Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. I certainly want the Record to note I had no objection to the Senator from Kentucky speaking, as long as it did not come out of our time. In fact, I was happy to give additional time. I want to make a comment or two about what he is talking about because he is launching, apparently, an attack on people who signed the letter, 127 constitutional scholars. Apparently there is a problem. One of the men who wrote an article about NAFTA--I do not know what it has to do with his ability to comment on this. I am surprised to hear Senator McConnell say some of this. Back when we presented this letter, he said he could easily come up with 127 scholars on his own who would say banning soft money is unconstitutional. He has not done that, and it has been a long time since that time, and I frankly doubt he ever will. Anyone who knows anything about the law and the legal academy would agree that instead of picking individual people out of this list and attacking them personally, they would have to concede that many of the people on the list are very distinguished law professors. Professor Erwin Chemerinsky of the University of Southern California Law Center, Professor Jack Balkin of Yale Law School, Professor Frank Michelman of Harvard Law School, and Professor Norman Dorsen of NYU Law School know something about the law. In fact, they know more than just about anybody in this body. The executive director and the legal director of the ACLU says a ban on soft money is constitutional. Of course, the ultimate arbiter, the Supreme Court, said in the Buckley case that individual contributions can be limited and, in the Austin case, that corporate contributions can be prohibited. If Senator McConnell does not believe these authorities, he should, again, consult with the Senator from Washington, Mr. Gorton, one of his strongest supporters on the floor in opposing reform, who has essentially conceded that banning party soft money would likely be found constitutional. This notion that the Senator from Kentucky could easily come up with his list of constitutional scholars which we have never seen is a ploy that I, frankly, do not understand. Where is the list? Instead, he wants to pick apart one or two people on the list. I question that. These folks gave it their best shot and indicated what everybody concludes with any credibility on this subject, and that is that it is perfectly constitutional to ban soft money. Mr. President, I reserve the remainder of my time, and I suggest the absence of a quorum.

Mr. FEINGOLD. How much time remains?

Mr. FEINGOLD. I will be happy to yield time to the Senator from Kentucky.

Mr. FEINGOLD. I understand the opponents' time is gone.

