September 29, 2001
Mr. McCAIN. That is correct. That is correct.
Mr. McCONNELL. I say to my friend from Arizona, under the Federal
Election Campaign Act the term `independent
expenditure" is defined as
follows:
The term `independent expenditure' means an expenditure by a
person expressly advocating the election or defeat of a clearly
identified
candidate which is made without cooperation or consultation with any candidate
or any authorized committee or agent of
such candidate and which is not made
in concert with or at the request or suggestion of any candidate or any
authorized
committee or agent of such candidate.
I am wondering if the Senator from Arizona really meant what he
said, because an `independent expenditure' under the Federal
Election Act
does by definition expressly advocate the election or defeat of a candidate.
Mr. McCAIN. I say to my friend from Kentucky, we are changing the
definition of `express advocacy' as well as the definition of
`independent
campaign.' And we feel compelled to do so because we see that on both sides the
campaigns are no more
independent than I am qualified to be on the next trip
to Mir.
We are, on page 13 of the bill, under where it says `Definitions *
* * (17) Independent Expenditure--* * *. The term `independent
expenditure'
means an expenditure by a person--(i) for a communication that is express
advocacy; and (ii) that is not provided in
coordination with a candidate or a
candidate's agent or a person who is coordinating with a candidate or a
candidate's agent.'
And then `(b) Definition of Express Advocacy--Section 301,' which
the Senator from Kentucky just quoted from `* * * is amended
by adding at the
end the following: `(20) Express Advocacy--(A) In general: The term `express
advocacy' means a communication
that advocates the election or defeat of a
candidate by--containing a phrase such as `vote for', `reelect', `support',
`cast your ballot
for', `(name a candidate) for Congress', `name of candidate
in 1997', `vote against', `defeat', `reject', or a campaign slogan or
words
that in context can have no reasonable meaning * * *'
This is the important part--`can have no reasonable meaning other
than to advocate the election or defeat of 1 or more clearly
identified
candidates; * * *'
That is, so we are changing both. I say to my friend, I am
changing both the definition of `independent expenditure' and the
definition
of `express advocacy.' We are doing so because there is clearly a huge problem
in American politics today, which I am
sure the Senator from Kentucky
appreciates. There are no longer independent campaigns. There is nowhere in any
dictionary in
the world the word `independent' that would fit these
campaigns. They are part of campaigns. To my dismay, and I am sure to
every
Member of this body, they are negative. And they are negative to the degree
where all of our approval ratings sink to an
alltime low.
So that is--I am sorry for the long response, but the Senator from Kentucky asked a very good question.
Mr. McCONNELL. Then the definition of what is `reasonable' would
be determined by the Federal Election Commission; is that
correct?
Mr. McCAIN. And the courts, just as the previous ones were
interpreted, and in the case of the Colorado decision, as the Senator
from
Kentucky well knows, opened up a massive loophole which was driven through with
alacrity and speed. That is what we are
trying to close here.
Mr. McCONNELL. I ask my friend from Arizona, how would it work?
The Federal Election Commission would either on its own
initiative or as a
result of receiving some complaints from someone intervene in what way to
determine what is or is not
`reasonable"?
Mr. McCAIN. First of all, as you know, any bright line would be
that the candidate's name or face would not be mentioned, which
is carrying
what was, in my view, the original intent, which was obviously that they could
not say `vote for' or `cast your ballot for.'
So I would be glad to discuss with the Senator from Kentucky exactly how we could define that in report language or other.
But I want to return to the fundamental problem here with the
Senator from Kentucky. I ask him, in return, does he believe that
these
so-called independent campaigns are truly independent?
Mr. McCONNELL. Well, if they are not, if it is an independent expenditure which is required under the law----
Mr. McCAIN. I am talking about, are they really independent in
what any of us would define as the word `independent,' or are
they just
additional methods to get around contribution limits in order to defeat another
candidate? Which is it?
Mr. McCONNELL. Is the Senator talking about independent expenditures or express advocacy?
Mr. McCAIN. I am talking about independent campaigns. I am talking
about a problem. What drives independent campaigns, as
the Senator from
Kentucky well knows, is the definition of `independent expenditure' and `express
advocacy,' which we are
changing.
I am asking the Senator from Kentucky again, does he believe that
in the last campaign the attacks by labor, for example, in
congressional
district 6, where over $2 million was spent by labor, with Congressman J.D.
Hayworth's face distorted on the
screen, sometimes morphing into that of Newt
Gingrich, does the Senator from Kentucky believe that that was an
independent
campaign against Congressman J.D. Hayworth?
