Robert Bennett

Mr. BENNETT

Mr. BENNETT. If there is no further business to come before the Senate, I now ask unanimous consent the Senate stand in adjournment under the previous order.

Mr. BENNETT

Mr. BENNETT. In conjunction with the previous consent agreements, tomorrow at 9:40 the Senate will proceed to executive session to vote on the nomination of James S. Gwin to be U.S. district judge for the Northern District of Ohio. Following that vote, the Senate will resume legislative session and debate on the motion to proceed to S. 1269, the fast-track legislation, with Senator Roth in control of 3 hours and Senator Dorgan in control of 4 hours. As under the previous consent, the Senate will vote on or in relation to the motion to proceed to S. 1269 at no later than 5 p.m. tomorrow. Following that vote the Senate could turn to any of the following items, if available: The D.C. appropriations bill, the FDA reform conference report, the Intelligence authorization conference report, and any additional legislative or executive items that can be cleared for action. Therefore, Members can anticipate rollcall votes throughout Wednesday's session of the Senate. As a reminder to all Members, the first rollcall vote tomorrow will occur at 9:40 a.m.

Mr. BENNETT

Mr. BENNETT. Mr. President, I ask unanimous consent that the bill be considered read a third time and passed, the motion to reconsider be laid upon the table, and that any statements relating to the bill appear at the appropriate place in the Record.

Mr. BENNETT

Mr. BENNETT. Now, Madam President, I have spent 5 years in the Senate. I have spent 40 years in the business community. I am a businessman who has run businesses. I would like to speak, in the remaining time, out of that experience rather than the political experience. What we are dealing with here from a business standpoint is a factory that is at overcapacity. The question is, How do we as competent managers deal with that excess capacity? Do we have competition? Of course, we do. If we have items that can be taken out of the factory and built more cheaply someplace else, we want them out of the factory and built more cheaply someplace else. But if we have the capital investment in the factory itself and we have excess capacity, we would not be wise stewards, we would not be intelligent businesspeople if we did not go out and look for things to be built in the factory to soak up that excess capacity as our first responsibility to the shareholders. We here in the Senate are responding not to shareholders but to taxpayers. We are responding to military people who are depending upon these facilities to provide the necessary skills in time of war, and we are facing a circumstance where we have excess capacity. I am as dedicated as anybody else to the idea that we need to move ahead with competition and save taxpayers' money. But to ignore the question of our existing capacity and overcapacity in the name of a theoretical argument in favor of competition, which sounds good in the classroom, is to be irresponsible. One final comment, Madam President, and then I will yield back the remainder of my time. The Senator from Texas has said on this occasion and repeatedly that this for him is not a parochial issue, that it is a matter of principle and that he is standing on this principle even if a base in Texas were not involved. I will accept that. I will respect that. I want to make it equally clear, however, Madam President, that there are those of us on the other side of the argument who feel just as strongly that we are standing for a principle where the principle is integrity in the contracting process in the Department of Defense, which integrity we feel has been attacked. I was asked, on the record, would you still be fighting this fight if Hill Air Force Base were not involved, and would you stand to protect Hill Air Force jobs if it cost the taxpayers extra money? I said to the reporter in the hometown where Hill Air Force Base is located, if we cannot demonstrate that the Air Force is better off financially by having the work done at Hill Air Force Base, I cannot as a Senator say the work should still be done at Hill Air Force Base at a higher price. I believe the position we are taking is sound management practice, sound business practice. It is what I would do if I were a businessman charged with the responsibility of running this factory that is at overcapacity, and I believe that we have just as solid reasoning to stand on principle as the Senator from Texas believes he has. I hope everyone will recognize that it is not appropriate to attack anybody else's motives. Now, if he attacks the motives of the folks in the House, that is fair game. I will let him do it with the people in the House; that is kind of the way we do it here. But I wanted to make my statement with respect to where we are in the Senate. Exhibit 1 Competition--Statements of Senator Phil Gramm 1. ``What the Department of Defense wants to do is have a competitive bidding between the three depots in the Air Force that are doing maintenance work and private contractors.'' (The bill specifically authorizes such competitions and requires that the Department allow all qualified bidders and teams to participate.) 2. ``Now, what Senator Hutchison and I want is simply to allow private contractors in our State or anywhere else to have the right to compete for this work and, if they can do it better, if they can do it cheaper, they would have an opportunity to do it.'' (The bill specifically authorizes such competitions and requires that the Department allow all qualified bidders and teams to participate.) 3. ``Why should we not have price competition.'' (We should, and this bill makes that happen. The compromise language requires that the Department has to take into account the total direct and indirect costs when comparing the offers.) 4. ``If Republicans believe in anything, it is competition.'' (The bill reflects this belief, and specifically authorizes such competitions and requires that the Department allow all qualified bidders and teams to participate on an even playing field.) 5. ``Obviously, if you wanted to be reasonable on this issue, you would simply say to the Defense Department, look, here are a set of criteria for looking at a fair competition with a level playing surface.'' (The bill does this. It authorizes competitions and establishes a few of the criteria that must be considered in evaluating the various proposals. The Department of Defense would retain the flexibility to establish any additional criteria that the Department believes would ensure a level playing surface.) 6. ``But we could set out simple criteria for a level playing surface to have competition between the public sector and the private sector to do this work.'' (Again, this bill does this. It establishes a few of the criteria that must be considered in evaluating the various proposals. For example, it states private and public bidders can team. This is good for competition. The Department of Defense would retain the flexibility to establish any additional criteria that the Department believes would ensure a level playing surface.) 7. ``Have competitive bidding after you first set out the criteria for competitive bidding. If you want to look at the cost of facilities they are using, to make adjustments for it, then look at everything--look at retirement costs, look at every single cost, come up with a way of measuring it, and have a competition. And then, even if the depots lose the competition by less than 10 percent, give it to them anyway.'' (The criteria specifically includes the cost of facilities (land, plant, and equipment) from a military installation that are proposed to be used by a private offeror. The Department would retain the flexibility to include the cost of facilities that are proposed to be used by a public depot if they can justify their decision. The criteria also include the total estimated direct and indirect costs (including retirement costs) and the total estimated direct and indirect savings to the Department of Defense. The only thing the language does not do is give the public depots a 10-percent price preferential, as was proposed by the Senator from Texas. 8. ``But what I want the workers there to have a chance to do is to go to work for private companies that might have a chance to compete for the work. So I am not asking for anybody to give anything to San Antonio, TX. But I am demanding that we have an opportunity to compete.'' (The compromise language gives them this opportunity.)

