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PAYCHECK PROTECTION ACT
(Senate - February 25, 1998)

Text of this article available as: TXT PDF [Pages S972-S995] PAYCHECK PROTECTION ACT The PRESIDING OFFICER. Under the previous order, the clerk will report the pending business. The assistant legislative clerk read as follows: A bill (S. 1663) to protect individuals from having their money involuntarily collected and used for politics by a corporation or labor organization. The Senate resumed consideration of the bill. Pending: McCain amendment No. 1646, in the nature of a substitute. Snowe amendment No. 1647 (to amendment No. 1646), to amend those provisions with respect to communications made during elections, including communications made by independent organizations. The PRESIDING OFFICER. Who seeks time? Who yields time? Mr. BURNS. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Ms. SNOWE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Ms. SNOWE. Thank you, Mr. President. I think that the debate on the Snowe-Jeffords amendment has been very important in terms of underscoring the issues that need to be addressed in reforming our campaign finance system. I would like to review for the membership of this body exactly what the Snowe-Jeffords amendment would do, because we have heard so much about the impact of it and the misconceptions about the impact of the provisions included in this amendment. The fact is, this amendment will affect several categories with respect to advertising by groups across this country during the course of an election designed to influence the outcome of a Federal election. We are not saying they cannot advertise. We are not saying that they cannot engage in political activity. But what we are asking these groups to do is to disclose their major donors if they advertise on either medium, radio or television, 60 days before a general election, 30 days before a primary, in which they identify or mention a candidate for Federal office. They then would be required to disclose their major donors who contribute more than $500. That is more than twice the threshold for disclosure for Federal candidates. So, unlike the suggestion of those who are opposed to the campaign finance proposal and the Snowe-Jeffords amendment that this is too invasive, too broad, it is not. In fact, it would meet the Buckley standards handed down in that Supreme Court decision of not being invasive. In that Court decision, they were considering the impact of requiring donors of more than $10 to be disclosed. Obviously, that is broad and invasive. But this would pass constitutional muster. We are talking about groups that spend money on television or radio broadcasts in which they identify a Federal candidate 60 days before a general election, because, obviously, when those ads are aired at that point in time, they are intending to influence the outcome of an election. The medium is radio and television. The timing is 60 days before a general election, 30 days before a primary. The ad must mention a candidate's name or identify the candidate clearly. Targeting: The ad must be targeted at voters in the candidate's State. And the threshold: The sponsor of the ad must spend more than $10,000 on such ads in the calendar year. It is very narrow, it is very clearly targeted, very specific. And the Supreme Court has said that you can make a distinction of electioneering communications from other forms of speech. That is exactly what the Snowe-Jeffords amendment does. We are replacing the issue advocacy provisions of the McCain-Feingold legislation, section 201, that could raise constitutional questions. The proposals that Senator Jeffords and I are offering today are ones that have been designed by legal and constitutional experts based on court decisions. What the Snowe-Jeffords amendment would not do, because, again, we have heard so much about what the impact would be and, in many cases, have been very erroneous in some of the circulations in Congress by various groups, it would not prohibit groups from communicating. If they want to advertise, they have every right to do that. They can communicate with their grassroots membership. It does not prohibit them from accepting funds, corporate or labor funds. It would not require groups to create a PAC. They can continue what they are doing. But they are required to disclose if they are going to identify a candidate 60 days before an election in a television advertisement or radio broadcast. It would not affect the ability of any organization to urge grassroots contacts with lawmakers in upcoming votes. They can say, ``Call your Senator, call your Member of Congress, using the 1-800 number,'' which is a popular means today. That is certainly allowed. There is nothing to discourage that. If they identify a candidate in a TV or radio broadcast 60 days before an election, then they have to disclose their donors of more than $500, and that is all we are requiring. So it is not invasive; it would not require them to give an advance of the specifics of their advertisement and the text. What we are requiring in all of this is disclosure so that everybody understands who is financing these advertisements when they are designed to influence the outcome of an election. It guards against sneak attacks. Doesn't everybody have the right to know? Absolutely. And that is why the Supreme Court made that distinction in Buckley and in other cases, to draw that bright line, which is what the Snowe-Jeffords amendment does. The Court has never said that there is one route towards what can be distinguished in terms of electioneering communications. The fact of the matter is, it said you can make that distinction, that the U.S. Congress has the prerogative to make that distinction in a very narrow, very targeted way. This amendment would pass constitutional muster. I think that is what causes some anxiety for some people, because they are opposed to this amendment because it will require disclosure of major donors. Since when has disclosure been antithetical to good government, to campaign financing? Because that is the thrust of this amendment. It is disclosure. I think we all can concur that secrecy does not invite the kind of campaign that we want to see in America. We are entitled to know who finances these campaigns when it comes to major donors, when they are running ads that influence the outcome of these campaigns. The fact is, these groups have spent at least, based on what we know because it is a guesstimate because they did not have to disclose, $150 million--$150 million. The best we can guess, because, again, it does not require disclosure, is a third of all the money that was spent was spent on campaign advertising in the last election cycle, and we do not know where one dime comes from. We don't have the identity of donors, and yet they play a key role in influencing Federal elections. We had $150 million spent on issue ads in the 1996 election, and $400 million was spent for all the candidates: for the President, the Senate and the House. And yet, of this $150 million--this is probably a conservative estimate; this is based on the Annenberg Public Policy Center study; probably the most definitive study on issue advertising and issue advocacy. In fact, what they did was they analyzed advertising that was done by 109 organizations--109 TV and radio advertisements from 29 organizations. So we would expect that that estimate is pretty conservative. So what we are saying here is that there should be a means for disclosure. The courts have never said that disclosure is not in the public interest. [[Page S973]] The fact is that the Supreme Court has ruled time and again, and specifically in Buckley, that there is strong governmental interest that justifies disclosure, and that is why we have designed this amendment in the manner that we have. We also restrict campaign spending by unions and corporations with their nonvoluntary contributions in television and radio advertising in which they mention a candidate 60 days before a general election and 30 days before a primary because, again, there has been a century-long decision by the Government as well as the Congress in which that distinction can be made. The courts have made that distinction that Congress has the right to restrict spending by those entities because of those benefits that have been conferred on unions and corporations by the Congress, so that we are entitled to draw that distinction. And we do in this amendment. The courts have ruled that the Congress has the right to enact a statute that defines electioneering as long as it isn't vague or overbroad, that we can develop a more nuanced approach, because I know the Senator from Kentucky has cited cases in which he said that the Court would not support this type of an amendment. To the contrary, the fact of the matter is, this amendment is not vague and it is not overbroad. Not only will it pass muster, I think the Court would have the advantage of seeing what has happened over the past 22 years since it ruled in Buckley that has made a mockery of the campaign laws in ways in which the system works today. If they had had the advantage of that back when they made the decision in Buckley, I think there is no question that they would have indicated the approach that we have here today. There is something wrong in a system where we have $150 million influencing Federal campaigns and we do not require disclosure, and that is what the Snowe-Jeffords amendment is all about. Mr. President, I hope that Members of the Senate will see fit to support this amendment because I think it is in the interest of our campaign system, it is in the interest of good government. We have heard so much about these issues ads and the content of these so-called ``issue ads'' in the last election. Every group has the right to state their position. They have the right to communicate with their lawmakers. They have the right to even participate in the political process in advertisements and voting for or against. But I think they also should be required to identify their major donors when they are identifying a candidate 60 days before an election. Now, there are different kinds of issue ads. The one that I am mentioning here in the content of so-called ``issue ads'' isn't pure issue advocacy because there is a difference between issue advocacy and candidate advocacy. In this case, what we are seeing in what is so-called ``issue ads,'' 87 percent of what is called ``issue ads'' actually referred to a candidate or an official--87 percent. So rather than just talking about an issue and informing the public or running an ad that says, ``Call your Senator or call your Congressman,'' it was one in which it was designed to influence the outcome of an election, because 87 percent of those ads referred to an official or a candidate. In fact, according to the Annenberg study, 41 percent of those ads were ``pure attack''--41 percent--and yet not one dime is required when it comes to disclosure. So $150 million of this money was spent on so- called ``issue ads,'' and some of them were pure issue ads, but many of those ads, in fact 87 percent, referred to an official or to a candidate that, again, had the impact, or certainly had the intent, of affecting the outcome of an election, or otherwise they would not have mentioned the candidate's name. Mr. GORTON. Mr. President, will the Senator from Maine yield for a set of factual questions about her amendment? Ms. SNOWE. I am glad to yield. Mr. GORTON. Mr. President, would the Senator from Maine tell us, am I correct in reading the requirements relating to electioneering communications, that they apply to broadcast stations, television and radio broadcast stations, but not to newspapers or to direct mail? Ms. SNOWE. That is correct. Mr. GORTON. Do they apply to the Internet? Ms. SNOWE. Excuse me? Mr. GORTON. Do they apply to the Internet? Ms. SNOWE. No. Television and radio. Mr. GORTON. So none of these requirements apply to newspapers or direct mail or to---- Ms. SNOWE. If I can answer the Senator's question, that is correct. I know the Senator from Kentucky has objected to any possibility of impacting the first amendment. We would all agree in that respect, that obviously we want to draw that bright and distinctive line. Because no one wants to chill the first amendment right of freedom of speech. So that is where you can invite the possibility of concerns when it comes to printed material and to direct mail and to newspapers. We also know that most of the money in campaigns is particularly in television, rather than radio, because it has the greatest impact. It can have the greatest effect. So as a result, we do narrowly target those two mediums. Mr. GORTON. I take it the Senator from Maine believes it is constitutional to target one medium of communication but not to target a separate, a different, medium of communication? Ms. SNOWE. That is correct. Mr. GORTON. Does the Senator from Maine believe, in connection with the exceptions for the broadcasting stations' own editorial comments, which is granted here, that in fact she is granting that exception simply because she feels it to be desirable, or does she--let me rephrase the question. Does the Senator from Maine believe that she could have constitutionally applied these rules and regulations to the television station's communication of its own ideas? Ms. SNOWE. Well, obviously, we are talking about political advertising that is sponsored by organizations. That is what we are identifying here because that is obviously playing the primary role. Mr. GORTON. I understand what it is being aimed at. My question is, is this exception a part of the amendment of the Senator from Maine because the Senator from Maine believes that it is mandatory that she could not constitutionally apply these electioneering communications to TV stations? Or is she doing it because she does not think it is a good idea to apply it to them? Ms. SNOWE. I think we are taking the approach in this amendment to draw it as narrowly as possible so that we do not affect the first amendment rights. So, we are taking the most prudent, most cautious approach in designing this amendment. Mr. GORTON. So the Senator feels that---- Ms. SNOWE. If I might reclaim my time to answer the Senator's question. My concern--and I think shared by others, such as Senator Jeffords, who is a lead sponsor of this amendment as well--we are concerned about the political advertising that is in these campaigns, hundreds of millions of dollars, where there is no disclosure, that influences the campaigns. So we are creating a separate category of advertising called ``electioneering communication,'' in response to the question. Mr. GORTON. I think I do understand the Senator's feelings on that. I was simply asking whether she is exempting the television stations because she thinks she is required to by the first amendment. Ms. SNOWE. Yes. Mr. GORTON. Or she thinks it is a good idea. Ms. SNOWE. I think it is the most cautionary approach. Mr. GORTON. Thank you. Ms. SNOWE. The courts have allowed and made those distinctions in the past where we can draw a line in terms of methods of communicating and have allowed different rules for public airwaves. We are focusing on the most egregious abuses that have been identified in these campaigns in the past. If anything, I think the 1996 cycle highlighted the extent of the problem by the amounts of money that were placed in issue advertising that ordinarily would be, I think, a significant component in the campaign. But what has developed in the final analysis, as we all know, is sort of circumventing some of the restrictions that are currently in campaigns by what is masked [[Page S974]] as issue ads but really are candidate advocacy ads. That is what we are highlighting in this amendment by requiring disclosures by those groups that support these advertisements on behalf of candidates or in opposition to candidates shortly before the election. So we create a very narrow timeframe so that we do not engage in any possibilities of interfering with first amendment rights. We limit the medium to television and radio, again, so we do not invite any infringements on freedom of speech. Candidates-specific. They have to identify the candidate. Again, if that advertisement is targeted to a candidate's State, or in terms of House of Representatives elections, towards that candidate's district, again it is a threshold so that we don't affect small groups. If the sponsor of the ad spends less than $10,000 in a calendar year, they would not be required to disclose. Again, the Senator from Kentucky has mentioned Court cases like the NAACP v. Alabama in 1958, saying that the courts say you should not be required to supply your donor list because such disclosure could cause the fear of reprisal by its membership. Certainly there are exceptions to every rule, but you can have those exceptions without having the Court rule on its constitutionality. So, yes, there are exceptions, and the Court would require groups to obviously demonstrate that they had reasonable feeling that disclosing their donor base would be a reprisal. But there are exceptions, and there can be exceptions, but the law can be allowed to stand without suggesting that it will be ruled unconstitutional because there is an exception to that rule. We have drawn this amendment to be as narrow as possible in order to be as protective of the first amendment rights, constitutionally. If even possible we could have gone further but we chose to be narrow so that we don't create any problems with this legislation, because one of the concerns originally with the McCain-Feingold legislation is we would have the ban on soft money, but the issue advocacy provisions very possibly would have been struck down. So we designed this amendment in order to address those concerns. Mr. President, I yield such time as he may consume to Senator Jeffords, the other sponsor of this amendment. The PRESIDING OFFICER. The Senator from Vermont. Mr. JEFFORDS. Mr. President, I rise to urge my colleagues to support this fair and reasonable amendment. I think it is important for us to take a close look at what this does to make sure that we understand that it is really hard for anyone to be against it as near as I can tell. It is not the end-all of the situation that we face or the problems that need to be handled, by any means, but it does take into consideration doing something where nothing is done now to alert the public to who is behind the things that are being thrown on television. I can just imagine a candidate, and this happens now, I am sure, when they think they are running their campaign, they had it all organized and they are watching carefully the amount of money their opponent has, and then they wake up one morning thinking they are in fine shape and every channel they turn on on the television has this ad attacking them at the last moment, the last couple of weeks before the election, and they don't know who it is coming from or what to do about it; they were not aware of it. All we say is, OK, that can happen; but at least 45, 50, 60 days before it happens, you know it will happen. That is all we are saying. So that you don't get the surprise attacks by somebody who is running so-called issue ads that did not place them under the FEC regulations with respect to supporting that candidate. That is the real world we are faced with. It happened last time. It happened to the tune of $135 million. The least we could do, the very least, is to say at least you ought to know it is coming, first; and No. 2, where it is coming from so you have an idea when you get this last-minute flurry of advertising you are ready to do the best you can to protect yourself against it. Again, I want to commend the Senator for the continued leadership on this very important issue. Senator Snowe mentioned yesterday and today it is the duty of leaders to lead, and that means making some difficult choices in doing the right thing. On the issue, Senator Snowe has been a true leader. Crafting a compromise is often difficult. I thank the Senator from Maine for leading this body to a logical resolution, one which is sensible and one which is so commonsensical it is hard to understand why anybody would be against it, As was discussed yesterday, the basic tenets of the Snowe amendment are boosting disclosure requirements and tightening expenditures of certain funds in the weeks preceding a primary and general election. The amendment strengthens the McCain-Feingold bill in these areas in a reasonable manner. I could not support the McCain-Feingold bill until something was put into that area which is going to be the most used area. It is the first time it was used in the last election and we saw $135 million or more come in to the election. You have to remember that power is what those who are spending money seek. The money is going to follow that group which is most effective in gaining that power. Our job is to know where it comes from. The last Presidential election shows how terrible our means are to trace the money now. This is an opportunity to trace effectively, to know where it is coming from, you have a chance to understand where it came from. The last few election cycles have shown the spending has grown astronomically in two areas that cause me great concern: First, issue ads that have turned into blatant electioneering; second, the unfettered spending by corporations and unions to influence the outcomes of elections. As an example of how this spending has grown, a House Member from Michigan in 1996 faced nearly $2 million in advertisements alone before the fall campaigning season had begun. Campaigning really starts early and then there is a big boost at the end. Early on you want to knock the candidate out before he has a chance to get on the scene, and at the end it is because you know a large percentage of the people who vote really don't pay much attention until the last couple of weeks. The Snowe-Jeffords amendment addresses these areas in a reasonable, equitable, and, last but not least, constitutional way. Mr. President, citizens across this Nation have grown weary of the tenor of campaigns in recent years. This disappointment is reflected in low voter participation and the diminished role of individuals in electing their representatives. Increasing the information available to the electorate will help return the power of this democratic aspect to the people who should have it--the voters. Expanded disclosure will bring daylight to this process. Increased disclosure will rid corruption; more disclosure will protect the public and the candidates. How can we deny our electorate the ability to know the sponsors of electioneering communications? Give the people the information they need to better evaluate those Federal candidates that they will be voting on. Each of us should ask or be fully informed before we vote on a bill or amendment. How can we as Members of Congress stand here and say that the public should not have all the information they need before stepping into the voting booth? Additionally, the disclosure required in the Snowe-Jeffords amendment will help deter actual corruption and avoid the appearance of impropriety that many feel pervades our campaign finance system. Armed with this information, voters are guaranteed access to the truth. This change will restore the public's confidence in the election process and their elected representatives. As noted yesterday, the Annenberg Public Policy Center report figured there were somewhere between $135 to $150 million spent during the 1996 elections on so-called issue ads. This is a conservative estimate prepared very specifically not to lead to any exaggeration. The Annenberg report found that nearly 87 percent of these ads mentioned a candidate of office by name, and over 41 percent were seen by the public as pure attack ads. You ought to know who paid for them so we can better judge whether or not to believe them. This is the highest percentage recorded among a group that also [[Page S975]] included Presidential ads, debates, free time segments, court candidates, and new programs. Clearly, these ads were overtly aimed at electing or defeating targeted candidates, but under current law these ads were not subject to disclosure requirements of any nature. The second part of our amendment considers an area Congress has long had a solid record on: imposing more strenuous spending restrictions on corporations and labor unions. Remember, under the law, these are not given the same freedom of speech rights that individuals are, and rightfully so. Corporations have been banned from electioneering since 1907; unions, since 1947. As the Supreme Court pointed out in United States v. UAW, Congress banned corporate and union contributions in order to ``avoid the deleterious influences on Federal elections resulting from the use of money by those who exercise control over large aggregations of capital.'' Our amendment would ban corporations and unions from using General Treasury funds to fund electioneering communications in the last 60 days of the general election and the last 30 days before a primary. They still have the right to foster and to approve PACs, organizations for their employees or members of the union, to contribute to, in order that they individually, working together in the PACs, can influence the election process. The Snowe amendment takes a reasoned, incremental and constitutional step to address the concerns many of my colleagues have voiced on campaign finance reform proposals. Mr. President, some of our colleagues have expressed constitutional concerns with our amendment. Let me assure Members that we have taken great pains to craft a clear and narrow amendment on this issue in order to pass two critical first amendment doctrines that were at the heart of the Supreme Court's landmark Buckley decision, vagueness and overbreadth. Vagueness could chill free speech if someone who would otherwise speak chose not to because the rules aren't clear and they fear running afoul of the law. We agree that free speech should not be chilled and that is why our rules are very clear. Any sponsor will know with certainty if their ad is an electioneering ad. There would be no question the way we have delineated within the bill. Overbreadth could unintentionally sweep in a substantial amount of constitutionally protected speech. Our amendment is so narrow that it easily satisfies the Supreme Court's overbreadth concerns. We have asked the experts to check and give us advice on this. It is not just merely our opinion. We strictly limit our requirements to ads run near an election that identify a candidate--ads plainly intended to convince voters to vote for or against a particular candidate. As the Court declared in Buckley, the governmental interests that justified disclosure of election-related spending are considerably broader and more powerful than those justifying prohibitions or restrictions on election-related spending. Disclosure rules, the Court said, enhance the information available to the voting public. Who can be against that? Disclosure rules, according to the Court, are ``the least restrictive means of curbing evils of campaign ignorance and corruption.'' And our disclosure rules are immensely reasonable. As James Madison said: A popular government without popular information is but a prologue to a tragedy or a farce or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives. Mr. President, our amendment will arm the voters in order to sustain our popular Government. I fear that without our amendment, and campaign finance reform generally, the disillusionment of the voting public will grow, along with the scandals, and the participation of our voting public will continue to decline, to the extent that we will be embarrassed. It is close to that point now when, many times, only half of the people even bother to go to the polls. I ask that each Senator carefully consider the beneficial effects that our amendment will have and support us in moving this debate forward. Mr. GORTON. Mr. President, I yield such time off of Senator McConnell's time as I may use. The PRESIDING OFFICER. The Senator from Washington is recognized. Mr. GORTON. Mr. President, it is with intense regret that it's my view that this amendment, representing a good-faith attempt by two of my friends and my Republican colleagues, it seems to me, is subject to even more widespread and deeper constitutional objections than the original McCain-Feingold bill--a bill that seems, to this Senator at least, to be unconstitutional on its face. The fundamental objection to all of these attempts to limit the freedom of speech, of course, is that they fly in the face of the unrestricted language of the first amendment, language that does not-- though the Senator from Maine might wish to permit it to do so--permit exceptions to every general rule. This amendment, however, seems to me to violate the 14th amendment in many respects, with respect to both equal protection and due process. This amendment imposes broad and what some may consider to be onerous disclosure requirements with respect to what it calls ``electioneering''--on electioneering in certain ways through the mass media, but not at all in other ways, and even in the ways in which it covers electioneering by certain groups and organizations and not by other groups and organizations. The Senator from Maine said, during the course of her comments, that she does not think that she could constitutionally apply these requirements to electioneering by mail. She has not applied them to electioneering through newspapers, nor has she applied them to electronic electioneering through the Internet, but only to electronic electioneering by television or by radio. She does that, she says in