized in a sentence: If you are over We urge our colleagues on both sides of tive and a real debate. All we have sixty years old and the Republicans gain the aisle to enter into that dialog so we done so far is debated the overall con- control of the White House, you will lose can reach some consensus and move cept of campaign reform without hav- your health care. Vote for your life! It was a forward so we can address the impor- ing had the opportunity to talk about wild and wonderful distortion of the truth— tant issues facing the Senate, the Con- the details and whether or not there * * * * gress, and the people of the country. may be ways in which to improve it or The press was the enemy that muddied the message you were trying to deliver. Morris I yield the floor. deal with it in whatever legislative ca- argued that all the old nostrums about need- The PRESIDING OFFICER. The pacity we may so choose. That, in my ing the media no longer applied, that Ameri- Democratic leader. view, is the essence of a good debate. If cans were so cynical about everything that Mr. DASCHLE. Mr. President, let me you can’t offer amendments, you can’t they no longer believed in anything as naive compliment the Senator from Arizona really have a good debate about the as the Simple Truth. He believed, for in- for his extraordinary statement, for his bill. So we are denied that right. stance, that voters did not distinguish in any compelling speech just now, and for the So no one should be mistaken here; meaningful way between paid ads and the statesmanship he has shown all the we are spending time on the bill, but free press. ‘‘I don’t think people are any way through this debate. I also thank more cynical about ads than they are about we are not spending time on quality de- the press,’’ he said. ‘‘One is what the can- the Senator from Wisconsin for the bate. We are not spending time in a didate wants you to know. The other is what partnership he has shown on this effort way that will allow us to exchange the media want you to know.’’ from the very beginning. views on issues that could be the sub- Really, it was an extraordinary turn of The New York Times, I thought, de- ject of amendment, and until we are, strategic thinking, especially for a sitting scribed it quite well today in articulat- we are forced into a position of having Democratic president, who might rightfully ing what most of us perceive about to amend this legislation in other expect a little help from his soul mates in both of these Senators. They are bipar- the newsrooms and on the editorial boards. forms and in other scenarios legisla- It was one thing to speak through political tisan, they seek bipartisan solutions. tively. ads; it was another to speak only through po- They recognize the importance of Again, I offer that same opportunity litical ads. But that is exactly what Morris working through these issues, not in a to the majority leader that I offered proposed, and Clinton accepted. ‘‘Dick want- confrontational way, but in a way that last week. Let’s bring up the so-called ed to spend every * * * dollar on ads,’’ said builds consensus rather than tears it Lott amendment freestanding. Let’s Harold Ickes. ‘‘He thought TV was the only down. The last offer of the Senator way to communicate.’’ The more airtime have an opportunity to debate it. Let’s from Arizona, once more, to work with offer amendments to it. We have of- Clinton bought, the less need he had to ap- both sides to find a way with which to pear live before the cameras—and the more fered that opportunity with the hope he could simply ignore the trail. With deal with this issue constructively, is that we could break this logjam. We Morris’s help Clinton created his own meta- yet another example of that manner. have offered a suggestion along with a physical trail. Right through to the Demo- CLOTURE MOTION promise not to filibuster, not to extend cratic convention and beyond, the Clinton We, the undersigned Senators, in ac- the debate on the so-called Lott campaign remained a specter, a flickering cordance with the provisions of rule amendment. We would be willing to cathode ray in the suburbs of Albuquerque, XXII of the Standing Rules of the Sen- New Mexico, and Toledo, Ohio. schedule it at a time certain. So there ate, hereby move to bring to a close should be no question that, if under I think that is an accurate descrip- the debate on S. 25, as modified, the those conditions our Republican col- tion of what happened in 1996. I’m not campaign finance reform bill: leagues choose not to allow us to go to saying that the outcome would have Thomas A. Daschle, Carl Levin, Joseph I. the bill to offer amendments, everyone been any different, but none of that Lieberman, Wendell Ford, Byron L. will see this amendment for what it could have happened without soft Dorgan, Barbara Boxer, Jack Reed, really is; that is, a poison pill designed money. And none of the things that Richard H. Bryan, Daniel K. Akaka, to kill campaign reform—nothing else. happened—it funded many of the politi- Christopher J. Dodd, Kent Conrad, Rob- cal campaigns, most of them nega- ert G. Torricelli, Charles S. Robb, Joe The Senator from Kentucky has been tive—could have happened without soft Biden, Dale Bumpers, Carol Moseley- very open about his willingness to kill money. I believe for us to allow this as Braun, John Kerry. the bill, his commitment to do that, well as other aspects of the system to Mr. DASCHLE. Mr. President, it is and he has every right to employ this careen further out of control, as it is our desire to offer a cloture motion tactic. All I am saying is that there is now, is an abrogation of our respon- each day this week in an effort to bring a difference between winning the battle sibilities. to closure the debate on this bill. Now, and winning the war. Mr. President, I will also gather up obviously, it is within the majority Ultimately, if we spend time on noth- many documents and papers in support leader’s right to pull the bill to avoid ing else than campaign finance reform of Senator FEINGOLD’s position, and my having the cloture votes on the legisla- for the remainder of this Congress, we position. I do believe perhaps most tion itself. That certainly is his prerog- will have other occasions to have a Americans would pay attention to ative. I have indicated that it would be good and meaningful debate about former Presidents of the United States, our intention, should that occur, on campaign finance reform. as I entered in the RECORD earlier, not those legislative vehicles that are not So, as I said, we would be voting on just, with due respect, some pundits appropriations bills, that we would cloture now on Wednesday. If the bill is who either live inside the beltway or offer the McCain-Feingold bill to each still pending, we will have a vote on are called upon as well-known political and every one of them. It really doesn’t Thursday, and we will determine the analysts—by the way, whose views I re- matter what legislation comes before schedule for the remainder of the time spect. But the fact is, what this really the Senate, that would be our inten- we are in session at a later date. But boils down to is whether we are going tion. there should be no mistake, we will to restore our credibility to the Amer- So I want to put our colleagues on continue to fight for this bill and con- ican people in this body and the way notice that it is our strong desire to tinue to ensure that we reach out to we are elected. finish this debate in a constructive and our Republican colleagues to break the Finally—I see the distinguished in a successful way, regardless of what- logjam in as meaningful a way as we Democratic leader on the floor, as well ever pieces of legislation may be can. I am hopeful that that effort will as my friend and colleague, Senator brought before the body. be successful, and I am hopeful that at October 6, 1997 CONGRESSIONAL RECORD — SENATE S10379 some point we can come to some under- from The Hill, a Capitol Hill publica- Issue advocacy and soft money raise dif- standing about how that gets done. I tion, of the other day, October 1, which ficult issues, primarily because of the Su- yield the floor. informs us ‘‘Most Lobbyists Oppose preme Court’s landmark 1976 decision, Buck- Several Senators addressed the McCain-Feingold Bill.’’ ley v. Valeo. The court equated money with free speech in that decision, ruling that cam- Chair. I ask unanimous consent that this ar- paign expenditures cannot be restricted. The PRESIDING OFFICER (Mr. ticle by Mary Lynn F. Jones be printed By most lobbyists and analysts doubt the BOND). The Senator from Kentucky. in the RECORD. bill, which is staunchly opposed by Sen. Mr. MCCONNELL. Mr. President, I There being no objection, the article Mitch McConnell (R-Ky.) and do not have am not the majority leader, but I want- was ordered to be printed in the enough votes to fend off an expected fili- ed to make a couple observations about RECORD, as follows: buster, will pass. ‘‘The power of McConnell and others in the the comments of the Democratic lead- [From the Hill, October 1, 1997] er. First of all, paycheck protection is Senate to stymie it—you can’t discount MOST LOBBYISTS OPPOSE MCCAIN-FEINGOLD that,’’ said Shaiko. not a poison pill; it is an important BILL piece of legislation. It was in the top 10 (By Mary Lynn F. Jones) * * * * * pieces of legislation, I say to my friend Mr. FEINGOLD. Mr. President, I As the Senate debates the McCain- from South Dakota, that we introduced Feingold campaign finance reform bill this guess I am delighted to see this kind of at the beginning of this year on this week, Washington lobbyists are hoping that a headline, because I am not surprised. side of the aisle. It has probably as the deadlock will continue. Most lobbyists do oppose campaign fi- many supporters as McCain-Feingold ‘‘The professional lobbying community, if nance reform and the McCain-Feingold does. So it is curious to me that pay- they had their druthers, would do nothing,’’ bill, because these folks are the folks I check protection, when linked up with noted Ronald Shaiko, academic director of have come to regard, not as bad people, McCain-Feingold, is a poison pill but the Lobbying Institute at American Univer- many of them are very good people, but the converse apparently isn’t true. sity. Since they cannot actively oppose the as people who have basically become bill, ‘‘they hide behind the cause of the First So, again, I am not the majority Amendment.’’ the Washington gatekeeper. They are leader, but I will say it is my intent to Lobbyist Timothy W. Jenkins, a partner at the ones that control the campaign bring up paycheck protection any time the lobbying shop of O’Connor & Hannan, contributions now. If a local individ- any effort was made to try to force agreed. ‘‘It’s definitely of interest to anyone ual, if a local organization back home through McCain-Feingold. with inside-the-Beltway’’ issues, said Jen- wants to contribute to your campaign But what the majority leader has kins. ‘‘It’s a system we all participate in and or give you support, when they are part done here is offer an opportunity with lobbyists [donate] personal money and of this organization that has a lobbyist a very good debate. I disagree with my [many of] our companies are active’’ in the in Washington, they need to call Wash- friend from South Dakota; I think it is political action committee (PAC) commu- nity. ington. a good debate. I wish he had had a Martin B. Gold an attorney at Johnson, So it is no surprise that the lobbyists chance to listen to more of it. He Smith, Dover, Kitzmiller & Stewart, added, oppose our bill. They are one of the might have changed his position. We ‘‘Once you open the subject of campaign fi- most important forces against our bill, are going to have a good debate this nance, one never knows what kind of sub- besides the unfortunate fact, of course, afternoon. A number of Senators want jects will be raised.’’ that every single Member of the Con- to speak. The bipartisan bill, sponsored by Sens. gress was elected under the current Let me be very clear, at least as far John McCain (R-Ariz.) and Russ Feingold (D- system. as this one Senator is concerned, there Wis.), would kill ‘‘soft money’’ contributions to political parties, require greater cam- But even some of these groups that is no campaign finance reform without paign finance disclosures, restrict parties are represented by lobbyists have paycheck protection. They are the Sia- from supporting candidates who bankroll changed their minds. The Senator from mese twins, Mr. President, the Siamese their campaign with more than $50,000 of per- Kentucky has made a great deal of the twins of this discussion. So paycheck sonal funds and allow union members to re- fact that the National Education Asso- protection will, indeed, be back as well. ceive refunds for compulsory dues spent for ciation, he has said, opposes McCain- Mr. President, I yield the floor. political purposes. Feingold. There was a time when their Mr. FEINGOLD addressed the Chair. Although most lobbyists are tracking the leadership did appear with Senator The PRESIDING OFFICER. The Sen- bill closely, those who represent unions and interest groups are particularly concerned, MCCONNELL and indicate some opposi- ator from Wisconsin. tion to some aspects of the bill. But as Mr. FEINGOLD. Mr. President, I first especially since Senate Majority Leader Trent Lott (R-Miss.) offered an amendment Senator MCCAIN and I said from the be- thank my leader, Senator DASCHLE, not on Monday requiring unions to obtain prior ginning, we want to address various only for his kind words but for his im- permission from members before backing concerns of other Senators and organi- portant reiteration of the offer he has candidates financially. zations, and we have made some made. It is an unusual offer. The offer And while PACs are limited to a $10,000 changes. Our bill is now supported by is to have S. 9, the so-called Paycheck contribution per candidate per cycle, groups the National Education Association. Protection Act, come up as its own bill can circumscribe campaign finance laws by donating unrestricted money to political I would like to have printed in the and relinquishing the right that Sen- RECORD a letter of October 1, 1997, from ators always have, which the Senator parties for get-out-the-vote drives, issues ad- vertising and other activities that do not di- Bob Chase, the president of the Na- from Kentucky knows very well, to fili- rectly support a specific candidate. tional Education Association, in which buster. In other words, it would be ‘‘Ninety-five percent of the attention is he states: guaranteed an up-or-down vote. I think going to issue advocacy and soft money,’’ On behalf of the 2.3 million member NEA, added O’Connor & Hannan’s Jenkins, ‘‘be- that is a significant offer that raises we urge you to support real campaign fi- cause that’s where 95 percent of the dollars the real issue of whether we are talk- nance reform and to reject legislative at- are.’’ ing about something that is, in fact, an tacks on unions that are currently being pre- ‘‘PACs limit corporations and how much attempt to destroy this McCain- sented in the guise of reform. NEA is sup- they spend in elections,’’ said Shaiko of Feingold campaign finance reform bill, portive of the revised McCain-Feingold bill American University. ‘‘Their loophole is soft that was offered on the Senate floor on Sep- which I think it clearly is. money. If you take that out, it limits their tember 29. Mr. President, I would like to also voice in the electoral’’ process. put a few items in the RECORD, as the In 1996, for example, the AFL-CIO spent Mr. President, I ask unanimous con- Senator from Kentucky has done. First about $35 million on issue advocacy advertis- sent that that letter be printed in the of all, you see a lot of headlines when ing, according to an Annenberg Public Pol- RECORD. you work on an issue like this. Some icy Center report, and a group of 32 busi- The PRESIDING OFFICER. Is there are good; some are bad. Sometimes you nesses, called ‘‘The Coalition,’’ spent $5 mil- objection to the unanimous-consent re- see ‘‘McCain-Feingold bill is dead.’’ lion. quest? Jenkins said, ‘‘Some people have the view That was the litany for some time. that this is government regulating the most Mr. MCCONNELL. No. Once in a while you see a headline you sacred of speech, that this shouldn’t be about There being no objection, the letter almost like, even though it isn’t in- the candidates but about the public who was ordered to printed in the RECORD, tended to be favorable. This one I like wants to participate in elections.’’ as follows: S10380 CONGRESSIONAL RECORD — SENATE October 6, 1997

NATIONAL EDUCATION ASSOCIATION, Mr. MCCONNELL. Will the Senator I ask unanimous consent to print in Washington, DC, October 1, 1997. yield? the RECORD a publication from the very DEAR SENATOR: On behalf of the 2.3 million Mr. FEINGOLD. I yield for a ques- conservative publication the Weekly member National Education Association (NEA), we urge you to support real campaign tion. Standard from September 22, 1997, enti- finance reform and to reject legislative at- Mr. MCCONNELL. I ask the Senator, tled ‘‘Republicans Get Some Very Bad tacks on unions that are currently being pre- is it not true in the letter—he is cor- News.’’ sented in the guise of reform. NEA is sup- rect that the National Education Asso- There being no objection, the article portive of the revised McCain-Feingold bill ciation, which opposed the PAC ban, was ordered to be printed in the that was offered on the Senate floor on Sep- has now written a letter saying they RECORD, as follows: tember 29. We are strongly opposed to the support the bill. But I refer my col- [From the Weekly Standard, Sept. 22, 1997] Lott amendment that would unfairly curb league from Wisconsin to the third the advocacy rights of unions, including the REPUBLICANS GET SOME VERY BAD NEWS NEA. paragraph of that letter. Is it not cor- Republican senators got an unwelcome jolt While NEA favors a broad package of re- rect that they also say: last week at one of their usually uneventful forms that would include voluntary spending We . . . have concerns about McCain- Tuesday lunch meetings—a poll that showed limits coupled with partial public financing, Feingold’s provisions that would curb issue they were in deep trouble. The poll, con- the McCain-Feingold bill is an important advertising in the 60 days prior to elections. ducted by the Republican National Commit- first step. First and foremost, it would ban These provisions are ill-defined and overly tee during the first week of September, gave the unregulated and excessive ‘‘soft money’’ restrictive of legitimate legislative activity, the president his highest positive rating donations that have undermined the integ- and would inhibit the ability to speak freely ever—almost 65 percent. For the first time in rity of our political system. Further, it con- on issues while they are being debated and Clinton’s presidency more Americans tains important provisions to ensure greater decided in Congress. ‘‘strongly approved’’ of his performance than disclosure and stronger election laws. We are Am I reading that right? ‘‘strongly disapproved.’’ particularly pleased that the revised pro- Mr. FEINGOLD. Yes. The next sen- That was not the worst of it. For the first posal drops any limitation on contributions tence says: time this year, the numbers showed that by political action committees (PACs). NEA more Americans wanted Democrats to con- believes that small-donor PACs level the Despite this caveat, we believe that trol Congress than Republicans, and that playing field and allow working Americans McCain-Feingold merits your support. Democrats were ahead on the ‘‘generic bal- to have a more effective voice in politics. The fact is, even though they have lot’’ for November 1998. But what really rat- NEA is supportive of full disclosure provi- some concerns about this item, which I tled the senators was that, when asked what sions affecting issue advertising. We do, how- am sure any organization involved in issues they cared most about, Americans had ever, have concerns about McCain-Feingold’s this kind of ad may have, their conclu- moved one new item into the first tier along provisions that would curb issue advertising with the old standbys of crime, education, in the 60 days prior to elections. These provi- sion, Mr. President, the conclusion I urge on the Senator from Kentucky, is and the like. The new issue: campaign-fi- sions are ill-defined and overly restrictive of nance reform, which had moved from 2 or 3 legitimate legislative advocacy, and would that overall, they believe the bill mer- percent in previous polls to double digits as inhibit the ability to speak freely on issues its support, which, of course, is the di- the number one issue of concern. while they are being debated and decided in rect opposite of what the Senator from With John McCain ready to force a con- Congress. Despite this caveat, we believe Kentucky has said for months, both on frontation on campaign reform in the Senate that McCain-Feingold merits your support. against the wishes of most of his GOP col- The Lott amendment is clearly intended the floor and—— leagues, there was a fair amount of senato- not to advance the important cause of cam- Mr. MCCONNELL. Will the Senator rial murmuring about looking for a way to paign finance reform, but to subvert it. The yield? avoid being cast as simple defenders of the amendment is based on the false premise Mr. FEINGOLD. I yield. status quo. The politics of campaign-finance that members of unions do not join volun- Mr. MCCONNELL. Was it not the reform could be more interesting over the tarily; in fact, membership is voluntary. case prior to this letter NEA was op- next few weeks than most pundits currently Further, unions in general, and the NEA in posing McCain-Feingold? expect. And more damaging, considering particular, operate under democratic deci- Mr. FEINGOLD. Of course, I am not that McCain’s proposal is a constitutional sion-making processes. The annual NEA Rep- suggesting the Senator is misrepre- catastrophe. resentative Assembly, which determines the senting anything. I am showing a Association’s policy and sets the legislative Mr. FEINGOLD. Thank you, Mr. program, is the largest democratic decision- change in position by an organization President. I just want to highlight making body in the world. which the Senator from Kentucky has what was said in here. It indicates—— On the other hand, the Lott amendment placed great reliance on. I am not sug- Mr. MCCONNELL. Will the Senator raises serious constitutional issues of free gesting for 1 minute that the Senator yield for one other question with re- speech and association. It is a transparent has mischaracterized the position. attempt to curb the rights of unions to en- gard to the Weekly Standard? Mr. MCCONNELL. Did the Senator Mr. FEINGOLD. I yield for a ques- gage in not only political but legislative ad- from Kentucky just say their principal vocacy at the federal and state levels. The tion. NEA strongly opposes this measure, since it reason for opposing the bill was the Mr. MCCONNELL. The Senator from would cripple our ability to advocate on be- PAC ban and that when you dropped Wisconsin referred to a statement in half of our membership on the many impor- the PAC ban—— the Weekly Standard with regard to, tant issues affecting children and education Mr. FEINGOLD. Yes, Mr. President. what was it as he put it? that come before Congress. My point exactly. We have tried to ad- Mr. FEINGOLD. I was about to read It is patently unfair for the Lott amend- just this bill to address the concerns of ment to single out the voluntary dues of into the RECORD the statement from organizations and groups that the Sen- the Weekly Standard which I wanted to unions for this restrictive treatment, while ator from Kentucky has identified. allowing a host of other groups across the highlight. political spectrum (such as the Christian Co- That is our point. Senator MCCAIN and Mr. MCCONNELL. When the Senator alition and the National Rifle Association) I don’t believe we have all the answers. is finished, I would like to have printed to continue to collect voluntary dues to fund In fact, neither of us love the bill. That in the RECORD a letter from Jim Nich- their lobbying and advocacy efforts. The is how we were able to come up with a olson, chairman of the RNC, indicating same double standard is applied to corpora- compromise. We heard the concerns of tions, since the Lott amendment would not that the polling data carried in that ar- the NEA. We addressed their concerns. ticle is simply incorrect. require businesses to effectively seek the ap- They support us now. They no longer proval of stockholders before using their Mr. FEINGOLD. As soon as I am funds for political activities. support the Senator from Kentucky. done, I will be happy to yield momen- In summary, we urge you to support A further attempt that has been tarily to let that happen. McCain-Feingold and oppose the Lott made on this issue is to suggest that Let me quote what was said by this amendment. This is an important turning the American people don’t care about publication that is certainly no friend point for the American political system, and this issue, if you look at a poll or any of the McCain-Feingold bill and, frank- it is critical that the congress take action other measure of public opinion that ly, no friend of campaign finance re- that will foster, not hamper, the participa- this isn’t important to them that we tion of working Americans in our democ- form. The article indicated that: racy. change this big money system. The Republican senators got an unwelcome jolt Sincerely, Senator from Arizona has already done last week at one of their usually uneventful BOB CHASE, a fine job today of helping to dispel .. . lunch meetings—a poll that showed they President. that. were in deep trouble. The poll, conducted by October 6, 1997 CONGRESSIONAL RECORD — SENATE S10381 the Republican National Committee during REPUBLICAN NATIONAL COMMITTEE, points that they litigated in that case. the first week of September, gave the presi- Washington, DC, September 30, 1997. In fact, some of the individuals that dent his highest positive rating ever—almost Senator MITCH MCCONNELL, the Senator from Kentucky has just 65 percent. U.S. Senate, cited were among those who litigated Washington, DC And then it goes on to state: DEAR SENATOR MCCONNELL: I want to take that case and lost. So, yes, they liti- That was not the worst of it. For the first this opportunity to clarify to you recent gated it. They had their day in court. time this year, the numbers showed that RNC polling data in light of misinformation And they were wrong. more Americans wanted Democrats to con- reported in a September 22, 1997 Weekly In fact, the ACLU, an organization trol Congress than Republicans, and that Standard article entitled, ‘‘Republicans Get which sometimes I am criticized for Democrats were ahead on the ‘‘generic bal- Some Very Bad News.’’ agreeing with, happens to be dead lot’’ for November 1998. The Standard piece erroneously claimed wrong with regard to a release that that a recent RNC national poll illustrated The point I want to emphasize is the they just put out entitled ‘‘Revised that Americans were increasingly supportive McCain-Feingold Legislation Would following statement: of campaign finance reform, listing it as an issue of chief concern. Trample on Americans’ First Amend- But what really rattled the Senators was Let me be clear—the Weekly Standard was ment Rights.’’ that, when asked what issues they cared wrong. In fact, the September poll discussed Mr. President, I would like to just most about, Americans had moved one new never contained a direct question about cam- quote a sentence from that release to item into the first tier along with the old paign finance reform. show how reckless some people are standbys of crime, education, and the like. Here is a synopsis of what we have found in The new issue: campaign-finance reform, being about describing this bill. The our polling to date: quote says this: which had moved from 2 or 3 percent in pre- In an open-ended question from our Sep- McCain-Feingold imposes a 2-month, 60- vious polls to double digits as the number tember survey of 1,000 likely voters, not one day blackout before any Federal election on one issue of concern. individual surveyed identified campaign fi- any radio or television advertisement that nance reform as the most important problem Mr. President, I know that the Sen- mentions any candidates for Federal office. facing the U.S. today. ator from Kentucky wants to dispel Mr. President, that is not true. The this poll. I will yield to him in a mo- In a question offering a short list of poten- tial concerns from our June 1997 poll, only bill does ask that certain rules apply ment to do so. But I just want to em- 2% of Americans said that ‘‘the way political during that 60-day period that do not phasize, in addition to the more inde- campaigns are financed’’ would be the most apply outside of that period, and the pendent polls that the Senator from important issue to them in deciding how to rules are that you must use hard Arizona has already cited today, that vote for congress. money limits and disclosure in order to even a poll that was presented to the In a recent Wall Street Journal/NBC News do it, but there is no blackout, there is survey, only 5% surveyed found that ‘‘re- Republican National Committee indi- no prohibition. cates that campaign finance reform is forming the way political campaigns are fi- nanced’’ deserved the greatest attention Mr. President, there isn’t a single ad- a matter of very top concern to the from the Federal government at the present vertisement that you could possibly American people at this time. time (from a list of seven issues.) come up with that is barred by this Mr. MCCONNELL. Will the Senator I hope this information proves useful to bill. That is not what the bright line yield for a question? you as the Senate continues debate on the test is. In fact, it is very troubling to McCain-Feingold bill. Mr. FEINGOLD. I will yield. see an organization for which I have Sincerely, such high regard in terms of their pro- Mr. MCCONNELL. The question is, JIM NICHOLSON, fessionalism, in terms of their ability whether the Senator wants to—I am Chairman. to mount legal arguments, to see some- sure he does not want to put an item Mr. FEINGOLD. Mr. President, I un- body actually say that the bill does into the RECORD that is simply inac- derstand that some would feel that the something it clearly does not do. curate. What I would hope the Senator poll was inaccurate, and that is what You cannot prohibit advertisements. would permit me to do, even though he the RNC says. I also know they would You cannot say that people cannot say has the floor and it is his insert, is to have a strong desire at this point to—— things. What you can do, I believe, and include into the RECORD a letter from Mr. MCCONNELL. Will the Senator I believe the Supreme Court will sup- Jim Nicholson, the chairman of the Re- yield? port this, is during the electioneering publican National Committee, simply Mr. FEINGOLD. When the Senator period, which the Supreme Court has correcting that story. It was simply in- from Kentucky was putting items in talked about, you can require that cer- accurate. And obviously the Senator the RECORD, I was letting him go. I will tain kinds of messages be disclosed in from Wisconsin has the floor. be available for questions in a moment. terms of who is making them and also It seems to me that for those who All I can say, Mr. President, is this is that the money that is used and raised might be reading the CONGRESSIONAL not the only measure we put in the for it be under certain kinds of limits. RECORD it would be best to have the RECORD. What is striking is that even That is all it does. I think the ACLU is correct data inserted at this time. But the Weekly Standard believes that this in error with regard to that provision. I will be happy to do it later if the Sen- issue has gone very high on the list of Mr. President, I would also like to ator from Wisconsin feels better. issues. Every measure that is being place in the RECORD at this time Sen- taken now does indicate a tremendous Mr. FEINGOLD. Without conceding ate bill 143 from the 102d Congress. The growth in the concern about this issue. that the information from the Senator other day there was a spirited con- I would be fascinated to hear more from Kentucky is the correct informa- versation between my friend, the Sen- about exactly why the RNC changed its tion, I have no objection to the letter ator from Kentucky, and the Senator data on this. I will try to take a look of Mr. Nicholson being inserted at this from Arizona which centered around at it later. I do not know why they in- time. the fact that the Senator from Ken- dicated that it was incorrect. Somehow tucky has cosponsored legislation that Mr. MCCONNELL. It was an RNC poll the Weekly Standard got the impres- did a couple of things that he has now that the Weekly Standard was refer- sion that this issue was on the move. said on the floor are unconstitutional. ring to. And the chairman of the na- On that point they are right. In particular, Mr. President, the tional committee is simply referring to Mr. President, I would also like to point was made by the Senator from the poll that his organization took and note with regard to the statement of Arizona that the Senator from Ken- clearing up the article that was in the the Senator from Kentucky about the tucky had cosponsored a bill that bans Weekly Standard which was simply in- American Civil Liberty Union’s posi- soft money. The Senator from Ken- accurate. So I ask unanimous consent, tion on this bill, yes, the American tucky responded by saying: Well, you Mr. President, that this letter from Civil Liberties Union has expressed know, sometimes you sign on to a bill Jim Nicholson be printed in the concerns about the bill. that you’re not comfortable with, and RECORD. I want to remind the Senator from you want to participate in a joint ef- There being no objection, the letter Kentucky that the ACLU was wrong fort. was ordered to be printed in the when they litigated the Buckley versus I understand that. Some of that expe- RECORD, as follows: Valeo case. They did not win all the rience has occurred for me with regard S10382 CONGRESSIONAL RECORD — SENATE October 6, 1997 to this bill where I am not happy with Sec. 407. Knowing violations resolved in ignate the national committee of such politi- every provision. But I do need to have court. cal party as the candidate’s principal cam- printed in the RECORD, Mr. President, Sec. 408. Action on complaint by Commis- paign committee, but only if that national sion. committee maintains separate books of ac- Senate bill 143. I ask unanimous con- Sec. 409. Violation of confidentiality re- count with respect to its functions as a prin- sent that that be printed in the quirement. cipal campaign committee; and RECORD. Sec. 410. Penalty in Attorney General ac- ‘‘(B) a candidate may designate a political There being no objection, the mate- tions. committee established solely for the purpose rial was ordered to be printed in the Sec. 411. Amendments relating to enforce- of joint fundraising by such candidates as an RECORD, as follows: ment and judicial review. authorized committee.’’. Sec. 412. Tightening enforcement. (d) RULES APPLICABLE WHEN BAN NOT IN S. 143 Subtitle B—Other Provisions EFFECT.