John McCain

Mr. McCAIN

Mr. McCAIN. I will be glad to yield to the Senator.

Mr. McCAIN. I say to my friend, it is very clear he is not developing these weapons for defensive purposes. He has used them twice--once against his own people, once against troops of a neighboring country in a conflict. The fundamental point that seems to be lost in this debate sometimes is at any time in the last 11 years, Saddam Hussein could have avoided any threat to Saddam Hussein's illegitimate, terrible regime. It is a terrible and odious regime, but there are lots of bad guys around the world. He could have eliminated any threat if he had just come clean, taken out these weapons of mass destruction, taken out the laboratories, stopped, allowed the inspectors in, so he must have some other agenda. The longer we delay when he is in noncompliance, the more dangerous that threat becomes. There was no contradiction, in my view, of the comments of the Director of the CIA that were widely quoted in the media this morning. I can understand, by the way, without knowledge of Saddam Hussein, without the background we have of his record, without the knowledge of what he has tried to do over the last 11 years, why those comments might be misconstrued. But taken in the context of the history of this despot, I think it is very clear that if he fails to comply--and we are going to the United Nations and there will be a Security Council resolution or resolutions--then obviously the longer we delay, if he continues on this reckless path, the more dangerous it becomes and, frankly, the more casualties accrue, in response to the Senator from West Virginia. I wish to make another comment about this debate. There is no Member of this body who has any priority or any franchise on the lives of American young men and women. All of us place that as our highest priority. All of us recognize the sacred obligation we have when we vote to send young men and women into harm's way, and no one's motives should be or will be impugned in this debate. I think it is important for the Senator from West Virginia to appreciate that I and others will object to any unanimous consent agreement that would delay a cloture vote tomorrow morning. We believe the American people have been informed, and the Members of this body have been informed. As the Senator from Virginia said, Friday we had debate, and we will, according to the majority leader, stay as late or as long as anybody in this body wants to talk or debate or discuss. With all due respect to the Senator from West Virginia, we will object. Mr. President, we are trying to dispose of 13 amendments. Obviously, people want to speak. I respect that, but I do feel compelled to comment on the amendment of the Senator from West Virginia briefly.

Mr. McCAIN. I object.

Mr. McCAIN. I will be glad to yield to the Senator from Connecticut.

Mr. McCAIN. Mr. President, I do not want to go through the whole debate again, but here is the point. Saddam Hussein continues to acquire, amass, and improve on his arsenal of weapons of mass destruction. He continues to attempt to acquire a nuclear weapon. These are all well-known facts. So if you believe that Saddam Hussein, after we go through this expression of approval, national debate, Security Council resolutions, is not going to abandon his request for his weapons, then the longer we wait, the more dangerous he becomes. In other words, if we attack Iraq tomorrow--and that is not clear yet; we have Security Council resolutions to go through--perhaps Saddam Hussein in his desperation may want to use a weapon of mass destruction, but if Saddam Hussein does not comply and continues the clear record of violations he has amassed over the last 11 years, then if we have to remove these weapons of mass destruction, each day that goes by he becomes more dangerous, his capabilities become better, and, in the case of nuclear weapons, it is not a question of whether, it is a question of when. Experts will debate whether it is 2 years when he acquires these weapons, whether it is 5 years, 7 years, 10 years, but there is no doubt over time he will acquire a nuclear weapon. Why do I mention a nuclear weapon? We have equipment that can protect our men and women in the military against biological and chemical attack. It is tough to fight, it is bulky equipment, but we do have that equipment. We have not invented any equipment yet that can protect our troops from a nuclear weapon.

Mr. McCAIN. I would ask my colleagues, please, let's observe the rules of the Senate.

