Tom DeLay

Mr. DeLAY

Mr. DeLAY. The gentleman said offer it. I stand corrected.

Mr. DeLAY. Mr. Chairman, I hope the gentleman did not misspeak. He said that the minority leader did not author the constitutional amendment. Did not the minority leader author this constitutional amendment?

Mr. DeLAY. Mr. Chairman, would the gentleman yield?

Mr. DeLAY. Would the gentleman like to name Members that do that?

Mr. DeLAY. Mr. Chairman, the gentleman has just made an accusation that leaders of both sides of the aisle shake down corporations. Would the gentleman like to name----

Mr. DeLAY. Reclaiming my time, Mr. Chairman, I think it is just outrageous. It is incredible that the gentleman thinks that when you call someone up to raise money for a campaign, that is a shakedown.

Mr. DeLAY. Mr. Chairman, I think it is just incredible.

Mr. DeLAY. Mr. Chairman, I ask for regular order. The gentleman does not even pay me the courtesy. I have yielded to him. I am trying to close the debate. I do not yield to him again.

Mr. DeLAY. I hate the appearance. If the gentleman would yield further, I would just say that through disclosure, then my constituents, not some bureaucrat in Washington, D.C. can express themselves through elections and other means as to their feelings, as to the connection of $600,000 by Loral connected to a waiver to sell the Chinese certain information. That is for our constituents to decide, not a regulated bureaucracy.

Mr. DeLAY. Mr. Chairman, if the gentleman will yield further, I do not disagree with the gentleman's intent and his good intentions, but it does strike me as odd that the gentleman from Mississippi was making the point that money is the root of all evil and money elects people. We just had a primary in California where one candidate spent $40 million of his own money, another candidate spent $20 million of her own money, and both candidates lost to the person who spent less than $10 million of other people's money. So this notion that money buys races has been disproved time and time again.

Mr. DeLAY. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I wish the gentleman would have yielded to me, because the gentleman is claiming all kinds of things about big money, soft money; and the gentleman himself received about a million dollars from labor unions in support of his election. Now that he is in office, he would want to ban similar type of spending that might be used against him. Mr. Chairman, I yield 5 minutes to the gentleman from California (Mr. Doolittle). (Mr. DOOLITTLE asked and was given permission to revise and extend his remarks.)

