S3022 CONGRESSIONAL RECORD — SENATE March 28, 2001 McCain-Feingold, we will be hurting The story of Jackie Stiles is also the The other one I want to mention is the democratic process. story of Title IX, the landmark civil raising the aggregate limit from $30,000 This is a time when all of us, Demo- rights legislation which set out to cur- to $50,000, which actually per cycle crats and Republicans alike, must do tail discrimination against women and means $100,000. what is right for our country, what is girls in education and athletics. With- So what we are saying now is an indi- right for our democracy. out Title IX, we might never have vidual can give up to $5,000 supporting The Biblical account of Joshua and heard of heroes like Jackie Stiles. In a candidate, and in the aggregate, an the battle of Jericho shows us the 1971, the year before Title IX, only individual, one individual could give as strength of a united voice. We are told 25,000 women competed in college much as $100,000 to candidates. that ‘‘the people shouted with a great sports. Today, that figure has grown to I have recited the statistics on the shout, so that the walls fell down.’’ more than 135,000 women—including floor so many times that I am boring If we speak with one voice, the wall one very talented player who wears the myself. But there is the most huge dis- of ‘‘soft money’’ that separates ordi- number ten jersey for Southwest Mis- connect between the way in which— nary citizens from their government souri State. here on the floor of the Senate and in will come down. Only then can we be Jackie’s success is measured in more the ante room—the way that people confident that campaigns are decided than just rebounds, lay-ups, and jump who come together in the lobbying coa- by the power of our ideas, not by the shots. She has brought attention to litions are defining compromise and power of our pocketbooks. women’s sports, and has proven that victory, and the way people in coffee I enthusiastically support campaign women’s basketball is exciting. Most of shops think about this. One-quarter of finance reform and hope that we can all, she is a role model and an inspira- 1 percent of the population contributes pass legislation that reduces the influ- tion for thousands of girls. $200 or more, one-ninth of 1 percent of ence of money in politics. If she chooses, Jackie’s next stop is the population contributes $1,000 or f probably the WNBA. I have no doubt more. So I do not really see the benefit of WOMEN’S HISTORY MONTH AND that she will become one of the injecting yet more money into politics, JACKIE STILES league’s greatest attractions. She will help not only her team but her sport literally turning some of the hard Mrs. CARNAHAN. Madam President, and all those who appreciate and enjoy money into soft money. I am sure peo- this month we celebrate Women’s His- it. ple in the country are bewildered by tory Month. It is an opportunity to re- Mr. President, in honor of Women’s hard money, soft money. Let me put it flect on the successes, advances and History Month, I’d like to offer my this way. I don’t see how politics that contributions women have made and congratulations to Jackie Stiles, the becomes more dependent on big con- are making in American life. Lady Bears of Southwest Missouri tributors, heavy hitters, people who Today, I have the special privilege of State, and all the other heroes who are have more money and can afford to honoring a woman who is not only bringing women’s sports to a new high make these contributions, is better celebrating women’s history this and teaching young girls to follow politics. I just don’t get it. month—she is making it. On the Thompson amendment, there Jackie Stiles stands 5 feet 8 inches their dreams. May they continue to thrill, entertain, and inspire us. was a motion to table. It was defeated. tall, but she is a giant on and off the I thought, frankly, some of the mod- f court. Earlier this week, she led the erates on the Republican side who were Lady Bears of Southwest Missouri EXTENSION OF MORNING part of the reform camp would have State into victory over Washington, se- BUSINESS voted against the Thompson amend- curing her team a spot in the NCAA Mr. REID. Madam President, with ment. They did not. Senator FEINSTEIN Final Four. It was the latest accom- the consent of my friend from Ken- came out with an amendment, and her plishment in the life of this remark- tucky, I ask unanimous consent we ex- amendment basically doubles the lim- able young woman. tend the morning hour until 2:30, and its. So I guess we go from $1,000 to In high school, she was a 14-time leave thereafter half an hour to be di- $2,000 and then $2,000 to $4,000 and it state track champion and once scored vided among the opponents and pro- raises the aggregate amount but not a 71 points in a single basketball game. ponents of the two pending amend- lot. Her fans would show up at nine in the ments. The Feinstein amendment is cer- morning with lounge chairs to be first The PRESIDING OFFICER. Without tainly better than the Thompson in line when the gym doors opened at objection, it is so ordered. amendment. Now there are some nego- 4:30. They just wanted to catch a Mr. REID. I suggest the absence of a tiations. Regardless of what happens in glimpse of Jackie in action. She is a quorum. these negotiations, the point is the hero in her home town—and in towns The PRESIDING OFFICER. The headlines in the newspapers in the across America where young girls clerk will call the roll. country tomorrow for the lead story dream impossible dreams. Jackie The assistant legislative clerk pro- should be ‘‘U.S. Senate Votes for Re- shows them dreams can happen. ceeded to call the roll. form, Votes to Put More Big Money At Southwest Missouri State, Jackie Mr. WELLSTONE. Madam President, Into Politics,’’ because that is really Stiles has scored—as of today—3,361 I ask unanimous consent the order for what we are doing. I think this is a points, becoming the all-time leading the quorum call be dispensed with. huge mistake. I have two children who scorer in the NCAA. She has also be- The PRESIDING OFFICER. Without teach. come the heart of the Lady Bears. objection, it is so ordered. f Every time she plays, she thrills the f sell out crowds at the Hammons Stu- CONCLUSION OF MORNING dent Center—better known as the HARD MONEY BUSINESS ‘‘House of Stiles.’’ Mr. WELLSTONE. Madam President, The PRESIDING OFFICER. The time On Friday, the team will come home I will take a little bit of time because for morning business has expired. to Missouri for the Final Four. And I think other Senators will be coming f with all due respect to my colleagues out to the floor soon to talk about from the great state of Indiana, I pre- where we are on the hard money CAMPAIGN REFORM ACT OF 2001— dict a big win over Purdue for Jackie changes. We had a proposal by Senator Continued Stiles and the Lady Bears. THOMPSON which basically raised the Mr. WELLSTONE. Madam President, Jackie Stiles didn’t become a star amount of money that an individual I ask unanimous consent that I be al- overnight. She does it the hard way— could give to a candidate from $1,000 to lowed to keep the floor as we move on the only way she knows how. She $2,500 per election; from $2,000 to $5,000 to the debate. began training at age two with her fa- over a 2-year cycle; so $2,500 per elec- The PRESIDING OFFICER. Without ther and has pushed herself ever since. tion, primary, general, up to $5,000 per objection, it is so ordered. She goes to the gym and won’t leave candidate. There are other provisions Mr. WELLSTONE. Madam Chair, I until she makes 1,000 shots. as a part of the Thompson amendment. have two children who are teachers. I

VerDate 28-MAR-2001 03:40 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.045 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3023 can tell you right now that neither one for all you Minnesotans who now con- performance. We will trim down what of them can afford to make a $1,000 tribute $1,000 or more. You will be able we stand for. We will be more reluctant contribution or a $2,000 contribution or to give even more money to candidates. to take controversial positions on test $4,000 or $5,000 in an election cycle. I Minnesotans, please listen. The Senate economic issues. We will be less willing can tell you right now that neither one is now pretty soon about to pass a re- to challenge economic and political of them can afford to make $30,000 form measure. All of you Minnesotans power in America today than we are al- worth of contributions. My God, that who contribute $1,000 and $2,000 a year ready, and today we are not so willing is, frankly, the salary of a good many and can afford to do it will now be able to challenge that power. teachers in this country. They cannot to double your contributions. I am sure This isn’t just like statistics. And afford to make those kinds of contribu- people in Minnesota will just feel great here is one proposal to raise the tions. about this. I am sure people in Min- money, and here is another one, and On the floor of the Senate we are say- nesota will feel that this is real reform. now we have a compromise. This is ing, my gosh, the reality is that we And I am sure 99 percent of the people about representation. have this inflation and $1,000 isn’t in Minnesota will feel it is true. Spencer was right. Spencer Overton worth $1,000. The reality is that the This is a game we can’t play: You was right. Fannie Lou Hamers are not vast majority of the people in the pay, you play. You don’t pay, you don’t going to be well represented at all. I country don’t make these big contribu- play. doubt whether hardly anybody who tions; therefore, we don’t pay as much I will finish, maybe, but just to make comes from those economic cir- attention to them; therefore, they have one other point. cumstances today and who take posi- become increasingly disillusioned, and I am looking at this in too personal tions that are antithetical to economic now as a part of this deal we are rais- of a way by showing more indignation and political power in America—I hate ing the spending limits—whatever the than I should. People can disagree. to argue conspiracy. I am just talking compromise is. It seems to me that it That is the way it is. You win or lose about the realities. Are they ever going goes exactly in the opposite direction votes. to be able to run? I don’t think they than we should be going. We talk about getting rid of soft will be able to run. It is going to be How are ordinary citizens who can’t money. With what we are now about to very hard. If you are well known or an afford to make these big contributions do on these individual spending limits, incumbent, you have a pretty good going to feel—that this political proc- there is a bunch of people who will chance. That is good. ess is now going to be better for them never be able to run for this Senate. We get some great people here. We when we have taken the caps off and They are really not. I will tell you who have the Presiding Officer. We have have raised the contribution level? those people are. They are women and Senator KENNEDY. Senator DAYTON is Now people who are running for office men who themselves don’t have a lot of here—people who have been well known are going to be even more dependent on money and who take positions that go for good reasons and who have accom- the top 1 percent of the population. against a lot of the money interests in plished a lot in their lives. The Chair How is that reform? this country and people who have the has. People who have economic re- I haven’t done the analysis. I do not economic resources. sources—Senator KENNEDY does, and know how it will add up. My guess is I said earlier that the Chair would be Senator DAYTON does—care deeply that while, on the one hand we are tak- interested in this because of her own about these issues. That is not my ing the soft money out, we are now history. I was talking about the Fannie point. going to be putting a whole lot more Lou Hamer Project. Spencer Overton My point is that as we rely more and hard money into politics. In the elec- from the Fannie Lou Hamer Project more on the big contributors and the tion year 2000, 80 percent of the money was speaking yesterday at the press well oiled and the well heeled and the in politics was hard money. conference. Fannie Lou Hamer, as the heavy hitters, all of us who are running I am not trying to denigrate taking Chair knows, was this great civil rights are going to become more dependent on soft money out—the prohibition on soft leader, daughter of a sharecropper fam- that money. The people who are going money that is in McCain-Feingold. But ily, large family, grew up poor, and be- to have the most difficult time ever as this legislation moves along, I am, came the leader of the Mississippi getting elected are going to be ordi- in particular, saddened and a little bit Democratic Party. She was a great nary citizens, which I think means indignant that we are now defining leader, a poor person, a poor woman, they are the best citizens. I mean that ‘‘reform’’ to raise the limits so those and a great African-American leader. not in a pejorative way but in a posi- people who can afford to make a $1,000 He was saying yesterday that there tive way. They are not going to have a contribution can now make $2,000; are not any Senators who look like prayer. They are not going to have ac- those who can afford over 6 months— Fannie Lou Hamer. He was right. He cess to this money. whatever cycle—to make not $2,000 but went on to say that the truth is, this Let’s not kid ourselves. If you believe to now make $4,000 contributions will isn’t an issue of corruption. This is an the standard of a representative de- be able to do so. issue of representation—of whether mocracy is that each person should The argument that some of my col- there is inclusion or exclusion. The count as one, and no more than one, we leagues make is the fact that 99 per- Fannie Lou Hamers of this country are have moved dangerously far away from cent of the population can’t afford to going to be even less well represented that. I do not see how any kind of do this doesn’t mean we shouldn’t let when we become even more dependent ‘‘compromise,’’ defined by the pattern the other 1 percent. on those fat cats who can make these of power right here in the Senate But I tell you what is going to hap- huge contributions. today, represents a step forward, where pen. We are going to be even more de- How is a woman such as Fannie Lou we now are going to say that those peo- pendent on the big givers. We are going Hamer, a great woman, ever going to ple who are the big givers are going to to become even more divorced from all run? How about people who want to be able to give more and those people of those people who we serve who can’t represent the Fannie Lou Hamers? How running for office are going to be more afford to make those contributions. We are they going to have a chance to run? dependent on them. are going to spend even less time. They are going to be clobbered. I bet you, Madam Chair, that after There will be even less of an emphasis Democrats, don’t get angry at me, this amendment or this compromise on the small fund raisers and less of an but there are plenty of Democrats who passes, that over 50 percent of the emphasis on grassroots politics. It is a will be able to raise the money. That is money that will be raised in the next tragedy that we are doing this. good. You will be able to get the two, election cycle—the cycle I am in—over I do not know how the bill will ulti- or three, or four, or five, or six. I don’t 50 percent of the money that will be mately go. I think this is a terrible know what their final deal will be. You raised will be in these large contribu- mistake. It has that sort of ‘‘made for will be able to get those big contribu- tions, raised from, again, about 1 per- Congress’’ look. tions. But you will pay a price. Demo- cent of the population. This is the sort of agreement that is crats, we will pay a price. We are pay- Now I ask you, how does that rep- a victory, Minnesotans. This victory is ing that price. We will dilute our policy resent reform? How does that make

VerDate 28-MAR-2001 03:40 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.051 pfrm12 PsN: S28PT1 S3024 CONGRESSIONAL RECORD — SENATE March 28, 2001 this a healthier representative democ- bitrary and capricious and unconstitu- Title II would make it illegal for citi- racy? I think it is a huge mistake. And, tional line—a line that abridges the zens groups to take to the airwaves and I, for one, am adamantly opposed and first amendment rights of U.S. citizens. even mention a political candidate by want to express my opposition. Under title II, citizens groups—and I name. It would make it illegal to state I am not out on the floor to launch a emphasize that this is currently in the something as simple as to tell the vot- filibuster, so I will yield the floor. bill and unless our amendment is ers whether or not a candidate voted I suggest the absence of a quorum. adopted, it will stay in the bill—Amer- yes or no on an issue. It basically just The PRESIDING OFFICER. The ican citizens would be prohibited from throws the rights of citizens groups out clerk will call the roll. discussing on television or radio a can- of the political ring. It throws them The bill clerk proceeded to call the didate’s voting records and positions right out of the ring. I believe that is roll. within 60 days before a general election wrong and I think it is also unconstitu- Mr. MCCONNELL. Mr. President, I or 30 days before a primary. tional. ask unanimous consent that the order That is right, Mr. President, and It represents a direct violation of the for the quorum call be rescinded. Members of the Senate. It would be il- people’s right to free political speech, The PRESIDING OFFICER (Mr. legal for citizens of this country, at the the right guaranteed to us by the first CRAPO). Without objection, it is so or- most crucial time, when free speech amendment of the Bill of Rights in the dered. matters the most, when political Constitution of the United States of Mr. MCCONNELL. Mr. President, we speech matters the most—that is, right America. expect the group that has been working before an election—this Congress would The language in this bill picks the on a compromise on the hard money be saying, and the ‘‘thought police’’ time when political speech is the most contribution limit to come back to the would be saying, the ‘‘political speech important and restricts who can use floor at some point in the next hour or police’’ would be saying that you can- that political speech, and who can en- so. Rather than sit around and churn, not mention a candidate’s name; you gage in that political speech. it is agreeable to both sides for Senator cannot criticize that candidate by Let me tell you an example from the DEWINE, who will have the next amend- name. real world. It is an example that could It silences the voices of the people. It ment after we finish the disposition of have involved me. I have been a pro- silences them at a time when it is most the Thompson and Feinstein matter, to ponent for something in Ohio we refer important for those voices to be heard. go on and lay his amendment down, to as the Darby Refuge. It would be a It restricts citizens’ ability to use the which he can set aside when those in- wildlife refuge in central Ohio. I won’t broadcast media to hold incumbents volved in the discussions come back to trouble or bother Members of the Sen- accountable for their voting records. It the floor. He can lay down his amend- ate now with the reasons why I have says essentially that the only people ment and begin the discussion. I be- been a strong advocate for this, but I who have a right to the most effective lieve that is all right with the Senator have been. I think it is the right thing from Connecticut. form of political speech, the only peo- ple allowed to use television or radio to to do. Mr. DODD. Yes. What I suggest is There are also citizens in the State of freely express an opinion or to take a that this requires unanimous consent Ohio who live in that area of the State stand on an issue when it counts, when as we go along. who don’t think it is such a good idea. it is within days of an election, are the I ask unanimous consent that the They have exercised their first amend- Senator from Ohio be recognized for a candidates themselves and the news media. But under the way the bill is ment rights time after time to explain half hour for the purpose of offering his to me and to other citizens in Ohio who amendment and speaking on his written now, not the people—just can- didates and the news media. Everyone are driving down the highway that it is amendment, and that at the hour of not such a good idea, and that this pro- 3:30, the Senate would revert to a else would be silenced by this unconsti- tutional, arbitrary line. posed wildlife refuge is not the thing to quorum call. do. We have seen signs up—and I think The PRESIDING OFFICER. Is there Let’s suppose for a minute that title they are still up—which say ‘‘No objection? II stays in the bill and it becomes law. Darby, Dump DeWine.’’ We have seen Without objection, it is so ordered. Under this scenario, if you are a can- The Senator from Ohio is recognized didate running for Federal office and it signs that say ‘‘Get Mike DeWine Out until the hour of 3:30. is 60 days before the election, yes, you of my Backyard.’’ That was on a T- shirt. Other signs have been around AMENDMENT NO. 152 can go on the radio or the local tele- also. Mr. DEWINE. Mr. President, I send vision station and broadcast your mes- sage. If you are lucky enough to be Dan Obviously, I didn’t particularly like an amendment to the desk. the fact that these signs were there. The PRESIDING OFFICER. The Rather, Tom Brokaw, or Peter Jen- What was my response to people clerk will report. nings, or the person who anchors the 6 when they said, What about those The assistant legislative clerk read o’clock news or 7 o’clock news in Day- signs? I tried to explain why I was for as follows: ton, OH; or in Steubenville, OH; or in Cleveland, you can also talk about the the Darby, but I also said: The first The Senator from Ohio [Mr. DEWINE], for amendment is there; it is alive and himself, Mr. HATCH, Mr. HUTCHINSON, Mr. issues and candidates, and you can talk BROWNBACK, and Mr. ROBERTS, proposes an about them together. You can talk well, and people are exercising their amendment numbered 152. about the candidate’s voting record. constitutional rights. (Purpose: To strike title II, including section But if you don’t fall into either one Let us suppose this citizens group— 204 of such title, as added by the amend- of these two categories—if you are part actually there are two formal citizens ment proposed by Mr. Wellstone (Amend- of a citizens group wanting to enter the groups that oppose the Darby and have ment No. 145) political debate and engage in mean- been very vocal about it. Let us sup- Beginning on page 12, strike line 14 and all ingful discourse, using the most wide- pose that within 60 days prior to the that follows through page 31, line 8. sweeping medium for reaching the peo- last November election—I was up for Mr. DEWINE. Mr. President, this is a ple which is TV, under this provision reelection last November —let us sup- very simple amendment, which I will you cannot do that. You simply cannot pose they had put some money to- explain in just a moment. I offer it on enter the debate using television or gether, and let us suppose they went to behalf of myself, Senator HATCH, Sen- radio as a mode of communication. the Columbus TV stations and the Day- ator HUTCHINSON from Arkansas, Sen- Title II of this bill makes that ille- ton TV stations. Let us also suppose ator BROWNBACK, and Senator ROBERTS. gal. So if you would go in to buy an ad this title II was law. Our amendment is very simple. It is and say you want to criticize where the Let us suppose they took their a motion to strike title II, the ad mentions the name of a candidate money and went to buy an ad, and Wellstone-Snowe-Jeffords provision who is up for election within that 60- what they wanted to talk about in that from the underlying McCain-Feingold day period, the local broadcaster would ad was why the refuge was a bad idea. bill. have to turn to you and say, no, he Let us suppose also they wanted to Mr. President, this amendment is cannot accept that. It is illegal because convey another message, and that mes- necessary because title II draws an ar- the U.S. Congress has said it is illegal. sage was: Call Senator MIKE DEWINE

VerDate 28-MAR-2001 03:40 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.054 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3025 and tell him he is wrong. Call Senator cannot deny them the ability to com- free exercise thereof; or abridging the free- MIKE DEWINE and tell him that you op- municate through television and radio dom of speech, or of the press; or the right of pose the refuge and you think he during the time period most vital to the people peaceably to assemble, and to pe- tition the Government for a redress of griev- should as well. deciding the outcome of an election, ances. I would not have liked that. It prob- the time when they can have the most I repeat, ‘‘Congress shall make no ably would have irritated me. But they impact. We should not deny them a law . . . abridging the freedom of have a constitutional right to do that voice in the political debate, but, un- if they want to do it. speech. . . .’’ fortunately, title II effectively does These are very simple words, but Under the bill as now written, they just that. they are some of the most powerful and could not do that. The TV station in Ultimately, political speech is di- certainly most important words in the Dayton or the TV station in Columbus rectly tied to electoral speech. We can- Bill of Rights and in our Constitution. would have had to turn to them and not escape that. We cannot escape, nor I am certain that my colleagues in say: Oh, no, you cannot say that; there should we try to escape, the fact that the Senate all realize our Founding Fa- are only certain things you can say. our Constitution protects the rights of thers, when crafting our Bill of Rights You can talk about the refuge being a people to support or to criticize their and our first amendment protections, bad idea, but you cannot mention MIKE Government or the people running for had political speech—political speech DEWINE’S name. Federal office. The founders of this specifically—in mind. They knew how That is when it would become appar- country recognized that. They knew important and vital and necessary free ent to these citizens that their first from their own personal experience in speech is to our political process and to amendment rights were being abridged, forming this Nation that political the preservation of our democracy. and the person who ran the TV station, speech is of the highest value, particu- They knew that democracy is stifled by the general manager, would have had larly during the election season, and it muzzles and gags. They knew that free to tell them: Congress said you cannot must be protected. speech was necessary for our political run this type of ad. I submit that is Given that, the last thing we should system—our open, free political sys- wrong. be doing is restricting 60 days before an tem—to function and, yes, to flourish. As much as those of us who have been election the people’s right to get the They knew that liberty without free in public office and who have faced word out to voters about the issues and speech is really not liberty at all. tough elections do not like criticism, about the candidates. Such a restric- We all understand that none of our as much as sometimes we think polit- tion is absurd. Such a restriction is rights is absolute. In fact, there are ical ads that attack us are unfair, as wrong. Such a restriction is blatantly, constitutionally acceptable limits on much as we sometimes think they dis- certifiably unconstitutional. political speech. For example, the Su- tort, as much as sometimes we think I realize that criticism, very often preme Court has ruled that the govern- they only tell half the story, that is part of political speech, makes incum- ment has an interest in regulating po- just part of the political process. That bents uncomfortable. It makes us all litical speech when there is a clear and is what the first amendment is all uncomfortable. I know this. I have present danger that the speech will re- about. been there. Do I like to be criticized? sult in the imminent likelihood of vio- The fact is that today in a State such No. Does anyone like to be criticized? lence. Also, the Court has said that def- as Ohio, my home State, if you want to No. Do we like to see our voting record amation laws apply to political can- reach the people of the State, there is picked apart? No. didates, so as to protect them from really only one way to effectively do it, The fact remains that no matter how statements that are knowingly false. and that is the use of television. You much those in public office do not like In such situations, the government has have to be on the air, and you have to to hear negative political speech, our a compelling interest in restricting the get your message across. That is true Constitution protects that very speech. speech. I ask my colleagues: What is whether you are running for office and Federally elected officials are here to the government’s overriding and com- you are the candidate or whether you serve the people, and the people de- pelling interest in restricting core po- are a group of citizens who decide they serve the right to cheer us or to chas- litical speech 60 days or less from an want to convey a message, they feel tise us, particularly during an election election—at the time most crucial to strongly about an issue and want to campaign. the public’s interest in hearing and link that issue with a person who is Are we, as Members of this body, be- learning about candidates and their po- running for office. Today they can do coming the political speech police? Are sitions and incumbents and their vot- that. The way the bill is now written, we becoming the guardians of incum- ing records? How will restricting the they cannot. bent protection? Are we so worried most important speech at the most im- The fact is, given today’s national about tough criticism from outside portant time further our election proc- political discourse in the modern age of groups, American citizens? Are we so ess and political system? It clearly will technology, television and radio play concerned about what we consider to not. the primary, if not the key, role in the be unfairness and the potentially mis- The bottom line, Mr. President, is spreading of political messages. The leading nature of their message that that core political speech is different whole reason we use the names of can- we are willing to curtail their basic, from other forms of speech. It lies at didates in political speech on television constitutional, first amendment the heart of the first amendment and is to emphasize policy positions and al- rights? deserves the highest—the utmost— ternative policy options. Doing so en- I hope not, and I hope we adopt this level of protection. To that extent, I ables people to evaluate and support or amendment and pull back from this in- agree with Justice Thomas who said criticize incumbents’ voting records fringement on people’s constitutional that political speech is the very speech and their positions on issues. That is rights. We all should be offended by the that our founding fathers had in mind the basis, the very essence, of political attempt to do that. when actually drafting our Bill of speech and debate. The fact is that the limits imposed Rights and our first amendment pro- Messages about the candidates, about by title II on political speech, limits on tection. Justice Thomas further argued their voting records and their positions legitimate political discourse, debate, that the key time for political speech on the issues, speak louder and have a and discussion will hurt voters. The is during campaigns. He wrote: greater impact on voters than just ge- voters will have less opportunity to The Founders sought to protect the rights neric issue ads about Social Security make informed choices in elections. It of individuals to engage in political speech or about Medicare, tax cuts, or what- is the voters and the public who ulti- because a self-governing people depend upon ever is the issue of the day. mately will lose. the free exchange of political information. Constitutionally, we cannot deny Allow me to read directly from the And that free exchange should receive the citizens groups access to the most ef- Bill of Rights—and we are all familiar most protection when it matters the most— fective means of reaching the largest with it—amendment I: during campaigns for electrive office. number of people for the least amount Congress shall make no law respecting the The Supreme Court, in Buckley v. of money, and that is TV and radio. We establishment of religion, or prohibiting the Valeo, emphasized the importance of

