The Senator from Mississippi [Mr. Lott] proposes an amendment numbered 1265 to amendment No. 1264.
Mr. LOTT. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
Mr. McCAIN. I object.
The PRESIDING OFFICER. Objection is heard.
The clerk will report.
The legislative clerk read as follows:
Strike all after the word `section' in the first degree amendment and insert the following:
. PAYCHECK PROTECTION ACT.
(a) In General: Section 316 of the Federal Election Campaign Act
of 1971 (2 U.S.C. 441b) is amended by adding the following
new subsection:
`(c)(1) Except with the separate, prior, written, voluntary authorization of each individual, it shall be unlawful--
Mr. McCAIN. Mr. President, I ask unanimous consent that the
remaining part of the reading of the amendment be dispensed with
since it is
the same as the other amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The remainder of the amendment is as follows:
`(A) for any national bank or corporation described in this
section to collect from or assess its stockholders or employees any
dues,
initiation fee, or other payment as a condition of employment if any
part of such dues, fee, or payment will be used for political
activities in
which the national bank or corporation, as the case may be, is engaged; and
`(B) for any labor organization described in this section to
collect from or assess its members or nonmembers any dues, initiation
fee, or
other payment if any part of such dues, fee, or payment will be used for
political activities.
`(2) An authorized described in paragraph (1) shall remain in effect until revoked and may be revoked at any time.
`(3) For purposes of this subsection, the term `political
activities' includes communications or other activities which involve
carrying
on propaganda, attempting to influence legislation, or participating
or intervening in any political campaign or political party.'
(b) Effective Date--This section shall take effect two days after enactment of this Act.
Mr. LOTT. Mr. President, I would like to explain what just transpired.
Mr. President, Senate procedure can be sometimes confusing. So let
me take a moment to go over what are the amendments that
were offered and
what is pending.
Under the unanimous-consent agreement reached last week, Senator
McCain modified his original McCain-Feingold bill. I was
then recognized to
offer an amendment.
The amendment I offered--the Paycheck Protection Act--will not
wipe out the underlying McCain bill, if it is adopted. On the
contrary, if
adopted, this amendment would become part of the bill.
The other amendments I just offered were part of the process which
is informally known as `filling up the amendment tree.' This is
a fairly
standard procedure to ensure opponents of an amendment cannot gut it by offering
yet another amendment.
I ask unanimous consent that five recent examples be printed in the Record.
There being no objection, the materials was ordered to be printed in the Record, as follows:
1977--Jimmy Carter's Energy Deregulation Bill--Byrd filled up amendment tree.
1984--Grove City--Byrd (in minority) filled up the tree.
1985--Budget Resolution--Dole filled up the tree.
1988--Campaign Finance--Byrd filled up the tree (eight cloture votes).
1993--Emergency Supplemental Approps (Stimulus Bill)--Byrd filled up the tree.
Mr. LOTT. Mr. President, also, I note that this is done two or three times a year and certainly is not unprecedented.
I hope no one will characterize this amendment as a `poison pill'
for campaign finance reform. It is so fundamental to fairness in
the campaign
process. Shouldn't workers in America be able to have some say about how their
fees, assessments, or dues are
used in political campaigns? I think the
answer truly should be yes.
Some of our colleagues may not want to expose, much less vote on,
one of the worst campaign abuses that exists--compulsory
business or union
dues--but that is no reason for them to suddenly change their position on
campaign finance reform as a whole.
Most Americans would be shocked to learn that some workers in our
Nation are forced to contribute to a candidate or campaign
they don't support
or do not know anything about. They have no way of directing where those funds
go.
Because of that abuse, this amendment, the Paycheck Protection
Act, is an essential element to genuine campaign reform. It
requires that all
political contributions be voluntary.
The McCain-Feingold bill places restrictions on political parties,
bans soft money, and curbs the activities of grassroots
organizations. But it
contains a giant loophole: It allows corporations and unions to confiscate
money, for political purposes, from
their employees' and members' paychecks
without getting their permission. This loophole must be closed.
Senator McCain himself stated that he `personally supports much
stronger [Beck] language.' He said he `believes that no
individual--a union
member or not--should be required to contribute to political activities.' This
was on a floor statement of
September 26, 1997.
The McCain-Feingold bill limits what people can voluntary
contribute for political purposes, but it does not protect people from
being
forced to contribute involuntarily to political campaigns.
We must require unions and corporations to get a worker's
permission before taking money out of his or her paycheck for
political
purposes.
As I have said before, my own father was a union member. This
amendment is not targeted at unions. It is, as a matter of fact,
directed at
affecting both unions and corporations as well.
No worker--whether union or corporate business, large or
small--should be forced to contribute against his or her will, as a
condition
of their employment.
Many workers don't want to pay and be involved in campaigns or in
politics, and many of those don't want to be told what they
have to do and
don't want to have their funds taken from them without their permission.
A recent poll of union members revealed that 78 percent did not know they had the right to stop paying for politics.
A 1996 poll of union members found that 62 percent opposed the
AFL-CIO's expenditure of over $35 million--and probably much
more--of their
money in a campaign to control Congress.
No worker should be forced to pay for politics that they do not support. As such, I hope Senators will support my amendment.
There will be plenty of time to debate this amendment and other
amendments, and then we will design a process to have some
votes to see where
the Senate stands on this and other issues.
I yield the floor.