Mr. McCAIN. Mr. President, a lot of ground was covered in the time between the last vote and the time that I have been recognized, not necessarily in a structured fashion. I want to respond to some of the questions and comments that were made. First of all, very importantly, the Senator from West Virginia made an impassioned plea that we not vote for cloture, not move forward with the disposition of this resolution supporting the President of the United States of America to take action, if necessary, to bring about an elimination of the threat to the U.S. national security. I think it is worthy of a couple of observations, Mr. President. One is, in the recent past the Foreign Relations Committee has held numerous hearings and the Armed Services Committee has held numerous hearings. In reality, though, this issue has been with us for 11 years, and it is not possible to turn on your television set without seeing a discussion and debate over this issue. The night before last, the President of the United States spoke to the people of this country on this issue. Debate is taking place in the U.N. There are discussions in the U.N. Security Council as we speak. This issue, more than any other today, is known to the American people. As we, their representatives, debate and discuss it, it is to further inform them; but they are clearly aware of the major aspects of this issue. Since the year 1992, we have begun to be aware that Saddam Hussein would not be overthrown. We became even more aware over time that he was not going to comply with the cease-fire agreements he entered into and the Security Council resolutions requiring him to allow intrusive and comprehensive weapons inspections throughout his country. His obfuscation, his delay, his outright refusal to allow these inspections culminated in 1998 in ejecting those inspectors, and that resulted in the passage of legislation on August 14, 1998, which President Clinton signed into law, S.J. Res. 54, which declared that the Government of Iraq was in material and unacceptable breach of its international obligations, and urged the President: to take appropriate action in accordance with the Constitution and relative laws of the United States to bring Iraq into compliance with its international obligations. On October 31, 1998, then-President Clinton signed into law the Iraq Liberation Act, which stated: It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a domestic government to replace that regime. That was October 31, 1998, the Iraq Liberation Act, signed into law by the President of the United States. I have to say allegations or assertions that somehow the American people are not aware of this issue just do not ring true. Anyone who believes this issue is not being debated around kitchen tables and in restaurants and other social gathering places throughout America is simply not aware of what is going on in America. Yes, they pay attention to this debate, but the issue is well known, and there is no reason why we should not invoke cloture. It was interesting to me that my colleague from Virginia mentioned we really only spent 2 days of formal debate on the floor of the Senate in 1991. The Senator from Connecticut and I were heavily involved in that debate. But the fact is, that issue was debated far and wide. By the time that vote was taken, the American people and the Members of this body were very well aware--very well aware--as to what was at stake and what, at that time, was a far more controversial issue than this one is, if you accept our predictions of an overwhelming vote. The Senator from Massachusetts asked the Senator from West Virginia if he knew about the stories carried in this morning's papers about Saddam Hussein being likely to use weapons of mass destruction if he is attacked. Mr. President, I ask unanimous consent that a statement by George Tenet be printed in the Record.

Mr. McCAIN. I will be glad to yield to the Senator from Connecticut.

Mr. McCAIN. I respond to my friend and say that, yes, if this amendment said a clear threat of imminent, sudden, or direct attack upon the Armed Forces of the United States, clearly that is the case. We saw it in the USS Cole. We saw it in the attacks on our embassies. We have seen it in many places. If there has to be a clear threat of imminent, sudden, and direct attack upon the United States, its possessions, or territories, in all due respect, I think Saddam Hussein would be very pleased if we passed this kind of resolution because that would allow him to continue to build up his inventory, to build his weapons of mass destruction, perhaps acquire a missile with sufficient range to reach the United States, and only then could we respond. That is not what I think our responsibilities and duties are to the American people. I am enjoying this debate. I think it is a good one. I look forward to hearing the next two speakers because both of them have played a very important and informative role, not only on the floor of the Senate but on talk shows and great programs throughout America, both written and in public. In fact, some of them have been accused of what I have been accused of from time to time, and that is seeking a camera, which is, of course, never true of me or my two colleagues. I certainly look forward to listening to their arguments. I think these next two speakers will contribute enormously to the debate. I think the American people, as well as our colleagues, will be better informed at the completion of their remarks. I yield back the remainder of my time.

Mr. McCAIN. Will the Senator from Nevada yield? I ask unanimous consent to speak with the Senator from Nevada.

Mr. McCAIN. Without interfering with the Senator from Tennessee, is it his predilection to continue this debate tonight until all speakers are finished, or is the desire of the majority leader and the majority whip to have a vote on the Byrd amendment, or put it off until tomorrow? We have 13 amendments pending.

Mr. McCAIN. Yes.

Mr. McCAIN. If the Senator will yield further, it is not our desire to propose a motion to table until the Senator from West Virginia has had ample time to discuss his amendment. I do not think that would be appropriate. But at some point, I hope we can reach a point where we can have a motion to table or an up-or-down vote on the amendment. For the benefit of all Senators, perhaps we can try to ascertain that.

Mr. McCAIN. If I can finish. So we will dispose of the Byrd amendment tonight, if it is agreeable with the Senator from West Virginia.

Mr. McCAIN. Yes.

Mr. McCAIN. Finally, could I ask Senator Byrd's predilections on this issue?

Mr. McCAIN. Reserving the right to object--I won't object--I wanted to take a second to thank Senator Reid for arranging the disposition of this very difficult issue in an equitable fashion to all. I thank him for a masterful job that a few hours ago did not seem likely.

Mr. McCAIN

Mr. McCAIN. Madam President, I suggest the absence of a quorum.

Mr. McCAIN. Is there a unanimous consent in effect?