VerDate 28-MAR-2001 03:40 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.059 pfrm12 PsN: S28PT1 S3026 CONGRESSIONAL RECORD — SENATE March 28, 2001 protecting political speech. The Court American citizen, and you don’t like Thompson amendment, and a vote to wrote: what I am saying today or what this occur thereon shortly after the debate The First Amendment denies government amendment does, or what my vote will is concluded. the power to determine that spending to pro- be on final passage of this bill, under The PRESIDING OFFICER. Does the mote one’s political views is wasteful, exces- this bill, as currently written, you Senator have a unanimous consent re- sive, or unwise. In the free society ordained could not talk about any of this if it quest? by our Constitution, it is not the govern- were right before a Federal election. Mr. DODD. No. We are just going to ment, but the people—individually, as citi- proceed in this regard. zens and candidates, and collectively, as as- You could not use the airways and the sociations and political committees—who TV and radio to criticize me or to talk The PRESIDING OFFICER. The Sen- must retain control over the quality and about this vote and to talk about this ator from Tennessee is recognized. range of debate on public issues in a political amendment. If we accept this, it will Mr. THOMPSON. Mr. President, I campaign. silence a citizen’s ability to tell the think the Senator from Connecticut is The Court was telling Congress, es- public about our voting records. correct. Senator FEINSTEIN and others sentially, to stay out. It was saying What this language says is that we and I have been meeting, talking about don’t diminish the first amendment are afraid to let people tell the outside how we might come together for a uni- rights of citizens and organizations to world what we do in the Senate. We fied modification of my amendment. As participate in political debate. Don’t can’t do that. Rather, I believe we this body knows, my amendment was restrict the means by which the people must protect the rights of the people. not tabled. Senator FEINSTEIN’s amend- of this nation make informed decisions We must preserve our Constitution. We ment was not tabled. That was the about candidates running for federal must not let that great Constitution, basis for our discussion. office. that great Bill of Rights, that first We acknowledge readily that it was The fact is, Mr. President, in order to amendment be chipped away by efforts certainly appropriate to increase the embrace the freedoms guaranteed by clearly aimed at protecting the self-in- hard money limits in certain impor- the first amendment, we must allow terests of the incumbent political can- tant categories. others to exercise those freedoms. Title didates. To do any less, as we change We had a full discussion of those cat- II runs counter to that, and in the this, as we amend it, to do any less egories of concerns and desires on ei- process, violates our Constitution. would fly in the face of our democracy ther side. Title II hugely undercuts the and the American people whom we are Pending the language and subject to McCain-Feingold campaign finance re- here to serve. comments of my distinguished col- form bill. It has turned the campaign I suggest the absence of a quorum. league from California, I would like to finance debate on its head. It has The PRESIDING OFFICER. The basically outline the highlights of the turned the debate into a clear struggle clerk will call the roll. crucial elements of this modification. over the soul of the first amendment, The legislative clerk proceeded to The individual limitation to can- and ultimately, the preservation of our call the roll. didates, which now stands at $1,000, democracy. Mr. DOMENICI. Mr. President, I ask will be increased to $2,000 and indexed. If we are to protect and preserve our unanimous consent the order for the The PAC limitation of $5,000 under cur- democracy, we must allow the people quorum call be dispensed with. rent law stays at $5,000. The State local to be heard. Voters cannot make in- The PRESIDING OFFICER. Without party committees, which is now $5,000 formed decisions about candidates objection, it is so ordered. a calendar year under current law, will when political speech—when ideas and Mr. DOMENICI. I ask unanimous go to $10,000 per year. The contribution information about candidates—is re- consent I may proceed as in morning to national parties, which under cur- stricted at the most pressing time. As business for 2 minutes. rent law is limited to $20,000 a year, voters, we make better decisions when The PRESIDING OFFICER. Without will go to $25,000 a year and be indexed there are more voices, more informa- objection, it is so ordered. at the base. tion, and more ideas on the table. Ideas The Senator from New Mexico is rec- The aggregate limit, which is now competing with one another. That is ognized. $25,000 per calendar year under current the essence of democracy. Mr. DOMENICI. I thank the Chair. law, will go to $37,500 a year and be That is the basis for political debate (The remarks of Mr. DOMENICI per- similarly indexed. and challenges to public policy. taining to the introduction of S. 638 are We will double the amount that na- That is the basis for how we make located in today’s RECORD under tional party committees can give to changes in our society—for how we ‘‘Statements on Introduced Bills and candidates from $17,500 to $35,000 and be make the world a better place. With all Joint Resolutions.’’) similarly indexed. of the complexities of today’s election Mr. DODD. Mr. President, I suggest A part of our agreement also has to laws and competing campaign finance the absence of a quorum. do with the amendment originally from reform plans, I think that Ralph Win- The PRESIDING OFFICER. The Senator SCHUMER, that was later incor- ter, the respected judge and former law clerk will call the roll. porated into the Feinstein amendment, professor, said it best when he noted The legislative clerk proceeded to having to do with the 441 situation he that the greatest election reform ever call the roll. described pending the Supreme Court conceived was the first amendment. He Mr. DODD. Mr. President, I ask unan- decision in the Colorado case; that we was right. Unfortunately, title II imous consent the order for the expect a part of our agreement with re- strikes at the first amendment by re- quorum call be dispensed with. gard to this modification is that it will stricting the dissemination of informa- The PRESIDING OFFICER. Without not be a part of this Thompson-Fein- tion to voters and the open exchange of objection, it is so ordered. stein modification but will get a vote ideas that we so much treasure. Mr. DODD. Mr. President, I now sug- separately shortly after the vote on The exchange of those ideas, Mr. gest a period of, say, 15 minutes for this. President—through core political general discussion on an agreement I believe that basically outlines the speech, whether it’s two years, two that has been reached between Senator major provisions of the agreement. months, two weeks, or two days before THOMPSON and Senator FEINSTEIN. On I relinquish the floor and ask my dis- an election—is a prerequisite for demo- the purpose of that discussion, why tinguished colleague from California to cratic governance. That is the basis of don’t I yield to Senator THOMPSON of make any statement she cares to. our Constitution. We in Congress have Tennessee to begin the discussion and The PRESIDING OFFICER. The Sen- an obligation to protect that Constitu- then Senator FEINSTEIN as time per- ator from California. tion—to protect our first amendment mits, as far as this agreement, or oth- Mrs. FEINSTEIN. Thank you very and the free flow of ideas. That, after ers who may want to talk about it. My much, Mr. President. I thank the Sen- all, is the spirit—the essence—the hope would then be we would have leg- ator from Tennessee, the Senator from foundation of our democracy. islative language which would include Wisconsin, the Senator from Arizona, What all of this means is simply this: this compromise which we would be the Senator from Connecticut, the sen- If you are a citizens group, you are an able to offer as a modification of the ior Senator from Mississippi, as well as

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\A28MR6.008 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3027 the senior Senator from New York—all In my view, and I hope in Senator the desk very shortly. It might take a who participated in this negotiation. THOMPSON’s view, this gives us an op- couple moments. Essentially the question was around portunity to meet the future and to see Mr. DODD. To save a little time, if whether we could bring enough people that there is a modest increase. It is my colleague would yield, Mr. Presi- together to settle what is a question not a tripling of the individual limit. It dent, I have been looking at a couple that has become a major problem; that is simply increasing it from $1,000 to drafting notes from legislative counsel. is, how do we account for inflation in $2,000 and then indexing it to inflation, I have spoken on numerous occasions hard money because it is likely we will but that there is a the basis now, we over the last several days of my con- not address this issue for another 20 or hope, where both sides can come to- cerns of raising the hard dollar limits 30 or 40 years. Therefore, this is a bill gether and vote for this bill. that individuals may contribute on the that has to stand the test of time. I, for one, happen to think the index- theory that I do not think there is too Many of us are deeply concerned that ing is healthy. I think it gives us an little money in politics, on the con- once you restrict soft money in cam- opportunity that we don’t come back trary, I think there is too much paigns and in parties, you create an op- again, to reopen the bill, but that we money. We are shutting down the door portunity for this soft money to go live by the bill as it is finally adopted. of soft money. Fine, as it should be. into the issue of advocacy of inde- I really thank the Senator from Mis- However, my concern is that we are pendent campaigns. It is undisclosed. It sissippi who began this fight with me. also banging open the back door with is unregulated. So what we want to try I thank the Senator from Tennessee for hard dollars amounts. To the average to avoid as much as we can is a trans- our ability to sit down together and citizen in this country, there is no dis- fer of millions of dollars of soft money have a turkey sandwich and also come tinction between hard and soft money. from campaigns into millions of dollars to this agreement. I think it is a very We make the distinction for the rea- of soft money into independent cam- important step forward for the bill. sons we are all aware of. What I believe paigns. I thank the Senators from Wisconsin is people are sort of disgusted with the The way we do this is by trying to and Arizona for their persistence in volume and amount of money in poli- find a modest vehicle by which we can moving this bill along. tics. This agreement is one I am going come together and agree on how much I yield the floor. to support. I do so reluctantly. How- an individual contribution limit should May I ask if the modification is ever, I support the underlying McCain- be raised. I am very pleased to say that available? Feingold bill. I think it is very impor- contribution limit in the bipartisan Mr. DODD. As my colleague spoke, tant that we take steps forward to agreement is $2,000. That $2,000 would an angel brought it. The modification change the present campaign finance be indexed, as will the other indexes I has arrived. system. I regret we are adding to the will speak about in a moment, for in- Mr. President, I suggest the absence hard dollar limits on contributions flation from a baseline that is provided of a quorum. that individuals can make to can- for in the statute. The PRESIDING OFFICER. The We came to agreement on the PACs— clerk will call the roll. didates, national political parties, and that PACs should remain the same; The senior assistant bill clerk pro- overall aggregate annual limit. I come from a small State. I rep- they should not be increased in ceeded to call the roll. resent a State of 3.5 million people. My amounts; they should remain at $5,000 Mr. MCCONNELL. Mr. President, I colleague from California represents a a calendar year. ask unanimous consent that the order We came to agreement on continuing for the quorum call be rescinded. State 10 times that size. I recognize State and local parties at the same The PRESIDING OFFICER (Mr. that there are distinctions between amount as McCain-Feingold—$10,000. COCHRAN). Without objection, it is so these States. For example, cam- That was clear in the Thompson ordered. paigning is far more costly in Cali- amendment, the Feinstein amendment, UNANIMOUS CONSENT AGREEMENT fornia than it is in a State such as my as well as the McCain-Feingold bill. Mr. MCCONNELL. Mr. President, own. I accept there needs to be some Also, where we had the major discus- under the provisions of the consent increase. sion—I say a difference of viewpoint— agreement, with the concurrence of The modification Senator THOMPSON was on the aggregate limit and the na- Senator FEINSTEIN, myself, and Sen- graciously worked out with Senator EINSTEIN tional party committees. ator DODD, Senator THOMPSON will now F exceeds what I would do. It The people who were negotiating are send a modification to the desk. is certainly less than what was offered people who wanted to see a bill. And it In addition, I ask unanimous consent by our colleague from Nebraska, Sen- was very difficult because each of our that the Feinstein amendment be with- ator HAGEL. It was less than what oth- proposals was at the outer limits of our drawn and there now be 30 minutes of ers wanted as well. It reduces substan- own political party. So it was very dif- debate equally divided in the usual tially the aggregate amounts that were ficult to find a way to move forward. form prior to the vote on the Thomp- originally being offered at $75,000 per We did, however, in the Thompson son amendment, as modified, with no year or $150,000 a couple, down to amendment, which had $50,000 per cal- amendments in order to the amend- $37,500 per calendar year. That still is endar year for the aggregate limit, and ment. I further ask consent that fol- too much, in my view, but it is a lot it was agreed that we would drop that lowing the vote, the pending DeWine less than it otherwise could have been. There are some other changes dealing to $37,500 per year for the aggregate amendment be set aside, Senator SCHU- with individual contributions to State limit and that we would drop out of MER be recognized to offer an amend- that the split I had proposed earlier in ment, and there be 60 minutes equally and local party committees and the na- my statement. divided in the usual form. Finally, I tional parties. However, the PAC limits With respect to national parties, that ask consent that following the use or remained the same. We provided index- would go from $20,000—just by $5,000 a yielding back of the time, the Senate ing for inflation. Again, this is some- year—to $25,000. proceed to a vote on the Schumer thing I have reservations about. I rec- Additionally, there are four things in amendment, with no amendments in ognize that in any legislative body, if this bill that are indexed. Again, the order to the amendment. you are trying to put together a bill indexing is not compounded. It goes to The PRESIDING OFFICER. Is there where 100 different people have some- the baseline in the statute for the can- objection? thing to say about it, and you have to didate, for the national party per year The Chair hears none, and it is so or- produce 51 votes, then you are going to amount, and for the aggregate amount. dered. have to give up something if you are Also, there is a provision in Thomp- The amendment (No. 151), as modi- going to accomplish the overall goal. son we agreed to which would double fied, was withdrawn. My overall goal has been for years to the amount that national parties can Mr. THOMPSON addressed the Chair. get McCain-Feingold adopted into law. give to candidates from $17,500 to The PRESIDING OFFICER. The Sen- However, it was not a goal I was going $35,000. That would be indexed on the ator from Tennessee is recognized. to accept regardless of what was in the same baseline formula as the other Mr. THOMPSON. Mr. President, it is bill. Had we gone beyond these indi- items. my intention to send a modification to vidual contribution limits we had

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.062 pfrm12 PsN: S28PT1 S3028 CONGRESSIONAL RECORD — SENATE March 28, 2001 agreed to in these modifications, I years and such increases shall remain in ef- Tennessee is trying, through negoti- would have had a very difficult time fect for the 2-year period beginning on the ating an increase in the hard money supporting the McCain-Feingold bill. first day following the date of the last gen- limits for parties and providing index- I will support McCain-Feingold. I eral election in the year preceding the year in which the amount is increased and ending ation, to help compensate for some of urge my colleagues to do so. We have on the date of the next general election.’’; this dramatic loss of funds that all of other amendments to address on both and the party committees are going to ex- sides. The Members have ideas they (2) in paragraph (2)(B), by striking ‘‘means perience 30 days after this bill becomes want to add to this bill. In my view, the calendar year 1974’’ and inserting law. this is a worthwhile effort. I commend ‘‘means— I thank the Senator from Tennessee my colleague from Tennessee—he is a ‘‘(i) for purposes of subsections (b) and (d), for the effort he made. I wish we could noble warrior, a good fighter and de- calendar year 1974; and have done more. I hear there are plenty bater, and a good negotiator—and our ‘‘(ii) for purposes of subsections (a)(1)(A), on the other side who wish we would (a)(1)(B), (a)(3), and (h) calendar year 2001’’. colleague from California who likewise (e) EFFECTIVE DATE.—The amendments have done less. This is at least a step in has championed a good cause. I thank made by this section shall apply to contribu- the right direction. RUSS FEINGOLD and JOHN MCCAIN. I tions made after the date of enactment of We are going to have a massive know this goes beyond even what they this Act. shortage of funds in all of the national would like to do. We recognize we can’t Mr. THOMPSON. I yield 5 minutes to party committees to help our can- do everything exactly as we would like the Senator from Kentucky. didates. It is going to be a real scram- to do it. I believe this modification Mr. MCCONNELL. Mr. President, I, ble. Hopefully, this will help a bit still is within the realm of the McCain- too, commend the Senator from Ten- make up at least a fraction of what is Feingold restrictions. For those rea- nessee. I would love to have gone fur- going to be lost on both sides that will sons, I will support the bill. ther to really provide full indexation be available for candidate support. AMENDMENT NO. 149, AS MODIFIED for the limits that were established in I intend to support the amendment of The PRESIDING OFFICER (Mr. 1974, 26 years ago, and were thought to the Senator from Tennessee. BROWNBACK). Under the previous order, be appropriate at that time. But any Mr. THOMPSON. Mr. President, do I the Senator from Tennessee has the increase in hard money limits is a step control the time? floor to send the modification to the in the right direction. The PRESIDING OFFICER. The Sen- desk. To give you an idea of what the world ator controls 111⁄2 minutes. Mr. THOMPSON. Mr. President, the without soft money is going to look Mr. THOMPSON. I ask the Senator modification has been sent to the desk. like for our national parties, we took a from Arizona if he wishes to be heard The PRESIDING OFFICER. Under look at the 2000 cycle, the cycle just at this time. the previous order and without objec- completed, and made an assumption Mr. MCCAIN. One minute. tion, the amendment is so modified. that the party committees would have Mr. THOMPSON. I yield 1 minute to The amendment, as modified, is as had to operate in 100 percent hard dol- the Senator from Arizona. follows: lars, which is the way they will have to Mr. MCCAIN. Mr. President, I want On page 37, after line 14, insert the fol- operate 30 days after this bill becomes to take a minute to thank Senator lowing: law. The Republican National Com- FEINSTEIN and Senator THOMPSON. I SEC. . MODIFICATION OF CONTRIBUTION LIM- mittee would have had 37 million net have been privileged to see negotia- ITS. hard dollars to spend had we converted tions and discussions between people of (a) INCREASE IN INDIVIDUAL LIMITS.—Sec- the last cycle to 100 percent hard dol- good faith and a common purpose. I tion 315(a)(1) of the Federal Election Cam- lars. Under the current system, they was privileged to observe that in the paign Act of 1971 (2 U.S.C. 441a(a)(1)) is case of Senator THOMPSON and Senator amended— had 75 million net hard dollars to FEINSTEIN. The Senator from Okla- (1) in subparagraph (A), by striking spend. So the Republican National ‘‘$1,000’’ and inserting ‘‘$2,000’’; and Committee would go from 75 million homa, Mr. NICKLES, was very impor- (2) in subparagraph (B), by striking net hard dollars that it had to spend tant, as was the Senator from Michi- ‘‘$20,000’’ and inserting ‘‘$25,000’’. last cycle down to $37 million. gan, Mr. LEVIN, as well as Senator (b) INCREASE IN AGGREGATE INDIVIDUAL The Democratic National Com- HAGEL of Nebraska and others, as well LIMIT.—Section 315(a)(3) of the Federal Elec- mittee, in a 100-percent hard money as the Senator from New York, Mr. tion Campaign Act of 1971 (2 U.S.C. world, last cycle, would have had 20 SCHUMER. I know I am forgetting some- 441a(a)(3)), as amended by section 102(b), is million net hard dollars to spend on one in this depiction. amended by striking ‘‘$30,000’’ and inserting ‘‘$37,500’’. candidates. In fact, it had $48 million I am proud that people compromised (c) INCREASE IN SENATORIAL CAMPAIGN COM- under the current system. So the without betraying principle to come to MITTEE LIMIT.—Section 315(h) of the Federal Democratic National Committee would a common ground so we can advance Election Campaign Act of 1971 (2 U.S.C. go from 48 million net hard dollars the cause of this effort. I express my 441a(h)) is amended by striking ‘‘$17,500’’ and down to 20 million net hard dollars, if deep and sincere appreciation to those inserting ‘‘$35,000’’. you convert the last cycle into a 100- Senators who made this happen, as (d) INDEXING OF CONTRIBUTION LIMITS.— percent hard money world. well as our loyal staffs. Section 315(c) of the Federal Election Cam- Finally, let me take a look at the Mr. THOMPSON. Mr. President, I paign Act of 1971 (2 U.S.C. 441a(c)) is amend- ed— two senatorial committees. The Repub- yield 2 minutes to the Senator from (1) in paragraph (1)— lican Senatorial Committee last cycle Wisconsin. (A) by striking the second and third sen- under the current system had 14 mil- The PRESIDING OFFICER. The Sen- tences; lion net hard dollars to spend on behalf ator from Wisconsin. (B) by inserting ‘‘(A)’’ before ‘‘At the be- of candidates. In a 100-percent hard Mr. FEINGOLD. Mr. President, I ginning’’; and money world, they would have had thank the Senators who took the lead (C) by adding at the end the following: about 1.2 million net hard dollars to in the negotiations, especially the Sen- ‘‘(B) Except as provided in subparagraph ator from Tennessee who, again, has (C), in any calendar year after 2002— spend for candidates. Our colleagues on ‘‘(i) a limitation established by subsections the other side of the aisle, the Demo- had so much to do with this reform, (a)(1)(A), (a)(1)(B), (a)(3), (b), (d), or (h) shall cratic Senatorial Committee, in the and the Senator from California. They be increased by the percent difference deter- current system had 6 million net hard were extremely skilled at bringing us mined under subparagraph (A); dollars to spend on their candidates. In together. I thank Senator MCCAIN, ‘‘(ii) each amount so increased shall re- a 100-percent hard money world, they Senator COCHRAN, who was part of the main in effect for the calendar year; and would have had 800,000 hard dollars to effort, Senator FEINSTEIN, Senators ‘‘(iii) if any amount after adjustment have spent on all of their 33 candidates. DODD, LEVIN, SCHUMER, of course, Sen- under clause (i) is not a multiple of $100, The one thing that is not in debate, ators REID and DASCHLE, Senators such amount shall be rounded to the nearest multiple of $100. there is no discussion about it, this is NICKLES and HAGEL, who were all in- ‘‘(C) In the case of limitations under sub- going to create a remarkable, a huge volved. sections (a)(1)(A), (a)(1)(B), (a)(3), and (h) in- shortage of dollars for the party com- I join in the remarks of the Senator creases shall only be made in odd-numbered mittees. At least the Senator from from Connecticut. This particular