Mr. FEINGOLD. Mr. President, it has only been the first day of debate on this issue. I do note a marked shift in the strategy of our opponents. They are not talking so much about how the first amendment to the United States Constitution Bill of Rights would be violated by our version of the bill, the soft money prohibition. There have been a few comments, but this has not been the main thrust. There is a good reason for it. That is because there is not a credible case that can be made that banning soft money contributions to the political parties is unconstitutional. I think it is useful at this time to lay out a few of the reasons why this is the case, so no one can be confused by the desperate attempt that has been made to label any attempt at campaign finance reform, regardless of what its provisions might be, as unconstitutional. It has become a mantra, a standard line, but it does not hold water regarding the bill before us. The first proposition is very straightforward and that is that Congress can prohibit corporate and labor contributions. Congress prohibited the contributions by corporations in 1907 in the Tillman Act, and then in 1947 it prohibited the same kinds of contributions by unions under the Taft-Hartley Act. The courts have recognized that corporate treasury money can amount to an undue influence or an unfair advantage. That is why in a couple of key cases the courts have so ruled. In Massachusetts, Citizen For Life v. FEC, 1984, for example, they stated: Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace. Political ``free trade'' does not necessarily require that all who participate in the political marketplace do so with exactly equal resources. Relative availability of funds is after all a rough barometer of public support. The resources in the treasury of a business corporation, however, are not an indication of popular support for the corporation's political ideas. They reflect instead [the court said] the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas. Then, after making that very clear with regard to the ability of restricting direct corporate contributions, the Austin case made it clear and affirmed this decision, saying: We therefore have recognized that ``the compelling governmental interest in preventing corruption support[s] the restriction of the influence of political war chests funneled through the corporate form.'' It is clear law, indisputable law, that Congress can prohibit corporate and labor direct contributions to candidates or to the political parties. Furthermore, so there is no confusion because there was a lot of talk today about somehow we have to demonstrate actual corruption in each instance before we can do something about it, that is not the law with regard to our ability to limit individual contributions. The Court has been clear that we can limit individual contributions either in the case of actual corruption, the reality of corruption, or the appearance of corruption. This is the system that was validated in the most significant ruling of many decades in the area of campaign finance reform, Buckley v. Valeo, 1974. Let me put some of the language in the Record from that decision that supports that. The court said: By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributors' ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but [the court said, that it] does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. Later in the decision the court continued: It is unnecessary to look beyond the Act's primary purpose to limit the actuality and appearance of corruption regarding from large financial contributions--in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. The Court then said: To the extent large contributions are given to security political quid pro quo's from current and potential office holders, the integrity of our system of representative democracy is undermined. That had to do with the quid pro quos. And then the Court continued: Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. The Buckley case makes it clear you can limit the individual contributions. The Court said: We find that, under the rigorous standard review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling. So these are the court cases. If you do not believe my word on it alone, I suggest one take a look at the letter we have from 126 legal scholars, constitutional scholars around the country who say specifically that it is entirely constitutional to ban soft money given to the parties. These scholars wrote as a group in a letter: We believe that such restrictions are constitutional. The soft money loophole has raised the specter of corruption stemming from large contributions (and those from prohibited sources) that led Congress to enact the federal contribution limits in the first place. In Buckley v. Valeo, the Supreme Court held that the government has a compelling interest in combating the appearance and reality of corruption, an interest that justifies restricting large campaign contributions in Federal elections. . . . Significantly, the Court upheld the $25,000 annual limit on an individual's total contributions in connection with federal elections. And so on. Mr. President, 126 constitutional scholars have backed up this almost obvious notion we can ban the soft money given to the political parties. I might add, since the Senator from Kentucky is fond of quoting the ACLU as one of his allies on this issue, in fact, every living former president, executive director, and legal director of the ACLU all think that it is perfectly constitutional to ban soft money. Finally, if you do not believe any of those folks, I hope you would believe the Senator from Washington, one of the strongest opponents of our bill. Senator Gorton, on this floor, in a candid moment, said: In fact, with my own views on where the constitutional line is likely to be drawn, McCain-Feingold restrictions on money to political parties might well be upheld, probably would be upheld, at least in part. It is possible that they would be upheld in their entirety. So even one of our most learned and effective opponents on this issue, Senator Gorton, has said on this floor that it is perfectly constitutional to ban soft money. That is why you are not hearing much about the constitutional problems in this bill, as you did last year. I think some of those arguments weren't too strong, but they certainly were stronger. This bill would pass constitutional muster quite easily. I believe there is no legitimate authority to contradict that. I believe it is important to have this in the Record. Perhaps this will be returned to later on, as an argument. I have noticed a strong diminution in the reliance on the constitutional argument. There are other arguments being made: That somehow this is a dagger to the heart of one party or another; the attempt to have Senator McCain answer very specific questions about comments he made in his Presidential campaign. The opposition seems very diffused on this point on a number of issues, but the constitutional question is not being very effectively or seriously raised. Mr. President, I suggest that is because there is no legitimate constitutional argument against what we are trying to do. I yield the floor and reserve the remainder of my time.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I certainly agree with the Senator's suggestion of how we are going to proceed. And to reiterate, when I started on the floor on May 20, 1999 and talked about various changes in the mining law that were prevented under the emergency supplemental appropriations conference report, as the Senate suggested, I was not talking about a particular contribution to any particular Member. It was a process with many factors. One of the factors was the $10.6 million the mining interests gave over a 6-year period. To me, that is of such a high level that it raises an appearance of corruption. I think that is exactly what the Senator from Arizona is getting at, and exactly what he was trying to do in the case before us. Mr. President, I yield the floor.

