Statement in Support of the Snowe-Jeffords Amendment Concerning Issue Advocacy February 25, 1998 Thank you, Mr. President. I thank the Senator from Maine. Let me first say that it was an interesting comment by the Senator from Kentucky that those of us trying to pass campaign finance reform don't like Buckley v. Valeo. I don't have strong feelings on liking or not liking Supreme Court cases. I just consider them the law of the land. In this case, instead of taking the route that some people would like me and others to take of supporting a constitutional amendment to achieve campaign finance reform , something I vigorously opposed, I have instead, working with Senator McCain and others, chosen to find a way to pass a bill that is within the Court's rulings and holdings in Buckley v. Valeo. So I happen to think that is the controlling law. And the suggestion that somehow we don't consider that to be a valid case is simply wrong. Our efforts for 3 years have consistently been to craft a bill that the United States Supreme Court would say is constitutional in every respect. In fact, the Senator from Kentucky, after years of trying to suggest that the voluntary spending limits and the soft money ban are unconstitutional, now is only focusing on suggesting that a redefinition of phony issue ads is somehow unconstitutional. I think that is not at all an established proposition. I might add, I think our efforts here on this bill, with the help of the Snowe-Jeffords amendment, are getting stronger. Every day we are getting a little stronger on this bill, and it is a good feeling. So it is my pleasure to rise today to speak in support of the amendment that the distinguished Senators from Maine and Vermont have offered. It reminds me of the tremendous help that the Presiding Officer, the other Senator from Maine, gave us when she had some ideas about how we could improve our bill. This is how you get a good bill. People with good ideas come together and gradually it gets improved, you gain support, until the point where it becomes obvious not only that a majority of the body supports the bill, which we have already achieved, but obviously it is in the interests of the people of this country that we simply get on with the business of the country and pass it. So I am a cosponsor of that amendment that has been offered, along with Senators Levin and Lieberman on our side of the aisle and Senators McCain, Thompson, Collins and Chafee on the Republican side. When the debate on campaign finance reform reached a stalemate last fall, Senators Snowe and Jeffords indicated they did intend to continue through the winter months looking for a solution to the deadlock. Those were not idle words. They were true to their word. The Snowe-Jeffords amendment that has taken shape over the past 2 weeks is a sincere effort to address the two primary sticking points that have caused our efforts to be delayed: alleged first amendment concerns with the provisions of our bill dealing with issue advocacy and express advocacy, and the use of corporate and union treasury money for what amount to campaign attack advertisements in the closing days of the campaign. Let me talk for a moment how the Snowe-Jeffords amendment navigates the difficult political and constitutional shoals that face us in this debate. The first thing the amendment does is more clearly define a category of communications in the law. We call them electioneering communications. These electioneering communications are communications that meet three tests: First, they are made through the broadcast media, radio and television, including satellite and cable. Second, they refer to a clearly identified official candidate--in other words, they show the face or speak the name of the candidate. And third, they appear within 60 days of a general election or 30 days of a primary in which that candidate is running. The Snowe-Jeffords amendment provides that for-profit corporations and labor unions cannot make electioneering communications using their treasury funds. If they want to run TV ads mentioning candidates close to the election, they must use voluntary contributions to their political action committees. We firmly believe that this approach will withstand constitutional scrutiny because corporations and unions have for a very long time been barred from spending money directly on Federal elections. The Senator from Kentucky suggested we lack case law for these propositions, but the Supreme Court upheld the ban on corporate spending in the Austin v. Michigan Chamber of Commerce case. Mr. President, it is noted that a Michigan regulation that prohibited corporations from making independent expenditures from treasury funds prevented `corruption in the public arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.' According to the Court, the Michigan regulation `ensured that the expenditures reflect actual public support for the political ideas espoused by the corporations.' We are merely saying through this amendment that actual public support, shown by voluntary contributions to a PAC, must be present when corporations and unions want to run ads mentioning candidates near in time to an election. The Snowe-Jeffords amendment goes on to permit spending on these kinds of ads by nonprofit corporations, if they are registered as 501(c)(4) advocacy groups, and other unincorporated groups and individuals. The rules about corporations and unions do not apply in the same way to these groups, but the amendment, but it makes one requirement. It requires disclosure of the groups' large donors whose funds are used to place the ads once the total spending of the group on the electioneering communications reaches $10,000. It only applies if the total spending over a total amount of $10,000. A few things should be noted about the disclosure requirement that entities other than unions and for-profit