Mr. McCAIN. I thank the President for informing me of what the pending business is before the Senate. I urge my colleagues to come and speak on behalf or in opposition to the Graham amendment so we can dispose of that amendment. It is my intention to move to table the Graham amendment after a reasonable length of time for my colleagues to come and speak for or against that amendment, which is my right, as is any Senator's right, but I want to make sure every Senator has the time, if they so wish, to speak on the pending business. I see my dear friend from Wisconsin in the Chamber. I know he is talking about the overall issue. We need Senators to speak on the Graham amendment. I am sure my friend from Wisconsin and my colleague from West Virginia would be glad to speak, but we need to dispose of the pending Graham amendment and move on to other amendments. I understand by 1 p.m. all amendments have to be filed. So let us move on and dispose of the Graham amendment. I yield the floor.

Mr. McCAIN. Mr. President, what is the pending business before the Senate?

Mr. McCAIN. Mr. President, I move to table the----

Mr. McCAIN

Mr. McCAIN. The Senator from Indiana indicated to me when we had discussions about this resolution, introduced by Senator Lieberman, Senator Warner, the Senator, and myself, about the fact that in his home State there is great concern about going to war. In fact, he mentioned to me that was the majority of calls and communications he had with the people of Indiana, which he was privileged to serve as Governor as well as a Senator. In other words, the Senator has a fairly good finger on the pulse of the people he represents. That skepticism was based on what concerns and what led the Senator from Indiana to conclude that it was important for him not only to support this resolution but play a role as a major sponsor of this legislation. I think it is important for the people of this Nation and our colleagues to understand that, since his State is part of the heartland of America, as is Arizona. Many people feel otherwise. I am very interested in hearing what the Senator from Indiana has viewed as the factors leading him to play such a visible, as well as important, role in this resolution.