Mr. BENNETT. I thank the Chair and I thank the Senator from Oklahoma. I sat and listened to the senior Senator from Texas as I did some weeks, if not months, ago when he made similar speeches, and I want to respond to some of the comments he made. He said that his primary interest in life is preserving competition. I want competition, too. He said he wants fair competition. I want fair competition, too. I remember in his previous speech he said he was so concerned about fair competition that he would be willing to write the law in such a way as to outline the requirements to make sure there was fair competition and then allow the depots a 10-percent cushion. He said, if they came within 10 percent of the private sector, they would be given the opportunity to hold the work. We believe the language in this bill fulfills the requirement that he laid out on this floor at that time, that it does outline fair competition. He says many people think of depots as an entitlement, and he says, ``I reject that.'' I agree with him 100 percent. Depots, or any defense facility, are not an entitlement, whether it is in California or Texas or Utah or Arizona. However, there is the question of the core capability of the Department of Defense in establishments that they have created over time. It is an established rule that core work is to be done in Government-owned facilities. What is core work? It is the work that has to be done in case we go to war, in case we are in the circumstance where a private contractor says, ``I don't want to interrupt my commercial business to do this military business just because there is a war going on.'' There is core work that must be done. Prior to the adoption of the language that is in this bill, the definition of what is core work and what is not was left entirely to the Secretary of Defense. That means if the Secretary of Defense wants to rule something as not core work and thereby rig the competition for political purposes, he has the right to do it. One of the things that appeals to me most about this language is that it puts sunshine on the process of determining what is core and what is not and requires the Secretary of Defense to report to whom? To the Congress, to the people who are appropriating the money, as to what is core and what is not. What can be wrong with that? The Senator from Texas wants competition. So do I. I think we have responded to the Senator's call for competition, and we have crafted language that produces that. Madam President, I have a document with responses to a floor statement that was made earlier by the senior Senator from Texas. This briefly addresses some of his primary objections, many of which have been repeated here today. I ask unanimous consent that the summary of those 11 statements, plus the responses to them, be printed in the Record at the end of my statement.

Mr. BENNETT

Mr. BENNETT. I am pleased to join with the Distinguished Majority Leader in sponsoring S. 1311 regarding arms sales to Iran. This is very critical legislation. If the relevant governments cannot regain control over their weapons sellers, Iran will have a ballistic missile capability within months instead of years. Mr. President, on Tuesday, Secretary of State Madeleine Albright told me, ``Dealing with proliferation is the highest priority item of this administration.'' In the national security field, she has the right sense of priority. And certainly, Iran is the leading problem country. The legislation we are introducing today calls on the administration to report on which foreign entities are contributing to Iran's missile ambitions. For example, the Washington Times has recently reported on a number of important Russian organizations involved in this trade. Special metals and associated technology are said to be involved. If necessary, sanctions against the named entities will be imposed. I hope sanctions will not be necessary. I have some confidence that foreign government leaders will fulfill their commitments. But it may become necessary. We already know Iran has a chemical warfare capability and we suspect it has nuclear and germ warfare ambitions. We cannot allow a sponsor of state terrorism like Iran to obtain a ballistic missile delivery system. Mr. President, I ask unanimous consent that an article from the October 20, 1997, issue of the Washington Times be printed in the Record.

Mr. BENNETT

Mr. BENNETT. I am pleased to join with the Distinguished Majority Leader in sponsoring S. 1311 regarding arms sales to Iran. This is very critical legislation. If the relevant governments cannot regain control over their weapons sellers, Iran will have a ballistic missile capability within months instead of years. Mr. President, on Tuesday, Secretary of State Madeleine Albright told me, ``Dealing with proliferation is the highest priority item of this administration.'' In the national security field, she has the right sense of priority. And certainly, Iran is the leading problem country. The legislation we are introducing today calls on the administration to report on which foreign entities are contributing to Iran's missile ambitions. For example, the Washington Times has recently reported on a number of important Russian organizations involved in this trade. Special metals and associated technology are said to be involved. If necessary, sanctions against the named entities will be imposed. I hope sanctions will not be necessary. I have some confidence that foreign government leaders will fulfill their commitments. But it may become necessary. We already know Iran has a chemical warfare capability and we suspect it has nuclear and germ warfare ambitions. We cannot allow a sponsor of state terrorism like Iran to obtain a ballistic missile delivery system. Mr. President, I ask unanimous consent that an article from the October 20, 1997, issue of the Washington Times be printed in the Record.