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.065 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3029 amendment doesn’t move in the direc- Feingold Kohl Roberts Mr. SCHUMER. How much time do I Feinstein Kyl Rockefeller tion that fits my philosophy. I believe Fitzgerald Landrieu Santorum have, Mr. President? we should stay where the levels are, as Frist Leahy Schumer The PRESIDING OFFICER. Under do many of my Democratic colleagues. Graham Levin Sessions the previous order, the two sides have I very regretfully came to the conclu- Gramm Lieberman Shelby 30 minutes each to debate the amend- Grassley Lincoln Smith (NH) sion that we had to do it. I realized if Gregg Lott Smith (OR) ment. we are going to get at the No. 1 prob- Hagel Lugar Snowe Mr. SCHUMER. Mr. President, I am lem in our system today, the loophole Hatch McCain Specter here to urge my colleagues to support Helms McConnell Stevens that has swallowed the whole system, Hutchinson Mikulski Thomas an amendment that is of great impor- as Senator THOMPSON has said, we had Hutchison Murkowski Thompson tance to the future of McCain-Feingold to make this move. Inhofe Nelson (FL) Thurmond and to the bill in general that we are I am grateful that we were able to Inouye Nelson (NE) Torricelli debating, particularly in light of the Jeffords Nickles Voinovich keep the individual limit increase to a Kennedy Reid Warner fact we have just raised hard money reasonable level. Although I would pre- limits. Let me explain to my col- fer that it not be indexed, I will note, NAYS—16 leagues what this is all about. at least we won’t have to hear anymore Baucus Hollings Sarbanes Mr. President, may we have order. Biden Johnson Stabenow that it isn’t indexed for inflation be- Boxer Kerry Wellstone The PRESIDING OFFICER. The Sen- cause it is. So the next time Senators Conrad Miller Wyden ate will be in order. have to deal with this issue 20 years Dorgan Murray The Senator from New York. from now or 30 years from now, at least Harkin Reed Mr. SCHUMER. Mr. President, can I that very troubling and persistent ar- The amendment (No. 149), as modi- suspend for a minute? I believe they gument will not be there. fied, was agreed to. have read the wrong amendment at the I thank all my colleagues and look The PRESIDING OFFICER. The Sen- desk. forward to the vote on the amendment. ator from Connecticut. I ask unanimous consent the pre- Mr. THOMPSON. How much time is Mr. DODD. Mr. President, again on vious amendment be withdrawn. remaining? the wings of angels, the Senator from The PRESIDING OFFICER. Without The PRESIDING OFFICER. The Sen- New York has arrived. objection, the amendment is with- ator from Tennessee controls 8 minutes The PRESIDING OFFICER. The Sen- drawn. 45 seconds. The Senator from Con- ator from New York is recognized to The amendment (No. 135) was with- necticut controls 11 minutes 30 sec- offer an amendment. drawn. onds. AMENDMENT NO. 135 AMENDMENT NO. 153 Mr. DODD. Mr. President, I don’t Mr. SCHUMER. Mr. President, I have Mr. SCHUMER. Mr. President, I have know of any other requests to speak. I an amendment at the desk. I ask for its an amendment at the desk. think people are familiar with this immediate consideration. The PRESIDING OFFICER. The issue. Does my colleague from Cali- The PRESIDING OFFICER. The clerk will report the amendment. fornia wish to be heard? clerk will report. The bill clerk read as follows: Mrs. FEINSTEIN. I think I have said The bill clerk read as follows: The Senator from New York [Mr. SCHUMER] what I needed to say. Maybe we can The Senator from New York [Mr. SCHUMER] proposes an amendment numbered 153. concede the rest of our time and have proposes an amendment numbered 135. Mr. SCHUMER. Mr. President, I ask a vote. Mr. SCHUMER. I ask unanimous con- unanimous consent the reading of the Mr. DODD. I am prepared to yield sent reading of the amendment be dis- amendment be dispensed with. back our time and go to a vote. We pensed with. The PRESIDING OFFICER. Without have other amendments on this side. The PRESIDING OFFICER. Without objection, it is so ordered. There are several over there. We have objection, it is so ordered. The amendment is as follows: to keep things going. The amendment is as follows: (Purpose: To condition the availability of Mr. THOMPSON. I am prepared to (Purpose: To express the sense of the Senate television media rates for national com- yield back our time. regarding the need for Congress to consider mittees of political parties on the adher- Mr. DODD. We yield back our time. and enact legislation during the 1st session ence of those committees to existing co- Mr. THOMPSON. Have the yeas and of the 107th Congress to study matters re- ordinated spending limits) nays been ordered? lated to voting in and administering Fed- On page 37, between lines 14 and 15, insert The PRESIDING OFFICER. Yes, the eral elections and to provide resources to the following: States and localities to improve their ad- SEC. ll. TELEVISION MEDIA RATES FOR NA- yeas and nays have been ordered. ministration of elections) Mr. THOMPSON. I suggest that we TIONAL PARTIES CONDITIONED ON On page 37, between lines 14 and 15, insert ADHERENCE TO EXISTING COORDI- proceed to a vote. the following: NATED SPENDING LIMITS. The PRESIDING OFFICER. The (a) AVAILABILITY OF TELEVISION MEDIA SEC. 305. SENSE OF THE SENATE. question is on agreeing to the amend- RATES.—Section 315(b)(2) of the Communica- (a) FINDINGS.—The Senate finds that— tions Act of 1934 (47 U.S.C. 315(b)(2)), as ment of the Senator from Tennessee, (1) the right to vote is fundamental under amended by this Act, is amended— Mr. THOMPSON, No. 149 as modified. the United States Constitution; (1) by striking ‘‘TELEVISION.—The charges’’ The clerk will call the roll. (2) all Americans should be able to vote and inserting ‘‘TELEVISION.— unimpeded by antiquated technology, admin- The assistant legislative clerk called ‘‘(A) IN GENERAL.—Except as provided in istrative difficulties, or other undue barriers; the roll. subparagraph (B), the charges’’; and (3) States and localities have shown great The PRESIDING OFFICER (Mr. (2) by adding at the end the following: interest in modernizing their voting and ‘‘(B) LIMITATIONS ON AVAILABILITY FOR NA- BROWNBACK). Are there any other Sen- election systems, but require financial as- TIONAL COMMITTEES OF POLITICAL PARTIES.— ators in the Chamber desiring to vote? sistance from the Federal Government; ‘‘(i) RATE CONDITIONED ON VOLUNTARY AD- The result was announced—yeas 84, (4) more than one Standing Committee of HERENCE TO EXPENDITURE LIMITS.—If the lim- nays 16, as follows: the Senate is in the course of holding hear- its on expenditures under section 315(d)(3) of ings on the subject of election reform; and [Rollcall Vote No. 55 Leg.] the Federal Election Campaign Act of 1971 (5) election reform is not ready for consid- YEAS—84 are held to be invalid by the Supreme Court eration in the context of the current debate of the United States, then no television Akaka Byrd Craig concerning campaign finance reform, but re- broadcast station, or provider of cable or sat- Allard Campbell Crapo quires additional attention from committees Allen Cantwell Daschle ellite television service, shall be required to before consideration by the full Senate. Bayh Carnahan Dayton charge a national committee of a political (b) SENSE OF THE SENATE.—It is the sense Bennett Carper DeWine party the lowest charge of the station de- of the Senate that the Senate should sched- Bingaman Chafee Dodd scribed in paragraph (1) after the date of the Bond Cleland Domenici ule election reform legislation for floor de- Supreme Court holding unless the national Breaux Clinton Durbin bate not later than June 29, 2001. Brownback Cochran Edwards committee of a political party certifies to Bunning Collins Ensign The PRESIDING OFFICER. The Sen- the Federal Election Commission that the Burns Corzine Enzi ator from New York is recognized. committee, and each State committee of

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.067 pfrm12 PsN: S28PT1 S3030 CONGRESSIONAL RECORD — SENATE March 28, 2001 that political party of each State in which What this would do, if the Court that the Supreme Court does rule. If we the advertisement is televised, will adhere to should rule favorably and uphold the should fail to pass this amendment, the expenditure limits, for the calendar year lower court, is very simple. It would which I know is subject to heated de- in which the general election to which the allow parties to go around and raise bate—the parties feel quite differently expenditure relates occurs, that would apply under such section as in effect on January 1, money in large, large amounts. After about this and I expect the vote will be 2001. the Feinstein amendment that has very close, but if we should fail to pass ‘‘(ii) RATE NOT AVAILABLE FOR INDEPENDENT passed, that would be $25,000 a year or it, I would say on the individual side, EXPENDITURES.—If the limits on expenditures $150,000 per 6-year Senate cycle. And not on the corporate and labor side, 80 under section 315(d)(3) of the Federal Elec- then with complete coordination, the percent, 90 percent of McCain-Feingold tion Campaign Act of 1971 are held to be in- party could give that money to any will be undone. valid by the Supreme Court of the United particular candidate. It will allow a couple to give, States, then no television broadcast station, The consequences are obvious. The through the party, $300,000 to a Senate or provider of cable or satellite television $1,000 or $2,000 limit that we now have service, shall be required to charge a na- candidate. It is true, of course, that the tional or State committee of a political would become much less important and party cannot solicit them and say that party the lowest charge of the station de- large donors could contribute, through we will, for sure, contractually almost, scribed in paragraph (1) with respect to any the national parties, obscenely large give the money to that candidate. But independent expenditure (as defined in sec- amounts of money to candidates. In ef- they can do virtually everything but. tion 301 of the Federal Election Campaign fect, the Court decision would, if the It would also allow a party to go to Act of 1971).’’. 441(a)(d) limits were lifted, pull the rug someone and say: Give us $100,000 over (b) FEDERAL ELECTION COMMISSION RULE- out from under McCain-Feingold, all the next few years and we will give MAKING.—Section 315(d) of the Federal Elec- tion Campaign Act of 1971 (2 U.S.C. 441a(d)) is the more so because of the increase we $25,000 to our four toughest races. amended by adding at the end the following: have made in hard money limits. The whole idea of McCain-Feingold ‘‘(4) If the limits on expenditures under You can call it hard, you can call it to stick to the $1,000 and the $2,000, or paragraph (3) are held to be invalid by the soft—it is large. The whole purpose of now the $2,000 and $4,000 limits, would Supreme Court of the United States, the getting rid of soft money was not that be undone, again constitutionality, Commission shall prescribe rules to ensure it was soft, per se, but rather it was so which seems to be the major argument that each national committee of political large that it was unlimited. Imagine, against this. party that submits a certification under sec- after passing McCain-Feingold and In the amendment is the severability tion 315(b)(2)(B) of the Communications Act of 1934, and each State committee of that po- having it signed into law—which I hope clause, and in that severability clause litical party described in such section, com- will happen—that the Supreme Court we say, of course, if this is thrown out, plies with such certification.’’. could make that ruling and then we ba- it will not affect the rest of the (c) SEVERABILITY.—If this section is held to sically go right back to the old days, McCain-Feingold bill. Some say that is be unconstitutional, the remainder of this where large contributions governed. not necessary. But we put it in there Act and amendments made by this Act, and That, in my judgment, would be a seri- just to deal with anyone who was not the application of the provisions and amend- ments to any person or circumstance, shall ous error on our part. That, in my satisfied with the general language in not be affected by the holding. judgment, would so undermine McCain- the bill. Mr. SCHUMER. Mr. President, this Feingold that we would have to be Second, on constitutionality, the amendment is vital to the effectiveness back here next year changing the law courts have ruled repeatedly that vol- of McCain-Feingold, particularly in again. untary limits may be placed on speech light of the increase in hard money I have heard colleague after col- to further other goals. limits which we have passed by a large league say we will not come back for 20 The underlying case is Buckley v. margin in the Thompson-Feinstein years. If the Court rules in favor of Col- Valeo which said that a government amendment. It is necessary because of orado Republican Federal Campaign benefit can be conditioned on a can- an impending Court decision. The Su- Committee, which most of those who didate’s voluntary agreement to forego preme Court has already heard the case have looked at the case believe they other sources of funding. The $1,000 and is about to issue a decision related will, we will not be back here in 20 limit on Buckley v. Valeo is very sim- to the 441(a)(d) limits. years; we may be back here in 20 ple. It has been in existence and upheld Let me first explain what the months. and would apply in this case. 441(a)(d) limits are, what the Court The amendment I have offered tries Another case in 1979 where the Presi- case is, what it does, and why it is so to ameliorate these conditions. In all dential limits were challenged is also important. As we all know, there are candor, it does not eliminate them, but applicable. It is called RNC, the Repub- 441(a)(d) limits, whereby a national it does make them better. It does it lican National Committee, versus the party—in this case the Democratic very simply by saying, if a candidate FEC. I believe it is a 1979 case before Senatorial Campaign Committee or the should wish to go above the 441(a)(d) the Supreme Court. There again it was National Republican Senatorial Com- limit, the 2 cents per voter in his or her stated that in return for limits on cam- mittee—can contribute a certain State, they cannot take advantage of paign contributions—in this case, the amount of money directly to a can- the low-rate television time that is Presidential limits, which every Presi- didate. There is complete coordination now offered in McCain-Feingold. dential candidate until George Bush of allowed between the party and the can- It is an incentive as many other in- this year abided by—the government didate by the recent Supreme Court de- centives—to have candidates abide by could confer benefit, in this case cision. That amount of money is lim- limits. Again, could a candidate still money. ited by the amount of voters in the violate those limits? Yes. They would The only difference with what we are State. It is 2 cents a voter, so it runs just pay a lot more for their television doing is instead of providing money to from a high of over $2 million in Cali- advertising, which of course is the No. benefit, they are providing low tele- fornia, $1.8 million in my State of New 1 expenditure in just about every hotly vision rates, which is in a sense money. York, down to a low in the State of contested race. It is perfectly clear, and it has been Wyoming and places such as that, prob- Some have brought up the issue of repeated by the courts, that a vol- ably no more than a couple of hundred constitutionality. Others have asked: untary limit on speech in exchange for thousand dollars. Why are we legislating this at the time another benefit that helps further that The case before the Supreme Court, when we do not even know how the same goal is constitutional. which is called FEC v. Colorado Repub- Court will rule? In answer to the sec- I know some have seen the Colorado lican Federal Campaign Committee, ond question, this amendment has no case. If they bring it up, I will rebut it. has been argued. There it has been ar- effect if the Court rules to keep the But I want to conclude before I yield gued that those limits should be lifted, 441(a)(d) limits. No one can go over my time by pleading with my col- that there should be no limit as to the them and the mandatory limit will be leagues to support this amendment. I amount of money a national party or- held as constitutional. That is just salute all those of us who have worked ganization can give to a candidate for fine. This amendment is designed to on McCain-Feingold. I salute both the the Senate or for the House. deal with the advent, the likely advent Senator from Arizona and the Senator

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\A28MR6.010 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3031 from Wisconsin for their leadership, tional parties will be able to spend un- Mr. DODD. Yes. If I may, Mr. Presi- the Senator from Kentucky, and the limited amounts on behalf of their can- dent, let me respond to my colleague Senator from Connecticut for con- didates. from Kentucky by saying that this ducting this debate in a fair, admi- However, these expenditures must amendment has been debated and dis- rable, and open fashion, and all the still be all hard dollars, raised under cussed. The Senator from New York others who have worked on this issue. the limits of FECA. has, I know, at on least three different Everyone sort of had a vested inter- As for concern that striking these occasions explained this amendment est in seeing that this amendment limits will lead to enormous amounts and the value of it. passes. I would like to see it pass. But of party money going into the system, I think we have had a pretty good de- it would be a shame if we pass the I would point out that in the 2000 cycle, bate. I recommend to my friend and amendment only to see it undone in Republican parties spent $28,000,000 on colleague from Kentucky that we have large part 3 months from now. It would all coordinated expenditures and a vote on or in relationship to the increase the cynicism of the public. It Democratic parties spent $20,000,000. Schumer amendment at 5:20. would increase for thousands of us who This is the total for all races—Presi- I believe there is a meeting for some believe in reform the view that nothing dential, Senatorial and Congressional— of our colleagues at the White House at could be done, and it would make it 470 races nation-wide. around 5:30. My hope would be we Senator SCHUMER also presented a harder to continue reform. It would be might have this vote before that meet- scenario where national parties are a ing occurred. That would give those close to a tragedy. mere pass-through for candidates. who would like to be heard on this After all the work done by so many, This is false for soft dollars. if the 441(a)(d) limits were lifted and For hard dollars it is called ear- amendment some time to come to the hard money could cascade into can- marking. floor and to express their views on this. didacies just the way soft money does Current law permits donors to ear- Mr. MCCONNELL. I say to my col- now, we would be making a major mis- mark contributions through national league from Connecticut, it would be take. party committees directly to be used helpful if it were even a little bit ear- I urge my colleagues to support this on a specific candidate’s behalf. How- lier, at 5:10 or 5:15. amendment. I reserve the remainder of ever, it is subject to the $1,000 con- Mr. DODD. We can do that. I will try my time. tribution limit. to accommodate you on that. The mes- The PRESIDING OFFICER. Who For example, if a donor gives $1,000 to sage has gone out. Why don’t I take a yields time? the RNC and directs it to a specific few minutes myself. Certainly my col- Mr. MCCONNELL. Mr. President, last candidate, the $1,000 is a contribution league from New York should have 5 week Senator SCHUMER stated that the to the candidate. minutes or so to respond to some of the Supreme Court’s decision in FEC v. However, if a donor gives $20,000 to arguments made. Colorado Republican Federal Campaign the DSCC and directs it to be spent on Let me say in relation to this amend- Committee could deluge the system behalf of a specific candidate, it is a ment, the Senator from New York, as with unlimited amounts of money $20,000 contribution to that candidate— he has done characteristically through- raised in enormous amounts through a violation of the contribution limits out his public career—certainly as long the national parties for specified cam- under FECA. as I have known him as a Member of paigns. This has been tried before and the other body and as a new Member of This statement was false. squarely rejected. this body—has literally discovered, in a As Senator SCHUMER recognized, the In 1995 the DSCC paid the largest sense, what could be the new soft Colorado case is about coordinated civil fine ever by a national committee money loophole if we do not deal with party expenditures by the national for engaging in this type of activity. this. committees on behalf of House and In that case the DSCC and demo- I say to my colleagues, for those who Senate candidates. cratic Senate candidates were raising care about McCain-Feingold, care The FECA has a formula to calculate large amounts of money into the DSCC about what we are trying to do on soft these limits based on the size of the to be ‘‘tallied’’ for use on that can- money, as almost every legal expert in state which ranged from $135,000 in didate’s behalf. These contributions the country who is knowledgeable Montana to $3,200,000 in California in were earmarks and exceeded the con- about campaign finance laws has pre- 2000. tribution limits to candidates. dicted will be the Supreme Court deci- The DSCC was fined $75,000, forced to Senator SCHUMER’S attempt to por- sion in the Colorado case II. The sec- end that tally program and was and is tray these expenditures as soft dollar tion 441(a)(d) coordinated expenditure required to include specific language contributions is false. Coordinated limits will be held unconstitutional by on all solicitations clarifying that party expenditure always have been, a majority of the Supreme Court in the money raised into the DSCC is spent and always will be 100 percent hard Colorado II case. The practical results ‘‘as the Committee determines within money. is that when spending limits on the na- its sole discretion.’’ tional parties are removed from the The hard money limits to the na- To be clear, coordinated expenditures hard dollar cap, then the parties can tional committees which were set in are made with all hard dollars given to contribute to Federal candidates, di- 1974 are $20,000 per year for an indi- the party committees and cannot be re- rectly or indirectly, with unlimited vidual and $15,000 per year from a PAC. stricted for use on specific candidates. The coordinated party limits at issue So there is simply no legal way to sums of money. If I have misspoken in the Colorado case are the last ves- circumvent that law. The constitu- here, my colleague from New York will tige of spending limits in FECA. tional problem with the Schumer correct me. I believe this summarizes In 1976 the Supreme Court in Buckley amendment is that if the Supreme the sum and substance we believe is struck down expenditure limits on can- Court strikes down the coordinated about to happen. If, of course, the Su- didates and their committees and lim- limit as unconstitutional, then the preme Court goes the other way and its on independent expenditures. Schumer provision will require parties rule the section 441(a)(d) limits con- In 1996 the Supreme Court in Colo- to continue to abide by an unconstitu- stitutional, then this amendment has rado I ruled that party committee’s tional limit in order to get the lowest no effect. But if the coordinated spend- can make independent expenditures, in unit rate. ing limits are overturned, as the Sen- addition to coordinated expenditures. This is a classic unconstitutional ator from New York has predicted, and (See sec. 213 of S. 27) The Court re- condition and would make the whole as others have suggested, we will not manded the question of the coordinated bill further subject to problems in be obligated to return to this subject limits back to the district court which Court. matter. Knowing how painful it is to became the Colorado case pending be- I hope the Schumer amendment will spend as many days as we have already fore the court today. not be approved. talking about campaign finance issues, If the Supreme Court strikes down It is my understanding that there is it could well be another 25 years before the coordinated party limits in the Col- a desire on both sides to have a quick we would come back to this subject orado case, the only impact is that na- vote. Is that correct? matter.