Mr. McCONNELL. What I believe it was is an engagement in issue advocacy.
Mr. McCAIN. You really believe that was an issue advocacy ad when
they said: Congressman J.D. Hayworth is an enemy of
every man, woman and
child in Arizona? Surely, the Senator from Kentucky does not believe that.
Surely, the Senator from
Kentucky does not believe that these independent
ads, which are done by both sides, both Republican and Democrats, are no
more
than character attacks, destruction, but, more importantly, adjunct to
political campaigns. Surely, the Senator from Kentucky
cannot stand here on
the floor of the Senate and say that those are independent campaigns by any
reasonable
definition.
Mr. McCONNELL. I say to my friend from Arizona, it really does not
make any difference what the Senator from Kentucky
says. The Supreme Court
says----
Mr. McCAIN. I think it has a lot to do with what the Senator from
Kentucky believes. I think it has a lot to do with it, because if
the Senator
from Kentucky thinks that this is just basically an evasion of the law by
getting around the law, which has contribution
limits, then certainly it
matters what the Senator from Kentucky believes.
If the Senator from Kentucky believes that these are truly
independent campaigns, set up and run and funded by individuals who
just want
to see their particular issues, whether it be pro-life or pro-choice or workers'
right to strike or any of the others, then
fine. But it is beyond me to
believe that the Senator from Kentucky could have, having seen these ads--he is
very deeply involved
in the political process--that they are independent.
They are not. They are appendices of the political campaigns. The tragedy of
it
is, 98 percent of them are attack ads, as the Senator well knows.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER (Ms. Collins). The Senator from Kentucky.
Mr. McCONNELL. I believe I have the floor.
All I was trying to say to my friend from Arizona is that worth a
good deal more than the opinion of the Senator from Kentucky is
the opinion
of the Supreme Court, which has said in order to avoid--and admittedly these
groups want to criticize us. There is no
question about it. They want to
criticize us. They want to criticize us. And we hate it. They want to criticize
us in proximity to the
elections. Sometimes they criticize us earlier than
that.
But the Supreme Court has said that it is issue advocacy unless
the words `vote for,' `elect,' `support,' `cast your ballot,' `Smith
for
Congress,' `vote against,' `defeat,' or `reject'--or it lists the magic
words here. It is not really vague. I think the reason the Court did
this is
because they want to encourage citizens to be free to be critical of us any time
they want to.
I would readily concede to my friend from Arizona we have gotten a
lot more criticism in the last couple of years than we used to.
I will also
readily concede that having been the beneficiary, or victim, depending on your
point of view, of some of that myself, I do
not like it. But the Court, it
seems to me, has made it rather clear that we do not have the right to keep
these people, these groups,
from expressing their views about our records at
any point, whether it is in close proximity to the election or not.
Now, an independent expenditure, as my friend from Arizona knows,
is different. That is hard money. That is regulated by the
FEC. In order to
qualify as an independent expenditure, you must not consult with those whom you
are seeking to aid or reject.
Issue advocacy is a different animal. The Court has put that in a
separate category. Admittedly, the distinctions are sometimes
blurred. The
Court anticipated in the Buckley case that many times the distinction would be
blurred. But they erred on the side of
more expression. They erred on the
side of allowing more and more citizens, if they chose to, to criticize us at
any point they
wanted to.
Now, what we all saw in 1996 was there was a lot of criticism, a
lot of criticism by a lot of groups that a lot of people on my side
of the
aisle did not like. But I think there is not any chance whatsoever the Supreme
Court is going to allow us by legislation to
make it difficult for people to
criticize us just because it may be in close proximity to an election.
Therein lies the dilemma. My good friend from Arizona is trying
hard to do that. I understand why he would like to do it. These
campaigns are
a source of great irritation to the people who run for public office. I
understand that.
Mr. McCAIN. Could I respond?
Mr. McCONNELL. It is just my prediction--just as one Senator here
having read these cases, it is my prediction that the courts
will not allow
us to in effect shut these folks up or to create a context in which their
criticizing us is more difficult. That is just my
opinion. But it is also the
opinion of many, including the American Civil Liberties Union, who have looked
at this particular area.
Mr. McCAIN. Could I respond to the Senator very quickly?
Mr. McCONNELL. Sure.
Mr. McCAIN. First of all, the Senator well knows better than I,
footnote 52 is where the magic words are, which is a footnote on
the
decision. The interpretation of many of us is that the language in the body of
the opinion indicates that Congress does have a
role to play and can be
involved in it.