Mr. BENNETT

Mr. BENNETT. Mr. President, will the Senator yield for an additional question?

Mr. BENNETT. I recall in Friday's debate when the Senator from Arizona laid down the three fundamental purposes of McCain-Feingold, and the second of those three was to lessen the amount of money in politics. So I think the question of the Senator from Kentucky is a legitimate one: How much do the sponsors of McCain-Feingold want to lessen the amount of money in politics? According to the Senator from Arizona, that is one of the three fundamental pillars of this, and I hope the two Senators will continue the colloquy until we get an answer to that question: How much do the sponsors of McCain-Feingold want to lessen the amount of money in politics?

Mr. BENNETT. Madam President, during the hearings we have held in the Governmental Affairs Committee there have been a number of headline- grabbing witnesses who have appeared before us. Unfortunately, when we got to the phase of the hearings where we were discussing this issue, the television cameras all left the room and the press tables all became vacant. In that atmosphere I was able to say some things that I maybe wouldn't have otherwise said because I knew no one would say anything. It is a bit like the question, When a tree falls in the forest and nobody is there to hear it does it make any sound? But there was one witness that appeared who made a lot of sound and whose statements are so apropos I have taken the floor to read most of them into the Record. His full statement is available to anyone who wants to go into the committee. I will not take the time to read the full statement here, but for the Senators who participated in this debate I think hearing some of the comments this man made will be particularly enlightening. I am speaking of Curtis Gans, the director of the Committee for the Study of the American Electorate. The advisory board of that committee includes people such as David Gergen, Peter Hart, Abigail McCarthy, Cyrus Vance, former Secretary of State, Ted Van Dyk, Anne Wexler, Richard Whalen, and a number of others whose names I don't recognize but I am sure are equally distinguished. Mr. Gans points out he has been the director of this nonpartisan nonprofit committee for 21 years, engaged in the issues surrounding low and declining voter participation. That is his area of expertise. He has published publications, organized commissions, testified before Congress, engaged in this activity for a long period of time. With my apologies for quoting so much, I will get into the details of Mr. Gans' testimony because, as I said, I think it is particularly enlightening. I am now quoting from Mr. Gans: Mr. Chairman, with all respect to this committee's good work and the chairman's good intentions, I would like to suggest a few verities: that campaign finance is the most overblown issue in American politics, that the problems we face today in campaign finance are the products of bad law passed in 1971 and 1974 and the severability contained in that law and not the result of the Buckley versus Valeo decision; that there are serious problems in the present methods of financing campaigns, but that they are built into the incentive structure current law creates; that, in attempting to remedy the existing problems deliberations should be guided by the principle of ``Do No Harm,'' (that we have already seen the unintended consequences of good intentions) and that it should proceed incrementally and with true bipartisanship; and that the case for such incremental reform can be done without the gross vilification of individual leaders or the system as a whole which is both inaccurate and does a profound disservice by undermining--perhaps more than the laws themselves--public faith in the political process. Mr. Gans goes on in another place in his testimony: I think the American people have long known that people give money for essentially four reasons: 1. That they are friends with the candidate or officeholder. 2. That the candidate or officeholder has views congruent to the giver on one or more key issues. 3. That the opponent has views which are anathema on one or more key issues. 4. To gain access to the candidate/officeholder to express one's interest and point of view. I don't believe that the American people think that Representative . . . He names the Member of the other body. is a liberal because he gets liberal money, or that . . . He names another Member of the other body. is a conservative because he gets conservative money. I do believe they understand that access is different from influence--even if money buys access. I think they know that access to a leader comes from several different sources-- personal friendship, long-time loyalty, fame, grassroots citizens organization and money, and that money does not speak with one voice. I think the American people know--as their responses to surveys about their own Congresspersons and Senators (the ones with whom they have had first-hand experience)--that the overwhelming majority of leaders are honorable leaders who arrive at public policy decisions on a basis other than contributions. And that if there is cynicism about the profession as a whole, it is not because of its actions, but because they have been vilified by those who seek reform. Later on in his statement, Mr. Gans gives what I find to be two fascinating questions: I am fond of asking the question: ``What do Social Security, Medicare, Medicaid, Aid to Families with Dependent Children, Federal aid to education, the Civil Rights Act, the Voting Rights Act, the Occupational Safety and Health Administration, the Environmental Protection Agency, the Council on Environmental Quality have in common?'' The answer is that they were all enacted and created when individuals could give unlimited and undisclosed amounts of money to candidates, often in unmarked paper bags, and when the Republican party usually enjoyed a 3-1 spending advantage over the Democrats. (As one staff member of this committee has pointed out, it should also be noted that the Hatch and Taft-Hartley Acts were also enacted in this period, lest the Republicans think reform would be a good thing for their policy ends.) What this incandescently shows us is that major public policy is a matter of leadership and citizen consensus rather than campaign cash. Mr. Gans goes on in his second question, equally compelling in my opinion: I am also fond of asking a second question, ``What do Michael Huffington, Clayton Williams, Rudy Boschwitz, Mark Dayton, Lew Lehrman, Jack Brooks, Guy VanderJagt, Steve Forbes and, if anyone remembers, John Connally, have in common?'' The answer is that each and every one of them spent millions of dollars of their own money, outspent their opponents by as much as 5-1 and lost. When he gets