all candor, because those seem to be the most effective methods of electioneering, the methods of choice by those who have engaged in what the law now calls ``express advocacy'' and what she calls ``electioneering.'' Well, Mr. President, it seems to me hardly to be subject to argument that you can say that the Government can regulate your speech in one medium, but cannot or will not regulate it through another medium. That is a fundamental denial of the most fundamental of all of our constitutional rights. It does, however, illustrate the flaw in this entire debate, and that is that effective electioneering should be banned, or severely controlled, and that certain kinds of speech are so unfair or so late in a political campaign that we ought not to allow them; and if we have to allow them, we ought to impose on them such heavy restrictions as to discourage them, even though we are going to permit exactly the same kind of communication, as long as it is done in a relatively ineffective fashion. To claim, Mr. President, that the Constitution of the United States, in the first and 14th amendments, permits those distinctions is to fly in the face of all rationale, all logic, and all constitutional law. But the amendment doesn't stop there. Even with respect to radio and television electioneering, it makes an exception. What is that exception? It is any news story, commentary, or editorial distributed through the facilities of a broadcasting station. So now we will have a law that clearly states that no matter how expensive, no matter how unfair, no matter how late in a campaign, a television station or a television network can do whatever it wishes without any of the restrictions of this statute; but no one else can without being subject to the restrictions of this amendment. Is there something that is so much superior in an editorial appearing on a television station over similar opinions expressed by a labor union, or by the Christian Coalition, or by any other political organization, that one should be discouraged and the other should be encouraged? Mr. President, that is a terrible policy in any political debate, and it is clearly a policy that is so discriminatory as to run afoul of the equal protection clause of the 14th amendment. And, Mr. President, this discrimination doesn't even stop there in distinguishing between a communication paid for by a labor union or the Christian Coalition with one paid for by the facilities of the television station and network. Oh, no. The prohibitions do apply to a [[Page S976]] television, or a radio station, or a network owned or controlled by a political party, a political committee, or a candidate. So, Mr. President, we have the spectacle of all of these requirements being applied to a radio station or a television station owned by a candidate, but not applied to the National Broadcasting Company and, say, Tom Brokaw, the company owned by General Electric. So a corporation can purchase a television station or a network and do whatever it wants in politics. But a candidate can't and a political party can't. Mr. President, how can that possibly, under any circumstances, be valid under the equal protection clause? How does that grant due process to candidates, political parties, or to any other organization, except for a corporate owner of a television station, a radio station, or a network? The Senator from Maine also deals with the NAACP case and says, well, yes, the Supreme Court has ruled rather expressly that you cannot require a group expressing its point of view on a political subject to list its membership. She says every rule has its exceptions and there are certain kinds of organizations where that should be the case, but there are other kinds where it should not. Last June, in testimony I think, on a bill like this, top officials of two organizations, Public Citizen and the Sierra Club Foundation, refused to expose the identities of their members. ``As I am sure you are aware, citizens have a first amendment right to form organizations to advance their common goals without fear of investigation or harassment,'' Public Citizen President Joan Claybrook told GNS. We respect our members' rights to freely and privately associate with others who share their beliefs, and we do not reveal their identities. We will not violate their trust simply to satisfy the curiosity of Congress or even the press. Evidently, the sponsors of this amendment feel that they need pay no attention to that proposition. But I look through the NAACP case without finding the slightest hint that the Supreme Court will oblige the sponsors of this amendment. The Supreme Court in that case said: Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. . . . It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ``liberty'' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . It is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious, or cultural matters . . . . In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action. The Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action that might interfere with freedom of assembly, it said, ``A requirement that those in adherence of particular religious faiths or political parties wear identifying armbands is obviously of this nature. To compel the disclosure of membership in an organization engaged in the advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may, in many circumstances, be indispensable to the preservation of freedom of association.'' (Ms. COLLINS assumed the Chair.) Mr. GORTON. Now, Madam President, that is not a statement of the Supreme Court of the United States that is going to admit exceptions and say, oh, well, we really didn't mean it in a political race, we really didn't mean it in connection with an advocacy organization like the Christian Coalition or the labor unions; though, perhaps, we did mean it with respect to television networks. They will not do that. Madam President, with respect to this attempt to limit freedom of speech, the views of the American Civil Liberties Union are particularly eloquent, and I do want to share just a handful of them at this point on this specific amendment. We are writing today . . . to set forth our views on an amendment to that bill dealing with controls on issue advocacy which is being sponsored by Senators Snowe and Jeffords. Although that proposal has been characterized as a compromise measure which would replace certain of the more egregious features of the comparable provisions of McCain- Feingold, the Snowe-Jeffords amendment still embodies the kind of unprecedented restraint on issue advocacy that violates bedrock First Amendment principles. They go on eloquently to discuss exactly this proposition. They say, ``The Court''--referring to the Supreme Court--``fashioned the express advocacy doctrine to safeguard issue advocacy from campaign finance controls, even though such advocacy might influence the outcome of an election. The doctrine provides a bright-line objective test that protects political speech and association by focusing solely on the content of the speaker's words, not on the motive in the speaker's mind or the impact on the speaker's audience, or the proximity to an election.'' Madam President, this proposal is blatantly unconstitutional. It is overwhelmingly discriminatory among organizations engaged in identical activity. It is overwhelmingly discriminatory in treating the forum or the particular medium by which a group advocates its views differently depending solely on the sponsor's views on the effectiveness of that particular medium in influencing the outcome of an election. It discriminates between a commercial corporation ownership of a television or radio medium and a political ownership of the same medium. Madam President, it is exactly these prohibitions that the first amendment of the United States to the Constitution of the United States was designed to prohibit. And, of all forms of speech, the first amendment was aimed primarily at political speech. Here we have an attempt not only to ration political speech but to discriminate against certain forms of political speech and in favor of other forms of political speech, thus accomplishing the goal of violating not only the first amendment but the 14th amendment as well. Several Senators addressed the Chair. The PRESIDING OFFICER. The Senator from Maine. Ms. SNOWE. Madam President, I will yield time to the Senator from Michigan. I just want to make a couple of points in response to the Senator from Washington and to Senator Jeffords. Mr. LEVIN. I wonder if I might ask unanimous consent that immediately after the Senator from Maine is finished with her remarks I be recognized for 20 minutes. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Ms. SNOWE. The time off I yield to the Senator. The PRESIDING OFFICER. Is that acceptable to the Senator from Maine? Ms. SNOWE. With one exception: We would like to respond to the Senator from Washington briefly and Senator Jeffords briefly. We both have made our remarks. I want to yield to the Senator from Michigan 20 minutes. Mr. LEVIN. Madam President, I ask unanimous consent that after the Senators from Maine and Vermont are finished with their responses to the Senator from Washington, I be recognized for 20 minutes and that the time be taken from the time of the Senator from Maine. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Maine. Ms. SNOWE. Thank you, Madam President. Madam President, in response to what the Senator from Washington mentioned in terms of our amendment and the constitutional questions, it is interesting to note that his arguments suggest that in fact he prefers a broader amendment, which I think is interesting. So I would certainly ask the Senator from Washington if he could tell us where in the Constitution it is impermissible to draw these distinctions and to draw these lines? The Constitution doesn't require us to address every problem. It certainly allows us to address some of the problems. And we know where some of the problems develop in campaigns today. The problems develop in the amount of money that is placed in television and radio advertising. That is what we are attempting to address. [[Page S977]] So I think it is interesting that the Senator from Washington is talking about printed materials, newspapers, and direct mail. In fact, we are saying that isn't the source of the problem in these campaigns. The source of the problem is where you have $150 million being spent in television advertising by groups that do not have to disclose their donors That is all we are requiring--disclosure. That is the thrust of our amendment. We are entitled to draw those distinctions. It would not be unconstitutional. We don't need to find something in the Constitution to justify every policy decision that we make. Mr. JEFFORDS. Will the Senator from Maine yield on that point? Ms. SNOWE. I am glad to yield to the Senator from Vermont. Mr. JEFFORDS. I have known my good friend from Washington for 30 years, I guess. He is a master of the facts. Let us take a look at one of the glaring examples of that in his dissertation. He takes a case involving the NAACP during the 1950s, when we had huge racial unrest, and the Supreme Court, in examining the case to expose all of the members of the NAACP in the South, said, when you have a paramount interest here of protecting people from bodily harm, then there is no way that you can require them to expose their membership so that you can go beat them up. This is a paraphrase. In Buckley--someone raised that issue in this case--it said no. We are talking about different rights. We are talking about the rights of the public and the sacred right of casting a vote to know all of the information that can be available to them when they make decisions. That is a vital right, a sacred right. So that right overcomes any concern about releasing the names. You have to know. The voting public can't make decisions if they hear all of this coming out of the air at them and they do not know who said it. So I don't think there is any question. But that is just an example of the erudite on constitutional law running through all of this, because I think this is clearly a situation where it is not in violation of the Constitution. Ms. SNOWE. I thank Senator Jeffords for those comments. He is entirely correct on that issue. Obviously, there were legitimate fears of bodily harm and economic retribution in the 1950s in Alabama. That is what that case was all about. The court recognized that concern, and exceptions can be made, and have been made. In fact, in response to the issue that was raised by the Senator from Washington and the Senator from Kentucky, several legal experts--Burt Neuborne, from New York University School of Law; Mr. Ornstein, of the American Enterprise Institute; Dan Ortiz, University of Virginia School of Law; and Josh Rosenkranz, from the New York University School of Law and the Brennan Center--wrote a response to these concerns. These are legal and constitutional scholars in response to some of the groups suggesting that somehow they would fear the same reprisal. They said: These groups, like any other group, may be entitled to an exemption from electioneering disclosure laws if they can demonstrate a reasonable probability that compelling disclosure will subject its members to threats, harassment, or reprisal; but the need for these kinds of limited exceptions certainly do not make general disclosure rules contained in the Snowe-Jeffords amendment unconstitutional. So, yes, exceptions can be made without making a broad ruling with respect to the constitutionality of any legislation that we might pass here. To further buttress this point in terms of anonymity of donors, the courts have indicated in the past that there is no generalized right to anonymity. The Senator from Vermont mentioned the Buckley case upheld that. Another case that has been identified here is McIntyre v. Ohio Elections. Justice Scalia said: The question relevant to our decision is whether a right to anonymity is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer is clearly no. He went on to say: Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a government periodical that has a ``letters to the editor'' column disavow the policy that most newspapers have against the publication of anonymous letters? . . . Must a municipal ``public access'' cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end. Scalia went on to say that not only is it not a right, disclosure can be helpful in curbing ``mudslinging'' and ``character assassination'' and improving our elections. So the point of it all is that disclosure is in our public interest. It is the public's right to know. That is essentially the thrust of the Snowe-Jeffords amendment--to require disclosure of major donors over $500. It is in all of our interest to have such a requirement. Now I yield to the Senator from Michigan 20 minutes. The PRESIDING OFFICER. The Senator from Michigan. Mr. LEVIN. Madam President, first, let me commend the Senators from Maine and Vermont for their leadership. This amendment will strengthen the chances of this bill passing and, indeed, in many ways strengthen the bill itself. I lost track of the number of times this body has debated a need for campaign finance reform and was presented with reasonable bipartisan efforts and, yet, failed to get the job done. This is an issue which will not go away, and it is an issue which should not go away. Soft money contributions of hundreds of thousands of dollars, indeed, of millions of dollars, have made the contribution limits in Federal election laws meaningless. Both the Republican and Democratic National Committees, national parties, solicited and spent soft money and used it to develop so-called ``issue ads'' which are clearly designed to support or defeat specific candidates. These soft money and issue ad loopholes are used to transfer millions of dollars to outside organizations to conduct allegedly independent election-related activities that are, in fact, benefiting parties and candidates. These soft money and issue ad loopholes are used by tax-exempt organizations to spend millions of dollars from unknown sources on candidate attack ads to influence election outcomes. The reality of our campaign finance system simply cannot be avoided. Soft money has blown the lid off contribution limits in our campaign finance system. Soft money is the 800-pound gorilla sitting right in the middle of this debate. Just look at Roger Tamraz, a contributor to both political parties. He is a bipartisan symbol of what is wrong with this system. He served as a Republican Eagle in the 1980s during the Republican administrations, and a Democratic Managing Trustee in the 1990s during Democratic administrations. Tamraz was unabashed in admitting that his political contributions were made for the purpose of buying access to candidates and officeholders, and he showed us in stark terms the all too common product of the current campaign finance system--using soft money to buy access. Despite condemnation by the committee and the media of Tamraz' activities, when he was asked at the hearing to reflect upon his $300,000 contribution in 1996, Tamraz said, ``I think next time I will give $600,000.'' Now he was taunting us. He was flaunting the fact that he had given $300,000, indicating that it's perfectly legal and you folks like it that way or else you would change it. That's what Tamraz told us. And the truth of the matter is, he was right. It is a sad truth. We can change it if we want to change it. And the next time he will give $600,000 or $1 million to do the same thing, to buy access to candidates and to officeholders. Most of the 1996 excesses involved activities that were legal, and they all centered around that 800-pound gorilla, soft money. Virtually all the foreign contributions that concerned the committee that just held hearings involved soft money. Virtually every offer of access to the White House or the Capitol or the President or to Members of the Senate or the House involved contributions of soft money. Virtually every instance of questionable conduct in the committee's investigation involved the solicitation or use of soft money. The opponents want to pretend this monster doesn't exist, but it is sitting [[Page S978]] right in the middle of this debate. It is not going to be removed until we address it. The bipartisan McCain-Feingold bill would do an awful lot to repair this system. It is not a new bill. It has been before this body for years now and it has received sustained scrutiny from Members on both sides of the aisle. The truth is that the soft money loophole exists as long as we in Congress allow it to exist. The issue advocacy loophole exists because we in Congress allow it to exist. Tax-exempt organizations spend millions televising candidate attack ads days before an election without disclosing who they are or where they got their funds, because we in Congress allow it. It is time to stop pointing fingers at others and take responsibility for our share of the blame for this system. We alone write the laws. Congress alone can shut down the loopholes and reinvigorate the Federal election laws. When the Federal Election Campaign Act was first enacted 20 years ago in response to the Watergate scandal, Congress enacted a comprehensive system of laws including contribution limits and full disclosure of all campaign contributions. The requirements are still on the books, at least in form. Individuals are not supposed to give more than $1,000 to a candidate per election. Corporations and unions are barred from contributing to any candidate without going through a political action committee. Campaign contributions and expenditures have to be disclosed. At the time that these laws were enacted, many people fought against those laws, claiming that they were an unconstitutional restriction on first amendment rights to free speech and free association. And the law's opponents, including the ACLU, took their case to the Supreme Court. The ACLU is sometimes right and the ACLU is sometimes wrong, but they are always eloquent. And the reason they are always eloquent is that the first amendment is eloquent. But so are clean elections an eloquent idea. So are elections which are free and clean and democratic an eloquent idea. So the Supreme Court, in Buckley, had to weigh the ACLU opposition to the campaign contribution limits against the need for elections which were free and clean, both of corruption and the appearance of corruption--both. And the ACLU lost that issue in Buckley. It is frequently forgotten around here that there was an attack on the campaign contribution limits, which are now the law, that attack was led by the ACLU in the Buckley case, and the ACLU lost. The Supreme Court in Buckley upheld contribution limits and disclosure limits. It upheld them despite the eloquence of the ACLU in opposition to those limits in Buckley. Now, this is what the Supreme Court said in Buckley: It is unnecessary to look beyond the Act's primary purpose--to limit the actuality and appearance of corruption resulting from large individual financial contributions--in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. . . . To the extent that large contributions are given to secure political quid pro quo's from current potential office holders, the integrity of our system of representative democracy is undermined. And then the Supreme Court said the following in Buckley: Of almost equal concern is . . . the impact of the appearance of corruption, stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. And the Court went on: Congress could legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative government is not to be eroded to a disastrous extent. So the Supreme Court weighed the free speech arguments of the opponents of campaign contribution limits and weighed that against the argument about the need to have elections which are free and clean, and to avoid the appearance of corruption. And they decided in Buckley that we, Congress, ``could legitimately conclude that the avoidance of the appearance of improper influence is critical if confidence in the system of representative government is not to be eroded to a disastrous extent.'' The same Court upheld tough disclosure requirements, effectively prohibiting anonymous or secret contributions to candidates and parties, despite arguments in Buckley that disclosure collides with first amendment rights of free speech and free association. The Court in Buckley said the following: Compelled disclosure has the potential for substantially infringing on the exercise of first amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the free functioning of our national institutions is involved. The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. So, despite the arguments of opponents of contribution limits and opponents of disclosure who base their arguments on first amendment concerns, the Supreme Court in Buckley said you can limit contributions and you can require disclosure because the governmental interests sought to be vindicated, the free functioning of our national institutions, is involved. And Congress can consider that. They used a balancing test, and that is the test that they would use when we pass McCain-Feingold. Now, relative to the question of the so-called magic words test on issue ads, it is true that two circuits have said that the Supreme Court has ruled that only if certain magic words are present can you then limit those ads to being paid for by regulated contributions. But another circuit, the ninth circuit, in the Furgatch case, has held that this list of magic words referred to so frequently here ``does not exhaust the capacity of the English language to expressly advocate the election or defeat of a candidate.'' And of equal importance to the fact that the circuits are divided on the question of what constitutes issue advocacy and what constitutes candidate advocacy is the fact that the Federal Election Commission just recently, on a bipartisan basis, reaffirmed its commitment to a broader test that goes beyond the magic words test to unmask ads that use the guise of issue ads to advocate the election or defeat of a Federal candidate. The Supreme Court has not yet ruled on whether the FEC regulation is constitutional. But when you have at least one circuit and the FEC saying that you can have a broader test than the ones that have been adopted in the other circuits, there is a division of authority here which means that at least there is a reasonable chance that the Supreme Court will affirm the FEC regulation. I wonder how much time I have remaining? The PRESIDING OFFICER. The Senator has 7 minutes and 27 seconds. Mr. LEVIN. I thank the Chair. Relative to the Snowe-Jeffords amendment, this amendment strikes an acceptable balance between the need to protect the integrity of our electoral process and the need to protect the rights to free speech. It would address issue ad abuse by creating a new category of electioneering ads, defined as ads that refer to a clearly identified candidate up for election and which are broadcast on the regulated media of television or radio close in time before an election. Now, why radio and television? The answer is that the Supreme Court itself has held that, due to the fact that these media, radio and television, are regulated, are licensed, and that the spectrum is limited, you can regulate these media in ways in which you cannot regulate newspapers or the printed word. The Supreme Court has ruled that there is a difference between Government regulating licensed media and unlicensed media, and where Government issues a license--gives out a license of great value for public media--it can indeed regulate the media in a reasonable way, ways it can't possibly even think of regulating newspapers or other print media, which are not regulated media. Indeed, the FCC has regulations on what can be said on radio and television. There are rules against obscenity on radio and television. There are rules about the numbers of commercials and the types of commercials on children's television. There are all kinds of rules for the regulated media of television and radio which do not exist relative to newspapers. So, it is not an uncommon distinction. It is a [[Page S979]] distinction which has been affirmed by the Supreme Court and it is not the effectiveness which is so much the issue, it is the fact that they are regulated, licensed media which, in my judgment at least, represents a significant difference. The Snowe-Jeffords amendment would impose a limited set of contribution limits and disclosure requirements on commercials on these licensed media. No corporate or union funds could be used to pay for them. Donors who provide more than $500 would have to be disclosed. These limits are well within the bounds of the contribution limits and disclosure requirements which have been upheld in Buckley as a constitutional means for protecting the integrity of our electoral process. Madam President, this is not the first time that loopholes have eroded the effectiveness of a set of laws. This happens all the time. The election laws are just the latest example. We saw that true with lobbying disclosure. We saw that true with gift bans. You adopt a set of rules and then people who want to try to evade those rules or push the envelope find loopholes. And then Congress has a responsibility to come along to try to close these loopholes in order to carry out the original intent of the statute. The question is whether or not we are going to do this now with the campaign contribution laws. We passed a law saying there is a $1,000 contribution limit to a campaign and now there is really no limit on how much you can contribute. All you have to do is give your millions to a party and have the party, then, spend the money on ads which are indistinguishable from ads attacking or supporting candidates. These ads are indistinguishable. You can put up two ads next to each other, ask any reasonable person, ``Do you see the difference between this candidate support ad and this issue ad?'' and people will look at those ads and say, ``There is no difference at all.'' We saw that in committee hearings, which the Presiding Officer and I and others participated in, in the Thompson committee, where we put up side by side a so-called candidate ad and an issue ad, with three words difference, one of which had to be paid for with limited funds and the other one which could be paid for with soft money or unregulated funds, and we had expert witnesses, including two former Members of this body, Senator Kassebaum and Vice President Mondale, who could see no distinction in those ads. And there is none. So we now have a farce. We have a sham. The campaign contribution limits, for all intents and purposes, do not exist. There is no $1,000 limit on giving money to a candidate. Just give $1 million to the candidate's party, have that party put a so-called issue ad on in that candidate's election, and it is indistinguishable from the so-called candidate support ad which has to be paid for with regulated funds. The question is whether we are going to do anything about it. The time for shedding crocodile tears about the 1996 campaign funding raising is over. We ought to wipe away these tears from our eyes and see clearly what the American people see. Over 80 percent of them, according to a recent Los Angeles Times poll, believe the campaign fundraising system needs to be reformed; 78 percent of the American people think we ought to limit the role of soft money. A majority of this body wants to limit it. We saw that in the vote yesterday. The question now is whether or not the majority will of this body and the majority will of the American people are going to be carried out, and that is where we are. I hope