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.072 pfrm12 PsN: S28PT1 S3032 CONGRESSIONAL RECORD — SENATE March 28, 2001 In the meantime, we could have a Su- sense of security. If this amendment is limits, the protection of some limits— preme Court decision that would blow rejected, then you could face million- because the unlimited amounts of open the doors for hard money, or the dollar contributions going to your op- money which have come into these new soft money loophole, having spent ponent if, in fact, the Supreme Court campaigns, it seems to me, have de- all these days working to shut down does what many think it will do, and graded the process, and degraded all of the existing soft money loophole and strike down the spending limits. us in the process. limiting the hard dollar contributions So, again, whether you are a pro- So I commend our good friend from in order to slow down the money chase. ponent or opponent of McCain-Fein- New York for identifying this problem. Let me quickly add, again, I voted gold, I think you ought to support this I hope this will be a bipartisan vote of for the Thompson modified amend- amendment. None of us here—nor any support, to basically do what the law ment. I did so reluctantly. I disagree challenger—should face the possibility already intends to do, to set limits on with the notion that we had to increase of watching almost unlimited contribu- the contributions of parties to can- these hard dollar limits of individual tions come through national or State didates. That is in the current law. contributors by as much as the Thomp- parties to fund these races without any There is a formula that we are simply son modification allowed. restrictions at all. Particularly after a trying to protect in the event that the Now to reject the Schumer amend- majority of us—a significant majority Supreme Court says that process does ment, and by doing so allow unlimited of us—believe there should be some not pass constitutional muster. hard dollar contributions would fly limitations, some slowing down of a We knew 25 years ago—and we know right in the face of everything a major- process here the amount of money is now—that limits are important, that ity of us have spent the last 10 days getting out of hand. unlimited, excessive contributions can working to accomplish. We have im- With that, Mr. President, I see my create a problem in terms of public proved, in my view, the McCain-Fein- colleague from Michigan who has been confidence. This is the one area left gold bill. It is a better bill in many eloquent on this subject matter and which is critical to the principle in ways than it was when it came to the understands it almost as well as the McCain-Feingold. floor a week and a half ago. Senator from New York and certainly I hope that the amendment of the If we now reject this amendment, in far more than the Senator from Con- Senator from New York is adopted, and light of what is clearly going to happen necticut. So I would be happy to yield that it is adopted with a bipartisan in the court, we will undo much of to him 2 or 3 minutes to correct any vote, because it is so key to this bill what we have done, not only over this mistakes I may have made in describ- accomplishing what it set out to do: past week and a half, but what Senator ing what this amendment does and how Restoration, preservation, protection, MCCAIN and Senator FEINGOLD have it works. of some limits on contributions. achieved, along with those of us who The PRESIDING OFFICER (Mr. AL- I thank the Chair. have sponsored or cosponsored their ef- LARD). The Senator from Michigan. Mr. DODD. Does my colleague from forts over the past several years. Mr. LEVIN. Mr. President, I thank Kentucky wish to be heard? So I urge my colleagues to take a my good friend from Connecticut. I Mr. MCCONNELL. I tell my friend close look at this. Try to understand wish I could come close to him in from Connecticut, I think we are ready what the Senator from New York is terms of knowledge of this subject, or to vote. saying here. He is saying if, in fact, the my friend from New York. Mr. DODD. I think the Senator from coordinated party expenditure limits I just want to very briefly say one New York wants 2 minutes to wrap up are ruled unconstitutional, then we thing. We have been guided so far, a before the vote. need to provide a voluntary mechanism majority of us, by a principle; and that The PRESIDING OFFICER. The Sen- for how such limitations may be dealt principle is, there should be limits. ator from New York. with. He does it in a way that tracks That is what this debate is all about. Mr. SCHUMER. Mr. President, I the two Supreme Court decisions in the We have limits on individual contribu- thank the Senator from Connecticut Colorado Republican cases and on first tions. We have now decided what those for his leadership and his cogent expla- amendment issues very successfully. limits would be. We have limits on PAC nation. With my lack of articulateness, Having read these decisions carefully, contributions, limits to PACs, limits to it has taken a few days for me to con- he has now crafted a proposal that is State and party committees, limits on vince the Chamber that this issue is directly in sync with these decisions, national party committees, and aggre- important, and within 5 minutes the including the projected decision in Col- gate limits. Senator from Connecticut and the Sen- orado II, where nexus has to occur be- What this debate is about is restoring ator from Michigan have summed it up tween the activities and there is no limits to campaign contributions. well. mandatory requirement attached. Without McCain-Feingold, or a variant We are here now because we realize While I am not an expert in this area thereof, we have the status quo: Unlim- how important this issue is. It was said of the constitution, but based on what ited contributions to campaigns. De- exactly right, in answer to the Senator I have read, if you meet the two cri- spite the fact that our law—our law— from Kentucky; some things that are teria I suggested, then your proposal says there should be limits, there has unconstitutional when mandatory are can pass constitutional muster. I think been a loophole created which has de- perfectly constitutional when vol- it is our collective judgment to move stroyed that law—destroyed the lim- untary. This is the case now. forward in this area. its—and we have seen the result. I find it interesting that my friend Last week we passed an amendment There is one potential loophole left. from Kentucky is talking about the un- that would prohibit millionaires from That is the loophole which the Senator constitutionality of this provision running against us incumbents. We al- from New York and the Senator from when yesterday he voted for one and lowed the hard dollar contributions to Connecticut have identified. That loop- said: I knew it was unconstitutional, immediately go up if someone out hole is, assuming the Supreme Court but it will help bring the bill down. there challenges us. If the challenger finds as many think is likely they will Maybe he wants to do the same on this suggests he or she might spend half a find, the amount of money which could amendment. million dollars of their own money be contributed to a candidate by a po- Mr. MCCONNELL. If the Senator will against us, then the trigger threshold litical party would be unlimited. With- yield. comes into play. I voted against it be- out this kind of an effort to set some Mr. SCHUMER. I am happy to yield. cause I thought it was a ludicrous kind of limit on those contributions, it Mr. MCCONNELL. I will change my amendment. But, if you felt com- seems to me we would be violating the position, if he keeps talking. fortable that amendment was adopted very principle that has guided the ma- Mr. SCHUMER. I want him to change and you are protected from the per- jority of us in this debate so far. his position. I want to reiterate to my sonal wealth of challengers, then don’t So I hope we will not give up on that colleagues, this is a crucial amend- start breathing a sigh of relief now. principle. I hope we will be guided by ment. If we don’t pass it, we will come The millionaire amendment is here. I that principle—the principle of the res- back 6 months from now and say, why would pause before I would enjoy the toration of limits, the preservation of didn’t we do it, because all the work on

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.074 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3033 McCain-Feingold, much of the work on The motion to lay on the table was predicting for a week and a half, that McCain-Feingold—not all of it but cer- agreed to. there would be at some point an effort tainly much of it—will be undone. The PRESIDING OFFICER. The Sen- to water down the coordination lan- As my friend from Michigan said, ator from Connecticut. guage in the underlying McCain-Fein- limits are the theme of this bill. To say AMENDMENT NO. 152 gold bill in order to placate the AFL- that we want to limit soft money but Mr. DODD. What is the pending busi- CIO. We are anxious to see that lan- put no limits on hard money makes no ness? guage. I am sure it will pass, once of- sense. They are both greenbacks. Too The PRESIDING OFFICER. The fered, but we are anxious to take a much of one and too much of the other pending business is the amendment of look and make sure all Members of the is not a good thing in our political fi- the Senator from Ohio, Mr. DEWINE. Senate are aware of the substance of it. nancing system. That is all our amend- Mr. DODD. On our side, I know the It looks as though I may have fewer ment seeks to undo. It is reasonable. It opponents have a request for about 20 amendments to deal with than Senator is completely within the theme of minutes. I don’t know if the Senator DODD. I suspect the sooner we shut up, McCain-Feingold. from Ohio is prepared to accept a time the Senator from Ohio can continue his I fear that if it is not passed, we will agreement so we know when the next discussion of his amendment. have trouble passing the bill as a amendment might occur. Mr. DODD. I am for that. whole, and, worse than that, we will Mr. DEWINE. I am not prepared to Mr. MCCONNELL. I yield the floor. have undone a good portion of what we enter into a time agreement. I will tell The PRESIDING OFFICER. The Sen- tried to do with McCain-Feingold. my colleague that I don’t anticipate it ator from Ohio. Mr. DODD. Mr. President, the pro- will be very long. We have a couple of Mr. DEWINE. Mr. President, I have ponents of the amendment are prepared speakers and we will be done. I don’t used about 30 minutes of my time and to yield back the remainder of our want to enter into a time agreement, I think at this point I yield the oppo- time. but I think the projection we see of nents some of their time. Mr. MCCONNELL. Mr. President, I votes at 6:30, I certainly think we will For the information of Members of yield back such time as may remain on make that. the Senate, we have one or two speak- this side. Mr. MCCONNELL. Mr. President, for ers who will not speak very long, and Mr. DODD. Mr. President, I ask for the information of our colleagues, on we will be prepared to vote. the yeas and nays on the Schumer this side of the aisle, I am aware of Mr. DODD. Mr. President, I yield 6 or amendment. about eight amendments, some of 7 minutes to my colleague from The PRESIDING OFFICER. Is there a which I hope will disappear. I hope by Vermont in opposition to the DeWine sufficient second? announcing this I do not encourage the amendment. There appears to be a sufficient sec- proliferation of more. Also, it is my un- Mr. JEFFORDS. Mr. President, I rise ond. derstanding that a discussion is under- today to once again discuss the Snowe- The question is on agreeing to the way to water down or mitigate the co- Jeffords provisions in the Bipartisan Schumer amendment No. 153. The clerk ordination language in the underlying Campaign Reform Act. My focus today will call the roll. will be rassuring you that the Snowe- The legislative clerk called the roll. bill at the request of organized labor. I The PRESIDING OFFICER. Are there assume we will see that amendment at Jeffords provisions are constitutional. We took great care in crafting our any other Senators in the Chamber de- some point during the process. I don’t language to avoid violating the impor- siring to vote? know whether Senator DODD has any The result was announced—yeas 52, idea how many amendments may be tant prrinciples in the first amendment nays 48, as follows: left on his side. of our Constitution. In reviewing the [Rollcall Vote No. 56 Leg.] Mr. DODD. Mr. President, in response cases, limiting corporate and union spending and requiring disclosure have YEAS—52 to my friends and colleague from Ken- tucky, I have 21 amendments. Now, we been areas that the Supreme Court has Akaka Dorgan Lincoln Baucus Durbin McCain all have been down this road in the been most tolerant of regulation. Bayh Edwards Mikulski past. How many of those will actually Since 1907, federal law has banned Biden Feingold Miller be offered—I know around 12 at this corporations from engaging in elec- Bingaman Feinstein Murray juncture. I have asked the authors of tioneering. In 1947, that ban was ex- Boxer Graham Nelson (FL) Breaux Harkin Nelson (NE) these amendments how serious they tended to prohibit unions from elec- Byrd Hollings Reed are, and I would say around 12 or 13 feel tioneering as well. The Supreme Court Cantwell Inouye Reid very adamant. They may not need has upheld these restrictions in order Carnahan Jeffords Rockefeller Carper Johnson Sarbanes much time. We don’t necessarily need 3 to avoid the corrupting influences on Cleland Kennedy Schumer hours as the bill requires or allows. federal elections resulting from the use Clinton Kerry Stabenow We are constantly working, trying to of money by those who exercise control Conrad Kohl Torricelli see if we can’t get this number down. over a large amount of capital. By Corzine Landrieu Wellstone Daschle Leahy Wyden We have a list. We are prepared to go treating both corporations and unions Dayton Levin with several amendments. I have Sen- similarly we extend current regulation Dodd Lieberman ator BINGAMAN with amendments cautiously and fairly. NAYS—48 ready; Senator DURBIN has amend- We also worked to make our require- Allard Enzi Murkowski ments ready; Senator HARKIN has ments sufficiently clear and narrow to Allen Fitzgerald Nickles amendments ready. We are prepared to overcome unconstitutional claims of Bennett Frist Roberts move along based on the schedule the vagueness and overbreadth. This re- Bond Gramm Santorum Brownback Grassley Sessions leadership wants to endorse. quired us to review the seminal cases Bunning Gregg Shelby Mr. MCCONNELL. It is my under- in this area, including Buckley v. Burns Hagel Smith (NH) standing the desire of the leadership is Valeo. I have heard some of my col- Campbell Hatch Smith (OR) to finish up the debate on the DeWine leagues argue that Buckley clearly Chafee Helms Snowe Cochran Hutchinson Specter amendment tonight. I understand the shows that the Snowe-Jeffords provi- Collins Hutchison Stevens Senator from Ohio is not interested in sions are unconstitutional. I must dis- Craig Inhofe Thomas a time agreement at this point but to agree most strongly with that reading. Crapo Kyl Thompson DeWine Lott Thurmond have the vote in the morning. In fact, the language of the case Domenici Lugar Voinovich In the meantime, I say to my col- should—must be read to show that the Ensign McConnell Warner league from Connecticut and others, Snowe-Jeffords provisions are constitu- The amemdment (No. 153) was agreed with regard to any amendment that tional. In Buckley the court limited to. might be offered to reduce the opposi- spending that was ‘‘for the purpose of Mr. DODD. I move to reconsider the tion of the AFL-CIO to the bill by mas- influencing an election.’’ As I noted in vote. saging the coordination language, we my speech last Friday, 80 percent of Mr. LEVIN. I move to lay that mo- would like to see that when it is ready. the voters, an overwhelming majority, tion on the table. That is the amendment I have been see these sham issue ads as trying to

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.080 pfrm12 PsN: S28PT1 S3034 CONGRESSIONAL RECORD — SENATE March 28, 2001 influence their vote and the outcome of of the land. That can only come from The other part of the problem that the election. the decisions of the Supreme Court, on we seek to address through these provi- Buckley also allowed disclosure of all which the provisions of the Snowe-Jef- sions is the glut of advertisements in spending, ‘‘in connection with an elec- fords provisions are built. elections—close to election time, close tion.’’ As I discussed last Friday, 96 Additionally, the facts that faced the to election day—that seek to influence percent of the public sees these ads as second circuit in the Vermont Right to the outcome of Federal elections. So connected with an election. In addi- Life case are clearly distinguishable there is no disclosure. We have no dis- tion, the chart my colleague Senator from the Snowe-Jeffords provisions. closure. We do not know who is behind SNOWE presented on the Senate floor Unlike the Vermont statute that was those advertisements. Yet they are last Monday clearly demonstrates that vague and overbroad, our provisions very definitively influencing the out- these ads are run in lock step with the are narrowly tailored to avoid over- come of Federal elections. candidate’s own ads. This makes sense breadth, and create clear standards To illustrate the amount of adver- this clearly proves that these sham about what is allowed or required by tising, you only have to look at what issue ads are well connected with the our provisions, thus avoiding the has happened since 1995–1999, when $135 election. vagueness in the Vermont statute. In million to $150 million was spent on A final point concerning the Buckley addition, the court focused much of its these types of commercials. Now in the decision. The Supreme Court was con- discussion in declaring the Vermont election of 2000, over $500 million was cerned about both deterring corruption statute unconstitutional on the effects spent. and the appearance of corruption, plus of the provision on modes of commu- Is everybody saying it does not mat- ensuring that the voters were properly nication not covered by Snowe-Jef- ter? That we should not know who is informed. The Snowe-Jeffords provi- fords. As the Snowe-Jeffords provisions behind these types of commercials that sion satisfies the Court’s concerns. We do not cover these types of communica- are run 60 days before the election, 30 deter the appearance of corruption by tion, our language is distinguishable days before a primary, whose donors shining sunlight on the undisclosed ex- from the facts faced by the second cir- contribute more than $1,000? Are we penditures for sham issue advertise- cuit. So, don’t be fooled when the oppo- saying it does not matter to the elec- ments. Corruption will be deterred nents of our provision say that the tion process? Are we saying we do not when the public and the media are able Vermont Right to Life case clearly care? to see clearly who is trying to influ- shows that the Snowe-Jeffords provi- I know the Senator from Ohio is say- ence the election. In addition our pro- sions are unconstitutional. They are ing these provisions are unconstitu- visions will inform the voting public of comparing apples with oranges, and tional. I would like to make sure my who is sponsoring and paying for an such a conclusion in inappropriate. colleagues understand that this provi- electioneering communication. Unlike In conclusion, James Madison once sion was not developed in a vacuum. It what our opponents may say, the Su- said, was developed with more than 70 con- preme Court using the standards ar- A popular government without popular in- stitutional experts, along with Norm ticulated in the Buckley decision formation is but a prologue to a tragedy or Ornstein, a reputable scholar associ- would uphold the Snowe-Jeffords provi- a farce or perhaps both. Knowledge will for- ated with the American Enterprise In- sion as constitutional. ever govern ignorance and a people who stitute. They looked at the constitu- Our opponents also point to the Su- mean to be their own governors must arm tional and judicial implications of the preme Court decision in Massachusetts themselves with the power which knowledge gives. Buckley v. Valeo decision back in 1976. Citizens For Life as demonstrating They crafted this type of approach, The Snowe-Jeffords provisions will that the Snowe-Jeffords provisions are which carefully and deliberately avoids give the voters the knowledge they unconstitutional. I would agree with the constitutional questions that my need. I ask for my colleagues continued my opponents that the MCFL decision colleague, the Senator from Ohio, sug- support in this vital effort to restore seems to reaffirm the express advocacy gests may be raised. test articulated in Buckley, but I faith in our campaign finance laws. First of all, we designed a provision It is time to restore the public’s con- would argue in upholding this test that to address the concerns that were fidence in our political system. the Court actually made it even more raised in the 1976 Buckley decision It is time to increase disclosure re- likely that the Snowe-Jeffords provi- about overbroad, vague types of re- quirements and ban soft money. sions would be upheld as constitu- It is time to pass the McCain-Fein- strictions on the first amendment. So tional. The MCFL decision broadens gold campaign finance reform bill. Mr. what we said was that we have a right the standard articulated in Buckley by President, I yield the floor. to know who is running these ads 60 analyzing the context of a communica- The PRESIDING OFFICER. The Sen- days before a general election when the tion and divining its ‘‘essential na- ator from Connecticut. group has spent more than $10,000 in a ture.’’ As the results from the BYU Mr. DODD. Mr. President, my col- year and whose donors have contrib- Center for the Study of Elections and league from the State of Maine wishes uted more than $1,000 to finance these Democracy study I discussed earlier 10 minutes. I am happy to yield 10 min- election ads—over $550 million of which show, the esential nature of these sham utes to the Senator from Maine. were run in the election of 2000, more issue-ads is to influence the outcome of The PRESIDING OFFICER. The Sen- than three times the amount that was an election. Presented with all of the ator from Maine is recognized. spent in the election of 1996. facts provided by myself and Senator Ms. SNOWE. Mr. President, I thank We also went on to say that unions SNOWE, the Supreme Court would be the Senator from Connecticut for and corporations would be banned from consistent only in finding our provi- yielding me some time to address some using their treasury money financing sions constitutional under the stand- of the issues that have been raised by these ads when they mention a can- ards laid out in Buckley and MCFL. So the amendment and the motion to didate 60 days before a general election rather than strengthening their case, strike by our colleague from Ohio, Sen- or 30 days before a primary. Again, the MCFL decision shows that the ator DEWINE. there is a basis in law extending back Court is willing to examine the issue I urge this body to oppose that mo- to 1907, when we had the Tillman Act closely and look beyond a strict inter- tion to strike the provisions known as passed by Congress that banned the pretation of the magic words test that the Snowe-Jeffords provision. A vote to participation of corporations in elec- some have said the Buckley decision strike these provisions is essentially a tions and, in 1947, the Taft-Hartley Act created. vote against comprehensive reform. A that prohibited unions from partici- A final court decision my opponents vote against this provision is a vote pating directly in Federal elections. point to as supporting their position against balanced reform. A vote This amendment and provision is build- that the Snowe-Jeffords provisions are against this provision is a statement ing upon those decisions that were unconstitutional is the recent Vermont that we are only willing to tackle made by Congress that have been Right to Life decision in the second part—albeit a vital part—of the prob- upheld by the Court. In fact, the most circuit. I must first point out that as a lem that is confronting the political recent decision of 1990, Austin v. Cham- circuit court opinion it is not the law system of today. ber of Commerce, is again upholding

VerDate 28-MAR-2001 04:49 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\A28MR6.014 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3035 those decisions in the prohibition of percent would be construed as being le- tion. They are ultimately engulfing the the use of corporations participating in gitimate issue advocacy ads. political process. In some cases, these Federal elections. For example, on an ad that would organizations, whether they exist in That is what we have done. That is say, ‘‘Call your Senator on an issue the State in which they are running what we sought to do when designing that is before Congress,’’ they would these ads or not, are having a greater this amendment. still have that right. If they identified impact than the ads the candidates run Are we saying these ads do not make a candidate by name, however, they themselves. a difference? We have seen and exam- would be required to disclose. It may come as a surprise to you that ined a number of studies over the last On this chart we see the relationship in the focus group that examined the few years that talk about the influence between TV ads and the congressional Snowe-Jeffords provision and looked at of these ads on elections. What have we agenda. the ads that were run in that 60-day pe- determined? No. 1, and I guess it is not We are trying to make distinctions riod—guess what—they didn’t even see going to come as a surprise to this au- between true issue advocacy ads and the candidate’s ads being the ones that dience which has participated in elec- election ads. That is what this Snowe- influenced the outcome of a Federal tion after election and have seen these Jeffords provision does. It is carefully election. They saw these so-called ads, but more than 95 percent of the crafted to make sure we have a narrow sham ads as the ones that influenced ads that are run in the last 2 months, provision identifying the time period of the outcome of a Federal election. the last 60 days of the election, men- 60 days and 30 days. We ban only union I think we need to take this step. It tion a candidate; 94 percent of those and corporation money. So the entities is a limited step; it is not a far-reach- ads are seen as attempting to influence know which provisions affect them in ing step. the outcome of an election. They men- the election. The PRESIDING OFFICER. The Sen- tion a candidate’s name. Virtually all Then we also require disclosure of ator’s 10 minutes has expired. Ms. SNOWE. May I have an addi- the ads that are run in the last 60 days those donors who contribute more than tional 2 minutes? mention a candidate’s name. Don’t we $1,000 to organizations that run ads that mention a candidate in the 60-day Mr. LOTT. Mr. President, if the Sen- have the right to know who is running ator will yield, we have a consent re- those ads, who is supporting those ads, window. Again, groups or individuals will quest with regard to how to proceed for who is financing those ads? Yes. The the rest of the night and tomorrow. Supreme Court has said it is permis- know exactly what is permissible and what is not and whether or not they UNANIMOUS CONSENT AGREEMENT sible for Congress to have this require- Mr. President, I ask unanimous con- ment. It is in our interest. We have the would be running afoul of the law. That is what the Supreme Court said—that sent that time on the DeWine amend- right. It is not just the right to free ment be used during tonight’s session speech. It is similar to other restric- it not result in an overly broad or vague provision to ultimately have a and, following that time, the Senate tions that have been incorporated in proceed to morning business. I further Federal election laws. chilling effect on the constitutional right of freedom of speech. That is why ask unanimous consent that the Sen- Ninety-five percent of the ads that ate resume consideration of the bill at this provision was so narrowly and are run for the final 2 months of an 9:30 a.m. and there be 15 minutes for carefully drawn, with constitutional election mention a candidate. The closing remarks on the amendment, to experts examining each and every pro- worst thing when organizations run be equally divided, and the Senate then vision. these types of ads is that they mention proceed to a vote in relation to the Look at the relationship between TV a candidate by name 60 days before an DeWine amendment. I further ask ads and congressional agenda. In the election. We have the right to know unanimous consent that following that last 60 days we do a lot here in Con- who the $1,000 donors are. vote the Senate proceed to the Harkin gress before an election. So you are We are also saying that unions and amendment for 2 hours equally divided going to affect organizations’ abilities corporations would be banned from in the usual form, and following that to talk about those issues in their ads. running those types of ads using their time the Senate proceed to vote on or Guess what. All the ads, virtually treasury money when they are men- in relation to the Harkin amendment. tioning a Federal candidate the last 60 speaking, run by these organizations Let me note that I didn’t get a that mention or identify a candidate in days because of preexisting law that chance to clear this with Senator REID. has stood for almost a century and has that 60-day window parallel the ads But I understand Senator WARNER has been upheld by the Federal court. that are run by the candidates them- an amendment he wants to offer. The next chart shows that, again, 94 selves. Mr. WARNER. Mr. President, I thank percent have spots during the 2 months In the lower line at the bottom, the distinguished leader. I should like before the election making a case for a which is the line that reflects the to offer it, and I shall withdraw it. I candidate. issues being debated in Congress, you will require no more than 10 minutes of Again, we are entitled to know who can see that there is virtually no par- time at the most convenient point this is behind those types of advertise- allel between what we are discussing in evening before we complete our work ments. We have the right to know. The Congress and the ads that are being run on this bill. public has the right to know because by organizations in that 60-day win- Mr. LOTT. I modify the request to they are playing a key role. dow. They parallel the ads with a can- say, as I have already read it, except We had a number of studies that ex- didate’s ad, which again reflects one that after the DeWine amendment the amined the impact of these ads. thing—that these ads are designed to time be used tonight and then go to the First of all, it wouldn’t come as a influence the outcome of an election. Warner amendment at that point. Fol- surprise to this audience once again There was a study of just 735 media lowing that, we would go to morning that 84 percent of the ads that were markets in this last election. Guess business. aired in the last 2 months of a Federal what. One hundred million dollars was Mr. REID. Mr. President, reserving election were attack ads. They were spent in the last 2 weeks of the election the right to object—I will not—I hope negative. And they mentioned a can- on advertisements that identified a leadership will recognize the great didate’s name. Federal candidate by name in that 60- work done today on this bill. I don’t Again, we are saying we have the day period—in fact, in that 2-week pe- know how great it has been, but cer- right to know. The Supreme Court will riod. tainly it has been a lot of work. Sen- uphold our right to know and the I think the public deserves the right ators DODD and MCCONNELL have done public’s right to know. This is sun- to know who is financing those ads and an outstanding job moving this matter light; it is not censorship. who is attempting to affect the out- along. It has been very tedious today. I In this next chart, only 1 percent of come of an election given the amount would like for the leader and Senator the ads were true issue advocacy ads. of money that has been invested in DASCHLE to recognize what good work In the final 2 months of an election, these types of commercials. As I said, they have done. 99 percent identified a candidate by it was three times the amount in the Mr. LOTT. Mr. President, I certainly name. They were attack ads. Only 1 last election compared to the 1996 elec- agree with that. These two managers of