to discussing our current problems, Mr. Gans has this to say. . . . campaign finance laws were enacted in 1971 and 1974, whose only beneficially durable features were the mandating of public disclosure of some of the money in politics, the provision for partial public financing of campaigns and the establishment of an agency, which for whatever its flaws, has attempted to do a decent job of disclosure and tracking and improving election law. Later, he says: That law were challenged and substantial parts of the law were overturned in Buckley. The Supreme Court ruled, and I believe rightly, not, as some would have us believe, that ``money is speech,'' but rather that money is necessary for speech to be heard. Accordingly, the Court ruled against spending limits--as inhibiting speech and competition (about which there is considerable evidence) unless such limits were truly voluntary and until there were compensatory benefits to insure that there would be a full and fair hearing of campaign speech. It overturned restrictions on the use of personal funds in campaigns. But it left stand, I think wrongly, the $1,000 contribution limits (to meet the ``appearance of corruption,'' and established a ``bright line'' of ``express advocacy''--the specific advocacy to vote for or against a particular candidate, so named, as the only place in which the amount of money spent on such advocacy could be regulated. Because the law law was written so that it was severable-- that the provisions which were not struck down--would remain in place, we emerged with an accident waiting to happen, a partial law for which evasion would prove not only likely, but perhaps necessary. We ended up with contribution limits that were constraining and subject to strict disclosure, hard money for both candidates and national parties which were severely restricted and subject to disclosure both on the contribution and expenditure level, soft money--to nonfederal party accounts and to nonprofit groups--which were unregulated and only partially disclosed. . . . The problems with the resulting system became evidence early. Mr. Gans goes on to give us a personal example that I found fascinating. He says: (On the issue of venture capital, I can speak from some experience. I provided the theory for and helped organize in 1967 something called ``the Dump Johnson Movement,'' and by the accident of being one of two persons who knew who populated that movement, I became staff director of Senator Eugene McCarthy's 1968 Presidential campaign. When the candidate announced on November 30, 1967, he was unknown to 57 percent of the American people; in early February, he stood at 2 percent in the polls in New Hampshire, the first primary, and there was near-universal opinion that one could not beat a sitting President within his own party. If we had had to live within the present contribution limits, that campaign would never have happened and the people of the United States would have been denied the opportunity to express their opinion on the war in Vietnam and Johnson's leadership within the political process. There was neither the time to raise the money or an adequately accessible number of small contributors to make that effort possible. And we do not today know how many other legitimate challengers have been denied the opportunity since 1974 to compete because of a lack of venture capital.) Now, apropos of this debate, Mr. Gans has some interesting things to say about that great bugaboo, soft money: Then, there is the question of ``soft money.'' I, along with Dr. Herbert Alexander and Dr. Anthony Corrado, among comparatively dispassionate and nonpartisan observers, have long been a defender of soft money. I have done so because my research shows that in competitive campaigns for the U.S. Senate, nearly 60 percent . . . of the hard money campaign budget goes to televised advertising, 30 percent usually is expended on fundraising, and the balance on candidate travel and staff. In this situation, soft money are the only funds then and now available for activities involving people-- grassroots campaigning, voter registration and education and party development. But beginning in 1992, soft money has increasingly been used for none of these. Instead, almost all of these unregulated moneys have been poured into television advertising, which is the antithesis of grassroots organization and party development. They underline participation and erode respect for either party. It is safe to say that one reason the Democratic National Committee is substantially in the business of refunding illegal contributions is that they so denuded their staff during the campaign to put every last dollar into advertising that there was no one left to exercise oversight. All of which is to suggest that--without the high-flown rhetoric about corruption, elections being bought and public policy being for sale--both supporters and critics of current and choice reform proposals see some of the same problems. The question is what to do. And therein lies the rub. Mr. Gans says: I will leave to others the argument about the implication of limits on the First Amendment guarantees of free speech. While I agree with them, leaders like Senator Mitch McConnell, Ira Glasser, Roy Schotland, among a host of others, can carry this argument better than I. I would rather deal in the world of practicality. He goes on to say: I think there are four verities which will, at least in my limited lifetime and perhaps through the lifetime of my ten- year-old child, continue to hold: 1. That because of the recent realignment in the South, the Republican Party will continue to have, at the very minimum, a cloture-proof minority. The impact of this on campaign finance law is that campaigns will be run for the forseeable future largely or totally on private money. I think his implication there is that he knows the Republican Party is opposed to public funding. 2. That the Supreme Court is highly unlikely ever to rule that an individual cannot spend whatever he or she wants of his or her personal money on his or her campaign. Thus, we will continue to have self-financed millionaires running for office. 3. That the Supreme Court is highly unlikely to rule that like-minded people cannot band together, organize, participate and contribute to campaigns. Thus, we will continue to have political action committees. 