But that is a difference of opinion that the Senator from Kentucky
and I have. That is why I think I would be willing to try to make
a case on
the floor of the Senate here of the constitutionality of our view of changing
the definitions of `independent expenditure'
and `express advocacy' just as
when we passed the line-item veto and there was significant constitutional
question about the
line-item veto by good and principled individuals of this
body who said, `Look. What you're doing here is unconstitutional;
so,
therefore, I'm voting against it.'
I am saying that I believe there is sufficient good opinions by
good and principled individuals that differ as to what the
interpretation is
and what Congress has the right to not do.
May I ask unanimous consent, Madam President, to have stricken
from the Record the name of a Member of the other body,
because I misspoke,
and it is against the rules of the Senate to say the name of a Member of the
other body. I ask unanimous
consent that that reference be removed from the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. McCONNELL. Madam President, I believe I have the floor. I had yielded to the Senator from Arizona for a question.
The PRESIDING OFFICER. The Senator from Kentucky has the floor.
Mr. McCAIN. So if I could finish my answer. It is not so much that
it aggravates me as to whether it is negative or not. Of
course, it pains all
of us when the approval rating of elected officials is so low. There was a Fox
poll that said, `I believe that my
Member of Congress is:' 36 percent said,
`someone I can trust,' 44 percent said, `a lying windbag.' That bothers all of
us. But that
is not the fundamental problem here, I say to my friend from
Kentucky, because you can do that with hard money. You should be
able to do
that with hard money, any kind of attack, any kind of thing you want to do.
What we are objecting to is it being used for soft money and the
fact that it is not independent, does not meet, by any objective
measure, at
least in my view, the definition of the word `independent.'
I thank the Senator from Kentucky.
Mr. McCONNELL. I believe I still have the floor.
The PRESIDING OFFICER. The Senator from Kentucky still has the floor.
Mr. FEINGOLD. Will the Senator yield?
Mr. McCONNELL. No, not right now.
I say to my friend from Arizona, it is not at all clear that
express advocacy has to be independent. But nevertheless, the Senator
from
Arizona is entirely correct that the words are in a footnote. There is no
question that the words are in a footnote.
On the other hand, there have been at least 15 cases in this
field. This has been a field that has been very much litigated. The
Federal
Election Commission has been interested in going after issue advocacy groups for
years. So there has been a lot of
litigation on the issue that my friend from
Arizona raises.
He raises a good point, it is in a footnote. It is not like we
haven't been there before. There have been 15 cases. The FEC has lost
every
single issue advocacy case seeking to do things similar--similar--to what is
sought to be done by legislation here.
Recently in the Citizens Action Network case, not only did the
fourth circuit rule against the Federal Election Commission trying to
do what
we are trying to do here, it ordered them to pay the legal fees of the group
that they were out to quiet.
So the only thing I say to my friend from Arizona, he is right, it
is a footnote. On the other hand, this is something that the courts
have had
a good deal to say about, a good deal to say about, and there has been a lot of
litigation on this whole question of trying to
quiet the voices of those who
would criticize us for our votes.
I see my friend from Utah is on the floor.
Mr. FEINGOLD. Will the Senator from Kentucky yield?
Mr. McCONNELL. Was the Senator from Utah seeking to ask a question?
Mr. BENNETT. I would like to obtain the floor in my own right at
some point, but I make a comment to the Senator from
Kentucky and ask him if
he would like at this point with respect to the 126 scholars that have been
mentioned up until now--I will
wait until I have the floor.
Mr. McCAIN. I think this kind of debate we need to engage in. I
think this is important. I think the Congressional Record needs
to be made
and I look forward to more of this kind of debate and discussion because this is
really the heart of the matter. I thank
the Senator from Kentucky for raising
this particular issue because this seems to be one of the major, if not the
major, areas that
need to be discussed.
Thank you.
Mr. McCONNELL. I believe I still have the floor.
I agree with the Senator from Arizona. I think this is the heart
of the current version of McCain-Feingold, and certainly does
need to be
adequately vented.
I see the Senator from Wisconsin was interested in getting into the discussion.
Mr. FEINGOLD. I thank the Senator from Kentucky for his courtesy
and I will have a couple of brief questions for him on a very
interesting
discussion that the Senator from Arizona and Kentucky had.
I ask the Senator from Kentucky if he voted for the Communications Decency Act, which was sent up to the Supreme Court?
Mr. McCONNELL. Frankly, I don't remember. I am sure the Senator knows.