Mr. WARNER addressed the Chair.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I ask the distinguished leader if I may be designated as a cosponsor of his amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I commend the leader because there is
no more essential thing in America than our freedom. It is
written into every
important document. It is the very foundation upon which our Republic was
formed, yet we have turned aside
and winked at this process whereby the
American worker is penalized in that he or she cannot exercise his or her own
free will in
making the most fundamental of decisions: Whether or not to have
his or her paycheck involuntarily docked for a sum of money
for which in most
instances they have no idea to what uses it will be put by people who make
decisions for them.
Then that same worker will exercise his or her right of freedom to
go to a polling place and write in a check or pull a lever or
whatever the
procedure may be by which he or she will exercise his or her freedom to select
that individual, Democrat or
Republican, independent, whether it is for
chairman of the board of supervisors in the hometown, President of the United
States, or
whatever the case may be. To me it is a total anachronism to say
that you cannot make a decision with regard to your paycheck,
yet you are
free to go into the polling booth and make that decision.
This amendment is referred to as a poison pill.
Mr. President, I ask unanimous consent to have printed in the
Record a sample of the type of thing that is being used today in
certain
States by which that worker signs and sends into his or her respective employer
his or her written consent to do just what
this amendment asks.
There being no objection, the sample was ordered to be printed in the Record, as follows:
Political Contribution Withholding Authorization
No employer or other person may withhold a portion of a Washington
State resident's earnings (or that of a non-resident whose
primary place of
work is in Washington) in order to make contributions to a political committee
that must report to the Public
Disclosure Commission or to a candidate for
state or local office without annual, written permission from that
individual.
Completion of this form entitles the entity specified to make
such a withholding for no more than 12 consecutive months.
I, (First Name, Middle Initial, Last Name) authorize (Name of
Employer or Other Person) to withhold ($ Amount
per/pay
period/week/month/year/ from my earnings in order to make political
contributions to (Name, City and State of political
committee(s) and/or
candidate(s) to receive deductions).
If more than one recipient is indicated, each is to receive the
following portion of the deduction made: XXXXXXXX. This
authorization is
valid for no more than twelve consecutive months. It is effective on
(Month/Day/Year) and expires on
(Month/Day/Year).
Signature:
Date:
According to state law, no employer or labor organization may
discriminate against an officer or employee in the terms or
conditions of
employment for (a) the failure to contribute to, (b) the failure in any way to
support or oppose, or (c) in any way
supporting or opposing a candidate,
ballot proposition, political party, or political committee.
TIMING OF CONTRIBUTIONS
Primary and General Contributions: With the exception of
contributions from a bona fide political party organization or a
legislative
caucus committee, no primary election contribution may be made
after the date of the primary.
No general election contribution is permitted after November 30 of
the election year from any contributor--except the candidate
using personal
funds for his own campaign.
Mr. WARNER. Mr. President, I remember a famous poem written years
and years ago, and I will insert in the Record portions
of it. But it related
to military people around the turn of the century. It says: `Yours is not to
reason why; yours is but to do or die.'
Mr. President, I ask unanimous consent that an excerpt of `The Charge of the Light Brigade' be printed in the Record.
There being no objection, the excerpt was ordered to be printed in the Record, as follows:
The Charge of the Light Brigade
II.
`Forward, the Light Brigade!'
Was there a man dismay'd?
Not tho' the soldier knew
Some one had blunder'd:
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die:
Into the valley of Death
Rode the six hundred.
Mr. WARNER. That is the philosophy behind this automatic
deduction-- yours is not to reason why; you just do as we tell you.
That is
antithetical. It is not a poison pill to correct that and have maybe six simple
words which say, I hereby consent to have my
paycheck deducted in a certain
amount. How can anyone in good conscience call that simple one sentence a poison
pill? It is the
exercise of the very essence of democracy in this country and
no longer adheres to the refrain `yours is not to reason why.'
The American worker is quite different in profile today than when
this statute, which they predicate the automatic deduction, was
put in. Given
a few gray hairs and a few years, I bridge back to those thirties when so much
of the labor legislation was enacted.
That laboring person was drawn from a
segment of society that was struggling for its very existence, would take any
job, would
follow any order, would accept any working condition just to have
enough of an opportunity to provide for his or her family.
Fortunately, this country has progressed today to where that is
gone, and today that working person is of an entirely different
profile. They
have had the opportunity to get education, and many are still seeking to augment
their education. They have the
opportunity to think for themselves. We are in
a society today dominated by all sorts of opportunities, be it on television or
in
schools or otherwise, to enhance one's level of education and to develop,
Mr. President, a thought process by which the American
worker can make many,
many more decisions for himself or for herself than at the time of the origin of
these very oppressive
statutes that we still struggle with today.
So I commend the distinguished majority leader. It seems to me
anyone who wants to call this a poison pill should hold up that
simple form,
point to it and say that the exercise of the right to simply say that I consent
is a poison pill. I call it, Mr. President, a
`freedom' pill, if you want to
use that phraseology. This is a `freedom' pill for the ability of the American
worker to begin to think
and exercise his or her own judgment. I commend
those who support this measure. I yield the floor.
Mr. McCAIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, very briefly, reluctantly, I must
oppose the amendment before the Senate. I do so not because I
disagree with
its intent. In fact, I strongly support what it seeks to do. But, as with all
difficult choices, a decision must be made. In
this case, I must decide that
passage of overall campaign finance reform must be the Senate's first goal. The
cosponsors of the
modified bill recognized that something must be done about
enforcing the Beck decision.