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

Mr. McCAIN

Mr. McCAIN. Mr. President, today I am introducing a resolution to disapprove the Federal Election Commission's final regulations to implement the title I soft money provisions of the Bipartisan Campaign Reform Act, under the procedures established by the Congressional Review Act. The Commission's regulations, titled ``Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money; Final Rule,'' were published in the Federal Register on July 29, 2002, 67 FR 49064. I wish I did not have to introduce this resolution. When President Bush signed the Bipartisan Campaign Reform Act of 2002 into law on March 27, 2002, the soft money campaign finance system should have met its demise. This system of unlimited soft money contributions to national political parties, unlimited soft money fundraising by national parties and Federal candidates and officeholders, and unlimited laundering of soft money into Federal elections by State parties had bred public cynicism about the workings of our institutions of government. At a minimum, the actions of Congress and the executive branch were severely tainted by the specter of six-figure soft money donations by special interests with a stake in legislation and policies pending before the Federal Government. Banning soft money wasn't an easy legislative or political endeavor. Powerful forces lined up to preserve a status quo that served them well. But after a 7-year fight on Capitol Hill over campaign finance reform, Congress concluded that it could no longer abide the corruption and appearances of corruption caused by soft money. It sought fundamental change and a restoration of public confidence in our democracy by at last enacting the Bipartisan Campaign Reform Act. Unfortunately, four unelected members of the Federal Election Commission thought they knew better. In writing rules to implement the party and candidate soft money provisions of the new campaign finance law, these Commissioners proceeded to resurrect aspects of the soft money system that Congress had just banished. This exercise entailed gyrations of logic and rationalizations that flew squarely in the face of statutory language, legislative intent, and even interpretations of the law urged by the Commission's own general counsel and professional staff. At times during the soft money rulemaking process, this bloc of four Commissioners appeared willfully blind to the language and purpose of the statute, as well as the Commission's own interpretive practices and precedents. Their actions were so brazen that one of the two Commissioners who voted to implement the law faithfully to Congress's intent told them, ``You have so tortured this law, it's beyond silly.'' The result was the adoption of agency regulations that undermine the three fundamental components of the Bipartisan Campaign Reform Act: the prohibition on national parties' soliciting, directing, receiving, or spending soft money; the prohibition on Federal candidates' and officeholders' soliciting, directing, receiving or spending soft money; and the prohibition on State parties' spending unregulated soft money donations on activities affecting Federal elections. The loopholes created out of whole cloth by the Federal Election Commission operate separately and in combination to permit the continuation of elements of the soft money system. While I will not today discuss each and every soft money regulation that contradicts the statute and legislative intent, I will list some examples of how four Commissioners substituted their own personal views for the will of Congress--and left in their wake a campaign finance system too similar to the one we in this body set out to eliminate. The Bipartisan Campaign Reform Act states that national parties and Federal candidates or officeholders may not ``solicit'' or ``direct'' soft money. These prohibitions on soliciting and directing soft money are critical to the integrity of our political system. The specter of national parties soliciting six-figure donations from special interests with a stake in legislation or policies pending before the executive or legislative branches has tainted the decisions ultimately made on these matters in Washington. Likewise, the soft money fundraising activities of Federal officeholders have led the public to suspect that those who serve in Congress or the White House are paying special heed to the will of the wealthy few. The new campaign finance law's prohibitions on soliciting and directing soft money are aimed precisely at this problem. As Senator Carl Levin, D-MI, said on the Senate floor on March 20, 2002, during debate on the Bipartisan Campaign Reform Act: . . . [W]e have had enough of the solicitations by our elected officials and the officers of our national parties, soliciting huge sums of money by offering insider access to government decisionmakers . . . Under this soft money ban, public officials and candidates will be out of the soft money fundraising business, and that's a very important step we will be taking with this legislation. The official with power, and the candidate seeking to be in a position of power, won't be able to solicit huge sums of money and sell access to themselves for their campaign or for outside groups . . .'' (emphasis added). The Federal Election Commission decided nonetheless to allow national parties and Federal officeholders to remain in the ``soft money fundraising business''--by adopting definitions of the terms ``to solicit'' and ``to direct'' that invite widespread circumvention of the law. To achieve this result, the Commissioners had to overrule the agency's own general counsel and professional staff. The draft final rules recommended to the Commissioners by the general counsel and professional staff appropriately defined ``to solicit'' as ``to request or suggest or recommend that another person make a contribution, donation, or transfer of funds''--thus, a national party could not request, suggest or recommend that an individual or entity donate soft money. This definition was consistent with the Commission's longstanding practice and understanding concerning what constitutes a solicitation. As the Commission's associate general counsel explained to the Commissioners during the soft money rulemaking proceedings: . . . the concept of solicitation is not something that is new, in terms of the [Bipartisan Campaign Reform Act of 2002]. It is something that has been in the Federal Election Campaign Act for a very long time. It's been particularly significant in terms of corporations and labor organizations, in terms of the solicitations that they may do, and some of the limitations on the frequency of their solicitations. With that in mind, we do have a long history of advisory opinions, and some very specific guidance in our campaign guides as to what does and what does not constitute `to solicit.' We based the definition that we came up with, with those materials in mind, with the thought that just the common- sense usage of the word, `solicit' would not mean something different in the context of BCRA than what it has always meant for purposes of the FECA. And we have looked at it very broadly in the past, in terms of encouraging support for, and providing information as to how to contribute, and