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PAYCHECK PROTECTION ACT
(Senate - February 25, 1998)

Text of this article available as: TXT PDF [Pages S972-S995] PAYCHECK PROTECTION ACT The PRESIDING OFFICER. Under the previous order, the clerk will report the pending business. The assistant legislative clerk read as follows: A bill (S. 1663) to protect individuals from having their money involuntarily collected and used for politics by a corporation or labor organization. The Senate resumed consideration of the bill. Pending: McCain amendment No. 1646, in the nature of a substitute. Snowe amendment No. 1647 (to amendment No. 1646), to amend those provisions with respect to communications made during elections, including communications made by independent organizations. The PRESIDING OFFICER. Who seeks time? Who yields time? Mr. BURNS. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Ms. SNOWE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Ms. SNOWE. Thank you, Mr. President. I think that the debate on the Snowe-Jeffords amendment has been very important in terms of underscoring the issues that need to be addressed in reforming our campaign finance system. I would like to review for the membership of this body exactly what the Snowe-Jeffords amendment would do, because we have heard so much about the impact of it and the misconceptions about the impact of the provisions included in this amendment. The fact is, this amendment will affect several categories with respect to advertising by groups across this country during the course of an election designed to influence the outcome of a Federal election. We are not saying they cannot advertise. We are not saying that they cannot engage in political activity. But what we are asking these groups to do is to disclose their major donors if they advertise on either medium, radio or television, 60 days before a general election, 30 days before a primary, in which they identify or mention a candidate for Federal office. They then would be required to disclose their major donors who contribute more than $500. That is more than twice the threshold for disclosure for Federal candidates. So, unlike the suggestion of those who are opposed to the campaign finance proposal and the Snowe-Jeffords amendment that this is too invasive, too broad, it is not. In fact, it would meet the Buckley standards handed down in that Supreme Court decision of not being invasive. In that Court decision, they were considering the impact of requiring donors of more than $10 to be disclosed. Obviously, that is broad and invasive. But this would pass constitutional muster. We are talking about groups that spend money on television or radio broadcasts in which they identify a Federal candidate 60 days before a general election, because, obviously, when those ads are aired at that point in time, they are intending to influence the outcome of an election. The medium is radio and television. The timing is 60 days before a general election, 30 days before a primary. The ad must mention a candidate's name or identify the candidate clearly. Targeting: The ad must be targeted at voters in the candidate's State. And the threshold: The sponsor of the ad must spend more than $10,000 on such ads in the calendar year. It is very narrow, it is very clearly targeted, very specific. And the Supreme Court has said that you can make a distinction of electioneering communications from other forms of speech. That is exactly what the Snowe-Jeffords amendment does. We are replacing the issue advocacy provisions of the McCain-Feingold legislation, section 201, that could raise constitutional questions. The proposals that Senator Jeffords and I are offering today are ones that have been designed by legal and constitutional experts based on court decisions. What the Snowe-Jeffords amendment would not do, because, again, we have heard so much about what the impact would be and, in many cases, have been very erroneous in some of the circulations in Congress by various groups, it would not prohibit groups from communicating. If they want to advertise, they have every right to do that. They can communicate with their grassroots membership. It does not prohibit them from accepting funds, corporate or labor funds. It would not require groups to create a PAC. They can continue what they are doing. But they are required to disclose if they are going to identify a candidate 60 days before an election in a television advertisement or radio broadcast. It would not affect the ability of any organization to urge grassroots contacts with lawmakers in upcoming votes. They can say, ``Call your Senator, call your Member of Congress, using the 1-800 number,'' which is a popular means today. That is certainly allowed. There is nothing to discourage that. If they identify a candidate in a TV or radio broadcast 60 days before an election, then they have to disclose their donors of more than $500, and that is all we are requiring. So it is not invasive; it would not require them to give an advance of the specifics of their advertisement and the text. What we are requiring in all of this is disclosure so that everybody understands who is financing these advertisements when they are designed to influence the outcome of an election. It guards against sneak attacks. Doesn't everybody have the right to know? Absolutely. And that is why the Supreme Court made that distinction in Buckley and in other cases, to draw that bright line, which is what the Snowe-Jeffords amendment does. The Court has never said that there is one route towards what can be distinguished in terms of electioneering communications. The fact of the matter is, it said you can make that distinction, that the U.S. Congress has the prerogative to make that distinction in a very narrow, very targeted way. This amendment would pass constitutional muster. I think that is what causes some anxiety for some people, because they are opposed to this amendment because it will require disclosure of major donors. Since when has disclosure been antithetical to good government, to campaign financing? Because that is the thrust of this amendment. It is disclosure. I think we all can concur that secrecy does not invite the kind of campaign that we want to see in America. We are entitled to know who finances these campaigns when it comes to major donors, when they are running ads that influence the outcome of these campaigns. The fact is, these groups have spent at least, based on what we know because it is a guesstimate because they did not have to disclose, $150 million--$150 million. The best we can guess, because, again, it does not require disclosure, is a third of all the money that was spent was spent on campaign advertising in the last election cycle, and we do not know where one dime comes from. We don't have the identity of donors, and yet they play a key role in influencing Federal elections. We had $150 million spent on issue ads in the 1996 election, and $400 million was spent for all the candidates: for the President, the Senate and the House. And yet, of this $150 million--this is probably a conservative estimate; this is based on the Annenberg Public Policy Center study; probably the most definitive study on issue advertising and issue advocacy. In fact, what they did was they analyzed advertising that was done by 109 organizations--109 TV and radio advertisements from 29 organizations. So we would expect that that estimate is pretty conservative. So what we are saying here is that there should be a means for disclosure. The courts have never said that disclosure is not in the public interest. [[Page S973]] The fact is that the Supreme Court has ruled time and again, and specifically in Buckley, that there is strong governmental interest that justifies disclosure, and that is why we have designed this amendment in the manner that we have. We also restrict campaign spending by unions and corporations with their nonvoluntary contributions in television and radio advertising in which they mention a candidate 60 days before a general election and 30 days before a primary because, again, there has been a century-long decision by the Government as well as the Congress in which that distinction can be made. The courts have made that distinction that Congress has the right to restrict spending by those entities because of those benefits that have been conferred on unions and corporations by the Congress, so that we are entitled to draw that distinction. And we do in this amendment. The courts have ruled that the Congress has the right to enact a statute that defines electioneering as long as it isn't vague or overbroad, that we can develop a more nuanced approach, because I know the Senator from Kentucky has cited cases in which he said that the Court would not support this type of an amendment. To the contrary, the fact of the matter is, this amendment is not vague and it is not overbroad. Not only will it pass muster, I think the Court would have the advantage of seeing what has happened over the past 22 years since it ruled in Buckley that has made a mockery of the campaign laws in ways in which the system works today. If they had had the advantage of that back when they made the decision in Buckley, I think there is no question that they would have indicated the approach that we have here today. There is something wrong in a system where we have $150 million influencing Federal campaigns and we do not require disclosure, and that is what the Snowe-Jeffords amendment is all about. Mr. President, I hope that Members of the Senate will see fit to support this amendment because I think it is in the interest of our campaign system, it is in the interest of good government. We have heard so much about these issues ads and the content of these so-called ``issue ads'' in the last election. Every group has the right to state their position. They have the right to communicate with their lawmakers. They have the right to even participate in the political process in advertisements and voting for or against. But I think they also should be required to identify their major donors when they are identifying a candidate 60 days before an election. Now, there are different kinds of issue ads. The one that I am mentioning here in the content of so-called ``issue ads'' isn't pure issue advocacy because there is a difference between issue advocacy and candidate advocacy. In this case, what we are seeing in what is so-called ``issue ads,'' 87 percent of what is called ``issue ads'' actually referred to a candidate or an official--87 percent. So rather than just talking about an issue and informing the public or running an ad that says, ``Call your Senator or call your Congressman,'' it was one in which it was designed to influence the outcome of an election, because 87 percent of those ads referred to an official or a candidate. In fact, according to the Annenberg study, 41 percent of those ads were ``pure attack''--41 percent--and yet not one dime is required when it comes to disclosure. So $150 million of this money was spent on so- called ``issue ads,'' and some of them were pure issue ads, but many of those ads, in fact 87 percent, referred to an official or to a candidate that, again, had the impact, or certainly had the intent, of affecting the outcome of an election, or otherwise they would not have mentioned the candidate's name. Mr. GORTON. Mr. President, will the Senator from Maine yield for a set of factual questions about her amendment? Ms. SNOWE. I am glad to yield. Mr. GORTON. Mr. President, would the Senator from Maine tell us, am I correct in reading the requirements relating to electioneering communications, that they apply to broadcast stations, television and radio broadcast stations, but not to newspapers or to direct mail? Ms. SNOWE. That is correct. Mr. GORTON. Do they apply to the Internet? Ms. SNOWE. Excuse me? Mr. GORTON. Do they apply to the Internet? Ms. SNOWE. No. Television and radio. Mr. GORTON. So none of these requirements apply to newspapers or direct mail or to---- Ms. SNOWE. If I can answer the Senator's question, that is correct. I know the Senator from Kentucky has objected to any possibility of impacting the first amendment. We would all agree in that respect, that obviously we want to draw that bright and distinctive line. Because no one wants to chill the first amendment right of freedom of speech. So that is where you can invite the possibility of concerns when it comes to printed material and to direct mail and to newspapers. We also know that most of the money in campaigns is particularly in television, rather than radio, because it has the greatest impact. It can have the greatest effect. So as a result, we do narrowly target those two mediums. Mr. GORTON. I take it the Senator from Maine believes it is constitutional to target one medium of communication but not to target a separate, a different, medium of communication? Ms. SNOWE. That is correct. Mr. GORTON. Does the Senator from Maine believe, in connection with the exceptions for the broadcasting stations' own editorial comments, which is granted here, that in fact she is granting that exception simply because she feels it to be desirable, or does she--let me rephrase the question. Does the Senator from Maine believe that she could have constitutionally applied these rules and regulations to the television station's communication of its own ideas? Ms. SNOWE. Well, obviously, we are talking about political advertising that is sponsored by organizations. That is what we are identifying here because that is obviously playing the primary role. Mr. GORTON. I understand what it is being aimed at. My question is, is this exception a part of the amendment of the Senator from Maine because the Senator from Maine believes that it is mandatory that she could not constitutionally apply these electioneering communications to TV stations? Or is she doing it because she does not think it is a good idea to apply it to them? Ms. SNOWE. I think we are taking the approach in this amendment to draw it as narrowly as possible so that we do not affect the first amendment rights. So, we are taking the most prudent, most cautious approach in designing this amendment. Mr. GORTON. So the Senator feels that---- Ms. SNOWE. If I might reclaim my time to answer the Senator's question. My concern--and I think shared by others, such as Senator Jeffords, who is a lead sponsor of this amendment as well--we are concerned about the political advertising that is in these campaigns, hundreds of millions of dollars, where there is no disclosure, that influences the campaigns. So we are creating a separate category of advertising called ``electioneering communication,'' in response to the question. Mr. GORTON. I think I do understand the Senator's feelings on that. I was simply asking whether she is exempting the television stations because she thinks she is required to by the first amendment. Ms. SNOWE. Yes. Mr. GORTON. Or she thinks it is a good idea. Ms. SNOWE. I think it is the most cautionary approach. Mr. GORTON. Thank you. Ms. SNOWE. The courts have allowed and made those distinctions in the past where we can draw a line in terms of methods of communicating and have allowed different rules for public airwaves. We are focusing on the most egregious abuses that have been identified in these campaigns in the past. If anything, I think the 1996 cycle highlighted the extent of the problem by the amounts of money that were placed in issue advertising that ordinarily would be, I think, a significant component in the campaign. But what has developed in the final analysis, as we all know, is sort of circumventing some of the restrictions that are currently in campaigns by what is masked [[Page S974]] as issue ads but really are candidate advocacy ads. That is what we are highlighting in this amendment by requiring disclosures by those groups that support these advertisements on behalf of candidates or in opposition to candidates shortly before the election. So we create a very narrow timeframe so that we do not engage in any possibilities of interfering with first amendment rights. We limit the medium to television and radio, again, so we do not invite any infringements on freedom of speech. Candidates-specific. They have to identify the candidate. Again, if that advertisement is targeted to a candidate's State, or in terms of House of Representatives elections, towards that candidate's district, again it is a threshold so that we don't affect small groups. If the sponsor of the ad spends less than $10,000 in a calendar year, they would not be required to disclose. Again, the Senator from Kentucky has mentioned Court cases like the NAACP v. Alabama in 1958, saying that the courts say you should not be required to supply your donor list because such disclosure could cause the fear of reprisal by its membership. Certainly there are exceptions to every rule, but you can have those exceptions without having the Court rule on its constitutionality. So, yes, there are exceptions, and the Court would require groups to obviously demonstrate that they had reasonable feeling that disclosing their donor base would be a reprisal. But there are exceptions, and there can be exceptions, but the law can be allowed to stand without suggesting that it will be ruled unconstitutional because there is an exception to that rule. We have drawn this amendment to be as narrow as possible in order to be as protective of the first amendment rights, constitutionally. If even possible we could have gone further but we chose to be narrow so that we don't create any problems with this legislation, because one of the concerns originally with the McCain-Feingold legislation is we would have the ban on soft money, but the issue advocacy provisions very possibly would have been struck down. So we designed this amendment in order to address those concerns. Mr. President, I yield such time as he may consume to Senator Jeffords, the other sponsor of this amendment. The PRESIDING OFFICER. The Senator from Vermont. Mr. JEFFORDS. Mr. President, I rise to urge my colleagues to support this fair and reasonable amendment. I think it is important for us to take a close look at what this does to make sure that we understand that it is really hard for anyone to be against it as near as I can tell. It is not the end-all of the situation that we face or the problems that need to be handled, by any means, but it does take into consideration doing something where nothing is done now to alert the public to who is behind the things that are being thrown on television. I can just imagine a candidate, and this happens now, I am sure, when they think they are running their campaign, they had it all organized and they are watching carefully the amount of money their opponent has, and then they wake up one morning thinking they are in fine shape and every channel they turn on on the television has this ad attacking them at the last moment, the last couple of weeks before the election, and they don't know who it is coming from or what to do about it; they were not aware of it. All we say is, OK, that can happen; but at least 45, 50, 60 days before it happens, you know it will happen. That is all we are saying. So that you don't get the surprise attacks by somebody who is running so-called issue ads that did not place them under the FEC regulations with respect to supporting that candidate. That is the real world we are faced with. It happened last time. It happened to the tune of $135 million. The least we could do, the very least, is to say at least you ought to know it is coming, first; and No. 2, where it is coming from so you have an idea when you get this last-minute flurry of advertising you are ready to do the best you can to protect yourself against it. Again, I want to commend the Senator for the continued leadership on this very important issue. Senator Snowe mentioned yesterday and today it is the duty of leaders to lead, and that means making some difficult choices in doing the right thing. On the issue, Senator Snowe has been a true leader. Crafting a compromise is often difficult. I thank the Senator from Maine for leading this body to a logical resolution, one which is sensible and one which is so commonsensical it is hard to understand why anybody would be against it, As was discussed yesterday, the basic tenets of the Snowe amendment are boosting disclosure requirements and tightening expenditures of certain funds in the weeks preceding a primary and general election. The amendment strengthens the McCain-Feingold bill in these areas in a reasonable manner. I could not support the McCain-Feingold bill until something was put into that area which is going to be the most used area. It is the first time it was used in the last election and we saw $135 million or more come in to the election. You have to remember that power is what those who are spending money seek. The money is going to follow that group which is most effective in gaining that power. Our job is to know where it comes from. The last Presidential election shows how terrible our means are to trace the money now. This is an opportunity to trace effectively, to know where it is coming from, you have a chance to understand where it came from. The last few election cycles have shown the spending has grown astronomically in two areas that cause me great concern: First, issue ads that have turned into blatant electioneering; second, the unfettered spending by corporations and unions to influence the outcomes of elections. As an example of how this spending has grown, a House Member from Michigan in 1996 faced nearly $2 million in advertisements alone before the fall campaigning season had begun. Campaigning really starts early and then there is a big boost at the end. Early on you want to knock the candidate out before he has a chance to get on the scene, and at the end it is because you know a large percentage of the people who vote really don't pay much attention until the last couple of weeks. The Snowe-Jeffords amendment addresses these areas in a reasonable, equitable, and, last but not least, constitutional way. Mr. President, citizens across this Nation have grown weary of the tenor of campaigns in recent years. This disappointment is reflected in low voter participation and the diminished role of individuals in electing their representatives. Increasing the information available to the electorate will help return the power of this democratic aspect to the people who should have it--the voters. Expanded disclosure will bring daylight to this process. Increased disclosure will rid corruption; more disclosure will protect the public and the candidates. How can we deny our electorate the ability to know the sponsors of electioneering communications? Give the people the information they need to better evaluate those Federal candidates that they will be voting on. Each of us should ask or be fully informed before we vote on a bill or amendment. How can we as Members of Congress stand here and say that the public should not have all the information they need before stepping into the voting booth? Additionally, the disclosure required in the Snowe-Jeffords amendment will help deter actual corruption and avoid the appearance of impropriety that many feel pervades our campaign finance system. Armed with this information, voters are guaranteed access to the truth. This change will restore the public's confidence in the election process and their elected representatives. As noted yesterday, the Annenberg Public Policy Center report figured there were somewhere between $135 to $150 million spent during the 1996 elections on so-called issue ads. This is a conservative estimate prepared very specifically not to lead to any exaggeration. The Annenberg report found that nearly 87 percent of these ads mentioned a candidate of office by name, and over 41 percent were seen by the public as pure attack ads. You ought to know who paid for them so we can better judge whether or not to believe them. This is the highest percentage recorded among a group that also [[Page S975]] included Presidential ads, debates, free time segments, court candidates, and new programs. Clearly, these ads were overtly aimed at electing or defeating targeted candidates, but under current law these ads were not subject to disclosure requirements of any nature. The second part of our amendment considers an area Congress has long had a solid record on: imposing more strenuous spending restrictions on corporations and labor unions. Remember, under the law, these are not given the same freedom of speech rights that individuals are, and rightfully so. Corporations have been banned from electioneering since 1907; unions, since 1947. As the Supreme Court pointed out in United States v. UAW, Congress banned corporate and union contributions in order to ``avoid the deleterious influences on Federal elections resulting from the use of money by those who exercise control over large aggregations of capital.'' Our amendment would ban corporations and unions from using General Treasury funds to fund electioneering communications in the last 60 days of the general election and the last 30 days before a primary. They still have the right to foster and to approve PACs, organizations for their employees or members of the union, to contribute to, in order that they individually, working together in the PACs, can influence the election process. The Snowe amendment takes a reasoned, incremental and constitutional step to address the concerns many of my colleagues have voiced on campaign finance reform proposals. Mr. President, some of our colleagues have expressed constitutional concerns with our amendment. Let me assure Members that we have taken great pains to craft a clear and narrow amendment on this issue in order to pass two critical first amendment doctrines that were at the heart of the Supreme Court's landmark Buckley decision, vagueness and overbreadth. Vagueness could chill free speech if someone who would otherwise speak chose not to because the rules aren't clear and they fear running afoul of the law. We agree that free speech should not be chilled and that is why our rules are very clear. Any sponsor will know with certainty if their ad is an electioneering ad. There would be no question the way we have delineated within the bill. Overbreadth could unintentionally sweep in a substantial amount of constitutionally protected speech. Our amendment is so narrow that it easily satisfies the Supreme Court's overbreadth concerns. We have asked the experts to check and give us advice on this. It is not just merely our opinion. We strictly limit our requirements to ads run near an election that identify a candidate--ads plainly intended to convince voters to vote for or against a particular candidate. As the Court declared in Buckley, the governmental interests that justified disclosure of election-related spending are considerably broader and more powerful than those justifying prohibitions or restrictions on election-related spending. Disclosure rules, the Court said, enhance the information available to the voting public. Who can be against that? Disclosure rules, according to the Court, are ``the least restrictive means of curbing evils of campaign ignorance and corruption.'' And our disclosure rules are immensely reasonable. As James Madison said: A popular government without popular information is but a prologue to a tragedy or a farce or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives. Mr. President, our amendment will arm the voters in order to sustain our popular Government. I fear that without our amendment, and campaign finance reform generally, the disillusionment of the voting public will grow, along with the scandals, and the participation of our voting public will continue to decline, to the extent that we will be embarrassed. It is close to that point now when, many times, only half of the people even bother to go to the polls. I ask that each Senator carefully consider the beneficial effects that our amendment will have and support us in moving this debate forward. Mr. GORTON. Mr. President, I yield such time off of Senator McConnell's time as I may use. The PRESIDING OFFICER. The Senator from Washington is recognized. Mr. GORTON. Mr. President, it is with intense regret that it's my view that this amendment, representing a good-faith attempt by two of my friends and my Republican colleagues, it seems to me, is subject to even more widespread and deeper constitutional objections than the original McCain-Feingold bill--a bill that seems, to this Senator at least, to be unconstitutional on its face. The fundamental objection to all of these attempts to limit the freedom of speech, of course, is that they fly in the face of the unrestricted language of the first amendment, language that does not-- though the Senator from Maine might wish to permit it to do so--permit exceptions to every general rule. This amendment, however, seems to me to violate the 14th amendment in many respects, with respect to both equal protection and due process. This amendment imposes broad and what some may consider to be onerous disclosure requirements with respect to what it calls ``electioneering''--on electioneering in certain ways through the mass media, but not at all in other ways, and even in the ways in which it covers electioneering by certain groups and organizations and not by other groups and organizations. The Senator from Maine said, during the course of her comments, that she does not think that she could constitutionally apply these requirements to electioneering by mail. She has not applied them to electioneering through newspapers, nor has she applied them to electronic electioneering through the Internet, but only to electronic electioneering by television or by radio. She does that, she says