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.083 pfrm12 PsN: S28PT1 S3036 CONGRESSIONAL RECORD — SENATE March 28, 2001 this bill have worked together very concerning coordination, and I have first amendment. In addition, we can closely—Senators MCCONNELL and given him the language. We want to demonstrate that the Court’s defini- DODD. Their job has been particularly work with him on that particular tion of ‘‘express advocacy’’—magic difficult this time because they are amendment. words—has no real bearing in today’s trying to accommodate everyone on all I also know a lot of time and atten- world of campaign ads. sides of this issue on both sides of the tion is going to be devoted to the issue You never see an ad anymore that aisle and are trying to also accommo- of severability. I thank the Senator says ‘‘vote for’’ or ‘‘vote against.’’ You date the wishes of the two leaders on from Maine for a very important pres- see plenty of them that say: Call that both sides as well as the principal spon- entation. I find myself between two of scoundrel, that no-good Representative sors of this bill. They have worked my dearest friends on this amendment. of yours or Senator of yours, who is hard to make good progress. Without I, obviously, am strongly in favor of guilty of every crime known to man. commenting on the work product re- the Snowe-Jeffords amendment which Call him. Tell your Senator that you sult, I think they certainly deserve a the Senator from Maine and the Sen- want thus and such and thus and such. lot of credit for their yeomen efforts to ator from Vermont have worked on for We have seen it all develop to a fine try to keep it calm and moving for- literally years together. This Snowe- art. I believe Snowe-Jeffords is a very ward. Jeffords amendment, unlike some of vital part of this bill. If it were re- Mr. REID. Senator WARNER will the business we do around here, was moved, it would have a very signifi- withdraw his amendment tonight? not hastily thrown together. It was cantly damaging effect on our desire to Mr. LOTT. He will. crafted after careful consultation with try to enact real and meaningful cam- The PRESIDING OFFICER (Mr. BEN- constitutional experts all over Amer- paign finance reform. NETT). Is there objection? ica. It clearly addresses a growing I thank my friend from Ohio for his Without objection, it is so ordered. problem in American politics. impassioned advocacy of the other side. Mr. LOTT. In light of this agreement, I believe that the Snowe-Jeffords I believe this is really what this debate there will be no further votes tonight. amendment, if removed, would open up has been all about: What we have just The next vote will occur at approxi- another huge channel for the use of seen between Senator DEWINE and Sen- mately 9:45 a.m. Thursday. Also, the soft money into so-called independent ator SNOWE, an open and honest and in- managers intend to complete this bill campaigns. formed ventilation of a very important by the close of business tomorrow, so I also listened with great attention issue to the American people. I am that is going to mean a lot more work. to my friend from Ohio, Senator very proud of the performance of both There are a number of amendments DEWINE. I understand his concerns, and because I think the American people that are still pending. But if Senators I appreciate them. He makes a very have learned a lot from this debate, es- expect to complete our work tomorrow, strong case. But I would like to say pecially on this very important amend- we are going to have to put our nose to why we think Snowe-Jeffords is con- ment. the grindstone and just make it hap- stitutional and why we are convinced Mr. President, I yield back the re- pen. So we should expect numerous of it. mainder of my time. votes tomorrow. And we would hope to First, it avoids the vagueness prob- Ms. SNOWE. Mr. President, I thank finish at a reasonable hour early in the lem outlined in Buckley by instituting Senator MCCAIN for his words regard- evening or late in the afternoon. a bright-line test for what constitutes ing these provisions and for under- I yield the floor. express advocacy versus issue advo- scoring the importance and the signifi- Mr. MCCAIN. Could I be yielded cacy. People will know if their ads are cance and the meaning of the Snowe- about 4 minutes to speak on the covered by this statute. They will Jeffords provision as outlined in the amendment? know whether it is covered by Snowe- McCain-Feingold legislation. Mr. LOTT. Mr. President, I believe Jeffords. The preponderance of these ads in the Senator SNOWE had gotten consent for Second, the main constitutional political process has to be disturbing to 2 additional minutes. problem with bright-line tests is that each and every one of us, not to men- The PRESIDING OFFICER. Does the they eliminate vagueness at a cost of tion the American people. That is what Senator from Maine ask for additional overbreadth—a situation in which con- it is all about and what we need to ad- time? The consent was not given be- stitutionally protected speech such as dress. cause of the interruption of the major- issue advocacy is unintentionally How can we say we are going to allow ity leader. swept in by the statute. Specifically, these so-called sham ads to go un- Mr. LOTT. I do not believe there the Supreme Court is concerned wheth- checked? How are we going to say to would be any objection. er there is ‘‘substantial overbreadth’’ the American people that somehow Ms. SNOWE. The time is controlled as far as the statute is concerned. they or we do not have a right to know by whom? Snowe-Jeffords minimizes the over- who is financing these ads? The PRESIDING OFFICER. The time breadth concern. It only covers broad- As Senator MCCAIN indicated, even is controlled by the Senator from Ohio cast ads run immediately before an candidates now, who already come and the Senator from Nevada. election that mention a specific Fed- under the Federal election laws, do not Mr. REID. The Senator from Maine is eral candidate. Studies show that only use the magic words ‘‘vote for’’ or given 3 minutes. a minuscule number of these types of ‘‘against’’ because what has become Ms. SNOWE. I will yield to the Sen- ads in this time period are strictly most effective is not using those magic ator from Arizona. He needs 4 minutes. issue ads. Anyone who observed the words to get the point across. That is Can we have 10 minutes? last couple campaigns would attest to why all of these organizations have Mr. REID. Following the Senator that. taken to running ads because they from Maine, the Senator from Arizona Besides, we all know that Buckley’s know what is more effective and more is yielded 5 minutes. ‘‘magic words’’ are not necessary to influential. Mr. MCCAIN. Could we have a total make a campaign ad. In fact, a Bren- In every focus group and study group of 10 minutes? nan Center for Justice analysis of the that has been conducted over the last Mr. REID. Yes. last congressional election showed that few months, to take the Snowe-Jef- Ms. SNOWE. I yield to the Senator only 1 percent of candidates’ own cam- fords provisions and use them in a from Arizona. paign advertising used express advo- focus group, to see what the response The PRESIDING OFFICER. The Sen- cacy language—in other words, magic was of the individuals included in that ator from Arizona. words—to promote the candidate. group—guess what—they were most in- Mr. MCCAIN. Mr. President, I thank In sum, Buckley left the door open fluenced by those organizational ads the Senator from Nevada. Again, I for Congress to define express advo- that mention a candidate by name but thank Senator MCCONNELL for the level cacy. That is what Snowe-Jeffords do not use those magic words. The Su- and tenor of this debate. I understand seeks to do, in keeping with the Su- preme Court said there isn’t one single his concerns about one additional preme Court’s concern about pro- permissible route to getting where we amendment we will have tomorrow tecting free speech guaranteed by the are going in terms of restrictions and

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.086 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3037 changes in election laws. And the fact [From Congress Inside Out] ical parties exploiting a loophole to run cam- is, since 1976, Congress has not passed a LIMITS ON SO-CALLED ‘‘ISSUE ADVOCACY‘‘ paign spots outside the rules that apply to law concerning campaign financing, WILL PASS CONSTITUTIONAL TEST candidates. In the past couple of election cy- (By Norman J. Ornstein) cles, solid, substantial and comprehensive has not sent any law to the Court be- academic research, examining hundreds of cause we have not passed anything in Is McCain-Feingold unconstitutional? thousands of election-related ads, has dem- the last quarter of a century. So it has When campaign finance reform is debated in onstration two things. One was that only a no guidepost. But the Court was ad- the Senate this week, the answer to this minuscule proportion of the ads run by can- dressing in 1976 what was happening in question will be a key one. There will no didates themselves—the sine qua non of ex- doubt be questions raised about banning soft 1976. We well know what has changed press advocacy—actually used any of the so- money, but despite the bleating of reform op- called ‘‘magic words’’ that shaped the court’s and transpired in over a quarter cen- ponents, that proposal seems to be on sound tury. We have seen the kind of develop- definition of express advocacy a quarter cen- constitutional footing. Soft money, after all, tury ago. Secondly, hundreds of millions of ment and evolution of these ads that was neither a natural development nor a dollars in political ads—nearly all viciously has taken a very disturbing trend and court-generated phenomenon; rather it was negative, personality-driven attacks on can- change in the election process. created in 1978 by a bureaucratic decision of didates without issue content—have I hope we defeat the motion to strike the Federal Election Commission. If a regu- blanketed the airwaves right before the elec- by my colleague, the Senator from latory commission could invent soft money, tions, dominating and drowning out can- Congress can uninvent it. didate communications. The parties and out- Ohio, because truly we are getting at a More problematic is the campaign reform very serious problem that has charac- side groups that have run them have de- measure’s provision on so-called issue advo- clared that they fall under ‘‘issue advocacy,’’ terized the political process in a way cacy, an amendment known as Snowe-Jef- meaning no disclosure and no limits on con- that does not engender confidence in fords. Would it pass Supreme Court muster? tributions are required. the American people. No doubt some Senators opposed to reform These sham issue ads have drastically al- These ads are intended to affect an will offer elaborate smoke screens to scare tered the landscape of campaigns, reducing their colleagues. But there is legitimate con- candidates to bit players in their own elec- election. They are overwhelmingly cern about the constitutionality of the pro- negative. Ninety-nine percent mention tions and erasing a major share of account- posal, even among many sympathetic to it. ability for voters. But under Buckley, as in- a candidate in that 60-day window. Are Changes in the rules surrounding anything terpreted by the campaign lawyers, this we saying that we should allow them close to issue advocacy, as opposed to ex- process has been unchallenged. Lower courts to go unchecked? I say no. press advocacy to elect or defeat candidates, have routinely upheld the framework and I know the Supreme Court will up- are delicate and tricky. This area is at the most of the specifics of Buckley, leading re- hold this provision because in ana- heart of the First Amendment and cannot be form opponents and many objective observ- reformed lightly. Still, when Senators take a lyzing every decision since and in ana- ers to question whether any change in the careful look at Snowe-Jeffords and the rea- Buckley standards or framework could pos- lyzing what the Court had said even soning behind it, their concerns should be as- previously, this is not treading on the sibly pass constitutional muster in the Su- suaged. There is every reason to believe that preme Court. constitutional rights of those who are this measure will withstand constitutional That view ignores a fundamental reality. willing to express themselves. scrutiny. Since it spoke in 1974, Congress has been es- This is a monstrosity that has The challenge here starts with the lan- sentially silent on campaign finance reform. evolved in terms of the so-called sham guage of the landmark 1976 Supreme Court Buckley v. Valeo is in effect the law of the decision Buckley v. Valeo that accepted land because Congress has not superseded it ads that are having a true impact on parts of a 1974 Congressional act reforming our election process in a way that I do by filling the vacuum in the quarter century the campaign finance system and rejected that followed. If Congress acted, the Su- not think the Supreme Court could others, and continues to govern our cam- preme Court would give it due deference. In foresee back in 1976, and we, as can- paign finance rules. The court rejected as a 1986 decision on campaign finance and the didates, could not possibly envision. I overly broad the 1974 Congressional decision role of corporations (Federal Election Com- ran for Congress in 1978. No one heard to include in its regulatory net any commu- mission v. Massachusetts Citizens for Life), of these ads. Independent expenditures nication ‘‘for the purpose of influencing’’ a Chief Justice William Rehnquist, in a sepa- were even rare at that moment in time. federal election. Instead, the court drew a rate opinion joined by three other justices, line between direct campaign activities, or noted, ‘‘We are obliged to leave the drawing What has happened in the election ‘‘express advocacy,’’ and other political process has taken place in the last few of lines such as this to Congress if those speech. The former could be regulated, at lines were within constitutional bounds.’’ years. Those expenditures have tripled least in terms of limits on contributions; the The lines Congress drew in 1974 were not in these types of advertisements that latter had greater First Amendment protec- within constitutional bounds. But other are having a true impact on elections. tion. How to define express advocacy? The lines, different from the Congress in 1974 and That is what we are talking about. I High Court in a footnote gave some sugges- the court’s in Buckley, can be, especially if have a chart that shows the degree to tions to fill the resulting vacuum and to de- Congress makes clear that its views are which the ads were intended to influ- fine the difference between the two kinds of based on both careful deliberation and strong advocacy. Express advocacy, the justices emotional evidence. ence your vote. The candidates’ ads are said, would cover communications that in- Two years ago, I led a group of constitu- less influential than these ads to which cluded words such as ‘‘vote for,’’ ‘‘vote tional scholars in careful and systematic de- we are referring in the Snowe-Jeffords against,’’ ‘‘elect’’ or ‘‘defeat.’’ The residual liberation over the judicial and constitu- amendment. They have more influence category included ‘‘issue’’ advocacy. tional framework behind Buckley v. Valeo, in the overall election than the can- The court did not say that the only forms the dramatic changes in campaign behavior didates’ ads. of express advocacy are those using the spe- that have occurred in the past several years, We do have a right to know. We are cific words above. Those were examples. and the ways, within the Buckley frame- However, political consultants and high- talking about disclosure. The Supreme work, that the system can be brought back priced campaign lawyers are like the raptors into equilibrium. Court will uphold that view that, yes, in ‘‘Jurassic Park’’—they regularly brush up The result was a new approach, which was the public does have a right to know. against the electric fence of campaign regu- embraced by Sens. Olympia Snowe (R-Maine) These provisions are not chilling first lation, trying to find dead spots or make the and Jim Jeffords (R-Vt.) and several of their amendment rights. People will have fence fall down entirely. In this case, they colleagues, and converted into legislation. very defined guidance under these pro- egged on parties and outside groups to be- The Snowe-Jeffords provision defines visions that would inform any group, have unilaterally as if any communication ‘‘electioneering’’ as a category of commu- nication that is designed to directly shape or any individual who has an intention of that did not use these specific so-called ‘‘magic words’’—no matter what else they change the outcome of federal elections. Un- running these types of advertisements. did say—was by definition ‘‘issue advocacy’’ like the 1974 overly broad Congressional defi- Norman Ornstein, who was instru- and thus was exempt from any campaign fi- nition, Snowe-Jeffords is much more spe- mental in developing this provision, nance rules. By this logic, ads or messages cific, with a definition that includes substan- along with numerous constitutional ex- without any issue content whatsoever that is tial broadcast communications run close to perts, spoke in a column recently. I ask clearly designed (usually by ripping the bark an election and that specifically targets a unanimous consent that it be printed off a candidate) to directly influence the out- candidate for office in that election. Re- come of an election could use money raised search has shown that only a sliver of all in the RECORD. in any amount from any source, with no dis- issue ads meeting this definition in the last There being no objection, the mate- closure required. campaign (well under 1 percent) were by any rial was ordered to be printed in the Ads of this sort have exploded in the past standard genuine issue ads. If Senators are RECORD, as follows: few elections, with outside groups and polit- wary that even this definition is too broad,

VerDate 28-MAR-2001 03:59 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.089 pfrm12 PsN: S28PT1 S3038 CONGRESSIONAL RECORD — SENATE March 28, 2001 it is easily possible to refine the definition of lines, different from Congress’ in 1974 and the be able to do it, but now everybody else targeting to reduce the number to perhaps 1/ court’s in Buckley, can be, especially if Con- can’t do it. Any groups that want to 10th of 1 percent of the ads. gress makes clear its views are based on both get together and buy an ad that men- Snowe-Jeffords bans the use of union dues careful deliberation and strong empirical tions the candidate’s name will no or corporate funds for broadcast election- evidence. longer be able to do that. eering communications within 60 days of an The PRESIDING OFFICER. The time election and requires disclosure of large con- So within 60 days of an election, at tributions designated for such ads. As re- of the Senator has expired. the time when political debate should cently as 1990, in Austin v. Michigan Cham- Ms. SNOWE. Mr. President, I hope be the most respected, when political ber of Commerce, the Supreme Court re- my colleagues will vote against the debate has its greatest impact, the affirmed the notion that corporations lack motion to strike that has been offered Snowe-Jeffords-Wellstone amendment the same free-speech rights as individuals by our colleague from Ohio. It would now says, no, you can’t do it. and some other groups; other decisions have remove a fundamental provision in the made the same point about unions. That is absolutely unconstitutional. In Buckley itself, the court said that dis- legislation before us. We cannot have That is the state of the bill today. That closure requirements are permissible if they comprehensive reform without address- is what Members have to ask them- provide citizens with the information they ing this egregious development that selves when they vote on this amend- need to make informed election choices or has occurred in the election process. ment. Are you willing to accept a bill help safeguard against corruption and reduce The PRESIDING OFFICER. The Sen- that in all probability is going to pass the appearance of corruption. As long as dis- ator from Ohio. closure doesn’t produce the chilling effect of that has a provision in it that is bla- Mr. DEWINE. Mr. President, in a mo- tantly unconstitutional? I hope on re- requiring an organization to disclose all of ment I will yield to the chairman of its donors, which Snowe-Jeffords avoids, it flection my colleagues on both sides of clearly meets court guidelines. Sen. Mitch the Judiciary Committee, Senator the aisle, when they look at that, will McConnel (R-Ky.) regularly refers to the HATCH. I do want to briefly respond to say: I don’t want to do that. I don’t court’s 1958 decision NAACP v. Alabama to the comments of my friend from want to cast a vote for a bill that is argue that disclosure requirements are un- Maine, my friend from Vermont, and blatantly unconstitutional. constitutional. However, that is a misinter- my friend from Arizona. I appreciate The only chance Members are going pretation of the decision, which said that a very much their comments. requirement of an organization to disclose to have to correct that is with the One thing they did not mention and DeWine amendment. all its contributors would be inappropriate. that is important for us to remember, That is not at all what Snowe-Jeffords does. I yield at this time to the distin- Now add together the clear deference to as we look at this amendment and as guished chairman of the Senate Judici- Congress’ views that Chief Justice Rehnquist we look at how the bill is currently ary Committee, the Senator from written, is that Snowe-Jeffords is now has expressed, the clear evidence from im- Utah, Mr. HATCH. peccable academic research showing the fal- Snowe-Jeffords-Wellstone. It is fun- Mr. HATCH. Mr. President, as my lacy behind the so-called ‘‘magic words’’ test damentally different than the original in Buckley, and the restrained and carefully colleagues in this body are aware, un- provision about which my colleagues like contributions to a candidate’s drawn language in Snowe-Jeffords defining a have talked for the last 20 minutes or narrow category of ads and relying on past campaign, expenditures of money to in- so. court decisions about disclosure and the fluence public opinion has been ac- roles of unions and corporations. These three Very simply, Snowe-Jeffords, as corded nearly ironclad first amend- factors make it reasonable to believe that originally written, did this: Under cur- ment protection by the U.S. Supreme the Supreme Court would rule that a reform rent law express advocacy is not re- Court. In fact, I know those who would that includes Snowe-Jeffords is within con- stricted for unions and corporations. argue it is absolutely ironclad. stitutional bounds. What Snowe-Jeffords did is to say that The reason for this protection is sim- Ms. SNOWE. He said: 60 days out from an election, unions ple to understand. Freedom of speech is The court rejected as overly broad the 1974 and corporations—it is usually unions one of the bedrock protections guaran- Congressional decision to include in its regu- who are doing it—would be prohibited teed for our citizens under the Con- latory net any communication ‘‘for the pur- from mentioning the name of a can- pose of influencing’’ a federal election. In- stitution of the United States. No- didate. It is a major change in what is where is the role of free speech more stead, the court drew a line between direct going on today, a major restriction on campaign activities, or ‘‘express advocacy,’’ important than in the context of the and other political speech. The former could a union’s ability to communicate, a elections we hold to determine the be regulated, at least in terms of limits on fundamental change in the law. leaders of our representative democ- contributions; the latter had greater first Under Snowe-Jeffords, express advo- racy. As the Supreme Court stated in amendment protection. How to define ex- cacy is expanded to include any mes- Buckley: press advocacy? The High Court in a foot- sage with the candidate’s name 60 days note gave some suggestions to fill the result- before the election and, if they do that, Discussion of public issues and debate on ing vacuum and to define the difference be- the qualifications of candidates are integral it is illegal. to the operation of the system of govern- tween the two kinds of advocacy. Express ad- That is not what we are talking vocacy, the justices said, would cover com- ment established by our Constitution. The munications that included words such as about. Snowe-Jeffords is now Snowe- First Amendment affords the broadest pro- ‘‘vote for,’’ ‘‘vote against,’’ ‘‘elect’’ or ‘‘de- Jeffords-Wellstone, and it has been dra- tection to such political expression in order feat.’’ The residual category included matically changed and expanded. I to assure the unfettered interchange of ‘‘issue’’ advocacy. think the original language, quite can- ideas.... The court did not say that the only forms didly, you can argue either way wheth- Obviously, we would have no democ- of express advocacy are those using the spe- er it is constitutional. Frankly, no one racy at all if government were allowed cific words above. Those were examples. in this Senate is going to know until to silence people’s voices during an Now we hear the only way we can the Supreme Court tells us. The election. I have spoken before more have these ads covered is if they use Wellstone language that is now a part generally on some of the constitutional those magic words. As Norman of Snowe-Jeffords is absolutely uncon- limits on our efforts to regulate cam- Ornstein is saying in his column, the stitutional. I have talked to a number paigns. Today I rise to speak more spe- Court was citing examples back in the of Members on the floor who voted on cifically about the limitations on ex- Buckley v. Valeo decision in 1976. He both sides of the original Wellstone penditures. went on to say, the fundamental re- amendment. I haven’t found one yet—I Under our Constitution, a person ality is that Congress had been essen- am sure someone will come to the floor simply cannot be barred from speaking tially silent on campaign finance re- in a minute; I am sure my colleague the words ‘‘vote for Joe Smith.’’ Under form since it spoke in 1974. from Minnesota may come—who will our Constitution, a person simply can- Buckley v. Valeo is in effect law of the tell me it is constitutional because not be barred by speaking the words land because Congress has not superseded it what does it do? It takes the original ‘‘lower my taxes.’’ Under our Constitu- by filling the vacuum in the quarter century Snowe-Jeffords and expands it and tion, a person cannot be simply barred that followed. If Congress acted, the Su- preme Court would give its due deference. says, not only will labor unions not be from speaking the words ‘‘provide our The lines Congress drew in 1974 were not able to do this within 60 days of an seniors with a prescription drug ben- within constitutional bounds. But other election, not only will corporations not efit.’’ The right to speak any of these