Mr. FEINGOLD. Again, I do not know the specifics of the case the Senator is discussing. Obviously, given the issue we are raising about soft money, the strongest case is made if you demonstrate large soft money contributions. That is most likely to lead to an appearance of corruption.

Mr. FEINGOLD. I simply cannot say for the general public on that particular example how they would react. That is not my role. My job as a representative is to react to what people respond to when you point out various things that have been done. I do not know what the response would be to the particular incident. Some people might, obviously, as you say, think you were successful in doing something for your constituents. I know from my own experience as a Senator that you have to be very careful about the appearance as you move forward with something, not for purposes of our debate but for purposes of how it might look to your constituents. So you look to your constituents and you look to your sense of what people are feeling about the system for an answer to your question. In answer to your question, there is no automatic connection between every time a Senator does something for an interest and corruption--of course not--or the appearance of corruption. But the question is, How do the American people feel about the process? What I am saying is, what this debate is about, because we got into the issue of soft money, is whether there is a level of contribution, whether the dollars get so high that the Supreme Court's language of it being inherently appearing corrupt comes into play. I suggest when you get into high numbers of contributions, you cannot avoid the appearance of corruption. You may avoid actual corruption, but you cannot avoid the appearance of corruption when we increasingly have the reality of people giving $500,000 apiece.

Mr. FEINGOLD. As I said earlier, it is perfectly possible on an occasion that the kind of procedure the Senator has talked about could give rise to an appearance of corruption. It is not something one can sort of determine by a series of court rulings. The question is, Do we as legislators find that our constituents see that sort of thing as appearing corrupt and, therefore, do we legislate a response to it? That is the standard for legislatures, not the standard for the court which is trying to convict someone of a crime.

Mr. FEINGOLD. Let me ask, in response, when you became aware of the allegation against yourself?

Mr. FEINGOLD. Will the Senator yield for a question?

Mr. FEINGOLD. Yes. On the 16 occasions I came to the floor and read out these contributions, I was careful to identify both sides. In my opening statement, I identified not only groups that would be more likely to support Republicans but Democrats, and in every instance I am referring to an appearance of corruption that the American people may see in looking at this. I am not making any allegation of illegality. But the issue here is the appearance of corruption under Buckley v. Valeo.

Mr. FEINGOLD. I believe it was the Republican Senate campaign committee----

Mr. FEINGOLD. I do not think it is possible for anyone to determine for everyone else what an appearance of corruption is. It is our responsibility as a legislative body to look at the total record of what is going on in our campaign finance system and to determine whether the American people believe the various things we do have an appearance of corruption and whether there is a remedy for it. I do not think it has anything to do with any particular part of the process. I think any part of the process can be perfectly clean at any point, but if there is an abuse at some point, a very large contribution at the wrong time, it is not about whether technically it is legal. It is about whether a large body of the American people would consider--for example, a $200,000 contribution given 2 days after the House marked up a bankruptcy bill by MBNA. OK, it is not illegal. Conceded. Maybe it is not even corrupt, but it certainly has an appearance of corruption to me and I think to many people. That would be a concrete example of where the appearance of corruption may occur.

Mr. FEINGOLD. What is it again? I did not hear the question.