publicizing, the right to accept unsolicited contributions from any lawful contributor. Those sorts of factors. I think it's an area of the law that's pretty clear and pretty well-settled (emphasis added). Putting aside the associate general counsel's explanation that the meaning of ``to solicit'' is ``pretty clear and pretty well-settled'' in the law, four Commissioners apparently decided that a dramatic change in course was somehow warranted with respect to implementing soft money solicitation restrictions. A lame-duck, holdover Commissioner proposed an amendment during the rulemaking proceedings that narrowed the definition of ``to solicit'' from ``to request or suggest or recommend'' to ``to ask.'' In explaining this amendment, that Commissioner repeatedly made it clear that he intended to narrow considerably the scope of the definition of ``to solicit'' contained in the general counsel's draft, to eliminate the concepts of to ``suggest or recommend.'' The Commission's general counsel expressed strong reservations about this amendment to narrow the definition of ``to solicit,'' stating the following: . . . [T]his is a pretty huge concept in the Act. You can't solicit soft money. Certain actors can't solicit soft money now under the law. And it doesn't seem to me to take a great deal of cleverness to make a solicitation that is clearly intended to encourage--to persuade a person to make a contribution, without coming out and asking. And I think this definition has the potential for great mischief . . . And I'm concerned that this language creates a definition so narrow that it would, frankly, be very easy to avoid.'' The Commissioner that offered the amendment narrowing the definition of ``to solicit'' replied, ``It indeed runs that risk.'' Despite the warnings of the Commission's general counsel, the amendment was ultimately adopted. The result is to exclude all but the most explicit ``asks'' for soft money from the new law's solicitation prohibitions. Because of this amendment, national parties and Federal candidates and officeholders may ``recommend'' or ``suggest'' that a donor contribute soft money. Far from being out of the soft money fundraising business, parties and candidates now stand to be in a more subtle soft money fundraising business. That is hardly the fundamental change in the campaign finance system that Senator Levin was discussing on the Senate floor or that Congress as a whole sought in enacting the Bipartisan Campaign Reform Act. The Commission compounded the problem by essentially reading the prohibition on ``directing'' soft money out of the statute. The new campaign finance law makes it illegal for national parties and Federal officeholders or candidates not only to ``solicit'' soft money but also to ``direct'' soft money. The clear implication is that those terms are not redundant. Specifically, ``to direct'' covers instances in which a national party or Federal candidate suggests to whom an already willing contributor should make a soft money donation, as opposed to initiating the idea of the contribution, which amounts to a ``solicitation''. The general counsel's draft properly assigned distinct meaning to the term, ``to direct.'' It defined ``to direct'' as, ``to provide the name of a candidate, political committee or organization to a person who has expressed an interest in making a contribution, donation, or transfers of funds to those who support the beliefs of goals of the contributor or donor . . .'' However, the same amendment that substantially narrowed the definition of ``to solicit'' redefined ``to direct'' to mean, ``to ask a person who has expressed an intent to make a contribution, donation, or transfer of funds, or to provide anything of value, to make that contribution, donation, or transfer of funds, or to provide that thing of value.'' In other words, the Commission ultimately defined ``to direct'' to mean nothing different from ``to solicit.'' This will allow national parties and Federal officeholders to tell a willing donor where they should send their soft money--in violation of the plain language of the statute. The Bipartisan Campaign Reform Act bans the receipt, solicitation, direction, or spending of soft money not only by national party committees but also by any entities ``directly or indirectly established, financed, maintained or controlled'' by those party committees. This prohibits national party committees from spawning and in other respects significantly supporting ``shadow entities'' designed to carry on the raising and spending of soft money once those party committees can no longer accept soft money contributions themselves. The soft money ban enacted by Congress will achieve its full effect only if the Federal Election Commission applies it to all entities in fact ``directly or indirectly established, financed, maintained or controlled'' by national party committees. If the Commission instead willfully blinds itself to relevant information concerning a national party's involvement with a given organization, the soft money ban could fall short of the coverage spelled out in the statute. Under that scenario, shadow entities set up by national parties could carry on the raising and spending of soft money under the false guise of ``independence'' from the parties--including spending soft money on television and radio sham ``issue ads.'' Unfortunately, four Commissioners opted for willful blindness rather than a complete and accurate analysis of whether an entity was in fact ``directly or indirectly established, financed, maintained or controlled'' by a national party. The explanation and justification accompanying the draft rules prepared by the Commission's general counsel noted that ``certain actions that occur before the effective date of BCRA have as much of an impact on whether an entity is `established, financed, maintained or controlled' by a sponsor as actions that occur immediately after BCRA's effective date.'' Accordingly, the draft rules proposed by the General counsel indicated that the Commission should review conduct occurring before the law's effective date of November 6, in addition to conduct occurring after that date, in determining whether a national party had established, financed, maintained or controlled an organization. Indeed, there is absolutely no basis in the statute for concluding that the Commission should review anything less than all of a party's conduct involving an organization in undertaking this analysis. A Commissioner nonetheless offered an amendment containing an invented ``grandfather clause.'' Under this amendment, a national party could set up a shadow entity before November 6 to raise and spend soft money after that date--and yet the Commission would have to ignore that fact and any other pre-November 6 conduct in analyzing whether the shadow entity was ``established'' by a national party. The parties could provide considerable support to these shadow entities prior to November 6 and indeed hold them out to donors as future soft money surrogates for the parties. The Commission's general counsel strongly objected to this bizarre idea, saying, ``. . . [I]t is hard to see how Congress imagined that an entity that . . . . was established a couple of days before the effective date of BCRA, is any less established . . . on November 10th, November 15th or December 1st.'' Still, the Commission adopted the amendment by a vote of four to two. By adopting a ``grandfather clause'' invented out of whole cloth, the Commission invited schemes by the national parties to evade the new law by setting up surrogates prior to November 6th. Not surprisingly, the parties appear to be taking up the Commission's invitation. According to a Washington Post story of August 25, 2002, ``Both the Democratic and Republican senatorial campaign committees are exploring the creation of separate soft-money funds.'' A National Journal article of September 7, 2002 likewise stated, ``[E]ven some national party committees are looking at setting up, before November 5, new groups that they say could legally raise soft money next year so long as they do not coordinate their activities with the national committees.'' The Bipartisan Campaign Reform Act puts an end to soft money leadership PACs. Soft money leadership PACs are entities controlled by Federal officeholders or candidates that take in unlimited contributions from corporations, unions, and wealthy individuals to finance activities beneficial to their sponsors. These activities can include events and entertainment, contributions to State and local parties and candidates, fundraising and administrative costs, sham ``issue ads,'' payments to consultants, and expenses for partisan get- out-the-vote efforts. According to a February 2002 report by Public Citizen, 63 Members of Congress had their own soft money leadership PACs at that time. From July 1, 2000, until June 30, 2001, the top 25 politician soft money leadership PACs collected more than $15.1 million in contributions. The new law prohibits entities ``directly or indirectly established, financed, maintained or controlled'' by Federal officeholders or candidates from soliciting or receiving soft money. As a matter of plain meaning and simple common sense, this language clearly covers officeholder and candidate leadership PACs. Furthermore, this statutory standard linking leadership PACs to their officeholder or candidate sponsors is deliberately broader than preexisting language under which the Commission has treated leadership PACs as independent of Federal officials. In sum, the new law was intended to bring about the demise of soft money leadership PACs--and was well-crafted to achieve that result. Despite the statutory language and clear legislative intent, the Federal Election Commission has left open the possibility of continued operation of officeholder and candidate soft money leadership PACs. If the Commission considers a leadership PAC to be ``directly or indirectly established, financed, maintained or controlled'' by a Federal officeholder or candidate, it will not be permitted to receive soft money. However, the Commission also decided that it would analyze whether individual leadership PACs are so established, financed, maintained or controlled by applying the same standards under which it has always considered leadership PACs to be independent of Federal officeholders and candidates. This decision threatens to delete an important element of the new law's soft money prohibitions. The Bipartisan Campaign Reform Act permits Federal officeholders and candidates to ``attend, speak, and be a featured guest at'' State party fundraising events. However, these individuals may not expressly solicit soft money at State party fundraising events. The Commission's professional staff clearly perceived the line drawn by the law in terms of permissible Federal officeholder or candidate participation in State party fundraising events. Consistent with the statutory language and legislative intent, the draft final soft money rules prepared by the general counsel and professional staff held that Federal candidates and officeholders could attend, speak at, or be featured guests at a State party fundraising event, but they could not ``actively solicit funds at the event.'' Once again, the Commission overrode the draft regulations developed by its professional staff and departed from the statute. A Commissioner offered an amendment to permit Federal officeholders not merely to attend and speak at State party fundraising events but also to make express solicitations for soft money at those events. He characterized this amendment as a ``total carve-out'' from the law's restrictions on soft money solicitations by Federal candidates and officeholders. Commissioner Scott Thomas, who consistently voted against efforts to undermine and compromise the law, strenuously disagreed, saying, ``[Congress] drafted the statute in a way that says in essence Federal candidates are not to solicit soft money and the one part of Commissioner Toner's amendment that I just can't square with the statutory ban is the last clause: the candidates and individuals holding Federal office may speak at such events without restriction or regulation.'' The amendment passed despite Commissioner Thomas's objections. This departure from the statutory text and legislative intent creates a significant loophole that undermines Congress' effort to eradicate the soft money system. Under this amendment, whatever is deemed to be a State party fundraiser essentially becomes a ``rules-free zone'' for soft money solicitations. It is readily conceivable that Federal officeholders and candidates will engage in unrestrained soft money solicitations at any kind of event or gathering that is simply called a ``State party fundraiser.'' Indeed, one could envision a State party holding its ``fundraiser'' in Washington DC's, Union Station, with the President and numerous Members of Congress in attendance to expressly solicit unlimited soft money contributions for that state party. This result is simply impossible to square with the text of the law and Congress's intent. The problem is compounded by the fact that the Commission elsewhere opened loopholes permitting State parties to spend unregulated, unlimited soft money donations on activities affecting Federal elections, again contrary to statutory text and legislative intent. In general, the Bipartisan Campaign Reform Act does not merely ban national parties and Federal officeholders from receiving, spending, directing, or soliciting soft money. The bill also prohibits State parties from spending unregulated soft money on activities that have a particularly pronounced effect on Federal elections--defined in the statute as ``Federal election activity.'' This portion of the law responds to an ongoing, significant problem. Currently, State parties often use unlimited soft money donations, which are transferred to them by national parties or contributed directly to them, to help finance sham ``issue ads'' promoting or attacking clearly identified Federal candidates, voter mobilization activities clearly benefitting Federal candidates, and other campaign activities affecting Federal elections. This compromises the integrity of our democracy. If unregulated and potentially unlimited soft money donations can be funneled through State parties into activities supporting the election of Federal candidates, at a minimum, officeholders appear beholden to the sources of those unlimited donations. To remedy this problem, the new campaign finance law requires State parties to use