—For purposes of the Federal Elec- [102d Congress] tion Campaign Act of 1971, during any period Sec. 421. Disclosure of debt settlement and Be it enacted by the Senate and House of Rep- in which the limitation under section 324 of loan security agreements. resentatives of the United States of America in such Act (as added by subsection (a)) is not Sec. 422. Contributions for draft and encour- Congress assembled, in effect— agement purposes with respect (1) the amendments made by subsections SECTION 1. SHORT TITLE; AMENDMENT OF FECA; to elections for Federal office. TABLE OF CONTENTS. (a) and (b) shall not be in effect; and Sec. 423. Severability. (2) it shall be unlawful for any person (a) SHORT TITLE.—This Act may be cited as Sec. 424. Effective date. the ‘‘Comprehensive Campaign Finance Re- that— form Act of 1991’’. TITLE I—REDUCTION OF SPECIAL (A) is treated as a political committee by (b) AMENDMENT OF FECA.—When used in INTEREST INFLUENCE reason of paragraph (1); and this Act, the term ‘‘FECA’’ means the Fed- Subtitle A—Elimination of Political Action (B) is not directly or indirectly estab- eral Election Campaign Act of 1971 (2 U.S.C. Committees From Federal Election Activities lished, administered, or supported by a con- nected organization which is a corporation, 431 et seq.). SEC. 101. BAN ON ACTIVITIES OF POLITICAL AC- (c) TABLE OF CONTENTS.— TION COMMITTEES IN FEDERAL labor organization, or trade association, ELECTIONS. to make contributions to any candidate or Sec. 1. Short title; amendment of FECA; the candidate’s authorized committee for table of contents. (a) IN GENERAL.—Title III of FECA (2 U.S.C. 301 et seq.) is amended by adding at any election aggregating in excess of $1,000. TITLE I—REDUCTION OF SPECIAL the end thereof the following new section: Subtitle B—Ban on Soft Money in Federal INTEREST INFLUENCE ‘‘BAN ON FEDERAL ELECTION ACTIVITIES BY Elections Subtitle A—Elimination of Political Action POLITICAL ACTION COMMITTEES SEC. 111. BAN ON SOFT MONEY. Committees From Federal Election Activi- Section 315 of FECA (2 U.S.C. 441a) is ‘‘SEC. 324. Notwithstanding any other pro- ties amended by adding at the end thereof the vision of this Act, no person other than an Sec. 101. Ban on activities of political action following new subsection: individual or a political committee may committees in Federal elec- ‘‘(i) BAN ON SOFT MONEY.—(1) It shall be make contributions, solicit or receive con- tions. unlawful for the purpose of influencing any tributions, or make expenditures for the pur- election to Federal office— Subtitle B—Ban on Soft Money in Federal pose of influencing an election for Federal ‘‘(A) to solicit or receive any soft money; Elections office.’’. or Sec. 111. Ban on soft money. (b) DEFINITION OF POLITICAL COMMITTEE.— ‘‘(B) to make any payments from soft Sec. 112. Restrictions on party committees. (1) Paragraph (4) of section 301 of FECA (2 money. Sec. 113. Protections for employees. U.S.C. 431(4)) is amended to read as follows: ‘‘(2) For purposes of paragraph (1), the Sec. 114. Restrictions on soft money activi- ‘‘(4) The term ‘political committee’ term ‘soft money’ means any amount— ties of tax-exempt organiza- means— ‘‘(A) solicited or received from a source tions. ‘‘(A) the principal campaign committee of which is prohibited under section 316(a); Sec. 115. Denial of tax-exempt status for cer- a candidate; ‘‘(B) contributed, solicited, or received in tain politically active organiza- ‘‘(B) any national, State, or district com- excess of the contribution limits under sec- tions. mittee of a political party, including any tion 315; or Sec. 116. Contributions to certain political subordinate committee thereof; ‘‘(C) not subject to the recordkeeping, re- organizations maintained by a ‘‘(C) any local committee of a political porting, or disclosure requirements under candidate. party which— section 304 or any other provision of this Sec. 117. Contributions to State and local ‘‘(i) receives contributions aggregating in Act.’’. committees. excess of $5,000 during a calendar year; SEC. 112. RESTRICTIONS ON PARTY COMMITTEES. Subtitle C—Other Activities ‘‘(ii) makes payments exempted from the (a) DISCLOSURE OF INFORMATION BY POLITI- Sec. 121. Modifications of contribution lim- definition of contribution or expenditure CAL COMMITTEE.—(1) Subsection (c) of section its on individuals. under paragraph (8) or (9) aggregating in ex- 302 of FECA (2 U.S.C. 432(c)) is amended by Sec. 122. Political parties. cess of $5,000 during a calendar year; or striking ‘‘and’’ at the end of paragraph (4), Sec. 123. Contributions through ‘‘(iii) makes contributions or expenditures by striking the period at the end of para- intermediaries and conduits. aggregating in excess of $1,000 during a cal- graph (5) and inserting ‘‘; and’’, and by add- Sec. 124. Independent expenditures. endar year; and ing at the end thereof the following new ‘‘(D) any committee jointly established by paragraph: TITLE II—INCREASE OF COMPETITION IN a principal campaign committee and any ‘‘(6) each account maintained by a political POLITICS committee described in subparagraph (B) or committee of a political party (including Sec. 201. Seed money for challengers. (C) for the purpose of conducting joint fund- Federal and non-Federal accounts), and de- Sec. 202. Use of campaign funds. raising activities.’’. posits into, and disbursements from, each Sec. 203. Candidate expenditures from per- (2) Section 316(b)(2) of FECA (2 U.S.C. such account.’’. sonal funds. 441b(b)(2)) is amended by striking subpara- (2) Subsection (b) of section 304 of FECA (2 Sec. 204. Franked communications. graphs (B) and (C). U.S.C. 434(b)) is amended by striking ‘‘and’’ Sec. 205. Limitations on gerrymandering. (c) CANDIDATE’S COMMITTEES.—(1) Section at the end of paragraph (7), by striking the Sec. 206. Election fraud, other public corrup- 315(a) of FECA (2 U.S.C. 441a(a)) is amended period at the end of paragraph (8) and insert- tion, and fraud in interstate by adding at the end thereof the following ing ‘‘; and’’, and by adding at the end thereof commerce. new paragraph: the following new paragraph: TITLE III—REDUCTION OF CAMPAIGN ‘‘(9) For the purposes of the limitations ‘‘(9) each account maintained by a political COSTS provided by paragraphs (1) and (2), any polit- committee of a political party (including Sec. 301. Broadcast discount. ical committee which is established or fi- Federal and non-Federal accounts), and de- nanced or maintained or controlled by any posits into, and disbursements from, each TITLE IV—MISCELLANEOUS PROVISIONS candidate or Federal officeholder shall be such account.’’. Subtitle A—Federal Election Commission deemed to be an authorized committee of (b) ALLOCATION OF EXPENDITURES FOR Enforcement Authority such candidate or officeholder.’’. MIXED ACTIVITIES.—Title III of FECA, as Sec. 401. Elimination of reason to believe (2) Section 302(e)(3) of FECA (2 U.S.C. 432) amended by section 101(a), is amended by standard. is amended to read as follows: adding at the end thereof the following new Sec. 402. Injunctive authority. ‘‘(3) No political committee that supports section: Sec. 403. Time periods. or has supported more than one candidate ‘‘REQUIRED ALLOCATION OF CONTRIBUTIONS AND Sec. 404. Knowing violation penalties. may be designated as an authorized commit- EXPENDITURES FOR MIXED ACTIVITIES BY PO- Sec. 405. Court resolved violations and pen- tee, except that— LITICAL PARTY COMMITTEES alties. ‘‘(A) a candidate for the office of President ‘‘SEC. 325. (a) REGULATIONS REQUIRING AL- Sec. 406. Private civil actions. nominated by a political party may des- LOCATION FOR MIXED ACTIVITIES.—Not later October 6, 1997 CONGRESSIONAL RECORD — SENATE S10383

than 180 days after the date of the enactment ‘‘(c) MIXED ACTIVITY.—(1) For purposes of tion of those dues by the employee’s pro rata of this section, the Commission shall issue this section, the term ‘mixed activity’ means share of the total spending by the labor orga- regulations providing for a method for allo- an activity the expenditures in connection nization for political activities; cating the contributions and expenditures with which are required under this Act to be ‘‘(v) that the cost of the labor organiza- for any mixed activity between Federal and allocated between Federal and non-Federal tion’s exclusive representation services, and non-Federal accounts. accounts because such activity affects 1 or the amount of spending by such organization ‘‘(b) GUIDELINES FOR ALLOCATION.—(1) The more elections for Federal office and 1 or for political activities, shall be computed on regulations issued under subsection (a) more non-Federal elections. the basis of such cost and spending for the shall— ‘‘(2) Activities under paragraph (1) in- immediately preceding fiscal year of such or- ‘‘(A) provide for the allocation of contribu- clude— ganization; and tions and expenditures in accordance with ‘‘(A) voter registration drives, get-out-the- ‘‘(vi) of the amount of the labor organiza- this subsection; and vote drives, telephone banks, and member- tion’s full membership dues, initiation fees, ‘‘(B) require reporting under this Act of ex- ship communications in connection with and assessments for the current year; the penditures in connection with a mixed activ- elections for Federal offices and elections for amount of the reduced membership dues, ity to disclose— non-Federal offices; subtracting the employee’s pro rata share of ‘‘(i) the method and rationale used in allo- ‘‘(B) general political advertising, bro- the organization’s spending for political ac- cating the cost of the mixed activity to Fed- chures, or other materials that include any tivities, for the current year; and the eral and non-Federal accounts; and reference (however incidental) to both a can- amount of the agency fee for the current ‘‘(ii) the amount and percentage of the cost didate for Federal office and a candidate for year. of the mixed activity allocated to such ac- non-Federal office, or that urge support for ‘‘(C) The requirements of this subpara- counts. or opposition to a political party or to all graph are met only if, for purposes of verify- ‘‘(2) In the case of a mixed activity that the candidates of a political party; ing the cost of such labor organization’s ex- consists of a voter registration drive, get- ‘‘(C) overhead expenses; and clusive representation services, the labor or- out-the-vote drive, or other activity designed ‘‘(D) activities described in clauses (v), (x), ganization provides all represented employ- to contact voters (other than an activity to and (xii) of section 301(8)(B). ees an annual examination by an independ- which paragraph (3) or (4) applies), amounts ‘‘(d) ACCOUNTS.—For purposes of this sec- ent certified public accountant of financial shall be allocated on the basis of the com- tion— position of the ballot for the political juris- statements supplied by such organization ‘‘(1) the term ‘Federal account’ means an diction in which the activity occurs, except which verify the cost of such services; except that in no event shall the amounts allocated account to which receipts and disbursements that such examination shall, at a minimum, to the Federal account be less than— are allocated to elections for Federal offices; constitute a ‘special report’ as interpreted and by the Association of Independent Certified ‘‘(A) 331⁄3 percent of the total amount in the case of the national committee of a po- ‘‘(2) the term ‘non-Federal account’ means Public Accountants. litical party; or an account to which receipts and disburse- ‘‘(D) The requirements of this subpara- ‘‘(B) 25 percent of the total amount in the ments are allocated to elections other than graph are met only if the labor organiza- case of a State or local committee of a polit- non-Federal offices.’’. tion— ical party or any subordinate committee SEC. 113. PROTECTION FOR EMPLOYEES. ‘‘(i) maintains procedures to promptly de- thereof. (a) CONTRIBUTIONS TO ALL POLITICAL COM- termine the costs that may properly be ‘‘(3) In the case of a mixed activity that MITTEES INCLUDED.—Paragraph (2) of section charged to agency fee payors as costs of ex- consists of preparing and distributing bro- 316(b) of FECA (2 U.S.C. 441b(b)(2)) is amend- clusive representation, and explains such chures, handbills, slate cards, or other print- ed by inserting ‘‘political committee,’’ after procedures in the written notification re- ed materials identifying or seeking support ‘‘campaign committee,’’. quired under subparagraph (B); and of (or opposition to) candidates for both Fed- (b) APPLICABILITY OF REQUIREMENTS TO ‘‘(ii) if any person challenges the costs eral offices and non-Federal offices, amounts LABOR ORGANIZATIONS.—Section 316(b) of which may be properly charged as costs of shall be allocated on the basis of total space FECA (2 U.S.C. 441b(b)) is amended by adding exclusive representation— devoted to such candidates, except that in no at the end thereof the following new para- ‘‘(I) provides a mutually selected impartial event shall the amounts allocated to the graph: decisionmaker to hear and decide such chal- Federal account be less than the percentages ‘‘(8)(A) Subparagraphs (A), (B), and (C) of lenge pursuant to rules of discovery and evi- under subparagraph (A) or (B) of paragraph paragraph (2) shall not apply to a labor orga- dence and subject to de novo review by the (2). nization unless the organization meets the National Labor Relations Board or an appli- ‘‘(4)(A) In the case of a mixed activity by a requirements of subparagraphs (B), (C), and cable court; and national committee of a political party that (D). ‘‘(II) places in escrow amounts reasonably consists of broadcast media advertising (or ‘‘(B) The requirements of this subpara- in dispute pending the outcome of the chal- any portion thereof) that promotes (or is in graph are met only if the labor organization lenge. opposition to) a political party without men- provides, at least once annually, to all em- ‘‘(E)(i) A labor organization that does not tioning the name of any individual candidate ployees within the labor organization’s bar- satisfy the requirements of subparagraphs for Federal office or non-Federal office, gaining unit or units (and to new employees (B), (C), and (D) shall finance any expendi- amounts allocated to the Federal account within 30 days after commencement of their tures specified in subparagraphs (A), (B), or shall not be less than— employment) written notification presented (C) of paragraph (2) only with funds legally ‘‘(i) 50 percent of the total amount in the in a manner to inform any such employee— collected under this Act for its separate seg- case of advertising in the national media ‘‘(i) that an employee cannot be obligated regated fund. market; and to pay, through union dues or any other ‘‘(ii) For purposes of this paragraph, sub- ‘‘(ii) 40 percent in the case of advertising in mandatory payment to a labor organization, paragraph (A) of paragraph (2) shall apply other than the national media market. only with respect to communications ex- ‘‘(B) In the case of a mixed activity by a for the political activities of the labor orga- pressly advocating the election or defeat of State or local committee of a political party nization, including, but not limited to, the or any subordinate committee thereof that maintenance and operation of, or solicita- any clearly identified candidate for elective consists of broadcast media advertising (or tion of contributions to, a political commit- public office.’’. any portion thereof) described in subpara- tee, political communications to members, SEC. 114. RESTRICTIONS ON SOFT MONEY ACTIVI- graph (A), costs shall be allocated on the and voter registration and get-out-the-vote TIES OF TAX-EXEMPT ORGANIZA- basis of the composition of the ballot for the campaigns; TIONS. political jurisdiction in which the activity ‘‘(ii) that no employee may be required ac- (a) IN GENERAL.—Section 501 of the Inter- occurs, except that in no event shall the tually to join any labor organization, but if nal Revenue Code of 1986 (relating to exemp- amounts allocated to the Federal account be a collective bargaining agreement covering tion from tax) is amended by redesignating less than 331⁄3 percent of the total amount. an employee purports to require membership subsection (n) as subsection (o) and by in- ‘‘(5) Overhead and fundraising costs of a or payment of dues or other fees to a labor serting after subsection (m) the following political committee of a political party for organization as a condition of employment, new subsection: each 2-calendar year period ending with the the employee may elect instead to pay an ‘‘(n) DENIAL OF TAX-EXEMPT STATUS FOR calendar year in which a regularly scheduled agency fee to the labor organization; ACTIVITIES TO INFLUENCE A FEDERAL ELEC- election for Federal office occurs shall be al- ‘‘(iii) that the amount of the agency fee TION.—An organization shall not be treated located to the Federal account on the basis shall be limited to the employee’s pro rata as exempt from tax under subsection (a) if of the same ratio which— share of the cost of the labor organization’s such organization participates or intervenes ‘‘(A) the aggregate amount of receipts and exclusive representation services to the em- in any political campaign on behalf of or in disbursements of such political committee ployee’s collective bargaining unit, including opposition to any candidate for Federal of- during such period in connection with elec- collective bargaining, contract administra- fice.’’. tions for Federal office, bears to tion, and grievance adjustment; (b) EFFECTIVE DATE.—The amendment ‘‘(B) the aggregate amount of receipts and ‘‘(iv) that an employee who elects to be a made by subsection (a) shall apply to any disbursements of such political committee full member of the labor organization and participation or intervention by an organiza- during such period. pay membership dues is entitled to a reduc- tion on or after September 1, 1992. S10384 CONGRESSIONAL RECORD — SENATE October 6, 1997

SEC. 115. DENIAL OF TAX-EXEMPT STATUS FOR (b) CONTRIBUTIONS BY NATIONAL BANKS, manner as under subsection (c)(1) the per- CERTAIN POLITICALLY ACTIVE OR- CORPORATIONS, AND LABOR ORGANIZATIONS.— cent difference between the price index for GANIZATIONS. (1) Section 316(b)(2) of the FECA (2 U.S.C. the preceding calendar year and the price (a) IN GENERAL.—Section 501 of the Inter- 441b(b)(2)) is amended by striking ‘‘can- index for calendar year 1989. Each of the dol- nal Revenue Code of 1986 (relating to exemp- didate, campaign committee’’ and inserting lar limits under subparagraph (A) shall be in- tion from tax), as amended by section 114, is ‘‘candidate, political organization (other creased by such percent difference and amended by redesignating subsection (o) as than an authorized committee) maintained rounded to the nearest $100. Each amount so subsection (p) and by inserting after sub- by a candidate, campaign committee,’’. increased shall be the amount in effect for section (n) the following new subsection: (2) Section 316(b) of FECA (2 U.S.C. the calendar year for which determined and ‘‘(o) DENIAL OF TAX-EXEMPT STATUS FOR 441b(b)), as amended by section 113(b), is the succeeding calendar year.’’. CERTAIN POLITICALLY ACTIVE ORGANIZA- amended by inserting at the end thereof the TIONS.— SEC. 122. POLITICAL PARTIES. following new paragraph: ‘‘(1) IN GENERAL.—An organization shall ITEMS NOT TREATED AS CONTRIBUTIONS OR ‘‘(9) For the purposes of paragraph (2), the not be treated as exempt from tax under sub- EXPENDITURES.—(1) Section 301(8)(B) of term ‘political organization maintained by a section (a) if— FECA (2 U.S.C. 431(8)(B)) is amended— candidate’ means any non-Federal political ‘‘(A) such organization devotes any of its (A) in clauses (x) and (xii), by inserting action committee, non-Federal multican- operating budget to— ‘‘national,’’ after ‘‘the payment by a’’; and didate political committee, or any other ‘‘(i) voter registration or get-out-the-vote (B) in clause (xii), by inserting ‘‘general re- form of political organization regulated campaigns; or search activities,’’ after ‘‘the costs of’’. under State law which is not a political com- (2) Section 301(9)(B) of FECA (2 U.S.C. ‘‘(ii) participation or intervention in any mittee of a national, State, or local political 431(9)(B)) is amended— political campaign on behalf of or in opposi- party— (A) in clauses (viii) and (ix), by inserting tion to any candidate for public office; and ‘‘(A) that is set up by or on behalf of a can- ‘‘national,’’ after ‘‘the payment by a’’; and ‘‘(B) a candidate, or an authorized commit- didate and engages in political activity (B) in clause (ix), by inserting ‘‘general re- tee of a candidate, has— which directly influences Federal elections; search activities,’’ after ‘‘the costs of’’. ‘‘(i) solicited contributions to, or on behalf and of, such organization; and SEC. 123. CONTRIBUTIONS THROUGH ‘‘(B) for which that candidate has solicited INTERMEDIARIES AND CONDUITS. ‘‘(ii) the solicitation is made in coopera- a contribution.’’. Section 315(a)(8) of the Federal Election tion, consultation, or concert with, or at the (c) DATE OF APPLICATION.—The amend- Campaign Act of 1971 (2 U.S.C. 441a(a)(8)) is request or suggestion of, such organization. ments made by subsections (a) and (b) shall amended to read as follows: ‘‘(2) CANDIDATE DEFINED.—For purposes of apply to contributions described in sections ‘‘(8) For purposes of this subsection— this subsection— 315 and 316 of FECA (2 U.S.C. 441a and 441b) ‘‘(A) Contributions made by a person, ei- ‘‘(A) IN GENERAL.—The term ‘candidate’ made in response to solicitations made after ther directly or indirectly, to or on behalf of has the meaning given such term by para- January lll, 1991. a particular candidate, including contribu- graph (2) of section 301 of the Federal Elec- tions which are in any way earmarked or tion Campaign Act of 1971 (2 U.S.C. 431(2)). SEC. 117. CONTRIBUTIONS TO STATE AND LOCAL PARTY COMMITTEES. otherwise directed through an intermediary ‘‘(B) MEMBERS OF CONGRESS.—The term Section 315(a)(1) of FECA (2 U.S.C. or conduit to such candidate, shall be treat- ‘candidate’ shall include any Senator or Rep- 441a(a)(1)) is amended— ed as contributions from such person to such resentative in, or Delegate or Resident Com- (1) by striking ‘‘or’’ at the end of subpara- candidate. missioner to, the Congress unless— graph (B); ‘‘(B) If a contribution is made by a person ‘‘(i) the date for filing for nomination, or (2) by striking the period at the end of sub- either directly or indirectly to or on behalf election to, such office has passed and such paragraph (C) and inserting ‘‘; or’’; and of a particular candidate through an individual has not so filed, and (3) by adding at the end thereof the follow- intermediary or conduit, the intermediary or ‘‘(ii) such individual is not otherwise a can- ing new subparagraph: conduit shall report the original source and didate described in subparagraph (A).’’. ‘‘(D) to the political committees estab- the intended recipient of such contribution (b) EFFECTIVE DATE.—The amendments to the Commission and to the intended recip- made by this section shall apply to taxable lished and maintained by a State or local po- ient. years ending after the date of enactment of litical party, in connection with any activity ‘‘(C) No conduit or intermediary shall de- this Act, but only with respect to solicita- that may influence an election for Federal tions or suggestions by candidates made office, in any calendar year which, in the ag- liver or arrange to have delivered contribu- after the date of the enactment of this Act. gregate, exceed the lesser of tions from more than 2 persons who are em- ployees of the same employer or who are SEC. 116. CONTRIBUTIONS TO CERTAIN POLITI- ‘‘(i) $50,000; or CAL ORGANIZATIONS MAINTAINED ‘‘(ii) the difference between $50,000 and the members of the same trade association, BY A CANDIDATE. amount of contributions made by such per- membership organization, or labor organiza- (a) CONTRIBUTIONS BY PERSONS IN GENERAL son to any political committees established tion. AND BY MULTICANDIDATE POLITICAL COMMIT- and maintained by a national political ‘‘(D) No person required to register with TEES.—(1) Section 315(a)(1)(A) of FECA (2 party.’’. the Clerk of the House of Representatives or U.S.C. 441a(a)(1)(A)) is amended by striking Subtitle C—Other Activities the Secretary of the Senate under section 308 ‘‘candidate and his authorized political com- of the Federal Regulation of Lobbying Act (2 mittees’’ and inserting ‘‘candidate, a can- SEC. 121. MODIFICATIONS OF CONTRIBUTION U.S.C. 267), or an officer, employee or agent LIMITS ON INDIVIDUALS. didate’s authorized political committees, of such a person, may act as an intermediary (a) INCREASE IN CANDIDATE LIMIT.—Sub- and any political organizations (other than or conduit with respect to a contribution to paragraph (A) of section 315(a)(1) of FECA (2 authorized committees) maintained by a a candidate for Federal office.’’. U.S.C. 441a(a)(1)(A)) is amended by striking candidate,’’. ‘‘$1,000’’ and inserting ‘‘the applicable SEC. 124. INDEPENDENT EXPENDITURES. (2) Section 315(a)(2)(A) of FECA (2 U.S.C. (a) ATTRIBUTION OF COMMUNICATIONS; RE- amount’’. 441a(a)(2)(A)) is amended by striking ‘‘can- PORTS.—(1) Section 318 of FECA (2 U.S.C. (b) APPLICABLE AMOUNT DEFINED.—Section didate and his authorized political commit- 441d) is amended by adding at the end thereof 315(a) of FECA (2 U.S.C. 441a(a)), as amended tees’’ and inserting ‘‘candidate, a candidate’s the following new subsection: authorized political committees, and any po- by section 116(a)(3), is amended by adding at ‘‘(c)(1) If any person makes an independent litical organizations (other than authorized the end thereof the following new paragraph: expenditure through a broadcast commu- committees) maintained by a candidate,’’. ‘‘(11) For purposes of subsection (a)(1)(A)— nication on any television or radio station, (3) Section 315(a) of FECA (2 U.S.C. ‘‘(A) The term ‘applicable amount’ means— the broadcast communication shall include a 441a(a)), as amended by section 101(c), is ‘‘(i) $1,000 in the case of contributions by a statement— amended by inserting at the end thereof the person to— ‘‘(A) in such television broadcast, that is following new paragraph: ‘‘(I) a candidate for the office of President clearly readable to the viewer and appears ‘‘(10) For the purposes of paragraphs (1)(A) or Vice President or such candidate’s author- continuously during the entire length of and (2)(A), the term ‘political organization ized committees; or such communication; or maintained by a candidate’ means any non- ‘‘(II) any other candidate or such can- ‘‘(B) in such radio broadcast, that is clear- Federal political action committee, non-Fed- didate’s authorized committees if, at the ly audible to the viewer and is aired at the eral multicandidate political committee, or time such contributions are made, such per- beginning and ending of such broadcast, any other form of political organization reg- son is a resident of the State with respect to setting forth the name of such person and, in ulated under State law which is not a politi- which such candidate seeks Federal office; the case of a political committee, the name cal committee of a national, State, or local and of any connected or affiliated organization. political party— ‘‘(ii) $500 in the case of contributions by ‘‘(2) If any person makes an independent ‘‘(A) that is set up by or on behalf of a can- any other person to a candidate described in expenditure through a newspaper, magazine, didate and engages in political activity clause (i)(II) or such candidate’s authorized outdoor advertising facility, direct mailing, which directly influences Federal elections; committees. or other type of general public political ad- and ‘‘(B) At the beginning of 1991 and each odd- vertising, the communication shall include, ‘‘(B) for which that candidate has solicited numbered calendar year thereafter, the Sec- in addition to the other information required a contribution.’’. retary of Labor shall certify in the same by this section— October 6, 1997 CONGRESSIONAL RECORD — SENATE S10385 ‘‘(A) the following sentence: ‘The cost of adding at the end thereof the following new ‘‘(C) fails to file the declaration required presenting this communication is not sub- sentence: ‘‘It shall be the duty of the courts by paragraph (1), ject to any campaign contribution limits.’; to advance on the docket and to expedite to the limitations on contributions under sub- and the greatest possible extent the disposition section (a), and the limitations on expendi- ‘‘(B) a statement setting forth the name of of any matter relating to the making or al- tures under subsection (d), shall be modified the person who paid for the communication leged making of an independent expendi- as provided under paragraph (3) with respect and, in the case of a political committee, the ture.’’. to other candidates for the same office who name of any connected or affiliated organi- TITLE II—INCREASE OF COMPETITION IN are not described in subparagraph (A), (B), or zation, and the name of the president or POLITICS (C). treasurer of such organization. SEC. 201. SEED MONEY FOR CHALLENGERS. ‘‘(3) For purposes of paragraph (2)— ‘‘(3) Any person making an independent ex- Section 315 of FECA (2 U.S.C. 441a), as ‘‘(A) the limitation under subsection penditure described in paragraph (1) or (2) amended by section 111, is amended by add- (a)(1)(A) shall be increased to $5,000; and shall furnish, by certified mail, return re- ing at the end thereof the following new sub- ‘‘(B) if a candidate described in paragraph ceipt requested, the following information, section: (2)(B) expends more than $1,000,000 of funds to each candidate and to the Commission, ‘‘(j)(1) Notwithstanding subsection (a)(2), described in paragraph (1) in the primary and not later than the date and time of the first the congressional campaign committee or general election— public transmission of the communication: the senatorial campaign committee of a na- ‘‘(i) the limitation under subsection ‘‘(A) Effective notice that the person plans tional political party, whichever is applica- (a)(1)(A) shall not apply; to make an independent expenditure for the ble, may make contributions to an eligible ‘‘(ii) the limitation under subsection (a)(2) purpose of financing a communication which candidate (and the candidate’s authorized shall not apply to any political committee of expressly advocates the election or defeat of committees) which in the aggregate do not a political party; and a clearly identified candidate. exceed the lesser of— ‘‘(iii) the limitation under subsection (d)(3) ‘‘(B) An exact copy of the intended commu- ‘‘(A) $100,000; or shall not apply. nication, or a complete description of the ‘‘(B) the aggregate qualified matching con- The $5,000 amount under subparagraph (A) contents of the intended communication, in- tributions received by such candidate and shall be adjusted each calendar year in the cluding the entirety of any texts to be used the candidate’s authorized committees. in conjunction with such communication, ‘‘(2) Any contribution under paragraph (1) same manner as amounts are adjusted under and a complete description of any photo- shall not be treated as an expenditure for subsection (a)(11)(B). ‘‘(4) If— graphs, films, or any other visual devices to purposes of subsection (d)(3). be used in conjunction with such commu- ‘‘(3) For purposes of this subsection, the ‘‘(A) the modifications under paragraph (3) nication. term ‘qualified matching contributions’ apply for a convention or a primary election ‘‘(C) All dates and times when such com- means contributions made during the period by reason of 1 or more candidates taking (or munication will be publicly transmitted.’’. of the election cycle preceding the primary failing to take) any action described in sub- (2) Section 318(a) of FECA (2 U.S.C. 441d(a)) election by an individual who, at the time paragraph (A), (B), or (C) of paragraph (2); is amended by striking ‘‘Whenever’’ and in- such contributions are made, is a resident of and serting ‘‘Except as provided in subsection (c), the State in which the election with respect ‘‘(B) such candidates are not candidates in whenever’’. to which such contributions are made is to any subsequent election in the same election (b) DEFINITION OF INDEPENDENT EXPENDI- be held. campaign, including the general election, TURE.—Paragraph (17) of section 301 of FECA ‘‘(4) For purposes of this subsection, the paragraph (3) shall cease to apply to the (2 U.S.C. 431(17)) is amended— term ‘eligible candidate’ means a candidate other candidates in such campaign. (1) by striking ‘‘(17) The term’’ and insert- for Federal office (other than President or ‘‘(5) A candidate who— ing ‘‘(17)(A) The term’’; and Vice President) who does not hold Federal ‘‘(A) declares, pursuant to paragraph (1), (2) by adding at the end thereof the follow- office.’’. that the candidate does not intend to expend ing new subparagraph: SEC. 202. USE OF CAMPAIGN FUNDS. funds described in paragraph (1) in excess of ‘‘(B) For the purpose of subparagraph (A), Section 313 of FECA (2 U.S.C. 439a) is $250,000; and an expenditure shall be considered to be amended by inserting ‘‘(a)’’ before ‘‘(B) subsequently changes such declara- made in cooperation, consultation, or con- ‘‘Amounts’’ and inserting at the end thereof tion or expends such funds in excess of that cert with, or at the request or suggestion of, the following new subsection: amount, a candidate, authorized committee, or agent, ‘‘(b) Notwithstanding subsection (a), a shall file an amended declaration with the if there is any arrangement, coordination, or holder of Federal office may not transfer any Commission and notify all other candidates direction by the candidate or the candidate’s amounts received as contributions or other for the same office within 24 hours after agent prior to the publication, distribution, campaign funds to any account maintained changing such declaration or exceeding such display, or broadcast of a communication, for purposes of defraying ordinary and nec- limits, whichever first occurs, by sending a and it shall be presumed to be so made when essary expenses in connection with the du- notice by certified mail, return receipt re- it is— ties of such Federal office.’’. quested. ‘‘(i) based on information about the can- SEC. 203. CANDIDATE EXPENDITURES FROM PER- ‘‘(6) Contributions to a candidate or a can- didate’s plans, projects, or needs provided to SONAL FUNDS. didate’s authorized committees may be used the person making the expenditure by the (a) Section 315 of FECA (2 U.S.C. 441a), as to repay any expenditure or personal loan in- candidate, or by the candidate’s agents, with amended by section 201, is amended by add- curred in connection with the candidate’s a view toward having an expenditure made; ing at the end thereof the following new sub- election to Federal office by a candidate or a or section: member of the candidate’s immediate family ‘‘(ii) made by or through any person who ‘‘(k)(1)(A) Not less than 15 days after a can- only to the extent that such repayment— is, or has been— didate qualifies for a primary election ballot ‘‘(A) is limited to the amount of such ex- ‘‘(I) authorized to raise or expend funds on under State law, the candidate shall file with penditure or the principal amount of such behalf of the candidate or the candidate’s au- the Commission, and each other candidate loan (and no interest is paid); and thorized committees; who has qualified for that ballot, a declara- ‘‘(B) is not made from any such contribu- ‘‘(II) serving as an officer of the can- tion stating whether the candidate intends tions received after the date of the general didate’s authorized committees; or to expend for the primary and general elec- election to which such expenditure or loan ‘‘(III) providing professional services to, or tion an amount exceeding $250,000 from— ‘‘(i) the candidate’s personal funds; relates. receiving any form of compensation or reim- ‘‘(7) For purposes of this subsection, the bursement from, the candidate, the can- ‘‘(ii) the funds of the candidate’s imme- diate family; and term ‘immediate family’ means— didate’s committee, or agent.’’