4. That the Supreme Court is highly unlikely to say that groups and individuals independent of campaigns cannot express their points of view on the issues and candidates up for election. Thus, we will continue to have independent expenditures. (Two things in this regard should be noted. The recent statement by 126 legal scholars, organized by the Brennan Center, was notably silent on these issues. Secondly, Mr. James Bopp's excellent law review article which chronicles various recent cases regarding independent expenditures shows that, if anything, both the Court--in the Colorado case, and the courts, in general, are likely to expand the ability of both parties and independent groups to exercise their free speech rights in the electoral context.) All of which suggests to me that no closed system can or, from my point of view, should be created and that limits will not work. Do we really want to continue the current low level of contribution limits and continue to advantage millionaires and those with large rolodexes of midlevel and large contributors? Do we really want to abolish soft money if the net effect will be simply to starve the political parties and drive money toward independent expenditures? He says: In some mythical world it might be conceivable to create a system of limits which would not have downside effects--that would be high enough to insure competition, that would provide for full accountability, and would provide varying forms of compensation for the inequities that grants the constitutional rights to such entities as millionaires and independent expenditures may create. Madam President, I love this sentence. It summarizes better than anything I could say how I feel about the enforcement procedures that we are having discussion about here: But to administer such a program would likely take a bureaucracy larger than the Department of Defense and a litigation budget considerably in excess of the Department of Justice and the tobacco companies combined. Well, what does Mr. Gans have to offer in the way of a solution? He says this toward the end of his testimony: I think at this time there is a possibility of real bipartisan agreement on a number of modest, but not unimportant steps. 1. That we mandate full and timely disclosure of all contributions and expenditures above a certain level and within a certain timeframe--including the expenditures and larger contributions to State parties and independent expenditure groups. 2. That we establish nationwide computerization of finance records and mandate electronic filing and fast release of all things mandated to be disclosed. 3. That we define adequately what a foreign contribution is, provide strict prohibition on such contribution and provide teeth in the enforcement of this provision. 4. That, at least within this mandate, we empower the federal election commission and give it the resources to do its job. 5. That we indeed do something about soft money. But that we need to think carefully about what we do. To abolish soft money would send money into independent expenditures and, in the absence of substantially raising the amount which can be given in hard money, starve already atrophying parties. There is, to my mind, a better way. Which is that soft money has been justified on the basis that it exists to provide a source of funds for grassroots activity and party building. Let us limit its use to that. Specifically, let us, as we have not until now, recognize in law that such funds exist, deny their use for broadcast advertising and overrule the Federal Election Commission's decision that ``generic'' advertising is not broadcast advertising as stated in existing law. If we did that we would either reduce the demand for soft money or there would be enormous amounts of money moving in the right direction--in activities that educate and engage the citizenry and strengthen and build political institutions rather than in destroying the will to vote. This would not solve all the problems contained within the campaign finance conundrum, particularly with respect to contribution limits, independent expenditures and the overall and spiralling demand for money. But it would be a good start. It would make the system profoundly more accountable, and it would correct the worst abuses of soft money without rendering the parties impotent. Finally, as he concludes, Mr. Gans summarizes this whole circumstance in language that is one of those phrases you say afterward, ``Gee, I wish I had written that.'' This is his conclusion. The dialogue on campaign finance has generated a maximum amount of heat and a minimum amount of light. Our political system has been called corrupt. Our Congress bought. Our leaders cowardly. All in the name of attempting to force through a particular set of ill-thought out proposals for reform on a Congress which well understands their weakness. Those responsible for this dialogue are Common Cause, Public Citizen and their mouthpieces particularly on the editorial boards of The Washington Post and New York Times. And while both the latter are great newspapers with noble journalistic traditions, with respect to this set of issues, all should be ashamed. Not only because it is not true, but because they, by this attitude, much more than the admittedly flawed system of campaign finance, are deepening the cynicism of an already increasingly cynical public. I know the overwhelming majority of our leaders are honorable. I know many have demonstrated courage in their lives and in their political conduct. I know that, despite many flaws, this nation's political system is the greatest in the world or at least among the greatest. It is time to stand up to the bullies and cool the dialogue--to pinpoint our flaws precisely and address them, but not to tear down the system most of us love and are seeking to improve. As I said at the outset, Madam President, I apologize for quoting so much from one man's testimony. But I found it compelling. I find myself in agreement with almost all of it, if not all of it. I am particularly in agreement with his statements that our problems arise in large part because of the flaws in the current law, and the lack of severability that occurred when the law came before the Court, so that when the Court found portions of it unconstitutional they did not strike down the entire law. And we were left with, as Mr. Gans says, ``an accident waiting to happen.'' I know in the context of this debate we cannot start with a clean sheet of paper and move in the direction that Mr. Gans outlined. But if in fact, as many are predicting, and as, frankly, I expect nothing comes of the present effort to enact McCain-Feingold, I hope that instead of walking away from it shaking our heads and pointing our fingers at each other that we take a clear look at Mr. Gans' approach, which would be to, as he quotes Abraham Lincoln, ``think anew and act anew,'' and say, We can solve this problem. We can solve it in a bipartisan manner. But we can do it in such a way that would not create all of the evils that his testimony so graphically describes. I thank my colleagues for their indulgence in allowing me to read so much. I yield the floor, Madam President. Mr. DORGAN addressed the Chair.