VerDate 28-MAR-2001 04:08 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\A28MR6.021 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3039 phrases at any time is protected as a U.S. Constitution. It is not Congress’ Let’s go further. Electioneering com- core fundamental right under the first role to pass unconstitutional legisla- munications are defined as any com- amendment. tion and stand by while that legisla- munications in the electorate within 60 It is especially important to our de- tion is struck down by the courts. days before a general election that ‘‘re- mocracy that we protect a person’s The provision of the McCain-Fein- fers to a clearly identified candidate’’— right to speak these phrases during an gold legislation that unconstitution- regardless of whether such communica- electoral campaign because it is ally burdens free speech is section 201, tion urges a vote for or against that through elections that the funda- the so-called Snowe-Jeffords amend- candidate. mental issues of our democracy are ment. That is what the current DeWine The problem with this line-drawing most thoroughly defined. It is through amendment seeks to address. Snowe- exercise is that the Supreme Court has elections that the leaders of our de- Jeffords is designed to address what already done it. In Buckley v. Valeo mocracy are put in place to carry out many have characterized as a loophole the Supreme Court defines what types the people’s will. in the campaign finance laws that al- of issue advocacy could, consistent Not only does a person have a right lows third parties prior to an election with the Constitution, be made subject to speak out during a campaign regard- to fund advertisements which relate to FECA’s regulatory requirements. ing candidates and issues, a person also exclusively to an issue and refrain from The Court found that only communica- has a right to speak out in an effective the expressly urging to vote for or tions that expressly advocated for or manner. The right to speak would have against a particular candidate. Recent against a specific candidate were sub- little meaning if the government could experience has shown that such speech ject to regulation. The Snowe-Jeffords place crippling controls on the means may effectively advance the prospects amendment invades the constitu- by which a person was permitted to of one candidate over another, even tionally protected territory of pure communicate his or her message. For though it refrains from express advo- issue advocacy. In fact, that invasion is instance, the right to speak would have cacy of the candidate. the sole purpose of the provision. little meaning if a person was required I applaud my colleagues for their in- It may well be true that third parties to speak in an empty room with no one genuity in seeking to address this ave- are, in fact, able to influence the elec- listening. nue by which money, unregulated by torate for or against the candidate by Accordingly, the Supreme Court has our electoral laws, may play a role in running independent issue advertise- consistently ruled that Congress may our elections. ments, uncoordinated with a can- not burden a person’s constitutional You can call a dog a hog and it still didate’s campaign, in the weeks lead- right to express his or her opinion dur- remains a dog. I think trying to say ing up to the election. That phe- ing an electoral campaign. And to ef- their amendment and this particular nomenon does not manifest a flaw in fectuate these rulings, the Court has clause in this bill is not violative of the the regulatory scheme established by consistently held that Congress may first amendment free speech rights fits our current campaign finance laws. For not burden a person’s right to expend the description of trying to call a dog better or for worse, that phenomenon money to ensure that his or her opin- a hog. Still, it remains a dog. manifests the free interchange of ideas ion reaches the broadest possible audi- The problem I have with this portion in an open society. Such issue advo- ence. of the legislation is that issue advo- cacy is free speech, protected by the In Buckley, the Supreme Court made cacy prior to an election simply cannot first amendment, and accordingly, the a fundamental distinction that has sur- be viewed as a loophole in the election McCain-Feingold legislation is uncon- vived to this day, a distinction that laws that we must endeavor to close stitutional. In Snowe-Jeffords, those provisions must inform our discussion of cam- with appropriate legislation. Viewed are fatally overinclusive. They try to paign finance, and a distinction that through the lens of the first amend- sweep away our first amendment polit- continues to place significant limita- ment, this issue advocacy is exactly ical speech. The Supreme Court has tions on what reforms are permissible the type of speech that must be ac- been more than clear on this. What the under the strictures of the first amend- corded the ultimate protection of the authors are attempting to do is under- ment of the U.S. Constitution. first amendment. The Supreme Court standable, it is well intentioned, but With respect to expenditures, the has consistently refused to sanction unfortunately it is unconstitutional. Court has said this: disclosure requirements on issue advo- cacy, unless the communication in That is one reason I have to stand here A restriction on the amount of money a today and speak out for the amend- person or group can spend on political com- question directly advocates for or munication during a campaign necessarily against a particular candidate. ment of the distinguished Senator from reduces the quantity of expression by re- Look, issue advocacy generally is Ohio. stricting the number of issues discussed, the used against us Republicans. There is I believe he is right in his motion to depth of their exploration, and the size of the not much doubt about that. That is strike. I believe he is right. I believe audience reached. . . . The expenditure lim- where the money is. It is used against we ought to support him, and I hope itations contained in the Act represents sub- both from time to time, but really our colleagues will. stantial rather than merely theoretical re- I yield the floor. straints on the quantity and diversity of po- against us. I remember back in 1982 The PRESIDING OFFICER. The Sen- litical speech. The . . . ceiling on spending there was tremendous issue advocacy ator from Nevada. . . . would appear to exclude all citizens and against me by the trade union move- Mr. REID. Mr. President, on behalf of groups . . . from any significant use of the ment. It was very difficult to put up the opponents of this legislation, I most effective modes of communication. with some of the ads used against us, yield 20 minutes to the Senator from As recently as last year, in the case both in print and otherwise. But it was North Carolina, 20 minutes to the Sen- of Nixon v. Shrink Missouri Govern- a free speech right, and I would fight to ator from Maine, and 10 minutes to the ment PAC—and that is a 2000 case—the my death to defend those rights of free Senator from Minnesota. We have 50 Court reaffirmed its holding in Buck- speech. minutes left. Whatever time is left we ley, quoting extensively from the The Snowe-Jeffords amendment will yield back. Buckley opinion and reiterating that seeks to redraw the line between pro- I recognize my friend from Ohio is expenditure restrictions must be tected issue advocacy and nonprotected controlling the time on the other side. viewed as ‘‘direct restraints on express advocacy of a candidate in After Senator EDWARDS, I understand speech,’’ irreconcilable with the first order to regulate a larger chunk of it will be his time to allocate. That is amendment. public speech prior to an election. Sec- the only time we have requested to- As I said before, the McCain-Feingold tion 201 of the proposed legislation night. That is how we will allocate our legislation is well intentioned in its ef- broadens the Federal Election Commis- time. fort to remove the influence of big sion Act’s regulatory scope to include The PRESIDING OFFICER. The Sen- money from our electoral process. any individual or group that expends at ator from North Carolina. However, several provisions of the pro- least $10,000 a year on electioneering Mr. EDWARDS. I thank the Chair. posed legislation are simply irreconcil- communications. Now that is free Mr. President, we talked at great able with the first amendment of the speech. length in this debate about the need to

VerDate 28-MAR-2001 04:04 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.097 pfrm12 PsN: S28PT1 S3040 CONGRESSIONAL RECORD — SENATE March 28, 2001 return this democracy to the voters look at the language of the U.S. Su- Let me stop on this test for just a and to remove the influence of big preme Court in Buckley and if you look moment and give a couple of pieces of money or the appearance of influence at the cases that come after Buckley, evidence. First, the empirical studies of big money. Snowe-Jeffords does exactly what the show in the year 2000 election, 1 per- Tonight I want to talk about two U.S. Supreme Court in Buckley re- cent of the ads that fall within the test things: First, the two critical provi- quired in order to meet the test of con- of Snowe-Jeffords—that is, within 60 sions of the McCain-Feingold bill; and, stitutionality. First I will talk about days of the general election, mention second, I want to speak in opposition that test. the name or show the likeness of the to the DeWine amendment. The U.S. Supreme Court has estab- candidate, broadcast television ads—1 As most people who follow this de- lished four requirements in order for percent constituted legitimate issue bate know, the two most critical provi- the Snowe-Jeffords provision to be ads; 99 percent constituted campaign sions of this bill are the ban on soft found to be constitutional. ads. We know what our gut would tell money and the Snowe-Jeffords provi- The first of those requirements is us, anyway. We know from our own ex- sion. I first want to speak to the con- that it cannot be vague. The second is perience from watching these tele- stitutionality of the ban on soft that it must serve a compelling State vision ads, and voters would know from money. interest. The third, it must be nar- their own experience, that when they There has been some suggestion dur- rowly tailored to serve that interest. see these ads on television, in fact, ing the course of this debate that there The fourth, it cannot be substantially they are campaign ads. They are not is a serious question about constitu- overbroad. issue ads. They are advocating for the tionality. In fact, there is no serious The Court, in reaching that conclu- election or defeat of a particular can- question about that. The U.S. Supreme sion, first recognized that the first didate, not for some particular issue. Court in the Buckley case said that in amendment in the case of election- We now know empirically in the case order for the Congress to regulate eering—which is what we are talking of the 2000 election, 99 percent of those these sorts of contributions, the only about, campaign ads—is not absolute. ads covered by Snowe-Jeffords are constitutional test that must be met is There are certain circumstances where campaign ads and not issue ads. They a finding of a compelling State inter- first amendment rights can be re- are sham issue ads. They are a fraud est. stricted, but only if these tests are under the campaign election laws that In the Buckley case, the U.S. Su- met. exist in this country. preme Court went on to find, in fact, The first question, ‘‘cannot be Snowe-Jeffords is trying to eliminate that preventing the actuality or ap- vague.’’ The Snowe-Jeffords provision that fraud, eliminate that sham. What pearance of corruption constitutes a is by any measure, a clear, easy-to- we now know, the ads covered by compelling State interest. The lan- identify, bright-line test. It requires Snowe-Jeffords, 99 percent of those ads guage of the Court is: that the ad be within the 60 days before are not issue ads but are campaign ads. Congress was justified in concluding that the general election or within 30 days I have one or two examples. This is the interest in safeguarding against the ap- of the primary election; second, that it an ad run in a congressional election in pearance of impropriety requires the oppor- contain the likeness of a candidate or 1998: tunity of abuse inherent in the process of the name of the candidate; and third, Announcer: The Daily reports criminals raising large monetary contributions be that it be a broadcast television ad. are being set free in our neighborhoods. eliminated. No one reading that definition could In May, Congressman X voted to allow What the U.S. Supreme Court held in have any misunderstanding. It is spe- judges to let violent criminals out of jail, Buckley was in order to regulate these cific. It is clear. It is a bright-line test. rapists, drug dealers, and even murderers. soft money contributions, there must X’s record on drugs is even worse. X voted By any measure, it is not vague. It to reduce penalties for crack cocaine. And in first be a compelling State interest. would meet the first test established April, X voted to use your tax dollars to give They then went on to find that, in fact, by the U.S. Supreme Court in Buckley. free needles to illegal drug users. there was a compelling State interest Second, it ‘‘must serve a compelling Call X. Tell him he’s wrong. Dangerous created by the appearance of impro- State interest.’’ Just as in the case of criminals belong in jail. priety associated with raising these the soft money ban, the U.S. Supreme This doesn’t use the language used as large monetary contributions. Court has already held that avoiding illustrative by the U.S. Supreme Court The Buckley case has already decided the appearance of impropriety is, in in Buckley. It doesn’t say ‘‘vote for;’’ it the question of whether a ban on soft fact, a compelling State interest. The doesn’t say ‘‘elect;’’ it says ‘‘call.’’ But money contributions is, in fact, con- Court has already held that the reason any rational person, including all the stitutional. The U.S. Supreme Court for the Snowe-Jeffords provision is a people who watched this ad on tele- has held that, in fact, that ban is con- compelling State interest. So that test vision, know that this ad is aimed at stitutional and there is no serious or is easily and clearly met by the lan- defeating Congressman X in the cam- legitimate question about the constitu- guage of the Court in Buckley v. Valeo. paign. That is exactly what it is about. tionality of the soft money ban. The third, it ‘‘must be narrowly tai- That is what was demonstrated in my Now I want to move to the Snowe- lored to serve that interest.’’ First of chart, 99 percent of the ads that fall Jeffords provision. There has been all, why did Senators SNOWE and JEF- within the test of Snowe-Jeffords are some suggestion, including by my FORDS offer this provision as part of ads just like this. They are pure cam- friend from Ohio in offering his amend- McCain-Feingold? They offered it be- paign ads, plain and simple. These ads ment, that there are very serious ques- cause in order to avoid legitimate cam- are being paid for by contributions tions raised by the Snowe-Jeffords pro- paign election laws in this country, that otherwise would violate the legiti- vision of the McCain-Feingold bill. I what has been occurring is people have mate election laws of this country. will first summarize what Snowe-Jef- been broadcasting what has been de- What we are trying to do in Snowe- fords does. scribed as issue ads as opposed to cam- Jeffords, we have a very narrowly tai- Snowe-Jeffords bans for the 60-day paign ads. Now there is a ban, of lored provision that catches ads that period prior to a general election or a course, on the broadcasting of cam- are clearly campaign ads. We now 30-day period prior to a primary elec- paign ads with General Treasury funds, know that 99 percent of those ads that tion broadcast television ads by unions so instead they call these ads issue ads, fall within Snowe-Jeffords are cam- or corporations paid for out of general not campaign ads, in an effort to avoid paign ads, plain and simple; not issue treasury funds. It also contains certain that legitimate legal restriction. ads. disclosure provisions for other entities In fact, what we know both empiri- So what conclusion do we draw from who may want to run such ads. cally and from our own experience, this? If 99 percent of the ads are cam- The suggestion is made that under many of these so-called issue ads—not paign ads, if, in fact, 99 percent of the the criteria established by the U.S. Su- many, the vast majority—of these so- ads are like the one I have just shown preme Court in Buckley, Snowe-Jef- called issue ads are campaign ads, par- as illustrative, they ‘‘must be narrowly fords does not meet constitutional ticularly when they fall within that 60- tailored’’ to pass constitutional mus- muster. In fact, it is very clear if you day period. ter.

VerDate 28-MAR-2001 04:04 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.101 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3041 It is not vague, a clear, bright-line For those who come to the floor and have already done during this debate, test, we have compelling State inter- say, wait a minute, Snowe-Jeffords which is pass the ban on soft money; est, and now we know this provision is doesn’t use the magic language, doesn’t but to, second, pass the Snowe-Jeffords narrowly tailored, and that goes hand use ‘‘vote for,’’ doesn’t use ‘‘elect’’— provision. Because, number one, it is in glove, by the way, with the fourth what the U.S. Supreme Court made constitutional and, number two, it is provision, which means it ‘‘cannot be clear in their case was these are noth- absolutely critical to going about rees- substantially overbroad.’’ ing but illustrations of what changes tablishing the public faith in our cam- The Court recognized that any time an ad from an issue ad to a campaign paigns and the public faith in our elec- you have a bright-line test that is not ad. tion system. Because not only are peo- vague, you are, by definition, going to Sure, if they say ‘‘vote for’’ and ple worried about the flow of money, catch some stray advertisements that ‘‘elect’’ they become a campaign ad, they are worried about what happens are not intended to be included. They but as we have shown from the illustra- when they turn their television sets on don’t just require that there be no tion a few moments ago, it is just as in the 30 or 60 days before an election. overbreadth. There has to be substan- simple to have a pure campaign ad that They are sitting there watching tele- tial overbreadth in order to be uncon- never says ‘‘vote for,’’ that never says vision with their kids and what do they stitutional. ‘‘elect,’’ that simply says: Call Con- see? They see these nasty, personal at- What we now know empirically, 99 gressman so-and-so, call Senator so- tacks, in a huge percentage of the cases percent of the ads that meet Snowe- and-so. But any rational person look- being paid for as issue ads, out of funds Jeffords are exactly what are intended ing at the ad would know it was calling that are not intended to be used for to be targeted by Snowe-Jeffords. The for the election or defeat of a par- that purpose. empirical evidence clearly supports the ticular candidate and it was nothing, That is what Snowe-Jeffords is in- notion that Snowe-Jeffords is not sub- on its face, but a pure campaign ad. tended to stop. Snowe-Jeffords is clear- stantially overbroad, on top of the fact The point is, it is not a legitimate ar- ly constitutional. We should defeat the that the provisions of the bill itself are gument that because Snowe-Jeffords DeWine amendment as a result. not substantially overbroad. They are does not use these magic words—the I yield the floor. narrowly tailored. They do exactly language I have heard during the Mr. WELLSTONE addressed the what the U.S. Supreme Court has re- course of the debate—it cannot pass Chair. quired. constitutional muster. The PRESIDING OFFICER (Mr. I suggest that, in fact, Senators The Supreme Court established four CHAFEE). The Senator from Minnesota. SNOWE and JEFFORDS have done a ter- tests in Buckley v. Valeo. The Supreme Mr. WELLSTONE. Mr. President, rific job of meeting the constitutional Court, in fact, invited us, the Congress, first of all, let me thank my colleague test because they have made the provi- to decide what language ought to be from North Carolina for his excellent sion for bright line, they have made it used to determine whether ads, in fact, dissertation. I just loved it when he clear it is not vague, and at the same are prohibited or not prohibited. They was going through these ads. I want to time it is sufficiently narrow to meet have left it to us to define what ads are make it real clear that for all of these the constitutional requirements of prohibited. different groups and organizations—I Buckley v. Valeo. The only thing they require in order don’t want to keep my colleague from What we now know and can see by to do that is that we meet the four North Carolina—on the floor, but I looking at the constitutional require- tests they established, which we talked know he will agree with this very im- ments is that Snowe-Jeffords meets all about before. Snowe-Jeffords clearly portant distinction—that all of these those requirements. The U.S. Supreme meets all those tests. It is not vague. It groups and organizations, whether they Court has established these require- is a clear, easy to understand bright- are left, right, center, lean Democratic, ments, has defined what they mean, lean Republican, you name it, they can and Snowe-Jeffords, we know, meets line test. The U.S. Supreme Court al- run all the ads in the world they want those requirements. The empirical evi- ready said what we are attempting to and they can finance those ads with dence shows it is not overly broad, it is do serves a compelling State interest, soft money; in other words, money not substantially overbroad, that it it is narrowly tailored—60 days before they get in contributions of hundreds reaches very few ads that are, in fact, a general election, 30 days before a pri- of thousands of dollars, and it is abso- issue ads. mary, likeness or name of the can- One argument made is that Buckley didate, broadcast ads. And it is not lutely fine as long as the focus is on v. Valeo uses a test in order for an ad substantially overbroad. As we have al- the issue. As long as those are genuine to be a campaign ad, as opposed to an ready established in the last election, issue ads and it is not electioneering, issue ad: ‘‘Vote for,’’ ‘‘elect,’’ ‘‘sup- 99 percent of the ads that fall within they have all of the freedom in the port,’’ ‘‘cast your ballot for.’’ The peo- the definition of Snowe-Jeffords are, in world to do that—period. No question ple who are making that argument are fact, campaign ads and not issue ads. about it. not reading the U.S. Supreme Court If you look carefully at the U.S. Su- Second, if they want to do the elec- opinion. Because what the Court said preme Court opinion in Buckley, and if tioneering and they want to do these was, in order to make the existing elec- you look at the tests that have been es- sorts of ads where you say ‘‘call’ as op- tion laws—as of the time of this opin- tablished by the U.S. Supreme Court, posed to ‘‘vote against candidate x,’’ ion—constitutional, we are going to es- first of all, the soft money ban of you bash the candidate, whatever tablish a test since Congress did not do McCain-Feingold is, on its face, con- party—they can run all the ads they it. They go on and invite us to do it, to stitutional. There is not even a legiti- want and they can have all of the free- establish the test. Instead of saying mate argument that it is not constitu- dom of speech in the world. The only ‘‘this is language that is required,’’ tional. thing is, they have to finance it out of they say: Second, the Snowe-Jeffords provision hard money. That is all. They cannot This construction would restrict the appli- of the McCain-Feingold bill, which pretend that these are ‘‘issue ads’’ cation of section 608...to communications bans broadcast ads during this defined when they are sham issue ads and we containing express words of advocacy of elec- period, paid for out of union or cor- all know it is electioneering. That is tion or defeat, such as ‘vote for,’ ‘elect’.... poration treasury funds, also clearly the point. But they can do it. They just It is obvious from the ‘‘such as’’ lan- meets all the constitutional tests es- have to raise their money under the guage that the Court by no means in- tablished by the Court in Buckley v. campaign limits that deal with hard tended this list to be exhaustive. The Valeo. It is a critical component of the money. That is the whole point of some Court fully recognized that given the McCain-Feingold bill because without of the amendments to this bill. imagination of campaign managers and it we are going to continue to see these From my own part, one more time— people who prepare these ads, that they sham issue ads run solely for campaign and the more I talk to people, I think could not even begin to do an exhaus- purposes being paid for by funds that the people agree this is a very impor- tive list. This list is nothing but illus- are not legitimate and are not legal. tant strengthening amendment—what trative, never intended to be anything The only way we can bring this thing we want to make sure of is when we do but illustrative. to conclusion is to not only do what we the prohibition on soft money to the

VerDate 28-MAR-2001 04:04 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.103 pfrm12 PsN: S28PT1 S3042 CONGRESSIONAL RECORD — SENATE March 28, 2001 parties, all of a sudden that money, could engage in electioneering that falls . . . should MCFL’s independent spending again, like pushing Jell-O, doesn’t just within the broad definition. It could impose so extensive that the organization’s major shift to these sham issue ads where a fundraising restrictions prohibiting individ- purpose may be regarded as campaign activ- variety of existing groups and organi- uals from pooling large contributions to- ity, the corporation would be classified as a wards such electioneering. political committee . . . As such, it would zations, much less the proliferation of automatically be subject to the obligations all the new groups and organizations, Fifth point: If you believe that the amendment that passed the other night and restrictions applicable to those groups will take advantage of a loophole and whose primary objective is to influence po- just pour all of their soft money into that I introduced covers certain groups litical campaigns. these sham issue ads which are really unconstitutionally—if that is what you Yet since the decision, such groups electioneering. In that case, what will believe—then you must also believe have actually operated outside the law we have accomplished if we have, that the current Shays-Meehan bill— with impunity. Take for example, the roughly speaking, just as much soft the version passed by the House of Rep- organization ‘‘Republicans for Clean money spent but it is just going to be resentatives—and the 1997 version, and Air.’’ spent in a different way, unaccountable all previous versions of the McCain- Despite it’s innocuous name, this was big dollars? Feingold bill are also unconstitutional an organization created for the sole That is what the amendment I intro- because they cover the same groups. purpose of promoting the candidacy of duced the other night was all about. Point No. 6: In September 1999, Don George W. Bush during the Republican I only came to the floor because I Simon, then-executive vice president primary during the last election. An- want to make sure the RECORD is clear. and general counsel of Common Cause, other example is the Club for Growth. My colleague from Maine was gracious argued in a memo to all House Mem- This was an outfit that ran attack ads enough to give me a little bit of time. bers that the Shays-Meehan bill is against moderate Republican congres- Let me make three quick points. fully constitutional. That is exactly sional candidates in Republican con- Point No. 1. The amendment I intro- the amendment we passed the other gressional primaries. Both groups, duced the other night—since this night on the floor of the Senate. which would be covered by my amend- amendment has been mentioned sev- Finally, in the event of constitu- ment—but not the current Snowe-Jef- eral times by my colleague—uses the tional problems, the amendment passed fords provision—could clearly be exact same sham issue test ad, with the other night is fully severable. banned from running these sham issue some additional targeting, as the I make five arguments as to why this ads with their treasury funds under the Snowe-Jeffords language in the bill is a very different question. Massachusetts Citizens for Life deci- which is constitutional. In fact, actu- First, this amendment, and indeed sion. ally the targeting language I use the Snowe-Jeffords provision already Fifth, the court’s decision was based makes the amendment more likely to in the bill, only covers broadcast com- on a premise that may have been true survive any constitutional challenge. munications. It does not cover print in 1986, but certainly is not the case Point No. 2, the Snowe-Jeffords test communications like the one at issue today: that non-profit groups such as is a bright-line test, as my colleague in Massachusetts Citizens for Life. In- the one at issue in the decision did not from North Carolina pointed out. It is deed, the group argued that the flyer play a major rule in federal elections. perfectly obvious on its face, whether should have been protected as a news In fact, the court held that: ‘‘the FEC an ad falls under this definition. This ‘‘editorial.’’ Snowe-Jeffords specifi- maintains that the inapplicability of means there will be no ‘‘chilling ef- cally exempts editorial communica- [current law] to MCFL would open the fect’’ on protected speech, which was a tions. door to massive undisclosed spending concern raised by the Supreme Court Second, the court based its decision by similar entities . . . We see no such in the Buckley decision because every in part on the logic that regulation of danger.’’ Today, it is clear that the group, every organization would be un- election related communications was FEC had it exactly right and the Court certain if an ad they intended to run overly burdensome to small, grass had it exactly wrong. would be covered or not. We make sure roots, nonprofit organizations and so In fact, the Campaign Finance Insti- everybody would be certain. would have a chilling effect on speech. tute at George Washington University Point No. 3, the test is not overly But the Snowe-Jeffords standard that in a February 2001 report found this to broad. A comprehensive study con- the amendment would apply has a high be the case and stated quote: ‘‘These ducted by the Brennan Center, which threshold that must be met before a undisclosed interest group communica- did a whole lot of work on campaign fi- communication is covered. A group tions are a major force in U.S. not lit- nance ads during the 1998 election, would have to spend $10,000 on broad- tle oddities or blips on a screen.’’ Per- found that only two genuine issue ads, cast ads that mention a federal can- haps in 1986 it was a ‘‘blip on the out of hundreds run, would have been didate 60 days before an election before screen’’ but today we are talking about inappropriately defined as a sham issue this provision would kick in. This tens of millions of dollars just in these ad. meets the Court’s requirement in the sham issue adds. These groups have be- This is a really important one for the case that minor communications be come major players in our elections RECORD. protected. but the law does not hold them ac- On February 20, 1998, a letter signed Third, the federal law that the court countable. by 20 constitutional scholars, including objected to was extremely broad and I yield the floor. the former director of the ACLU, which the Court specifically cited that fact as The PRESIDING OFFICER. The Sen- analyzed the Snowe-Jeffords provision one of reasons it reached the decision ator from Maine is recognized. on electioneering communications, ar- it did, saying ‘‘Regulation that would Ms. SNOWE. Mr. President, I want to gued that even though the provision produce such a result demands far conclude the debate on the motion to was written to exempt certain organi- more precision that [current law] pro- strike that has been offered by my col- zations from the ban on electioneering vides.’’ This amendment provides that league from Ohio by making several communication, such omission was not precision. The Snowe-Jeffords language points on the Snowe-Jeffords provision. constitutionally necessary. is very narrowly targeted and has a We will conclude the debate tomorrow I quote from these scholars, includ- very high threshold before it applies, before the vote. But I think it is crit- ing a former director of the ACLU: which further protects amateur, unso- ical for my colleagues to understand The careful crafting of the Snowe-Jeffords phisticated, or extremely limited com- that the essence of this provision, as amendment stands in stark contrast to the munications. the Senator from North Carolina so clumsy and sweeping prohibition that Con- Fourth, the Court actually argued eloquently stated, the legal rationale gress originally drafted. Congress could, if it that the election communications of for the underpinnings of this amend- wished, apply the basic rules that currently non-profit corporations—such as the ment, was drafted with an abundance govern electioneering to all spending that falls within this more realistic definition of ones covered by amendment—could be of caution. It was carefully crafted to electioneering. Congress could, for example, regulated once it reached a certain specifically address the issues that declare that only individuals, PAC’s and the level. In fact, the Court held that, were raised in the Buckley decision in most grassroots of nonprofit corporations quote: 1976 with respect to the restrictions