. ‘‘(A) a candidate’s spouse; (c) HEARINGS ON COMPLAINTS.—Section ‘‘(iii) personal loans incurred by the can- ‘‘(B) any child, stepchild, parent, grand- 309(a) of FECA (2 U.S.C. 437g(a)) is amended didate and the candidate’s immediate family parent, brother, half-brother, sister, or half- by adding at the end thereof the following in connection with the candidate’s election sister of the candidate or the candidate’s new paragraph: campaign. ‘‘(13) Within 3 days after the Commission ‘‘(B) The declaration required by subpara- spouse; and receives a complaint filed pursuant to this graph (A) shall be in such form and contain ‘‘(C) the spouse of a person described in section which alleges that an independent such information as the Commission may re- subparagraph (B). expenditure was made with the cooperation quire by regulation. ‘‘(8) The Commission shall take such ac- or consultation of a candidate, or an author- ‘‘(2) Notwithstanding subsection (a), if a tion as it deems necessary under the enforce- ized committee or agent of such candidate, candidate— ment provisions of this Act to ensure compli- or was made in concert with or at the re- ‘‘(A) declares under paragraph (1) that the ance with this subsection.’’. quest or suggestion of an authorized commit- candidate intends to expend for the primary SEC. 204. FRANKED COMMUNICATIONS. tee or agent of such candidate, the Commis- and general election funds described in such (a) AMENDMENT OF TITLE 39, UNITED STATES sion shall provide for a hearing to determine paragraph an amount exceeding $250,000; CODE.—(1) Section 3210(a)(6)(A) of title 39, such matter.’’. ‘‘(B) expends such funds in the primary and United States Code is amended— (d) EXPEDITED JUDICIAL REVIEW.—Section general election an amount exceeding (A) by striking clause (i) and inserting the 310 of the FECA (2 U.S.C. 437h) is amended by $250,000; or following new clause: S10386 CONGRESSIONAL RECORD — SENATE October 6, 1997 ‘‘(i) if the mass mailing is mailed during 1967 (2 U.S.C. 2c), as in effect prior to the ‘‘(3) Notwithstanding any other provision the calendar year of any primary or general date of enactment of this subsection, there of this section, the district courts of the election (whether regular or runoff) in which shall be established in the manner provided United States shall have authority to issue the Member is a candidate for reelection; by the law of the State a number of districts all judgments, orders, and decrees necessary or’’; and equal to the number of Representatives to to ensure that any criteria established by (B) in clause (ii)(II), by striking ‘‘fewer which such State is so entitled, and Rep- State law pursuant to this section are not in than 60 days immediately before the date’’ resentatives shall be elected only by eligible conflict with this section. and inserting ‘‘during the year’’. voters from districts so established, no dis- ‘‘(4) With the exception of actions brought (2) Section 3210(a)(6)(C) of title 39, United trict to elect more than 1 Representative. for the relief described in paragraph (3), the States Code, is amended by striking ‘‘fewer ‘‘(2) Such districts shall be established in district court for the purposes of this section than 60 days immediately before the date’’ accordance with the provisions of this Act as shall be a three-judge district court pursuant and inserting ‘‘during the year’’. soon as practicable after the decennial cen- to section 2284 of title 28, United States (3) Section 3210(a)(6) of title 39, United sus date established in section 141(a) of title Code. States Code, is amended— 13, United States Code, but in no case later ‘‘(5) On motion of any party in accordance (A) by redesignating subparagraphs (D), than such time as is reasonably sufficient for with section 1657 of title 28, United States (E), and (F) as subparagraphs (E), (F), and their use in the elections for the One Hun- Code, it shall be the duty of the district (G), respectively; and dred Third Congress and in each fifth Con- court to assign the case for briefing and (B) by inserting after subparagraph (C) the gress thereafter. hearing at the earliest practicable date, and following new subparagraph: ‘‘(d)(1) The number of persons in congres- to cause the case to be in every way expe- ‘‘(D)(i)(I) When a Member of the Senate sional districts within each State shall be as dited. The district court shall have authority disseminates information under the frank by nearly equal as is practicable, as determined to enter all judgments, orders and decrees a mass mailing, the Member shall register under the then most recent decennial census. necessary to bring a State into compliance ‘‘(2) The enumeration established accord- annually with the Secretary of the Senate with this Act. ing to the Federal decennial census pursuant such mass mailings. Such registration shall ‘‘(6) An action to challenge the establish- to article I, section II, United States Con- be made by filing with the Secretary of the ment of a congressional district in a State stitution, shall be the sole basis of popu- Senate a copy of the matter mailed and pro- after a Federal decennial census may not be lation for the establishment of congressional viding, on a form supplied by the Secretary brought after the end of the 9-month period districts. of the Senate, a description of the group or beginning on the date on which the last such ‘‘(e) Congressional districts shall be com- district is so established. groups of persons to whom the mass mailing prised of contiguous territory, including ad- was mailed. ‘‘(7) For the purposes of this section, an joining insular territory. order dismissing a complaint for failure to ‘‘(II) The Secretary of the Senate shall ‘‘(f) Congressional districts shall not be es- promptly make available for public inspec- state a cause of action shall be appealable in tablished with the intent or effect of diluting accordance with section 1253 of title 28, Unit- tion and copying a copy of the mail matter the voting strength of any person, group of registered and a description of the group or ed States Code. persons, or members of any political party. ‘‘(8) If a district court fails to establish a groups of persons to whom the mass mailing ‘‘(g) Congressional districts shall be com- was mailed. briefing and hearing schedule that will per- pact in form. In establishing such districts, mit resolution of the case prior to the next ‘‘(ii)(I) When a Member of the House of nearby population shall not be bypassed in Representatives disseminates information general election, any party may seek a writ favor of more distant population. of mandamus from the United States Court under the frank by a mass mailing, the Mem- ‘‘(h) Congressional district boundaries of Appeals for the circuit in which the dis- ber shall register annually with the Clerk of shall avoid the unnecessary division of coun- trict court sits. The court of appeals shall the House of Representatives such mass ties or their equivalent in any State. mailings. Such registration shall be made by ‘‘(i) Congressional district boundaries shall have jurisdiction over the motion for a writ filing with the Clerk of the House of Rep- be established in such a manner so as to min- of mandamus and shall establish an expe- resentatives a copy of the matter mailed and imize the division of cities, towns, villages, dited briefing and hearing schedule for reso- providing, on a form supplied by the Clerk of and other political subdivisions. lution of the motion. Such a motion shall the House of Representatives, a description ‘‘(j)(1) It is the intent of the Congress that not stay proceedings in the district court. ‘‘(9) If a district court determines that the of the group or groups of persons to whom congressional districts established pursuant congressional districts established by a the mass mailing was mailed. to this section be subject to reasonable pub- State’s redistricting authority pursuant to ‘‘(II) The Clerk of the House of Representa- lic scrutiny and comment prior to their es- this Act are not in compliance with this Act, tives shall promptly make available for pub- tablishment. the court shall remand the plan to the lic inspection and copying a copy of the mail ‘‘(2) At the same time that Federal decen- State’s redistricting authority to establish matter registered and a description of the nial census tabulations data, reports, maps, new districts consistent with subsections (c) group or groups of persons to whom the mass or other material or information produced or through (l). The district court shall retain mailing was mailed.’’. obtained using Federal funds and associated jurisdiction over the case after remand. (b) AMENDMENT OF STANDING RULES OF THE with the congressional reapportionment and redistricting process are made available to ‘‘(10) If, after a remand under paragraph SENATE.—(1) Paragraph 1 of Rule XL of the (9), the district court determines that the Standing Rules of the Senate is amended by any officer or public body in any State, those materials shall be made available by the congressional districts established by a striking ‘‘less than sixty days immediately State’s redistricting authority under the re- before the date’’ and inserting ‘‘during the State at the cost of duplication to any per- son from that State meeting the qualifica- mand order are not consistent with sub- year’’. sections (c) through (l), the district court (2) This subsection is enacted— tions for voting in an election of a Member of the House of Representatives. shall enter an order establishing districts (A) as an exercise of the rulemaking power that are consistent with subsections (c) of the Senate; and ‘‘(k) Nothing in this section shall be con- strued to supersede any provision of the Vot- through (l) for the next general congres- (B) with full recognition of the constitu- sional election. tional right of the Senate to change the ing Rights Act of 1965 (42 U.S.C. 1973 et seq.). ‘‘(l)(1) A State may establish by law cri- ‘‘(11) If any question of State law arises in rules at any time, in the same manner and to teria for implementing the standards set a case under this section that would require the same extent as in the case of any other forth in this section. abstention, the district court shall not ab- rule of the Senate. ‘‘(2) Nothing in this section shall be con- stain. However, in any State permitting cer- SEC. 205. LIMITATIONS ON GERRYMANDERING. strued as limiting the power of a State to tification of such questions, the district (a) REAPPORTIONMENT OF REPRESENTA- strengthen or add to the standards set forth court shall certify the question to the high- TIVES.—Section 22 of the Act entitled ‘‘An in this section, or to interpret those stand- est court of the State whose law is in ques- Act to provide for the fifteenth and subse- ards in a manner consistent with the law of tion. Such certification shall not stay the quent decennial censuses and to provide for the State, to the extent that any additional proceedings in the district court or delay the apportionment of Representatives in Con- criteria or interpretations are not in conflict court’s determination of the question of gress,’’ approved June 18, 1929 (2 U.S.C. 2a), is with this section. State law. amended— ‘‘(m)(1) The district courts of the United ‘‘(12) With the exception of actions brought (1) by striking subsection (c); and States shall have exclusive jurisdiction to for the relief described in paragraph (3), an (2) by adding at the end thereof the follow- hear and determine any action to enforce appeal from a decision of the district court ing new subsections: subsections (c) through (l). under this section shall be taken in accord- ‘‘(c)(1) In each State entitled in the One ‘‘(2) A person who meets a State’s quali- ance with section 1253 of title 28, United Hundred Third Congress or in any subse- fications for voting in an election of a Mem- States Code. An appeal under this paragraph quent Congress to more than one Represent- ber of the House of Representatives from the shall be noticed in the district court and per- ative under an apportionment made pursu- State may bring an action in the district fected by docketing in the Supreme Court ant to the second paragraph of the Act enti- court for the district in which the person re- within thirty days of the entry of judgment tled ‘An Act for the relief of Doctor Ricardo sides to enforce subsections (c) through (l) below. Appeals brought to the Supreme Vallejo Samala and to provide for congres- with regard to the State in which the person Court under this paragraph shall be heard as sional redistricting’, approved December 14, resides. soon as practicable. October 6, 1997 CONGRESSIONAL RECORD — SENATE S10387 ‘‘(13) For purposes of this section, the term ‘‘(c) Whoever, being a public official or an include reinstatement with the same senior- ‘redistricting authority’ means the officer or official or employee of a State, political sub- ity status that the employee or official public body having initial responsibility for division of a State, or Indian tribal govern- would have had but for the discrimination, 3 the congressional redistricting of a State.’’. ment, in a circumstance described in sub- times the amount of back pay, interest on (b) CONFORMING AMENDMENTS AND RE- section (d), deprives or defrauds, or endeav- the back pay, and compensation for any spe- PEALER.—(1) The first sentence of section ors to deprive or to defraud, by any scheme cial damages sustained as a result of the dis- 1657 of title 28, United States Code, is amend- or artifice, the inhabitants of a State or po- crimination, including reasonable litigation ed by striking ‘‘chapter 153 or’’ and inserting litical subdivision of a State of the right to costs and reasonable attorney’s fees. ‘‘chapter 153, any action under subsection have the affairs of the State, political sub- ‘‘(2) An individual shall not be entitled to (m) through (l) of section 22 of the Act enti- division, or Indian tribal government con- relief under paragraph (1) if the individual tled ‘An Act to provide for the fifteenth and ducted on the basis of complete, true, and ac- participated in the violation of this section subsequent censuses and to provide for ap- curate material information, shall be fined with respect to which relief is sought. portionment of Representatives in Congress,’ under this title or imprisoned for not more ‘‘(3) A civil action brought under para- approved June 18, 1929 (2 U.S.C. 2a), or’’. than 10 years, or both. graph (1) shall be stayed by a court upon the (2) Section 141(c) of title 13, United States ‘‘(d) The circumstances referred to in sub- certification of an attorney for the Govern- Code, is amended by adding at the end there- sections (a), (b), and (c) are that— ment, stating that the action may adversely of the following: ‘‘In circumstances in which ‘‘(1) for the purpose of executing or con- affect the interests of the Government in a this subsection requires that the Secretary cealing such scheme or artifice or attempt- current criminal investigation or proceed- provide criteria to, consult with, or report ing to do so, the person so doing— ing. The attorney for the Government shall tabulations of population to (or if the Sec- ‘‘(A) places in any post office or authorized promptly notify the court when the stay retary for any reason provides material or depository for mail matter, any matter or may be lifted without such adverse effects. information to) the public bodies having re- thing whatever to be sent or delivered by the sponsibility for the legislative apportion- Postal Service, or takes or receives there- ‘‘(h) For purposes of this section— ment or districting of a State, the Secretary from, any such matter or thing, or know- ‘‘(1) the term ‘State’ means a State of the shall provide, without cost, such criteria, ingly causes to be delivered by mail accord- United States, the District of Columbia, consultations, tabulations, or other material ing to the direction thereon, or at the place Puerto Rico, and any other commonwealth, or information simultaneously to the leader- at which it is directed to be delivered by the territory, or possession of the United States; ship of each political party represented on person to whom it is addressed, any such ‘‘(2) the terms ‘public official’ and ‘person such public bodies. For purposes of this sub- matter or thing; who has been selected to be a public official’ section, the term ‘political party’ means any ‘‘(B) transmits or causes to be transmitted have the meaning set forth in section 201 and political party whose candidates for Rep- by means of wire, radio, or television com- shall also include any person acting or pre- resentatives to Congress received, as the munication in interstate or foreign com- tending to act under color of official author- candidates of such party, 5 percent or more merce any writings, signs, signals, pictures, ity; of the total number of votes received state- or sounds; ‘‘(3) the term ‘official’ includes— wide by all candidates for such office in any ‘‘(C) transports or causes to be transported ‘‘(A) any person employed by, exercising of the 5 most recent general congressional any person or thing, or induces any person to any authority derived from, or holding any elections. Such materials may include those travel in or to be transported in, interstate position in an Indian tribal government or developed by the Census Bureau for redis- or foreign commerce; or the government of a State or any subdivision tricting purposes for the 1990 Census.’’. ‘‘(D) uses or causes to use of any facility of of the executive, legislative, judicial, or (3) The second paragraph of the Act enti- interstate or foreign commerce; other branch of government thereof, includ- tled ‘‘An Act for the relief of Doctor Ricardo ‘‘(2) the scheme or artifice affects or con- ing a department, independent establish- Vallejo Samala and to provide for congres- stitutes an attempt to affect in any manner ment, commission, administration, author- sional redistricting’’, approved December 14, or degree, or would if executed or concealed ity, board, and bureau, and a corporation or 1967 (2 U.S.C. 2c), is repealed. so affect, interstate or foreign commerce; or other legal entity established and subject to SEC. 206. ELECTION FRAUD, OTHER PUBLIC COR- ‘‘(3) as applied to an offense under sub- control by a government or governments for RUPTION, AND FRAUD IN INTER- section (b), an objective of the scheme or ar- the execution of a governmental or intergov- STATE COMMERCE. ernmental program; (a) ELECTION FRAUD AND OTHER PUBLIC tifice is to secure the election of an official who, if elected, would have some authority ‘‘(B) any person acting or pretending to act CORRUPTION.—(1) Chapter 11 of title 18, Unit- under color of official authority; and ed States Code, is amended by adding at the over the administration of funds derived from an Act of Congress totaling $10,000 or ‘‘(C) includes any person who has been end thereof the following new section: nominated, appointed or selected to be an of- ‘‘§ 225. Public corruption more during the twelve-month period imme- diately preceding or following the election or ficial or who has been officially informed ‘‘(a) Whoever, in a circumstance described date of the offense. that he or she will be so nominated, ap- in subsection (d), deprives or defrauds, or en- ‘‘(e) Whoever deprives or defrauds, or en- pointed or selected; deavors to deprive or to defraud, by any deavors to deprive or to defraud, by any ‘‘(4) the term ‘under color of official au- scheme or artifice, the inhabitants of a State scheme or artifice, the inhabitants of the thority’ includes any person who represents or political subdivision of a State of the hon- United States of the honest services of a pub- that the person controls, is an agent of, or est services of an official or employee of such lic official or person who has been selected otherwise acts on behalf of an official, public State, political subdivision, or Indian tribal to be a public official shall be fined under official, and person who has been selected to government shall be fined under this title, or this title or imprisoned for not more than 10 be a public official; and imprisoned for not more than 10 years, or years, or both. ‘‘(5) the term ‘uses any facility of inter- both. ‘‘(f) Whoever, being an official, public offi- state or foreign commerce’ includes the ‘‘(b) Whoever, in a circumstance described cial, or person who has been selected to be a intrastate use of any facility that may also in subsection (d), deprives or defrauds, or en- public official, directly or indirectly dis- be used in interstate or foreign commerce.’’. deavors to deprive or to defraud, by any charges, demotes, suspends, threatens, (2)(A) The table of sections for chapter 11 scheme or artifice, the inhabitants of a State harasses, or in any manner discriminates of title 18, United States Code, is amended by or political subdivision of a State of a fair against an employee or official of the United adding at the end thereof the following item: and impartially conducted election process States or any State or political subdivision ‘‘225. Public Corruption.’’. in any primary, runoff, special, or general of a State, or endeavors to do so, in order to election— carry out or to conceal any scheme or arti- (B) Section 1961(1) of title 18, United States ‘‘(1) through the procurement, casting, or fice described in this section, shall be fined Code, is amended by inserting ‘‘section 225 tabulation of ballots that are materially under this title or subject to imprisonment (relating to public corruption),’’ after ‘‘sec- false, fictitious, or fraudulent or that are in- of up to 5 years or both. tion 224 (relating to sports bribery),’’. valid, under the laws of the State in which ‘‘(g)(1) An employee or official of the Unit- (C) Section 2516(1)(c) of title 18, United the election is held; ed States or any State or political subdivi- States Code, is amended by inserting ‘‘sec- ‘‘(2) through paying or offering to pay any sion of such State who is discharged, de- tion 225 (relating to public corruption),’’ person for voting; moted, suspended, threatened, harassed, or after ‘‘section 224 (bribery in sporting con- ‘‘(3) through the procurement or submis- in any other manner discriminated against tests),’’. sion of voter registrations that contain false because of lawful acts done by the employee (b) FRAUD IN INTERSTATE COMMERCE.—(1) material information, or omit material in- as a result of a violation of subsection (e) or Section 1343 of title 18, United States Code, formation; or because of actions by the employee or offi- is amended— ‘‘(4) through the filing of any report re- cial on behalf of himself or others in further- (A) by striking ‘‘transmits or causes to be quired to be filed under State law regarding ance of a prosecution under this section (in- transmitted by means of wire, radio, or tele- an election campaign that contains false ma- cluding investigation for, initiation of, testi- vision communication in interstate or for- terial information or omits material infor- mony for, or assistance in such a prosecu- eign commerce, any writings, signs, signals, mation, tion) may bring a civil action and shall be pictures, or sounds’’ and inserting ‘‘uses or shall be fined under this title or imprisoned entitled to all relief necessary to make such causes to be used any facility of interstate or for not more than 10 years, or both. employee or official whole. Such relief shall foreign commerce’’; and S10388 CONGRESSIONAL RECORD — SENATE October 6, 1997 (B) by inserting ‘‘or attempting to do so’’ Rules of Civil Procedure, the Commission SEC. 406. PRIVATE CIVIL ACTIONS. after ‘‘for the purpose of executing such shall, through its chairman or vice chair- Section 309(a)(6)(A) of FECA (2 U.S.C. scheme or artifice’’. man, notify the person of the alleged viola- 437g(a)(6)(A)), as amended by section 405, is (2)(A) The heading of section 1343 of title tion. Such vote shall occur within 90 days amended— 18, United States Code, is amended to read as after receipt of such complaint.’’. (1) by inserting ‘‘(i)’’ after ‘‘(6)(A)’’; and follows: SEC. 402. INJUNCTIVE AUTHORITY. (2) by adding at the end thereof the follow- ‘‘§ 1343. Fraud by use of facility of interstate Section 309(a)(2) of FECA (2 U.S.C. ing new clause: commerce’’. 437g(a)(2)), as amended by section 401, is ‘‘(ii) If, by a tie vote, the Commission does (B) The chapter analysis for chapter 63 of amended by adding at the end thereof the not vote to institute a civil action pursuant title 18, United States Code, is amended by following new subparagraph: to clause (i), the candidate involved in such striking the analysis for section 1343 and in- ‘‘(B) The Commission may petition the ap- election, or an individual authorized to act serting the following: propriate court for an injunction if— on behalf of such candidate, may file an ac- tion for appropriate relief in the district ‘‘1343. Fraud by use of facility of interstate ‘‘(i) the Commission believes that there is court for the district in which the respond- commerce.’’. a substantial likelihood that a violation of this Act or of chapter 95 or 96 of the Internal ent is found, resides, or transacts business. If TITLE III—REDUCTION OF CAMPAIGN Revenue Code of 1986 is occurring or is about the court determines that a violation has oc- COSTS to occur; curred, the court shall impose the appro- SEC. 301. BROADCAST DISCOUNT. ‘‘(ii) the failure to act expeditiously will priate civil penalty. Any such award of a (a) FINDINGS.—The Congress finds that— result in irreparable harm to a party affected civil penalty made under this paragraph (1) in the 45 days preceding a primary elec- by the potential violation; shall be made in favor of the United States. tion, and in the 60 days preceding a general ‘‘(iii) such expeditious action will not In addition to any such civil penalty, the election, candidates for political office need cause undue harm or prejudice to the inter- court shall award to the prevailing party in to be able to buy, at the lowest unit charge, ests of others; and any action under this paragraph, all attor- nonpreemptible advertising spots from ‘‘(iv) the public interest would be best neys’ fees and actual costs reasonably in- broadcast stations and cable television sta- served by the issuance of an injunction.’’. curred in the investigation and pursuit of tions to ensure that their messages reach the SEC. 403. TIME PERIODS. any such action, including those attorneys’ intended audience and that the voting public Section 309(a)(4)(A) of FECA (2 U.S.C. fees and costs reasonably incurred in bring- has an opportunity to make informed deci- 437g(a)(4)(A)) is amended— ing or defending the proceeding before the sions; (1) in clause (i) by— Commission.’’. (2) since the Communications Act of 1934 (A) striking ‘‘, for a period of at least 30 SEC. 407. KNOWING VIOLATIONS RESOLVED IN was amended in 1972 to guarantee the lowest days,’’; and COURT. unit charge for candidates during these im- (B) striking ‘‘90 days’’ and inserting ‘‘60 Section 309(a)(6)(C) of FECA (2 U.S.C. portant preelection periods, the method by days’’; and 437g(a)(6)(C)) is amended by striking ‘‘may which advertising spots are sold in the (2) in clause (ii) by striking ‘‘at least’’ and impose a civil penalty which does not exceed broadcast and cable industries has changed inserting ‘‘no more than’’. the greater of $10,000 or an amount equal to significantly; SEC. 404. KNOWING VIOLATION PENALTIES. 200 percent of any contribution or expendi- (3) changes in the method for selling adver- Section 309(a)(5)(B) of FECA (2 U.S.C. ture involved in such violation’’ and insert- tising spots have made the interpretation 437g(a)(5)(B)) is amended by striking ‘‘may ing ‘‘shall impose a civil penalty which is and enforcement of the lowest unit charge require that the person involved in such con- not less than the greater of $10,000 or an provision difficult and complex; ciliation agreement shall pay a civil penalty amount equal to 200 percent of any contribu- (4) clarification and simplification of the which does not exceed the greater of $10,000 tion or expenditure involved in such viola- lowest unit charge provision in the Commu- or an amount equal to 200 percent of any tion, except that if such violation was com- nications Act of 1934 is necessary to ensure contribution or expenditure involved in such mitted during the 15-day period immediately compliance with the original intent of the violation’’ and inserting ‘‘shall require that preceding the election, the court shall im- provision; and the person involved in such conciliation pose a civil penalty which is not less than (5) in granting discounts and setting agreement shall pay a civil penalty which is the greater of $15,000 or an amount equal to charges for advertising time, broadcasters not less than the greater of $5,000 or an 300 percent of any contribution or expendi- and cable operators should treat candidates amount equal to any contribution or expend- ture involved in such violation’’. for political office at least as well as the iture involved in such violation, except that SEC. 408. ACTION ON COMPLAINT BY COMMIS- most favored commercial advertisers. if the Commission believes that a knowing SION. MENDMENT OF COMMUNICATIONS ACT.— (b) A and willful violation of this Act or of chapter Section 309(a)(8)(A) of FECA (2 U.S.C. Section 315 of the Communications Act of 95 or chapter 96 of the Internal Revenue Code 437g(a)(8)(A)) is amended— 1934 (47 U.S.C. 315) is amended— of 1986 has been committed during the 15-day (1) by striking ‘‘act on’’ and inserting ‘‘rea- (1) in subsection (b)(1), by striking ‘‘class period immediately preceding any election, a sonably pursue’’; and’’; conciliation agreement entered into by the (2) by striking ‘‘120-day’’ and inserting ‘‘60- (2) by redesignating subsections (c) and (d) Commission under paragraph (4)(A) shall re- day’’; and as subsections (d) and (e), respectively; and quire that the person involved in such con- (3) by striking ‘‘United States District (3) by inserting immediately after sub- ciliation agreement shall pay a civil penalty Court for the District of Columbia’’ and in- section (b) the following new subsection: which is not less than the greater of $10,000 serting ‘‘appropriate court’’. ‘‘(c) A licensee shall not preempt the use, or an amount equal to 200 percent of any SEC. 409. VIOLATION OF CONFIDENTIALITY RE- during any period specified in subsection contribution or expenditure involved in such QUIREMENT. (b)(1), of a broadcasting station by a legally violation’’. Section 309(a)(12)(B) of FECA (2 U.S.C. qualified candidate for public office who has 437g(a)(12)(A)) is amended— purchased such use pursuant to subsection SEC. 405. COURT RESOLVED VIOLATIONS AND PENALTIES. (1) by striking ‘‘$2,000’’ and inserting (b)(1).’’. Section 309(a)(6) of the Federal Election ‘‘$5,000’’; and TITLE IV—MISCELLANEOUS PROVISIONS Campaign Act of 1971 (2 U.S.C. 437g(a)(6)) is (2) by striking ‘‘$5,000’’ and inserting Subtitle A—Federal Election Commission amended— ‘‘$10,000’’. Enforcement Authority (1) in subparagraph (A) by— SEC. 410. PENALTY IN ATTORNEY GENERAL AC- SEC. 401. ELIMINATION OF REASON TO BELIEVE (A) striking ‘‘Commission may’’ and in- TIONS. STANDARD. serting ‘‘Commission shall’’; Section 309(d)(1)(A) of FECA (2 U.S.C. Section 309(a)(2) of FECA (2 U.S.C. (B) striking ‘‘including’’ and inserting 437g(d)(1)(A)) is amended by striking ‘‘ex- 437g(a)(2)) is amended— ‘‘which shall include’’; and ceed’’ and inserting ‘‘be less than’’. (1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and (C) striking ‘‘which does not exceed the SEC. 411. AMENDMENTS RELATING TO ENFORCE- (2) by striking the first sentence and in- greater of $5,000 or an amount equal to any’’ MENT AND JUDICIAL REVIEW. serting the following: ‘‘Except as otherwise and inserting ‘‘which equals the greater of (a) TIME LIMITATIONS FOR AND INDEX OF IN- provided in subparagraph (B), if the Commis- $10,000 or an amount equal to 200 percent of VESTIGATIONS.—Section 309(a) of FECA (2 sion, upon receiving a complaint under para- any’’; and U.S.C. 437g(a)), as amended by section 124, is graph (1) or on the basis of information (2) in subparagraph (B) by— amended by adding at the end thereof the ascertained in the normal course of carrying (A) striking ‘‘court may’’ and inserting following new paragraphs: out its supervisory responsibilities deter- ‘‘court shall’’; and ‘‘(14) The Commission shall establish time mines, by an affirmative vote of 4 of its (B) striking ‘‘, including’’ and inserting limitations for investigations under this sub- members, that an allegation of a violation or ‘‘which shall include’’; and section. from pending violation of this Act or chapter (C) striking ‘‘which does not exceed the ‘‘(15) The Commission shall publish an 95 or 96 of the Internal Revenue Code of 1986 greater of $5,000 or an amount equal to any’’ index of all investigations under this section states a claim of violation that would be suf- and inserting ‘‘which equals the greater of and shall update the index quarterly.’’. ficient under the standard applicable to a $10,000 or an amount equal to 200 percent of (b) PROCEDURE ON INITIAL DETERMINA- motion under rule 12(b)(6) of the Federal any’’. TION.—Section 309(a)(2) of FECA (2 U.S.C. October 6, 1997 CONGRESSIONAL RECORD — SENATE S10389 437g(a)(2)), as amended by section 402, is ‘‘or’’ after the semicolon at the end of clause everyone who has looked at this feels amended by adding at the end thereof the (i), by striking the period at the end of this is an attempt to kill this bill by following: ‘‘Before a vote based on informa- clause (ii) and inserting ‘‘; and’’, and by add- insisting that Senate bill 9 be brought tion ascertained in the normal course of car- ing at the end thereof the following new rying out supervisory responsibilities, the up at this time. clause: The Senator from Kentucky said that person alleged to have committed the viola- ‘‘(iii) any gift, subscription, loan, advance, tion shall be notified of the allegation and or deposit of money or anything of value Senate bill 9 was a very important bill; shall have the opportunity to demonstrate, made by any person for the purpose of draft- that is why it was No. 9. I understand in writing, to the Commission within 15 days ing a clearly identified individual as a can- the rules around here. The leaders get after notification that no action should be didate for Federal office or encouraging a to introduce about five bills each they taken against such person on the basis of the clearly identified individual to become a consider to be a top priority. Senate information. Prior to any determination, the candidate for Federal office.’’. Commission may request voluntary re- bill 9 was one of those top priorities of (b) DRAFT AND ENCOURAGEMENT CONTRIBU- the Republican leadership. sponses to questions from any person who TIONS TO BE TREATED AS CANDIDATE CON- Why then, if it was such a top prior- may become the subject of an investigation. TRIBUTIONS.—Section 315(a) of FECA (2 A determination under this paragraph shall U.S.C. 441a(a)), as amended by this Act, is ity, did they wait almost until the end be accompanied by a written statement of amended by adding at the end thereof the of this entire year, the end of this en- the reasons for the determination.’’. following new paragraph: tire session, to bring it up? If it was so (c) PROCEDURE ON PROBABLE CAUSE DETER- ‘‘(12) For purposes of paragraph (1)(A) and important, why wasn’t it given the im- MINATION.