exclusively hard money contributions to finance public communications promoting or attacking clearly identified Federal candidates, voter registration activity occurring within 120 days of a regularly scheduled Federal election that mentions a Federal candidate, and get-out-the-vote activity, voter identification, and generic campaign activity mentioning a Federal candidate and conducted in connection with an election in which a Federal candidate appears on the ballot. It also requires State parties to use either exclusively hard money, or a combination of hard money and tightly limited and regulated non-Federal funds, to finance voter registration, get-out-the-vote activity, voter identification, and generic campaign activity that do not mention Federal candidates. The law does not permit the use of unregulated, unlimited soft money donations by State parties for any of the specified ``Federal election activities.'' Indeed, during floor debate over a number of years, the House and Senate repeatedly rejected substitute proposals that would have allowed State parties to use unlimited soft money donations for these activities. However, what was settled by Congress was reopened by the Federal Election Commission. Through a series of amendments that defied the statutory language, legislative intent, its own precedents, and simple common sense, the Commission opened the door for the use of unlimited soft money donations by State parties for certain activities that clearly and significantly affect Federal elections. As such, the Commission preserved the status quo of the soft money system in a number of respects--clearly contrary to Congress's overriding purpose in enacting this law. The statute does not permit State parties to use unregulated, unlimited soft money donations to finance ``voter registration activity'' within 120 days of a regularly scheduled Federal election and ``get-out-the-vote activity'' conducted in connection with an election in which a Federal candidate appears on the ballot. State parties must use exclusively hard money, or a tightly controlled mix of hard money and limited, regulated non-Federal donations, if no Federal candidate is mentioned, to pay for these activities. The Federal Election Commission, however, permitted State parties to use unregulated soft money for these activities, by adopting unjustifiably narrow definitions of the terms ``voter registration activity'' and ``get-out-the-vote activity.'' The draft final rules prepared by the Commission's general counsel had appropriately defined ``voter registration activity'' and ``get- out-the-vote activity'' to include not merely ``to assist'' individuals to vote or register to vote but also ``to encourage'' them to do so, consistent with Commission precedent. For instance, elsewhere in title 11 of the Code of Federal Regulations, specifically, in 11 CFR 100.133, the Commission uses the heading ``voter registration and get-out-the-vote activities,'' to describe ``activity designed to encourage individuals to vote or to register to vote''. However, on a four-to-two vote, the Commission overrode its general counsel and deleted the concept of ``encouraging'' people to register to vote or to vote from the definitions of ``voter registration activity'' and ``get-out-the-vote activity.'' This amendment departs from not only Commission precedent but also common sense. Under the amendment, a State party phone bank targeted at the party's core voters, urging them to ``get out and vote this November'' because of key issues at stake, but not mentioning the location of a polling place or offering transportation assistance, would not constitute ``get-out-the-vote activity'', and thus could be financed in part with unregulated, unlimited soft money. This is an absurd result, contradicting common understandings of what constitutes ``get-out-the-vote activity'' and perpetuating certain aspects of the current soft money system. By failing to include all ``get-out-the-vote activity'' and ``voter registration activity'' in its definitions of those terms, the Commission violated the statute. The Commission also failed to include all ``voter identification'' activity in its regulatory definition of that term, violating the statute and undermining its prohibition on the use of unregulated soft money by State parties for such activity. The draft final rules prepared by the Commission's general counsel had included ``obtaining voter lists'' in the definition of ``voter identification.'' However, a Commissioner offered an amendment to delete voter list acquisition from this definition, even though this is a commonly understood component of voter identification activity. A lawyer from the Commission's general counsel's office pointed out the problem with this amendment, noting during the rulemaking: In particular, I would note that the [definition of voter identification proposed in the amendment] excludes--and I know, by design--list acquisition, which is a key means of identifying voters and, therefore, seemed to us to be voter ID. And also a very significant part--component of campaign spending. Nonetheless, the Commission adopted the amendment by a four-to-two vote, allowing State parties to continue their current practice of using unregulated, unlimited soft money donations to help acquire voter lists employed to identify likely voters in upcoming elections in which a Federal candidate appears on the ballot. As part of its mission to permit the continuation of aspects of the soft money system at the State level, the Commission also constricted the meaning of ``generic campaign activity'' from that provided in the statute. The Bipartisan Campaign Reform Act prohibits State parties from financing ``generic campaign activity'' with unregulated, unlimited soft money donations. It proceeds to specifically define ``generic campaign activity'' as ``campaign activity that promotes a political party and does not promote a candidate or non-Federal candidate''. While the statutory definition covers ``campaign activity,'' the Commission adopted, again on a four-to-two vote, an amendment limiting the corresponding regulatory definition to a ``public communication that promotes a political party and does not promote a candidate or non-Federal candidate.'' Notably, ``public communication'' is defined elsewhere in the statute and regulations to include only ``a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.'' Thus, the Commission overrode the statute to permit State parties to use unregulated, unlimited soft money donations to send party promotion mailings that do not constitute ``mass mailings'' and to engage in other party promotion activities that do not rise to the level of a ``public communication'' as specifically defined in the statute and regulations. The Bipartisan Campaign Reform Act specifies that its restrictions on State party use of unregulated soft money for get-out-the-vote activity, voter identification, and generic campaign activity apply when these activities are ``conducted in connection with an election in which a Federal candidate appears on the ballot.'' For purposes of this rulemaking, the Federal Election Commission adopted an artificially and unrealistically short time window for designating State party get-out-the-vote activity, voter identification, and