Mr. FEINGOLD. The answer is yes. I believe there were only 16
Members of the Senate--I happened to be one--who did not
think it was
constitutional, who thought it was a violation of the first amendment to start
censoring the Internet.
Does the Senator recall how the Supreme Court disposed of the Communications Decency Act?
Mr. McCONNELL. Why don't I let the Senator from Wisconsin tell us.
Mr. FEINGOLD. It was a unanimous decision, 9 to 0.
The U.S. Senate, including yourself, voted overwhelmingly for something that in my view, was unconstitutional on its face.
What was the downside of it? What happened? What happened was that the law was struck down, isn't that right?
Mr. McCONNELL. My friend from Wisconsin, who is a distinguished
lawyer and went to Harvard knows that pornography does
not enjoy the same
level of protection as political speech. The Supreme Court has always put
political discourse in a special
protected category. Pornography, by its very
definition, has been excluded from first amendment protection.
My guess is that in that particular piece of litigation we didn't
have a very good idea how the Supreme Court was going to decide
and the
Senator from Wisconsin is probably going to say why not take a chance here and
see if the Court will uphold these
restrictions on express advocacy.
Mr. FEINGOLD. I assume the Senator has no doubt that this Supreme
Court will strike down the provisions in our bill he is talking
about, isn't
that right?
Mr. McCONNELL. It is my hope, Madam President, that we won't give them an opportunity to do it.
Mr. FEINGOLD. I understand, but my question is, Don't you believe
that this Court would strike down the provisions you
criticize?
Mr. McCONNELL. Yes, I believe the Supreme Court would not, in this
highly protected area of political speech, allow the
Congress to reduce the
quality of criticism that can be leveled at us in proximity to an election.
I think we are not flying entirely blind here, Madam President,
because this whole delicate area of issue advocacy has benefited
from a lot
of litigation.
Mr. FEINGOLD. One other question, a point I am trying to make for
the Record is I agree with the Senator from Kentucky that
should we pass this
legislation, this, of course, will go to the Supreme Court. I think it is very
important that we acknowledge as we
make this Record that they will review
it, and that they will want to know exactly what our intentions were with regard
to this
legislation.
I want to ask a question in terms of making this Record, following
on the question of the Senator from Arizona. I will read the
Senator from
Kentucky an advertisement that supposedly was an issue advocacy ad, apparently
legally treated that way, and ask
him if he believes this is properly
characterized as issue advocacy rather than express advocacy or campaign ad.
The ad concerned a Winston Bryant. The announcement said, `Senate
candidate Winston Bryant's budget as attorney general
increased 71 percent.
Bryant has taken taxpayer-funded junkets to the Virgin Islands, Alaska, and
Arizona, and spent about
$100,000 on new furniture. Unfortunately, as the
State's top law enforcement official, he has never opposed the parole of
any
convicted criminal, even rapists and murderers; and almost 4,000 Arkansas
prisoners have been sent back to prison for crimes
committed while they were out on parole. Winston Bryant:
government waste, political junkets, soft on crime. Call Winston Bryant
and
tell him to give the money back.
Does the Senator from Kentucky consider that to be an issue ad
within the Supreme Court definition, or does he think it
is
possible--possible--that the U.S. Supreme Court just might find that to be
a campaign ad?
Mr. McCONNELL. Madam President, that ad sounds very similar to
some newspaper editorials I have read during the end of
campaigns and in
editorial endorsements, another form of criticism that we typically find very
offensive.
My guess is, absent the words `vote for,' or `vote against,' the
others that we went over in the Buckley case, the Court would in
all
likelihood say those voters are perfectly free to make candidate Winston
Bryant very uncomfortable before his election.
And I understand that the Senator from Wisconsin and the Senator
from Arizona would like to change that standard and give the
Supreme Court
another chance to try to reach a different decision.
Let me tell you why, Madam President, I think it is extremely
unlikely that the Court would go in the direction that the Senator
from
Wisconsin would like it to go. Referring again to the American Civil Liberties
Union, America's experts on the first
amendment, dealing with the
restrictions on independent expenditures and issue advocacy in the bill we are
discussing.
They say the new restrictions on independent expenditure are
improperly intruding upon the core area of electoral speech and
invading the
absolutely protected area of issue advocacy--absolutely protected area of issue
advocacy.
The ACLU went on: Two basic truths have emerged with crystal
clarity after 20 years of campaign finance decisions-- 20 years.
This is not
a new area of the law; 20 years of campaign finance decisions.