S. 25, our original bill, was silent on this point. We chose in
the modification to take the important step to codify Beck. This step
was not
taken lightly, and it should not be discounted by those who want more. The fight
with my friends on the other side of the
aisle over this issue loomed large
for some time. To be frank, this was certainly one of the most contentious
issues we faced. In
fact, inclusion of Beck language in the bill nearly
fractured our bipartisan coalition. However, in the end, all involved came to
the
same conclusion that I have today. We must put the goal of overall
campaign finance reform first. By this I do not mean to say
that workers'
rights issues are second to any other subject. They are extremely important and
are long overdue in being addressed,
but now is the time to debate campaign
finance reform. We can turn to other subjects in due time.
Mr. President, in the modified bill, we seek to codify the
landmark 1988 Supreme Court Beck decision. President Bush did this
by
Executive order in 1992 to the applause of the right and a condemnation of
the left and the unions. It was the right thing to do then,
and it is the
right first step now.
Unfortunately, as we all know, elections have consequences, and
after winning the White House, President Clinton soon reversed
course and
repealed President Bush's Executive order.
This bill would effectively reverse the actions of President
Clinton. The bill would require that all labor unions give notice to
nonunion
individuals who are forced to pay agency fees annual notice of their Beck
rights. Such notice would occur by mail and
must inform the worker how much
money he or she could receive. Again, this notification must occur each and
every year.
If an employee chooses to utilize his or her rights, an employee
would be able to notify the union of such action by mail and have
his or her
fees reduced accordingly. The Beck decision does not affect labor's
contributions to candidates from its PAC. The law
already restricts dues and
fees from being used for any PAC activity. The codification of Beck contained in
the modified bill is not
inconsequential. An estimated 3 million of 19
million individuals working under labor contracts are in union or agency shops
where
they must pay union fees even though they are not members. If nonunion
employees chose to invoke their rights, unions would
have to return up to
$2.4 million a year.
On April 14, 1992, after President Bush issued his Executive order, the Cleveland Plain Dealer reported:
`Unions in truth have not been complying with Beck,' said Robert
Duvin, a Cleveland lawyer who represents management on labor
issues. `It's a
joke. I am not saying workers don't get their money back. Unions are not keeping
the kind of accounting they
should.'
The language in the modified bill will go far to stop this `joke.'
It will make clear that Beck is the law of the land, that it must be
complied
with, and that the status quo is no longer acceptable.
As I noted, in 1992, when President Bush took this action, it was
widely applauded by Republicans as a good first step, and I admit
it is
exactly that, a good first step, not comprehensive action. Just as the bill
before the Senate is not all that I would want, it, too, is
only a good first
step. In both cases we must not let perfect be the enemy of the good. I hope
that we can quickly resolve this
issue. Now is not the time for a debate on
labor policy. This amendment should be offered on other legislation. I would
strongly
support debate on a freestanding bill. Perhaps all my colleagues
could agree to move to Senator Nickles' Paycheck Protection
Act immediately
after debate on campaign finance reform. I challenge my Democratic colleagues to
come to the floor and pledge
to allow the majority leader to bring the
Nickles' Paycheck Protection Act to the floor and to allow for full debate in
the regular
order. Just as we are debating campaign finance reform, we could
have a healthy debate on labor law, and that is the best way to
deal with
this issue.
Again, I urge my colleagues to work out a solution to this matter
that does not jeopardize passage of campaign finance reform.
Both sides of
the aisle must come to an agreement to deal with this subject without engaging
in a filibuster. A filibuster at this time
will doom campaign finance reform.
There will be plenty of blame to go around if such action occurs. I hope the
public will
understand that any prolonged debate at this time is designed
solely to kill campaign finance reform. If we can't come to some
agreement to
bring this matter up freestanding, then I hope my colleagues will allow us to
vote on the matter. Let the will of the
majority of the Senate prevail. Then
we can and must continue under the regular order and proceed with other
amendments. We
should not let the prospects for passage of campaign finance
reform come crashing down based on the first amendment offered.
Let me point out again, Mr. President, I think we ought to go
ahead and vote on this amendment, dispose of it and move forward. I
hope that
we can do that soon, since it is an issue that is fairly well known to most of
my colleagues.
Mr. President, on Friday, we began a historic debate on the issue
of campaign finance reform. The Senate heard from many
Members who feel very
passionately on this subject. The Washington Post characterized the debate as
having `rare passion and
eloquence,' and that goes on both sides of this
issue. I think it is a tribute to the nature of this body that such a debate is
now
occurring. We must not allow this opportunity to be lost. I urge the
Senate to move forward with debate on campaign finance
reform and resolve
this unrelated labor debate as soon as possible.
Mr. President, I yield the floor.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, is the Senator from Arizona going to
stay in the Chamber? I would like to enter into a
colloquy with him if he is
available for that.
If I could, I would ask my friend from Arizona, last Friday when
the debate began, the substitute which the Senator from Arizona
laid down
today was not ready until today. Is the Senator from Kentucky correct about
that?
Mr. McCAIN. Of course.
Mr. McCONNELL. And the letter from the Brennan Center in New York,
which the Senator from Arizona and the Senator
from Wisconsin received, was
dated last Monday, September 22. So would the Senator from Kentucky be correct
in saying that
the 126 signatories to that letter probably had not seen the
substitute which the Senator from Arizona laid down today?
Mr. McCAIN. Of course, the Senator from Kentucky knows that the
core of the bill basically remains the same. What we did
was, as I mentioned
in both my statement on Friday and again this morning, we did away with a number
of the provisions in the bill
which would have guaranteed its failure, not
that we had in any way abandoned the fundamental belief in those provisions of
the
bill, but we were not going to let the perfect be the enemy of the good.