in all candor, because those seem to be the most effective methods of electioneering, the methods of choice by those who have engaged in what the law now calls ``express advocacy'' and what she calls ``electioneering.'' Well, Mr. President, it seems to me hardly to be subject to argument that you can say that the Government can regulate your speech in one medium, but cannot or will not regulate it through another medium. That is a fundamental denial of the most fundamental of all of our constitutional rights. It does, however, illustrate the flaw in this entire debate, and that is that effective electioneering should be banned, or severely controlled, and that certain kinds of speech are so unfair or so late in a political campaign that we ought not to allow them; and if we have to allow them, we ought to impose on them such heavy restrictions as to discourage them, even though we are going to permit exactly the same kind of communication, as long as it is done in a relatively ineffective fashion. To claim, Mr. President, that the Constitution of the United States, in the first and 14th amendments, permits those distinctions is to fly in the face of all rationale, all logic, and all constitutional law. But the amendment doesn't stop there. Even with respect to radio and television electioneering, it makes an exception. What is that exception? It is any news story, commentary, or editorial distributed through the facilities of a broadcasting station. So now we will have a law that clearly states that no matter how expensive, no matter how unfair, no matter how late in a campaign, a television station or a television network can do whatever it wishes without any of the restrictions of this statute; but no one else can without being subject to the restrictions of this amendment. Is there something that is so much superior in an editorial appearing on a television station over similar opinions expressed by a labor union, or by the Christian Coalition, or by any other political organization, that one should be discouraged and the other should be encouraged? Mr. President, that is a terrible policy in any political debate, and it is clearly a policy that is so discriminatory as to run afoul of the equal protection clause of the 14th amendment. And, Mr. President, this discrimination doesn't even stop there in distinguishing between a communication paid for by a labor union or the Christian Coalition with one paid for by the facilities of the television station and network. Oh, no. The prohibitions do apply to a [[Page S976]] television, or a radio station, or a network owned or controlled by a political party, a political committee, or a candidate. So, Mr. President, we have the spectacle of all of these requirements being applied to a radio station or a television station owned by a candidate, but not applied to the National Broadcasting Company and, say, Tom Brokaw, the company owned by General Electric. So a corporation can purchase a television station or a network and do whatever it wants in politics. But a candidate can't and a political party can't. Mr. President, how can that possibly, under any circumstances, be valid under the equal protection clause? How does that grant due process to candidates, political parties, or to any other organization, except for a corporate owner of a television station, a radio station, or a network? The Senator from Maine also deals with the NAACP case and says, well, yes, the Supreme Court has ruled rather expressly that you cannot require a group expressing its point of view on a political subject to list its membership. She says every rule has its exceptions and there are certain kinds of organizations where that should be the case, but there are other kinds where it should not. Last June, in testimony I think, on a bill like this, top officials of two organizations, Public Citizen and the Sierra Club Foundation, refused to expose the identities of their members. ``As I am sure you are aware, citizens have a first amendment right to form organizations to advance their common goals without fear of investigation or harassment,'' Public Citizen President Joan Claybrook told GNS. We respect our members' rights to freely and privately associate with others who share their beliefs, and we do not reveal their identities. We will not violate their trust simply to satisfy the curiosity of Congress or even the press. Evidently, the sponsors of this amendment feel that they need pay no attention to that proposition. But I look through the NAACP case without finding the slightest hint that the Supreme Court will oblige the sponsors of this amendment. The Supreme Court in that case said: Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. . . . It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ``liberty'' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . It is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious, or cultural matters . . . . In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action. The Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action that might interfere with freedom of assembly, it said, ``A requirement that those in adherence of particular religious faiths or political parties wear identifying armbands is obviously of this nature. To compel the disclosure of membership in an organization engaged in the advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may, in many circumstances, be indispensable to the preservation of freedom of association.'' (Ms. COLLINS assumed the Chair.) Mr. GORTON. Now, Madam President, that is not a statement of the Supreme Court of the United States that is going to admit exceptions and say, oh, well, we really didn't mean it in a political race, we really didn't mean it in connection with an advocacy organization like the Christian Coalition or the labor unions; though, perhaps, we did mean it with respect to television networks. They will not do that. Madam President, with respect to this attempt to limit freedom of speech, the views of the American Civil Liberties Union are particularly eloquent, and I do want to share just a handful of them at this point on this specific amendment. We are writing today . . . to set forth our views on an amendment to that bill dealing with controls on issue advocacy which is being sponsored by Senators Snowe and Jeffords. Although that proposal has been characterized as a compromise measure which would replace certain of the more egregious features of the comparable provisions of McCain- Feingold, the Snowe-Jeffords amendment still embodies the kind of unprecedented restraint on issue advocacy that violates bedrock First Amendment principles. They go on eloquently to discuss exactly this proposition. They say, ``The Court''--referring to the Supreme Court--``fashioned the express advocacy doctrine to safeguard issue advocacy from campaign finance controls, even though such advocacy might influence the outcome of an election. The doctrine provides a bright-line objective test that protects political speech and association by focusing solely on the content of the speaker's words, not on the motive in the speaker's mind or the impact on the speaker's audience, or the proximity to an election.'' Madam President, this proposal is blatantly unconstitutional. It is overwhelmingly discriminatory among organizations engaged in identical activity. It is overwhelmingly discriminatory in treating the forum or the particular medium by which a group advocates its views differently depending solely on the sponsor's views on the effectiveness of that particular medium in influencing the outcome of an election. It discriminates between a commercial corporation ownership of a television or radio medium and a political ownership of the same medium. Madam President, it is exactly these prohibitions that the first amendment of the United States to the Constitution of the United States was designed to prohibit. And, of all forms of speech, the first amendment was aimed primarily at political speech. Here we have an attempt not only to ration political speech but to discriminate against certain forms of political speech and in favor of other forms of political speech, thus accomplishing the goal of violating not only the first amendment but the 14th amendment as well. Several Senators addressed the Chair. The PRESIDING OFFICER. The Senator from Maine. Ms. SNOWE. Madam President, I will yield time to the Senator from Michigan. I just want to make a couple of points in response to the Senator from Washington and to Senator Jeffords. Mr. LEVIN. I wonder if I might ask unanimous consent that immediately after the Senator from Maine is finished with her remarks I be recognized for 20 minutes. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Ms. SNOWE. The time off I yield to the Senator. The PRESIDING OFFICER. Is that acceptable to the Senator from Maine? Ms. SNOWE. With one exception: We would like to respond to the Senator from Washington briefly and Senator Jeffords briefly. We both have made our remarks. I want to yield to the Senator from Michigan 20 minutes. Mr. LEVIN. Madam President, I ask unanimous consent that after the Senators from Maine and Vermont are finished with their responses to the Senator from Washington, I be recognized for 20 minutes and that the time be taken from the time of the Senator from Maine. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Maine. Ms. SNOWE. Thank you, Madam President. Madam President, in response to what the Senator from Washington mentioned in terms of our amendment and the constitutional questions, it is interesting to note that his arguments suggest that in fact he prefers a broader amendment, which I think is interesting. So I would certainly ask the Senator from Washington if he could tell us where in the Constitution it is impermissible to draw these distinctions and to draw these lines? The Constitution doesn't require us to address every problem. It certainly allows us to address some of the problems. And we know where some of the problems develop in campaigns today. The problems develop in the amount of money that is placed in television and radio advertising. That is what we are attempting to address. [[Page S977]] So I think it is interesting that the Senator from Washington is talking about printed materials, newspapers, and direct mail. In fact, we are saying that isn't the source of the problem in these campaigns. The source of the problem is where you have $150 million being spent in television advertising by groups that do not have to disclose their donors That is all we are requiring--disclosure. That is the thrust of our amendment. We are entitled to draw those distinctions. It would not be unconstitutional. We don't need to find something in the Constitution to justify every policy decision that we make. Mr. JEFFORDS. Will the Senator from Maine yield on that point? Ms. SNOWE. I am glad to yield to the Senator from Vermont. Mr. JEFFORDS. I have known my good friend from Washington for 30 years, I guess. He is a master of the facts. Let us take a look at one of the glaring examples of that in his dissertation. He takes a case involving the NAACP during the 1950s, when we had huge racial unrest, and the Supreme Court, in examining the case to expose all of the members of the NAACP in the South, said, when you have a paramount interest here of protecting people from bodily harm, then there is no way that you can require them to expose their membership so that you can go beat them up. This is a paraphrase. In Buckley--someone raised that issue in this case--it said no. We are talking about different rights. We are talking about the rights of the public and the sacred right of casting a vote to know all of the information that can be available to them when they make decisions. That is a vital right, a sacred right. So that right overcomes any concern about releasing the names. You have to know. The voting public can't make decisions if they hear all of this coming out of the air at them and they do not know who said it. So I don't think there is any question. But that is just an example of the erudite on constitutional law running through all of this, because I think this is clearly a situation where it is not in violation of the Constitution. Ms. SNOWE. I thank Senator Jeffords for those comments. He is entirely correct on that issue. Obviously, there were legitimate fears of bodily harm and economic retribution in the 1950s in Alabama. That is what that case was all about. The court recognized that concern, and exceptions can be made, and have been made. In fact, in response to the issue that was raised by the Senator from Washington and the Senator from Kentucky, several legal experts--Burt Neuborne, from New York University School of Law; Mr. Ornstein, of the American Enterprise Institute; Dan Ortiz, University of Virginia School of Law; and Josh Rosenkranz, from the New York University School of Law and the Brennan Center--wrote a response to these concerns. These are legal and constitutional scholars in response to some of the groups suggesting that somehow they would fear the same reprisal. They said: These groups, like any other group, may be entitled to an exemption from electioneering disclosure laws if they can demonstrate a reasonable probability that compelling disclosure will subject its members to threats, harassment, or reprisal; but the need for these kinds of limited exceptions certainly do not make general disclosure rules contained in the Snowe-Jeffords amendment unconstitutional. So, yes, exceptions can be made without making a broad ruling with respect to the constitutionality of any legislation that we might pass here. To further buttress this point in terms of anonymity of donors, the courts have indicated in the past that there is no generalized right to anonymity. The Senator from Vermont mentioned the Buckley case upheld that. Another case that has been identified here is McIntyre v. Ohio Elections. Justice Scalia said: The question relevant to our decision is whether a right to anonymity is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer is clearly no. He went on to say: Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a government periodical that has a ``letters to the editor'' column disavow the policy that most newspapers have against the publication of anonymous letters? . . . Must a municipal ``public access'' cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end. Scalia went on to say that not only is it not a right, disclosure can be helpful in curbing ``mudslinging'' and ``character assassination'' and improving our elections. So the point of it all is that disclosure is in our public interest. It is the public's right to know. That is essentially the thrust of the Snowe-Jeffords amendment--to require disclosure of major donors over $500. It is in all of our interest to have such a requirement. Now I yield to the Senator from Michigan 20 minutes. The PRESIDING OFFICER. The Senator from Michigan. Mr. LEVIN. Madam President, first, let me commend the Senators from Maine and Vermont for their leadership. This amendment will strengthen the chances of this bill passing and, indeed, in many ways strengthen the bill itself. I lost track of the number of times this body has debated a need for campaign finance reform and was presented with reasonable bipartisan efforts and, yet, failed to get the job done. This is an issue which will not go away, and it is an issue which should not go away. Soft money contributions of hundreds of thousands of dollars, indeed, of millions of dollars, have made the contribution limits in Federal election laws meaningless. Both the Republican and Democratic National Committees, national parties, solicited and spent soft money and used it to develop so-called ``issue ads'' which are clearly designed to support or defeat specific candidates. These soft money and issue ad loopholes are used to transfer millions of dollars to outside organizations to conduct allegedly independent election-related activities that are, in fact, benefiting parties and candidates. These soft money and issue ad loopholes are used by tax-exempt organizations to spend millions of dollars from unknown sources on candidate attack ads to influence election outcomes. The reality of our campaign finance system simply cannot be avoided. Soft money has blown the lid off contribution limits in our campaign finance system. Soft money is the 800-pound gorilla sitting right in the middle of this debate. Just look at Roger Tamraz, a contributor to both political parties. He is a bipartisan symbol of what is wrong with this system. He served as a Republican Eagle in the 1980s during the Republican administrations, and a Democratic Managing Trustee in the 1990s during Democratic administrations. Tamraz was unabashed in admitting that his political contributions were made for the purpose of buying access to candidates and officeholders, and he showed us in stark terms the all too common product of the current campaign finance system--using soft money to buy access. Despite condemnation by the committee and the media of Tamraz' activities, when he was asked at the hearing to reflect upon his $300,000 contribution in 1996, Tamraz said, ``I think next time I will give $600,000.'' Now he was taunting us. He was flaunting the fact that he had given $300,000, indicating that it's perfectly legal and you folks like it that way or else you would change it. That's what Tamraz told us. And the truth of the matter is, he was right. It is a sad truth. We can change it if we want to change it. And the next time he will give $600,000 or $1 million to do the same thing, to buy access to candidates and to officeholders. Most of the 1996 excesses involved activities that were legal, and they all centered around that 800-pound gorilla, soft money. Virtually all the foreign contributions that concerned the committee that just held hearings involved soft money. Virtually every offer of access to the White House or the Capitol or the President or to Members of the Senate or the House involved contributions of soft money. Virtually every instance of questionable conduct in the committee's investigation involved the solicitation or use of soft money. The opponents want to pretend this monster doesn't exist, but it is sitting [[Page S978]] right in the middle of this debate. It is not going to be removed until we address it. The bipartisan McCain-Feingold bill would do an awful lot to repair this system. It is not a new bill. It has been before this body for years now and it has received sustained scrutiny from Members on both sides of the aisle. The truth is that the soft money loophole exists as long as we in Congress allow it to exist. The issue advocacy loophole exists because we in Congress allow it to exist. Tax-exempt organizations spend millions televising candidate attack ads days before an election without disclosing who they are or where they got their funds, because we in Congress allow it. It is time to stop pointing fingers at others and take responsibility for our share of the blame for this system. We alone write the laws. Congress alone can shut down the loopholes and reinvigorate the Federal election laws. When the Federal Election Campaign Act was first enacted 20 years ago in response to the Watergate scandal, Congress enacted a comprehensive system of laws including contribution limits and full disclosure of all campaign contributions. The requirements are still on the books, at least in form. Individuals are not supposed to give more than $1,000 to a candidate per election. Corporations and unions are barred from contributing to any candidate without going through a political action committee. Campaign contributions and expenditures have to be disclosed. At the time that these laws were enacted, many people fought against those laws, claiming that they were an unconstitutional restriction on first amendment rights to free speech and free association. And the law's opponents, including the ACLU, took their case to the Supreme Court. The ACLU is sometimes right and the ACLU is sometimes wrong, but they are always eloquent. And the reason they are always eloquent is that the first amendment is eloquent. But so are clean elections an eloquent idea. So are elections which are free and clean and democratic an eloquent idea. So the Supreme Court, in Buckley, had to weigh the ACLU opposition to the campaign contribution limits against the need for elections which were free and clean, both of corruption and the appearance of corruption--both. And the ACLU lost that issue in Buckley. It is frequently forgotten around here that there was an attack on the campaign contribution limits, which are now the law, that attack was led by the ACLU in the Buckley case, and the ACLU lost. The Supreme Court in Buckley upheld contribution limits and disclosure limits. It upheld them despite the eloquence of the ACLU in opposition to those limits in Buckley. Now, this is what the Supreme Court said in Buckley: It is unnecessary to look beyond the Act's primary purpose--to limit the actuality and appearance of corruption resulting from large individual financial contributions--in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. . . . To the extent that large contributions are given to secure political quid pro quo's from current potential office holders, the integrity of our system of representative democracy is undermined. And then the Supreme Court said the following in Buckley: Of almost equal concern is . . . the impact of the appearance of corruption, stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. And the Court went on: Congress could legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative government is not to be eroded to a disastrous extent. So the Supreme Court weighed the free speech arguments of the opponents of campaign contribution limits and weighed that against the argument about the need to have elections which are free and clean, and to avoid the appearance of corruption. And they decided in Buckley that we, Congress, ``could legitimately conclude that the avoidance of the appearance of improper influence is critical if confidence in the system of representative government is not to be eroded to a disastrous extent.'' The same Court upheld tough disclosure requirements, effectively prohibiting anonymous or secret contributions to candidates and parties, despite arguments in Buckley that disclosure collides with first amendment rights of free speech and free association. The Court in Buckley said the following: Compelled disclosure has the potential for substantially infringing on the exercise of first amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the free functioning of our national institutions is involved. The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. So, despite the arguments of opponents of contribution limits and opponents of disclosure who base their arguments on first amendment concerns, the Supreme Court in Buckley said you can limit contributions and you can require disclosure because the governmental interests sought to be vindicated, the free functioning of our national institutions, is involved. And Congress can consider that. They used a balancing test, and that is the test that they would use when we pass McCain-Feingold. Now, relative to the question of the so-called magic words test on issue ads, it is true that two circuits have said that the Supreme Court has ruled that only if certain magic words are present can you then limit those ads to being paid for by regulated contributions. But another circuit, the ninth circuit, in the Furgatch case, has held that this list of magic words referred to so frequently here ``does not exhaust the capacity of the English language to expressly advocate the election or defeat of a candidate.'' And of equal importance to the fact that the circuits are divided on the question of what constitutes issue advocacy and what constitutes candidate advocacy is the fact that the Federal Election Commission just recently, on a bipartisan basis, reaffirmed its commitment to a broader test that goes beyond the magic words test to unmask ads that use the guise of issue ads to advocate the election or defeat of a Federal candidate. The Supreme Court has not yet ruled on whether the FEC regulation is constitutional. But when you have at least one circuit and the FEC saying that you can have a broader test than the ones that have been adopted in the other circuits, there is a division of authority here which means that at least there is a reasonable chance that the Supreme Court will affirm the FEC regulation. I wonder how much time I have remaining? The PRESIDING OFFICER. The Senator has 7 minutes and 27 seconds. Mr. LEVIN. I thank the Chair. Relative to the Snowe-Jeffords amendment, this amendment strikes an acceptable balance between the need to protect the integrity of our electoral process and the need to protect the rights to free speech. It would address issue ad abuse by creating a new category of electioneering ads, defined as ads that refer to a clearly identified candidate up for election and which are broadcast on the regulated media of television or radio close in time before an election. Now, why radio and television? The answer is that the Supreme Court itself has held that, due to the fact that these media, radio and television, are regulated, are licensed, and that the spectrum is limited, you can regulate these media in ways in which you cannot regulate newspapers or the printed word. The Supreme Court has ruled that there is a difference between Government regulating licensed media and unlicensed media, and where Government issues a license--gives out a license of great value for public media--it can indeed regulate the media in a reasonable way, ways it can't possibly even think of regulating newspapers or other print media, which are not regulated media. Indeed, the FCC has regulations on what can be said on radio and television. There are rules against obscenity on radio and television. There are rules about the numbers of commercials and the types of commercials on children's television. There are all kinds of rules for the regulated media of television and radio which do not exist relative to newspapers. So, it is not an uncommon distinction. It is a [[Page S979]] distinction which has been affirmed by the Supreme Court and it is not the effectiveness which is so much the issue, it is the fact that they are regulated, licensed media which, in my judgment at least, represents a significant difference. The Snowe-Jeffords amendment would impose a limited set of contribution limits and disclosure requirements on commercials on these licensed media. No corporate or union funds could be used to pay for them. Donors who provide more than $500 would have to be disclosed. These limits are well within the bounds of the contribution limits and disclosure requirements which have been upheld in Buckley as a constitutional means for protecting the integrity of our electoral process. Madam President, this is not the first time that loopholes have eroded the effectiveness of a set of laws. This happens all the time. The election laws are just the latest example. We saw that true with lobbying disclosure. We saw that true with gift bans. You adopt a set of rules and then people who want to try to evade those rules or push the envelope find loopholes. And then Congress has a responsibility to come along to try to close these loopholes in order to carry out the original intent of the statute. The question is whether or not we are going to do this now with the campaign contribution laws. We passed a law saying there is a $1,000 contribution limit to a campaign and now there is really no limit on how much you can contribute. All you have to do is give your millions to a party and have the party, then, spend the money on ads which are indistinguishable from ads attacking or supporting candidates. These ads are indistinguishable. You can put up two ads next to each other, ask any reasonable person, ``Do you see the difference between this candidate support ad and this issue ad?'' and people will look at those ads and say, ``There is no difference at all.'' We saw that in committee hearings, which the Presiding Officer and I and others participated in, in the Thompson committee, where we put up side by side a so-called candidate ad and an issue ad, with three words difference, one of which had to be paid for with limited funds and the other one which could be paid for with soft money or unregulated funds, and we had expert witnesses, including two former Members of this body, Senator Kassebaum and Vice President Mondale, who could see no distinction in those ads. And there is none. So we now have a farce. We have a sham. The campaign contribution limits, for all intents and purposes, do not exist. There is no $1,000 limit on giving money to a candidate. Just give $1 million to the candidate's party, have that party put a so-called issue ad on in that candidate's election, and it is indistinguishable from the so-called candidate support ad which has to be paid for with regulated funds. The question is whether we are going to do anything about it. The time for shedding crocodile tears about the 1996 campaign funding raising is over. We ought to wipe away these tears from our eyes and see clearly what the American people see. Over 80 percent of them, according to a recent Los Angeles Times poll, believe the campaign fundraising system needs to be reformed; 78 percent of the American people think we ought to limit the role of soft money. A majority of this body wants to limit it. We saw that in the vote yesterday. The question now is whether or not the majority will of this body and the majority will of the American people are going to be carried out, and that is where we are