First, independent expenditures for express electoral advocacy by
citizen groups about political candidates lie at the very core of
the meaning
and purpose of the first amendment. This is not some peripheral area here--the
very core of the first amendment.
Second, issue advocacy by citizen groups lie totally outside the
permissible area of Government regulation. So I say to my friend
from
Wisconsin, my prediction that no matter how much candidate Bryant may not have
liked that criticism, my prediction that the
Court is likely to uphold the
ability of citizens to band together and engage in that criticism is based not
on some kind of speculation
but on 20 years of decisions in this field.
So I guess my prediction, in answer to the question the Senator
from Wisconsin asked, is that I don't think there is any chance the
Court
would allow the Congress to make it tougher for people to criticize us. There is
absolutely no hint in 20 years of cases in this
area that the Court is going
to backtrack and give us the ability to quiet our critics. We would love to do
this.
One thing I am sure the Senator from Wisconsin and I agree on, we
don't like this kind of thing. We really would prefer not to be
criticized by
either of these avenues, whether it is independent expenditures or whether it is
express advocacy, we don't like it. I
think we can stipulate that.
However, the Court has been rather clear over 20 years that
we are not going to be able to quiet these voices. So my prediction would be that they would not allow us to do it.
There are others who want to speak. I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. I thank the Senator from Kentucky for his candid
answers and say I have great confidence in the U.S. Supreme
Court. They are
perfectly capable of handling this provision. Our job is to pass a law so they
can take it up and they can strike it
down if they don't like it. That is the
approach we take here when there is a good-faith disagreement about a
constitutional
provision. Surely there are good-faith arguments on both
sides, and the right body to resolve it is the Supreme Court.
The PRESIDING OFFICER. The Senator from Utah.
Mr. BENNETT. Madam President, during the hearings we have held in
the Governmental Affairs Committee there have been a
number of
headline-grabbing witnesses who have appeared before us. Unfortunately, when we
got to the phase of the hearings
where we were discussing this issue, the
television cameras all left the room and the press tables all became vacant.
In that atmosphere I was able to say some things that I maybe
wouldn't have otherwise said because I knew no one would say
anything. It is
a bit like the question, When a tree falls in the forest and nobody is there to
hear it does it make any sound?
But there was one witness that appeared who made a lot of sound
and whose statements are so apropos I have taken the floor to
read most of
them into the Record. His full statement is available to anyone who wants to go
into the committee. I will not take
the time to read the full statement here,
but for the Senators who participated in this debate I think hearing some of the
comments
this man made will be particularly enlightening. I am speaking of
Curtis Gans, the director of the Committee for the Study of the
American
Electorate. The advisory board of that committee includes people such as David
Gergen, Peter Hart, Abigail McCarthy,
Cyrus Vance, former Secretary of State,
Ted Van Dyk, Anne Wexler, Richard Whalen, and a number of others whose names
I
don't recognize but I am sure are equally distinguished.
Mr. Gans points out he has been the director of this nonpartisan
nonprofit committee for 21 years, engaged in the issues
surrounding low and
declining voter participation. That is his area of expertise. He has published
publications, organized
commissions, testified before Congress, engaged in
this activity for a long period of time.
With my apologies for quoting so much, I will get into the details
of Mr. Gans' testimony because, as I said, I think it is
particularly
enlightening.
I am now quoting from Mr. Gans:
Mr. Chairman, with all respect to this committee's good work and
the chairman's good intentions, I would like to suggest a few
verities: that
campaign finance is the most overblown issue in American politics, that the
problems we face today in campaign
finance are the products of bad law passed
in 1971 and 1974
and the severability contained in that law and not the
result of the Buckley versus Valeo decision; that there are serious
problems
in the present methods of financing campaigns, but that they are
built into the incentive structure current law creates; that, in
attempting
to remedy the existing problems deliberations should be guided by the principle
of `Do No Harm,' (that we have already
seen the unintended consequences of
good intentions) and that it should proceed incrementally and with true
bipartisanship; and
that the case for such incremental reform can be done
without the gross vilification of individual leaders or the system as a
whole
which is both inaccurate and does a profound disservice by
undermining--perhaps more than the laws themselves--public faith in
the
political process.
Mr. Gans goes on in another place in his testimony:
I think the American people have long known that people give money for essentially four reasons:
1. That they are friends with the candidate or officeholder.
2. That the candidate or officeholder has views congruent to the giver on one or more key issues.
3. That the opponent has views which are anathema on one or more key issues.
4. To gain access to the candidate/officeholder to express one's interest and point of view.
I don't believe that the American people think that Representative . . .