Mr. DeLAY. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise today after having asked that this constitutional amendment be offered, although I disagree profoundly with what it tries to accomplish. Mr. Chairman, I know this is very unusual that I would ask to introduce, or have the constitutional amendment of the gentleman from Missouri (Mr. Gephardt) introduced, even though he may not want it introduced. But I think frankly that this is the time to have this debate. Earlier on in the year, I thought, because of my opposition to campaign reform, particularly the Shays-Meehan approach, that I frankly would try to block its coming to the floor. But now that we are going to have this open and fair debate, I think it is high time that we have this debate, because this is a debate about free speech, this is a debate about the Bill of Rights and the first amendment to the Constitution. This is a debate that frankly the so-called reformers have had all their way for a very, very long time. It is time for this House to let the American people know what is going on, particularly in this case with this amendment, because this amendment, and I do not want to question anybody's motives, but I think this amendment frankly was offered to cover up some of the campaign abuses by the Democrat National Committee and this administration that we are looking into. So I bring this amendment to the floor, to do so, to help clarify for my colleagues the real focus of this debate. Tonight we will frame the debate on campaign reform. Any debate on campaign reform and regulation has to begin and end with a discussion of the first amendment to the Constitution of the United States. That is why we are here tonight. There are two sides when it comes to campaign reform. One side wants to change the Bill of Rights in order to give government more control of the political process. The other side, my side, wants to preserve the Bill of Rights and open up the political process to more Americans. Now, make no mistake about it. The Gephardt amendment that we are about to debate is the most honest effort by the so-called reformers, honest effort, because it confronts, head-on, the troubling notion that most of these other substitutes, like the Shays-Meehan bill, do not pass the constitutional smell test. The Gephardt amendment says that we should change the first amendment to fit the political passions of the moment. The Gephardt amendment would change the Constitution, change the Constitution to permit Congress and the States to enact laws regulating Federal campaign expenditures and contributions, which is currently held to be unconstitutional, and it would give to Congress and the States unprecedented, sweeping, and undefined authority to restrict speech protected by the first amendment since 1791. Now the ACLU, not exactly one of my best supporters, but in this case very much on target, has noted that the Gephardt constitutional amendment is vague and overbroad. It would give Congress a virtual blank check to enact any legislation that may abridge a vast array of free speech and free association rights that we now enjoy. As the Washington Post said, and they are not exactly a supporter of mine, but they editorialized against the Gephardt proposal, and I quote: Campaign finance reform is hard in part because it so quickly bumps up against the first amendment. The Supreme Court has ruled, we think correctly, that the giving and spending of campaign reforms is a form of political speech, and the Constitution is pretty explicit about that sort of thing. Constitution: The Congress shall make no law abridging the freedom of speech is the majestic sentence. Now the minority leader himself, the gentleman from Missouri (Mr. Gephardt) stated his position honestly when he said, and I quote: What we have here is 2 important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You cannot have both. Why disagree with that? In my view, free speech and democracy are not in conflict. In fact, you can't have democracy without free speech and limiting free speech eventually limits democracy. Now the Supreme Court has correctly noted when it said in a free society ordained by our Constitution, it is not the government but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a public campaign. If this constitutional amendment were adopted, Congress and local governments, not the people, would control speech. The ACLU has noted that passage of this amendment would give Congress and every State legislature the power heretofore denied by the first amendment to regulate the most protected function of the press, and that is editorializing. Print outlets such as newspapers and magazines, broadcasters, Internet, publishers, cable operators would all be vulnerable to the severe regulation of the editorial content by the government. Now a candidate-centered editorial, as well as op-ed articles or commentaries printed at the publisher's expense, are most certainly expenditures in support of or in opposition to particular political candidates, and the Gephardt constitutional amendment, as its words make apparent, would authorize the Congress to set reasonable limits on the expenditures by the media during campaigns when not strictly reporting the news. And the New York Times is editorializing in favor of Shays-Meehan? Other newspapers are editorializing in favor of shutting off freedom of speech and freedom of, and I will yield to the gentleman from Massachusetts in just a moment, but such a result would be intolerable in a society that cherishes free press. Now it is interesting to note that while the minority leader and many Members of his party support this constitutional amendment as the only way to limit spending in a constitutional manner, they also plan to vote in favor of Shays-Meehan that limits the same spending. Now if a constitutional amendment is needed, as the gentleman from Missouri (Mr. Gephardt) rightfully claims, then other bills that contain those same spending limits are constitutional. Now the proposal of the gentleman from Missouri (Mr. Gephardt) does from the front door what other proposals like the Shays-Meehan bill do from the back door. Campaign finance reform should honor the first amendment by expanding participation in our democracy and enhancing political disclosure. The Gephardt constitutional amendment does not honor the first amendment, it shreds it. So I just urge my colleagues to vote to protect the freedom of speech and vote against the Gephardt constitutional amendment and then vote against all the other substitutes that limit campaign spending and violate the Constitution.

Mr. DeLAY. I yield to the gentleman from Massachusetts.

Mr. DeLAY. Reclaiming my time, Mr. Chairman, I do not have to claim that soft money is unconstitutional. The Supreme Court of the United States has already stated that, and, reclaiming my time, and the gentleman can get his own time, let me just answer his question, and I have got to yield to other Members. Let me just say that the constitutional amendment opens up all kinds of mischief, and let me finish, if the gentleman will let me finish, including the things claimed by the Shays-Meehan bill. If the Shays- Meehan bill was not unconstitutional, then you would not need the Gephardt constitutional amendment.

Mr. DeLAY. I yield for one more question.

Mr. DeLAY. Mr. Chairman, I yield 4 minutes to the distinguished gentleman from Virginia (Mr. Scott).

Mr. DeLAY. Mr. Chairman, I yield such time as he may consume to the gentleman from Illinois (Mr. Hyde), the distinguished chairman of the Committee on the Judiciary. (Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. DeLAY