corporations are subject to if they engage in these kinds of electioneering communications. The disclosure required here is not burdensome; it simply requires a group placing an ad to report the spending to the FEC within 24 hours, and to provide the name of the group, or of any other group that exercises control over its activities, and of the custodian of records of the group, and finally of the amount of each disbursement and the person to whom the money was paid. Second, this disclosure requirement is triggered by the spending of $10,000 or more on these kinds of ads. If a small group that spends only a few thousand on radio spots wants to do that, and they stay under $10,000, they will never have to report a thing. There is no new requirement there. Third, the disclosure of contributors required is really quite limited. It does not require all contributors of all amounts to be disclosed. Only large donors who contribute more than $500 must be identified, and they have to be identified only by name and address. And a group that received donations from a wide variety of purposes, including some corporate or labor or treasury money, can set up a separate bank account to which only individuals can contribute, pay for the ads out of that account, and then they only have to disclose only the large donors whose money is put in that account. So any individual who doesn't want to be disclosed can easily ask that the group not spend his or her money on that kind of activity. The net result will be that the public will learn through this amendment who the people are who are giving large contributions to groups to try to influence elections. If a group is merely a shell for a few wealthy donors, as we suspect that many of the groups who ran the nastiest ads in 1996 were, then we will know who these big money supporters are and we will be in a lot better position to assess their real agenda. On the other hand, if an established group with a large membership of small contributors under $500 wishes to engage in this kind of activity, it doesn't have to disclose any of its contributors under this amendment because it can pay for the ads freely from small donor money routed to the special bank account for individual donors. Mr. President, I believe these disclosure provisions will pass constitutional muster. But the Senator from Kentucky and also the Senator from Washington earlier in the debate today have argued that even these reasonable disclosure requirements somehow violate the Constitution, and they cite the case of NAACP v. Alabama from 1958. That is a very important case in the history of our country and the history of the first amendment, and one with which I fully agree, but the conclusion that the Senator from Kentucky draws from it with respect to the Snowe-Jeffords amendment is simply wrong. At the height of the civil rights struggle, the State of Alabama obtained a judicial order for the NAACP to produce its membership lists, and fined it $100,000 for failing to comply. The NAACP challenged that order and argued that the first amendment rights of its members to freely associate to advance their common beliefs would be violated by the forced disclosure of their membership lists. They pointed out many instances where the revealing of the identities of its members exposed them to economic reprisals, loss of unemployment, and even threats of physical coercion. The Court held that the State had not demonstrated a sufficient interest in obtaining these lists that would justify the deterrent effect on the members of the NAACP exercising their rights of association. Now, Mr. President, everyone in this body should know that the Snowe amendment is totally different from what the State of Alabama tried to do in the NAACP case. The Snowe amendment doesn't ask for any membership lists. The Senator from Washington stood up and read quotes about how the NAACP case doesn't allow a requirement that a group disclose its membership list, but the Snowe amendment doesn't do anything of the kind. It is a simple red herring with regard to what we are asking in the Snowe amendment. All the Snowe amendment does is ask for is the very limited disclosure of the names and addresses of large contributors to a specific bank account used for the single purpose of paying for certain kinds of electioneering communications. So, Mr. President, contrary to the claim that this is somehow like the NAACP case, most membership groups won't have to disclose anything if they receive sufficient small donations to cover their expenditures on these types of communications. And even if contributors want to give more, they don't have to be identified, as long as their money is not used for the kinds of ads that would be subject to this kind of disclosure. Finally, the disclosure requirement can be avoided altogether by crafting an ad that does not specifically refer to a candidate during the short window of time right before an election. This is nothing like asking the NAACP or the NRA or anyone else to divulge their complete membership lists. This is a false analogy. Mr. President, the Supreme Court has shown much more willingness to uphold disclosure requirements in connection with election spending than the Senator from Kentucky has been willing to recognize so far in this debate. In Citizens Against Rent Control v. the City of Berkeley, a 1981 case, for example, the Court struck down a limit on contributions to committees formed to support or oppose ballot a measure. But the court, Mr. President, noted specifically: The integrity of the political system will be adequately protected if contributors are identified in a public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw anonymous contributions. Mr. President, it is worth noting that the opinion in that case was by Chief Justice Warren Burger and the vote was 8-1. The only dissenter, Justice White, thought