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PAYCHECK PROTECTION ACT
(Senate - February 25, 1998)

Text of this article available as: TXT PDF [Pages S972-S995] PAYCHECK PROTECTION ACT The PRESIDING OFFICER. Under the previous order, the clerk will report the pending business. The assistant legislative clerk read as follows: A bill (S. 1663) to protect individuals from having their money involuntarily collected and used for politics by a corporation or labor organization. The Senate resumed consideration of the bill. Pending: McCain amendment No. 1646, in the nature of a substitute. Snowe amendment No. 1647 (to amendment No. 1646), to amend those provisions with respect to communications made during elections, including communications made by independent organizations. The PRESIDING OFFICER. Who seeks time? Who yields time? Mr. BURNS. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Ms. SNOWE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Ms. SNOWE. Thank you, Mr. President. I think that the debate on the Snowe-Jeffords amendment has been very important in terms of underscoring the issues that need to be addressed in reforming our campaign finance system. I would like to review for the membership of this body exactly what the Snowe-Jeffords amendment would do, because we have heard so much about the impact of it and the misconceptions about the impact of the provisions included in this amendment. The fact is, this amendment will affect several categories with respect to advertising by groups across this country during the course of an election designed to influence the outcome of a Federal election. We are not saying they cannot advertise. We are not saying that they cannot engage in political activity. But what we are asking these groups to do is to disclose their major donors if they advertise on either medium, radio or television, 60 days before a general election, 30 days before a primary, in which they identify or mention a candidate for Federal office. They then would be required to disclose their major donors who contribute more than $500. That is more than twice the threshold for disclosure for Federal candidates. So, unlike the suggestion of those who are opposed to the campaign finance proposal and the Snowe-Jeffords amendment that this is too invasive, too broad, it is not. In fact, it would meet the Buckley standards handed down in that Supreme Court decision of not being invasive. In that Court decision, they were considering the impact of requiring donors of more than $10 to be disclosed. Obviously, that is broad and invasive. But this would pass constitutional muster. We are talking about groups that spend money on television or radio broadcasts in which they identify a Federal candidate 60 days before a general election, because, obviously, when those ads are aired at that point in time, they are intending to influence the outcome of an election. The medium is radio and television. The timing is 60 days before a general election, 30 days before a primary. The ad must mention a candidate's name or identify the candidate clearly. Targeting: The ad must be targeted at voters in the candidate's State. And the threshold: The sponsor of the ad must spend more than $10,000 on such ads in the calendar year. It is very narrow, it is very clearly targeted, very specific. And the Supreme Court has said that you can make a distinction of electioneering communications from other forms of speech. That is exactly what the Snowe-Jeffords amendment does. We are replacing the issue advocacy provisions of the McCain-Feingold legislation, section 201, that could raise constitutional questions. The proposals that Senator Jeffords and I are offering today are ones that have been designed by legal and constitutional experts based on court decisions. What the Snowe-Jeffords amendment would not do, because, again, we have heard so much about what the impact would be and, in many cases, have been very erroneous in some of the circulations in Congress by various groups, it would not prohibit groups from communicating. If they want to advertise, they have every right to do that. They can communicate with their grassroots membership. It does not prohibit them from accepting funds, corporate or labor funds. It would not require groups to create a PAC. They can continue what they are doing. But they are required to disclose if they are going to identify a candidate 60 days before an election in a television advertisement or radio broadcast. It would not affect the ability of any organization to urge grassroots contacts with lawmakers in upcoming votes. They can say, ``Call your Senator, call your Member of Congress, using the 1-800 number,'' which is a popular means today. That is certainly allowed. There is nothing to discourage that. If they identify a candidate in a TV or radio broadcast 60 days before an election, then they have to disclose their donors of more than $500, and that is all we are requiring. So it is not invasive; it would not require them to give an advance of the specifics of their advertisement and the text. What we are requiring in all of this is disclosure so that everybody understands who is financing these advertisements when they are designed to influence the outcome of an election. It guards against sneak attacks. Doesn't everybody have the right to know? Absolutely. And that is why the Supreme Court made that distinction in Buckley and in other cases, to draw that bright line, which is what the Snowe-Jeffords amendment does. The Court has never said that there is one route towards what can be distinguished in terms of electioneering communications. The fact of the matter is, it said you can make that distinction, that the U.S. Congress has the prerogative to make that distinction in a very narrow, very targeted way. This amendment would pass constitutional muster. I think that is what causes some anxiety for some people, because they are opposed to this amendment because it will require disclosure of major donors. Since when has disclosure been antithetical to good government, to campaign financing? Because that is the thrust of this amendment. It is disclosure. I think we all can concur that secrecy does not invite the kind of campaign that we want to see in America. We are entitled to know who finances these campaigns when it comes to major donors, when they are running ads that influence the outcome of these campaigns. The fact is, these groups have spent at least, based on what we know because it is a guesstimate because they did not have to disclose, $150 million--$150 million. The best we can guess, because, again, it does not require disclosure, is a third of all the money that was spent was spent on campaign advertising in the last election cycle, and we do not know where one dime comes from. We don't have the identity of donors, and yet they play a key role in influencing Federal elections. We had $150 million spent on issue ads in the 1996 election, and $400 million was spent for all the candidates: for the President, the Senate and the House. And yet, of this $150 million--this is probably a conservative estimate; this is based on the Annenberg Public Policy Center study; probably the most definitive study on issue advertising and issue advocacy. In fact, what they did was they analyzed advertising that was done by 109 organizations--109 TV and radio advertisements from 29 organizations. So we would expect that that estimate is pretty conservative. So what we are saying here is that there should be a means for disclosure. The courts have never said that disclosure is not in the public interest. [[Page S973]] The fact is that the Supreme Court has ruled time and again, and specifically in Buckley, that there is strong governmental interest that justifies disclosure, and that is why we have designed this amendment in the manner that we have. We also restrict campaign spending by unions and corporations with their nonvoluntary contributions in television and radio advertising in which they mention a candidate 60 days before a general election and 30 days before a primary because, again, there has been a century-long decision by the Government as well as the Congress in which that distinction can be made. The courts have made that distinction that Congress has the right to restrict spending by those entities because of those benefits that have been conferred on unions and corporations by the Congress, so that we are entitled to draw that distinction. And we do in this amendment. The courts have ruled that the Congress has the right to enact a statute that defines electioneering as long as it isn't vague or overbroad, that we can develop a more nuanced approach, because I know the Senator from Kentucky has cited cases in which he said that the Court would not support this type of an amendment. To the contrary, the fact of the matter is, this amendment is not vague and it is not overbroad. Not only will it pass muster, I think the Court would have the advantage of seeing what has happened over the past 22 years since it ruled in Buckley that has made a mockery of the campaign laws in ways in which the system works today. If they had had the advantage of that back when they made the decision in Buckley, I think there is no question that they would have indicated the approach that we have here today. There is something wrong in a system where we have $150 million influencing Federal campaigns and we do not require disclosure, and that is what the Snowe-Jeffords amendment is all about. Mr. President, I hope that Members of the Senate will see fit to support this amendment because I think it is in the interest of our campaign system, it is in the interest of good government. We have heard so much about these issues ads and the content of these so-called ``issue ads'' in the last election. Every group has the right to state their position. They have the right to communicate with their lawmakers. They have the right to even participate in the political process in advertisements and voting for or against. But I think they also should be required to identify their major donors when they are identifying a candidate 60 days before an election. Now, there are different kinds of issue ads. The one that I am mentioning here in the content of so-called ``issue ads'' isn't pure issue advocacy because there is a difference between issue advocacy and candidate advocacy. In this case, what we are seeing in what is so-called ``issue ads,'' 87 percent of what is called ``issue ads'' actually referred to a candidate or an official--87 percent. So rather than just talking about an issue and informing the public or running an ad that says, ``Call your Senator or call your Congressman,'' it was one in which it was designed to influence the outcome of an election, because 87 percent of those ads referred to an official or a candidate. In fact, according to the Annenberg study, 41 percent of those ads were ``pure attack''--41 percent--and yet not one dime is required when it comes to disclosure. So $150 million of this money was spent on so- called ``issue ads,'' and some of them were pure issue ads, but many of those ads, in fact 87 percent, referred to an official or to a candidate that, again, had the impact, or certainly had the intent, of affecting the outcome of an election, or otherwise they would not have mentioned the candidate's name. Mr. GORTON. Mr. President, will the Senator from Maine yield for a set of factual questions about her amendment? Ms. SNOWE. I am glad to yield. Mr. GORTON. Mr. President, would the Senator from Maine tell us, am I correct in reading the requirements relating to electioneering communications, that they apply to broadcast stations, television and radio broadcast stations, but not to newspapers or to direct mail? Ms. SNOWE. That is correct. Mr. GORTON. Do they apply to the Internet? Ms. SNOWE. Excuse me? Mr. GORTON. Do they apply to the Internet? Ms. SNOWE. No. Television and radio. Mr. GORTON. So none of these requirements apply to newspapers or direct mail or to---- Ms. SNOWE. If I can answer the Senator's question, that is correct. I know the Senator from Kentucky has objected to any possibility of impacting the first amendment. We would all agree in that respect, that obviously we want to draw that bright and distinctive line. Because no one wants to chill the first amendment right of freedom of speech. So that is where you can invite the possibility of concerns when it comes to printed material and to direct mail and to newspapers. We also know that most of the money in campaigns is particularly in television, rather than radio, because it has the greatest impact. It can have the greatest effect. So as a result, we do narrowly target those two mediums. Mr. GORTON. I take it the Senator from Maine believes it is constitutional to target one medium of communication but not to target a separate, a different, medium of communication? Ms. SNOWE. That is correct. Mr. GORTON. Does the Senator from Maine believe, in connection with the exceptions for the broadcasting stations' own editorial comments, which is granted here, that in fact she is granting that exception simply because she feels it to be desirable, or does she--let me rephrase the question. Does the Senator from Maine believe that she could have constitutionally applied these rules and regulations to the television station's communication of its own ideas? Ms. SNOWE. Well, obviously, we are talking about political advertising that is sponsored by organizations. That is what we are identifying here because that is obviously playing the primary role. Mr. GORTON. I understand what it is being aimed at. My question is, is this exception a part of the amendment of the Senator from Maine because the Senator from Maine believes that it is mandatory that she could not constitutionally apply these electioneering communications to TV stations? Or is she doing it because she does not think it is a good idea to apply it to them? Ms. SNOWE. I think we are taking the approach in this amendment to draw it as narrowly as possible so that we do not affect the first amendment rights. So, we are taking the most prudent, most cautious approach in designing this amendment. Mr. GORTON. So the Senator feels that---- Ms. SNOWE. If I might reclaim my time to answer the Senator's question. My concern--and I think shared by others, such as Senator Jeffords, who is a lead sponsor of this amendment as well--we are concerned about the political advertising that is in these campaigns, hundreds of millions of dollars, where there is no disclosure, that influences the campaigns. So we are creating a separate category of advertising called ``electioneering communication,'' in response to the question. Mr. GORTON. I think I do understand the Senator's feelings on that. I was simply asking whether she is exempting the television stations because she thinks she is required to by the first amendment. Ms. SNOWE. Yes. Mr. GORTON. Or she thinks it is a good idea. Ms. SNOWE. I think it is the most cautionary approach. Mr. GORTON. Thank you. Ms. SNOWE. The courts have allowed and made those distinctions in the past where we can draw a line in terms of methods of communicating and have allowed different rules for public airwaves. We are focusing on the most egregious abuses that have been identified in these campaigns in the past. If anything, I think the 1996 cycle highlighted the extent of the problem by the amounts of money that were placed in issue advertising that ordinarily would be, I think, a significant component in the campaign. But what has developed in the final analysis, as we all know, is sort of circumventing some of the restrictions that are currently in campaigns by what is masked [[Page S974]] as issue ads but really are candidate advocacy ads. That is what we are highlighting in this amendment by requiring disclosures by those groups that support these advertisements on behalf of candidates or in opposition to candidates shortly before the election. So we create a very narrow timeframe so that we do not engage in any possibilities of interfering with first amendment rights. We limit the medium to television and radio, again, so we do not invite any infringements on freedom of speech. Candidates-specific. They have to identify the candidate. Again, if that advertisement is targeted to a candidate's State, or in terms of House of Representatives elections, towards that candidate's district, again it is a threshold so that we don't affect small groups. If the sponsor of the ad spends less than $10,000 in a calendar year, they would not be required to disclose. Again, the Senator from Kentucky has mentioned Court cases like the NAACP v. Alabama in 1958, saying that the courts say you should not be required to supply your donor list because such disclosure could cause the fear of reprisal by its membership. Certainly there are exceptions to every rule, but you can have those exceptions without having the Court rule on its constitutionality. So, yes, there are exceptions, and the Court would require groups to obviously demonstrate that they had reasonable feeling that disclosing their donor base would be a reprisal. But there are exceptions, and there can be exceptions, but the law can be allowed to stand without suggesting that it will be ruled unconstitutional because there is an exception to that rule. We have drawn this amendment to be as narrow as possible in order to be as protective of the first amendment rights, constitutionally. If even possible we could have gone further but we chose to be narrow so that we don't create any problems with this legislation, because one of the concerns originally with the McCain-Feingold legislation is we would have the ban on soft money, but the issue advocacy provisions very possibly would have been struck down. So we designed this amendment in order to address those concerns. Mr. President, I yield such time as he may consume to Senator Jeffords, the other sponsor of this amendment. The PRESIDING OFFICER. The Senator from Vermont. Mr. JEFFORDS. Mr. President, I rise to urge my colleagues to support this fair and reasonable amendment. I think it is important for us to take a close look at what this does to make sure that we understand that it is really hard for anyone to be against it as near as I can tell. It is not the end-all of the situation that we face or the problems that need to be handled, by any means, but it does take into consideration doing something where nothing is done now to alert the public to who is behind the things that are being thrown on television. I can just imagine a candidate, and this happens now, I am sure, when they think they are running their campaign, they had it all organized and they are watching carefully the amount of money their opponent has, and then they wake up one morning thinking they are in fine shape and every channel they turn on on the television has this ad attacking them at the last moment, the last couple of weeks before the election, and they don't know who it is coming from or what to do about it; they were not aware of it. All we say is, OK, that can happen; but at least 45, 50, 60 days before it happens, you know it will happen. That is all we are saying. So that you don't get the surprise attacks by somebody who is running so-called issue ads that did not place them under the FEC regulations with respect to supporting that candidate. That is the real world we are faced with. It happened last time. It happened to the tune of $135 million. The least we could do, the very least, is to say at least you ought to know it is coming, first; and No. 2, where it is coming from so you have an idea when you get this last-minute flurry of advertising you are ready to do the best you can to protect yourself against it. Again, I want to commend the Senator for the continued leadership on this very important issue. Senator Snowe mentioned yesterday and today it is the duty of leaders to lead, and that means making some difficult choices in doing the right thing. On the issue, Senator Snowe has been a true leader. Crafting a compromise is often difficult. I thank the Senator from Maine for leading this body to a logical resolution, one which is sensible and one which is so commonsensical it is hard to understand why anybody would be against it, As was discussed yesterday, the basic tenets of the Snowe amendment are boosting disclosure requirements and tightening expenditures of certain funds in the weeks preceding a primary and general election. The amendment strengthens the McCain-Feingold bill in these areas in a reasonable manner. I could not support the McCain-Feingold bill until something was put into that area which is going to be the most used area. It is the first time it was used in the last election and we saw $135 million or more come in to the election. You have to remember that power is what those who are spending money seek. The money is going to follow that group which is most effective in gaining that power. Our job is to know where it comes from. The last Presidential election shows how terrible our means are to trace the money now. This is an opportunity to trace effectively, to know where it is coming from, you have a chance to understand where it came from. The last few election cycles have shown the spending has grown astronomically in two areas that cause me great concern: First, issue ads that have turned into blatant electioneering; second, the unfettered spending by corporations and unions to influence the outcomes of elections. As an example of how this spending has grown, a House Member from Michigan in 1996 faced nearly $2 million in advertisements alone before the fall campaigning season had begun. Campaigning really starts early and then there is a big boost at the end. Early on you want to knock the candidate out before he has a chance to get on the scene, and at the end it is because you know a large percentage of the people who vote really don't pay much attention until the last couple of weeks. The Snowe-Jeffords amendment addresses these areas in a reasonable, equitable, and, last but not least, constitutional way. Mr. President, citizens across this Nation have grown weary of the tenor of campaigns in recent years. This disappointment is reflected in low voter participation and the diminished role of individuals in electing their representatives. Increasing the information available to the electorate will help return the power of this democratic aspect to the people who should have it--the voters. Expanded disclosure will bring daylight to this process. Increased disclosure will rid corruption; more disclosure will protect the public and the candidates. How can we deny our electorate the ability to know the sponsors of electioneering communications? Give the people the information they need to better evaluate those Federal candidates that they will be voting on. Each of us should ask or be fully informed before we vote on a bill or amendment. How can we as Members of Congress stand here and say that the public should not have all the information they need before stepping into the voting booth? Additionally, the disclosure required in the Snowe-Jeffords amendment will help deter actual corruption and avoid the appearance of impropriety that many feel pervades our campaign finance system. Armed with this information, voters are guaranteed access to the truth. This change will restore the public's confidence in the election process and their elected representatives. As noted yesterday, the Annenberg Public Policy Center report figured there were somewhere between $135 to $150 million spent during the 1996 elections on so-called issue ads. This is a conservative estimate prepared very specifically not to lead to any exaggeration. The Annenberg report found that nearly 87 percent of these ads mentioned a candidate of office by name, and over 41 percent were seen by the public as pure attack ads. You ought to know who paid for them so we can better judge whether or not to believe them. This is the highest percentage recorded among a group that also [[Page S975]] included Presidential ads, debates, free time segments, court candidates, and new programs. Clearly, these ads were overtly aimed at electing or defeating targeted candidates, but under current law these ads were not subject to disclosure requirements of any nature. The second part of our amendment considers an area Congress has long had a solid record on: imposing more strenuous spending restrictions on corporations and labor unions. Remember, under the law, these are not given the same freedom of speech rights that individuals are, and rightfully so. Corporations have been banned from electioneering since 1907; unions, since 1947. As the Supreme Court pointed out in United States v. UAW, Congress banned corporate and union contributions in order to ``avoid the deleterious influences on Federal elections resulting from the use of money by those who exercise control over large aggregations of capital.'' Our amendment would ban corporations and unions from using General Treasury funds to fund electioneering communications in the last 60 days of the general election and the last 30 days before a primary. They still have the right to foster and to approve PACs, organizations for their employees or members of the union, to contribute to, in order that they individually, working together in the PACs, can influence the election process. The Snowe amendment takes a reasoned, incremental and constitutional step to address the concerns many of my colleagues have voiced on campaign finance reform proposals. Mr. President, some of our colleagues have expressed constitutional concerns with our amendment. Let me assure Members that we have taken great pains to craft a clear and narrow amendment on this issue in order to pass two critical first amendment doctrines that were at the heart of the Supreme Court's landmark Buckley decision, vagueness and overbreadth. Vagueness could chill free speech if someone who would otherwise speak chose not to because the rules aren't clear and they fear running afoul of the law. We agree that free speech should not be chilled and that is why our rules are very clear. Any sponsor will know with certainty if their ad is an electioneering ad. There would be no question the way we have delineated within the bill. Overbreadth could unintentionally sweep in a substantial amount of constitutionally protected speech. Our amendment is so narrow that it easily satisfies the Supreme Court's overbreadth concerns. We have asked the experts to check and give us advice on this. It is not just merely our opinion. We strictly limit our requirements to ads run near an election that identify a candidate--ads plainly intended to convince voters to vote for or against a particular candidate. As the Court declared in Buckley, the governmental interests that justified disclosure of election-related spending are considerably broader and more powerful than those justifying prohibitions or restrictions on election-related spending. Disclosure rules, the Court said, enhance the information available to the voting public. Who can be against that? Disclosure rules, according to the Court, are ``the least restrictive means of curbing evils of campaign ignorance and corruption.'' And our disclosure rules are immensely reasonable. As James Madison said: A popular government without popular information is but a prologue to a tragedy or a farce or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives. Mr. President, our amendment will arm the voters in order to sustain our popular Government. I fear that without our amendment, and campaign finance reform generally, the disillusionment of the voting public will grow, along with the scandals, and the participation of our voting public will continue to decline, to the extent that we will be embarrassed. It is close to that point now when, many times, only half of the people even bother to go to the polls. I ask that each Senator carefully consider the beneficial effects that our amendment will have and support us in moving this debate forward. Mr. GORTON. Mr. President, I yield such time off of Senator McConnell's time as I may use. The PRESIDING OFFICER. The Senator from Washington is recognized. Mr. GORTON. Mr. President, it is with intense regret that it's my view that this amendment, representing a good-faith attempt by two of my friends and my Republican colleagues, it seems to me, is subject to even more widespread and deeper constitutional objections than the original McCain-Feingold bill--a bill that seems, to this Senator at least, to be unconstitutional on its face. The fundamental objection to all of these attempts to limit the freedom of speech, of course, is that they fly in the face of the unrestricted language of the first amendment, language that does not-- though the Senator from Maine might wish to permit it to do so--permit exceptions to every general rule. This amendment, however, seems to me to violate the 14th amendment in many respects, with respect to both equal protection and due process. This amendment imposes broad and what some may consider to be onerous disclosure requirements with respect to what it calls ``electioneering''--on electioneering in certain ways through the mass media, but not at all in other ways, and even in the ways in which it covers electioneering by certain groups and organizations and not by other groups and organizations. The Senator from Maine said, during the course of her comments, that she does not think that she could constitutionally apply these requirements to electioneering by mail. She has not applied them to electioneering through newspapers, nor has she applied them to electronic electioneering through the Internet, but only to electronic electioneering by television or by radio. She does that, she says