Mr. DeLAY. Mr. Speaker, I submit to the Record Douglas Johnson's insightful and valuable analysis of campaign regulation proposals and their impact on freedom of speech. I hope my colleagues will examine it prior to supporting so-called campaign ``reform'' measures. [From National Right to Life News, Sept. 30, 1997] Do American Voters Need Speech Nannies? (By Douglas Johnson) Many incumbent members of Congress are eager to provide America's voters with a new government service--a federal law to protect them from messages about politicians that may ``manipulate'' simple-minded voters, especially those communications that are ``negative'' in tone, or that will result in ``unhealthy'' debate. Yes, if Senator John McCain, Senator Russ Feingold, Common Cause, and their allies get their way, federal legislators, political appointees, and FEC career speech regulators will become the political speech nannies for the rest of us. They will do their utmost to shield their fellow citizens from an excess of information and claims about politicians-- conflicting messages that may confuse and befuddle them, or even trick them into voting for the ``wrong'' candidates. If you do not regard yourself as being in need of such a service from your government, then maybe it's time for you to take a closer look at the McCain-Feingold bill. The latest revision, currently on the Senate floor, contains speech- nanny provisions that are even stronger than those found in earlier versions, and astonishing in their brazenness. In recent days, the media have reported that the new bill would restrict broadcast ads that mention candidates within 60 days of an election. However, the bill actually contains multiple speech restrictions that sweep far more broadly than the 60-day provision. The other, less publicized provisions encompass both print and broadcast communications--and apply year around. The bill would generally prohibit unions and corporations--including issue-advocacy groups such as National Right to Life, the ACLU, or the Sierra Club--from paying for communications to the public at any time of the year that federal regulators consider to be ``for the purpose of influencing a federal election,'' if the sponsoring organization is deemed to have any of ten broad categories of links (direct or indirect, actual or presumed) to a candidate, including the mere sharing of professional vendors. ``Candidate'' includes all incumbent members of Congress, unless they have announced their retirement, starting the day after any election. And ``Exception'' That Proves the Rule Sen. McCain has made much of what he calls an ``exception'' which he claims would protect the right to disseminate certain printed information about the voting records of Members of Congress and the positions of candidates, including so-called ``voter-guides.'' Actually, however, the so-called ``exception'' amounts to an elaborate set of ``speech specifications,'' spelling out what type of information on politicians' votes and positions the Congress would deign to permit. Among other specifications, such printed material would be verboten unless it is solely presented ``in an educational manner,'' which is federal speech-regulation jargon meaning ``no explicit or implicit value judgments allowed.'' The bill also contains an additional requirement that the communication must not contain ``words that in context can have no reasonable meaning other than to urge the election or defeat of one or more clearly identified candidates.'' This so-called ``exception'' would really operate as a ban on the sort of congressional voting ``scorecards'' and voter guides that are commonly disseminated by many issue-oriented citizen groups and unions. Typically, such materials reflect a viewpoint on the issues covered by the scorecard or voter guide. This viewpoint may be evident, for example, in the selection of issues and the way that they are characterized, through ``positive'' or ``negative'' rates of ``grades,'' and through explicit commentary. Such commentary is not an ``abuse'' or ``evasion'' of federal law. Rather, it is fully protected by the First Amendment, which is not a ``loophole'' but, among other things, the nation's paramount ``election law.'' Under the so-called ``exception,'' however, a citizens' group such as NRLC, Inc., could not at any time of the year issue a brochure that contains the value-laden statement, ``On May 20, 1997, Senator Russ Feingold voted to allow the brutal partial-birth abortion procedure to remain legal,'' without risk of facing an FEC investigation for engaging in advocacy against and ``candidate.'' In addition, for 60 days before the primary or general election, NRLC, Inc., could not run an ad on the radio or TV that said simply, ``Senator Russ Feingold voted against the Partial-Birth Abortion Ban Act, H.R. 1122, on May 20, 1997.'' Isn't this really ``incumbent protection,'' big time? One of the few disadvantages of being an incumbent is the possibility of being called upon to defend one's actual votes on any of hundreds of issues. But the incumbents will have to do a lot less such defending, if the McCain-Feingold speech restrictions were in effect. These restrictions would apply even to communications that ask citizens to take action with respect to approaching votes on critical issues in Congress. For example, prior to the September, 1996 votes in the U.S. House and U.S. Senate on whether to override President Clinton's veto of the Partial- Birth Abortion Ban Act, NRLC published brochures that asked readers to contact specific members of Congress (i.e., ``candidates'') who had previously voted against the bill in order to urge them to switch sides and vote to override the veto. Some did so. Other groups ran TV ads with similar messages. Only PACs Can Speak Under the bill, it would remain lawful for a Political Action Committees (PAC) to utter the name or depict the likeness of a candidate before an election, so long as the PAC was able to avoid inadvertently violating the bill's Byzantine provisions defining impermissible ``coordination,'' which include such things as merely paying for ``the professional services of any person that has provided or is providing campaign-related services in the same election cycle'' to a candidate who the PAC wishes to support. Running afoul of these ``coordination'' rules automatically limits the PAC's speech on behalf of a candidate to $5,000. A law that allows only PACs (and the news media) to speak about politicians would silence countless citizens' groups across the nation that do not have the resources to meet the complex regulatory demands that are involved in operating a PAC (e.g., hiring accountants and lawyers with expertise in federal election law, filing complex reports, reporting the names and occupations of donors to the government, etc.). Moreover, even groups that have connected PACs, such as NRLC, would be able to engage in far less politician-specific speech than now, which is precisely the goal of the speech- regulators. Current law places stringent rationing restrictions on PACs. Such PACs may solicit and accept donations only from individual members, donations are limited to $5,000, and the names of all donors of over $200 (under the bill, $50) must be reported to the government, among other restrictions. However, the Supreme Court has held that such government regulations may be applied only to communications that contain explicit words urging a vote for or against a candidate. The Court has held that ``issue advocacy''-- meaning citizen groups' commentary on politicians and their positions on issues--is core political expression and enjoys the highest degree of immunity under the First Amendment. The Supreme Court's decisions do not allow this definition to be adjusted by federal or state legislative bodies, because that would allow precisely what is being attempted now--government control of the content and the amount of speech regarding the matters that are at the very core of the First Amendment's protections. The Supreme Court did not adopt its narrow definition of ``express advocacy'' based on some native misperception that only messages that explicitly urge a ``vote for'' or ``vote against'' a specific candidate would influence voters. Rather, the Court explicitly recognized that many other types of speech regarding the merits of the positions and votes of candidates may sway voters (that's why they're called ``voter guides''), but rejected limitations on such speech as alien to the First Amendment. As the Court said in Buckley