the limits themselves on contributions should be upheld. So with regard to this issue, it was essentially unanimous. In U.S. v. Harriss, the Court upheld disclosure requirements for lobbyists, despite the alleged chilling effect that those requirements might have on the right to petition the Government. Of course, the Buckley Court itself, which the Senator from Kentucky frequently refers to, upheld disclosure requirements for groups who make independent expenditures. Now, of course, the Court will have to analyze the Snowe amendment when it gets there and the type of communications that trigger it and determine if they pass constitutional muster. I will not proclaim that there is no argument to be made at all that this provision is unconstitutional. Of course there is, and I am sure groups like the National Right to Life Committee will make it. But to say that there is no chance that this provision will be upheld, as the Senator from Kentucky has said, is just not right. There is ample and substantial constitutional justification and recedent for this provision. As the Brennan Center for Justice wrote in its letter analyzing the Snowe-Jeffords amendment: Disclosure rules do not restrict speech significantly. Disclosure rules do not limit the information that is conveyed to the electorate. To the contrary, they increase the flow of information. For that reason, the Supreme Court has made clear that rules requiring disclosure are subject to less exacting constitutional strictures than direct prohibitions on spending . . .. There is no constitutional bar to expanding the disclosure rules to provide accurate information to voters about the sponsors of ads indisputably designed to influence their votes. Mr. President, it is also important to note that the Snowe-Jeffords amendment contains provisions designed to prevent the laundering of corporate and union money through nonprofits. Groups that wish to engage in this particular kind of advocacy must ensure that only the contributions of individual donors are used for the expenditures. Because the prohibition in the Snowe-Jeffords amendment is limited to unions and corporations spending money from their treasuries on these kinds of ads, many of the concerns that opponents of McCain-Feingold voiced about the effect of the bill on speech by citizens groups are eliminated. Keep that in mind. One of the things people claimed was the real problem of McCain-Feingold--there has been sort of a shifting bottom line of what the real problem is--but that portion has been modified in Snowe-Jeffords. Senators who oppose this amendment must be willing to stand on two positions now that I think are both unsupportable. First, Mr. President, those who still oppose McCain-Feingold, if it is amended by Snowe-Jeffords, must defend the rights of unions and corporations using treasury money--not citizens groups like the National Right to Life Committee or the Christian Coalition or the Sierra Club--to run essentially campaign advertisements that dodge the Federal election laws by not using the magic words `vote for' or `vote against' or to finance those ads through other groups. So that is the conclusion: Corporations and unions, apparently, should just be allowed to do this freely, despite the almost unanimous complaints by Members of the Senate with regard to this question. Secondly, those who are still holding out, even though they represent a minority of the Senate, in terms of supporting McCain-Feingold as it will be amended, argue that the public is not entitled to know, in the case of advocacy groups that run these ads close to an election, what the identities of these people are. They say that they should not be known to those who are about to vote. Many opponents of McCain-Feingold have trumpeted the virtues of full disclosure and say that is what we need--disclosure; not McCain-Feingold. I have, at times, doubted how serious they were about disclosure because they would never acknowledge the important advances our bill provides with regard to disclosure. Now, when we vote on the Snowe-Jeffords amendment, we will see how sincere the opponents of this bill are about the importance of disclosure, because the Snowe-Jeffords amendment requires nothing more of advocacy groups than full disclosure. In fact, it requires a lot less because the groups only have to make these disclosures if they run these ads close to an election and if they spend more than $10,000 on those electioneering communications. Mr. President, our agreement on the Snowe-Jeffords amendment means that a clear majority of this Senate supports bipartisan campaign finance reform. Further, we will vote as a block to defeat any `poison pill' offered by opponents. This agreement puts the onus of killing reform , if that is what happens, back where it belongs--on those who would put a partisan attack on unions over the greater good of abolishing soft money. I urge my other colleagues on the Republican side to join this effort and recognize, as Senators Snowe and Jeffords have done, along with Senators Thompson, Collins, Specter, and the original author, Senator McCain, before them, and that a strong majority of the American people understands, that the McCain-Feingold bill is a balanced, reasonable, and fair step toward reform and that we can achieve that reform if we put our heads together and work out our differences. Once again, Senator McCain and I are more than willing to talk to anyone who sincerely wants reform or to talk about changes to our bill that will bring us closer to the 60 votes we need to get past the filibuster that opponents have promised. The fruitful negotiations that have produced the Snowe-Jeffords amendment have shown that we are serious about passing McCain-Feingold this year. Mr. President, with that renewed invitation, I yield the floor.

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