We are in contact with the Brennan Center, and they will
update their views
on this within a very short period of time. So if the Senator from Kentucky has
some concerns about their being
up to date with the latest changes, let me
calm his fears at this time to tell him that we will be receiving very soon
another letter
that approves of the modified version.
Mr. McCONNELL. Well, the original letter to the Senator from
Arizona, which I have read, talks about party soft money and
spending limits
on campaigns. The spending limits on campaigns portion, I understand, is not in
the revision that the Senator from
Arizona has sent to the desk.
According to my reading of the letter, there is no mention of
either independent expenditures or issue advocacy provisions, which I
assume
are the same in the substitute as were in the original bill. Am I missing
something, or is the Senator from Arizona----
Mr. McCAIN. The Senator from Kentucky did miss something. I am
sorry he wasn't able to attend our press conference that we
held last week
with Burt Neuborne, if you will look the final signature for Burt Neuborne, John
Norton Pomeroy Professor of
Law, legal director, Brennan Center for Justice,
New York University School of Law. He was queried on exactly that point
and
stated that he firmly believed in its constitutionality and, as I say,
that letter will be updated very soon to include that.
Mr. McCONNELL. I would say to my friend from Arizona I am reading
from the letter of September 22. It says, `We do not all
agree on the
constitutionality of various provisions of the McCain-Feingold bill itself, nor
are we endorsing every aspect of the bill's
soft money and voluntary spending
limits provision.'
Is the Senator from Arizona then suggesting that all 126
signatories to the letter endorse the independent expenditure and
issue
advocacy provisions of the modification?
Mr. McCAIN. I am telling the Senator from Kentucky that I am
totally confident that all or the overwhelming majority of the 126
who signed
this letter will also sign and approve of the changes that we have made. Again,
fundamentally because there have
been reductions in the bill instead of an
expansion of it.
Again, Mr. Neuborne, who was the one who was the progenitor of
this entire letter and contacted all 126 people, expressed his
confidence
that that would also be the case.
Mr. FEINGOLD. Will the Senator from Kentucky yield for a question?
Mr. McCONNELL. Let me just say there have been a whole series of cases----
Mr. FEINGOLD. Will the Senator from Kentucky yield for a question?
Mr. McCONNELL. Not at this time.
There have been a whole series of cases on issue advocacy. It is
not in a gray area. In fact, the FEC's enforcement actions and
regulatory
efforts to suppress issue advocacy have been going on for a number of years.
They have been involved in a number of cases. I am looking at a
whole list here, FEC versus AFSCME, in 1979; FEC versus
CLITRIM, in 1980; FEC
versus Machinists, in 1981; FEC versus Massachusetts Citizens for Life, in 1986;
FEC versus----
Mr. McCAIN. May I ask the Senator from Kentucky, is our colloquy over or is it going to continue?
Mr. McCONNELL. I apologize to my friend from Arizona. I am now making some observations about issue advocacy.
Mr. FEINGOLD. Will the Senator yield for a question?
Mr. McCONNELL. FEC versus Phillips Publishing, in 1981; FEC versus
National Organization for Women; FEC versus Survival
Education Fund, in 1995;
FEC versus Christian Action Network, in 1996; FEC versus GOPAC, in 1994; FEC
versus Colorado
Republican Federal Campaign Committee, in 1996.
Now, in all of those cases the Federal Election Commission was
trying to snuff out issue advocacy. It was rebuffed in all of those
cases
and, in the case of FEC versus the Christian Action Network, in the fourth
circuit, the court was so angry at the FEC for
continuing to pursue these
citizens groups that it ordered the FEC to pay the legal fees of the citizen
group which had been
harassed by the FEC.
Mr. President, there may be some things that are in a gray area in
this debate, but issue advocacy is not. The court has been very,
very clear,
since Buckley, that it is impermissible for the
Congress to shut these people up when they seek to criticize us.
An effort to say that in proximity to the election they can't
criticize us
would be an exercise in futility. I mean, these citizens have a right to band
together. We don't like it. I stipulate that I
have been subjected, shall I
say, to these issue advocacy campaigns myself. I don't like it. I would rather
not be criticized. But, as
a practical matter, the courts are not going to
allow us to shut these people up just because we find what they say about
us
offensive.
The enforcement actions that I mentioned are just the tip of the
iceberg, since many enforcement actions never progress beyond
the
administrative levels. But these administrative investigations can be equally
chilling on free speech.
The FEC has attempted to buttress its position regulating issue
advocacy by extensive regulatory proceedings resulting in the
adoption of the
following regulations, which have been invalidated by the courts.
The FEC has been on this mission to shut these people up for a
long time. So they issued a variety of different regulations, 11
CFR
114.4(b)(5), which was invalidated in Faucher versus FEC, in 1991; 11 CFR
114.1(e)(2), invalidated in Chamber of Commerce
versus FEC, in 1995; 11 CFR
100.22, invalidated in Maine Right to Life Committee versus FEC in 1996; 11 CFR
114.10,
invalidated in Minnesota Citizens Concerned for Life versus FEC, in
1995; 11 CFR 114.4(c)(4) and (5) invalidated in Clifton
versus Federal
Election Commission, in 1996.
I don't know who these constitutional scholars are. I am not
prepared to argue with the Senator from Arizona or the Senator from
Wisconsin
that they all went to law school. But this business of seeking to regulate the
expressions of citizens against our voting
records doesn't have any chance at
all of being upheld in the courts. I would hope the Senate would not waste its
time engaging in
some ill-conceived idea here to try to keep people from
criticizing our records. It is a clear violation of the first amendment.