v. Valeo, ``As long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.'' [emphasis added] But under the McCain-Feingold bill, they cannot ``spend as much as they want to promote the candidate and his views''--or even mention his name on the radio. Controlling Political Debate Many of the arguments being offered to justify restrictions on private speech about politicians seem to flow from a preconception that certain political elites should define the proper parameters for political discourse--by force of law. Burt Neuborne, legal director the Brennan Center for Justice (an organization devoted to seeking the overruling of Buckley v Valeo), displayed this elitist mindset at a February 27 hearing before the House Judiciary Constitution Subcommittee. Neuborne commended the panel's chairman, Congressman Charles Canady (R-Fl.), ``for the disciplined way the hearing has been run, and how carefully you maintained the ground rules that allowed real free speech to come out here. And I'm really saying that the same idea has to be thought of in the electorial process. * * * In a courtroom speech is controlled. In this room speech is controlled, and the net result is good speech.'' Here, indeed, is a new vision of democracy--elections in which the government sits on high as a judge, decreeing who will speak, at what time, and for how long. Or consider the words of Sen. McCain himself, who explained on September 26, ``These groups run ads that even the candidates who benefit from them often disapprove of. Further, these ads are almost always negative attacks on a candidate and do little to further healthy political debate.'' [emphasis added] Where does Sen. McCain think he gets the authority to suppress commentary on politicians that he considers ``negative'' or ``unhealthy''? And does he really imagine that it is constitutionally relevant whether or not candidates ``disapprove of'' the speech of citizens' groups? Even more haughty are the words of Congressman Scotty Baesler (D-Ky.), who says that unless restrictions are placed on independent communications, ``the candidate risks losing control over the tone, clarity, and content of his or her own campaign.`` Whatever gave Mr. Baesler the outlandish notion that he has authority to control the tone or content of the debate that precedes an election? Elections are not the sole property of the candidates. The right to seek to persuade fellow citizens of what issues they should weigh heavily at election time is as fundamental as the right to vote itself. As the U.S. Court of Appeals for the Second Circuit put it in FEC v. CLITRIM-- one of the innumerable federal court decisions striking down various speech regulation schemes put forward by the Federal Election Commission--``the right to speak out at election time is one of the most zealously protected under the Constitution.'' Protect the Dimwits? We are told that ads and voters guides put out by citizens' groups influence elections''--but just what does that mean? After all, none of the communications being debated--voter guides, scorecards, TV ads--can ``influence elections'' at all, except to the extent that they are given weight by registered voters. Doesn't our constitutional system of government ultimately rest on the general premise that these people--grownups, American citizens--should be allowed to sort out the competing political messages (including those presented by the news media) without government-imposed filters or government-imposed counterspeech? Restrictions on speech such as those contained in the McCain-Feingold bill seem to grow out of a ``protect-the- dimwits'' mindset--a usually unspoken premise among many members of certain political and media elites that we need laws to protect the poor perplexed voters from being manipulated by independent political voices. For example: in an August 19 interview on CNN, Alan Baron, chief Democratic counsel for the campaign finance investigation of Sen. Fred Thompson's Governmental Affairs Committee, suggested that there is something improper or illicit about the voter guides that the Christian Coalition distributes by the millions. These leaflets typically summarize the positions of two or more candidates on from five to fifteen issues. These voter guides ``are manipulated,'' Mr. Baron complained. ``Certain issues are emphasized in one election and then deemphasized in another election. They are clearly intended--based on everything I have discovered about them-- they are intended to manipulate the voter into voting a certain way, usually for very conservative Republican candidates.'' (This is pretty sinister stuff--``manipulating'' voters into looking more favorably on certain types of candidates by talking about their positions on certain issues and not other issues. What will happen if the AFL-CIO, Handgun Control, the Sierra Club, and the National Abortion and Reproductive Rights Action League--or, for that matter, the League of Women Voters--find out about this trick?) Clearly, in Mr. Baron's eyes, the Christian Coalition voter guides ``in context can have no reasonable meaning other than to urge the election or defeat of one or more clearly identified candidates,'' and are deficient in maintaining the proper ``educational manner'' that would be required by law under the McCain-Feingold bill. But mind you, when Mr. Baron says that the Christian Coalition's voter guides ``manipulate voters,'' he does not mean sophisticated voters such as himself. No, if a smart Washington insider like Mr. Baron received a Christian Coalition voter guide, he would decide whether or not the issues discussed were the issues he considered salient, compare the information presented there to the information available from other sources, and reach his own judgment. But there are so many other voters out there in the hinterlands who Mr. Baron knows lack his powers of discernment, and it is they who are in need of the speech nannies that McCain-Feingold would provide. This is a very steep and slippery slope. Those who hold or seek office are human, which means they don't like to be criticized. If speech-regulating legislators can get the courts to back off and use legal restrictions to reduce the amount of unpleasant stimuli to which they are subjected--and be applauded for their unselfish ``reform'' efforts to boot-- we can expect that the scope and duration such restrictions will rapidly expand in all directions. For example, Congressman Sam Farr (D-Ca.), author of the ``campaign reform'' bill sponsored by the House Democratic leadership, wrote that ``material that is written in such a way that the recipient is left with the clear impression that the material advocates support or defeat of a particular political candidate or party--even without naming that candidate or party--would constitute express advocacy and would fall under the scope of campaign expenditure laws.` (emphasis added) In the same vein, Senator Max Cleland (D-Ga.) recently complained to the Associated Press about what he call ``independent expenditure'' ads on TV that asked his constituents to urge him to vote for the Partial-Birth Abortion Ban Act, shortly before the Senate passed the bill on May 20. (He didn't.) These ads demonstrated the need for ``campaign reform'' legislation such as the McCain-Feingold bill, Sen. Cleland fumed. Sen. Cleland is not up for re- election for 5\1/2\ years. On ABC This Week for September 28, George Will asked Democratic National Committee General Chairman Roy Romer if the National Right to Life Committee should be able to buy pre-election newspaper ads that decry partial-birth abortions, if the ads do not name a candidate. The Colorado governor replied, ``I think you ought to separate that from the time of the election. You've got twelve months during a year.'' Only when challenged by an incredulous Will did Romer graciously allow that ``if it doesn't mention the candidate's name, you could probably leave it unregulated.'' Rather than go down this path, we should heed the words of the Supreme Court in Buckley v. Valeo: ``In the free society ordained by our Constitution it is not the government, but the people--individually as citizens and candidates and collectively as associations and political committees--who must retain control over the quantity and range of debate on public issues in a political campaign.'' In other words, let's respect our elected officials and the demanding offices that they hold. But let's not be such dimwits that we allow them to start telling us when, how, or how much we can talk about their voting records.