—(1) Section 309(a)(3) of FECA (2 paragraph (2)(A), any contribution described portance that it supposedly had? Oth- U.S.C. 437g(a)(3)) is amended by adding at the in section 301(8)(A)(iii) shall be treated, with end thereof the following: ‘‘The Commission ers agree. respect to the individual involved, as a con- Mr. President, I ask unanimous con- shall make available to a respondent any tribution to a candidate, whether or not the documentary or other evidence relied on by individual becomes a candidate.’’. sent that the editorial from the New the general counsel in making a rec- SEC. 423. SEVERABILITY. York Times entitled ‘‘The Swing Sen- ommendation under this subsection. Any If any provision of this Act or any amend- ators’’ of October 5, 1997, be printed in brief or report by the general counsel that ment made by this Act, or the application of the RECORD. replies to the respondent’s brief shall be pro- any such provision to any person or cir- There being no objection, the edi- vided to the respondent.’’. (2) Section 309(a)(4)(A) of FECA (2 U.S.C. cumstance is held invalid, the validity of any torial was ordered to be printed in the 437g(a)(4)(A)) is amended by adding at the other such provision, and the application of RECORD, as follows: end thereof the following new clauses: such provision to other persons and cir- [From the New York Times, Oct. 5, 1997] cumstances shall not be affected thereby. ‘‘(iii) A determination under clause (i) THE SWING SENATORS shall be made only after opportunity for a SEC. 424. EFFECTIVE DATE. It takes many routine votes to build and hearing upon request of the respondent and Except as otherwise provided in this Act, sustain a Senate career, but one memorable shall be accompanied by a statement of the this Act and the amendments made by this vote can destroy a reputation. For a handful reasons for the determination. Act shall become effective on November 10, ‘‘(iv) The Commission shall not require 1992, and shall apply to all contributions and of Republican senators who have championed that any conciliation agreement under this expenditures made after that date. campaign finance reform, that fatal vote could come on Tuesday if they kill the paragraph contain an admission by the re- Mr. FEINGOLD. Senate bill 143 from spondent of a violation of this Act or any McCain-Feingold bill. It is hard to imagine the 102d Congress was offered by the how Olympia Snowe of Maine, James Jef- other law.’’. Senator from Kentucky. It was not a (d) ELIMINATION OF EN BANC HEARING RE- fords of Vermont and John Chafee of Rhode QUIREMENT.—Section 310 of FECA (2 U.S.C. group of people that had to sort of pull Island can face their constituents if they 437h), as amended by section 124(d), is together to support the leader on this. bury the best chance in a generation to fash- amended by striking ‘‘, which shall hear the Mr. MCCONNELL, the Senator from Ken- ion a more rational system of financing matter sitting en banc’’. tucky, was the lead author, and then Presidential and Congressional campaigns. That is the simple, unforgiving logic of SEC. 412. TIGHTENING ENFORCEMENT. other Senators, distinguished Senators, (a) REPEAL OF PERIOD OF LIMITATION.—Sec- Tuesday’s vote. Trent Lott, the majority agreed with him—Senator Dole, Sen- leader, has scheduled a showdown on the tion 406 of FECA (2 U.S.C. 455) is repealed. ator Simpson, Senator Packwood, Sen- (b) SUPPLYING OF INFORMATION TO THE AT- McCain-Feingold bill, which would curb the TORNEY GENERAL.—Section 309(a)(12) of the ator COCHRAN, Senator DOMENICI, Sen- unlimited donations to political parties that Federal Election Campaign Act of 1971 (2 ator MURKOWSKI, Senator ROTH, and have been at the heart of the scandals this U.S.C. 437g(a)(12)(A)) is amended by adding Senator Hatfield; but the lead author year. The bill would also restrict the ability at the end thereof the following new sub- of the bill was the Senator from Ken- of independent groups to raise money from paragraph: tucky. And the bill banned soft money. rich individuals, corporations and labor ‘‘(C) Nothing in this section shall be Mr. President, it specifically provides unions to broadcast candidate attack ads deemed to prohibit or prevent the Commis- masquerading as issue ads two months before sion from making information contained in for the ban of soft money which the an election. To kill the legislation, Mr. Lott compliance files available to the Attorney Senator from Kentucky has denounced has made the first order of business a vote on General, at the Attorney General’s request, as an unconstitutional part of the an amendment he knows Democrats do not in connection with an investigation or McCain-Feingold bill. So this notion support. It would limit the ability of labor trial.’’. that somehow the Senator from Ken- unions to raise and spend money on elec- Subtitle B—Other Provisions tucky was not supportive of this kind tions. If the amendment is approved, the SEC. 421. DISCLOSURE OF DEBT SETTLEMENT of concept, at least at that time, does overall bill will die. All 45 Democrats are prepared to vote AND LOAN SECURITY AGREEMENTS. not seem to withstand scrutiny. Section 304(b) of FECA (2 U.S.C. 434(b)), as against Mr. Lott’s amendment, so just five Mr. President, I would also like at Republicans are needed to defeat it. Senator amended by section 112, is amended by strik- this time to spend a few moments talk- ing ‘‘and’’ at the end of paragraph (8), by John McCain of Arizona, a conservative who striking the period at the end of paragraph ing a little bit about a very important would otherwise support the Lott amend- (9) and inserting a semicolon, and by adding item, and that is the proposal before us ment, will vote against it because he knows at the end thereof the following new para- offered by the majority leader. That it will strangle reform. Fred Thompson of graphs: represents, to me, an attempt to put Tennessee, Susan Collins of Maine and Arlen ‘‘(10) for the reporting period, the terms of the onus of the entire campaign fi- Specter of Pennsylvania, all supporters of any settlement agreement entered into with nance issue just on organized labor. McCain-Feingold, seem likely to join Mr. Cain. respect to a loan or other debt, as evidenced That is the substantive impact of this by a copy of such agreement filed as part of Senator Snowe has sponsored campaign fi- proposal. nance reform legislation in the past and the report; and But I am afraid the proposal is, in ‘‘(11) for the reporting period, the terms of Maine, her home state, last year overwhelm- any security or collateral agreement entered the end, going to serve a larger pur- ingly approved a referendum that established into with respect to a loan, as evidenced by pose, if it prevails. The majority leader public financing of campaigns and limits on a copy of such agreement filed as part of the made it pretty clear that was his pur- contributions and candidate expenditures. report.’’. pose. The purpose of the proposal, it She would betray her own record and her SEC. 422. CONTRIBUTIONS FOR DRAFT AND EN- seems to me, is to kill the McCain- state if she supported Mr. Lott’s effort to torpedo the McCain-Feingold bill. COURAGEMENT PURPOSES WITH RE- Feingold bill. I know the majority SPECT TO ELECTIONS FOR FEDERAL Since entering the Senate in 1989, Mr. Jef- OFFICE. leader has said that that is not the fords has been among the most articulate (a) DEFINITION.—Section 301(8)(A) of FECA case. But I am not the only one who be- backers of campaign finance reform. In 1992, (2 U.S.C. 431(8)(A)) is amended by striking lieves this is a poison pill. Just about he voted to override a veto by President S10390 CONGRESSIONAL RECORD — SENATE October 6, 1997 Bush of legislation imposing spending and But the amendment is a useful vehicle for ballot initiative to enact a similar require- contribution limits. Senator Chafee has also Lott and fellow Republicans to posture for ment. At the Republican state convention in consistently favored reform over the years. the favor of employers whose contribution Anaheim, Wilson, drew a standing ovation by Another swing vote this week ought to they seek—and to make retaliatory mischief declaring that ‘‘union members shouldn’t be come from Alfonse D’Amato of New York. for the unions, which spend $35 million at- forced to have their pockets picked for can- Mr. D’Amato is up for re-election next year tacking Republicans last year. And while didates or causes they don’t support.’’ and is counting on labor support. In the past they moan about it, the debate gives Demo- This ‘‘payroll protection’’ drive, as pro- he has opposed the kind of labor fund-raising cratic opponents a chance to preen as friends ponents call it, is the handiwork of J. Pat- curbs now pushed by Mr. Lott. He was even of the union leaders. rick Rooney, an Indianapolis insurance ty- quoted recently as saying he favored a ban Unfortunately, the amendment also carries coon who previously put millions into mak- on unlimited donations to campaigns. Mr. the risk of fracturing the fragile coalition ing medical savings accounts and school D’Amato could enhance his standing among pushing for much-needed change. Lott has as vouchers part of the national Republican moderate Republicans and independents by good as said that is its real purpose. agenda. rallying behind the McCain-Feingold bill. It’s an old story. In 1990, the House and Rooney told me that, through the Ever- If Mr. Lott prevails, supporters of cam- Senate actually passed somewhat similar green Freedom Foundation in Seattle he is paign reform must not give up. Senator campaign-reform bills, but the conferees ap- financing lawsuits by teachers against the McCain has promised to attach his bill to pointed to iron out the differences never got Washington Education Association for alleg- every piece of legislation before the Senate around to meeting. In 1994, a slightly dif- edly violating a 1992 state initiative that is in the coming weeks. That strategy worked ferent scenario brought a similar result. the model for the Lott and Wilson proposals. last year for raising the minimum wage. In 1988, a reform bill was killed by a fili- The California initiative ‘‘was going to After a year of scandal and abuse, there is no buster. In 1992, a bill passed but was vetoed; stall out for lack of money,’’ Rooney told greater priority for Congress than removing the votes to override weren’t there. Repeat- me, ‘‘so I got involved,’’ and became chair- the stain of corruption from American poli- edly, representatives and senators who want man of a signature drive that seems likely to tics. The public’s desire for reform demands to get on record as reformers have been able put the issue on next June’s ballot. But that nothing less. If Senators Snowe, Jeffords and to do so—but with little risk of change actu- is not the end of it, Rooney said he and Gro- Chafee would vote on principle rather than ally becoming law. ver Norquist, another conservative activist, blindly following Mr. Lott, the Senate could Now, despite a $260 million flood of unregu- have enlisted Wilson to take the proposal to approve reform this week. lated campaign contributions in 1995-96, de- next month’s meeting of all Republican gov- Mr. FEINGOLD. Mr. President, that spite $3 million in illegal or questionable ernors and urge them to do the same thing in editorial identifies clearly the belief of contributions, despite an unseemly money their states. A parallel bill has attracted most Americans that the purpose of chase by the president and vice president more than 160 co-sponsors in the House of this amendment is not necessarily to that has prompted Justice Department and Representatives. congressional investigations, reform is again Polls show the idea of letting union mem- simply resolve this issue, although I bers control how their dues are spent is pop- am sure Members on the other side of at risk of being sidetracked. Another modest effort to get at the mess of ular with voters. As a device for limiting la- the aisle, many of them, feel strongly money in politics would be dead, with few bor’s voice, it is devastatingly effective. ‘‘It about it, but it is to kill the McCain- fingerprints at the scene of the crime. Just has had a dramatic, negative impact on us,’’ Feingold bill. stalemate and deception as usual. by drying up funds and bringing on a lawsuit Mr. President, I also ask unanimous Mr. FEINGOLD. The article, of by the state attorney general, Trevor Neil- sen, spokesman for the Washington teachers’ consent that an editorial from the USA course, lays out the arguments about Today, dated October 6, 1997, entitled union, told me. At the state employees’ the issue of union dues. In fact, as is union, officials have reported that authoriza- ‘‘Squabble over union dues a pretext to the practice of USA Today, they give tions for payroll deductions for its political stop reform’’ be printed in the RECORD. an opportunity to the majority leader operations had been signed by only 82 of its There being no objection, the edi- to respond within the article. But the 2,500 members. torial was ordered to be printed in the subheadline sort of says it all. ‘‘As in In 1988, the Supreme Court ruled in Team- RECORD, as follows: the past, those in power are trying to sters v. Beck that workers in a unionized SQUABBLE OVER UNION DUES A PRETEXT TO kill campaign-finance reform without company must be allowed the option of re- claiming the portion of their dues used for STOP REFORM taking the rap.’’ Our View—As in the past, those in power political purposes. But the Beck decision has Mr. President, at this time I ask not been enforced. Most employers are reluc- are trying to kill campaign-finance reform unanimous consent to have printed in without taking the rap. tant to risk union trouble by encouraging For 20 years, Congress has mounted pieties the RECORD an article from the Wash- dissidents. In 1992, President Bush, respond- about cleaning up the swamp of special-in- ington Post by David S. Broder enti- ing to conservative pressure, issued an exec- terest money in politics, while making quite tled ‘‘Campaign Finance: A ‘Poison utive order requiring government contrac- sure nothing gets done about it. Pill’* * *.’’ tors to inform employees of their Beck case Year after year, stalling, stalemate and de- There being no objection, the article rights. But President Clinton rescinded it on taking office, as a boon to unions and be- ception have been weapons of choice for was ordered to be printed in the those who have mastered the system to get cause, a White House official said, ‘‘he RECORD, as follows: elected and have little interest in change. thought it was one-sided. This week, masked in a contrived debate [From the Washington Post, Oct. 5, 1997] Sens. John McCain and Russ Feingold, over union dues, it may happen again. CAMPAIGN FINANCE: A ‘‘POISON PILL’’. . . sponsors of the main Senate campaign fi- nance bill, have included a codification of After finally agreeing to debate campaign- (By David S. Broder) finance reform, Senate Majority Leader the Beck decision in their measure. But Lott Trent Lott has made the first order of busi- From Capitol Hill to California, conserv- and Wilson and Rooney would go much fur- ness his own amendment requiring that atives claim to have found a new weapon for ther by requiring written permission from union members give written permission be- their arsenal—a device to disarm labor workers each year for political use of their fore their dues can be used for political pur- unions and put Democrats on the defensive. dues. Feingold and other opponents say that poses. But it is a weapon that can produce a dan- is unfair, noting that it would leave corpora- Sounds noble, but it’s a phony. The cam- gerous backlash. tions free to continue making soft money po- paign-reform bill already includes provisions The devicde is wonderfully simple: a legal litical contributions without permission of effectively barring union treasuries from requirement that workers give written per- stockholders who might hold opposing views. making political contributions. mission before unions can use their dues for And the pending initiatives do not affect It closes the so-called ‘‘soft money’’ loop- political purposes. hundreds of other mass-membership organi- hole which has allowed massive, unregulated In Washington, Senate Majority Leader zations such as the National Rifle Associa- contributions to parties by both unions and Trent Lott (R-Miss.) this week will try to at- tion and the American Association of Re- business interests. tach such an amendment to the pending tired Persons, which are also hip-deep in pol- It brings ‘‘independent expenditure’’ and campaign finance reform bill. He calls its ap- itics. ‘‘issue advocacy’’ ads that target candidates proval ‘‘the price of admission’’ to every Whether this is a political masterstroke under the same regulations as campaign con- other aspect of the debate Democrats call it for Republicans remains to be seen. In 1958, tributions. That makes them a no-no for a ‘‘poison pill’’ and say if it passes, they will conservatives promoted right-to-work initia- both unions and business. filibuster to protect their union allies— tives, barring union shop contracts, in six Limited contributions from union political which would allow Lott to blame them for states. They lost everywhere but in Kansas. actual committees would remain legal, but sinking the overall reform package that he In California and Ohio, the two biggest tar- PACs already must obtain sign-offs from despises. gets, labor’s mobilization fueled Democratic contributors. Further, union members un- In California, where I was reporting last victories that devastated the GOP. happy with the use of their dues already week, Republican Gov. Pete Wilson an- California unions are threatening to retali- have a right to quit the union. nounced that he will lead an effort for a 1998 ate against the Rooney-Wilson initiative by October 6, 1997 CONGRESSIONAL RECORD — SENATE S10391 placing on the ballot a measure that would outspent unions nearly 9 to 1 on politics last process to change those activities. ‘‘sunset’’ every existing corporate tax break year, to get approval from shareholders when They can run for office within the not approved by two-thirds vote of the peo- making political expenditures. union. They can build coalitions and If the four Republican supporters of ple and redistribute the estimated $8 billion seek leadership posts. And of course, to $12 billion a year of revenue in $1,000-a- McCain-Feingold stand firm, only one other person tax rebates. Republican will be needed to defeat Mr. Mr. President—and this is a point that Conservatives may learn that if you play Lott’s disingenuous amendment. Senator has been glossed over far too often in with fire, you can be burned. Alfonse D’Amato of New York, no particular debate—if the individual wants abso- Mr. FEINGOLD. Mr. President, the champion of campaign reform in the past, is lutely nothing to do with the union, he Senator from Kentucky is fond of in for a tough re-election fight next year and or she has the option of quitting or not has always had the backing of at least some joining the union in the first place. quoting Mr. Broder, a leading col- labor unions. Senator Jim Jeffords of Ver- umnist and expert on these kinds of is- Union membership is not mandatory. mont, a long-time champion of campaign re- It is voluntary. But as the Democratic sues in the country. But he lays out form should see the wisdom of standing up pretty clearly the fact that this is not now. Senator Olympia Snowe of Maine, leader has pointed out, this provision, simply another piece of legislation where campaign finance reform has been ap- this amendment is not about reform. I that happens to come up as the first proved locally, can join with Senator Collins am afraid it is a little more about the and potentially only amendment on to save the reform legislation. last election. Other senators who have shown independ- the campaign finance reform bill. He The sponsors of this proposal have ence on this issue in the past, like John come to the conclusion that all of the clearly lays out some of the political Chafee of Rhode Island, should also come to and other considerations that are in- problems in our campaign system can the rescue. Down the road, still more Repub- be traced to the political activities of volved in bringing up such a poison licans will be needed to save the bill, because pill. it will take 60 votes to thwart a promised fil- just labor unions. Who believes that? Mr. President, I ask unanimous con- ibuster. For now, they should realize that if Clearly, labor unions are participants, sent that an editorial dated October 1, they let Mr. Lott kill the bill by subterfuge, but they are only one kind of partici- 1997, from the New York Times entitled their criticism of Democratic excesses will pant and by no means the greatest par- be mere opportunism and hollow rhetoric. ‘‘Trent Lott’s Poison Pill,’’ be printed ticipant when it comes to the kind of money that has been spent in recent in the RECORD. Mr. FEINGOLD. Mr. President, this There being no objection, the edi- again is another editorial indicating elections. The Senator from Arizona and I have torial was ordered to be printed in the that people around this country know come to a different conclusion. I know RECORD, as follows: very well that what is going on here is not an opportunity to freely and fully the Senator from Arizona believes pas- TRENT LOTT’S POISON PILL debate and amend this bill but an at- sionately that the spending by orga- Trent Lott, as expected, has come up with tempt to narrow it down to one issue— nized labor has to be controlled with a perverse stratagem to kill campaign fi- regard to elections, but he and I have nance reform this year. The Senate majority and I am not saying it is not an impor- leader would add a provision to the McCain- tant issue—but to narrow this whole come to the conclusion that to simply Feingold bill requiring unions to get ap- issue down to one issue having to do say that unions alone are the problem proval from workers before using their dues with union dues, which could be easily does not really measure the problem. or fees for political purposes. The idea might resolved. We have concluded we should craft a deserve consideration another day, but Mr. If everybody took a look at the reform proposal that affects both par- Lott’s purpose today is to scuttle the bill by McCain-Feingold provision, a provision ties—that affects both parties—in a making it unacceptable to Democrats. that codified the Beck decision, a pro- fair and equal manner. We have con- After months of disclosures about excesses cluded that corporate America is just in both parties, all 45 Senate Democrats have vision we placed in the bill after much joined 4 Republicans to support the McCain- negotiation, it says if you are a non- as much to blame for our campaign Feingold legislation, which would prohibit union member and you do not want system as labor unions or anyone else. unlimited donations to the parties by your dues to go to a political cam- That is the point here. There is plenty wealthy individuals, labor unions and cor- paign, we can refund that. We codified of blame to go around for everybody. porations. These contributions were at the what the Supreme Court said in that. Democrats are responsible, Repub- heart of the access-buying scandals of the Our concern is that the majority licans are responsible, corporations are Clinton campaign, and they figure in the in- leader’s amendment goes well beyond responsible, labor unions are respon- fluence of money from tobacco and other in- sible, groups that are trying to divide dustries on Capitol Hill. Mr. Lott knows that, knowing full well it would make there are nearly enough senators to approve it impossible for a real bipartisan bill us in this country are responsible. Ev- the bill, so he wants a poison pill to repel to come out of this body. erybody can and should accept part of Democrats and shatter its bipartisan sup- Mr. President, if this were a proposal the blame for this disastrous system. port. offered by a Democrat, and it had as its What we are trying to do, what the Only one additional Republican would be central premise the idea that the Fed- Senator from Arizona and I are trying needed to join other Republican backers of eral Government should be regulating to do, is to get this nonsense to come reform to block Mr. Lott’s plan. But it will the internal functions of a voluntary to an end. Instead, we are being told by not be easy for Republicans to resist his se- organization, such as the Christian Co- the supporters of the Lott amendment, ductive amendment. Even two reformers, Senators John McCain of Arizona and Susan alition or the National Rifle Associa- apparently that when the Ford Motor Collins of Maine, support the principle be- tion, you can bet those on the other Co. takes the money of its shareholders hind the amendment, though they have said side would be beside themselves. and makes a $500,000 soft money con- they oppose the amendment itself as a threat Mr. President, that is what a labor tribution to a political party, that is to reform at this crucial point. Many other union is. In fact, if you read the Beck perfectly fine; but if the United Auto Republicans would like to vote for some- decision, as I did again today just to be Workers makes a similar soft money thing that would punish labor for its recent sure, that whole decision is about the contribution to a political party, that campaign spending, particularly the $35 mil- fact that the Taft-Hartley Act said is not OK. That has to be what the au- lion that paid for attack ads directed at Re- publican candidates in 30 Congressional they were not going to permit any thors of this amendment are suggest- races last year. more closed shops in America. So if ing because they are not suggesting The McCain-Feingold bill would codify a you do not want to be a member of a that we treat them in the same way. nine-year-old ruling of the Supreme Court union, you do not have to be but there Of course, the other problem with the holding that non-union members who pay would still be union shops. And that is amendment is that it appears to be of- union dues or fees as a condition of employ- because under that legislation, under fered under the mistaken assumption ment are entitled to demand that the fees that law, a union is a voluntary organi- that the underlying McCain-Feingold not be used for political purposes. If Repub- zation. proposal would have no impact on licans want to vote on a broader provision If members of a labor union do not labor unions. Mr. President, that is giving that right to all union members, they should accept the Democratic offer to con- approve of the collective bargaining ac- just false. The Senator from Arizona sider it on another day without the threat of tivities or the political activities or and I have worked hard to make sure a filibuster. It would only be fair to consider any other activities of the union, they that in a fair manner the activities of a similar curb requiring corporations, which have the right to use the democratic unions and other organizations that S10392 CONGRESSIONAL RECORD — SENATE October 6, 1997 seem to distort the political process principle to corporations and other or- I yield the floor. are affected. ganizations, as well? Say I am living in The PRESIDING OFFICER. The Sen- First of all, the bill bans all union Eau Claire, WI, and I own several ator from Oregon is recognized. and corporate soft money contribu- shares of stock in AT&T. I assume that Mr. SMITH of Oregon. Mr. President, tions to the parties. We ban it across money I have invested in that corpora- I rise today in support of the Lott the board. That includes all union soft tion was being used to grow that com- amendment and in opposition to the money. But it also includes if it is done pany and improve its market share. McCain-Feingold bill. It is not without by the Ford Motor Co. In short, Mr. That is what I would hope the company some reservation that I take that posi- President, under McCain-Feingold it would do to protect my dollar, to do tion. I have the greatest esteem and re- will be illegal—illegal—for a labor their fiduciary duty to their stockhold- spect for the Senator from Wisconsin union to use the dues of its members or ers. Would I be surprised to learn my and the Senator from Arizona. I know nonmembers—members or nonmem- money is being used to finance a their motives in all of this are good bers—to make a soft money contribu- $500,000 soft money contribution to a and honorable. tion to political parties. national political party? Sure I would. I just happen to come from a State, So what is the problem if the dues Would I be informed of that contribu- however, where we enacted a bill not can’t be used for soft money, I say to tion? Would AT&T have to get my per- dissimilar—not identical, but not dis- my colleagues, whether union member mission before they use my money for similar—to the McCain-Feingold bill. or nonunion member? Where is the evil that purpose under the Lott amend- My State legislative process went that we are not correcting? ment? Absolutely not. Unions have to through an entire cycle with Byzantine Second, the McCain-Feingold bill do it but AT&T doesn’t have to do it. kinds of rules applied before our State provides that no organization, whether So much for fairness under this amend- supreme court, a very liberal supreme it is a labor union, a corporation or ment. court, threw it all out as unconstitu- any other organization, can use un- Another telling indicator of the true tional, as violating the right of free- regulated soft money to fund those purpose of this proposal, I am afraid, is dom of speech. phony attack ads against candidates the timing. If these union activities are Now, Oregon is a State that is known that are disguised as so-called issue such an affront to our democratic sys- for good clean government, good clean ads. That is because of our concern tem, I want to repeat, why wasn’t S. 9, many things. We have in our State no that if we only ban soft money, all the a bill introduced on the first week of allegations of corruption, or frankly money will flow into phony issue ads our Congress, brought to the floor be- they are very infrequent. We have and you will end up with the same situ- fore this point? The senior Senator voter turnout that often exceeds 80 per- ation. That is a very significant re- from Oklahoma introduced this bill on cent. We have a very healthy demo- striction on the way in which unions this matter on the very first day of the cratic system in my State. participated in the last election, prob- session back in January. It was one of ably even more significant in terms of the highest priorities of the Republican Notwithstanding that, in 1994 there dollars than the soft money restric- leadership. Why hasn’t it been marked was an initiative that came to our bal- tions. up, even in committee? The answer is lot, very similar to McCain-Feingold, Again, it would be illegal, Mr. Presi- clear. It is serving a different function. that applied to State legislative and dent, illegal under McCain-Feingold for Its function here is to fill up the tree, gubernatorial races. I will admit that a union to use the dues of its members as we say, and prevent other amend- it passed by a large margin. I said to or nonmembers, either one, to run ments and perhaps to kill the bill. Mr. myself, why would it pass by a big mar- those political ads attacking or sup- President, I am afraid this is not about gin if we have a good thing going here, porting candidates that are not raised the role of labor unions. It is too much frankly, good government in our State? using hard money and properly dis- about partisanship. I think it is simply because people closed during the 60-day period. The majority leader stated a week don’t like to be inconvenienced by de- Mr. President, the third provision in ago Friday his intention was to create mocracy sometimes, and I know how this bill is one that is actually aimed a situation where the Democrats would they feel. I don’t like to see negative only at labor unions. The other two be forced to filibuster campaign fi- ads and I don’t like to be imposed upon really take care of the problem. The nance reform. Those on the other side sometimes, but frankly, democracy issue of phony issue ads and soft money know that the passage of this amend- sometimes is uncomfortable. It is are the big-ticket items with regard to ment will trigger such opposition. I am sometimes messy. union or corporate spending, but the disappointed that some have concluded On first blush it appeared to be a third provision is aimed directly only that the purpose of this debate should very good bill. However, when it came at labor unions. Mr. President, it does be to see which party can get the other to its enactment, our secretary of state exactly what the folks on the other one to kill campaign finance reform. tried to explain it to all the legislative side of the aisle have been calling for The Senator from Arizona and I have candidates. Everyone was wondering for years. It codifies the decision of the been working hard on ensuring that how you can run for public office. U.S. Supreme Court in the Beck deci- this proposal is fair to both parties. We There were limits placed upon what a sion. have made compromises. We have at- candidate could raise. There were lim- This provision requires unions to no- tempted to craft a bill that would give its placed upon what a citizen could tify nonunion members that those indi- both parties credit, together, for pass- contribute of $100. And the net effect of viduals are entitled to have their agen- ing campaign finance reform. it all is that a State legislative office cy fees reduced by the amount the Make no mistake, whether it was seeker could raise about $20,000 to union spends on political activities. truly intended to do this or not, the $30,000, and that would buy maybe a Mr. President, as you can see, the proposal before the Senate today in the couple cracks at communicating with unions have every right to participate form of the Lott amendment would kill his constituents. in our political system, and are taking campaign finance reform. The vote on The interest in the process didn’t a number of hits already under this this proposal would be the vote to de- leave. It just simply vacated the open bill. Our point is they should not be termine if we pass meaningful cam- air of democracy and went back into singled out as the only ones to be lim- paign finance reform this year or not. the smoke-filled room. I am talking ited in this regard. Unfortunately, that We know the vote will be close. We about organized labor and I am talking is not enough for the sponsors of this know it will come down to one or two about big business. They, then, ran proposal. I fear they want to cut unions Senators. So I hope, regardless of every campaigns about candidates in the out of our political process completely. Senator’s personal feelings about how most slanderous and scurrilous of Some Senators have said they do not much we should do with regard to ways. For those campaigns, no one was believe anyone in America should have unions specifically, my colleagues will accountable, no one was responsible. to contribute involuntarily, Mr. Presi- recognize this is not a vote about re- And in the end, I believe our democ- dent, to any political campaign. But stricting labor unions but a vote to kill racy in the 98th cycle was dumbed what would happen if you applied that campaign finance reform. down and disserved. Importantly, our October 6, 1997 CONGRESSIONAL RECORD — SENATE S10393 Supreme Court, as I mentioned, de- more open. I don’t see that we provide sums of money being raised to fuel the clared it all unconstitutional. They did for that in the McCain-Feingold bill. I money chase. Nearly $2.7 billion was so correctly. see many things resulting, as they did