VerDate 28-MAR-2001 04:04 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.106 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3043 being either too vague or too broad, kinds of ads that are pervading the are. I have a list here. Some of them we and so they in effect would not have a election process today. They are escap- would probably readily identify by chilling effect on the public’s right to ing. They are coming in under the name, at least in terms of their inter- free speech. radar of disclosure. ests. But while you do not know most Since that time, as I indicated ear- We are saying those major donors of of them, this is a list of 100 organiza- lier, in the 25 years or 26 years that $1,000 or more—that is five times the tions. And this is not all of them. This have ensued, there has been no other requirement for disclosure that we is not all inclusive. But you have the major campaign finance law that has have to provide as candidates under Americans for Hope, Growth & Oppor- been passed by this Congress or that Federal election laws—but we are say- tunity, Americans for Job Security, has come before the Supreme Court be- ing five times higher before the trigger Coalition to Protect Americans Now, cause we have not acted. We have not for disclosure occurs to organizations Coalition to Protect America’s Health taken any action on campaign finance that run ads in that 60-day window, in Care, Committee for Good Common reform or changes in our campaign fi- the 30-day window in the primary, that Sense. Those all sound very appro- nance laws since that time. mention a candidate because it is clear priate, meritorious, but who are they? We have seen the evolution and the that the intent is designed to influence Who are they? eruption of the so-called sham issue the outcome of an election. We are not saying they can’t run ads. ads that supposedly were operating In Buckley, it said Congress has They can run ads all year long. They under the guise of being advocacy ads. broader latitude to require disclosure can do whatever they want in that But in reality, as we all well know, of election-related spending than it sense. But what we are saying is, when with the studies that have been done does to restrict such spending. Disclo- they come into that narrow window, we recently on the influence and impact sure rules, according to the Court, are have the right to know who are their they are having on the election because the least restrictive means of curbing major contributors who are financing they mention the candidates by name, the evils of campaign ignorance and these ads close to an election. they come into that very narrow win- corruption. There are no guaranteed rights to an- dow of 60 days before an election. Congress banned corporate union onymity when it comes to cam- That is not just happenstance; it is contributions as upheld in United paigning. Even the Supreme Court has because the election is occurring. They States v. UAW in 1957, reaffirmed, as I said it is in our public interest to have design these ads to mention a can- said earlier, in the Austin v. Michigan disclosure. In fact, the Court has said didate and to avoid using those magic Chamber of Commerce decision in 1990. time and time again, disclosure is in words ‘‘for or against’’ but knowing It is all weighted in sound legal prece- the public’s interest because it gives full well that it will have an effect on dent. That is what the Snowe-Jeffords details as to the nature and source of the intended audience on a candidate’s provision is all about. the information they are getting. That election. I really do think we have to come to is why 70 constitutional scholars have We are very definitive. We are very grips with the realities of what is oc- endorsed the Snowe-Jeffords provision. specific in the Snowe-Jeffords provi- curring in our elections when 99 per- Mr. President, I ask unanimous con- sion in the McCain-Feingold legislation cent —99 percent is almost as high as it sent to have this letter from the Bren- that is before us. It has to identify. It gets—99 percent of all of the ads that nan Center for Justice printed in the has to mention a candidate. The ad has are aired during that period of time be- RECORD. There being no objection, the letter to run 60 days before a general election fore the election mention candidates. was ordered to be printed in the and 30 days before a primary. The ad And their intent is clear, because all RECORD, as follows: has to run in a candidate’s State or dis- the focus groups that responded to the trict. Snowe-Jeffords provision used that as BRENNAN CENTER FOR JUSTICE AT Those criteria are very specific, and NYU SCHOOL OF LAW, an analysis and viewed these ads, and New York, NY, March 12, 2001. therefore anybody who has the inten- identified these ads as being the most Senator JOHN MCCAIN, tion of running those ads will know ex- influential, negative, and intended to Senator RUSSELL FEINGOLD, actly whether or not they are treading effect an outcome. So that is essen- U.S. Senate, Washington, DC. constitutional grounds. That is why 70 tially what we are talking about. DEAR SENATORS MCCAIN AND FEINGOLD: We constitutional scholars and experts I think the vote tomorrow to strike are scholars who have studied and written signed a letter in support of these pro- this provision is basically coming down about the First Amendment to the United States Constitution. We submit this letter to visions, because they know they don’t to whether or not we want funda- respond to a series of public challenges to run afoul of constitutional limitations mental reform, if we are willing to two components of S. 27, the McCain-Fein- in the first amendment because it is take back the process, if we are willing gold Bill. Critics have argued that it is un- very specifically drafted to address to take back the process as candidates. constitutional to close the so-called ‘‘soft those issues. I want to control my own campaign. money loophole’’ by placing restrictions on Fundamentally, it really comes down As I said in my previous statement, in the source and amount of campaign con- to whether or not we are truly inter- 1978 when I first ran for the House of tributions to political parties. Critics have ested in disclosure. The Supreme Court Representatives, these phenomena also argued that it is unconstitutional to re- said we have a right to disclosure. It is were virtually unknown. It was rare to quire disclosure of campaign ads sponsored by advocacy groups unless the ads contain in the public interest. It is a compel- even have an independent expendi- explicit words of advocacy, such as ‘‘vote ling public interest for disclosure. The ture—and that is another story—under for’’ or ‘‘vote against.’’ We reject both of Supreme Court has said clearly in a Federal election laws. That is a dif- those suggestions. number of cases for constitutional pur- ferent thing. But we did not even have As constitutional scholars, we are deeply poses that electioneering is different that. committed to the principles underlying the from other speeches. That was handed These elections should be between First Amendment and believe strongly in down as one decision by the Supreme and among the candidates themselves. preserving free speech and association in our society, especially in the realm of politics. Court in 1986. Do we really think it is in our interest, We are not all of the same mind on how best Of course, in the Buckley case, it said in the public’s interest, to have organi- to address the problems of money and poli- Congress has the power to enact cam- zations of whom we know little, if any- tics. However, we all agree that the nation’s paign financing laws that extend elec- thing, to influence, to impact, our elec- current campaign finance laws are on the tioneering through a variety of ways, tions—In fact, to spend more than the verge of being rendered irrelevant, and that even though spending in other forms of candidates themselves in some of these the Constitution does not erect an insur- political speech is entitled to absolute elections? Sometimes these organiza- mountable hurdle to Congressional efforts to first amendment protection. It said, as tions spend more than the candidates adopt reasonable campaign finance laws aimed at increasing disclosure for election- an example, to ‘‘vote for’’ or ‘‘vote themselves who are involved in these eering ads, restoring the integrity of the against’’ are the magic words but that elections. Are we saying that that is in long-standing ban on corporate and union it was not all-inclusive. our public interest? political expenditures, and reducing the ap- The Supreme Court could not pos- They hide behind the cloak of ano- pearance of corruption that flows from ‘‘soft sibly have foreseen the evolution of the nymity. We do not even know who they money’’ donations to political parties.

VerDate 28-MAR-2001 04:04 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.108 pfrm12 PsN: S28PT1 S3044 CONGRESSIONAL RECORD — SENATE March 28, 2001 The problems of corruption and the appear- national parties be subject to FECA’s hard from pouring unlimited funds into a can- ance of corruption that the McCain-Feingold money restrictions. The bill also would bar didate’s political party in order to buy pre- Bill attempts to address are ones that inhere federal officeholders and candidates for such ferred access to him after the election. See in any system that permits large campaign offices from soliciting, receiving, or spending also Nixon v. Shrink Missouri Govt. PAC, 120 contributions to flow to elected officials and soft money. Additionally, state parties that S. Ct. 897 (2000) (reaffirming Buckley’s hold- the political parties. These problems have are permitted under state law to accept un- ing that legislatures may enact limits on been brought to the public’s attention in a regulated contributions from corporations, large campaign contributions to prevent cor- rather stark manner through the recent labor unions, and wealthy individuals would ruption and the appearance of corruption). presidential pardon issued to fugitive fin- be prohibited from spending that money on Accordingly, closing the loophole for soft ancier Marc Rich. Regardless of underlying activities relating to federal elections, in- money contributions is in line with the long- merits of that presidential decision, the pub- cluding advertisements that support or op- standing and constitutional ban on corporate lic perception that flows from the publicly- pose a federal candidate. and union contributions in federal elections reported facts is that large political contrib- We believe that such restrictions are con- and with limits on the size of individuals’ utors receive both preferred access to and stitutional. The soft money loophole has contributions to amounts that are not cor- preferential treatment from our elected gov- raised the specter of corruption stemming rupting. from large contributions (and those from ernment officials. These perceptions, regard- II. CONGRESS MAY REQUIRE DISCLOSURE OF prohibited sources) that led Congress to less of their truth or falsity in any indi- ELECTIONEERING COMMUNICATIONS, AND IT enact the federal contribution limits in the vidual case, are ultimately very corrosive to MAY REQUIRE CORPORATIONS AND LABOR first place. In Buckley v. Valeo the Supreme our democratic institutions. UNIONS TO FUND ELECTIONEERING COMMU- Court held that the government has a com- I. LIMITS ON ‘‘SOFT MONEY’’ CONTRIBUTIONS TO NICATIONS WITH MONEY RAISED THROUGH PO- pelling interest in combating the appearance POLITICAL PARTIES FROM CORPORATIONS, LITICAL ACTION COMMITTEES and reality of corruption, an interest that LABOR UNIONS, AND WEALTHY CONTRIBUTORS justifies restricting large campaign con- The current version of the McCain-Fein- ARE CONSTITUTIONAL tributions in federal elections. See 424 U.S. 1, gold Bill adopts the Snowe-Jeffords Amend- To prevent corruption and the appearance 23–29 (1976). Significantly, the Court upheld ment, which addresses the problem of thinly- of corruption, federal law imposes limits on the $25,000 annual limit on an individual’s disguised electioneering ads that mas- the source and amount of money that can be total contributions in connection with fed- querade as ‘‘issue ads.’’ Snowe-Jeffords de- given to candidates and political parties ‘‘in eral elections. See id. at 26–29, 38. In later fines the term ‘‘electioneering communica- connection with’’ federal elections. The cases, the Court rejected the argument that tions’’ to include radio or television ads that money raised under these strictures is com- corporations have a right to use their gen- refer to clearly identified candidates and are monly referred to as ‘‘hard money.’’ Since eral treasury funds to influence elections. broadcast within 60 days of a general elec- 1907, federal law has prohibited corporations See, e.g., Austin v. Michigan Chamber of tion or 30 days of a primary. A group that from making hard money contributions to Commerce, 494 U.S. 652 (1990). Under Buckley makes electioneering communications total- candidates or political parties. See 2 U.S.C and its progeny, Congress clearly possesses ing $10,000 or more in a calendar year must 441b(a) (current codification). In 1947, that power to close the soft money loophole by re- disclose its identity, the cost of the commu- ban was extended to prohibit union contribu- stricting the source and size of contributions nication, and the names and addresses of all tions as well. Id. Individuals, too, are subject to political parties, just as it does for con- its donors of $1,000 or more. If the group has to restrictions in their giving of money to tributions to candidates, for use in connec- a segregated fund that it uses to pay for elec- influence federal elections. The Federal Elec- tion with federal elections. tioneering communications, then only do- tion Campaign Act (‘‘FECA’’) limits an indi- Moreover, Congress has the power to regu- nors to that fund must be disclosed. Addi- vidual’s contributions to (1) $1,000 per elec- late the source of the money used for expend- tionally, corporations and labor unions are tion to a federal candidate; (2) $20,000 per itures by state and local parties during fed- barred from using their general treasury year to national political party committees; eral election years when such expenditures funds to pay for electioneering communica- and (3) $5,000 per year to any other political are used to influence federal elections. The tions. Instead, they must fund electioneering committee, such as a PAC or a state polit- power of Congress to regulate federal elec- communications through their political ac- ical party committee. Id. § 441a(a)(1). Individ- tions to prevent fraud and corruption in- tion committees. uals are also subject to a $25,000 annual limit cludes the power to regulate conduct which, The Supreme Court has made clear that, on the total of all such contributions. Id. although directed at state or local elections, for constitutional purposes, electioneering is § 441a(a)(3). also has an impact on federal races. During different from other speech. See FEC v. Mas- The soft money loophole was created not a federal election year, a state or local polit- sachusetts Citizens for Life, 479 U.S. 238, 249 by Congress, but by a Federal Election Com- ical party’s voter registration or get-out-the- (1986) (‘‘MCFL’’). Congress has the power to mission (‘‘FEC’’) ruling in 1978 that opened a vote drive will have an effect on federal elec- enact campaign finance laws that constrain seemingly modest door to allow non-regu- tions. Accordingly, Congress may require the spending of money on electioneering in a lated contributions to political parties, so that during a federal election year, state and variety of ways, even though spending on long as the money was used for grassroots local parties’ expenditures for such activities other forms of political speech is entitled to campaign activity, such as registering voters be made from funds raised in compliance absolute First Amendment protection. See and get-out-the-vote efforts. These unregu- with FECA so as not to undermine the limits Buckley v. Valeo, 424 U.S. 1 (1976). Congress lated contributions are known as ‘‘soft therein. is permitted to demand that the sponsor of a money’’ to distinguish them from the hard Any suggestion that the Supreme Court’s campaign and disclose the amount spent on money raised under FECA’s strict limits. In decision in Colorado Republican Federal the message and the sources of the funds. the years since the FEC’s ruling, this modest Campaign Committee v. FEC, 1518 U.S. 604 And Congress may prohibit corporations and opening has turned into an enormous loop- (1996), casts doubt on the constitutionality of labor unions from spending money on cam- hole that threatens the integrity of the regu- a soft money ban is flatly wrong. Colorado paign ads. This is black letter constitutional latory system. In the recent presidential Republican did not address the constitu- law about which there can be no serious dis- election, soft money contributions soared to tionality of banning soft money contribu- pute. the unprecedented figure of $487 million, tions, but rather the expenditures by polit- There are, of course, limits to Congress’s which represented an 85 percent increase ical parties of hard money, that is, money power to regulate election-related spending. over the previous presidential election cycle raised in accordance with FECA’s limit. In- But there are two contexts in which the Su- (1995–96). It is not merely the total amount of deed, the Court noted that it ‘‘could under- preme Court has granted Congress freer soft money contributions that raises con- stand how Congress, were it to conclude that reign to regulate. First, Congress has broad- cerns, but the size of the contributions as the potential for evasion of the individual er latitude to require disclosure of election- well, with donors being asked to give contribution limits was a serious matter, related spending than it does to restrict such amounts of $100,000, $250,000, or more to gain might decide to change the statute’s limita- spending. See id. at 67–68. In Buckley, the preferred access to federal officials. More- tions on contributions to political parties.’’ Court declared that the governmental inter- over, the soft money raised is, for the most Id. at 617. ests that justify disclosure of election-re- part, not being spent to bolster party grass- In fact, the most relevant Supreme Court lated spending are considerably broader and roots organizing. Rather, the funds are often decision is not Colorado Republican, but more powerful than those justifying prohibi- solicited by federal candidates and used for Austin v. Michigan Chamber of Commerce, tions or restrictions on election-related media advertising clearly intended to influ- in which the Supreme Court held that cor- speeding. Disclosure rules, the Court opined, ence federal elections. In sum, soft money porations can be walled off from the elec- in contrast to spending restrictions or con- has become an end run around the campaign toral process by forbidding both contribu- tribution limits, enhance the information contribution limits, creating a corrupt sys- tions and independent expenditures from available to the voting public. Plus, the bur- tem in which monied interests appear to buy general corporate treasuries. 494 U.S. at 657– dens on free speech rights are far less signifi- access to, and inappropriate influence with, 61. Surely, the law cannot be that Congress cant when Congress requires disclosure of a elected officials. has the power to prevent corporations from particular type of spending than when it pro- The McCain-Feingold bill would ban soft giving money directly to a candidate, or hibits the spending outright or limits the money contributions to national political from expending money on behalf of a can- funds that support the speech. Disclosure parties by requiring that all contributions to didate, but lacks the power to prevent them rules, according to the Court, are ‘‘the least

VerDate 28-MAR-2001 04:04 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\A28MR6.034 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3045 restrictive means of curbing the evils of what might ‘‘influence’’ a federal election. candidate and how many days before an elec- campaign ignorance and corruption.’’ Id. at The Supreme Court could have simply struck tion it is being broadcast. There is little dan- 68. Thus, even if certain political advertise- FECA, leaving it to Congress to develop a ger that a sponsor would mistakenly censor ments cannot be prohibited or otherwise reg- clearer and more precise definition of elec- its own protected speech out of fear of pros- ulated, the speaker might still be required to tioneering. Instead, the Court intervened by ecution under such a clear standard. disclose the funding sources for those ads if essentially rewriting Congress’s handiwork The prohibition is also narrow enough to the governmental justification is sufficiently itself. In order to avoid the vagueness and satisfy the Supreme Court’s overbreadth strong. overbreadth problems, the Court interpreted concerns. Advertisements that name a polit- Second, Congress has a long record, which FECA to reach only funds used for commu- ical candidate and are aired close to election has been sustained by the Supreme Court, of nications that ‘‘expressly advocate’’ the elec- almost invariably are electioneering ads in- imposing more onerous spending restrictions tion or defeat of a clearly identified can- tended to encourage voters to support or op- on corporations and labor unions than on in- didate. In an important footnote, the Court pose the named candidate. This conclusion is dividuals, political action committees, and provided some guidance on how to decide supported by a comprehensive academic re- associations. Congress banned corporate and whether a communication meets that de- view conducted of television advertisements union contributions in order ‘‘to avoid the scription. The Court stated that its revision in the 1998 federal election cycle. See Buying deleterious influences on federal elections of FECA would limit the reach of the statute Time: Television Advertising in the 1998 Con- resulting from the use of money by those ‘‘to communications containing express gressional Elections (Brennan Center for who exercise control over large aggregations words of advocacy of election or defeat, such Justice, 2000). This study examined more of capital.’’ United States v. UAW, 352 U.S. as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your bal- than 300,000 airings of some 2,100 separate po- 567, 585 (1957). As recently as 1990, the Court lot for,’ ‘Smith for Congress,’ ‘vote against,’ litical commercials that appeared in the na- reaffirmed this rational. See Austin v. ‘defeat,’ ‘reject,’’’ Buckley, 424 U.S. at 44 tion’s 75 largest media markets in 1998. The Michigan Chamber of Commerce, 491 U.S. 652 n.52. study found that there were a total of 3,100 (1990); FEC v. National Right to Work Com- But the Court did not declare that all leg- airings of only two separate commercials mittee, 459 U.S. 197 (1982). The Court empha- islatures were stuck with these magic words, that met the Snowe-Jeffords criteria of nam- sized that it is constitutional for the state to or words like them, for all time. To the con- ing a specific candidate within 60 days of the limit the electoral participation of corpora- trary, Congress has the power to enact a general election and that were judged by tions because ‘‘[s]tate law grants [them] spe- statute that defines electioneering in a more academic researchers to be true issue advo- cial advantages—such as limited liability, nuanced manner, as long as its definition cacy. This, the Snowe-Jeffords general elec- perpetual life, and favorable treatment of adequately addresses the vagueness and tion criteria were shown to have inac- the accumulation of and distribution of as- overbreadth concerns expressed by the curately captured only 1 percent of the total sets.’’ Austin, 491 U.S. at 658–59. Having pro- Court. political commercial airings, and rep- vided these advantages to corporation, par- Any more restrictive reading of the Su- resented an insignificant 0.1 percent of the ticularly business corporations, the state has preme Court’s opinion would be fundamen- separate political commercial airings in the no obligation to ‘‘permit them to use ‘re- tally at odds with the rest of the Supreme 1998 election cycle. This empirical evidence sources amassed in the economic market- Court’s First Amendment jurisprudence. demonstrates that the Snowe-Jeffords cri- place’ to obtain ‘an unfair advantage in the Countless other contexts—including libel, teria are not ‘‘substantially overbroad.’’ The political marketplace.’’’ (quoting MCFL, 479 obscenity, fighting words, and labor elec- careful crafting of Snowe-Jeffords stands in U.S. at 257). Snowe-Jeffords builds upon tions—call for delicate line drawing between stark contrast to the clumsy and sweeping these bedrock principles, extending current protected speech and speech that may be reg- prohibition that congress originally drafted regulation cautiously and only in the areas ulated. In none of these cases has the Court in FECA. in which the First Amendment protection is adopted a simplistic bright-line approach. CONCLUSION at its lowest ebb. For example, in libel cases, an area of core McCain-Feingold is a reasonable approach Contrary to the suggestion of some of the First Amendment concern, the Court has re- to restoring the integrity of our federal cam- critics of Snowe-Jeffords, the Supreme Court jected the simple bright-line approach of im- paign finance laws. The elimination of soft in Buckley did not promulgate a list of cer- posing liability based on the truth or falsity money will close an unintended loophole tain ‘‘magic words’’ that are regulable as of the statement published. Instead the that, over the last few election cycles, has ‘‘electioneering’’ and place all other commu- Court has prescribed an analysis that exam- rendered the pre-existing federal contribu- nications beyond the reach of campaign fi- ines, among other things, whether the speak- tion limits largely irrelevant. Similarly, the nance law. In Buckley, the Supreme Court er acted with reckless disregard for the truth incorporation of the Snowe-Jeffords Amend- reviewed the constitutionality of a specific or falsity of the statement and whether a ment into the McCain-Feingold Bill is a piece of legislation—FECA. One section of reasonable reader would perceive the state- well-reasoned attempt to define election- FBCA imposed a $1,000 limit on expenditures ment as stating actual facts or merely rhe- eering in a more realistic manner while re- ‘‘relative to a clearly identified candidate,’’ torical hyperbole. Similarly, in the context maining faithful to First Amendment vague- and another section imposed reporting re- of union representation elections, employers ness and overbreadth concerns. It seeks to quirements for independent expenditures of are permitted to make ‘‘predictions’’ about provide the public with important informa- over $100 ‘‘for the purpose of influencing’’ a the consequences of unionizing but they may tion concerning which private groups and in- federal election. The Court concluded that not issue ‘‘threats.’’ The courts have devel- dividuals are spending substantial sums on these specific provisions ran afoul of two oped an extensive jurisprudence to distin- electioneering, and it prohibits corporations constitutional doctrines—vagueness and guish between the two categories, yet the and labor unions from skirting the ban on overbreadth—that pervade First Amendment fact remains that an employer could harbor using their general treasury funds for the jurisprudence. considerable uncertainty as to whether or purpose of influencing the outcome of federal The vagueness doctrine demands clear defi- not the words he is about to utter are elections. While no one can predict with cer- nitions. Before the government punishes sanctionable. The courts are comfortable tainty how the courts will finally rule if any someone—especially for speech—it must ar- with the uncertainty of these tests because of these provisions are challenged in court, ticulate with sufficient clarity what conduct they have provided certain concrete guide- we believe that the McCain-Feingold Bill, as is legal and what is illegal. A vague defini- lines. currently drafted, is consistent with First tion of electioneering might ‘‘chill’’ some po- In no area of First Amendment jurispru- Amendment jurisprudence. litical speakers who, although they desire to dence has the Court mandated a mechanical Respectfully submitted, engage in discussions of political issues, may test that ignores either the context of the ERWIN CHEMERINSKY, fear that their speech could be punished. speech at issue or the purpose underlying the Sydney M. Irmas Pro- Even if a regulation is articulated with regulatory scheme. In no area of First fessor of Public In- great clarity, it may still be struck as Amendment jurisprudence has the Court terest, Law, Legal overbroad. A restriction that covers held that the only constitutionally permis- Ethics, and Political regulable speech (and does so clearly) can be sible test is one that would render the under- Science, University struck if it sweeps too broadly and covers a lying regulatory scheme unenforceable. It is of Southern Cali- substantial amount of constitutionally pro- doubtful, therefore, that the Supreme Court fornia. tected speech as well. But under the over- in Buckley intended to single out election RONALD DWORKIN, breadth doctrine, the provision will be regulations as requiring a mechanical, Quain Professor of Ju- upheld unless its overbreadth is substantial. formulaic, and utterly unworkable test. risprudence, Univer- A challenger cannot topple a statute simply Snowe-Jeffords presents a definition of sity College London; by conjuring up a handful of applications electioneering carefully crafted to address Frank H. Sommer that would yield unconstitutional results. the Supreme Court’s dual concerns regarding Professor of Law, Given these two doctrines, it is plain why vagueness and overbreadth. Because the test New York University FECA’s clumsy provisions troubled the for prohibited electioneering is defined with School of Law. Court. Any communication that so much as great clarity, it satisfies the Supreme ABNER J. MIKVA, mentions a candidate—any time and in any Court’s vagueness concerns. Any sponsor of a Visiting Professor, context—could be said to be ‘‘relative to’’ broadcast will know, with absolute cer- University of Chi- the candidate. And it is difficult to predict tainty, whether the ad depicts or names a cago School of Law.