So, it seems to this Senator that that is something we ought not
to be engaging in. As the Senator from Arizona pointed out, that
provision of
McCain-Feingold remains largely the same as it was in the original version.
I see my friend from Wisconsin is on his feet and would like to
engage in a colloquy. I had in mind asking him a few questions as
well, so I
will be happy to yield to him for a question.
Mr. FEINGOLD. Mr. President, I thank the Senator from Kentucky. I
just want to go over a couple of points relating to the
Brennan Center for
Justice letter of September 22.
First of all, the Senator from Kentucky made a statement a few
days prior to the release of that letter on national television. He
said
something to the effect as follows: Russ does not have one single constitutional
scholar who supports his position. So I can
understand the Senator from
Kentucky being a little tender about a letter signed by 126 constitutional
scholars that says exactly
what it says.
I would first like to ask the Senator from Kentucky if he ever
heard any of us, either at the news conference or otherwise, purport
that
that letter included references to the issue of issue advocacy versus express
advocacy?
Mr. McCONNELL. I did not. I want to commend the Senator from
Wisconsin for bringing that up, because it proves precisely
my point, that
the constitutional scholars are not certifying to the constitutionality of the
issue advocacy or independent expenditure
provisions of the bill. I think the
Senator from Wisconsin has made an appropriate correction.
Mr. FEINGOLD. That is right, Mr. President, because this is
nothing but a red herring. The Senator from Kentucky does not like
what the
letter says, so he is trying to pretend that we actually said it said something
else, and then get me to say it did not say
that.
Let me ask the Senator from Kentucky whether he, in reviewing the
letter, recognizes that there are two main points to the letter,
one is the
view of these 126 scholars that a ban on soft
money is constitutional; and, second, that a system that would
provide voluntary incentives to candidates who agree to some limits
on their
spending would also be constitutional?
Mr. McCONNELL. I would say to my friend from Wisconsin, that is
precisely what I was saying. That is what the constitutional
scholars, in the
letter released by the Senator from Arizona and the Senator from Wisconsin, were
talking about. It's their view of
what a court would likely rule in the case
of soft money and in the spending limits proposals, since dropped, that would
apply to
individual campaigns. That was precisely the point the Senator from
Kentucky was trying to make, that the constitutional scholars
are not
certifying that they believe that provisions of the bill related to issue
advocacy or independent expenditure are
constitutional.
Mr. FEINGOLD. Of course the Senator from Kentucky is correct. The
very reason we would have asked for such a letter to be
signed by 126
constitutional scholars is that for years the Senator from Kentucky has said
that it is unconstitutional to ban soft
money, even though the Senator from
Kentucky proposed a bill in the 103d Congress that would ban soft money himself.
He has
stood on the floor of the Senate repeatedly, year after year, and said
that a system that would provide an incentive to a candidate
to limit his or
her spending is unconstitutional because, in his words, `It would put a gun to
the head of a candidate, in effect forcing
him or her to do so.'
So watch the shifting constitutional argument. First, the Senator
from Kentucky focused his debate last year against our bill on the
PAC ban,
which is no longer in the bill. Then he focused on the soft money ban. Then he
focused on the issue of whether or not
voluntary incentives could be given.
In each case, the Senator from Kentucky concluded emphatically, on the floor and
off the
floor, that it is plainly unconstitutional. He does not have a leg to
stand on anymore; 126 constitutional scholars have said to him:
Wrong, wrong,
and wrong.
So now he is moving to another discussion. Now he is going to put
up another figleaf in front of this obvious attempt to keep the
current
system in the form of a----
Mr. McCONNELL. Mr. President, I would caution the Senator from
Wisconsin that this is supposed to be a civil debate. I don't
know whether he
is violating rule XIX or not, but I have the floor.
The PRESIDING OFFICER. The Senator from Kentucky has the floor.
Mr. McCONNELL. I have yielded temporarily to the Senator from
Wisconsin. I would like to have a debate about this
constitutional principle.
Mr. FEINGOLD. Mr. President, I recognize the comments of the
Senator from Kentucky. Let me just go back to a question, in
fairness. The
fact is that the provisions that we have placed in the bill, the modified bill,
with regard to the issue of candidate
advocacy versus issue advocacy are not
identical----
Mr. McCONNELL. Is the Senator asking a question?
Mr. FEINGOLD. I am about to ask a question--are not identical to
those in the bill last year. In fact, I would ask the Senator from
Kentucky
if he is aware that the provisions we have just put in the modification are
different than any that we have introduced
before?
Mr. McCONNELL. I would say, Mr. President, that I am aware the
bill has been evolving. I am aware issue advocacy is
different now, in the
revised bill, than it was originally.
Mr. FEINGOLD. Will the Senator from Kentucky acknowledge that the
notion of a bright-line test with regard to issue advocacy
is not the same as
some of the other approaches?
Mr. McCONNELL. Mr. President, regaining the floor, let me suggest
to the Senator from Wisconsin that the bright-line test
probably makes it
even more unconstitutional. I think it is inconceivable that the courts would
say that you can criticize a Member
of Congress anytime you want to, except
right before an election.
Let me say with regard to this ongoing discussion of
constitutional scholars that I don't know how many of the
constitutional
scholars in the letter presented by the Senator from Arizona
and the Senator from Wisconsin have actually practiced these cases
in court.