He names the Member of the other body.
is a liberal because he
gets liberal money, or that . . .
He names another Member of the other body.
is a conservative
because he gets conservative money.
I do believe they understand that access is different from
influence--even if money buys access. I think they know that access to
a
leader comes from several different sources--personal friendship, long-time
loyalty, fame, grassroots citizens organization and
money, and that money
does not speak with one voice. I think the American people know--as their
responses to surveys about
their own Congresspersons and Senators (the ones
with whom they have had first-hand experience)--that the
overwhelming
majority of leaders are honorable leaders who arrive at public
policy decisions on a basis other than contributions. And that if there
is
cynicism about the profession as a whole, it is not because of its actions, but
because they have been vilified by those who seek
reform.
Later on in his statement, Mr. Gans gives what I find to be two fascinating questions:
I am fond of asking the question: `What do Social Security,
Medicare, Medicaid, Aid to Families with Dependent Children, Federal
aid to
education, the Civil Rights Act, the Voting Rights Act, the Occupational Safety
and Health Administration, the
Environmental Protection Agency, the Council
on Environmental Quality have in common?'
The answer is that they were all enacted and created when
individuals could give unlimited and undisclosed amounts of money
to
candidates, often in unmarked paper bags, and when the Republican party
usually enjoyed a 3-1 spending advantage over the
Democrats. (As one staff
member of this committee has pointed out, it should also be noted that the Hatch
and Taft-Hartley Acts
were also enacted in this period, lest the Republicans
think reform would be a good thing for their policy ends.)
What this incandescently shows us is that major public policy is a
matter of leadership and citizen consensus rather than campaign
cash.
Mr. Gans goes on in his second question, equally compelling in my opinion:
I am also fond of asking a second question, `What do Michael
Huffington, Clayton Williams, Rudy Boschwitz, Mark Dayton, Lew
Lehrman, Jack
Brooks, Guy VanderJagt, Steve Forbes and, if anyone remembers, John Connally,
have in common?'
The answer is that each and every one of them spent millions of
dollars of their own money, outspent their opponents by as much
as 5-1 and
lost.
When he gets to discussing our current problems, Mr. Gans has this to say.
. . . campaign finance laws were enacted in 1971 and 1974, whose
only beneficially durable features were the mandating of public
disclosure of
some of the money in politics, the provision for partial public financing of
campaigns and the establishment of an
agency, which for whatever its flaws,
has attempted to do a decent job of disclosure and tracking and improving
election law.
Later, he says:
That law were challenged and substantial parts of the law were
overturned in Buckley. The Supreme Court ruled, and I believe
rightly, not,
as some would have us believe, that `money is speech,' but rather that money is
necessary for speech to be heard.
Accordingly, the Court ruled against
spending limits--as inhibiting speech and competition (about which there is
considerable
evidence) unless such limits were truly voluntary and until
there were compensatory benefits to insure that there would be a full
and
fair hearing of campaign speech. It overturned restrictions on the use of
personal funds in campaigns. But it left stand, I think
wrongly, the $1,000
contribution limits (to meet the `appearance of corruption,' and established a
`bright line' of `express
advocacy'--the specific advocacy to vote for or
against a particular candidate, so named, as the only place in which the amount
of
money spent on such advocacy could be regulated.
Because the law law was written so that it was severable--that the
provisions which were not struck down--would remain in
place, we emerged with
an accident waiting to happen, a partial law for which evasion would prove not
only likely, but perhaps
necessary. We ended up with contribution limits that
were constraining and subject to strict disclosure, hard money for
both
candidates and national parties which were severely restricted and
subject to disclosure both on the contribution and expenditure
level, soft
money--to nonfederal party accounts and to nonprofit groups--which were
unregulated and only partially disclosed. . . .
The problems with the
resulting system became evidence early.
Mr. Gans goes on to give us a personal example that I found fascinating. He says:
(On the issue of venture capital, I can speak from some
experience. I provided the theory for and helped organize in 1967
something
called `the Dump Johnson Movement,' and by the accident of being one of two
persons who knew who populated that
movement, I became staff director of
Senator Eugene McCarthy's 1968 Presidential campaign. When the candidate
announced on
November 30, 1967, he was unknown to 57 percent of the American
people; in early February, he stood at 2 percent in the polls in New
Hampshire, the first primary, and there was near-universal
opinion that one
could not beat a sitting President within his own party. If we had had to live
within the present contribution limits,
that campaign would never have
happened and the people of the United States would have been denied the
opportunity to express
their opinion on the war in Vietnam and Johnson's
leadership within the political process. There was neither the time to raise
the
money or an adequately accessible number of small contributors to make
that effort possible. And we do not today know how
many other legitimate
challengers have been denied the opportunity since 1974 to compete because of a
lack of venture capital.)