Mr. DeLAY

Mr. DeLAY. Mr. Speaker, until recently, the computer services industry, an engine of economic growth and job creation in the United States, has remained unbridled by the government. But that all changed when the Clinton Justice Department decided that Microsoft--a company whose innovations have made the personal computer the modern personal productivity tool--that Microsoft is harmful to the U.S. economy and must therefore be regulated. The computer software industry has doubled its number of employees in the last eight years. It is growing at 2\1/2\ times the rate of the U.S. economy. And it consistently delivers consumers more innovative products at lower prices. But despite these facts, the U.S. Department of Justice insists that the industry is not competitive. Instead, the DOJ suggests that Microsoft, a company at the center of all that job creation and economic growth, should be regulated. That's right. The problem with the computer services industry, insists the Clinton Justice department, is that the government needs to be more involved. Isn't this the president who told us the era of big government is over? When government starts defining for our nation's fastest growing industry which innovations will be legal, which will be illegal, what can be given away for free and what cannot--well, I say that that is the definition of big government. Mr. Speaker, every industry the government has ever tried to manage has suffered because of it. The free market works. And I defy any member to name just one industry--just one--that has generated as much economic growth and good-paying jobs as the computer services industry has, that was improved when government lawyers decided to regulate it. Apparently the American people understand this better than the Justice Department. They understand that the way to ensure competition is to let consumers and the market decide, not government regulators. They understand that Microsoft is an agent of economic growth, not an obstacle to it. And the American people understand that Microsoft's success has helped establish the U.S. as the worldwide leader in the computer and software industries. I, for one, do not believe we should sacrifice this world leadership on the altar of government regulation just because the Clinton Justice Department thinks consumers are incapable of making intelligent market choices. Computers and software are big markets, and each new technological innovation opens up vast economic opportunities for the companies that have the wisdom and creativity to take advantage of them. The market does not guarantee equal outcomes, and the government should not come to the aid of businesses that didn't make smart choices. The Department of Justice should take that to heart. And the software companies supporting the DOJ's suit against Microsoft should consider the chilling prospect that tomorrow it could very well be they who the government next decides to regulate. The bottom line is that most software companies would gladly trade places with Microsoft. It's a great company that has been innovative, improved its products, been aggressive, and reaped the rewards of market success. The place for companies to compete with Microsoft, however, is in the marketplace, where consumers will let the competitors know whose products they like and what innovations they want to see. But for the government to choose sides in a highly competitive industry is not only unfair, it's not necessary. If Microsoft is to fail, it should be because it failed to innovate, not because its innovations were outlawed by the Clinton Justice Department.