I don't know the answer to that. It could be that many of them have. But the
American Civil Liberties Union, which was
cocounsel to Senator Buckley in the
1996 case and has handled a lot of this litigation over the years, believes that
the provisions of
the McCain-Feingold substitute with regard to issue
advocacy is unconstitutional.
The American Civil Liberties Union is America's expert on the
first amendment. It is true that the Senator from Wisconsin has
diligently
searched for years and managed to come up with some folks who will sign a letter
saying this is constitutional. I said last
week I could probably find 126
people who say the Earth is flat. But, the experts on the first amendment, the
American Civil
Liberties Union, believe that these provisions are not
constitutional.
Let me just read from a letter earlier this year, to me from the
ACLU, regarding independent expenditure provisions in
McCain-Feingold at that
time.
The new restrictions on independent expenditures improperly
intrude upon that core area of electoral speech, and impermissibly
invade the
absolutely protected area of issue advocacy.
Mr. President, the ACLU went on:
Two basic truths have emerged with crystal clarity after 20 years
of campaign finance decisions--[20 years]. First, independent
expenditures
for express electoral advocacy by citizens groups about political candidates lie
at the very core of the meaning and
purpose of the first amendment. Second,
issue advocacy by citizen groups lies totally outside the permissible area of
Government
regulation.
This bill assaults both principles.
So, Mr. President, I am not disputing for a moment that the
Senators who are the principal sponsors of this bill have found some
folks
who went to law school who were certifying that they believe this bill is
constitutional. But I am suggesting that the people
who litigated in this
area, the lawyers, the distinguished lawyers who have litigated in this area for
the last 20 years, who were
involved in the original case, the Buckley case,
that went to the Supreme Court, believe that these provisions on
independent
expenditures and issue advocacy are fatally flawed.
I rest my case. I guess we can all sort of pick our own expert and
decide who we want to rely on, depending upon the outcome
that we want to
achieve. But I think most people would believe that the first amendment lawyers
at the American Civil Liberties
Union know a little bit about this area of
litigation.
I want to take a few moments to pose a few questions to my friend from Wisconsin, if I may.
(Mr. DeWINE assumed the chair.)
Mr. FEINGOLD. Mr. President, if I may, I have a couple of
questions relating to the letter itself I would like to ask, and then I
will
be happy to yield for those questions, if I could, just with regard to
the comments the Senator was just making.
If the Senator will yield for a question, does the Senator realize
that the person who put the letter together, Mr. Burt Neuborne,
New York
University Law School, was the former executive director of the ACLU?
Mr. McCONNELL. Right. Also Professor Neuborne believes that the
Buckley case was a mistake. He has been very candid
about that. He believes
that Thurgood Marshall was wrong when he said spending is speech. So Professor
Neuborne, I would say,
has been very candid about his views. He has a view
that is contrary to the state of the law.
Mr. FEINGOLD. Doesn't the ACLU also take the position that the Buckley case was wrong?
Mr. McCONNELL. The ACLU didn't like every aspect of it. They
didn't like the fact that the Court decided it was permissible to
put a limit
on contributions. The ACLU felt that even the contribution limit, Mr. President,
was a violation of free speech. They
didn't win that one, but they won the
rest of the case.
Thurgood Marshall said spending is speech, and all nine Supreme
Court Justices said spending is speech. I heard the Democratic
leader out
here Friday talking about a 5-to-4 case. It wasn't a 5-to-4 case. It was 9 to 0
that spending is speech. My friend from
Wisconsin wanted to ask a question or
observe----
Mr. FEINGOLD. Mr. President, does the Senator from Kentucky
consider Lawrence W. Knowles, University of Louisville
School of Law,
qualified to discuss these issues?
Mr. McCONNELL. I don't know Larry Knowles, but a professor of mine
at the University of Kentucky Law School I noticed
was a signatory to your
letter, I say to my friend from Wisconsin.
Mr. FEINGOLD. Thank you, Mr. President.
Mr. McCONNELL. One of my former professors is a signatory of your letter. I think we haven't persuaded him----
Mr. FEINGOLD. Can we safely assume the two signatories with a good
Kentucky background know what they are talking
about?
Mr. McCONNELL. I don't know what they know about this kind of
litigation and the first amendment, but I won't dispute the fact
that 126
people signed this letter. I hope the Senator from Wisconsin won't dispute that
Professor Neuborne disagreed with the
Buckley decision, thinks it was wrong
and for 24 years has been trying to argue that somehow the Court ought to
reconsider this
and change its mind even while the Court has been going more
and more in the direction of permissible political speech.
So, Mr. President, I still have the floor, I believe, and if the
Senator from Wisconsin is up for a few more questions, I would like to
ask
him a few.
I gather that the Senator from Wisconsin said last Friday--I know the Senator from Arizona did, too--that they hoped to
offer an amendment to restore the individual spending limits on campaigns, if they were given such an opportunity. Is that correct?
Mr. FEINGOLD. Let me respond to that in a slightly different way.
Another point I wanted to clear up in response to that
question, the Senator
from Kentucky is suggesting that there are no spending limits in our base bill.
That is incorrect. Our bill, the
modification that was just offered, does
provide that a candidate who wants to get the coordinated party expenditure
benefit from
their party has to limit their personal wealth contribution to
no more than $50,000.
So the fact is that provision, which these 126 constitutional
scholars have suggested is perfectly constitutional, is in our base bill.