in all candor, because those seem to be the most effective methods of electioneering, the methods of choice by those who have engaged in what the law now calls ``express advocacy'' and what she calls ``electioneering.'' Well, Mr. President, it seems to me hardly to be subject to argument that you can say that the Government can regulate your speech in one medium, but cannot or will not regulate it through another medium. That is a fundamental denial of the most fundamental of all of our constitutional rights. It does, however, illustrate the flaw in this entire debate, and that is that effective electioneering should be banned, or severely controlled, and that certain kinds of speech are so unfair or so late in a political campaign that we ought not to allow them; and if we have to allow them, we ought to impose on them such heavy restrictions as to discourage them, even though we are going to permit exactly the same kind of communication, as long as it is done in a relatively ineffective fashion. To claim, Mr. President, that the Constitution of the United States, in the first and 14th amendments, permits those distinctions is to fly in the face of all rationale, all logic, and all constitutional law. But the amendment doesn't stop there. Even with respect to radio and television electioneering, it makes an exception. What is that exception? It is any news story, commentary, or editorial distributed through the facilities of a broadcasting station. So now we will have a law that clearly states that no matter how expensive, no matter how unfair, no matter how late in a campaign, a television station or a television network can do whatever it wishes without any of the restrictions of this statute; but no one else can without being subject to the restrictions of this amendment. Is there something that is so much superior in an editorial appearing on a television station over similar opinions expressed by a labor union, or by the Christian Coalition, or by any other political organization, that one should be discouraged and the other should be encouraged? Mr. President, that is a terrible policy in any political debate, and it is clearly a policy that is so discriminatory as to run afoul of the equal protection clause of the 14th amendment. And, Mr. President, this discrimination doesn't even stop there in distinguishing between a communication paid for by a labor union or the Christian Coalition with one paid for by the facilities of the television station and network. Oh, no. The prohibitions do apply to a [[Page S976]] television, or a radio station, or a network owned or controlled by a political party, a political committee, or a candidate. So, Mr. President, we have the spectacle of all of these requirements being applied to a radio station or a television station owned by a candidate, but not applied to the National Broadcasting Company and, say, Tom Brokaw, the company owned by General Electric. So a corporation can purchase a television station or a network and do whatever it wants in politics. But a candidate can't and a political party can't. Mr. President, how can that possibly, under any circumstances, be valid under the equal protection clause? How does that grant due process to candidates, political parties, or to any other organization, except for a corporate owner of a television station, a radio station, or a network? The Senator from Maine also deals with the NAACP case and says, well, yes, the Supreme Court has ruled rather expressly that you cannot require a group expressing its point of view on a political subject to list its membership. She says every rule has its exceptions and there are certain kinds of organizations where that should be the case, but there are other kinds where it should not. Last June, in testimony I think, on a bill like this, top officials of two organizations, Public Citizen and the Sierra Club Foundation, refused to expose the identities of their members. ``As I am sure you are aware, citizens have a first amendment right to form organizations to advance their common goals without fear of investigation or harassment,'' Public Citizen President Joan Claybrook told GNS. We respect our members' rights to freely and privately associate with others who share their beliefs, and we do not reveal their identities. We will not violate their trust simply to satisfy the curiosity of Congress or even the press. Evidently, the sponsors of this amendment feel that they need pay no attention to that proposition. But I look through the NAACP case without finding the slightest hint that the Supreme Court will oblige the sponsors of this amendment. The Supreme Court in that case said: Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. . . . It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ``liberty'' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . It is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious, or cultural matters . . . . In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action. The Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action that might interfere with freedom of assembly, it said, ``A requirement that those in adherence of particular religious faiths or political parties wear identifying armbands is obviously of this nature. To compel the disclosure of membership in an organization engaged in the advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may, in many circumstances, be indispensable to the preservation of freedom of association.'' (Ms. COLLINS assumed the Chair.) Mr. GORTON. Now, Madam President, that is not a statement of the Supreme Court of the United States that is going to admit exceptions and say, oh, well, we really didn't mean it in a political race, we really didn't mean it in connection with an advocacy organization like the Christian Coalition or the labor unions; though, perhaps, we did mean it with respect to television networks. They will not do that. Madam President, with respect to this attempt to limit freedom of speech, the views of the American Civil Liberties Union are particularly eloquent, and I do want to share just a handful of them at this point on this specific amendment. We are writing today . . . to set forth our views on an amendment to that bill dealing with controls on issue advocacy which is being sponsored by Senators Snowe and Jeffords. Although that proposal has been characterized as a compromise measure which would replace certain of the more egregious features of the comparable provisions of McCain- Feingold, the Snowe-Jeffords amendment still embodies the kind of unprecedented restraint on issue advocacy that violates bedrock First Amendment principles. They go on eloquently to discuss exactly this proposition. They say, ``The Court''--referring to the Supreme Court--``fashioned the express advocacy doctrine to safeguard issue advocacy from campaign finance controls, even though such advocacy might influence the outcome of an election. The doctrine provides a bright-line objective test that protects political speech and association by focusing solely on the content of the speaker's words, not on the motive in the speaker's mind or the impact on the speaker's audience, or the proximity to an election.'' Madam President, this proposal is blatantly unconstitutional. It is overwhelmingly discriminatory among organizations engaged in identical activity. It is overwhelmingly discriminatory in treating the forum or the particular medium by which a group advocates its views differently depending solely on the sponsor's views on the effectiveness of that particular medium in influencing the outcome of an election. It discriminates between a commercial corporation ownership of a television or radio medium and a political ownership of the same medium. Madam President, it is exactly these prohibitions that the first amendment of the United States to the Constitution of the United States was designed to prohibit. And, of all forms of speech, the first amendment was aimed primarily at political speech. Here we have an attempt not only to ration political speech but to discriminate against certain forms of political speech and in favor of other forms of political speech, thus accomplishing the goal of violating not only the first amendment but the 14th amendment as well. Several Senators addressed the Chair. The PRESIDING OFFICER. The Senator from Maine. Ms. SNOWE. Madam President, I will yield time to the Senator from Michigan. I just want to make a couple of points in response to the Senator from Washington and to Senator Jeffords. Mr. LEVIN. I wonder if I might ask unanimous consent that immediately after the Senator from Maine is finished with her remarks I be recognized for 20 minutes. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Ms. SNOWE. The time off I yield to the Senator. The PRESIDING OFFICER. Is that acceptable to the Senator from Maine? Ms. SNOWE. With one exception: We would like to respond to the Senator from Washington briefly and Senator Jeffords briefly. We both have made our remarks. I want to yield to the Senator from Michigan 20 minutes. Mr. LEVIN. Madam President, I ask unanimous consent that after the Senators from Maine and Vermont are finished with their responses to the Senator from Washington, I be recognized for 20 minutes and that the time be taken from the time of the Senator from Maine. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Maine. Ms. SNOWE. Thank you, Madam President. Madam President, in response to what the Senator from Washington mentioned in terms of our amendment and the constitutional questions, it is interesting to note that his arguments suggest that in fact he prefers a broader amendment, which I think is interesting. So I would certainly ask the Senator from Washington if he could tell us where in the Constitution it is impermissible to draw these distinctions and to draw these lines? The Constitution doesn't require us to address every problem. It certainly allows us to address some of the problems. And we know where some of the problems develop in campaigns today. The problems develop in the amount of money that is placed in television and radio advertising. That is what we are attempting to address. [[Page S977]] So I think it is interesting that the Senator from Washington is talking about printed materials, newspapers, and direct mail. In fact, we are saying that isn't the source of the problem in these campaigns. The source of the problem is where you have $150 million being spent in television advertising by groups that do not have to disclose their donors That is all we are requiring--disclosure. That is the thrust of our amendment. We are entitled to draw those distinctions. It would not be unconstitutional. We don't need to find something in the Constitution to justify every policy decision that we make. Mr. JEFFORDS. Will the Senator from Maine yield on that point? Ms. SNOWE. I am glad to yield to the Senator from Vermont. Mr. JEFFORDS. I have known my good friend from Washington for 30 years, I guess. He is a master of the facts. Let us take a look at one of the glaring examples of that in his dissertation. He takes a case involving the NAACP during the 1950s, when we had huge racial unrest, and the Supreme Court, in examining the case to expose all of the members of the NAACP in the South, said, when you have a paramount interest here of protecting people from bodily harm, then there is no way that you can require them to expose their membership so that you can go beat them up. This is a paraphrase. In Buckley--someone raised that issue in this case--it said no. We are talking about different rights. We are talking about the rights of the public and the sacred right of casting a vote to know all of the information that can be available to them when they make decisions. That is a vital right, a sacred right. So that right overcomes any concern about releasing the names. You have to know. The voting public can't make decisions if they hear all of this coming out of the air at them and they do not know who said it. So I don't think there is any question. But that is just an example of the erudite on constitutional law running through all of this, because I think this is clearly a situation where it is not in violation of the Constitution. Ms. SNOWE. I thank Senator Jeffords for those comments. He is entirely correct on that issue. Obviously, there were legitimate fears of bodily harm and economic retribution in the 1950s in Alabama. That is what that case was all about. The court recognized that concern, and exceptions can be made, and have been made. In fact, in response to the issue that was raised by the Senator from Washington and the Senator from Kentucky, several legal experts--Burt Neuborne, from New York University School of Law; Mr. Ornstein, of the American Enterprise Institute; Dan Ortiz, University of Virginia School of Law; and Josh Rosenkranz, from the New York University School of Law and the Brennan Center--wrote a response to these concerns. These are legal and constitutional scholars in response to some of the groups suggesting that somehow they would fear the same reprisal. They said: These groups, like any other group, may be entitled to an exemption from electioneering disclosure laws if they can demonstrate a reasonable probability that compelling disclosure will subject its members to threats, harassment, or reprisal; but the need for these kinds of limited exceptions certainly do not make general disclosure rules contained in the Snowe-Jeffords amendment unconstitutional. So, yes, exceptions can be made without making a broad ruling with respect to the constitutionality of any legislation that we might pass here. To further buttress this point in terms of anonymity of donors, the courts have indicated in the past that there is no generalized right to anonymity. The Senator from Vermont mentioned the Buckley case upheld that. Another case that has been identified here is McIntyre v. Ohio Elections. Justice Scalia said: The question relevant to our decision is whether a right to anonymity is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer is clearly no. He went on to say: Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a government periodical that has a ``letters to the editor'' column disavow the policy that most newspapers have against the publication of anonymous letters? . . . Must a municipal ``public access'' cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end. Scalia went on to say that not only is it not a right, disclosure can be helpful in curbing ``mudslinging'' and ``character assassination'' and improving our elections. So the point of it all is that disclosure is in our public interest. It is the public's right to know. That is essentially the thrust of the Snowe-Jeffords amendment--to require disclosure of major donors over $500. It is in all of our interest to have such a requirement. Now I yield to the Senator from Michigan 20 minutes. The PRESIDING OFFICER. The Senator from Michigan. Mr. LEVIN. Madam President, first, let me commend the Senators from Maine and Vermont for their leadership. This amendment will strengthen the chances of this bill passing and, indeed, in many ways strengthen the bill itself. I lost track of the number of times this body has debated a need for campaign finance reform and was presented with reasonable bipartisan efforts and, yet, failed to get the job done. This is an issue which will not go away, and it is an issue which should not go away. Soft money contributions of hundreds of thousands of dollars, indeed, of millions of dollars, have made the contribution limits in Federal election laws meaningless. Both the Republican and Democratic National Committees, national parties, solicited and spent soft money and used it to develop so-called ``issue ads'' which are clearly designed to support or defeat specific candidates. These soft money and issue ad loopholes are used to transfer millions of dollars to outside organizations to conduct allegedly independent election-related activities that are, in fact, benefiting parties and candidates. These soft money and issue ad loopholes are used by tax-exempt organizations to spend millions of dollars from unknown sources on candidate attack ads to influence election outcomes. The reality of our campaign finance system simply cannot be avoided. Soft money has blown the lid off contribution limits in our campaign finance system. Soft money is the 800-pound gorilla sitting right in the middle of this debate. Just look at Roger Tamraz, a contributor to both political parties. He is a bipartisan symbol of what is wrong with this system. He served as a Republican Eagle in the 1980s during the Republican administrations, and a Democratic Managing Trustee in the 1990s during Democratic administrations. Tamraz was unabashed in admitting that his political contributions were made for the purpose of buying access to candidates and officeholders, and he showed us in stark terms the all too common product of the current campaign finance system--using soft money to buy access. Despite condemnation by the committee and the media of Tamraz' activities, when he was asked at the hearing to reflect upon his $300,000 contribution in 1996, Tamraz said, ``I think next time I will give $600,000.'' Now he was taunting us. He was flaunting the fact that he had given $300,000, indicating that it's perfectly legal and you folks like it that way or else you would change it. That's what Tamraz told us. And the truth of the matter is, he was right. It is a sad truth. We can change it if we want to change it. And the next time he will give $600,000 or $1 million to do the same thing, to buy access to candidates and to officeholders. Most of the 1996 excesses involved activities that were legal, and they all centered around that 800-pound gorilla, soft money. Virtually all the foreign contributions that concerned the committee that just held hearings involved soft money. Virtually every offer of access to the White House or the Capitol or the President or to Members of the Senate or the House involved contributions of soft money. Virtually every instance of questionable conduct in the committee's investigation involved the solicitation or use of soft money. The opponents want to pretend this monster doesn't exist, but it is sitting [[Page S978]] right in the middle of this debate. It is not going to be removed until we address it. The bipartisan McCain-Feingold bill would do an awful lot to repair this system. It is not a new bill. It has been before this body for years now and it has received sustained scrutiny from Members on both sides of the aisle. The truth is that the soft money loophole exists as long as we in Congress allow it to exist. The issue advocacy loophole exists because we in Congress allow it to exist. Tax-exempt organizations spend millions televising candidate attack ads days before an election without disclosing who they are or where they got their funds, because we in Congress allow it. It is time to stop pointing fingers at others and take responsibility for our share of the blame for this system. We alone write the laws. Congress alone can shut down the loopholes and reinvigorate the Federal election laws. When the Federal Election Campaign Act was first enacted 20 years ago in response to the Watergate scandal, Congress enacted a comprehensive system of laws including contribution limits and full disclosure of all campaign contributions. The requirements are still on the books, at least in form. Individuals are not supposed to give more than $1,000 to a candidate per election. Corporations and unions are barred from contributing to any candidate without going through a political action committee. Campaign contributions and expenditures have to be disclosed. At the time that these laws were enacted, many people fought against those laws, claiming that they were an unconstitutional restriction on first amendment rights to free speech and free association. And the law's opponents, including the ACLU, took their case to the Supreme Court. The ACLU is sometimes right and the ACLU is sometimes wrong, but they are always eloquent. And the reason they are always eloquent is that the first amendment is eloquent. But so are clean elections an eloquent idea. So are elections which are free and clean and democratic an eloquent idea. So the Supreme Court, in Buckley, had to weigh the ACLU opposition to the campaign contribution limits against the need for elections which were free and clean, both of corruption and the appearance of corruption--both. And the ACLU lost that issue in Buckley. It is frequently forgotten around here that there was an attack on the campaign contribution limits, which are now the law, that attack was led by the ACLU in the Buckley case, and the ACLU lost. The Supreme Court in Buckley upheld contribution limits and disclosure limits. It upheld them despite the eloquence of the ACLU in opposition to those limits in Buckley. Now, this is what the Supreme Court said in Buckley: It is unnecessary to look beyond the Act's primary purpose--to limit the actuality and appearance of corruption resulting from large individual financial contributions--in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. . . . To the extent that large contributions are given to secure political quid pro quo's from current potential office holders, the integrity of our system of representative democracy is undermined. And then the Supreme Court said the following in Buckley: Of almost equal concern is . . . the impact of the appearance of corruption, stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. And the Court went on: Congress could legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative government is not to be eroded to a disastrous extent. So the Supreme Court weighed the free speech arguments of the opponents of campaign contribution limits and weighed that against the argument about the need to have elections which are free and clean, and to avoid the appearance of corruption. And they decided in Buckley that we, Congress, ``could legitimately conclude that the avoidance of the appearance of improper influence is critical if confidence in the system of representative government is not to be eroded to a disastrous extent.'' The same Court upheld tough disclosure requirements, effectively prohibiting anonymous or secret contributions to candidates and parties, despite arguments in Buckley that disclosure collides with first amendment rights of free speech and free association. The Court in Buckley said the following: Compelled disclosure has the potential for substantially infringing on the exercise of first amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the free functioning of our national institutions is involved. The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. So, despite the arguments of opponents of contribution limits and opponents of disclosure who base their arguments on first amendment concerns, the Supreme Court in Buckley said you can limit contributions and you can require disclosure because the governmental interests sought to be vindicated, the free functioning of our national institutions, is involved. And Congress can consider that. They used a balancing test, and that is the test that they would use when we pass McCain-Feingold. Now, relative to the question of the so-called magic words test on issue ads, it is true that two circuits have said that the Supreme Court has ruled that only if certain magic words are present can you then limit those ads to being paid for by regulated contributions. But another circuit, the ninth circuit, in the Furgatch case, has held that this list of magic words referred to so frequently here ``does not exhaust the capacity of the English language to expressly advocate the election or defeat of a candidate.'' And of equal importance to the fact that the circuits are divided on the question of what constitutes issue advocacy and what constitutes candidate advocacy is the fact that the Federal Election Commission just recently, on a bipartisan basis, reaffirmed its commitment to a broader test that goes beyond the magic words test to unmask ads that use the guise of issue ads to advocate the election or defeat of a Federal candidate. The Supreme Court has not yet ruled on whether the FEC regulation is constitutional. But when you have at least one circuit and the FEC saying that you can have a broader test than the ones that have been adopted in the other circuits, there is a division of authority here which means that at least there is a reasonable chance that the Supreme Court will affirm the FEC regulation. I wonder how much time I have remaining? The PRESIDING OFFICER. The Senator has 7 minutes and 27 seconds. Mr. LEVIN. I thank the Chair. Relative to the Snowe-Jeffords amendment, this amendment strikes an acceptable balance between the need to protect the integrity of our electoral process and the need to protect the rights to free speech. It would address issue ad abuse by creating a new category of electioneering ads, defined as ads that refer to a clearly identified candidate up for election and which are broadcast on the regulated media of television or radio close in time before an election. Now, why radio and television? The answer is that the Supreme Court itself has held that, due to the fact that these media, radio and television, are regulated, are licensed, and that the spectrum is limited, you can regulate these media in ways in which you cannot regulate newspapers or the printed word. The Supreme Court has ruled that there is a difference between Government regulating licensed media and unlicensed media, and where Government issues a license--gives out a license of great value for public media--it can indeed regulate the media in a reasonable way, ways it can't possibly even think of regulating newspapers or other print media, which are not regulated media. Indeed, the FCC has regulations on what can be said on radio and television. There are rules against obscenity on radio and television. There are rules about the numbers of commercials and the types of commercials on children's television. There are all kinds of rules for the regulated media of television and radio which do not exist relative to newspapers. So, it is not an uncommon distinction. It is a [[Page S979]] distinction which has been affirmed by the Supreme Court and it is not the effectiveness which is so much the issue, it is the fact that they are regulated, licensed media which, in my judgment at least, represents a significant difference. The Snowe-Jeffords amendment would impose a limited set of contribution limits and disclosure requirements on commercials on these licensed media. No corporate or union funds could be used to pay for them. Donors who provide more than $500 would have to be disclosed. These limits are well within the bounds of the contribution limits and disclosure requirements which have been upheld in Buckley as a constitutional means for protecting the integrity of our electoral process. Madam President, this is not the first time that loopholes have eroded the effectiveness of a set of laws. This happens all the time. The election laws are just the latest example. We saw that true with lobbying disclosure. We saw that true with gift bans. You adopt a set of rules and then people who want to try to evade those rules or push the envelope find loopholes. And then Congress has a responsibility to come along to try to close these loopholes in order to carry out the original intent of the statute. The question is whether or not we are going to do this now with the campaign contribution laws. We passed a law saying there is a $1,000 contribution limit to a campaign and now there is really no limit on how much you can contribute. All you have to do is give your millions to a party and have the party, then, spend the money on ads which are indistinguishable from ads attacking or supporting candidates. These ads are indistinguishable. You can put up two ads next to each other, ask any reasonable person, ``Do you see the difference between this candidate support ad and this issue ad?'' and people will look at those ads and say, ``There is no difference at all.'' We saw that in committee hearings, which the Presiding Officer and I and others participated in, in the Thompson committee, where we put up side by side a so-called candidate ad and an issue ad, with three words difference, one of which had to be paid for with limited funds and the other one which could be paid for with soft money or unregulated funds, and we had expert witnesses, including two former Members of this body, Senator Kassebaum and Vice President Mondale, who could see no distinction in those ads. And there is none. So we now have a farce. We have a sham. The campaign contribution limits, for all intents and purposes, do not exist. There is no $1,000 limit on giving money to a candidate. Just give $1 million to the candidate's party, have that party put a so-called issue ad on in that candidate's election, and it is indistinguishable from the so-called candidate support ad which has to be paid for with regulated funds. The question is whether we are going to do anything about it. The time for shedding crocodile tears about the 1996 campaign funding raising is over. We ought to wipe away these tears from our eyes and see clearly what the American people see. Over 80 percent of them, according to a recent Los Angeles Times poll, believe the campaign fundraising system needs to be reformed; 78 percent of the American people think we ought to limit the role of soft money. A majority of this body wants to limit it. We saw that in the vote yesterday. The question now is whether or not the majority will of this body and the majority will of the American people are going to be carried out, and that is where we are. I hope