Mr. FEINGOLD. I will in a moment. I want to make a few comments because it was very difficult to get the floor, given the method of recognition used this morning. But the irony of this amendment, even though it certainly is acceptable, is that the corruption that is so evident is evident as a moral matter; it is a matter of governance. It is not recognized by the current law--except perhaps in cases I don't know about--as actual legal violation or a crime. The corruption our bill seeks to ban now is perfectly legal. That is the point. It is perfectly legal and it would not be reached as a legal matter by this amendment. This amendment would not reach the kind of soft money contribution we are talking about. The Senator from Kentucky knows this very well and almost revels in the loophole that would swallow the law. It is very important to recognize because I hope someday this gets before the U.S. Supreme Court. The Senator from New York said: Well, we already have a record of at least the appearance of corruption as provided by the Senator from Utah. Remember, our bill doesn't just affect congressional soft money; it also affects money used in Presidential elections, and thanks to the Senator from Utah, we now have on the record for the Justices to examine, his conclusion--which I believe is a fair statement--that you at least believe there was an appearance of corruption with regard to the Mr. Tamraz situation and the Indian tribe situation. I have to tell you, when I saw the TV show about the contributions with regard to the Indian tribe, it was one of the saddest things I have ever seen. Just as a citizen of this country, not as a Senator, if that didn't have the appearance of corruption, I don't know what would. To suggest there is a connection between soft money and an appearance of corruption is very legitimate, and I thank the Senator from Utah for putting on the record three examples of what I think easily qualify as appearances of corruption. Certainly, the American people regard it as the appearance of corruption. That is the standard. The standard is not what the Senator from Kentucky is trying to make the standard, that we have to walk in here with documented corruption that is tantamount to bribery. There are laws on the books for that. The whole point is these practices are perfectly legal and nobody should be in trouble under the law for doing something that is perfectly legal. Let me read from Buckley v. Valeo because this is the central confusion on this whole debate this morning, that somehow the standard is that Senator McCain or I or somebody else has to walk in here with evidence of corruption. In fact, it would probably be a violation of rule XIX of the Senate if we did. But that is not even our point. It doesn't have to do with individual Members of the Senate; certainly not anything I have tried to do. Let me read from what the Court said. The Court specifically pointed out that you don't have to prove bribery in order to have a justification for some kind of limits on campaign contributions. The Court said: Laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure and that contribution ceilings were a necessary legislative concomitant to deal with the reality or the appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed. This is where the Senator from Kentucky is not properly stating what the Court asked for. The Court does not say it must be only the reality of corruption. The Court says it may be the appearance of corruption, and that is often going to be in the eyes of the beholder. And Senators can disagree about what is the appearance of corruption and can amass evidence for the record of what may be the appearance of corruption, and that is what I have done by my calling of the bankroll and nobody objected for 14 times when I pointed out what appears to be a corrupting influence of multihundred-thousand-dollar contributions. It is not only the appearance of corruption, but that this is inherent, according to the Supreme Court, it is of the nature of large contributions. So this bar that the opponents of reform raise for us, that somehow we have to come in here with a pile of evidence of what everybody knows is true; that is, that soft money has a very inappropriate influence on our legislative process--I reiterate, not an illegal influence. That is why we need a law. That is why we are here. We need to make these kinds of unlimited contributions clearly illegal once again. Mr. President, I certainly have no problem with accepting the amendment, having had the opportunity to express my view that this debate, thus far, was not directly related to the issue of soft money. But I will be happy to yield for a question from the Senator from Utah.

Mr. FEINGOLD. I thank the Senator from Arizona for his question. I certainly do agree with it. I appreciate the way he said it. I think we all agreed early on we would easily accept an amendment such as this. I want to make a couple of comments before we go forward with it. I think a serious omission has been made in this conversation about what the standard is with regard to corruption. The Supreme Court in Buckley v. Valeo did not just speak of corruption, which is the standard the Senator from Kentucky insists on. It also clearly refers to the appearance of corruption. So any suggestion that we have to demonstrate in this case or that case that there is actual corruption flies directly in the face of what the law of the land is under Buckley v. Valeo. So there is not a problem with the amendment itself. I question how much it has to do with the debate before us. I think it is irrelevant unless the Senator from Kentucky believes we do not have bribery laws, but I don't see any problem with it.

Mr. FEINGOLD. Yes.

Mr. FEINGOLD. Mr. President, I thank the Senator from Kentucky.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. FEINGOLD. I don't believe one Senator can ever yield the floor to another Senator.

Mr. FEINGOLD. I wonder how a Senator can ask another Senator to yield the floor.

Mr. FEINGOLD. Mr. President, I ask the Chair, who has the floor?