Mr. BENNETT. I would like to obtain the floor in my own right at some point, but I make a comment to the Senator from Kentucky and ask him if he would like at this point with respect to the 126 scholars that have been mentioned up until now--I will wait until I have the floor.

Mr. BENNETT. Madam President, will the Senator yield for a question?

Mr. BENNETT. I hesitate to intrude when he is in full cry because I don't like to be intruded on when I am in a full cry. But I am emboldened by the kind of words that my colleague offered at the beginning. This is a personal observation. I agree with the Senator absolutely. That ad should be identified; that it was clearly part of the campaign. I am not any more fooled than anybody else. However, we are driven to that kind of chicanery by the present law. My solution--and I am speaking clearly just for myself and not for anybody else on this side--would be to repeal the present law and allow the campaigns to go back to a degree of honesty. I do say to the Senator: I believe that under the present ruling of the Court the statement by the Senator from Kentucky is correct. The Court would rule that since the magic words were not in that ad it would in fact not be considered a campaign ad under the legal definition. I agree with the Senator. The legal definition is artificial and improper. But I would solve it in ways other than passing the McCain-Feingold. I thank my friend.

Mr. BENNETT. Of course the Government has no business doing that. That is the point we made on Friday when we were having the debate. Even if we grant the argument raised by the Senator from Wisconsin and his 126 experts that it can be done in a way that is constitutional, we recognize that it cannot be done in a way that makes sense. It is possible to craft a system that meets the narrow requirements of the Constitution in terms of protecting free speech, but it is not possible to do one in a way that makes any logical sense at all. I had risen to ask my colleague this question about the example we have before us. We are being told this is constitutional because it is voluntary. And I suppose that is the reason these 126 scholars have signed the letter. As long as you agree in advance to give up your constitutional rights, then the Constitution will not defend you. The Senator from Kentucky has said it isn't really voluntary. There is a huge incentive which the Senator from Kentucky describes as a gun pointed at your head to see to it that you are voluntary. So it is not voluntary. This is the question I had in mind. We have an example before us of people giving up their constitutional rights in return for Federal dollars. There are some who are so unkind to call that a bribe. But in the Presidential system now, virtually every candidate for President accepts the bribe; that is, he or she accepts the Federal dollars in return for agreeing to limit their speech. The Senator from Wisconsin says, no, every American has a constitutional right not to accept that money and to go ahead on their own. Isn't it true that the only two candidates who have been able to run for President without accepting the Federal money and mount anything approaching a worthwhile campaign are Ross Perot and Steve Forbes, both of whom approach billionaire status? Is that a correct summary of what the Presidential system that is constitutional has brought us to?

Mr. BENNETT. I was here in 1993, and I think I probably did cosponsor that. The Senator is making a good case that I probably made a mistake.

Mr. BENNETT. Mr. President, will the Senator yield for a clarification?

Mr. BENNETT. As I said at the outset, it demonstrates just how ridiculous it is for the Federal Government to get into the business of determining who can spend what and for how much in a constitutional way. You end up so contorted and distorted in your attempt to get around the obvious constitutional ban on this kind of nonsense that you create a circumstance that virtually no one can defend on practical grounds: More money going for a candidate in New Jersey than for a candidate in New York, different rules applying to a candidate in Delaware than apply to a candidate in Wyoming. All of this is voluntary, but it becomes voluntary because there is a huge bribe out there waiting for you if you agree to give up your constitutional rights. I think it is absurd. I was delighted over the weekend to read the comments of George Will, who said that this debate is one of the most fundamental we have had since the founding of the Republic. I had not thought to put McCain- Feingold in the same fashion that George Will does, but he describes it as similar to the speech codes adopted in many of our campuses, the excesses of the 1950's in the days of Joseph McCarthy, the 1920's speech activity, the Alien and Sedition Acts, but he says all of those are less significant in their threat to a fundamental liberty than this one because they came and went in the frenzy of the day. This one would leave behind a huge Federal bureaucracy aimed at producing exactly the kind of results the Senator from Kentucky is talking about, laying out that this candidate in this State can spend this much, and as soon as he steps across the State line, if he decided to run in another State, then the rules would change, the limits would change, the circumstances would change. That kind of Federal bureaucracy intruding itself into the campaign even if it were through some tortuous method of gaining consent on the part of those involved, constitutionally it remains clearly violative of the spirit of the first amendment, if not the specific letter. I believe the courts would strike it down.

Mr. BENNETT. Mr. President, if I may respond to my friend from Kentucky, I know a little bit about campaigns in Wyoming because a large portion of the Wyoming electorate is served out of the television market headquartered in Salt Lake City, UT. As a consequence, voters in Utah were treated to attack ads telling us how terrible Mr. Enzi was in the last campaign. We had no idea who he was. I did not meet him until he was sworn in here. But I had seen all of the attack ads that were put on through the Salt Lake City television stations attacking the senatorial candidate in Wyoming. By contrast, if I may, our friend from Delaware, Senator Biden, has told us that Delaware has no television outlets at all in the State. As a consequence, if he is going to run a television campaign in Delaware, he has to do all of his buying in Philadelphia, so that the voters of Pennsylvania get to hear all of the glories and beauties of Joe Biden, none of whom can vote for him because he cannot buy television time in Delaware. What the Senator from Kentucky has demonstrated is how incredibly difficult it is to craft legislation that approaches the ideal sought by the Senators from Arizona and Wisconsin in a market-by-market, State-by-State, election-by-election circumstance. It is virtually impossible to do that. We ought to recognize that and defeat the whole thing out of hand.