Mr. DeLAY

Mr. DeLAY. Mr. Speaker, only the Democrats would call this budget extremist. Only the Democrats would say taking 1 percent out of a $9 trillion spending spree by this government actually designed by them is extremist, one penny out of $1. The Kasich budget is a common sense document that mandates a smarter, more efficient government. It says that we in Washington should spend a little less so that the American working family can spend a little more to help them achieve their dreams. Some Democrats find this burden to be unbearable. They say that we will not be able to find the savings. They say that we are extremist. They say we should not give working families tax relief. I urge the opponents of this budget to justify their opposition to the American people. Tell them that you cannot save a penny on the dollar. Tell them that they do not deserve tax relief today. I urge my colleagues to support the common sense budget.

Mr. DeLAY

Mr. DeLAY. Mr. Chairman, a diverse coalition of citizens groups ranging from the American Civil Liberties Union (ACLU) to the National Right to Life (NRLC) have demonstrated that the Shays/Meehan and the Hutchinson campaign reform bills are nothing short of attacks on freedom of speech. I hope my colleagues will take some time to read the following analysis distributed by National Right to Life Committee. The NRLC correctly points out that these two bills contain patently unconstitutional government regulations that should not be supported by the House of Representatives. The Shays-Meehan Bill's Year-Round Restrictions on First Amendment Rights The most recent version of the Shays-Meehan bill (H.R. 3526) is taken from the September 29, 1997 version of the Senate McCain-Feingold bill. This bill contains multiple provisions that blatantly violate the Supreme Court's long- established First Amendment rulings. In Buckley v. Valeo (1976) and later cases, the Court has emphatically held that the government may not regulate commentary on politicians except for ``express advocacy,'' a term that the Court has said must be confined to communications that use explicit words to expressly urge a vote for or against an identified candidate. As the Court stated in Buckley, ``So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate [i.e., ``express advocacy''], they are free to spend as much as they want to promote the candidate and his views.'' Such constitutionally protected commentary on politicians' positions is referred to by the legal term of art issue advocacy. This memo summarizes multiple provisions of the Shays-Meehan bill that infringe on such constitutionally protected speech.\1\ --------------------------------------------------------------------------- \1\ For a fuller analysis of this bill, see NRLC's memo, ``An Analysis of the Speech-Restriction Provisions of the Shays- Meehan Bill (H.R. 3526).'' For an examination of statements by advocates of the bill, and their implications, see ``Do American Voters Need Speech Nannies?'' by NRLC Legislative Director Douglas Johnson (Sept. 30, 1997), available at www.nrlc.org/dimwit.html. --------------------------------------------------------------------------- year-round restrictions on constitutionally protected speech 1. The bill would redefine illegal corporate campaign activity so broadly that, at any time of any year, a non-PAC incorporated organization would risk being the target of a complaint to the Federal Election Commission (FEC), alleging illegal corporate campaign expenditures, and subsequent costly investigation and litigation, any time it issues a print, broadcast, or other type of communication to the public that mentions the name of a Member of Congress (or other candidate) with any sort of explicit or implicit viewpoint regarding the rightness or wrongness of that politician's position. This is because any such commentary could be viewed by some politician or regulator as constituting ``unmistakable and unambiguous support for or opposition to'' a candidate, which the bill would redefine as ``express advocacy.'' (Section 201) For example, if NRLC distributed a brochure that contained a description of partial-birth abortion, followed by the simple statement, ``On May 20, 1997, Senator Russ Feingold voted against banning the brutal partial-birth abortion procedure,'' NRLC would risk being subjected to investigation and prosecution for engaging in speech that expressed ``unmistakable . . . opposition'' to Senator Feingold. 2. Moreover, if a non-PAC organization is deemed to have established ``coordination'' with a lawmaker or other ``candidate'' (even by sharing a vendor--see #4 below), it would be banned (at any time of any year) from issuing any communication to the public that names that ``candidate'' and ``is for the purpose of influencing a Federal election.'' This is an extremely vague and sweeping restriction that applies, as the bill says, ``regardless of whether the communication is express advocacy.'' (See Section 201, definition of ``expenditure.'') 