generic campaign activity as having been ``conducted in connection with an election in which a Federal candidate appears on the ballot'' and thus subject to the new law's soft money limits. The Commission ultimately decided that these activities fell under the statutory standard only if they occurred after ``the date of the earliest filing deadline for access to the primary election ballot for Federal candidates as determined by State law'' up until election day of an even-numbered year. As the Commission's professional staff pointed out during the rulemaking proceedings, this filing deadline can occur as late as in August in certain States. At the very least, it is difficult to reach the conclusion that State party voter identification and generic campaign activities conducted at any point in even-numbered years are somehow not ``conducted in connection with an election in which a Federal candidate appears on the ballot.'' Federal candidates will be on the ballot in regularly scheduled primary and general elections that occur in those years. Indeed, that conclusion is a departure from relevant Commission precedent. In determining when a hard money match has been required for State party generic voter drives, the Commission has long indicated that State party generic voter drive expenses incurred as early as the beginning of a 2-year election cycle, e.g., January of 1995, for the 1995-96 cycle, required partial hard money financing. The result of the Commission's arbitrary and incorrect interpretation of the statute and departure from its precedent in this instance is that State parties will be able to use unlimited soft money to help finance certain generic party promotion activity and activities to identify likely voters occurring in at least the same year, and sometimes considerably proximate to, Federal elections. In conclusion, the cumulative effect of these provisions is to resurrect significant aspects of the current soft money system at the State level, directly contrary to statutory text and legislative intent. State parties will be able to use unregulated, unlimited soft money donations to help finance targeted, effective get-out-the-vote activity closely proximate to Federal elections, the purchase of voter lists for voter identification purposes, generic party promotion activity occurring in Federal election years, and other activities directly and substantially affecting Federal elections. Furthermore, under other Federal Election Commission regulations shrinking the statute, these unregulated soft money donations could be secured for State parties by national parties and Federal candidates and officeholders. Because of the Commission's truncated definition of ``to solicit,'' national parties and Federal candidates and officeholders could ``recommend'' or ``suggest'' that donors write large soft money checks to State parties for use on get-out-the-vote drives and other activities on Federal elections. Indeed, Federal candidates could also take advantage of the ``total carve-out'' invented by the Commission for soft money solicitations at State party fundraisers, in order to expressly ask donors to contribute unregulated soft money to State parties. Acting together, the Commission's various departures from the statute would perpetuate many of the State party practices that have undermined public confidence in our political system and that Congress sought to eliminate. The previously cited examples are not the only instances in which the Commission departed from the statute and legislative intent. For instance: The Commission allowed State parties to spend certain non- Federal funds to raise funds ultimately used, in whole or in part, to finance ``Federal election activity.'' This directly violates the statutory language indicating that State parties must use funds ``subject to the limitations, prohibitions, and reporting requirements of this Act'' (i.e., hard money) to pay the costs of raising funds used for ``Federal election activity.'' A section-by-section summary of the bill included in the Senate Congressional Record on March 18, 2002 underscores the statutory hard money financing requirement in this area: ``Sec. 323(c). Fundraising Costs. Requires national, state, and local parties to use hard money to raise money that will be used on federal election activities, as defined by the bill'' (emphasis added). The Commission even rolled back certain state party hard money financing requirements applicable prior to the enactment of the Bipartisan Campaign Reform Act. Previously, state parties had to use at least some hard money to finance the salaries of state party employees spending less than 25 percent of their time on federal election activity. An amendment by one Commissioner eliminated that hard money allocation requirement, allowing state parties to finance those salaries exclusively with soft money. The Commission allowed state parties to use unregulated soft money donations to help finance Internet websites and widely distributed e-mails promoting or attacking clearly identified federal candidates. In doing so, they disregarded the statute's prohibition on state parties' using any soft money for ``general public political advertising'' promoting or attacking federal candidates. In fact, this decision departed from Commission precedent--as the agency had previously construed the term ``general public political advertising'' to include Internet communications. The Commission failed to include the concept of ``apparent authority'' in its definition of who constitutes a party or candidate ``agent'' for purposes of the Bipartisan Campaign Reform Act, even though it acknowledged that apparent authority is included in the settled common law meaning of the term ``agent.'' Even this is not a complete list of the problems created by the Commission. However, the list is sufficient to demonstrate a pattern of statutory distortion with a common theme: allowing soft money banned by Congress to creep back into our campaign finance system. The agency that created soft money is clearly intent on saving it. A number of Commissioners have made no secret of their dislike for the policy choices made by Congress in enacting the Bipartisan Campaign Reform Act. They are entitled to their opinions about the merits of the law. But they are not entitled to substitute their opinions for the judgment of Congress. This pattern of statutory distortion and contradiction of legislative intent--always with the result of reintroducing soft money to the system--suggests that four Commissioners did not grasp the limits on their authority, or care much about them. With the enactment of the Bipartisan Campaign Reform Act, Congress honored the American people's desire for cleaner elections. Though I wish it were not necessary, it appears that we must act again to ensure the public obtains the full benefits of this law. A Federal Election Commission that has failed the public time and time again should not enjoy the last word on the health of our democracy. So I urge support for this resolution--to reclaim for Congress its role as the author of our Nation's laws; and to deliver the full campaign finance reform that the American people deserve. I ask unanimous consent that the text of the joint resolution be printed in the Record.