Mr. BENNETT

Mr. BENNETT. Mr. President, I ask unanimous consent that the subcommittee on Administrative Oversight and the Courts, of the Senate Committee on the Judiciary, be authorized to meet during the session of the Senate on Monday, September 29, 1997, at 2 p.m. to hold a hearing in room 226, Senate Dirksen Building, on: A Review of the FBI Crime Laboratory.

Mr. BENNETT

Mr. BENNETT. I will yield for a question.

Mr. BENNETT. Mr. President, I listened with interest to the opening statements made on this issue. I appreciate the sincerity of those who have made them. I wish to make this first personal point before I make some additional points. The Senator from Arizona said that there is only one purpose here, and that purpose is to enact fair and effective campaign finance reform. I wish to make it very clear that I accept that purpose on behalf of the Senator from Arizona, the Senator from Wisconsin, the Senator from Tennessee, or anyone else involved in this matter. I do not challenge for one moment their sincerity. Certainly we cannot challenge their earnestness. Certainly we cannot challenge their motives. I want it clearly understood that I have that kind of feeling about what they are doing. I want it equally understood that I think they are fundamentally wrong and that, in their effort to get to what they consider to be a sincere and proper goal, they could do irreparable damage to our Nation and to the fundamental freedoms about which I care just as passionately as they do. I hope they will grant to me the same sense of honor and integrity that I am more than willing to grant to them, and that we will not get into the name-calling business of saying, if you oppose McCain-Feingold, you are somehow opposed to anything that is true and beautiful and worthwhile. I believe McCain-Feingold cuts at some of the most fundamental freedoms we have in this country, and I am going to outline that. I want everybody to understand that I am not acting because I believe something sinister or improper is going on here. As to the second point, before I go into some of the specifics I want to talk about, I would say to Senator Feingold, I think you ought to meet Senator McCain. From the notes I have made in this morning's debate, Senator Feingold said, if I quote him correctly, ``No form of expression will be prohibited,'' just after Senator McCain said, ``No ad mentioning the name of a candidate will be allowed in the last 60 days of the campaign.'' I do not find those two statements coinciding with each other. Indeed, the Senator from Arizona, in his summary of the things that would be allowed and would not be allowed, gave us a whole list of that which would be allowed to take place and that which would be prevented. To me, we are debating ways in which Government power will be marshaled to control legitimate speech, and we are saying, with all of the intensity of middle-aged theologians debating how many angels can dance on the head of a pin, that this will be allowed and that will not; this is permissive but that is not; 60 days is legitimate but 61 is not, back and forth, in and out on all of these particulars. We are going to marshal the full power of the Federal Government of the United States of America and focus that power like a laser beam on this particular ad, this particular contribution, this particular activity, all in the name of campaign finance reform. Mr. President, to me marshaling Government power to regulate what can and cannot be said in another context is called censorship. And marshaling the power of the Federal Government to censor political speech is not an activity in which I would lightly engage. The statement was made by the minority leader that Buckley versus Valeo was a close call; it was only 5 to 4. On the issue of whether or not spending money in campaigns represented protected speech under the first amendment, Buckley versus Valeo was 9 to nothing. And in every subsequent decision from that time forward, the Court has reemphasized that. Let us understand that. We are talking about the most fundamental political right that we have in this country, the right of free debate and speech in a political campaign. I want to lay that down as the fundamental predicate, when we get into the details of this, when we argue with the Senator from Arizona about what is and what is not wise and proper, we are talking about tinkering with the fundamental right of Americans to engage in robust political activity. We should tread on this ground very, very carefully. I think that is why the Supreme Court slapped down the first attempt to tread on this ground by such an overwhelming margin. Now, some specifics. The Senator from Arizona laid down the three principles that we are going to see preserved in the substitute bill to McCain-Feingold, S. 25. I am delighted there will be a substitute bill to S. 25. I have gone through S. 25 reading it personally. If ever there were a maze of regulations subject to misinterpretation and reinterpretation by bureaucrats enforcing them, this is the maze. This morning on this floor we had a series of speeches regarding the IRS and how the Tax Code is used and abused with ordinary citizens. I wonder what the IRS or regulators like those who work for the IRS would do with the provisions of S. 25? Saying, well, you could have run that ad, but you can't run this ad; you could have had this guide, but you can't do that guide; this was OK last Tuesday, but it is not OK on Thursday. Now, the fundamental assumption here underlying what we are hearing is that money is the only factor in determining the outcome of an election, and that if we can only level the playing field, which we hear over and over again, in terms of money, then we will have fair elections. Well, when we raise the issue of people who defeat incumbents without having as much money as incumbents have, we are told always, well, that is the exception that proves the rule. That is an aberration. That is not the way things normally happen; incumbents normally win. Yes, incumbents do normally win. And they normally win for a whole series of reasons, not necessarily connected with money. I am interested that Senator Feingold is raising this issue when he is one of the challengers who defeated an incumbent in order to get here. And, while I will not pretend to be an expert on his campaign, it's my understanding that he spent less than his incumbent opponent in order to do it, thus demonstrating that maybe the ability to communicate better than your opponent has something to do with who wins. Maybe the ability to write a smarter ad than your opponent does may have something to do with who wins. Maybe even having a more powerful message than your opponent has something to do with who wins. Or maybe which State you