VerDate 28-MAR-2001 04:04 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\A28MR6.038 pfrm12 PsN: S28PT1 S3046 CONGRESSIONAL RECORD — SENATE March 28, 2001

NORMAN ORNSTEIN, General Counsel from 1969–76 and as Presi- JACK PEMBERTON. Resident Scholar, dent of the ACLU from 1976–1991. Jack Pem- JOHN POWELL. American Enterprise berton and Aryeh Neier served as Executive JOHN SHATTUCK. Institute. Directors of the ACLU from 1962–1978. Melvin MELVIN WULF. NORMAN DORSEN, Wulf, Burt Neuborne, and John Powell Ms. SNOWE. Mr. President, every Stokes Professor of served as National Legal Directors of the previous president of the ACLU has en- Law, New York Uni- ACLU from 1962–1992. Charles Morgan, Jr., versity School of John Shattuck, and Morton Halperin served dorsed this legislation. They uphold it. Law. as National Legislative Directors of the As we know, they are an organization FRANK MICHELMAN, ACLU from 1972–1992. Together we constitute apt to take either side to preserve the Robert Walmsey Uni- every living person to have served as ACLU freedom and the right to speak. But versity Professor, President, ACLU Executive Director, ACLU they believe this meets the constitu- Harvard University. Legal Director, or ACLU Legislative Direc- tional soundness as crafted in previous BURT NEUBORNE, tor, with the exception of the current leader- decisions by the Supreme Court. John Norton Pomeroy ship. The Supreme Court did not say for- Professor of Law, We have devoted much of our professional New York University lives to the ACLU, and to the protection of ever and a day you could never pass School of Law. free speech. We are proud of our ACLU serv- any other legislation to address what DANIEL R. ORTIZ, ice, and we continue to support the ACLU’s might develop. As I said, the Court John Allan Love Pro- matchless efforts to preserve the Bill of could not possibly foresee 25 years fessor of Law & Jo- Rights. We have come to believe, however, later the emergence and the preponder- seph C. Carter, Jr. that the ACLU’s opposition to campaign fi- ance of the kind of ads that are clearly Research Professor, nance reform in general, and the McCain- overtaking the process. University of Vir- Feingold Bill in particular, is misplaced. In The time has come, I say to my col- ginia School of Law. our opinion, the First Amendment does not (All Institutional Affiliations are for Iden- forbid content-neutral efforts to place rea- leagues in the Senate, to recognize we tification Purposes Only) sonable limits on campaign spending and es- have to stand up and be counted on this very significant issue. And it comes Ms. SNOWE. They illustrate excep- tablish reasonable disclosure rules, such as down to disclosure. It comes down to tionally well the legal validity and ra- those contained in the McCain-Feingold Bill. We believe that the First Amendment is disclosure. I hope the Senate will stand tionale for this provision. It charts a designed to safeguard a functioning and fair four-square behind disclosure and sun- very narrow course. That is why they democracy. The current system of campaign light and against the unchecked proc- have every confidence it will withstand financing makes a mockery of that ideal by ess of these electioneering ads that are constitutional scrutiny. enabling the rich to set the national agenda, certainly transforming the political You hear some who say: Oh, no, it and to exercise disproportionate influence will create a loophole. On the other over the behavior of public officials. landscape in ways that we could not hand, it creates too many restrictions. We recognize that the Supreme Court’s possibly desire or embrace. Well, which is it? I think we have 1976 decision in Buckley v. Valeo makes it Mr. President, I yield the floor. extremely difficult for Congress to reform The PRESIDING OFFICER. The Sen- reached the point in time where we the current, disastrous campaign finance ator from Ohio. have to stand up and be counted as to system, and we believe that Buckley should Mr. DEWINE. Mr. President, may I whether or not we want to hide behind be overruled. However, even within the limi- inquire of the Chair how much time I the guise of anonymity, of organiza- tations of the Buckley decision, we believe have remaining? tional anonymity, to shape the direc- that the campaign finance reform measures The PRESIDING OFFICER. The Sen- tion and influence of these elections. I contained in the McCain-Feingold Bill are ator has 471⁄2 minutes. say that is the wrong direction. constitutional. Mr. DEWINE. Let me inform the The Annenberg Center did a study. It We support McCain-Feingold’s elimination Chair and my colleagues, I do not in- showed, as I said earlier, $100 million of the ‘‘soft money’’ loophole, which allows unlimited campaign contributions to polit- tend to take that entire time. I am was spent in the final weeks of the ical parties and undermines Congress’s effort sure the Chair is pleased by that. campaign. And guess what. They men- to regulate the size and source of campaign I do request of the Chair, though, in tioned a candidate by name. They men- contributions to candidates. There can be case I do get carried away, if the Chair tioned a candidate by name. That is no little doubt that large ‘‘soft money’’ con- would notify me when I have 10 min- coincidence. It had nothing to do with tributions to the political parties can cor- utes remaining. I don’t expect to get to influencing the issue agenda because, rupt, and are perceived as corrupting, our that point. If the Chair will do that, I as I showed on a chart earlier, what government officials. would appreciate it. was happening in Congress and what We also support regulation of the funding of political advertising that is clearly in- I have listened to my colleagues from was happening out in the elections was tended to affect the outcome of a specific Vermont and Maine, Arizona and North not parallel. The ads run by these orga- federal election, but that omits the magic Carolina. I agree with a lot of what nizations tracked the ads run by can- words ‘‘vote for’’ or ‘‘vote against.’’ The they have had to say. I don’t like a lot didates and had nothing to do, vir- McCain-Feingold Bill treats as election- of these ads either. I have the same tually speaking, with what Congress eering any radio or television ad that names fear that every incumbent does; that was addressing at that point in time. a federal candidate shortly before an elec- is, that the next time I run there is So that is why this legislation be- tion and is targeted to the relevant elec- going to be a group that will come in comes so important. It is an integral torate. It would ban the use of corporate and labor general treasury funds for such ads, and spend a whole bunch of money on part of the reform that is before us em- and it would require public disclosure of the Ohio TV and tell people what a bad bodied in the McCain-Feingold legisla- sources of funding for such ads when pur- Senator MIKE DEWINE has been. We all tion. It does represent a balanced ap- chased by other groups and individuals. We live in fear of that. We all live with a proach. believe that these provisions are narrowly lot of money coming in, and we have Mr. President, I ask unanimous con- tailored to meet the vagueness and over- the fear of very tough ads that use our sent to have a statement by persons breadth concerns expressed by the Supreme name, that use our picture, and tell the who have served the American Civil Court in Buckley, and thus are constitu- tional. voters why we are not doing such a Liberties Union printed in the RECORD. Finally, we believe that the current debate good job. We have that fear. There being no objection, the state- over campaign finance reform in the Senate The problem is, the Snowe-Jeffords- ment was ordered to be printed in the and House of Representatives should center Wellstone amendment is unconstitu- RECORD, as follows: on the important policy questions raised by tional. There is the first amendment. STATEMENT OF PERSONS WHO HAVE SERVED various efforts at reform. Opponents of re- Even though we may not like it when THE AMERICAN CIVIL LIBERTIES UNION IN form should not be permitted to hide behind LEADERSHIP POSITIONS SUPPORTING THE an unjustified constitutional smokescreen. people say things about us, that is part of their rights under the first amend- CONSTITUTIONALITY OF THE MCCAIN-FEIN- NORMAN DORSEN. GOLD BILL, MARCH 22, 2001 MORTON HALPERIN. ment. We have served the American Civil Lib- CHARLES MORGAN, Jr. I will respond specifically to a couple erties Union in leadership positions over sev- ARYEH NEIER. comments that have been made. My eral decades. Norman Dorsen served as ACLU BURT NEUBORNE. colleague from Maine and before that

VerDate 28-MAR-2001 04:49 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\A28MR6.041 pfrm12 PsN: S28PT1 March 28, 2001 CONGRESSIONAL RECORD — SENATE S3047 my colleague from Minnesota made the unions for the last 60 days during the What I have a hard time under- statement about former directors of period of time when it counts the most. standing is some of my colleagues and the ACLU. Let me respond to that by The bill now goes further. Not only my friends who, on other days are the referencing a letter from the current does it cover unions for 60 days, not most vehement advocates for the first ACLU opposing this language, opposing only does it cover corporations for 60 amendment, somehow don’t think this the bill. In part, in referencing this sec- days, now it says virtually nobody can violates the first amendment. tion of the bill, they say: run an ad that mentions the can- Mr. President, it is a direct attack on Simply put, the bill is a recipe for political didate’s name except the candidates. the first amendment. repression because it egregiously violates And no one can engage in discussion I talked this afternoon about my own longstanding free speech rights. about candidates’ voting records when campaign, my last campaign. I want to There is more to the letter, but that they mention their names. I don’t get back to that. I emphasize, most of is the essence of it. know how you discuss a candidate’s what my colleagues fear and have said With the exception of my colleague voting record without mentioning their I agree with. Each one of us lives in from Minnesota, everyone who has name, but you can’t talk about a can- fear of a group putting an ad on TV come to the floor this afternoon and didate’s voting record within 60 days of that criticizes us. We don’t become any this evening to argue against the an election unless you are the can- less human when we get into politics or DeWine amendment, each one of those didate or the other candidate, or unless when we come to the Senate. No one individuals, while I have a great deal of you own a TV station, or unless you likes criticism. And no one likes criti- respect for them and while they were are the commentator for the nightly cism that they think is unfair. Do you all very eloquent, each one of them, news. Everybody else, every other cit- know what. That is part of what we do. with the exception of Senator izen is silenced for 60 days. That is part of what you have to accept WELLSTONE, voted against the Do we really want to do that? Put- in the United States of America if you Wellstone amendment. I can’t tell my ting aside whether it is constitutional run for office—maybe not in some colleagues why in each case, but each or not constitutional—I think it is bla- other countries but here you do. That one of them did. The fact we must re- tantly unconstitutional, certifiably un- is what makes us different. member, and I ask my colleagues to re- constitutional, but even if it wasn’t— I told a story this afternoon about a member, is we no longer are dealing do we still want to do that in this group in Ohio—several groups that are with Snowe-Jeffords. We now are deal- country and say within 60 days before mad at me over my proposal and sup- ing with Snowe-Jeffords-Wellstone. the election all these people can’t talk port of a wildlife refuge in Ohio, the That is what is in the bill, not the anymore? I don’t think we do. Darby Refuge. I happen to think it is a original Snowe-Jeffords. Yes, speech is effective. My colleague good idea; they don’t. For some period Ninety percent of the debate we have from Maine in essence says it is too ef- of time, throughout the roads that I heard this evening is about Snowe-Jef- fective. She didn’t use those words, but travel close to my home, and up fords. That is not where we are. I didn’t she said it is having an impact. Yes, it through the different counties it takes come to the floor to offer an amend- is having an impact. That is what po- me to go through where this refuge ment to take out Snowe-Jeffords. It litical speech is all about. It is sup- would be in Madison County, I see an has been changed. It has been fun- posed to have an impact. awful lot of signs which say, ‘‘Dump damentally changed. Members need to Everything seems to be reversed. At DeWine.’’ I see signs that say, ‘‘No think about it. the crucial time when political speech Darby, No DeWine,’’ and variations of My friend from North Carolina who matters most to the voters, those who that. I don’t like it. But do you know voted against the Wellstone amend- hear it or see it, the bill as now written what. That is part of the first amend- ment said this in his closing statement says: You can’t do it. Sixty-one days ment. If those people who put those when he argued why he was going to out, you could run one of these ads, and signs up had decided to run TV ads, it vote against it: you could talk about MIKE DEWINE’s seems to me they ought to have a right So the reason Senator FEINGOLD and Sen- record. Fifty-nine days out from the to do that. Again, I would not like it, ator MCCAIN are opposing this amendment is election, you no longer can do it. And but I think they have a right to do the same reason that I oppose this amend- 3 days before the election, when every- that. I think they have the right to ment. It raises very serious constitutional one is paying attention, you can’t run pick the most effective way to get problems. The U.S. Supreme Court, in fact, those ads. During the period of time their message across, during the most in 1984, specifically ruled on this question. when it is most effective, you can’t run crucial time, when people are really fo- That is what Senator EDWARDS said the ad. cused and paying attention, which is 60 on this floor a short time before we Not only does it pick out the time days before the election, and to get voted on the Wellstone amendment. when it is the most effective, but the their message out. If they want to put Every person who has come to the bill also picks out the way candidates out a message on TV that basically floor, with the exception of Senator today communicate on TV and radio says, ‘‘Dump DeWine, ‘‘ or, ‘‘Call Mike WELLSTONE, every one who opposes the and says that is one method of commu- DeWine and tell him Darby is a bad DeWine amendment opposed the nication you can’t use. That is how we idea,’’ or variations of that, they ought Wellstone amendment. There had to be get our messages across. Whether we to have a right to do that—as much as a reason. are candidates or whether we are op- I would not like it. Again, what we are dealing with now posing candidates or whether we are It is a question of the first amend- is a changed bill, a changed playing issue groups, whoever we are, we get it ment. There has been a lot of talk, not field. It is a different ballgame. It is a across through TV. just on the floor but among my col- different bill. I say to each one of you You can’t compete and you cannot leagues for the last at least 3 days, al- who took an oath to uphold the Con- reach people in the State of Ohio un- most nonstop, about the issue of sever- stitution of the United States, it is a less you are on TV. That is a fact. ability. It is an issue we are going to different bill that we now are going to Whether you are an issue group attack- get and vote on tomorrow. We would be voting on tomorrow or the next day. ing MIKE DEWINE or whether you are not have that discussion if it weren’t My amendment makes it a better an independent expenditure group, so abundantly clear that the Wellstone bill. It makes it a constitutional bill. whoever you are, you can’t reach peo- provision, which is now part of Snowe- Now, where are we? What does the ple, or whether you are the candidate, Jeffords, is unconstitutional. Members new bill with the Wellstone amend- you can’t reach people unless you are know it. They tell you that privately. ment now say? It has the original pro- on TV. So they pick the most effective Some have said it publicly. But vir- visions of Senator SNOWE and Senator way to do it and the most important tually everyone gets that it is uncon- JEFFORDS: 60 days out, corporations, time, and they have taken those off the stitutional and the Court is going to unions no longer can engage in express table and said during that period of throw it out. advocacy. They no longer can run ads time, you can’t be on TV. It is a direct, This big debate tomorrow on sever- that are now allowed by law. That is a absolute attack on the first amend- ability and whether or not when one fundamental change. It is a gag on ment. part of the bill goes down, another part

VerDate 28-MAR-2001 04:49 Mar 29, 2001 Jkt 089060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\G28MR6.112 pfrm12 PsN: S28PT1 S3048 CONGRESSIONAL RECORD — SENATE March 28, 2001 should go down, or whether we should the proponents of the constitutionality in relationship to candidates, except fence off one part of the bill—that dis- of this provision have not shown there the candidates. cussion, and a fairly close vote tomor- is any compelling State interest. That is just not what we do in the row, will come about because people Now, the Court talked, in Buckley, United States. That is not what this know the Wellstone amendment is un- about the appearance of corruption. country is about. That is not how our constitutional. If it weren’t so, we Proponents of this constitutionality political debates should take place. In would not be having that debate. That provision have made the flat assump- essence, in a very revealing comment, is going to be the thing that is tion and assertion that there is an ap- my friend and my colleague from unspoken tomorrow when we get to pearance of corruption. Yet that is all Maine certainly implied that. That is that debate. they say. I don’t know what the evi- part of the problem with the way this I want to talk for a moment about dence is of that appearance of corrup- bill is currently crafted. my colleague from North Carolina, who tion. They made the flat out assertion This is the United States. I know is a very good lawyer. He and I had the that there is corruption, or there is the many times when our campaigns drag opportunity, during the impeachment appearance of corruption, and that on and on and they get pretty messy, hearings, to work together, along with gives them authority to write this type and they get pretty rough, a lot of peo- Senator LEAHY and others. I saw how of legislation. I think they have failed ple say: Gee, why don’t we do it the good he is. My colleague came to the in their burden of proof. Again, I state way this country does or that country, floor this evening and talked about the what the law is. The law is that they such and such a country. They do not constitutionality of Snowe-Jeffords. I have a burden of proof. mess around. They call an election in 6 respect what he has to say. Again, I Again, in conclusion, my amendment weeks. They were strict when you point out, though, that this is the same will strike article II of the bill. Article could be on TV. They have their elec- Member of the Senate—not much more II prohibits what I believe is constitu- tion, and it is over. Much as we might than 24 hours ago—who came to the tionally protected free speech on TV, long for that sometimes when our cam- floor and basically said the Wellstone within the last 60 days of an election, paigns drag on, or when Presidential amendment was unconstitutional. I un- by labor unions, corporations and, campaigns start basically a couple derstand that his comments tonight most importantly, by all outside inter- months after one Presidential election were about Snowe-Jeffords; but the est groups, by all groups of U.S. citi- is over and Senate races start several problem is that title II is no longer zens who have come together to talk in years in advance and House races seem Snowe-Jeffords, it is Snowe-Jeffords- the one way that is the most effective; to never stop, much as we long for that Wellstone, and it contains that provi- that is, on television. It bans that. tranquility and the order, if we really sion which Senator EDWARDS said is There is no compelling State interest thought about it, I do not think we unconstitutional, or certainly implied to do it. It is clearly unconstitutional. would really want it. As long as the Wellstone amendment it. I read it in the CONGRESSIONAL My friend and colleague from Maine stays in the bill, clearly this bill is RECORD. also made another interesting com- My colleague from North Carolina ment. She said, ‘‘I want to control my going to be held to be unconstitutional. What is different about us and other went through the tests that have been own campaign.’’ I am sure the Pre- countries is our first amendment. It is laid down by the Supreme Court. There siding Officer thinks the same way. I our first amendment that is at issue. are tests as to whether or not you can can tell you I think the same way. I Many countries do not have the equiva- basically infringe on the first amend- want to run my own campaign. I have lent of our first amendment that pro- ment. The courts will look at any re- had a lot of experience doing it. I have tects political speech, that protects striction on the first amendment from won some and lost some. I want to run free speech. We do and we are much a strict scrutiny point of view. One of my own campaign. She also said that better for it. Our political discussion is the tests is, is there a compelling State this debate should be between the can- much better for it and it is more in- interest? In other words, the burden didates themselves. Debate goes back formed. upon someone asserting that it is con- and forth on TV. We are different. I hope when Mem- stitutional to prohibit speech. That I sort of agree with that, too. At bers of the Senate think about this to- person has to prove to a court’s satis- least I understand what she means by night and prepare to vote tomorrow, faction that there is a compelling that. You run against someone and you they will remember the importance of State interest to do that, to restrict want to have that debate between the the first amendment. They will vote that speech, because the presumption two of you. You start to get nervous for the DeWine amendment. They will is you can’t restrict speech. I talked when someone else gets involved in the vote to make this a better bill. They this afternoon about that. debate. They may be trying to help you will vote to give this bill a much better There were some areas where the or your opponent. You do not know chance of being held to be constitu- courts have acknowledged that it is what they are doing. Sometimes they tional. constitutional to restrict speech, but do not know what they are doing. I un- It is not just a question of the Con- they are very narrow. They have held derstand where she is coming from. stitution; it is also a question of public that it has to be a compelling State in- This is not an exclusive club we are policy. Putting aside the constitu- terest, and the burden of proof is on talking about. There should be no walls tional issue, I do not think we want to those who assert the constitutionality. built up in the political arena to keep be in a position where this Congress It also has to be narrowly tailored. In people out. This is America. This is the says, basically as the thought police in other words, when the language is writ- United States. We do have a first this country, political speech police, ten to restrict speech, it has to be nar- amendment. that within 60 days of the election we rowly tailored. One of the basic beliefs of our found- are going to dramatically restrict who I have failed to hear any discussion ers was that public discussion of issues can speak in the only way that is effec- of any convincing nature of what the is essential to democracy. They did not tive in many States, and that is to be compelling State interest is. What is have TV in those days, obviously. They on TV. I do not think we want to do the compelling State interest that per- did not have radio. The main method of that, Mr. President. mits the U.S. Congress to say that communication was the printed press, I thank my colleagues, and I thank within 60 days before an election we posters being put up, or speeches di- the Chair. will stifle—shut off —free speech? What rectly given and directly heard, but the f compelling State interest is there, and principle is the same. The more people how is it narrowly drawn for Congress you can involve in political discussion, CAMPAIGN TAX CREDIT to say no speech within 60 days that the better it is. Mr. WARNER. Mr. President, as mentions a candidate’s name? How is There can be no walls built around chairman of the Rules Committee dur- that narrow? That is a sledgehammer the political arena where we say no one ing the 105th Congress, I presided over that comes down on the first amend- else can enter except the candidates. numerous hearings on campaign fi- ment and shatters it. It is certainly No one can participate except the can- nance reform and I filed two com- not narrowly tailored. And certainly didates. No one can talk about issues prehensive bills on this subject. And,

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