Now, apropos of this debate, Mr. Gans has some interesting things to say about that great bugaboo, soft money:
Then, there is the question of `soft money.' I, along with Dr.
Herbert Alexander and Dr. Anthony Corrado, among comparatively
dispassionate
and nonpartisan observers, have long been a defender of soft money. I have done
so because my research shows
that in competitive campaigns for the U.S.
Senate, nearly 60 percent . . . of the hard money campaign budget goes to
televised
advertising, 30 percent usually is expended on fundraising, and the
balance on candidate travel and staff. In this situation, soft
money are the
only funds then and now available for activities involving people--grassroots
campaigning, voter registration and
education and party development.
But beginning in 1992, soft money has increasingly been used for
none of these. Instead, almost all of these unregulated moneys
have been
poured into television advertising, which is the antithesis of grassroots
organization and party development. They
underline participation and erode
respect for either party. It is safe to say that one reason the Democratic
National Committee is
substantially in the business of refunding illegal
contributions is that they so denuded their staff during the campaign to put
every
last dollar into advertising that there was no one left to exercise
oversight.
All of which is to suggest that--without the high-flown rhetoric
about corruption, elections being bought and public policy being
for
sale--both supporters and critics of current and choice reform proposals
see some of the same problems.
The question is what to do. And therein lies the rub.
Mr. Gans says:
I will leave to others the argument about the implication of
limits on the First Amendment guarantees of free speech. While I
agree with
them, leaders like Senator Mitch McConnell, Ira Glasser, Roy Schotland, among a
host of others, can carry this
argument better than I. I would rather deal in
the world of practicality.
He goes on to say:
I think there are four verities which will, at least in my limited
lifetime and perhaps through the lifetime of my ten-year-old child,
continue
to hold:
1. That because of the recent realignment in the South, the
Republican Party will continue to have, at the very minimum, a
cloture-proof
minority. The impact of this on campaign finance law is that campaigns will be
run for the forseeable future largely
or totally on private money.
I think his implication there is that he knows the
Republican Party is opposed to public funding.
2. That the Supreme Court is highly unlikely ever to rule that an
individual cannot spend whatever he or she wants of his or her
personal money
on his or her campaign. Thus, we will continue to have self-financed
millionaires running for office.
3. That the Supreme Court is highly unlikely to rule that
like-minded people cannot band together, organize, participate and
contribute
to campaigns. Thus, we will continue to have political action committees.
4. That the Supreme Court is highly unlikely to say that groups
and individuals independent of campaigns cannot express their
points of view
on the issues and candidates up for election. Thus, we will continue to have
independent expenditures.
(Two things in this regard should be noted. The recent statement
by 126 legal scholars, organized by the Brennan Center, was
notably silent on
these issues. Secondly, Mr. James Bopp's excellent law review article which
chronicles various recent cases
regarding independent expenditures shows
that, if anything, both the Court--in the Colorado case, and the courts, in
general, are
likely to expand the ability of both parties and independent
groups to exercise their free speech rights in the electoral context.)
All of which suggests to me that no closed system can or, from my point of view, should be created and that limits will not work.
Do we really want to continue the current low level of
contribution limits and continue to advantage millionaires and those
with
large rolodexes of midlevel and large contributors?
Do we really want to abolish soft money if the net effect will be
simply to starve the political parties and drive money toward
independent
expenditures?
He says:
In some mythical world it might be conceivable to create a system
of limits which would not have downside effects--that would be
high enough to
insure competition, that would provide for full accountability, and would
provide varying forms of compensation for
the inequities that grants the
constitutional rights to such entities as millionaires and independent
expenditures may create.
Madam President, I love this sentence. It summarizes better than
anything I could say how I feel about the enforcement
procedures that we are
having discussion about here:
But to administer such a program would likely take a bureaucracy
larger than the Department of Defense and a litigation budget
considerably in
excess of the Department of Justice and the tobacco companies combined.
Well, what does Mr. Gans have to offer in the way of a solution? He says this toward the end of his testimony:
I think at this time there is a possibility of real bipartisan agreement on a number of modest, but not unimportant steps.