live in, whether it be predominantly Republican or Democrat, in terms of the leanings of the voters in the first place, has something to do with who wins. It is not necessarily money as the only ingredient in what happens. All of us here, because we live in the beltway circumstance, saw the ad campaign that went on in the senatorial race in Virginia in 1996. You couldn't avoid it if you lived anywhere in the Washington area for any period of time. Mark Warner spent something like $25 million trying to defeat Senator John Warner. He didn't succeed. He outspent him overwhelmingly. What advantages did John Warner have to fight off that kind of money barrage as an incumbent? There are those here who will say his only advantage was, as an incumbent, he could raise more money. Clearly he could not raise more money. There is not enough money in the world to warrant raising more money than Mark Warner spent in that race. I know my opponent in the primary race in Utah outspent me 3 to 1. He spent $6.2 million in a primary in Utah. When I say there isn't enough money--to spend more money, he was buying ads on Saturday morning cartoons. He had run out of places to spend it. Yes, there are finite limits. I think Mark Warner reached those finite limits in Virginia. Why didn't he defeat John Warner if he had that kind of money advantage? John Warner had 18 years of service in the U.S. Senate, which means 18 years of answering phone calls, sending letters, attending bar mitzvahs, going to Rotary Clubs. John Warner was known as the most popular politician of either party in the State of Virginia. That is a fairly significant advantage for an incumbent to have, regardless of money. John Warner has spent 18 years with name recognition against somebody of whom no one had ever heard. Yes, money buys name recognition. An incumbent doesn't have to spend any money to buy name recognition. That is a significant advantage. John Warner had a staff. I can give that example. I didn't run against an incumbent Senator but I ran against an incumbent Congressman who had a congressional staff. When the Congressman wanted to come to Washington to attend a fundraiser with a PAC group, who paid for it? The taxpayer, because it was a trip back and forth from his congressional district to the Capitol. When I came to Washington challenging him, trying to hold a fundraiser among the PAC's, who paid for it? My campaign paid for it. I had to raise that money. It put us on a level playing field. Both have the same amount of money, I don't get to come to the fundraiser but my opponent does because he's an incumbent. When my opponent put out a press release accusing me of committing a crime, which he did--actually, that was one of the good things about my campaign. Everybody thought he had lost his mind, and I got some extra votes as a result of it. Nonetheless, when my opponent put out the press release accusing me of a crime, who prepared it? His press secretary. Who paid the salary of the press secretary? The taxpayers. He was an incumbent. He is entitled to a staff. When my press people went to the press conference to say, ``No, Bob Bennett did not commit that crime,'' who paid their salary? My campaign did. So let's put him on a level playing field. He gets his staff paid for as an incumbent by the taxpayers. I, as a challenger, don't get my staff paid for. I have to raise the money. Incumbents have all kinds of advantages that have nothing to do with money. They also, sometimes, have some disadvantages that have nothing to do with money. We have the example--perhaps an extreme one but let's use an extreme one to make a point--back in the 1994 election, Mike Synar, the Congressman from Oklahoma, lost his primary. He spent $325,000. His opponent spent less than $10,000. His opponent's campaign consisted entirely of distributing his business card, sticking it under windshields in parking lots, and written on the back of the business card was the phrase, ``Not the incumbent.'' And he beat the incumbent. The incumbent in that circumstance had a $325,000 to, let's say, $10,000 money advantage; he had the disadvantage of a voting record that members of his particular congressional district didn't like. We cannot let ourselves get into this notion that money is the only factor and then write laws based on that assumption because, if we do, we will do violence to the Constitution and freedom of speech. Now, let me go down the three points that the Senator from Arizona made, as the core points of McCain-Feingold and the proposed change that we will have. First, he said it must be bipartisan. I will grant him that. McCain-Feingold will damage both parties equally, damage the process for everybody. It doesn't play favorites. It will be equally bad. Second, he says we must lessen the amount of money overall in campaigns. If he had listened to the expert testimony that we have had in the Governmental Affairs Committee this last week, he would find that even people who support McCain-Feingold, who come out of the academic community and commented on this, told us you cannot control the amount of money in political campaigns. The Senator from Kentucky has said, ``Controlling political money is like putting a rock on Jello. You put it on one place and it squeezes out another.'' And these experts said the same thing. They said political money has been in the process ever since George Washington was President and will always be in the process, and we have had a continuing process of simply trying to control it. But you are not going to eliminate it. It is always going to be with you.

Mr. BENNETT. That is correct.

Mr. BENNETT. I respond to my friend from Massachusetts by saying that, of course, the country would be better off if all of those things happened. There is no reason whatsoever to believe that the prohibitions of one kind of expression that are outlined in McCain- Feingold would automatically produce all of the other more beneficial kinds of expression that the Senator from Massachusetts has described. There is no credible cause-and-effect relationship between the two. We are back to the fundamental point that I am trying to make in this entire presentation, which is, we are talking about ways in which the Government will regulate speech. And that, in any other context, is called censorship. And I am opposed to it. Now, I must go back to the Senator from Kentucky.

Mr. BENNETT. The agency would have to decide, and once the agency decided, yes, it is all right to attack the Congressman but not to attack him by name, or, no, you can't say the Congressman from the third district, but you can say some Congressman, or whatever, you would, again, have Government dictating that which was permissible speech in terms of the content of the ad.

Mr. BENNETT. It could.