3. In addition, under Section 205, at any time of any year, a non-PAC incorporated citizen group, if it has established ``coordination'' (see #4 below), is prohibited from issuing any communication to the public that is ``of value'' to a candidate, ``regardless of whether the value being provided is a communication that is express advocacy.'' Such a communication is prohibited, as an illegal campaign ``contribution,'' even if the communication contains the name of no candidate. This could apply, for example, to an ad in a newspaper that mentions the name of no politician, but that calls for a ban on partial-birth abortions, if a politician complains that the ad was ``of value'' to a political opponent who opposes partial-birth abortion. definition of ``coordination'' places unconstitutional restrictions on lobbying activities and issue advocacy 4. The restrictions described in items #2 and #3 above apply to any group that is deemed to have established ``coordination'' with a candidate. The bill (Section 205) vastly expands the current definition of ``coordination,'' in 10 separate clauses, so that an organization that communicates with members of Congress regarding public policy matters would be at constant risk of falling over these ``coordination'' tripwires. For example: Many public policy organizations gather information on the positions of members of Congress on certain issues through use of a written questionnaire, and then disseminate that information in communications to the pubic. But the submission and return of such a questionnaire, with intent to publicize the information obtained, would fall under one of Section 205's multiple definitions of ``coordination''--that is, a communication based on a ``general or particular understanding with a candidate''--and therefore would be an illegal corporate campaign expenditure. Another provision, declaring that an organization is ``coordinated'' if it has engaged in ``policymaking discussions'' with a ``candidate's campaign,'' could apply to routine attempts by public policy groups to persuade lawmakers of the merits of the organization's positions (i.e., lobbying). Another provision would define ``coordination'' as the mere sharing of a single professional vendor (a printer, artist, or pollster, for example), during a two-year period, with a congressional candidate. the first amendment does not allow lawmakers to prohibit non-PAC groups from mentioning their names 5. In addition to the restrictions described above, within 60 days of a congressional primary election (which occur as early as March 1) or a general election, Section 201 places an absolute ban on any non-PAC group broadcasting a communication that even mentions the name of a ``candidate,'' which includes all incumbent members of Congress. This provision does not only require ``disclosure'' of funding sources for such communications. Rather, it bans the naming of politicians in broadcast communications to the public, unless they are conducted under the entire panoply of restrictions that apply to PACs--in other words, only federal PACs are permitted to sponsor such ``politician-mentioning'' communications. This ban would apply even to ads alerting citizens to upcoming votes in Congress. [For further discussion of the implications of allowing only PACs to sponsor politician-mentioning communications, see the NRLC memorandum, ``An Analysis of the Speech-Restrictive Provisions of the Shays-Meehan Bill (HR 3526).''] the first amendment does not permit lawmakers to dictate ``speech specifications'' for discussion of their voting records 6. Sponsors of the bill make much of a so-called ``exception'' (in Section 201) for printed material about voting records and positions. But legal analysis of the so-called ``exception'' reveals that it actually underscores the sweeping restrictions implicit in the underlying definitions. The ``exception'' would not allow, but rather effectively defines as illegal corporate campaign expenditures and thereby bans (to non-PACs), at any time of any year, any printed materials (such as typical ``scorecards'' and voter guides) that fail to conform to a series of ``speech specifications.'' For example, to qualify for the ``exception'' a publication must be confined ``solely'' to information regarding votes or positions, and must be presented ``in an educational manner''--in other words, interpretation or commentary would be verboten. Even if these requirements are met, the ``exception'' explicitly excludes publications that discuss the position on only one ``candidate''--for example, a newspaper ad that urges letters and calls to a single local congressman about an upcoming vote in Congress. But under the First Amendment, Congress has no authority whatever to impose such restrictions on the right of citizen groups to disseminate and comment on lawmakers' voting records or upcoming votes. ``soft money'' ban unconstitutionally nullifies the right of political parties to engage in unrationed issue advocacy 7. The bill (Section 101) completely prohibits organs of the national political parties from receiving so-called ``soft money''--a term that really refers to all funds that are not rationed and controlled by the Federal Election Campaign Act (FECA). This is unconstitutional. Under rulings of the U.S. Supreme Court, the First Amendment protects the right of political parties to sponsor communications that discuss issues, or the positions of officeholders or officeseekers on those issues (``issue advocacy''), without being subjected to the rationing laws that the FECA applies to communications that contain explicit endorsements of candidates (``express advocacy''). The bill would effectively nullify political parties' First Amendment right to engage in issue advocacy, by requiring that all party ads be conducted under the restrictions that currently apply only to express advocacy communications (since the parties would be prohibited from raising any money that did not conform to those restrictions). If ``reform'' advocates successfully obliterate the distinction between issue advocacy and express advocacy with respect to political parties, they will then redouble their attacks on issue advocacy by citizen groups such as NRLC. Those who support free speech about political figures should oppose all restrictions on issue advocacy, whether engaged in by political parties, citizen groups, or others.