spent on campaigns in the last election Now, when I ran for the U.S. Senate in Oregon, which left my State in one cycle. Every year the expense of cam- I ran in a special election against my election cycle, I believe, poorer for it. paigning climbs higher and higher, and friend, now my colleague, my former So I plead with my colleague, vote the pressure to seek financial support competitor, RON WYDEN, a Member of for the Lott amendment, and then let’s for those who seek public office inten- this Chamber. He and I became the talk seriously about some things that sifies accordingly. focus of the entire country in contest- we can do to make this whole process I know that some contend there is ing for the seat formally held by Bob fair for both sides. not enough money being spent in the Packwood. Let me tell you what hap- I yield the floor. American political system. I respect- pened. Both of us were running hard- Mr. BRYAN. Mr. President, I rise fully disagree with that opinion, and I hitting campaigns. Then we became today in strong support of the biparti- believe that the great majority of the the victims, and I believe myself espe- san campaign finance reform legisla- American public disagrees as well. cially, by what I term ‘‘drive-by shoot- tion offered by my colleagues, Senator A full 92 percent of Americans be- ing’’ on our democratic process. I had, FEINGOLD and Senator MCCAIN. I am lieve that too much money is spent on in the course of several weeks time, $1 pleased to join with all 44 of my Demo- campaigns. The Wall Street Journal million of the most scurrilous kinds of cratic colleagues, as well as Senators poll of December of last year reflects ads run against me and I hated what MCCAIN, THOMPSON, COLLINS, and SPEC- that number. Indeed, money has be- they said. TER. I hope during the course of this come a dominant factor in American I remember my little boy sitting debate others will join us in this first politics as to who runs and who wins. watching television when I happened to step in campaign finance reform that As a consequence, our political system be there and seeing one of the ads that we so desperately need. is on a downward spiral that will con- they ran, and he turned back to me Campaign finance reform is an issue tinue to spin out of control unless we with wide eyes and tears in his eyes that deserves our full consideration have the courage to take the steps nec- and he said, ‘‘That was a very bad ad, and one that must be voted on this essary to stop it. There is a sense of Dad,’’ and it was. year, whatever time it takes. Mr. irony, Mr. President, that the institu- You might think because of that I President, I would like to, at the out- tion that benefits the most from the would want to shut down the ability of set, commend Senators FEINGOLD and current system is the only one that can reform it. But we must put the interest the unions to participate I don’t want MCCAIN for their thoughtful and care- to do that, but I don’t want to shut ful bipartisan approach in crafting a of country ahead of our own political down the right of people like me and piece of campaign finance reform that, success and ahead of party interests. The revised McCain-Feingold bill is, you to respond to these kinds of at- although I believe it to be modest— as I have said, a very modest proposal; tacks. That is what these kinds of lim- more modest than I would have pre- nevertheless, it is a first step in re- its will do. ferred—nevertheless marks a begin- forming a campaign financing system I truly believe that banning soft ning. that cries out for change. It just might money is unconstitutional for many of The integrity of our political system begin to restore the people’s trust in the same reasons our State supreme is threatened by the tremendous the ability of their elected officials to court found it unconstitutional. I be- amounts of money required to run for stop the hemorrhaging of the political lieve the U.S. Supreme Court would public office. The Members in this system and to allow the healing proc- find such attempts here to be unconsti- Chamber know it, political scholars ess to begin. As I said, I would have tutional. Limit it—you may be able to know it, and the American people preferred a more comprehensive ap- do. But if you limit it, and I may even know it. proach, but that is not to be. However, be able to vote for some form of limita- Mr. President, I first sought elective this is an effort which may have a tion as we apply limits on contribu- public office in 1968 as a candidate for chance to attract more support and my State legislature. Then and now, tions directly to candidates, perhaps thus has a chance of becoming law. there can be some constitutional limit some money was required in order to Senators FEINGOLD and MCCAIN have on soft money. But if you do that, then put together a campaign, to prepare carefully reshaped their original bill as there should be no more compulsory the necessary kinds of materials, and a compromise with the hope of attract- element left in this process. to make sure the constituents that one ing additional Republican votes, which Frankly, the huge loophole is this sought to persuade knew what your will be needed for its passage. loophole provided by compulsory union message was. Over the intervening First, the McCain-Feingold legisla- dues. Unless the Lott amendment years, I have had occasion to run for tion bans the use of so-called soft passes, I can’t go any farther, because State elective office on four different money by the national political parties I saw what happened. It happened to occasions and have had an opportunity from corporations, labor unions, and me, and it happened to Republicans to run for the U.S. Senate twice now. wealthy individuals. State parties and Democrats alike in the State of Or- There is no question, from any perspec- would be banned from spending soft egon. They had campaigns run about tive, any point of view, that the money on activities related to Federal them and they were grossly unfair. I amount of money that is involved elections. don’t want to support campaign fi- today in the American political system The creative expanded uses by both nance reform that will dumb down our far exceeds, by any measure, any political parties of soft money has sig- democracy in that way. Indeed, I be- growth that may be attributed to infla- nificantly increased the demand for lieve some of the best things that we tion or any other reasonable con- campaign contributions. This past 1996 could do are to require voluntarism in sequence, including the growth of the election year was the costliest ever in this process and then to put some rea- population in my own State and gen- our Nation’s history. Both parties sonable spending limits or caps on soft erally across the country. raised overall $881 million for the elec- money contributions and then to re- There has been, during that interven- tion—a 73 percent increase over the quire candidates to disclose on a daily ing nearly 30 years since the time I amount of the preceding 4 years when basis the source of their contributions have been involved in the elective po- the parties raised $508 million. In soft 3 months out from a campaign so that litical system, a marked decline in money alone, Democrat and Repub- the public knows if one candidate is voter participation in this system. This lican parties raised $263.5 million. That getting too much from business or an- is an alarming trend. It does not bode is nearly three times the amount that other candidate is getting too much well for Democrats or Republicans or was raised in the preceding 4-year from labor. Then they can decide Independents, nor does it bode well for cycle. From 1988 to 1996, the amount of whether that is significant to them the future of democratic institutions. soft money raised by the parties has in- when they cast their sacred vote. Mr. President, I believe that there is creased by nearly 600 percent. In my view, the cure for bad democ- an absolute correlation between declin- What needs to be done? The Amer- racy is not less of it but more of it and ing voter interest and the ever larger ican people have been asked what they S10394 CONGRESSIONAL RECORD — SENATE October 6, 1997 think needs to be done to reform the able to decide that issue. We will not the Internet within 24 hours of their political process in this country. From be able to resolve it. That is not our filing. It requires political ads to carry the NBC/Wall Street Journal survey of function. The function of the legisla- a disclaimer identifying who is respon- June 1997 when that question was pro- tive branch of the two Houses of Con- sible for the content of the ad. Simply pounded, the American public is not gress is to enact legislation and, in- put, disclosure requirements would confused. Perhaps some Members of deed, if the legislation that we have en- bring more accountability and respon- Congress are confused, but the Amer- acted is in any way constitutionally sibility to our political process. ican public is not confused. flawed, the courts—ultimately the Su- Fourth, the bill prohibits political Reduce the amount that candidates can ac- preme Court of the United States—will parties from making coordinated ex- cept from political action committees, im- make that decision, and the courts penditures on behalf of Senate can- pose overall spending limits on campaigns, have done so when they believe that we didates who do not agree to limit their eliminate large contributions to political have overstepped the constitutional personal spending to $50,000 per elec- parties, and provide some financial incen- tives to candidates. limits in imposing restrictions on our tion. This provision, in my opinion, campaign financing system. will help to level the playing field be- Sixty-two percent of the American Mr. President, we ought to allow the tween wealthy candidates and those people believe that is what ought to be courts to make that determination and candidates who do not have deep finan- done. Among the other options that were to move this legislation forward so cial pockets. discussed were: that those who seek to challenge it Fifth, this bipartisan legislation pro- have an opportunity to do so in the hibits anyone who is not a U.S. citizen Remove all limits on contributions so peo- ple can give as much money as they want, only meaningful forum in which this from making financial contributions. but require more timely disclosure of these issue can be resolved on a constitu- Finally, and what has become a donations. tional basis, and that is in the judicial central focus of this issue in recent Some of our colleagues believe that arena. days, McCain-Feingold requires that we ought to be spending more money in Mr. President, unless we have the labor unions notify nonunion members running for public office. The Amer- good sense to change the rules of the that they are entitled to have their ican public disagrees overwhelmingly. game, candidates and their political agency fees reduced by an amount Only 18 percent favor the removal of parties will continue to pursue the equal to the portion of the fees used for limits on contributions. money chase and the amount of money political purposes if they file an objec- Leave the current campaign financing sys- involved in future campaigns will con- tion to the use of those fees—a so tem intact. tinue to grow rapidly. I frequently tell called opt-out system in which the Only 14 percent favor that course of the constituents in my own State that member can notify the union that he action. this fatally flawed campaign system or she does not want any union dues Now, I understand that the debate that is involved has locked good people used to finance any part of the politi- and the argument is that campaign into a bad system in which, almost cal campaign contribution system. spending is a form of free speech and from the moment of our election, it is Fair enough, it seems. therefore cannot be regulated in any impressed upon us that the next cam- The Supreme Court’s 1988 Beck deci- form. The American people, when paign, if we choose to run for reelec- sion explicitly states that nonunion asked that question, conclude that—18 tion, will be more costly than the pre- members in union shops may choose to percent of them—as a form of free vious one, and our focus almost imme- pay reduced agency fees, and the speech, that cannot be regulated; and diately is upon how much money will I McCain-Feingold bill simply codifies 74 percent believe campaign spending have to raise each week that I serve, the Beck decision. has nothing to do with free speech and each month that I serve, if I choose to (Ms. COLLINS assumed the chair.) that spending limits should be im- seek reelection. Mr. BRYAN. Madam President, we posed. That data is also from the pre- The amount of money has increased, hear that opponents of McCain- viously cited 1997 NBC News/Wall as I have indicated, not just Feingold have argued for the need to Street Journal survey. arithmetically based upon factors of codify the Beck decision. Senators Mr. President, I understand, having inflation and the growth that is occur- FEINGOLD and MCCAIN have done just had occasion to practice law and hav- ring in the populations of our respec- that by including a provision that ex- ing served as the attorney general of tive States, but they have grown pressly codifies the Supreme Court de- my State, that the constitutionality of exponentially, and it might constitute cision. an issue cannot be determined simply the gravest threat to the integrity of Now, however, there is an effort to by a majority of public opinion at any the political system in America. seek a new amendment, a new provi- one time. I certainly do not argue that This bill proposed by Senators sion. The pending amendment is clever. to be the case because constitutional MCCAIN and FEINGOLD would do several It indeed may rise to the level of being principles rise to a higher level than things. In addition to the ban on soft ingenious. But its sole purpose and what a majority at any given point in money, the bill places a restriction on function is to kill the cause of cam- time might favor. Nevertheless, during issue ads by independent special inter- paign finance reform. The majority the course of debate on this and other ests. If a Federal candidate’s name is leader himself was quoted in the Wall legislation, critics of proposed legisla- mentioned in any broadcast television Street Journal in September this past tion frequently invoke the contention or radio communication within 60 days month as saying: that the legislation as drafted is un- of an election, for example, then this I set it up [referring to the amendment] so constitutional. That debate has oc- candidate-related expenditure will be they will be filibustering me. curred in the context of this bill. The subject to Federal election law and This is a political tactic that is de- able and distinguished Senator from must be disclosed and financed with so- signed to thwart, to prevent campaign Kentucky has cited a number of con- called hard dollars. finance reform. It clearly indicates stitutional scholars who weighed in in The Supreme Court has ruled that that this is not a serious debate about favor of the proposition that this legis- only communications that contain ex- reforming our campaign laws. lation, in its attempt to limit soft press advocacy of candidates are sub- Perhaps the Washington Post edi- money and other restrictions, is uncon- ject to Federal disclosure requirements torial of October 1, 1997, sets the record stitutional. On the other side of the and restrictions. This proposal would in the proper context. And I quote: constitutional divide, an equal body of extend to include issue ads running 60 Senate Majority Leader Trent Lott, having distinguished scholars have weighed in days prior to the election in which the magnanimously allowed campaign finance on behalf of the proposition advocated individual candidate’s name is men- reform legislation to come to the floor, now by Senators FEINGOLD and MCCAIN and tioned in those ads. proposes to kill it with an amendment af- have asserted that these provisions are Third, the legislation increases dis- fecting the use of labor union dues for politi- indeed constitutional. closure requirements and requires the cal purposes. My point in mentioning this is that Federal Election Commission to make I regret that the amendment in that we in this Chamber are not going to be campaign finance records available on form was offered. I hope that some October 6, 1997 CONGRESSIONAL RECORD — SENATE S10395 mechanism might be developed to per- creates a system of voluntary spending ‘‘If you have enough resources on both mit us to pursue campaign finance re- limits in the way that the original bill sides, you can actually communicate form and offer other amendments with- did. I believe that kind of limitation, rationally.’’ In his view, the more out this particular provision which has that kind of restraint that will slow money spent by candidates the better. been variously characterized as a ‘‘kill- the nuclear arms race of campaign But I can tell you with utmost cer- er’’ amendment or a ‘‘poison pill’’ fundraising and spending in the long tainty, given my own experience, that amendment because I believe that its run, will in fact be essential. these arguments are utterly wrong. purpose is to effectively prevent cam- Madam President, I have been a long- Voters in fact over recent years have paign finance reform. time supporter of campaign reform leg- been turned off by campaigns of this Mark Twain once observed that ‘‘Ev- islation. My experiences over these duration and of this negative quality eryone complains about the weather, past 2 years have made it even more because of unending commercials. but nobody does anything about it.’’ apparent to me that passage of this As I speak to South Dakotans in The same could be said about the way campaign finance reform legislation is every corner of my State, there is a we finance our campaigns for elective absolutely critical to the health of our fervent wish that we could return to office. democracy. the days when campaigning began with If there ever was a time to reform There are those who would suggest great seriousness around Labor Day of our political system, the time is now. that any restraint on spending of any the election year—not Labor Day of Neither political party has benefited in kind is somehow a dumbing down of the year prior. terms of public opinion from our our democracy when in fact the reality The appearance of this amount of present campaign finance system. is just the opposite. The quality of our money, the appearance of the raising of Overwhelmingly, 92 percent of the democracy, the integrity of our democ- this amount of money, is one that American people believe that our sys- racy, is not a function of how much gives rise to attitudes that the entire tem desperately needs reform and the money we spend. It is a function of how system is corrupt, the entire system is time for us to do it is now. If we let well the debate is conducted. unresponsive, and the American public, this opportunity slip away, I fear that There are those who have legitimate that there is too much time spent rais- real campaign finance reform may not philosophical problems. There are ing the money. be enacted. those who simply see the status quo as Madam President, how long is it We need to ban soft money, and to being supportive of their own current going to be that Members of this body stop the onslaught of negative ad at- election to the body, and to the House and Members of the other body vacate tacks on political candidates. of Representatives. But I think that their offices daily to go to their private We need to level the playing field, there are a great many of us here—and campaign offices in the row houses and and give challengers who want to run I believe a majority, if the opportunity the streets off the Hill to make their for Congress and to prove that their were afforded to us to actually cast a fundraising phone calls, to do this ‘‘di- ideas have merit and represent a broad vote on the merits of campaign finance aling for dollars,’’ as it is referred to base of public support the opportunity reform—who would actually support around here, trying to raise the this sweeping legislation. to do so. amount of money necessary to run one I personally have just been through Madam President, we need to restore of these campaigns? one of the longest and, frankly, one of public confidence in the American po- The typical U.S. Senate campaign, if the most expensive per voter Senate litical system. And I believe that the it were raised in an equal level of en- campaigns in the history of America. McCain-Feingold revised measure rep- ergy throughout the 6-year term, My opponent and I spent a total of $24 would require the incumbent to raise resents our best hope for making these for every vote cast. And, if one were to $14,000 a week, every week, 52 weeks a significant and needed changes prior to include the money spent by the na- year, for 6 years. Madam President, the next election. tional party organizations and the var- that is not the kind of money that can I yield the floor. ious independent groups, total spend- Mr. HAGEL addressed the Chair. be raised casually. That is not the kind ing would rise to around $29 per vote. The PRESIDING OFFICER. The Sen- of money that can be raised with a bar- All of this money produced one of the ator from South Dakota. becue in your backyard back home in longest political campaigns the Nation Mr. JOHNSON. Madam President, I South Dakota, or whatever State you has ever seen. My opponent began run- am very pleased that the Senate has fi- are in. That is not the kind of money ning campaign commercials 17 months nally taken up the discussion of the that can be raised in small increments. from the election, then 13 months be- McCain-Feingold campaign reform leg- That requires a concerted, sophisti- fore the election—an attack ad cam- islation. cated, methodical effort. And it is cor- paign, one that I had to respond to, al- I very much appreciate the efforts of rupt and demeaning to the service in though I was not yet even formally an Senator DASCHLE in pushing this proc- this body. And it is destroying the announced candidate in the race. ess forward. His role in demonstrating That is the kind of campaign nega- public’s confidence in the quality of that all 45 Senate Democrats support tive—vitriolic, long-winded, longstand- the deliberations that take place here, the revised version of McCain-Feingold ing—that did nothing to improve the and in the kind of accountability that I think was essential. And I hope that confidence of the American public in this body has. it becomes clear to all Americans that our political process, and did nothing As the amount of money rises, what with the one additional Republican to restore confidence that in fact the we have seen last year in the last cycle vote necessary that we will in fact system reflects their values and their becomes only more so in the future. achieve historic reform of the cam- ideals and their values. It was simply a The amount of money to raise to win a paign funding system in our Nation. system awash in too much money. congressional seat has continued to But I also want to applaud Senators Put in perspective, in South Dakota, rise astronomically. According to the MCCAIN and FEINGOLD for what has our small State, with statewide tele- Federal Election Commission, the typi- been a tireless effort on their behalf in vision advertising relatively inexpen- cal candidate for an open seat in the forging this bipartisan compromise leg- sive, for a race like this, if one were House of Representatives raised nearly islation. We have seen many good bills run in a State like California at $29 per $600,000—close to double what was re- fall by the wayside over the years. But vote cast, the cost would be staggering. quired only 4 years ago. The growth in this seems to be one of the best oppor- The equivalent cost in the State of so-called soft money has been even tunities in recent years to actually California would be a $250 million Sen- more explosive. Data from the 1996 achieve real reform. ate campaign. elections show that the amount of soft That said, I have to express dis- Some argue that the money is good money that was raised and spent was appointment on my part that this leg- for democracy, that the voters will be more than three times what was spent islation has been stripped down to a more educated by this kind of enor- in 1992, and 11 times more than was more modest level from its original mous financial overkill. spent in 1980. version. In particular, I am dis- Last week, the Washington Post It should be so fundamentally abso- appointed that the system no longer quoted the House Speaker saying that lutely clear that something is wrong— S10396 CONGRESSIONAL RECORD — SENATE October 6, 1997 something is terribly wrong with our trated and designed and organized by now to this final month in the sense I system of financing elections in this these so-called tax-exempt groups— think we have dealt responsibly with country. groups that are, in fact, using taxpayer the Federal budget, the Federal budget Campaigns have become in many dollars in effect to run their partisan deficit, with the design of some tax re- ways little more than a campaign fi- independent issue advocacy kinds of lief, in placing I think a greater em- nance arms race. And the American campaigns. phasis on education, preserving a com- public has understandably become dis- That does a disservice to the political mitment to the environment, doing I enchanted with politics in large part dialog in our Nation. That does a dis- think some positive things. But this because of this process. service to any hope that we have that Congress cannot be deemed a success There are people who suggested that political candidates will be account- and history will treat this Congress all we need to do is to ban soft money able to the public for the positions poorly, in my view, if we miss this op- raised by the political parties. Again, a they take. The American public de- portunity now to enact meaningful, mistake. Banning soft money without serves better than that, and that is significant campaign finance reform, addressing the expanding role of inde- why we need campaign finance reform reform that is supported by the non- pendent groups and political campaigns and that is why we need a broadened partisan reform organizations around would not go far enough, and it could sense of soft money regulation. the Nation, one that is not designed to create a whole new set of problems. We It is not clear whether there are tilt the playing field to one political need to redefine the term ‘‘soft money’’ going to be any amendments allowed in party or the other because, frankly, in to include all forms of campaign spend- the course of this debate. It is cer- past years that has happened from ing that is presently unregulated. tainly my hope there will be. That is time to time. We need to get away During the 1996 election cycle when the nature of debate in this body. It is from that and, in fact, to pursue this we experienced a flurry of campaign what we have done for 200 years on is- kind of significant reform that has bi- activity by independent organizations sues of great public significance. And partisan support, that is supported on a and congressional races, independent yet we find a parliamentary procedure very broad basis by the American pub- expenditures accounted for $19 million being used that may, unfortunately, lic and to quit making excuses to the of spending—most of it targeted to key stop amendments, stop debate and American public about why it could congressional races. cause this whole exercise to come tum- not get done, no more excuses about An even more pressing problem is the bling down. why the money will continue to mount, new phenomenon of issue advocacy ad- But if we have an opportunity for a no more excuses why there will not be vertisements. Last year’s Supreme full, meaningful debate, involving any greater accountability than in the Court decision in the Colorado case amendments, if we are allowed to offer past, about where the money is raised opened the floodgates for this kind amendments, I have two I want to pur- and how it is spent, no more excuses kind of activity. sue. One is an amendment that would about why these campaigns are taking According to a study by the deal with the problem of candidates now years and years rather than Annenberg Center at the University of spending their campaign funds for per- months and months to transpire, no Pennsylvania, one-third of all cam- sonal use. This is something I think more excuses about where the money paign advertising totaling $150 million has become out of hand, as reimburse- came from and who, in fact, has their came from these so-called issue ads. ment payments to elected officials are interests best being considered by our Just as influential as other ads, they not itemized and there are literally legislative bodies in Washington. are political ads. They are not subject thousand-dollar reimbursements com- We have that opportunity now. We cannot allow this to escape from us. We to the same fundraising regulations as ing back to candidates for their per- sonal use. have, today and tomorrow, an oppor- in reporting requirements. Nobody I think we need to clean this up. I tunity to cast a historic vote to get knows where the money comes from. think we need to take another step in past some of the parliamentary abuses They are utterly unregulated. the right direction to make the Amer- The Annenberg study indicated that that are attempted to be used here, the ican public think that in fact this sys- poison pill parliamentary efforts, to issue ads were the most virulently neg- tem is responsive to them, that cam- get past that and to allow each one of ative ads on the air. Overall, 81 percent paign money is not some additional us in this body to go home at the end of these ads were attack ads. source of slush fund, not some addi- We have also seen the last expansion of this session of the 105th Congress tional source of personal financial in the political activity by tax-exempt and to look our constituents in the eye wealth that is available to candidates. and say, I voted for or I voted against organizations—organizations, in effect, A recent study by the Gannett News campaign finance reform on the mer- using taxpayer dollars to further a Service last year showed that many its, up or down. Let us be permitted to very political agenda on the left and on candidates have reimbursed themselves cast that vote with the full breadth of the right. And 30 tax-exempt groups thousands upon thousands of dollars debate. While I am worried that that are not supposed to be engaged in par- from their campaign funds with vir- may not in fact transpire today or to- tisan political activity. But the reality tually no explanation of where the morrow, during the remainder of this has become very apparent to everyone money has gone, what it has been used 105th Congress we have this great op- who has even had a casual following of to purchase. I believe the same item- portunity and it is certainly my hope what has transpired over these last 2 ization requirements ought to be ap- we will not allow it to slip. years. In particular, banning soft plied to candidates as are applied to I yield the floor. money to political parties without ad- other areas. Mr. HAGEL addressed the Chair. dressing the growing problem of third- Second, I believe another matter in The PRESIDING OFFICER. The Sen- party groups would merely cause more cleaning the system up and restoring a ator from Nebraska is recognized. money to flow into these unregulated greater sense of integrity to the sys- Mr. HAGEL. I thank the Chair. groups. tem is campaigns ought to pay the fair Madam President, much of the de- One of my fears is, while we may market value for use of private aircraft bate this past week about campaign fi- limit spending that flows formally such as the corporate jets that trans- nance reform has missed an important through the campaign structures of the port Members from one corner of this dynamic of the political process. The respective candidates and their parties, continent to the other. Currently, can- integrity of any process depends on the that the money then as water flowing didates simply reimbursing the equiva- integrity of the individual. We recap- downhill washes increasingly into even lent of first-class airfare, when in fact ture the trust and confidence of the more unregulated and less accountable the cost of this transportation is often American people not by passing more mechanisms for running the cam- in the tens of thousands of dollars, and laws, more regulation and more Gov- paigns, and the candidates will find again going unrecorded, results in less ernment but by taking responsibility themselves increasingly irrelevant to accountability than I believe we should for our own actions and the conduct for their own political campaigns, the po- have. our own campaigns—personal respon- litical themes. And the political at- We have had a historic first session sibility. Will more Government con- tacks and responses will be orches- of the 105th Congress as we come down trol, more regulation, more law really October 6, 1997 CONGRESSIONAL RECORD — SENATE S10397 change our behavior and our conduct? laws and the regulations change behav- I trust the people. I trust the people Will more Government control make ior of those already inclined to break of this country to be able to sort it out. us more honest and fill us with new- them? It will not. No number of new If they have the information, if the found integrity? I do not think so. laws and new regulations will change people of this country have the infor- Systems are corrupt because of the the basic integrity of the candidate. mation, they will make an informed people. Systems are not corrupt be- The integrity of the system depends on decision. They will determine what is cause of the system. When we lower the integrity of the candidate. Each acceptable to them, not because some our expectation and we lower our candidate must take personal respon- bureaucrat or Washington regulator standards, as we have in American pol- sibility for his or her own actions in tells them what is right or wrong but itics, we lower our self-worth. We lower the conduct of their campaigns. We the people sort it out. Just give the the system. And when we do not expect need to focus on individual violations people the information. much, we do not get much. When we do of current law. We need to focus on in- As Governor DuPont wrote, ‘‘A well- not expect much from our candidates dividual conduct and behavior, individ- informed electorate will safeguard and our politicians, we will not get ual responsibility and accountability. American campaigns far better than much. It all becomes self-fulfilling. If each of us in public office conducted any appointed group of the best and Now, why do we blame the system our campaigns, every aspect of our brightest Washington regulators.’’ and excuse the violators? Where is the campaigns in a manner that our con- Another change we might look at is outrage over those who subvert the stituents will be proud of, not nec- to again make political contributions tax deductible. We used to do that. We system and deliberately break the essarily always agreeing with our posi- allow people to deduct contributions to rules and the laws already in place? tions but be proud of how we conduct charities. We allow union members to Where is the outrage over individuals ourselves and our campaigns, then we deduct their union dues, but if people who break the law and refuse to take would not be engaged in this campaign want to participate in American de- responsibility for their own actions? finance reform debate. Where are the voices demanding per- People get involved and participate mocracy by giving money, it is not tax sonal responsibility and personal ac- in a democracy because they believe in deductible. Is not our system of self- government just as important as a countability? Where are those voices? things. The idea that more people will charity or a union? Those voices are now talking about the participate in our political process if How will we restore the trust and system. we pass more laws and regulations We glide over the alleged wrongdoing confidence of the American people in completely discounts the nature of free their elected officials? By electing good of individuals, saying, well, it doesn’t people. Politics is about people. Poli- count, it doesn’t matter—like it is be- people to office, by holding those who tics is not about Government. Politics serve in public office accountable for yond our control. We say that it is the is not about rules and regulations. Pol- system; that is the problem. The sys- their actions, and holding them to the itics is about people. Politics is about tem is flawed, not the individual but highest standards. I consider serving in people who believe in things. We will the system. We say that money is evil, public office to be an honor and privi- not restore the trust and confidence of money is the terrible evil in our sys- lege. I know every one of my colleagues the American people in elected officials tem. We excuse the alleged wrongdoing feels the same. This is not a right. This and the political system by placing fur- and corruption by blaming the so- is not a right, to be in this body, to ther restrictions, by placing further re- called vagaries of the campaign finance hold public office. It is not mine to strictions on the rights of Americans system and the laws. hold onto by whatever means I can, no We dance on the pinhead of tech- to participate in the political process. matter how questionable those means. A former Governor of Deleware and nicalities. What is allowed? What is not It is a privilege bestowed on me by the former Member of Congress, Pete Du- allowed? What is the correct shading of people of my State. It is a privilege the law? Did the person really break Pont, made a very compelling argu- they also have the right to revoke. The the law? How must we change the rules ment in last week’s Wall Street Jour- people need to be our partners in the and regulations so that this never hap- nal when he wrote that limits in cam- political process. We can create all the pens again? All we need is more Gov- paigns are akin to price controls in the laws we want, but only the people—not ernment. Everybody knows that. If we economy. And he said, ‘‘All of these the laws, not the regulators, not the have more rules, more regulation, more ideas are bad economics, bad politics regulations, not the system—but only enforcement, more Government, then and, as 40 centuries have proved, very the people can hold elected officials ac- people will abide by the law. bad public policy.’’ countable for their actions. Only the Something is greatly amiss when we The best way to correct the system is people can, through their votes, deter- are debating the technicalities of right not to replace an old bad set of rules mine when someone no longer deserves and wrong. There are no technicalities with a new bad set of rules. That is not their trust and confidence. between right and wrong. Right is reform. That is rearranging the restric- I believe that for far too long we have right. Wrong is wrong. There are no tions. Too many people here in Wash- been creating a society less dependent shades of right or degrees of wrong. ington confuse the two. The best thing on the voluntary rule of honesty and The difference between right and wrong to do would be to provide the American good behavior of the citizen than on is not subject to a controlling legal au- people complete and immediate disclo- the impressive mandates of Govern- thority. It is a matter of honesty. It is sure of all contributions—complete and ment. Government does not mold a matter of simply just doing the right immediate disclosure of every dollar in human behavior. Behavior comes from thing. Is that difficult to grasp? Is that the system. Hard money, soft money, within. I cannot support any proposal so difficult to this body to grasp? independent expenditures, every single that seeks to limit the ability of the We are here today debating whether dollar that goes into the system must people and institutions to express or not to pass new laws based on the be disclosed immediately. themselves and takes the power to fact that some people broke the law, or The press already does a good job of shape our public policy debate away at least allegedly broke the law. Those telling the people who is giving money from the people and gives it to the are laws that we already have. Those to whom, when the media knows, that Government. I cannot support such leg- are regulations and rules on the books is. I have every confidence that if we islation. That is what McCain-Feingold now. It is very clear. We already have had full disclosure of every dollar, the would do, in the name of reform. laws prohibiting foreign contributions. press would inform the people as to What are we really reforming, the We already have laws prohibiting the who is giving and receiving these con- right of people to participate in the po- solicitation of campaign funds in a tributions. They will tell the people litical process? In a free democracy, Government building. We already have who is spending the money for or taking away people’s rights is not re- laws that very clearly spell out the dif- against candidates. They will let the form. In Buckley v. Valeo the Supreme ference between so-called hard money people know where candidates are get- Court ruled the debate about campaign and soft money. ting their campaign contributions. Let finances is about the fundamental role I ask my colleagues one question: the press do the job and report all of of the people in our democratic soci- How will changing the rules and the these contributions. ety. The Court wrote: S10398 CONGRESSIONAL RECORD — SENATE October 6, 1997 In the free society ordained by our Con- and always has been the single greatest Term limits mean no more politics as stitution, it is not government but the peo- perk in politics. An incumbent has ac- usual. As a matter of fact, studies done ple—individually as citizens and candidates cess to the podium, access to the news by research institutes indicate that we and collectively as associations and political media, and the ability to create name would have had the balanced budget committees—who must retain control over the quantity and range of debate on public identification. Any time you limit po- amendment to the Constitution long issues in a political campaign. litical spending, any time you limit ago if we had term limits, which would Madam President, the system has not what the competitor can generate in have brought new individuals to Wash- failed us. Campaign dollars are not the terms of information, you strengthen ington who voted the way people do in problem. They may be the excuse—the the incumbent. their first two terms in office instead I submit that Hershey doesn’t need system, dollars, may be the excuse for of voting the way they do after they to advertise that it sells chocolate, but some. But our problems are with our- have spent term after term after term a new competitor does. And those who selves. What outrages the American here and begin to endorse the bureauc- inhabit public office are well-known for people is the conduct of some politi- racy and to sanction it and to support the fact that they inhabit it. But new cians—and my good friend, Senator it. I believe we should not limit the individuals need to have the ability to amount that citizens can spend on poli- MCCAIN, talked about this earlier this create that same awareness in the afternoon when he referenced in the tics. We should limit the amount of mind of the public. poll the ‘‘lying windbags,’’ the lying time politicians can spend in Washing- Campaign finance legislation that re- windbags that many people think of as ton. stricts core political speech strength- I will ask that individuals vote politicians, and I know that is true. ens incumbents by limiting the ability against cloture on the McCain- But what really outrages the American of challengers to increase their own Feingold bill so we would have an op- people is the conduct of some politi- name recognition and to highlight the portunity to vote on term limits. A cians and their supporters who have incumbents’ voting record on issues of vote for cloture on McCain-Feingold corrupted the system by violating the concern to the voters. will be a vote against term limits. A integrity of the process for their own So, if you say you cannot spend much vote against cloture will at least pro- end. money against an incumbent, and your Our political leaders have, as one of vide us with the opportunity to bring supporters can’t talk about his or her their most sacred responsibilities, the forward amendments. Those amend- voting record, then you can’t match responsibility to set the moral tone in ments, including my term limits the incumbent’s advantages of being on America and give moral leadership. I amendment, hold the promise of giving C-SPAN in the Senate Chamber, of do not mean religious leadership. I do us a real opportunity to amend and to moving through the news industry with not mean religious leadership. I mean otherwise change the election proce- press releases. If Senators want true moral leadership. Moral leadership dures for the benefit of the people. political reform, the answer is to limit The people deserve honest elections. goes well beyond the rule of law and terms, not to limit speech. Let’s limit They first deserve enforcement. So regulation. Were the great leaders of politicians, not the citizens. We should much of what is being talked about our Nation great because of laws and be talking about limiting the tenure of these days is the violation of laws in regulations dictating their actions and people in public office, not the first existence. We don’t need to proliferate behavior? No. Our great leaders were amendment rights of the citizens of the laws in order to enforce them. But great because they had a moral com- this country. we do need to give opportunity to indi- pass and they shared that moral com- To this end, this afternoon, I have viduals who are not a part of the sys- pass with our people and our Nation. filed an amendment to the pending tem now. That cannot be done by lim- And they relied upon that moral com- campaign finance reform legislation iting what they can spend to get known pass for governance. America deserves that would authorize States to impose or limiting what their supporters can leaders who lead through the force of term limits on their Senators and Rep- spend to expose the record of those who character and integrity, not through resentatives. However, my amendment are in office. But it can be given to the force of regulation and law. Before will not come up for debate or a vote if them if we decide America has enough we reform the campaign finance sys- cloture is invoked on the McCain- talent to allow it to circulate individ- tem, we should first look at how we Feingold bill. Accordingly, a vote for uals through the Senate and the House, might reform ourselves. We might look cloture on McCain-Feingold is a vote and by term limits, to say that no indi- at how we might reform ourselves. against term limits. Madam President, I would like to end vidual should be a lifetime occupant Let me just review for a second why here, that we should give individuals my speech this afternoon with a quote term limits would provide the true re- from Thomas Jefferson, our third an opportunity to seek election and form. Incumbency is the real problem that is the kind of campaign reform President, one of our Nation’s strong- in our system. It is the single greatest est defenders of the rights of the Amer- which will really benefit America. perk. Committee assignments and the I yield the floor. ican people. Thomas Jefferson said, ability to control committees relates Mr. BINGAMAN addressed the Chair. many, many years ago: to incumbency, and committee assign- The PRESIDING OFFICER. The Sen- I know of no safe depository of the ulti- mate powers of society but the people them- ments translate into big bucks. The ator from New Mexico is recognized. selves; and if we think them not enlightened value of incumbency is as strong or Mr. BINGAMAN. Madam President, enough to exercise their control with a stronger, now that we have had modest is there any limitation on speaking at wholesome discretion, the remedy is surely reforms over the last several years, this point? What is the parliamentary not to take it from them, but to inform their than it was before. As a matter of fact, situation? discretion by education. when campaigning was wide open 100 The PRESIDING OFFICER. There is Madam President, I yield the floor. years ago the value of incumbency none. The PRESIDING OFFICER. The Sen- wasn’t anything like what it is now. Mr. BINGAMAN. Madam President, ator from Missouri is recognized. Madam President, 94 percent of all let me speak for a few minutes, then, Mr. ASHCROFT. Madam President, Members who seek reelection get re- on campaign finance reform. I would as I mentioned when I was last on the elected, and an individual challenging like to step back from the details of floor, the campaign finance reform bill them, if limited in what he or she can the debate. There has been some debate we are debating will not produce mean- spend, is at a disadvantage. Madam about limiting spending: Should we ingful political reform. The McCain- President, 94 percent is 19 out of 20. limit spending or not, should we ban Feingold proposal will not lead to re- That means that the only true elec- soft money or not, should we regulate form because it leaves the single great- tions are for open seats. phony issue advocacy ads or not, est obstacle to competitive elections Term limits are a tried and tested should we provide more power to the untouched. In fact, it will strengthen kind of reform: Forty one Governors, 20 Federal Election Commission or not— the single greatest obstacle to com- State legislatures and the U.S. Presi- those are the kinds of questions we de- petitive elections. That obstacle is the dent have term limits. It is time that bate here. But I believe this entire dis- advantage of incumbency, which is now the Congress be term limited as well. cussion about campaign finance reform October 6, 1997 CONGRESSIONAL RECORD — SENATE S10399 is about one central question and that produced more robust debate, they duce that. And second, it will regulate is what should determine the outcome have not produced more helpful infor- the huge amounts of money spent by of our Federal elections? Should we mation for voters, or more complete so-called independent special interest allow money to determine the outcome and balanced discussions about the dif- groups on advertising that they dis- of our Federal elections? Or should we ferences between candidates. This in- guise as issue ads but are, in fact, de- allow, or try to get to a situation, creased amount of money has meant signed to advocate the defeat of a par- where a complete and a balanced dis- the very opposite. In fact, voters will ticular camp. cussion of the differences between the tell you not only that money does not The original McCain-Feingold bill did candidates determines the outcome of equal speech, but that excessive cam- much more. There were more affirma- the election? Should we allow money paign money does equal the erosion tive proposals to actually encourage or helpful information to change the and the undermining of our political more robust debate, more helpful infor- minds of voters? And should we allow system. mation for the voters, more complete money or robust debate to determine To them, money means bad govern- and balanced discussions of the dif- who wins the race? ment. To them, money is not speech; ferences between the candidates, but This fundamental issue, which I money is the corruption of the system. the bill had to be scaled back to reduce think is at the center of campaign fi- The American people are very specific the objections of some of the opponents nance reform, has been obscured be- in their beliefs about this, Madam of campaign finance reform. This modi- cause opponents of campaign finance President. Voters surveyed recently by fied version of the bill that we now reform have been hiding behind what I the Princeton Survey Associates tell us have before us does not complete the believe are mistaken Supreme Court exactly what the public thinks: U-turn that we ought to be making, opinions that have tried to equate 55 percent of the public think that but it is turning the car in the right di- money and speech. They argue that campaign money gives one group more rection. money is speech, and, therefore, to influence by keeping other groups from Madam President, I stand ready to limit money is to limit speech. They having their say in policy outcomes; support the modified version of say that money is robust debate. They 50 percent think that campaign McCain-Feingold. I hope we will have say money is helpful information for money gets some people appointed to an opportunity at some point in the voters. And they even say that money government office who would not oth- near future, and hopefully this week, is or constitutes a complete and a bal- erwise be considered; to have an up-or-down vote on the bill. anced discussion about the differences 48 percent think that campaign Perhaps at some point we can get past between candidates. money keeps important legislation these parliamentary maneuvers of kill- In my view this argument is bla- from being passed in the Senate and in er amendments, of filling out the tantly wrong. To any reasoned ob- the House of Representatives; amendment tree, second-degree amend- server of our Federal campaigns, the 45 percent think that campaign ments to block an up-or-down vote. argument obviously is without merit. money leads elected officials to sup- Perhaps at some point in the near fu- Ask any challenger to an incumbent port policies that even those elected of- ture the opponents of campaign finance Senator if the millions of dollars that ficials don’t think are best for the an incumbent is able to raise and spend reform will listen to the people and country; conclude that money is not speech, in the race has meant more robust de- 41 percent think that campaign bate, more helpful information for the that money, in fact, is undermining the money even leads elected officials to political system that we were sent here voters, more complete and valuable vote against the interests of the con- discussions about the difference be- to help ensure the functioning of. stituents who sent them to Washing- tween the candidate and the chal- I hope we will move expeditiously ton; this week to pass campaign finance re- lenger? 63 percent of the public think that The challenger will laugh out loud at form. Our constituents desire it, and campaign money leads elected officials the question. we should do it. My colleague said, to limit spending to spend too much time fundraising; Madam President, I yield the floor. in campaigns is to assist incumbents And, finally, 52 percent think that Mr. MCCONNELL addressed the because you have a lot of challengers money, and not speech, determines the Chair. out there who would like to be able to outcome of elections under our current The PRESIDING OFFICER. The Sen- spend more than incumbents to chal- system. ator from Kentucky is recognized. lenge them and to get their message Madam President, it is hard to argue Mr. MCCONNELL. Madam President, out and they are not able to do so. with the public’s view on these various there has been a development today Madam President, that may be true for points. I submit that the arguments by that has a direct bearing on this debate a very few rich individuals who have opponents of campaign finance reform, that I thought would be of interest to very substantial private wealth that that money is speech, should not and our colleagues and particularly the oc- they can put into races. But for an av- fortunately does not pass the laugh cupant of the chair. erage candidate for public office in this test with the American people. The Supreme Court today denied cert country, your ability to raise large The people are right, that we des- and, therefore, refused to overturn a sums of money and compete in the perately need to reform the campaign first circuit decision, in effect confirm- media and buy the air time is directly system. In fact, they are right that we ing a district court decision, specifi- dependent upon your incumbency. Ac- need to do a full U-turn from where we cally ruling unconstitutional, once cordingly, a challenger is at a very sub- are today. We need to reduce the again, most of the issue advocacy lan- stantial disadvantage unless we some- amount of money raised and spent in guage in the McCain-Feingold bill how restrict or control the amount of campaigns. We need to increase the which we have before us. The money coming into this process. amount of robust debate, providing similarities are noteworthy. Two of the Ask any voter who has been deluged really helpful information to voters. three categories of restrictions on issue with negative TV ads, funded by swell- We need to increase the amount of advocacy in McCain-Feingold read as ing campaign war chests, whether complete and balanced discussions follows. As we all know, the courts those TV ads have produced a more ro- about the differences between can- have been very clear for 21 years that bust debate and provided more helpful didates so the public has good informa- you are free to go out and express your information to the voters, or a more tion. views about any of us as often as you complete and balanced discussion of Even the modified McCain-Feingold want to, in any way that you want to, the differences between the candidates? campaign reform bill is a big step in as long as you don’t say certain things They would think that you were crazy the right direction. It does at least two like ‘‘vote for’’ or ‘‘vote against.’’ That to suggest that those 30-second nega- very important things. First, it will re- does not fall within the jurisdiction of tive TV spots in fact improve their duce the amount of big unregulated do- the Federal Election Commission. That ability to make a reasoned judgment. nations from corporations and unions group does not have to answer to a No, the vast increases in money and wealthy individuals in our cam- Federal agency in order to criticize us. spent in political campaigns have not paigns, and that is good. We need to re- The Federal Election Commission, as S10400 CONGRESSIONAL RECORD — SENATE October 6, 1997 we all know, doesn’t like that. So they campaign. This is an important new de- Federal Election Commission knew have issued regulations seeking to velopment. better than the courts about how to change by regulation previous Court We have had a lot of discussion on craft this language, 21 years to change decisions on what is or what is not the floor of the Senate over the last its mind, new judges coming onto the issue advocacy. week and a half about what is and isn’t bench and old judges leaving, and the In those regulations, which are re- constitutional. It has been suggested Court has never changed its mind, up markably similar to two of the three that there are 126 constitutional schol- to and including today when it refused sections in McCain-Feingold dealing ars out there who are certifying, in ef- to grant certiorari on a lower court de- with issue advocacy, the similarities fect, that these new restrictions on cision, in effect upholding the same are noteworthy. issue advocacy are, in fact, constitu- language that has been on the books In the McCain-Feingold bill, the fol- tional. That has been asserted by some since 1976. lowing words are used, and the words of our colleagues, even though there So, Mr. President, I think this is an mean this in the bill, as I understand have been a whole line of Supreme important addition to the debate. I it, that if any of these things happen, Court decisions before the one today hope that Senators will note that the the group would fall under the Federal reiterating that they crafted this the Supreme Court is not of a mind to Election Commission and be subject to way they did on purpose; it was not an change its opinion on issue advocacy their jurisdiction. In addition to the accident. The Supreme Court wanted versus express advocacy, one of the im- bright line test that the Supreme to have the widest latitude possible for portant issues that we have been debat- organizations to criticize us, and there Court has already laid down, the bill ing here in the context of the proposed is no indication that they intended would seek to add to that the follow- McCain-Feingold bill. that criticism to necessarily be evaded ing: I yield the floor. just because it was in proximity to an Mr. GORTON addressed the Chair. . . . or a campaign slogan or words that in election. context can have no reasonable meaning There is no language on the 60-day The PRESIDING OFFICER (Mr. ROB- other than to advocate the election or defeat ERTS). The Senator from Washington is of one or more clearly identified candidates. test, which is the third provision of the McCain-Feingold bill. Frankly, that is recognized. Madam President, that is part of the sort of a new item. The FEC has not Mr. BUMPERS. Will the Senator language in the underlying bill. yet tried that. But if you look at that yield for a parliamentary inquiry? Other language in the underlying bill language and look at the fact that the Mr. GORTON. He would. remarkably similar to the FEC regula- Court has confirmed time and time and Mr. BUMPERS. Mr. President, is tions struck down by the Supreme time again that it meant what it said there any order of sequence on the Court today read as follows: it did with regard to issue advocacy, I speaking? .. . expressing unmistakable and unambig- don’t think it is much of a stretch to The PRESIDING OFFICER. There is uous support for, or in opposition to, one or predict that, if the Court is going to not. more clearly identified candidates when strike down language almost the same Mr. BUMPERS. I thank the Chair. taken as a whole and with limited reference as two of the three sections in McCain- Mr. GORTON. Mr. President, in 1974, to external events, such as proximity to an impelled by certain individuals and election. Feingold seeking to make it difficult for groups to criticize us, they would groups who felt that too much money What the underlying bill is seeking be very likely to strike down the third, was being spent on political campaigns to do is to outline a series of cir- which makes it impossible effectively and on political speech, the Congress of cumstances under which a group would for them to criticize us without becom- the United States passed a law limiting fall within the jurisdiction of the Fed- ing a federally registered committee in the amount of money that a candidate eral Election Commission. Currently, the last 60 days of an election. for Federal office could receive from they are outside of that jurisdiction As I said—I see my colleague from any individual source, and limiting the unless they say ‘‘vote for’’ or ‘‘vote Washington on his feet—we can discuss amount of money that a candidate for against,’’ tests which the Supreme as long as we want to what is and isn’t a Federal office could spend advocating Court laid down 21 years ago and has constitutional. The final word on that his or her election to that office. never changed. is the U.S. Supreme Court, and they The Supreme Court of the United That was the language from McCain- just spoke again today on the very sub- States upheld the half of that statute Feingold. Let me now read the lan- ject that we have been discussing on that limited the amount of money that guage out of the FEC regulations the floor of the Senate in the last week a candidate could seek from any given which were struck down by the Su- and a half. I think it is a very impor- individual or organization or group; preme Court today: tant additional indication that the but about the proposition that a can- . . . more communications of campaign Court, in spite of all the prodding of didate could be limited in the amount slogans or individual words which in context the Federal Election Commission to of money that he or she could spend on can have no other reasonable meaning than set up a new standard for issue advo- a campaign, the Supreme Court of the to urge the election or defeat of a candidate. cacy, the Court has absolutely no in- United States made this statement— Further language from the proposed tention of changing its mind. It has and I quote FEC regulations which were struck been absolutely, unequivocally consist- A restriction on the amount of money a down by the Supreme Court: ent for 21 years as to what you would person or group can spend on political com- . . . when taken as a whole and with lim- have to put in an advertisement to be munication during a campaign necessarily ited reference to external events, such as the brought within the Federal Election reduces the quantity of expression by re- proximity to the election, could only be in- Campaign Act and thereby covered by stricting the number of issues discussed, the terpreted by a reasonable person as contain- the FEC. depth of their exploration, and the size of the ing advocacy of the election or defeat of one Here is what the Court said back in audience reached. This is because virtually or more candidates. every means of communicating ideas in to- Buckley—and it has had many opportu- day’s mass society requires the expenditure Further from the FEC regulations nities to revisit that, it hasn’t changed struck down by the Supreme Court of money. The distribution of the humblest its mind over the years, didn’t change handbill or leaflet entails printing, paper today: its mind again today—this is what the and circulation costs. Speeches and rallies The electoral portion of the communica- Court said. For a communication by a generally necessitate hiring a hall and pub- tion is unmistakable, unambiguous and sug- group to fall within the Federal Elec- licizing the event. The electorate’s increas- gestive of only one meaning. tion Campaign Act, you would have to ing dependence on television, radio, and Madam President, there is a remark- have express words of advocacy of elec- other mass media for news and information able similarity between the language tion or defeat, such as ‘‘vote for,’’ has made these expensive modes of commu- struck down by the Supreme Court nication indispensable instruments of effec- ‘‘elect,’’ ‘‘support,’’ ‘‘cast your ballot tive political speech. Being free to engage in today and the language of two of three for,’’ ‘‘Smith for Congress,’’ ‘‘vote unlimited political expression subject to a of the sections in the McCain-Feingold against,’’ ‘‘defeat’’ or ‘‘reject.’’ ceiling on expenditures is like being free to bill which seek to redefine by statute They have had 21 years to revisit drive an automobile as far and as often as what happens in an issue advocacy that standard, 21 years to decide the one desires on a single tank of gasoline. October 6, 1997 CONGRESSIONAL RECORD — SENATE S10401 And the Supreme Court of the United sary to make and use one of a handful ously, if every other form of commu- States found invalid, as a violation of of magic words. nication is going to be limited, how in the fundamental first amendment right Finally, of course, McCain-Feingold the world can we justify letting those of free expression, any such limitation. does not attempt in any respect what- few people in the United States with The same mindset that gave us those soever to limit the commentary, either enough money to own the newspapers laws and that has forced those individ- in news columns or on editorial pages, or having the good fortune to be on uals or groups who feel vitally inter- on the part of the newspapers in the their editorial boards and, for that ested in the election or defeat of a can- United States or similar commentary matter, to write news stories about didate to spend money in other ways, on radio and television stations. It politics not be limited? Of course they often through the political parties that isn’t long, however, since exactly such should. sponsor those candidates, now has a set of potential restrictions were pro- brought this McCain-Feingold bill to posed. But, Mr. President, the first amend- the floor of the U.S. Senate. With a degree of intellectual honesty, ment was written not when we had tel- Finding it ineffective simply to limit absent from this debate, in February evision or radio stations, but when we the amount of money that candidates and March of this year many of those had thousands of newspapers in the can collect from a given individual, the who are here today promoting the United States of America, most of bill now seeks to limit severely the McCain-Feingold bill recognized that them speaking much more sharply amount of money that political parties the goals they sought were blatantly about candidates and issues than do can collect with which to express their violative of the first amendment to the newspapers today. And the men who message to the American people. The Constitution of the United States and wrote the first amendment to the Con- fact that this flies in the face of most proposed to amend the first amend- stitution of the United States knew thoughtful academics observing the po- ment. that every one of those newspaper pub- litical scene in the United States who At this point, Mr. President, I think lishers had a greater first amendment call for greater party responsibility it not at all inappropriate once again right by the definition used by the pro- and a greater role for political parties to read into the RECORD what those moters of McCain-Feingold than did to play in order to create a greater de- Senators—I think some 30-plus of them the average citizen who did not own or gree of responsibility and responsive- altogether in the final vote—proposed write for a newspaper. But they con- ness in carrying out the will of the peo- to do to the first amendment to the sider that right of mass communica- ple as expressed in elections, the Constitution of the United States. tion about political ideas to be a fun- McCain-Feingold bill seeks to tie the They proposed to say: damental liberty of the people of the hands of parties and to render them Congress shall have power to set reason- United States. Now we have opponents largely ineffective. able limits on the amount of contributions of this bill who say it is not only not a The sponsors of the bill do recognize, that may be accepted by, and the amount of fundamental liberty of the United however, that there are other methods expenditures that may be made by, in sup- States; it is such a great evil that we of communicating political ideas. port of, or in opposition to, a candidate for need effectively to muzzle them. While they did not attempt to limit the nomination for election to, or for election to, Hark back to the Supreme Court in right of other individuals or organiza- Federal office. which the Supreme Court says vir- tions in communicating their ideas di- It seems clear to me, Mr. President, tually every means of communicating rectly, and in some cases not at all, that that constitutional amendment, they do attempt, as the Senator from were it placed in the Constitution of ideas in today’s mass society require Kentucky has just pointed out, to take the United States, would have per- the expenditure of money. We have pro- a form of communication called issue mitted Congress to state that the New ponents who say we should not allow advocacy—that is to say, making your York Times, or a newspaper in a city of the expenditure of money in amounts views known to the people of the Unit- 50,000 people in a city in Kentucky, that are sufficient to communicate ed States with respect to issues that could have its commentary on election those ideas. come before the Congress of the United campaigns limited in the same way Having limited the amount of money States—and force it into a category that the present law limits contribu- candidates can get, they now wish to which they define as express advocacy, tions to candidates today. limit the amount of money political essentially whenever the name of a Now, Mr. President, I think a news- parties can get. It is clear they wish to candidate or a Government office- paper—I will take one of my own—say limit the amount of money that these holder is used, and once again provide the Tri City Herald in central Washing- independent groups can get, but in the limitations on the amount of money ton, with a circulation of some 40,000 absence of their constitutional amend- that can be collected for the expression newspapers a day, if it writes an edi- ment, they can’t do that. of that form of advocacy. torial in favor of my candidacy, which As the Senator from Kentucky has so I am pleased to say that it has, and dis- Now, last year, Mr. President, I clearly pointed out, not only is that tributes 40,000 copies of that news- asked this question: Were the expendi- portion of the McCain-Feingold bill un- paper, it has exceeded that $1,000 cam- tures of candidates or of political par- constitutional on the basis of a long paign contribution limit if the cost of ties or of third party interest groups line of Supreme Court decisions, its un- writing and printing and distributing the least responsible? The answer, ob- constitutionality was reaffirmed this that newspaper exceeded 2.5 cents a viously, is the latter. A candidate morning, this very morning by the re- copy. whose name must go on all political fusal of the Supreme Court even to lis- Lord knows by how much the New communications can be immediately ten to a challenge to a first circuit de- York Times would exceed that con- called to account for falsehood and, in cision on exactly that subject. tribution by making any kind of com- fact, can readily be called to account So what we have in McCain-Feingold mentary on behalf of or in opposition even for what is considered to be an un- is, in addition to the limitation on the to a candidate for political office. Lord fair characterization of his or her own amount of money that can be spent or knows how much more such a com- candidacy or an unfair criticism of an contributed to individual candidates, mentary on network television news opponent. Expenditures by political an additional limitation on the amount could be considered to be worth. parties don’t carry that same degree of that can be contributed to political Yet, Mr. President, at least the pro- responsibility. The occupant of the parties, but no limitation at all on the ponents of that constitutional amend- chair at the present time is not really amount of money that can be spent ment were being intellectually honest responsible for the communications of independently of those political parties and at least they were being consist- the Kansas State Republican Party, by the widest range of groups and indi- ent, or would have been consistent had nor am I in my political party in my viduals in the United States who have they been willing to say they wanted State. We will catch a certain degree of a vital interest in the actions of this to limit the way newspapers and radio criticism for what our parties do, but Congress unless those groups make a stations and television stations could we at least have plausible deniability. mistake which is absolutely unneces- comment on politics, because, obvi- But now having forced even the parties S10402 CONGRESSIONAL RECORD — SENATE October 6, 1997 out of the field of effective communica- Now, Mr. President, I am in a posi- Well, I don’t think the bill becomes tion, we leave all political communica- tion to tell you how that works in any more constitutional by the adop- tion to the newspapers and the tele- practice because another element of tion of the Lott-Nickles amendment. I vision stations and those organiza- one of the latest of the campaign re- don’t believe the obvious constitu- tions, whether they are of the left or forms in the State of Washington was tional flaws reiterated once again the right or of a narrow special inter- to make just such a provision. When today by the Supreme Court of the est, almost wholly to the field of un- that provision became law, 80 percent United States are improved by it. Ab- regulated communication for which or more of the members of the Wash- stract fairness probably is. But a bill neither beneficiaries have any respon- ington Education Association, the that says that there is something sibility nor the victims any effective teacher’s union, refused to allow their wrong with the communication of way of responding. money to be used in politics at all. I ideas—the last Democratic speaker The Senator from Oregon, during the have just heard, though I can’t be en- criticized the way in which campaigns course of this debate, has pointed out tirely certain of this statistic with re- were conducted, apparently feeling the impact of a law very much like the spect to other labor unions, the per- that maybe we ought to have a govern- one that we are discussing here on poli- centage of members who are willing to mental entity that says what an indi- tics in Oregon. There the limitations permit their money to be used is in sin- vidual says in a political campaign is on contributions for candidates were gle digits. Presumably, the members of fair or unfair. We have created the even tighter. The point that he made of those organizations prefer their money greatest and strongest democracy in what happens in the real world was the to be used for the primary function of history and the greatest debate over candidates can’t raise very much a union with collective bargaining political ideas with the first amend- money, the political parties are fairly rights and not even on politics with ment as it is. I, for one, believe we weak, so campaigning became more which they agree, much less politics ought to leave it alone. negative than it had ever been before— with which they disagree. Mr. McCONNELL. Will the Senator not only more negative because of the That, Mr. President, is the reason the yield? use of the undocumented constitu- opposition to this amendment is so Mr. GORTON. I am happy to yield to fierce. That is the reason we are told tional rights of these outside groups to the Senator. most of the proponents of McCain- criticize, but from the fact that almost Mr. McCONNELL. As the Senator Feingold will filibuster this very bill if all of their communication was critical from Washington pointed out, today’s it is included. It is just because the op- and negative in nature, and the limita- huge news that the Supreme Court has position on the part of members of tions on the candidates made it effec- struck down essentially most of the these organizations to spending their tively impossible for them to answer. issue advocacy language in the My own State, Mr. President, is money in the way in which it has been McCain-Feingold bill, maybe we going through pretty much the same spent over the last several years is so shouldn’t waste our time talking about deep, so broad, and so fierce. experience. The more the limitations this. But if you look at the original But in this case, I want to state once on the candidates, the greater the ex- bill, it was designed to shut down cam- again, Mr. President, we are not talk- paigns, shut down parties, and shut penditure of money independently in ing about a matter over which there so-called issue advocacy will be, and down issue advocacy, and the Senator could be any serious constitutional from Washington pointed out the only the more negative political commu- challenge at all. We are simply talking nication will be, as it was in the classic entity exempt from this would have about whether or not it is good policy. been the press which enjoys a specific example of the tens of millions of dol- We are talking about something that lars spent by the labor unions in 1995 exemption under the Federal Election would meet the goals of McCain- Campaign Act. and in 1996. Feingold to the extent that their goals Now, Mr. President, one other point, In fact, I have it here for our viewers are to limit the amount of money being and I will have to admit, along with ev- if they want to look, section 431(9)(B), spent on political speech. It would cer- subsection 1: eryone else who has spoken today, al- tainly limit it in connection with the most everything that has been said Any news story, commentary, or editorial last campaign. distributed through the facilities of any today has been with respect to the re- Now, I am not convinced of the case broadcasting station, newspaper, magazine, vised McCain-Feingold bill. The issue that we are spending too much money or other periodical publication, unless such before the Senate, however, is the on political speech. I believe the wide facilities are owned or controlled by any po- Lott-Nickles amendment. The same diffusion of political ideas was exactly litical party, political committee, or can- analysis does not attain to the Lott- what the first Congress of the United didate; Nickles amendment because it simply States had in mind when it passed the In other words, a blanket exemption says that labor unions and labor union- first amendment. However, if you are for the press that no one else would type organizations, while they remain going to limit political speech, you enjoy. entirely unlimited in the way in which ought to do so fairly and across the I say to my colleague from Washing- they can spend their money, and with board. To do so fairly and across the ton, just to ask a question, Westing- respect to issue advocacy, can only be board, you must gut the first amend- house owns CBS, Disney owns ABC, and involved in politics by the use of ment to the United States, you must GE owns NBC. Now, these big corporate money to the extent that there are change the Constitution, and you must giants in America will, through the members who have paid dues into those say we are going to have Government— ownership of these television broadcast unions who allow their money to be Members of this body and the ap- networks, enjoy a total exemption spent in such a fashion. pointed Federal Election Commission— from all the restrictions that would be It is curious in the mind of this Sen- decide what speech in the political con- placed on the political speech of every- ator that such an obviously just pol- text is legitimate and what speech is body else. This is not an unrealistic hy- icy—not allowing my money, your not, and the definition of that chal- pothetical. We just saw Ted Turner, money or anyone else’s money to be lenge is its own death knell because, who used to control CNN, declare on used to communicate ideas with which defined in that fashion, there aren’t 5 Friday he would not sell ads to a cer- you or I or that third party disagrees, percent of the American people who tain group because he did not like what a proposition that is clearly constitu- would agree. they were saying. tional—should be considered to be a We have before the Senate, Mr. Presi- So I ask my friend from Washington poison pill or the death knell for cam- dent, a flawed bill with a flawed and if he could speculate with me for a mo- paign reform. What could be more fun- unconstitutional goal, together with ment the mischief that might be cre- damental, Mr. President, than the idea the breathtaking statement that ated by the ownership of the only ex- that the individual whose money is should we make the fundamental re- empt avenue to engage in free and un- being spent in connection with the quirement that a man or woman’s fettered political expression without communication of political ideas money not be spent on politics with the heavy hands of the Federal Govern- should have some control over how which he or she disagrees, that we are ment, what kind of mischief he might that money is spent? killing this flawed proposal. imagine could happen in our country? October 6, 1997 CONGRESSIONAL RECORD — SENATE S10403 Mr. GORTON. It would certainly in- legislation that you know will be ada- corporation is engaged. Likewise, a crease the price of television stations mantly opposed from the outset. I rec- labor organization cannot collect or as- and television networks. It would be a ognize this and I want to congratulate sess its members or nonmembers any bonanza to those corporate owners, as them. Second, I want to commend the dues, initiation fee, or other payment any other corporation that had a polit- Senator from Kentucky, who on more if any part of such dues, fee, or pay- ical agenda would find the only way it than one occasion has stood on this ments will be used for political activi- could effectively communicate its floor and took an unpopular stand ties. ideas would be through the ownership against popular legislation for all the I think this amendment is very clear, of a television network or a major met- right reasons. no matter where you work, you should ropolitan newspaper and the like. Mr. President, I have always been a not have to choose between putting But the point made by the Senator strong advocate of congressional re- food on the table for your family or from Kentucky is a most interesting form, even to the point of introducing participating in an election or support- one. Westinghouse and Disney and GE legislation that has upset many of my ing an election. Let’s make it very don’t need to give soft money to par- colleagues. I have always believed that clear, the people who do not support ties, do they? They don’t need to come congressional reform should make Con- this amendment believe that working up with their political ideas indirectly. gress more like the people we represent men and women, union or not, should They have the ability to communicate not above them. That is why I have have to choose between working or them directly, without control, with- long been a supporter of term limits, supporting issues and elections with out limitation as to amount, to the which I believe would be one of the best which they disagree. people of the United States. So the campaign finance reform measures we I have also heard that being a union Senator from Kentucky has made my could ever enact. member is voluntary and one of the own point better than I did myself. If Campaign finance reform should give most democratic institutions since em- you are going to limit political speech every American the opportunity to ployees must vote to start a union, effectively, you are going to have to participate, as fully or as little as they elect its leaders and if they do not like limit everyone’s political speech. And want. This country’s principles are the direction the union is taking then the fewer the exemptions from those based on freedom. People should have they can work to change it or as a last limitations, the more valuable those the ability to choose whether they resort, quit the union. If you do not unlimited mouthpieces are because want to participate in the system. We like the direction of the union, you they cannot effectively be countered, cannot and should not coerce or force must quit your job as a last resort. I do except by someone else with the ex- citizens participation in this process. not think any union member should emption. Nor should we stifle citizens participa- have to make that choice—a job or a I want to repeat one more time that tion in the electoral process. I do not political contribution. This same pro- I believe the constitutional amend- believe that this quick fix of McCain- vision applies to corporations and na- ment that was seriously debated, but Feingold passes either one of these tional banks. No employee should have defeated, on the floor of this Senate in tests. to choose between keeping their job or March would have permitted limita- First, I do not believe this legislation participating financially to causes or tions on what those television net- protects the working men and women elections they disagree with. works could have done, what the New in this country. Our electoral system is Some want to apply this amendment York Times and every newspaper in the a voluntary activity. The U.S. Con- to groups such as the NRA or the Si- United States could have done. And it gress should never force participation erra Club or other issue groups. The is the very fact that that constitu- in a voluntary activity, whether difference between these groups and tional amendment would have allowed through individual activity or through the employment condition in the Lott such limitations that is the reason it financial contributions. This is why I amendment is that joining these should not have gotten one-third of the believe the Lott amendment is so im- groups is completely voluntary and is votes of the Members of this body. It portant for any campaign finance re- not tied to a job. If a member of one of should not have gotten any at all. form legislation. I would never do any- these issue groups wants to quit their Once, however, you determine that thing to stop outside groups from par- respective group, then they just stop we should continue the more than 200 ticipating in the system, I just ask paying the dues and rip up the card. years of unrestricted freedom on the that all activity be voluntary. I would There is no employment backlash that part of the mass media, it becomes in- never force anyone to support me by ei- causes that person to lose their job. creasingly difficult to justify the prop- ther their vote or through a contribu- Thomas Jefferson summed it up best osition that we should limit the ability tion if they disagreed with my views when he said, ‘‘To compel a man to fur- to communicate of everyone else. and I believe this should apply across nish contributions of money for the As the Supreme Court decided more the board to any group involved in our propagation of opinions which he than 20 years ago, the ability to use political system. disbelieves, is sinful and tyrannical.’’ money and to use, in turn, the mass I have heard complaints that the Second, in our quest of campaign fi- media is at the very heart of the first Lott amendment would weaken the nance reform, American citizens should amendment rights. The Senator from union’s power and hurt the union mem- not have to lose their voice. The first Nebraska, who was here before, it bership. If the political positions of the amendment is very clear in its word- seemed to me, had the appropriate an- union bosses are supported like they ing, ‘‘Congress shall make no law * * * swer to this question. Political con- believe they are by the membership, abridging the freedom of speech or the tributions should be freely given, not then there should be no problem what- press * * *.’’ While campaign finance coerced. They should be immediately soever for the unions to stay strong. reform efforts are based on the best of publicized and made available. Those But, if the unions’ Washington office intentions, whether by legislation or who violate those laws of disclosure takes positions that are contrary to its just simple suggestions, most of the ought to be appropriately punished. membership, then maybe they need to time they will affect individuals’ first- None of these elements is a part of the rethink their ways. amendment rights. law today, and that is where reform Also, a provision that is forgotten by The Supreme Court has been very ought to start. many who oppose the Lott amendment clear where it stands on the first Mr. ALLARD addressed the Chair. is that it also applies to corporations amendment and campaign finance The PRESIDING OFFICER. The Sen- and national banks. The amendment laws. Since the post-Watergate changes ator from Colorado is recognized. makes it unlawful for any corporation to the Federal Election Campaign Act Mr. ALLARD. Mr. President, today, I or national bank to collect from or as- of 1971, 24 congressional actions have want to take a few minutes and let my sess its stockholders any dues, initi- been declared unconstitutional, with 9 views be known concerning campaign ation fee, or other payment as a condi- rejections based on the first amend- finance reform. First, I want to com- tion of employment if such dues, fee or ment. Out of those nine, four dealt di- mend my colleagues from Arizona and payment will be used for political ac- rectly with campaign finance reform Wisconsin. It is not easy to introduce tivity in which the national bank or laws. In each case, the Supreme Court S10404 CONGRESSIONAL RECORD — SENATE October 6, 1997 has ruled that political spending equals their coverage can only come from the on the Supreme Court to rule it con- political speech. This Senate at- candidates opponent. stitutional. The problem with this tempted to change this through a con- I believe this provision places too logic is that since 1976, the Supreme stitutional amendment limiting the much power in the hands of a few. I Court has referred to the Buckley deci- amount one can spend in a campaign, have the utmost respect for the media sion over 100 times in setting limits on which only tells me that this fact is and the professionals who work for in the Government’s authority to regu- undeniably recognized by this body. the field, but too much of one gets too late political speech. I just cannot see In the now famous, or infamous to powerful for all. this Supreme Court overturning a rul- some, Buckley versus Valeo case, the Also, I believe this 60 day blackout ing that has become the landmark de- Court states that: will be used to remove Congress from cision and reference point for all cam- The First Amendment denies government the close scrutiny of the public. Let me paign finance decisions. the power to determine that spending to pro- explain. I am afraid that Congress will In the end, our campaign finance sys- mote one’s political views is wasteful, exces- hold off some of the more controversial tem needs to be fixed, but any reform sive, or unwise. In the free society ordained issues until the last 60 days before an must not run counter to the first by our Constitution it is not the govern- election in order to escape the scrutiny amendment. The first amendment en- ment, but the people—individually as citi- zens and candidates and collectively as asso- of these outside groups. This regula- sures that even if we don’t like what ciations and political committees—who must tion is nothing more than politicians someone says, they have the right to retain control over the quantity and range of wanting to quiet citizens from bringing say it. While many believe that the debate on public issues in a political cam- up issues that politicians want to ig- amount of money being spent in cam- paign. nore. paigns is objectionable, the Court has This simply states that the Govern- Another problem arises regarding clearly stated that campaign spending ment may not ration or regulate politi- soft money. The definition of soft is equal to speech and no matter how cal speech of a citizen through spend- money is campaign money raised out- objectionable, it is protected under the ing limits or limit its quantity any side the regulatory structure for Fed- first amendment. more than it can tell the local news- eral elections—or non-Federal money. I will have to say that the McCain- paper how many papers it can print, These funds are raised and spent by po- Feingold bill has gotten organized ef- what it can print, or when it can print. litical parties outside of the Federal forts behind it, like this ad run in the Also, the court states that fundraising limitations to benefit the Denver Post on Thursday, October 2, by ‘‘ * * * the mere growth in the cost of party’s State and local elections ef- the group Campaign for America. How- Federal election campaigns in and of forts. While soft money is not federally ever I would like to point out a few itself provides no basis for govern- regulated, it is regulated by the 50 things. mental restrictions on the quantity of States. Current law already bans the I find some great irony in this ad. campaign spending * * * .’’ This goes use of soft money in Federal elections. First, if McCain-Feingold passes and for not just the candidate but also out- Basically, a complete ban on the abil- this ad was to be aired on TV or radio, side groups who want to participate in ity of the parties to raise and spend it may just be illegal, especially if it is the process. any soft money would federalize all within the 60-day blackout period be- That brings me to a specific provi- elections because any money given to fore an election. If an incumbent be- sion in the legislation before us. I have the national parties in support of state lieves this ad to be an attempt to influ- yet to hear what makes 60 days such a and local candidates would fall under ence an election, they can challenge it, magic number. How can an outside the stricture of Federal laws. thus stifling debate. The very message issue group’s ad carry a valid message The Buckley case clearly states that they wish to send could be stopped by 61 days before an election but if run the ‘‘[S]o long as persons and groups es- the legislation they support. That is next day, it would lose all validity and chew expenditures that in express the point I would like to make. become illegal. This just makes little terms advocate the election or defeat They want to stop big money and big sense. When I ran for this seat in the of a clearly identified candidate, they guys with their big bucks from buying Senate, I was blasted from all angles are free to spend as much as they want the system, which I want to do also by by many different groups, but that’s to promote the candidate and his the way. Well, this group is backed by fine. It made my life and campaign a views.’’ The ACLU says that ‘‘the pur- the some of the richest people in Amer- little more difficult, but it let me ex- pose of this profound distinction is to ica. Actually, two of the men are on plain why I voted the way I did. These keep campaign finance regulations the Forbes 400 list. Plus, many of them groups brought all the issues into play from overwhelming all political and have given hundreds of thousands of and no candidate can hide their record public speech. And it is this distinction dollars to each party. It seems to me from the public. which defenders of the constitutional- that this group is a bunch of rich guys However, no matter how I have to de- ity of a ban on soft money continue to using their big bucks to buy legisla- fend my record against these ads, I will disregard.’’ tion. And, despite my request, I have never attempt to legislatively silence The Court has permitted the unre- yet to receive a full disclosure from their voice. To do so would place my- stricted use of soft money by political this group on how much is spent, who self over the rest of America. I cannot parties and nonparty organizations in gives and how much. All I know is who support the idea that my viewpoint is the Buckley decision and has enhanced sits on their board of directors. so much more important, that no one and given it legitimacy in its subse- But in all honesty, I cannot in good outside of the candidate can speak less quent decisions, including a decision conscience stop them from exercising than 60 days before the election. I can- involving the Republican Party from their first amendment rights. I want not and will not quiet the electorate. my own State of Colorado in 1996. any campaign finance reform legisla- I did forget one exception during the Let me also make a point about tion to encourage this—not stop it. 60-day blackout, the media. This 60-day money being the determining factor in This is why I introduced my own bill, blackout only strengthens the media elections. In my Senate race, I was out- the Campaign Finance Integrity Act. and whatever they say, cannot be chal- spent by almost $750,000—a quarter of My bill does not restrict one from exer- lenged, except by the candidate. Today, $1 million. You don’t have to have the cising their political speech rights, but newspaper endorsements are held off most money to win, you just have to asks for complete and honest disclo- until the end of the campaign to maxi- have the right message and I will not sure for all campaign spending. While mize their effect, but this 60-day black- legislatively try and stop someone this statement is not one of endorse- out period will let the endorsement go from speaking their message during a ment concerning my legislation, but in without criticism from outside groups. campaign, not even my opponent’s. a review of the McCain-Feingold bill, And I question whether once a can- Many believe that now is the right the ACLU says, ‘‘Disclosure, rather didate gets an endorsement, if their time to pass a restrictive campaign fi- than limitation, of large soft money campaign will be covered with the nance measure with all the scandal contributions to political parties, is same amount of scrutiny as the other surrounding the last Presidential cam- the more appropriate and less restric- candidate, for again, any rebuttal to paign and that we should take a chance tive alternative.’’ My bill does just October 6, 1997 CONGRESSIONAL RECORD — SENATE S10405 that. As a matter of fact, I believe my Code with its many tax breaks in favor The first question ought to be: Can bill has the strongest open disclosure of a flatter and simpler system would we continue to pass laws and elect peo- requirements of any bill introduced. clean up our campaigns greatly. Big ple based on how much money they My bill also will require candidates Government solutions will not stop big have and expect a participatory democ- to raise at least 50 percent of their con- business and big labor money. To break racy to survive? tributions from individuals in the special interest money, we must break Question No. 2: Can this democracy State or District in which they are the so-called iron triangle of big busi- survive under the present system of fi- running; ness, big labor, and big Government. nancing campaigns if we adopt McCain- Equalize contributions from individ- I must say that by objecting to the Feingold? uals and political action committees Washington media is very difficult for With the utmost respect for two dear [PAC’s] by raising the individual limit any politician, but turning your back friends in the Senate, Senator from $1,000 to $2,500 and reducing the on the first amendment is more dif- FEINGOLD and Senator MCCAIN, I would PAC limit from $5,000 to $2,500; ficult for me. I want campaign finance have to say that this bill will help our Index individual and PAC contribu- reform and I have shown in my legisla- democracy last a little longer than it tion limits for inflation; tion how I would like to do it, but I would if we do nothing. Reduce the influence of a candidate’s will not do so at the expense of the We call ourselves a participatory de- personal wealth by allowing political first amendment. Not even at the ex- mocracy. And yet, most people have party committees to match dollar for pense of those people’s speech who will long since quit participating. dollar the personal contribution of a disagree with me on this issue. The So another question that every Mem- candidate above $5,000, by using only first amendment is the reason we can ber of the Senate ought to ask before hard money; disagree. they vote on this bill is: Why do only 50 Require organization, groups, and po- Let me end with this. While big percent of the people in our country litical party committees to disclose money has been made the villain, I be- bother to vote? within 24 hours the amount and type of lieve it is not the money but the peo- The next question they ought to ask independent expenditures over $1,000 in ple. Bad people will do bad things if is: Why do only about 4 percent of the support of or in opposition to a can- given the chance. I believe that the people in the country contribute to didate. tighter we made it, the more people candidates and parties? Incorporate the Lott amendment, will try to find loopholes resulting in We can contribute 3 bucks to the along with the requirement of an an- more scandals. We need to enforce the Presidential Election Fund by check- nual full disclosure of those activities laws on the books first before we add ing a box on our tax return, without to members and shareholders; more Government regulation is not al- any cost to ourselves, yet the percent- Prohibit depositing of an individual ways the answer. To me it sounds like age of people who check that box is contribution by a campaign unless the those who are under investigation and down now to about 13 percent of the individual’s profession and employer are calling for more Government regu- people who file tax returns. Thirteen are reported; lation of campaigns are saying, ‘‘Stop percent will say, ‘‘Yes. I want $3 of my Encourage the Federal Election Com- me before it sin again.’’ Well let’s first taxes to go to the Presidential cam- mission to allow filing of reports by uphold the law and then we can better paigns.’’ I think there are an awful lot computers and other emerging tech- fix it. And when we do, let’s not do so of people in this country that think nologies and to make that information at the expense of those who legally they are paying that $3 out of their accessible to the public on the Internet want to exercise their first amendment own pocket. They don’t pay the $3. All less than 24 hours of receipt; rights. Don’t let the bad shut out the they do is say I would like for $3 of my Completely ban the use of taxpayer good participants in our system. existing tax liability to go to the Presi- financed mass mailings; and I yield the floor. dential campaign. That system has at- Lastly, will create a tax deduction Several Senators addressed the tracted much higher percentages than for political contributions up to $100 Chair. in the past. But it has been declining. for individuals and $200 for a joint re- The PRESIDING OFFICER. The Sen- So, ask yourself. Why do only 50 per- turn to encourage small donations. ator from Kentucky. cent of the people vote? One of the best way to reduce special Mr. MCCONNELL. Mr. President, Why do only 4 percent of the people interest money is to reduce the size very briefly, I thank the distinguished contribute? and scope of Federal Government and I Senator from Colorado for an outstand- Why is the number of people check- am not alone believing this. A recent ing contribution to this debate. I lis- ing the box on their Federal tax return survey by Rasmussen Research shows tened carefully to his entire speech. I continuing to go down? that 62 percent of Americans think thought it was truly outstanding. I just The answer to that is very simple. that reducing Government spending wanted to commend him for that and They don’t think they count. They say would reduce corruption in Govern- thank him for his contribution to this to themselves: ‘‘Why should I contrib- ment. The same survey showed that 44 important debate. ute? Yes. I could give 25 bucks. I could percent think that cutting Government Mr. ALLARD. I thank the Senator. give 50 bucks.’’ But when you see spending would do more to reduce cor- Mr. BUMPERS addressed the Chair. $100,000 contributions in soft money, ruption than campaign finance reform, The PRESIDING OFFICER (Mr. AL- and you see the $2,000 contributions to while 42 percent think campaign fi- LARD). The Senator from Arkansas is candidates, really $4,000 if the contrib- nance reform would reduce corruption recognized. utor’s spouse also contributes, who will more than cutting Government spend- Mr. BUMPERS. Mr. President, let me believe that his $15 or $20 is going to ing. I have said many times, if the Gov- say, first of all, that the distinguished make a difference? And they are show- ernment rids itself of special interest Senator from Maine, Senator COLLINS, ing in big numbers they don’t believe funding and corporate welfare, then has been waiting for a long time. I am they count by staying home on elec- there would be little influence left for most reluctant to take her spot. But I tion day. And they see legislation these large donors. understand she has to leave. So rather passed continually where they know That is why I am fighting corporate than waste the time, and with her in- money was the determining factor. welfare, especially thee Overseas Pri- dulgence, I hope she will forgive me, I I can remember when I was a young vate Investment Corp. Some may not will go ahead and proceed with my attorney just out of law school practic- see OPIC in the same light, but any statement. ing law in my little hometown. A man benefit for corporations will just keep First of all, Mr. President, I would came into my office one day. He said, them coming back for more. Another like for every Member of Congress to ‘‘I want you to give me $250 for a Mem- way to achieve campaign finance is too ask himself or herself this very simple ber of Congress.’’ And I said, ‘‘He’s not eliminate the Department of Com- question: How much longer do you even up for reelection this year. Why merce, where a majority of the cor- think our democracy can survive if we would I give him $250?’’ He said, ‘‘Well, porate welfare programs are funded. continue under the present system of they have a lot of expenses,’’ and so on. Also, by scrapping the existing Tax financing our campaigns? And I said, ‘‘Well, I’m not going to give S10406 CONGRESSIONAL RECORD — SENATE October 6, 1997 you $250,’’ the primary reason being I he give you money? Was there any quid now, there are going to be independent don’t have $250. The second reason is pro quo? counsels galore in this city. When you $250 is two monthly house payments. I am reluctant to mention this, but I increase funding, spending on congres- And the third reason is I don’t even am going to tell you the truth. I never sional elections in 1976 from $99 million like the guy; he doesn’t represent my did like the Keating case. A colleague to, in 1996, almost $800 million, you views. And fourth, I thought, if I were whom I consider to be one of the most have to ask, where is this going to end? going to give $250, why would I give it honest men I have ever known spent That is an 800 percent increase in 20 to you? Why wouldn’t I give it to the $600,000 of his own personal money de- years, with no letup in sight. candidate so he would at least know I fending himself because he was said to Look at the $450 million or almost had given him $250 and I would also have helped somebody who gave him $500 million in soft money for both par- like for him to know that that is a big, money in a campaign. I can promise ties during the last election cycle. It big amount of money for a struggling you he would never have taken it in a will be more this year, they are already young lawyer in a little town in Arkan- thousand years if he thought it had the ahead of the 1995–1996 cycle. Who gives sas. least taint to it. And if Keating’s S&L that money? It is not little struggling Mr. DOMENICI. Will the Senator had made it, you would never have lawyers as I was 40 years ago in a little yield for a question? heard about the Keating case. There town in Arkansas. It is not average Mr. BUMPERS. No, I won’t yield, would have been no case. But because folks with five and ten and fifty dollar Senator. I have been waiting all after- he was giving money to a lot of people contributions. I will tell you when it is going to end, noon to speak. and his S&L went under, and he turned Mr. President. It is going to end when When I ran for Governor the first out to be a crook, then we had this big the American people rise up in right- time, I found asking for money the dog and pony show in the Senate that eous indignation and come to the real- most difficult thing I had ever done. I lasted a year or more. could not believe that I had to go You know, I have been a friend of the ization that the system is rotten, come around pleading with people to give me President’s for now 26 years. And as to the realization that they do not a few dollars. Nobody wanted to give well as I knew the President, as close a count. It will end when enough people in Congress get tired of every contribu- me any money anyway because I had 1 friend as we have been through the tion that goes sour being microscopi- percent name recognition when I start- years, I never heard of Whitewater cally addressed by the press and won- ed running. Some guy gave me a $100 until he became President, never knew dering about when you are going to be one day, and he said, ‘‘I bet the horses there was such a place, never knew on one of the news magazines the next all my life, but I have never bet on there was such a corporation. And if episode. such a long shot as yours.’’ But he gave Bill Clinton hadn’t had the temerity to There is no perfect solution to this. I me $100 anyway. come to Washington as the President happen to come down on the side of I asked Tom Eagleton, the fine Sen- of the United States, you would never public financing. I have a bill. I wanted ator from Missouri, when he announced have heard of Whitewater. It is all how to introduce my bill as an amendment. he was going to leave the Senate, things turn out. Senator KERRY and Senator ‘‘TOM, why are you leaving?’’ He gave But to reemphasize the point I start- WELLSTONE have a bill. We discussed me three reasons. First of all, he said, ed to make, that is, colleagues, when whether to try to offer our bills as ‘‘I’m tired of laughing at things that you take a contribution from anybody, amendments to this bill. We concluded ain’t funny.’’ The second was, ‘‘I’m even if your own intentions are pure, that would probably be counter- tired of answering hate mail.’’ And you better hope that money is coming productive, would not get many votes, third, ‘‘I’m tired of going around with from an honorable person. You better probably would not get a single Repub- my tin cup out’’—three very compel- hope it is coming from somebody who lican vote, maybe 25 or 30 Democrat ling, perfectly legitimate reasons for isn’t out defrauding people. And you votes. Yet 66 percent of the people, ac- wanting to leave the Senate. better be careful how you vote on is- cording to a Gallup poll in October of As good as McCain-Feingold is, it sues that can help a contributor if they last year, 66 percent of the people in does not remove the problem Senators turn sour or turn out to be a crook. It this country said they favor public fi- face of voting on issues in which an doesn’t matter if you cast that vote on nancing of our campaigns. awful lot of people who have given the merits. And as long as we have this I heard the distinguished Senator them money have a dynamite interest. system of financing campaigns you can from Colorado say a moment ago that My son, who lives in Little Rock, and lie awake at night worrying about it he won even though he was outspent. I his wife had twins about a year ago, because it is a real threat. Where a was too in my first race. I ran against and they had a woman who came to quid pro quo can be inferred, it will be. a Rockefeller. I guess you would call stay with them when the twins were That is the perception that will remain that stupidity. But in any event, I won, born. They are very fortunate they can until we change the campaign finance and when I ran for the Senate against afford that. A lot of people have twins law. an incumbent, I was badly outspent. and they can’t afford to have that kind We have reached the point, Mr. Presi- But I tell you, those are rare excep- of help. Be that as it may, she has been dent, where every single Member is tions. I applaud anybody who spends a very intelligent woman. I visit with constantly just one step away from dis- less money than his opponent and man- her when I go over to see the twins. aster. And guilt or innocence has little ages to win because 90 percent of the Last week she said, ‘‘You know, DALE, to do with the outcome. One woman candidates in this country who spend I don’t know much about what’s going told me the other day that she had the most money end up winning. Pret- on up there, but it seems to me like been interviewed and appeared before ty heavy odds. According to statistics you all spend all your time investigat- grand juries in one of these many in- to this date, if you have the money, ing each other.’’ I said, ‘‘That’s right, vestigations and was going to have to you have a 9-to-1 chance of winning. Nancy.’’ deed her house—I promise you she is In the 1995–96 election cycle, 400 cor- That is all we are ever going to do as totally innocent of anything—going to porations, labor unions, and individ- long as we finance campaigns the way deed her house to her lawyer because it uals contributed $100,000 or more in we do now. Every time you vote on an is the only asset she has that will come soft money; 400 of them gave over issue, Senators, you are vulnerable to close to covering her legal bills. $100,000. Were they after good govern- accusations if it benefits anybody who Well, we have reached the point in ment? Is that what they wanted? I ever helped you. When you take money this country where simple negligence, don’t mean to demean anybody, be- from somebody and you vote on an bad judgment, just plain policy dif- cause I have a lot of friends who have issue, you better hope two things: That ferences are becoming criminal of- been faithful to me for 26 years in the the issue turns out well, and that the fenses. How many independent counsels contribution area. I can truthfully say guy who gave you money does not turn do we have running loose in this town? I am most grateful to all of them. But out to be a crook because if he does, And how many more will we have? I when I first started running for Gov- the press comes running to you: How can answer that partially. As long as ernor in my State, there were no cam- much money did he give you or why did we finance campaigns the way we do paign laws and I was absolutely aghast October 6, 1997 CONGRESSIONAL RECORD — SENATE S10407 at the amount of cash money, green- give ourselves the ‘‘good government’’ sponded by entrusting me to represent backs, that was floating around in award, as Senator HOLLINGS is always them in this body, and whatever other campaigns. One man handed me fifty saying, and the American people will loyalties that I might have, I owe my $100 bills. I knew he had a deep and be thinking the system has been fixed. ultimate allegiance to them. I kept abiding interest in certain things that A lot of it will have been fixed, but that promise when I cosponsored the were bound to come up when I was problems will remain and I fear that McCain-Feingold bill, and I am keeping elected, if I was elected. So I handed they will make the people even more it now by pledging to vote against him his fifty $100 bills back. cynical. what I have concluded is, in fact, a Do you know something? He doesn’t The issue advocacy ads that are real- killer amendment. like me to this day. You can’t give peo- ly ads for a candidate—they drive me I do, however, want to say a few ple money back and make them like it, crazy. This bill would help to bring words to my Democratic colleagues. At can you, Senator? them under control, require disclosure the end of the day, we will not have My campaign finance director came of the sources of money used to campaign finance reform without sac- up and said, ‘‘How are we going to run produce them. They are really cam- rifices and courage on both sides of the this race? You are giving more money paign spending. aisle. If Senator LOTT’s amendment is back than we are taking in.’’ I have I can tell you, I have voted for one not defeated, the spotlight will shift to given a lot of money back. All I am constitutional amendment since I have the Democrats. So far, they have had saying is, when you think about how been in the Senate. I voted for ERA the easy road, able to proclaim their much money $100,000 is, and when you soon after I arrived in the Senate. passion for reform, knowing that it think about who gave it, you have to Since that time, I have voted about faces an uphill battle and confident believe that they wanted something 32 times against every constitutional that they can blame the Republicans if more than good government. amendment. Either earlier this year or it does not pass. In 1996—listen to this—in the U.S. last year, I voted against Senator HOL- But if their response to the Lott Senate, Senate incumbents had a 2 to 1 LINGS’ amendment to the Constitution amendment is simply to filibuster and spending advantage over challengers. which would have allowed the Congress not to offer a reasonable compromise You hear people say public financing of to set campaign spending limits. I am on the union dues issue, an already campaigns is welfare for the politi- going to vote for it. I want to announce skeptical public will reach the inevi- cians. Do you know what I say to now publicly, the next time Senator table conclusion that Democrats are chamber of commerce and Rotary Club HOLLINGS brings that amendment up, I not serious about reforming the sys- members, all conservative businessmen intend to support it. Despite my deep tem. A number of Democrats have who do not much like this idea of pub- reservations about amending our Con- urged me to put principle over party, lic financing? I remind them, you have stitution, I will do almost anything to and to them I say, ‘‘Your turn may been investing in the stock market for change the way we finance campaigns come.’’ several years now and you have been in this country, because I am abso- Mr. President, a fair campaign fi- doing well. But I can tell you, if you lutely convinced that this system is to- nance system is essential to a healthy really want to make some money, if tally destructive to our democracy. I democracy. While not perfect, the you really want a return on your in- yield the floor, Mr. President. McCain-Feingold bill would give us a vestment, you opt for public financing. Ms. COLLINS addressed the Chair. fair system. Given the commitment of The PRESIDING OFFICER. The Sen- That will give you the biggest return of the people of Maine to fair play, I am ator from Maine. any investment you ever made in your confident that my position on this Ms. COLLINS. Mr. President, I rise life, because we won’t be spending a lot issue not only is right as a matter of to announce my intention to join my of money on unworthy projects that principle, but also reflects the values colleague from Arizona, Senator contributors supported. It will be a of my home State. great investment because it will yield MCCAIN, and vote for his motion to I want to also take this opportunity a cleaner government and the people table the amendment offered by the to commend Senator MCCAIN and Sen- will believe it is a cleaner government. distinguished majority leader to the The average successful Senate race McCain-Feingold campaign reform leg- ator FEINGOLD for their unceasing ef- today costs $4 million. That is average. islation. forts in this very important fight. Some races have cost as much as $28 This has not been an easy decision Thank you, Mr. President. I yield the million. Where will we be 20 years from for me. I strongly support the underly- floor. now if the costs of Senate races con- ing objective, if not the precise lan- Mr. FEINGOLD addressed the Chair. tinue to go up another 800 percent? You guage of Senator LOTT’s amendment. The PRESIDING OFFICER. The Sen- can’t count that high. You can’t get The principle that America’s working ator from Wisconsin. computers to count that high at the men and women should not be required Mr. FEINGOLD. Mr. President, let rate we are going. to contribute their hard-earned money me take this opportunity to say what a One of the problems that I have with to advance the campaign of candidates Senator of courage the Senator from the McCain-Feingold bill, and I am a they do not support is a compelling Maine is. This is a very difficult issue. cosponsor and ardent supporter and I one. The strong opposition of big labor The Senator from Maine, of course, is a certainly intend to vote for it, but I to this reasonable proposal dem- loyal Republican, but for her to come will tell you one of my fears is, while it onstrates their fear that many of the out here and have the courage to stand will help preserve our democracy for a rank and file union members would not up and join with us to say that this little longer and it will take some of agree to the use of their dues for politi- amendment would kill our bill is ex- the problems out of the way we finance cal purposes. tremely important. campaigns today, nothing will cure the But in the final analysis, my decision I have heard her admonition as well problem like public financing. on this matter must be determined by that this must continue to be biparti- But the point I want to make, what I considerations other than the merits of san. But the fact that she would come worry about is, if we pass McCain- Senator LOTT’s amendment. The plain out here at this key moment and say Feingold, there will be a lot of hoopla truth is that its adoption will kill cam- that she will stand with a bipartisan about it, because I have never known paign finance reform. That is not sim- effort, as she has done in the past, is people as tenacious and determined and ply my judgment; it is the judgment of not a minor matter. It is the same as hard-working as Senator FEINGOLD Senator MCCAIN and Senator FEINGOLD thing the Senator from Maine did a few and Senator MCCAIN have been on this who have devoted so much time and en- months ago when everyone kept say- issue. They have my deep and abiding ergy to further the cause of reform. ing, ‘‘You don’t have any cosponsors; admiration for their tenacity and their When I ran for the U.S. Senate, I you only have two Republican cospon- determination to try to do something made a clear and unambiguous promise sors.’’ It was the Senator from Maine about what is wrong with the system. to the people of Maine. I promised that who actually had some ideas that were But if it passes, we will go home and I would fight for campaign finance re- better than our ideas, and we added we will pat ourselves on the back and form. The people of my State re- them to the bill and improved it. S10408 CONGRESSIONAL RECORD — SENATE October 6, 1997 Let me add both my personal and freedoms of the same people we claim the appearance of corruption in Fed- professional gratitude for the commit- to protect. We must pay close atten- eral elections, but we can ‘‘make no ment of the Senator from Maine to re- tion, I believe, to the numerous Su- law * * * [that] abridges the freedom of form. We in Wisconsin like to think preme Court decisions which clearly speech * * *,’’ quoting the Constitu- that we are the greatest reform State, set forth that the regulation of many tion. but Maine sure gives us a challenge. campaign-related activities directly Therefore, I believe that it is essen- Ms. COLLINS. Will the Senator implicates first-amendment rights. tial that any reform initiatives we pass yield? In 1974, the Supreme Court reviewed do not further encroach on the basic Mr. FEINGOLD. I yield for a ques- the Federal Election Campaign Act in rights protected under the first amend- tion. the case of Buckley and struck down ment. It is not the proper role of Gov- Ms. COLLINS. I thank the Senator the statutory restrictions on campaign ernment, I believe, to restrict the abil- for his kind comments. expenditures. In its holding, the Court ity of the American people to partici- Several Senators addressed the concluded that political discourse ‘‘is pate in election campaigns. It would be Chair. at the core of our electoral process and absurd, I think, to allow the Govern- The PRESIDING OFFICER. The Sen- of the first amendment freedoms.’’ ment to control the manner in which ator from Alabama. While the Court did allow a minimal Mr. SHELBY. Mr. President, I rise Americans communicate. If reform level of restriction that we know today to add my voice to the very im- crosses these lines, I think it com- about—caps on the direct contributions portant discussion that the Senate is mands too high a price, it goes too far. to candidates—and only for the purpose Mr. President, in light of the Su- having regarding campaign finance re- form, and I commend the Senator from of preventing corruption or the appear- preme Court holdings, I do not under- ance of corruption, it granted the full stand and cannot support the present Kentucky, Senator MCCONNELL, for not only his leadership but for his tenacity protection, Mr. President, of the first legislative efforts that directly im- in defending what he believes and so amendment to anyone spending money pinge on first amendment rights. I par- many of us believe is an assault on the to communicate an idea, a belief, or a ticularly object to the so-called reform first-amendment rights of all Ameri- call to action. in Senators MCCAIN and FEINGOLD’s bill cans. In no uncertain terms, the Buckley which restricts independent parties I also thank Senator LOTT, our lead- decision makes clear that the first from communicating ‘‘for the purpose er, for his leadership in scheduling this amendment forbids the Federal Gov- of influencing a Federal election,’’ re- debate, and I commend my colleagues ernment from restricting political gardless of whether the communication who thus far have added insight and speech and expression rights by way of is expressed advocacy. value to our discussion. campaign expenditure limits. Just think about it. Time and again, Mr. President, if we are to have cam- Mr. President, the Buckley decision in case after case, the Supreme Court paign finance reform, I believe we must does not stand in isolation. For the of the United States has held that achieve those changes necessary to en- past 20 years, the Supreme Court of the Congress can only legislate to restrict sure public trust in our institutions United States has returned to this de- campaign-related activities where and our Government officials. Serious cision and consistently and unequivo- those activities comprise the express reform must take into consideration cally reaffirmed its soundness. The advocacy of a particular candidate. The the significant number of Americans Court’s subsequent decisions clearly Court even specified in a footnote in who are compelled to make mandatory demonstrate this, such as in FEC ver- the Buckley case what it meant by ex- political contributions at their work- sus National Conservative Political Ac- press advocacy—communications such place as a condition of employment. No tion Committee. The Court, tracking as ‘‘vote for,’’ ‘‘elect,’’ ‘‘defeat’’ and citizen should be required to make in- the Buckley decision, struck down re- ‘‘reject.’’ So when Congress places re- voluntary contributions to any can- strictions on funds spent in support of strictions on communications that do didate, party, or political interest publicly financed Presidential can- not fall within this tightly drawn class, group. No corporation, no labor union, didates in furtherance of their election. it violates, according to the Court, the and no business entity should have the The Court held that such expenditures first amendment. power to twist the arms of their em- fell squarely, Mr. President, within the Mr. President, as we have consist- ployees or members. These practices protections of the first amendment ently heard on the floor during this de- are wrong and un-American, and I be- rights. bate, the first amendment is not a lieve they must be ended as part of our Also, in the FEC versus Massachu- loophole. It is beyond our constitu- overall effort to reform the financing setts Citizens for Life, the Court ruled tional authority to restrict the ability of Federal elections. that the voter guide published by an of independent groups to communicate Serious reform must also contain incorporated entity was entitled, Mr. their political views where they do not provisions that increase the frequency President, to first amendment protec- engage in express advocacy. and specificity of mandated contribu- tions and invalidated an enforcement Mr. President, I am also greatly trou- tion disclosure. I support measures action the FEC brought against this bled, as are others, by a provision in which bring about greater trans- organization. Senators MCCAIN and FEINGOLD’s bill parency, those that allow the Amer- More recently, Mr. President, in Col- which prohibits independent commu- ican people to know the where, the orado Republican Federal Campaign nications that merely mention the when, how much, and from whom of Committee versus FEC, the Court name of a candidate within 60 days of a campaign contributions. again, following Buckley, held that Federal election. Not only does such a The last election cycle was filled first amendment protection covers restriction strike at the heart of first with numerous activities that violated someone communicating an idea, a be- amendment protections, it all but existing campaign laws. As we proceed lief, or a call to action. The Court guarantees a free ride to the incumbent through this debate, we should be found that political party expenditures involved in the election. mindful of the fact that these new re- made in support of party ideals and Just think about it, Mr. President. If forms do nothing to reach those past even party candidates were protected there is no commentary regarding a violations. We must ensure that illegal under the first amendment of the Con- candidate’s performance in office at foreign contributions are kept from stitution of the United States so long the time when the electorate is most election campaigns, and I believe that as the expenditures were not made, as tuned into the campaign, no sitting we must ensure disclosure violations we say, in coordination with can- Member would ever lose. Incumbents are uncovered and are punished. Thus, didates. would be able to capitalize on the in- perhaps the most important so-called Mr. President, the Supreme Court herent advantages of being in office, change we can now achieve is to ensure rulings provide us two guideposts in while challengers would be forced to that the existing laws are routinely our endeavor to reform campaign fi- rely solely on their own and probably and are properly enforced. nance. We have the constitutionally much less resources. However, in our zeal for change, we proscribed power and thus the respon- This provision is incumbent reelec- should not compromise the rights and sibility to prevent corruption and/or tion insurance, not campaign finance October 6, 1997 CONGRESSIONAL RECORD — SENATE S10409 reform. Make no mistake about it. The The basilica is one of the finest ex- BIPARTISAN CAMPAIGN REFORM electorate must be able to hear all the amples of Italian Gothic architecture, ACT OF 1997 views about candidates in a timely a building of ‘‘unparalleled importance The Senate continued with consider- manner. And candidates must be able in the evolution of Italian art.’’ It has ation of the bill. to stomach the full range of opinions been written, by those more knowl- Mr. LEVIN. Mr. President, I am a co- regarding their candidacy. edgeable about art and architecture sponsor and strong supporter of the Mr. President, we must clean up the than I am and will ever be, that ‘‘a har- McCain-Feingold bill, and I want to ex- system but without compromising fun- monious relationship exists between plain this afternoon in some detail why damental first amendment rights. I be- the architecture and its fresco decora- I support a key section in the bill that lieve this task is difficult but not im- tion.’’ ‘‘The strong and simple forms is the subject of much debate. It is sec- possible. Without infringing upon any are repeated throughout the building tion 201, the provision that is intended American’s rights, we can ensure that both to unify and to articulate the to stop what we call issue ad abuse. By the American people control the direc- space with so powerful an effect that issue ad abuse I mean the mislabeling tion of their contributions, have an un- the architectural members are echoed of candidate ads as issue ads in order to derstanding of who gave what to whom, in the painted framework to the evade contribution limits and the dis- and are confident that our elections frescos.’’ closure requirements that now exist in are free of foreign influence, which is Federal campaign law. so important. The basilica is a living museum pro- I want to emphasize this point be- Mr. President, the Senate, I believe, viding a home for the art of several cause it has been overlooked, it seems should work to enact these measures great masters of the 13th and 14th cen- to me, by so many of us during this de- into law and not infringe on our first turies. These art treasures depict bate. Current law restricts contribu- amendment rights. scenes from the Old and New Testa- tions and the Buckley case has upheld I yield the floor. ments. that restriction as being consistent Mr. LEVIN addressed the Chair. with the first amendment. Section 201 The PRESIDING OFFICER. The Sen- The famous fresco artist, Cimabue, is not only constitutional within Buck- ator from Michigan. began his work in the basilica, believe Mr. DOMENICI. I say to the Senator, it or not, in 1277. Cimabue’s frescos in- ley but it is also critically important I wonder if I might take 3 minutes as clude scenes from the life of the Virgin, to campaign finance reform. I want to in morning business. I can go into popes, angels, and saints, as well as spend some time explaining why. Now, Buckley—which I think has morning business and do this, and then scenes of the Apocalypse and the Cru- been cited by just about everybody who we can come back to this. cifixion. has spoken in this debate—is the Mr. LEVIN. I ask unanimous consent Cimabue’s pupil, Giotto, painted 28 that I be allowed to yield to Senator touchstone for drafting constitu- famous, and beautiful frescos based on tionally permissible Federal campaign DOMENICI for up to 5 minutes and then St. Bonaventure’s version of St. finance laws. So I want to start with have my rights to the floor restored. Francis’ life, and major accomplish- The PRESIDING OFFICER. Is there Buckley. In Buckley, the Supreme ments. These famous Giotto frescos objection? Hearing no objection, with- Court upheld a strict set of limits on painted on the sidewalls of the basilica out objection, it is so ordered. campaign contributions to Federal The Senator from New Mexico is rec- were cracked by the earthquake but candidates, despite impassioned argu- ognized. are miraculously somewhat in tact. ment, including by the ACLU, that Mr. DOMENICI. I thank the Senator These frescos are world treasurers. So such limits impermissibly restricted very, very much. I will be perhaps even that my colleagues understand, let me first amendment rights of free speech briefer than that. make this comparison. Giotto was to and free association. f the basilica what Brumidi was to our This is what the Court said in Buck- own beautiful Capitol. ley, and I will be quoting at some PROVIDING TECHNICAL ASSIST- length because it is critical in under- ANCE TO AID IN THE RESTORA- Mobilization of Italian artists and re- storers has been swift. In addition, the standing the permissible limits of cam- TION OF THE BASILICA OF ST. paign finance law and limits: FRANCIS OF ASSISI National Museum in London and the Louvre have offered experts to help It is unnecessary to look beyond the Act’s Mr. DOMENICI. Mr. President, on primary purpose—to limit the actuality and with the restoration. September 24 and 25, Umbria, Italy, appearance of corruption resulting from that community, was hit by twin The sense-of-the-Senate resolution large individual financial contributions—in earthquakes. Extensive damage was in- calls upon the Smithsonian, the Na- order to find a constitutionally sufficient tional Gallery of Art, and any of the justification for the $1,000 contribution limi- flicted upon the towns and villages tation. Under a system of private financing across the region. Eleven people lost other premier art museums in the of elections, a candidate lacking immense their lives and thousands of homes and United States that have the pertinent personal or family wealth must depend on fi- buildings have been damaged. expertise to provide technical assist- nancial contributions from others to provide The Basilica of St. Francis of Assisi ance to aid in the restoration of the the resources necessary to conduct a success- was one of the buildings that was se- Basilica of St. Francis of Assisi and the ful campaign. The increasing importance of verely damaged. It isn’t just a church works of art that have been damaged in the communications media and sophisticated or a great center of pilgrimage, or an the earthquake. mass mailing and polling operations to effec- artistic archive and yet it is all of tive campaigning make the raising of large I want to indicate to the Senate I sums of money an ever more essential ingre- those things. will send to the desk to be considered dient of an effective candidacy. To the ex- It is one of those special places that tent that large contributions are given to se- you visit one day, but long to return to in wrapup a resolution—just by the Senate; we are not going to try to go to cure political quid pro quo’s from current for a lifetime if you are fortunate and potential office holders, the integrity of enough to get to Italy and to set about the House—just a sense-of-the-Senate our system of representative democracy is to see some very, very historic build- resolution that states the facts regard- undermined. . . . ings with culture and with religion ing this disaster, and merely says that Of almost equal concern is the danger of that just wreaks from the walls. the Smithsonian Institution, the Na- actual quid pro quo arrangements and the That is why I was profoundly sad- tional Gallery of Art and any of the impact of the appearance of corruption stem- other premier art museums of the ming from public awareness of the opportu- dened to learn that the basilica was se- nities for abuse inherent in a regime of large verely damaged by the earthquakes of United States having pertinent exper- individual financial contributions. . . . tise in restoration should provide tech- September 24 and September 25, and And the Court went on: nical assistance to aid in the restora- again last week. Congress could legitimately conclude that It seems so ironic that the basilica, tion of the Basilica of St. Francis of the avoidance of the appearance of improper built in honor of the patron Saint of Assisi and the works of art that have influence ‘‘is also critical. . . if confidence in Italy who cherished the natural world, been damaged in the earthquake. That the system of representative government is was ravaged by an act of nature. is essentially what it is. not to be eroded to a disastrous extent.’’ . ..