1. That we mandate full and timely disclosure of all contributions
and expenditures above a certain level and within a
certain
timeframe--including the expenditures and larger contributions to
State parties and independent expenditure groups.
2. That we establish nationwide computerization of finance records
and mandate electronic filing and fast release of all things
mandated to be
disclosed.
3. That we define adequately what a foreign contribution is,
provide strict prohibition on such contribution and provide teeth in
the
enforcement of this provision.
4. That, at least within this mandate, we empower the federal election commission and give it the resources to do its job.
5. That we indeed do something about soft money. But that we need
to think carefully about what we do. To abolish soft money
would send money
into independent expenditures and, in the absence of substantially raising the
amount which can be given in
hard money, starve already atrophying parties.
There is, to my mind, a better way. Which is that soft money has
been justified on the basis that it exists to provide a source of
funds for
grassroots activity and party building. Let us limit its use to that.
Specifically, let us, as we have not until now, recognize
in law that such
funds exist, deny their use for broadcast advertising and overrule the Federal
Election Commission's decision that
`generic' advertising is not broadcast
advertising as stated in existing law. If we did that we would either reduce the
demand for
soft money or there would be enormous amounts of money moving in
the right direction--in activities that educate and engage the
citizenry and
strengthen and build political institutions rather than in destroying the will
to vote.
This would not solve all the problems contained within the
campaign finance conundrum, particularly with respect to contribution
limits,
independent expenditures and the overall and spiralling demand for money. But it
would be a good start. It would make the
system profoundly more accountable,
and it would correct the worst abuses of soft money without rendering the
parties impotent.
Finally, as he concludes, Mr. Gans summarizes this whole
circumstance in language that is one of those phrases you say
afterward,
`Gee, I wish I had written that.'
This is his conclusion.
The dialogue on campaign finance has generated a maximum amount of heat and a minimum amount of light.
Our political system has been called corrupt. Our Congress bought.
Our leaders cowardly. All in the name of attempting to force
through a
particular set of ill-thought out proposals for reform on a Congress which well
understands their weakness.
Those responsible for this dialogue are Common Cause, Public
Citizen and their mouthpieces particularly on the editorial boards of
The
Washington Post and New York Times. And while both the latter are great
newspapers with noble journalistic traditions, with
respect to this set of
issues, all should be ashamed.
Not only because it is not true, but because they, by this
attitude, much more than the admittedly flawed system of campaign
finance,
are deepening the cynicism of an already increasingly cynical public.
I know the overwhelming majority of our leaders are honorable. I
know many have demonstrated courage in their lives and in their
political
conduct. I know that, despite many flaws, this nation's political system is the
greatest in the world or at least among the
greatest.
It is time to stand up to the bullies and cool the dialogue--to
pinpoint our flaws precisely and address them, but not to tear down
the
system most of us love and are seeking to improve.
As I said at the outset, Madam President, I apologize for quoting
so much from one man's testimony. But I found it compelling. I
find myself in
agreement with almost all of it, if not all of it. I am particularly in
agreement with his statements that our problems
arise in large part because
of the flaws in the current law, and the lack of severability that occurred when
the law came before the
Court, so that when the Court found portions of it
unconstitutional they did not strike down the entire law. And we were left
with,
as Mr. Gans says, `an accident waiting to happen.'
I know in the context of this debate we cannot start with a clean
sheet of paper and move in the direction that Mr. Gans outlined.
But if in
fact, as many are predicting, and as, frankly, I expect nothing comes of the
present effort to enact McCain-Feingold, I
hope that instead of walking away
from it shaking our heads and pointing our fingers at each other that we take a
clear look at Mr.
Gans' approach, which would be to, as he quotes Abraham
Lincoln, `think anew and act anew,' and say, We can solve this
problem. We
can solve it in a bipartisan manner. But we can do it in such a way that would
not create all of the evils that his
testimony so graphically describes.
I thank my colleagues for their indulgence in allowing me to read so much.
I yield the floor, Madam President.
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Madam President, I must say that it is interesting
when we involve ourselves in aggressive and controversial
debates that we
find from time to time we disagree with colleagues for whom we have the greatest
respect. That is
certainly the case with me for the Senator from Utah. He is one of
the best Members of the U.S. Senate, and I have been
privileged to work with
him on a lot of things. And, yet, I profoundly disagree with him on this issue.
I want to spend a bit of time
explaining why that is the case.
In September 1796, George Washington announced that he was
retiring after some 45 years of service. I want to read just a
paragraph from
his Farewell Address, which is read each year here in this Chamber.
George
Washington wrote:
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