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PAYCHECK PROTECTION ACT
(Senate - February 25, 1998)

Text of this article available as: TXT PDF [Pages S972-S995] PAYCHECK PROTECTION ACT The PRESIDING OFFICER. Under the previous order, the clerk will report the pending business. The assistant legislative clerk read as follows: A bill (S. 1663) to protect individuals from having their money involuntarily collected and used for politics by a corporation or labor organization. The Senate resumed consideration of the bill. Pending: McCain amendment No. 1646, in the nature of a substitute. Snowe amendment No. 1647 (to amendment No. 1646), to amend those provisions with respect to communications made during elections, including communications made by independent organizations. The PRESIDING OFFICER. Who seeks time? Who yields time? Mr. BURNS. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Ms. SNOWE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Ms. SNOWE. Thank you, Mr. President. I think that the debate on the Snowe-Jeffords amendment has been very important in terms of underscoring the issues that need to be addressed in reforming our campaign finance system. I would like to review for the membership of this body exactly what the Snowe-Jeffords amendment would do, because we have heard so much about the impact of it and the misconceptions about the impact of the provisions included in this amendment. The fact is, this amendment will affect several categories with respect to advertising by groups across this country during the course of an election designed to influence the outcome of a Federal election. We are not saying they cannot advertise. We are not saying that they cannot engage in political activity. But what we are asking these groups to do is to disclose their major donors if they advertise on either medium, radio or television, 60 days before a general election, 30 days before a primary, in which they identify or mention a candidate for Federal office. They then would be required to disclose their major donors who contribute more than $500. That is more than twice the threshold for disclosure for Federal candidates. So, unlike the suggestion of those who are opposed to the campaign finance proposal and the Snowe-Jeffords amendment that this is too invasive, too broad, it is not. In fact, it would meet the Buckley standards handed down in that Supreme Court decision of not being invasive. In that Court decision, they were considering the impact of requiring donors of more than $10 to be disclosed. Obviously, that is broad and invasive. But this would pass constitutional muster. We are talking about groups that spend money on television or radio broadcasts in which they identify a Federal candidate 60 days before a general election, because, obviously, when those ads are aired at that point in time, they are intending to influence the outcome of an election. The medium is radio and television. The timing is 60 days before a general election, 30 days before a primary. The ad must mention a candidate's name or identify the candidate clearly. Targeting: The ad must be targeted at voters in the candidate's State. And the threshold: The sponsor of the ad must spend more than $10,000 on such ads in the calendar year. It is very narrow, it is very clearly targeted, very specific. And the Supreme Court has said that you can make a distinction of electioneering communications from other forms of speech. That is exactly what the Snowe-Jeffords amendment does. We are replacing the issue advocacy provisions of the McCain-Feingold legislation, section 201, that could raise constitutional questions. The proposals that Senator Jeffords and I are offering today are ones that have been designed by legal and constitutional experts based on court decisions. What the Snowe-Jeffords amendment would not do, because, again, we have heard so much about what the impact would be and, in many cases, have been very erroneous in some of the circulations in Congress by various groups, it would not prohibit groups from communicating. If they want to advertise, they have every right to do that. They can communicate with their grassroots membership. It does not prohibit them from accepting funds, corporate or labor funds. It would not require groups to create a PAC. They can continue what they are doing. But they are required to disclose if they are going to identify a candidate 60 days before an election in a television advertisement or radio broadcast. It would not affect the ability of any organization to urge grassroots contacts with lawmakers in upcoming votes. They can say, ``Call your Senator, call your Member of Congress, using the 1-800 number,'' which is a popular means today. That is certainly allowed. There is nothing to discourage that. If they identify a candidate in a TV or radio broadcast 60 days before an election, then they have to disclose their donors of more than $500, and that is all we are requiring. So it is not invasive; it would not require them to give an advance of the specifics of their advertisement and the text. What we are requiring in all of this is disclosure so that everybody understands who is financing these advertisements when they are designed to influence the outcome of an election. It guards against sneak attacks. Doesn't everybody have the right to know? Absolutely. And that is why the Supreme Court made that distinction in Buckley and in other cases, to draw that bright line, which is what the Snowe-Jeffords amendment does. The Court has never said that there is one route towards what can be distinguished in terms of electioneering communications. The fact of the matter is, it said you can make that distinction, that the U.S. Congress has the prerogative to make that distinction in a very narrow, very targeted way. This amendment would pass constitutional muster. I think that is what causes some anxiety for some people, because they are opposed to this amendment because it will require disclosure of major donors. Since when has disclosure been antithetical to good government, to campaign financing? Because that is the thrust of this amendment. It is disclosure. I think we all can concur that secrecy does not invite the kind of campaign that we want to see in America. We are entitled to know who finances these campaigns when it comes to major donors, when they are running ads that influence the outcome of these campaigns. The fact is, these groups have spent at least, based on what we know because it is a guesstimate because they did not have to disclose, $150 million--$150 million. The best we can guess, because, again, it does not require disclosure, is a third of all the money that was spent was spent on campaign advertising in the last election cycle, and we do not know where one dime comes from. We don't have the identity of donors, and yet they play a key role in influencing Federal elections. We had $150 million spent on issue ads in the 1996 election, and $400 million was spent for all the candidates: for the President, the Senate and the House. And yet, of this $150 million--this is probably a conservative estimate; this is based on the Annenberg Public Policy Center study; probably the most definitive study on issue advertising and issue advocacy. In fact, what they did was they analyzed advertising that was done by 109 organizations--109 TV and radio advertisements from 29 organizations. So we would expect that that estimate is pretty conservative. So what we are saying here is that there should be a means for disclosure. The courts have never said that disclosure is not in the public interest. [[Page S973]] The fact is that the Supreme Court has ruled time and again, and specifically in Buckley, that there is strong governmental interest that justifies disclosure, and that is why we have designed this amendment in the manner that we have. We also restrict campaign spending by unions and corporations with their nonvoluntary contributions in television and radio advertising in which they mention a candidate 60 days before a general election and 30 days before a primary because, again, there has been a century-long decision by the Government as well as the Congress in which that distinction can be made. The courts have made that distinction that Congress has the right to restrict spending by those entities because of those benefits that have been conferred on unions and corporations by the Congress, so that we are entitled to draw that distinction. And we do in this amendment. The courts have ruled that the Congress has the right to enact a statute that defines electioneering as long as it isn't vague or overbroad, that we can develop a more nuanced approach, because I know the Senator from Kentucky has cited cases in which he said that the Court would not support this type of an amendment. To the contrary, the fact of the matter is, this amendment is not vague and it is not overbroad. Not only will it pass muster, I think the Court would have the advantage of seeing what has happened over the past 22 years since it ruled in Buckley that has made a mockery of the campaign laws in ways in which the system works today. If they had had the advantage of that back when they made the decision in Buckley, I think there is no question that they would have indicated the approach that we have here today. There is something wrong in a system where we have $150 million influencing Federal campaigns and we do not require disclosure, and that is what the Snowe-Jeffords amendment is all about. Mr. President, I hope that Members of the Senate will see fit to support this amendment because I think it is in the interest of our campaign system, it is in the interest of good government. We have heard so much about these issues ads and the content of these so-called ``issue ads'' in the last election. Every group has the right to state their position. They have the right to communicate with their lawmakers. They have the right to even participate in the political process in advertisements and voting for or against. But I think they also should be required to identify their major donors when they are identifying a candidate 60 days before an election. Now, there are different kinds of issue ads. The one that I am mentioning here in the content of so-called ``issue ads'' isn't pure issue advocacy because there is a difference between issue advocacy and candidate advocacy. In this case, what we are seeing in what is so-called ``issue ads,'' 87 percent of what is called ``issue ads'' actually referred to a candidate or an official--87 percent. So rather than just talking about an issue and informing the public or running an ad that says, ``Call your Senator or call your Congressman,'' it was one in which it was designed to influence the outcome of an election, because 87 percent of those ads referred to an official or a candidate. In fact, according to the Annenberg study, 41 percent of those ads were ``pure attack''--41 percent--and yet not one dime is required when it comes to disclosure. So $150 million of this money was spent on so- called ``issue ads,'' and some of them were pure issue ads, but many of those ads, in fact 87 percent, referred to an official or to a candidate that, again, had the impact, or certainly had the intent, of affecting the outcome of an election, or otherwise they would not have mentioned the candidate's name. Mr. GORTON. Mr. President, will the Senator from Maine yield for a set of factual questions about her amendment? Ms. SNOWE. I am glad to yield. Mr. GORTON. Mr. President, would the Senator from Maine tell us, am I correct in reading the requirements relating to electioneering communications, that they apply to broadcast stations, television and radio broadcast stations, but not to newspapers or to direct mail? Ms. SNOWE. That is correct. Mr. GORTON. Do they apply to the Internet? Ms. SNOWE. Excuse me? Mr. GORTON. Do they apply to the Internet? Ms. SNOWE. No. Television and radio. Mr. GORTON. So none of these requirements apply to newspapers or direct mail or to---- Ms. SNOWE. If I can answer the Senator's question, that is correct. I know the Senator from Kentucky has objected to any possibility of impacting the first amendment. We would all agree in that respect, that obviously we want to draw that bright and distinctive line. Because no one wants to chill the first amendment right of freedom of speech. So that is where you can invite the possibility of concerns when it comes to printed material and to direct mail and to newspapers. We also know that most of the money in campaigns is particularly in television, rather than radio, because it has the greatest impact. It can have the greatest effect. So as a result, we do narrowly target those two mediums. Mr. GORTON. I take it the Senator from Maine believes it is constitutional to target one medium of communication but not to target a separate, a different, medium of communication? Ms. SNOWE. That is correct. Mr. GORTON. Does the Senator from Maine believe, in connection with the exceptions for the broadcasting stations' own editorial comments, which is granted here, that in fact she is granting that exception simply because she feels it to be desirable, or does she--let me rephrase the question. Does the Senator from Maine believe that she could have constitutionally applied these rules and regulations to the television station's communication of its own ideas? Ms. SNOWE. Well, obviously, we are talking about political advertising that is sponsored by organizations. That is what we are identifying here because that is obviously playing the primary role. Mr. GORTON. I understand what it is being aimed at. My question is, is this exception a part of the amendment of the Senator from Maine because the Senator from Maine believes that it is mandatory that she could not constitutionally apply these electioneering communications to TV stations? Or is she doing it because she does not think it is a good idea to apply it to them? Ms. SNOWE. I think we are taking the approach in this amendment to draw it as narrowly as possible so that we do not affect the first amendment rights. So, we are taking the most prudent, most cautious approach in designing this amendment. Mr. GORTON. So the Senator feels that---- Ms. SNOWE. If I might reclaim my time to answer the Senator's question. My concern--and I think shared by others, such as Senator Jeffords, who is a lead sponsor of this amendment as well--we are concerned about the political advertising that is in these campaigns, hundreds of millions of dollars, where there is no disclosure, that influences the campaigns. So we are creating a separate category of advertising called ``electioneering communication,'' in response to the question. Mr. GORTON. I think I do understand the Senator's feelings on that. I was simply asking whether she is exempting the television stations because she thinks she is required to by the first amendment. Ms. SNOWE. Yes. Mr. GORTON. Or she thinks it is a good idea. Ms. SNOWE. I think it is the most cautionary approach. Mr. GORTON. Thank you. Ms. SNOWE. The courts have allowed and made those distinctions in the past where we can draw a line in terms of methods of communicating and have allowed different rules for public airwaves. We are focusing on the most egregious abuses that have been identified in these campaigns in the past. If anything, I think the 1996 cycle highlighted the extent of the problem by the amounts of money that were placed in issue advertising that ordinarily would be, I think, a significant component in the campaign. But what has developed in the final analysis, as we all know, is sort of circumventing some of the restrictions that are currently in campaigns by what is masked [[Page S974]] as issue ads but really are candidate advocacy ads. That is what we are highlighting in this amendment by requiring disclosures by those groups that support these advertisements on behalf of candidates or in opposition to candidates shortly before the election. So we create a very narrow timeframe so that we do not engage in any possibilities of interfering with first amendment rights. We limit the medium to television and radio, again, so we do not invite any infringements on freedom of speech. Candidates-specific. They have to identify the candidate. Again, if that advertisement is targeted to a candidate's State, or in terms of House of Representatives elections, towards that candidate's district, again it is a threshold so that we don't affect small groups. If the sponsor of the ad spends less than $10,000 in a calendar year, they would not be required to disclose. Again, the Senator from Kentucky has mentioned Court cases like the NAACP v. Alabama in 1958, saying that the courts say you should not be required to supply your donor list because such disclosure could cause the fear of reprisal by its membership. Certainly there are exceptions to every rule, but you can have those exceptions without having the Court rule on its constitutionality. So, yes, there are exceptions, and the Court would require groups to obviously demonstrate that they had reasonable feeling that disclosing their donor base would be a reprisal. But there are exceptions, and there can be exceptions, but the law can be allowed to stand without suggesting that it will be ruled unconstitutional because there is an exception to that rule. We have drawn this amendment to be as narrow as possible in order to be as protective of the first amendment rights, constitutionally. If even possible we could have gone further but we chose to be narrow so that we don't create any problems with this legislation, because one of the concerns originally with the McCain-Feingold legislation is we would have the ban on soft money, but the issue advocacy provisions very possibly would have been struck down. So we designed this amendment in order to address those concerns. Mr. President, I yield such time as he may consume to Senator Jeffords, the other sponsor of this amendment. The PRESIDING OFFICER. The Senator from Vermont. Mr. JEFFORDS. Mr. President, I rise to urge my colleagues to support this fair and reasonable amendment. I think it is important for us to take a close look at what this does to make sure that we understand that it is really hard for anyone to be against it as near as I can tell. It is not the end-all of the situation that we face or the problems that need to be handled, by any means, but it does take into consideration doing something where nothing is done now to alert the public to who is behind the things that are being thrown on television. I can just imagine a candidate, and this happens now, I am sure, when they think they are running their campaign, they had it all organized and they are watching carefully the amount of money their opponent has, and then they wake up one morning thinking they are in fine shape and every channel they turn on on the television has this ad attacking them at the last moment, the last couple of weeks before the election, and they don't know who it is coming from or what to do about it; they were not aware of it. All we say is, OK, that can happen; but at least 45, 50, 60 days before it happens, you know it will happen. That is all we are saying. So that you don't get the surprise attacks by somebody who is running so-called issue ads that did not place them under the FEC regulations with respect to supporting that candidate. That is the real world we are faced with. It happened last time. It happened to the tune of $135 million. The least we could do, the very least, is to say at least you ought to know it is coming, first; and No. 2, where it is coming from so you have an idea when you get this last-minute flurry of advertising you are ready to do the best you can to protect yourself against it. Again, I want to commend the Senator for the continued leadership on this very important issue. Senator Snowe mentioned yesterday and today it is the duty of leaders to lead, and that means making some difficult choices in doing the right thing. On the issue, Senator Snowe has been a true leader. Crafting a compromise is often difficult. I thank the Senator from Maine for leading this body to a logical resolution, one which is sensible and one which is so commonsensical it is hard to understand why anybody would be against it, As was discussed yesterday, the basic tenets of the Snowe amendment are boosting disclosure requirements and tightening expenditures of certain funds in the weeks preceding a primary and general election. The amendment strengthens the McCain-Feingold bill in these areas in a reasonable manner. I could not support the McCain-Feingold bill until something was put into that area which is going to be the most used area. It is the first time it was used in the last election and we saw $135 million or more come in to the election. You have to remember that power is what those who are spending money seek. The money is going to follow that group which is most effective in gaining that power. Our job is to know where it comes from. The last Presidential election shows how terrible our means are to trace the money now. This is an opportunity to trace effectively, to know where it is coming from, you have a chance to understand where it came from. The last few election cycles have shown the spending has grown astronomically in two areas that cause me great concern: First, issue ads that have turned into blatant electioneering; second, the unfettered spending by corporations and unions to influence the outcomes of elections. As an example of how this spending has grown, a House Member from Michigan in 1996 faced nearly $2 million in advertisements alone before the fall campaigning season had begun. Campaigning really starts early and then there is a big boost at the end. Early on you want to knock the candidate out before he has a chance to get on the scene, and at the end it is because you know a large percentage of the people who vote really don't pay much attention until the last couple of weeks. The Snowe-Jeffords amendment addresses these areas in a reasonable, equitable, and, last but not least, constitutional way. Mr. President, citizens across this Nation have grown weary of the tenor of campaigns in recent years. This disappointment is reflected in low voter participation and the diminished role of individuals in electing their representatives. Increasing the information available to the electorate will help return the power of this democratic aspect to the people who should have it--the voters. Expanded disclosure will bring daylight to this process. Increased disclosure will rid corruption; more disclosure will protect the public and the candidates. How can we deny our electorate the ability to know the sponsors of electioneering communications? Give the people the information they need to better evaluate those Federal candidates that they will be voting on. Each of us should ask or be fully informed before we vote on a bill or amendment. How can we as Members of Congress stand here and say that the public should not have all the information they need before stepping into the voting booth? Additionally, the disclosure required in the Snowe-Jeffords amendment will help deter actual corruption and avoid the appearance of impropriety that many feel pervades our campaign finance system. Armed with this information, voters are guaranteed access to the truth. This change will restore the public's confidence in the election process and their elected representatives. As noted yesterday, the Annenberg Public Policy Center report figured there were somewhere between $135 to $150 million spent during the 1996 elections on so-called issue ads. This is a conservative estimate prepared very specifically not to lead to any exaggeration. The Annenberg report found that nearly 87 percent of these ads mentioned a candidate of office by name, and over 41 percent were seen by the public as pure attack ads. You ought to know who paid for them so we can better judge whether or not to believe them. This is the highest percentage recorded among a group that also [[Page S975]] included Presidential ads, debates, free time segments, court candidates, and new programs. Clearly, these ads were overtly aimed at electing or defeating targeted candidates, but under current law these ads were not subject to disclosure requirements of any nature. The second part of our amendment considers an area Congress has long had a solid record on: imposing more strenuous spending restrictions on corporations and labor unions. Remember, under the law, these are not given the same freedom of speech rights that individuals are, and rightfully so. Corporations have been banned from electioneering since 1907; unions, since 1947. As the Supreme Court pointed out in United States v. UAW, Congress banned corporate and union contributions in order to ``avoid the deleterious influences on Federal elections resulting from the use of money by those who exercise control over large aggregations of capital.'' Our amendment would ban corporations and unions from using General Treasury funds to fund electioneering communications in the last 60 days of the general election and the last 30 days before a primary. They still have the right to foster and to approve PACs, organizations for their employees or members of the union, to contribute to, in order that they individually, working together in the PACs, can influence the election process. The Snowe amendment takes a reasoned, incremental and constitutional step to address the concerns many of my colleagues have voiced on campaign finance reform proposals. Mr. President, some of our colleagues have expressed constitutional concerns with our amendment. Let me assure Members that we have taken great pains to craft a clear and narrow amendment on this issue in order to pass two critical first amendment doctrines that were at the heart of the Supreme Court's landmark Buckley decision, vagueness and overbreadth. Vagueness could chill free speech if someone who would otherwise speak chose not to because the rules aren't clear and they fear running afoul of the law. We agree that free speech should not be chilled and that is why our rules are very clear. Any sponsor will know with certainty if their ad is an electioneering ad. There would be no question the way we have delineated within the bill. Overbreadth could unintentionally sweep in a substantial amount of constitutionally protected speech. Our amendment is so narrow that it easily satisfies the Supreme Court's overbreadth concerns. We have asked the experts to check and give us advice on this. It is not just merely our opinion. We strictly limit our requirements to ads run near an election that identify a candidate--ads plainly intended to convince voters to vote for or against a particular candidate. As the Court declared in Buckley, the governmental interests that justified disclosure of election-related spending are considerably broader and more powerful than those justifying prohibitions or restrictions on election-related spending. Disclosure rules, the Court said, enhance the information available to the voting public. Who can be against that? Disclosure rules, according to the Court, are ``the least restrictive means of curbing evils of campaign ignorance and corruption.'' And our disclosure rules are immensely reasonable. As James Madison said: A popular government without popular information is but a prologue to a tragedy or a farce or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives. Mr. President, our amendment will arm the voters in order to sustain our popular Government. I fear that without our amendment, and campaign finance reform generally, the disillusionment of the voting public will grow, along with the scandals, and the participation of our voting public will continue to decline, to the extent that we will be embarrassed. It is close to that point now when, many times, only half of the people even bother to go to the polls. I ask that each Senator carefully consider the beneficial effects that our amendment will have and support us in moving this debate forward. Mr. GORTON. Mr. President, I yield such time off of Senator McConnell's time as I may use. The PRESIDING OFFICER. The Senator from Washington is recognized. Mr. GORTON. Mr. President, it is with intense regret that it's my view that this amendment, representing a good-faith attempt by two of my friends and my Republican colleagues, it seems to me, is subject to even more widespread and deeper constitutional objections than the original McCain-Feingold bill--a bill that seems, to this Senator at least, to be unconstitutional on its face. The fundamental objection to all of these attempts to limit the freedom of speech, of course, is that they fly in the face of the unrestricted language of the first amendment, language that does not-- though the Senator from Maine might wish to permit it to do so--permit exceptions to every general rule. This amendment, however, seems to me to violate the 14th amendment in many respects, with respect to both equal protection and due process. This amendment imposes broad and what some may consider to be onerous disclosure requirements with respect to what it calls ``electioneering''--on electioneering in certain ways through the mass media, but not at all in other ways, and even in the ways in which it covers electioneering by certain groups and organizations and not by other groups and organizations. The Senator from Maine said, during the course of her comments, that she does not think that she could constitutionally apply these requirements to electioneering by mail. She has not applied them to electioneering through newspapers, nor has she applied them to electronic electioneering through the Internet, but only to electronic electioneering by television or by radio. She does that, she