The
Senator is, of course, correct, that we do intend to add--in fairness to his
comment--we do intend to add an amendment that
would go further, that would,
in fact, bring back some of the other proposed voluntary limits that would then
be coupled with what
we hope would be an incentive for reduced cost for
television time. We hope to add that to the bill, but the concept is already
in
the base bill.
Mr. McCONNELL. I stand corrected, Mr. President. There is a
partial spending limit in the remaining bill. In any event, I am sure
I
haven't mischaracterized the position of the Senator from Wisconsin. He likes
spending limits. He thinks that too much money is
being spent in American
campaigns; is that correct?
Mr. FEINGOLD. It is not correct that I like mandatory spending
limits, Mr. President. I believe that under the Buckley versus
Valeo
decision--which the Senator knows I accept because I oppose a constitutional
amendment that would require mandatory
spending limits--I believe that under
that decision, it is permissible and appropriate to offer voluntary spending
limits, and that is the
kind of spending limit that I would support. I would
not support a constitutional amendment, for example, to require
mandatory
spending limits.
Mr. McCONNELL. Well, Mr. President, the original McCain-Feingold
bill seeks to, shall I say, entice people into limiting their
spending, and
the Senator has often said he thinks there is too much money in politics and we
should be able to entice people into
limiting their spending. So I would just
like to ask the Senator how much is too much? How much spending is too much?
Mr. FEINGOLD. Mr. President, I don't believe it is my language
that there is such a thing as too much money. It is all in context,
and the
context is this: If somebody chooses, as they may under their constitutional
right, to spend as much as they want, I believe
we should establish a system
whereby a person who is challenging that person has a chance to at least get
their message out.
So I don't have any theoretical limit that I believe in. If
Michael Huffington wants to spend $30 million in California, that's his
right,
but it is my belief that we ought to provide some kind of incentive to
those who would voluntarily limit their spending so they could
have a fair
chance to get their message out.
I don't accept the premise of the Senator's question, that I
believe there is some sort of a magical number. What I want is some
kind of
fairness in the system, some kind of leveling the playing field so not just
multimillionaires would get to participate.
Mr. McCONNELL. In the McCain-Feingold bill, there is a
State-by-State formula for how much one would be permitted to spend
if he
`voluntarily' accepted the spending limit. Now, what would that add up to in the
1998 elections? Do you have a calculator
there, or does your staff have a
calculator to give us a sense--
Mr. FEINGOLD. You are asking about the total amounts for all the States put together?
Mr. McCONNELL. There is a formula in the McCain-Feingold bill, as
I understand it, that specifies how much spending would be
allowed in various
States. Do you know what that would add up to in the 1998 election?
Mr. FEINGOLD. Of course, Mr. President, that is an inaccurate
statement of what the bill does. It does not provide limits. It says
only
that if a person agrees to a stable or certain figure, depending on the size of
the State, that those individuals would get the
benefits provided by the
bill. There is no automatic limit. Anyone can go over the limit if they want to,
if they are willing to forfeit
the benefits.
Mr. BENNETT. Mr. President, will the Senator yield for an additional question?
Mr. McCONNELL. I yield to the Senator from Utah for a question?
Mr. BENNETT. I recall in Friday's debate when the Senator from
Arizona laid down the three fundamental purposes of
McCain-Feingold, and the
second of those three was to lessen the amount of money in politics. So I think
the question of the
Senator from Kentucky is a legitimate one: How much do
the sponsors of McCain-Feingold want to lessen the amount of money
in
politics?
According to the Senator from Arizona, that is one of the three
fundamental pillars of this, and I hope the two Senators will
continue the
colloquy until we get an answer to that question: How much do the sponsors of
McCain-Feingold want to lessen the
amount of money in politics?
Mr. McCONNELL. I thank my friend from Utah. Let me just read the
formula that is in the McCain-Feingold bill. I say to my
friend from Utah,
that might be helpful in giving my colleague from Wisconsin an opportunity to
answer the question, How much is
too much?
The formula, as I understand it, in the original bill is $400,000
plus 30 cents times voting age population less than or equal to 4
million
plus 25 cents times the voting age population greater than 4 million.
So in the case, I say to my friends from Utah and Wisconsin--but
there is one State that is different. In the case of New Jersey,
where they
have only one VHF station, the formula is different. It is 80 cents and 70 cents
instead of 30 cents and 25 cents.
Moreover, the minimum general election
limit is $950,000, maximum being $5,500,000. That is for any State, no matter
how big.
And then the primary is 67 percent of the general limit, and the
runoff limit is 20 percent of the general.
I am a little confused here. I gather that means that you can
spend more per voter in New Jersey than you can in Utah; is that
right?
Mr. FEINGOLD. Is the question being posed to me?
Mr. McCONNELL. Yes, it is your bill. I want to ask you about it.
Mr. FEINGOLD. I will be happy to respond to that question. First
of all, of course, this provision is not what is before us at this
point.
Nevertheless, I do believe in the system of overall voluntary spending limits,
and the real driving force behind that is a
concern about television costs.
Any modifications or changes in the formula that had to do with a State-by-State
difference
without a doubt had something to do with the question of what does
it cost to run a television campaign in a U.S. Senate race.
I find it slightly amusing that the Senators question me about
language that my colleague from Arizona used about limiting spending
in
campaigns, when the Senator from Kentucky, in S. 7, 103d Congress, had a bill
entitled `To amend the Federal Election
Campaign Act of 1971 to reduce
special interest influence on elections, to increase competition in politics, to
reduce campaign
costs, and for other purposes.'