Mr. DeLAY

Mr. DeLAY. Mr. Speaker, I appreciate the chairman yielding, and I ran up here to answer the question why we are doing this. In my mind, and from my perspective, because I have one of the resolutions in this rule, the reason we are doing this is this has been 4\1/2\, almost 5 years; 4\1/2\, almost 5 years of the American people not being able to get to the truth. And the reason they have not been able to get to the truth is that the President of the United States has used executive privilege. He has hidden behind his lawyers, he has hidden behind the courts, he has hidden behind hiding documents, documents are slow to come, they are redacted when they come, time and time again. We know what the strategy here is, and the strategy is to get past the next election. And now we find, if we look at what has happened in the other body and what has happened in this body, some in the party on the other side of the aisle are participating in this process of dragging their feet, using procedures to hide behind, to make sure that the American people do not get to the truth. It is time. It is about time that this House starts debating and looking at what has been going on for 4\1/2\ years, and that is the reason that we brought this rule to the floor, and that is the reason that I want to present my resolution to the body.

Mr. DeLAY

Mr. DeLAY. Mr. Speaker, I yield myself such time as I may consume. This is amazing, it is just amazing. The display of objections to the people's right to know the truth and the President's right to claim executive privilege that has been interpreted by the courts and not revealed any documents. But so be it. The real intent of my resolution is to try to get the President of the United States to reveal information that has been withheld for all of these 4\1/2\ years in some cases, and information that the President is claiming executive privilege for. The gentleman cited all of these claims by other Presidents. Not one of those cites that the gentleman listed has anything to do with claims of executive privilege involving allegations and information given to a grand jury on information of personal wrongdoing and possible crimes in the White House, not one of them. This President is only the second President after Nixon in the entire history of the country that has made those kinds of claims, and yet the gentleman still supports the President. The gentleman says that the House of Representatives has no responsibility or authority to tell the courts what to do. Well, the gentleman and I have a very strong difference of opinion as to what the House of Representatives and the Congress of the United States is, its standing in the country, and particularly, its standing relative to the judiciary branch. We are not a sub-branch of the judiciary. Now, for years, almost 40 years, the majority of this House has allowed the judiciary to rule law across this country and this body has not asserted itself. But now, under a new majority, we think we hold an equal standing with the judiciary that the Constitution gives us every opportunity to send messages to the judiciary and indeed, this week, this House overwhelmingly voted to limit the jurisdiction of the judiciary when it came to early release of convicts for the reason of prison overcrowding. Now, the gentleman must believe that we are subservient to the judiciary, but I do not, and this resolution is the sense of Congress that says such, and we are sending a message to the appeals courts that are hearing the case of this President of the United States bringing executive privilege. Congress, under the Constitution, has about as much right and duty to address the issues of constitutional import as any other branch. Congress considers issues every day that implicate the Constitution. The courts are the final decisionmakers, as we learned in Marbury v. Madison. However, the court considers the views of coordinate branches, equal branches of government. This resolution merely says that the President's reasons for asserting executive privilege should be made public. If the President wanted to talk, he should not hide behind the courts. That is the truth of what is going on here. The D.C. Circuit Court of Appeals and the Supreme Court should know that this House believes that court proceedings regarding executive privilege should be open to the public, and we are going to take a vote in a moment to express ourselves to those courts. But the bottom line here, Mr. Speaker, is we should not participate in strategies of stonewalling or keeping the American people away from the truth. The bottom line of what we are trying to do here is the fact that the American people have the right to know the truth and we are calling on the President of the United States to tell the American people the truth, and I urge adoption of my resolution.

Mr. DeLAY. Mr. Speaker, I ask unanimous consent to add at the end of the resolving clause an amendment prepared by the gentleman from Colorado that states, ``Such public disclosure shall not extend to legitimate national security information.''

Mr. DeLAY. Mr. Speaker, I have no other speakers, and I reserve the right to close. Request To Amend House Resolution 432 Offered by Mr. DeLay