says in all candor, because those seem to be the most effective methods of electioneering, the methods of choice by those who have engaged in what the law now calls ``express advocacy'' and what she calls ``electioneering.'' Well, Mr. President, it seems to me hardly to be subject to argument that you can say that the Government can regulate your speech in one medium, but cannot or will not regulate it through another medium. That is a fundamental denial of the most fundamental of all of our constitutional rights. It does, however, illustrate the flaw in this entire debate, and that is that effective electioneering should be banned, or severely controlled, and that certain kinds of speech are so unfair or so late in a political campaign that we ought not to allow them; and if we have to allow them, we ought to impose on them such heavy restrictions as to discourage them, even though we are going to permit exactly the same kind of communication, as long as it is done in a relatively ineffective fashion. To claim, Mr. President, that the Constitution of the United States, in the first and 14th amendments, permits those distinctions is to fly in the face of all rationale, all logic, and all constitutional law. But the amendment doesn't stop there. Even with respect to radio and television electioneering, it makes an exception. What is that exception? It is any news story, commentary, or editorial distributed through the facilities of a broadcasting station. So now we will have a law that clearly states that no matter how expensive, no matter how unfair, no matter how late in a campaign, a television station or a television network can do whatever it wishes without any of the restrictions of this statute; but no one else can without being subject to the restrictions of this amendment. Is there something that is so much superior in an editorial appearing on a television station over similar opinions expressed by a labor union, or by the Christian Coalition, or by any other political organization, that one should be discouraged and the other should be encouraged? Mr. President, that is a terrible policy in any political debate, and it is clearly a policy that is so discriminatory as to run afoul of the equal protection clause of the 14th amendment. And, Mr. President, this discrimination doesn't even stop there in distinguishing between a communication paid for by a labor union or the Christian Coalition with one paid for by the facilities of the television station and network. Oh, no. The prohibitions do apply to a [[Page S976]] television, or a radio station, or a network owned or controlled by a political party, a political committee, or a candidate. So, Mr. President, we have the spectacle of all of these requirements being applied to a radio station or a television station owned by a candidate, but not applied to the National Broadcasting Company and, say, Tom Brokaw, the company owned by General Electric. So a corporation can purchase a television station or a network and do whatever it wants in politics. But a candidate can't and a political party can't. Mr. President, how can that possibly, under any circumstances, be valid under the equal protection clause? How does that grant due process to candidates, political parties, or to any other organization, except for a corporate owner of a television station, a radio station, or a network? The Senator from Maine also deals with the NAACP case and says, well, yes, the Supreme Court has ruled rather expressly that you cannot require a group expressing its point of view on a political subject to list its membership. She says every rule has its exceptions and there are certain kinds of organizations where that should be the case, but there are other kinds where it should not. Last June, in testimony I think, on a bill like this, top officials of two organizations, Public Citizen and the Sierra Club Foundation, refused to expose the identities of their members. ``As I am sure you are aware, citizens have a first amendment right to form organizations to advance their common goals without fear of investigation or harassment,'' Public Citizen President Joan Claybrook told GNS. We respect our members' rights to freely and privately associate with others who share their beliefs, and we do not reveal their identities. We will not violate their trust simply to satisfy the curiosity of Congress or even the press. Evidently, the sponsors of this amendment feel that they need pay no attention to that proposition. But I look through the NAACP case without finding the slightest hint that the Supreme Court will oblige the sponsors of this amendment. The Supreme Court in that case said: Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. . . . It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ``liberty'' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . It is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious, or cultural matters . . . . In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action. The Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action that might interfere with freedom of assembly, it said, ``A requirement that those in adherence of particular religious faiths or political parties wear identifying armbands is obviously of this nature. To compel the disclosure of membership in an organization engaged in the advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may, in many circumstances, be indispensable to the preservation of freedom of association.'' (Ms. COLLINS assumed the Chair.) Mr. GORTON. Now, Madam President, that is not a statement of the Supreme Court of the United States that is going to admit exceptions and say, oh, well, we really didn't mean it in a political race, we really didn't mean it in connection with an advocacy organization like the Christian Coalition or the labor unions; though, perhaps, we did mean it with respect to television networks. They will not do that. Madam President, with respect to this attempt to limit freedom of speech, the views of the American Civil Liberties Union are particularly eloquent, and I do want to share just a handful of them at this point on this specific amendment. We are writing today . . . to set forth our views on an amendment to that bill dealing with controls on issue advocacy which is being sponsored by Senators Snowe and Jeffords. Although that proposal has been characterized as a compromise measure which would replace certain of the more egregious features of the comparable provisions of McCain- Feingold, the Snowe-Jeffords amendment still embodies the kind of unprecedented restraint on issue advocacy that violates bedrock First Amendment principles. They go on eloquently to discuss exactly this proposition. They say, ``The Court''--referring to the Supreme Court--``fashioned the express advocacy doctrine to safeguard issue advocacy from campaign finance controls, even though such advocacy might influence the outcome of an election. The doctrine provides a bright-line objective test that protects political speech and association by focusing solely on the content of the speaker's words, not on the motive in the speaker's mind or the impact on the speaker's audience, or the proximity to an election.'' Madam President, this proposal is blatantly unconstitutional. It is overwhelmingly discriminatory among organizations engaged in identical activity. It is overwhelmingly discriminatory in treating the forum or the particular medium by which a group advocates its views differently depending solely on the sponsor's views on the effectiveness of that particular medium in influencing the outcome of an election. It discriminates between a commercial corporation ownership of a television or radio medium and a political ownership of the same medium. Madam President, it is exactly these prohibitions that the first amendment of the United States to the Constitution of the United States was designed to prohibit. And, of all forms of speech, the first amendment was aimed primarily at political speech. Here we have an attempt not only to ration political speech but to discriminate against certain forms of political speech and in favor of other forms of political speech, thus accomplishing the goal of violating not only the first amendment but the 14th amendment as well. Several Senators addressed the Chair. The PRESIDING OFFICER. The Senator from Maine. Ms. SNOWE. Madam President, I will yield time to the Senator from Michigan. I just want to make a couple of points in response to the Senator from Washington and to Senator Jeffords. Mr. LEVIN. I wonder if I might ask unanimous consent that immediately after the Senator from Maine is finished with her remarks I be recognized for 20 minutes. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Ms. SNOWE. The time off I yield to the Senator. The PRESIDING OFFICER. Is that acceptable to the Senator from Maine? Ms. SNOWE. With one exception: We would like to respond to the Senator from Washington briefly and Senator Jeffords briefly. We both have made our remarks. I want to yield to the Senator from Michigan 20 minutes. Mr. LEVIN. Madam President, I ask unanimous consent that after the Senators from Maine and Vermont are finished with their responses to the Senator from Washington, I be recognized for 20 minutes and that the time be taken from the time of the Senator from Maine. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Maine. Ms. SNOWE. Thank you, Madam President. Madam President, in response to what the Senator from Washington mentioned in terms of our amendment and the constitutional questions, it is interesting to note that his arguments suggest that in fact he prefers a broader amendment, which I think is interesting. So I would certainly ask the Senator from Washington if he could tell us where in the Constitution it is impermissible to draw these distinctions and to draw these lines? The Constitution doesn't require us to address every problem. It certainly allows us to address some of the problems. And we know where some of the problems develop in campaigns today. The problems develop in the amount of money that is placed in television and radio advertising. That is what we are attempting to address. [[Page S977]] So I think it is interesting that the Senator from Washington is talking about printed materials, newspapers, and direct mail. In fact, we are saying that isn't the source of the problem in these campaigns. The source of the problem is where you have $150 million being spent in television advertising by groups that do not have to disclose their donors That is all we are requiring--disclosure. That is the thrust of our amendment. We are entitled to draw those distinctions. It would not be unconstitutional. We don't need to find something in the Constitution to justify every policy decision that we make. Mr. JEFFORDS. Will the Senator from Maine yield on that point? Ms. SNOWE. I am glad to yield to the Senator from Vermont. Mr. JEFFORDS. I have known my good friend from Washington for 30 years, I guess. He is a master of the facts. Let us take a look at one of the glaring examples of that in his dissertation. He takes a case involving the NAACP during the 1950s, when we had huge racial unrest, and the Supreme Court, in examining the case to expose all of the members of the NAACP in the South, said, when you have a paramount interest here of protecting people from bodily harm, then there is no way that you can require them to expose their membership so that you can go beat them up. This is a paraphrase. In Buckley--someone raised that issue in this case--it said no. We are talking about different rights. We are talking about the rights of the public and the sacred right of casting a vote to know all of the information that can be available to them when they make decisions. That is a vital right, a sacred right. So that right overcomes any concern about releasing the names. You have to know. The voting public can't make decisions if they hear all of this coming out of the air at them and they do not know who said it. So I don't think there is any question. But that is just an example of the erudite on constitutional law running through all of this, because I think this is clearly a situation where it is not in violation of the Constitution. Ms. SNOWE. I thank Senator Jeffords for those comments. He is entirely correct on that issue. Obviously, there were legitimate fears of bodily harm and economic retribution in the 1950s in Alabama. That is what that case was all about. The court recognized that concern, and exceptions can be made, and have been made. In fact, in response to the issue that was raised by the Senator from Washington and the Senator from Kentucky, several legal experts--Burt Neuborne, from New York University School of Law; Mr. Ornstein, of the American Enterprise Institute; Dan Ortiz, University of Virginia School of Law; and Josh Rosenkranz, from the New York University School of Law and the Brennan Center--wrote a response to these concerns. These are legal and constitutional scholars in response to some of the groups suggesting that somehow they would fear the same reprisal. They said: These groups, like any other group, may be entitled to an exemption from electioneering disclosure laws if they can demonstrate a reasonable probability that compelling disclosure will subject its members to threats, harassment, or reprisal; but the need for these kinds of limited exceptions certainly do not make general disclosure rules contained in the Snowe-Jeffords amendment unconstitutional. So, yes, exceptions can be made without making a broad ruling with respect to the constitutionality of any legislation that we might pass here. To further buttress this point in terms of anonymity of donors, the courts have indicated in the past that there is no generalized right to anonymity. The Senator from Vermont mentioned the Buckley case upheld that. Another case that has been identified here is McIntyre v. Ohio Elections. Justice Scalia said: The question relevant to our decision is whether a right to anonymity is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer is clearly no. He went on to say: Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a government periodical that has a ``letters to the editor'' column disavow the policy that most newspapers have against the publication of anonymous letters? . . . Must a municipal ``public access'' cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end. Scalia went on to say that not only is it not a right, disclosure can be helpful in curbing ``mudslinging'' and ``character assassination'' and improving our elections. So the point of it all is that disclosure is in our public interest. It is the public's right to know. That is essentially the thrust of the Snowe-Jeffords amendment--to require disclosure of major donors over $500. It is in all of our interest to have such a requirement. Now I yield to the Senator from Michigan 20 minutes. The PRESIDING OFFICER. The Senator from Michigan. Mr. LEVIN. Madam President, first, let me commend the Senators from Maine and Vermont for their leadership. This amendment will strengthen the chances of this bill passing and, indeed, in many ways strengthen the bill itself. I lost track of the number of times this body has debated a need for campaign finance reform and was presented with reasonable bipartisan efforts and, yet, failed to get the job done. This is an issue which will not go away, and it is an issue which should not go away. Soft money contributions of hundreds of thousands of dollars, indeed, of millions of dollars, have made the contribution limits in Federal election laws meaningless. Both the Republican and Democratic National Committees, national parties, solicited and spent soft money and used it to develop so-called ``issue ads'' which are clearly designed to support or defeat specific candidates. These soft money and issue ad loopholes are used to transfer millions of dollars to outside organizations to conduct allegedly independent election-related activities that are, in fact, benefiting parties and candidates. These soft money and issue ad loopholes are used by tax-exempt organizations to spend millions of dollars from unknown sources on candidate attack ads to influence election outcomes. The reality of our campaign finance system simply cannot be avoided. Soft money has blown the lid off contribution limits in our campaign finance system. Soft money is the 800-pound gorilla sitting right in the middle of this debate. Just look at Roger Tamraz, a contributor to both political parties. He is a bipartisan symbol of what is wrong with this system. He served as a Republican Eagle in the 1980s during the Republican administrations, and a Democratic Managing Trustee in the 1990s during Democratic administrations. Tamraz was unabashed in admitting that his political contributions were made for the purpose of buying access to candidates and officeholders, and he showed us in stark terms the all too common product of the current campaign finance system--using soft money to buy access. Despite condemnation by the committee and the media of Tamraz' activities, when he was asked at the hearing to reflect upon his $300,000 contribution in 1996, Tamraz said, ``I think next time I will give $600,000.'' Now he was taunting us. He was flaunting the fact that he had given $300,000, indicating that it's perfectly legal and you folks like it that way or else you would change it. That's what Tamraz told us. And the truth of the matter is, he was right. It is a sad truth. We can change it if we want to change it. And the next time he will give $600,000 or $1 million to do the same thing, to buy access to candidates and to officeholders. Most of the 1996 excesses involved activities that were legal, and they all centered around that 800-pound gorilla, soft money. Virtually all the foreign contributions that concerned the committee that just held hearings involved soft money. Virtually every offer of access to the White House or the Capitol or the President or to Members of the Senate or the House involved contributions of soft money. Virtually every instance of questionable conduct in the committee's investigation involved the solicitation or use of soft money. The opponents want to pretend this monster doesn't exist, but it is sitting [[Page S978]] right in the middle of this debate. It is not going to be removed until we address it. The bipartisan McCain-Feingold bill would do an awful lot to repair this system. It is not a new bill. It has been before this body for years now and it has received sustained scrutiny from Members on both sides of the aisle. The truth is that the soft money loophole exists as long as we in Congress allow it to exist. The issue advocacy loophole exists because we in Congress allow it to exist. Tax-exempt organizations spend millions televising candidate attack ads days before an election without disclosing who they are or where they got their funds, because we in Congress allow it. It is time to stop pointing fingers at others and take responsibility for our share of the blame for this system. We alone write the laws. Congress alone can shut down the loopholes and reinvigorate the Federal election laws. When the Federal Election Campaign Act was first enacted 20 years ago in response to the Watergate scandal, Congress enacted a comprehensive system of laws including contribution limits and full disclosure of all campaign contributions. The requirements are still on the books, at least in form. Individuals are not supposed to give more than $1,000 to a candidate per election. Corporations and unions are barred from contributing to any candidate without going through a political action committee. Campaign contributions and expenditures have to be disclosed. At the time that these laws were enacted, many people fought against those laws, claiming that they were an unconstitutional restriction on first amendment rights to free speech and free association. And the law's opponents, including the ACLU, took their case to the Supreme Court. The ACLU is sometimes right and the ACLU is sometimes wrong, but they are always eloquent. And the reason they are always eloquent is that the first amendment is eloquent. But so are clean elections an eloquent idea. So are elections which are free and clean and democratic an eloquent idea. So the Supreme Court, in Buckley, had to weigh the ACLU opposition to the campaign contribution limits against the need for elections which were free and clean, both of corruption and the appearance of corruption--both. And the ACLU lost that issue in Buckley. It is frequently forgotten around here that there was an attack on the campaign contribution limits, which are now the law, that attack was led by the ACLU in the Buckley case, and the ACLU lost. The Supreme Court in Buckley upheld contribution limits and disclosure limits. It upheld them despite the eloquence of the ACLU in opposition to those limits in Buckley. Now, this is what the Supreme Court said in Buckley: It is unnecessary to look beyond the Act's primary purpose--to limit the actuality and appearance of corruption resulting from large individual financial contributions--in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. . . . To the extent that large contributions are given to secure political quid pro quo's from current potential office holders, the integrity of our system of representative democracy is undermined. And then the Supreme Court said the following in Buckley: Of almost equal concern is . . . the impact of the appearance of corruption, stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. And the Court went on: Congress could legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative government is not to be eroded to a disastrous extent. So the Supreme Court weighed the free speech arguments of the opponents of campaign contribution limits and weighed that against the argument about the need to have elections which are free and clean, and to avoid the appearance of corruption. And they decided in Buckley that we, Congress, ``could legitimately conclude that the avoidance of the appearance of improper influence is critical if confidence in the system of representative government is not to be eroded to a disastrous extent.'' The same Court upheld tough disclosure requirements, effectively prohibiting anonymous or secret contributions to candidates and parties, despite arguments in Buckley that disclosure collides with first amendment rights of free speech and free association. The Court in Buckley said the following: Compelled disclosure has the potential for substantially infringing on the exercise of first amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the free functioning of our national institutions is involved. The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. So, despite the arguments of opponents of contribution limits and opponents of disclosure who base their arguments on first amendment concerns, the Supreme Court in Buckley said you can limit contributions and you can require disclosure because the governmental interests sought to be vindicated, the free functioning of our national institutions, is involved. And Congress can consider that. They used a balancing test, and that is the test that they would use when we pass McCain-Feingold. Now, relative to the question of the so-called magic words test on issue ads, it is true that two circuits have said that the Supreme Court has ruled that only if certain magic words are present can you then limit those ads to being paid for by regulated contributions. But another circuit, the ninth circuit, in the Furgatch case, has held that this list of magic words referred to so frequently here ``does not exhaust the capacity of the English language to expressly advocate the election or defeat of a candidate.'' And of equal importance to the fact that the circuits are divided on the question of what constitutes issue advocacy and what constitutes candidate advocacy is the fact that the Federal Election Commission just recently, on a bipartisan basis, reaffirmed its commitment to a broader test that goes beyond the magic words test to unmask ads that use the guise of issue ads to advocate the election or defeat of a Federal candidate. The Supreme Court has not yet ruled on whether the FEC regulation is constitutional. But when you have at least one circuit and the FEC saying that you can have a broader test than the ones that have been adopted in the other circuits, there is a division of authority here which means that at least there is a reasonable chance that the Supreme Court will affirm the FEC regulation. I wonder how much time I have remaining? The PRESIDING OFFICER. The Senator has 7 minutes and 27 seconds. Mr. LEVIN. I thank the Chair. Relative to the Snowe-Jeffords amendment, this amendment strikes an acceptable balance between the need to protect the integrity of our electoral process and the need to protect the rights to free speech. It would address issue ad abuse by creating a new category of electioneering ads, defined as ads that refer to a clearly identified candidate up for election and which are broadcast on the regulated media of television or radio close in time before an election. Now, why radio and television? The answer is that the Supreme Court itself has held that, due to the fact that these media, radio and television, are regulated, are licensed, and that the spectrum is limited, you can regulate these media in ways in which you cannot regulate newspapers or the printed word. The Supreme Court has ruled that there is a difference between Government regulating licensed media and unlicensed media, and where Government issues a license--gives out a license of great value for public media--it can indeed regulate the media in a reasonable way, ways it can't possibly even think of regulating newspapers or other print media, which are not regulated media. Indeed, the FCC has regulations on what can be said on radio and television. There are rules against obscenity on radio and television. There are rules about the numbers of commercials and the types of commercials on children's television. There are all kinds of rules for the regulated media of television and radio which do not exist relative to newspapers. So, it is not an uncommon distinction. It is a [[Page S979]] distinction which has been affirmed by the Supreme Court and it is not the effectiveness which is so much the issue, it is the fact that they are regulated, licensed media which, in my judgment at least, represents a significant difference. The Snowe-Jeffords amendment would impose a limited set of contribution limits and disclosure requirements on commercials on these licensed media. No corporate or union funds could be used to pay for them. Donors who provide more than $500 would have to be disclosed. These limits are well within the bounds of the contribution limits and disclosure requirements which have been upheld in Buckley as a constitutional means for protecting the integrity of our electoral process. Madam President, this is not the first time that loopholes have eroded the effectiveness of a set of laws. This happens all the time. The election laws are just the latest example. We saw that true with lobbying disclosure. We saw that true with gift bans. You adopt a set of rules and then people who want to try to evade those rules or push the envelope find loopholes. And then Congress has a responsibility to come along to try to close these loopholes in order to carry out the original intent of the statute. The question is whether or not we are going to do this now with the campaign contribution laws. We passed a law saying there is a $1,000 contribution limit to a campaign and now there is really no limit on how much you can contribute. All you have to do is give your millions to a party and have the party, then, spend the money on ads which are indistinguishable from ads attacking or supporting candidates. These ads are indistinguishable. You can put up two ads next to each other, ask any reasonable person, ``Do you see the difference between this candidate support ad and this issue ad?'' and people will look at those ads and say, ``There is no difference at all.'' We saw that in committee hearings, which the Presiding Officer and I and others participated in, in the Thompson committee, where we put up side by side a so-called candidate ad and an issue ad, with three words difference, one of which had to be paid for with limited funds and the other one which could be paid for with soft money or unregulated funds, and we had expert witnesses, including two former Members of this body, Senator Kassebaum and Vice President Mondale, who could see no distinction in those ads. And there is none. So we now have a farce. We have a sham. The campaign contribution limits, for all intents and purposes, do not exist. There is no $1,000 limit on giving money to a candidate. Just give $1 million to the candidate's party, have that party put a so-called issue ad on in that candidate's election, and it is indistinguishable from the so-called candidate support ad which has to be paid for with regulated funds. The question is whether we are going to do anything about it. The time for shedding crocodile tears about the 1996 campaign funding raising is over. We ought to wipe away these tears from our eyes and see clearly what the American people see. Over 80 percent of them, according to a recent Los Angeles Times poll, believe the campaign fundraising system needs to be reformed; 78 percent of the American people think we ought to limit the role of soft money. A majority of this body wants to limit it. We saw that in the vote yesterday. The question now is whether or not the majority will of this body and the majority will of the American people are going to be carried out, and that is where we are