The point is, actually all three of us agree that you should not mandatorily limit campaign spending.
Mr. McCONNELL. But it is the hope of the Senator from Wisconsin
that somebody would accept these `voluntary' spending
limits.
Mr. FEINGOLD. Of course, it is my hope they would accept them, but
only voluntarily, so that not a single person in this country
is forced to
give up their free speech rights. That is not a part of our bill. The whole
premise of reducing the amount of money in
politics is not to deny anyone
their rights, but, in appropriate cases, to encourage people to limit their
spending so we can have fair
races, so we don't have a scenario like the one
that we have now where a Senate race, on average, costs $4.5 million or
$10
million or $15 million.
I would be curious if either the Senator from Utah or the Senator
from Kentucky believe there is any amount of money that is
inappropriate in
terms of a U.S. Senate race?
Mr. McCONNELL. If I may regain my time, the answer is I don't
think the Government should be determining how much speech
there is in any
Senate race, I don't care what the size of the State is.
I see my friend from Utah standing up again. Here is an
explanation that I think will help the Senator from Wisconsin. Obviously,
he
hopes that people will accept their spending limits and the provision in their
measure that would make it pretty hard not to,
because if you don't accept
the spending limits, you have to pay way more for television than somebody who
doesn't.
It is my view the courts would strike that down as
unconstitutional because they are punishing you if you choose to
express
yourself too much. You get punished because you have to pay more for
your broadcast time.
Clearly, the Senator from Wisconsin wants people to accept the
spending limit, and I would argue the spending limit in the
original
McCain-Feingold is not voluntary at all because the Government
basically has a gun to your head.
If you do not accept it, it costs you a heck of a lot of money. It
gets back to this formula we were just discussing. The measure's
spending
limits are based on a formula that takes each State's voting age population into
account. The basic general election
spending limit is $400,000, plus 30
percent per voter up to 4 million of the voting age population and 25 percent
per voter in excess
of 4 million of the voting age population.
I say to my friend from Utah, it appears as if the voters in
excess of 4 million do not get as much spent on them as the voters
below 4
million. So presumably you do not speak as much to the people over 4 million as
you do to the people under 4 million. But
then the general election spending
limit can be no lower than $950,000. So presumably if you are in a little State,
it cannot go below
$950,000 or more than $5.5 million in any State. That
presumably would limit California to $5.5 million. Then the basic
primary
election spending is two-thirds of the general election spending
limit, but not more than $2.75 million in any State.
If I could read on just a minute before taking the question of the Senator from Utah.
The proposed legislation creates some incredible anomalies that
have been omitted from the public debate. Incredible? How else
to describe a
law, when figured on a per-voter basis, that would allow a Senatorial candidate
in Wyoming to spend almost 11.5
times the amount that could be spent by a
candidate in California?
With a 22.8 million voting age population, the biggest of any
State, California, under the McCain-Feingold scheme, gets the
biggest
spending limit. If figured on the same basis as other States,
California spending would be $10.5 million; but, in fact, it is capped
at
$5.5 million. But California is the only State where maximum spending
limits, $5.5 million per general and $2.75 million for a
primary election
would be applied; thus, California's total campaign spending is $8.25 million
for the general election, which works
out, Mr. President, to about 24.1 cents
per voter.
Not too far away from California, in Wyoming, the State with the
least population where there are only 344,000 people of voting
age, the
spending limit would be $503,200 if it were not for the laws of minimum limit of
$1.586 million, general election and
primary election, $636,000. The general
election spending limit works out to $2.74 per voter.
Mr. President, over in California under the spending limits regime
in the McCain-Feingold bill, which is not in the substitute but will
be
offered as an amendment if given the opportunity, a voter in California is
treated to 24.1 cents in campaigns while Wyoming is
$2.76 per voter.
Putting this in a different perspective, the McCain-Feingold
legislation allows senatorial candidates in California to engage in
first
amendment protective activity at a level of financial activity that is
barely one-tenth of the amount that a candidate could spend in
Wyoming. To
achieve parity so that the voters in the two States receive the same level of
general election campaigning from their
U.S. Senate candidates would require
California candidates to spend an amount that is 11.5 times greater than allowed
in the
McCain-Feingold bill, a whooping $63.25 million; or you could reduce
the amount that could be spent in Wyoming to $82,600.
Now, why do I bother to mention this Mr. President? This is truly
a Rube Goldberg scheme. `We are here from the Government
to help you,' and we
have concocted this spending limit regime up here in the Government so that the
voters in these various States
will not be tainted by too much expression
being directed at them in the course of their campaigns. But as often is the
case when
the Federal Government tries to micromanage something, particularly
something so difficult as micromanaging political expression,
you end up with
a sort of absurd result.
Mr. President, the reason I talk about these spending limits is
that they are in the original McCain-Feingold bill. Senator McCain,
Senator
Feingold do intend--if they have the opportunity--to offer that amendment to
give the Senate an opportunity to go on
record as saying that California
voters only get 24.1 cents spent on them while Wyoming voters get $2.76. This
scheme is
something that they want us to sanction.
Mr. President, this is an extraordinarily difficult concept for
people of average intelligence to understand. Besides the
constitutionality
problem, they are also saying that in order to speak more you have to pay
more--and you do not get the broadcast
discount--or if you decide to speak
too much, you pay more for your speech. It is just one of the many problems with
the spending
limits regime with which the Senate has been confronted not just
in this debate, but at various times over the last decade.
And I ask my friend from Utah, is a voter in Wyoming entitled to more of a campaign than a voter in California?
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