John McCain

Mr. McCAIN

Mr. McCAIN. So any organization in America that opposes me, no matter if it is in the mildest terms, and supports my opponent, therefore, I have the right to go get free television time. I don't quite understand that, frankly. I think what you are doing, probably--the effect would be, one, that the broadcast stations probably would not sell time because of the requirement to respond, which is, by the way, what happened in the fairness doctrine. What happened in the fairness doctrine, which was a good idea, was that broadcast stations decided not to air any controversial opinion because somebody was going to say, ``I have another opinion and I have to have free time.'' That led to the demise of the fairness doctrine. If someone runs an ad and says, ``I oppose Senator McCain,'' I don't think that should necessarily trigger free television commercial time for me. Let me just continue, if I might. The Senator said this is not unlike the ability of the State to control pornography. The reason the Court decided that we had a right, as far as child pornography was concerned, is that it was a compelling State interest. I don't think you can make the same argument in respect to television time or attack ads. Part B says: Any communication that contains a phrase such as ``vote against,'' ``defeat,'' or ``reject-- Boy, we better get out the dictionary because there is a great deal of ambiguity of words. I have ``concerns'' about the candidacy of Senator Smith. Well, is that in opposition to? Words ``such as,'' I think, are hard. Again, I get back to my fundamental point. It says in the amendment: (Such as proximity to an election) can have no reasonable meaning other than to advocate the defeat of one or more clearly identified candidates. Who decides that? The Senator says you go to the station and get free time and, if not, you go to a judge. Now you are asking a judge to look at every commercial, or you are asking the broadcast station to look at every commercial and make some decision as to whether it is an attack ad or not. I will tell you if I were on the station, I would say never mind; why should I take a risk when I am not sure this ad is an attack ad or not. This is the problem we had when we have gone over and over and over this issue. How do you stop these attack ads without infringing on freedom of speech and not being so vague that it is very difficult to stand constitutional muster? The difference between Snowe-Jeffords and this amendment is that Snowe-Jeffords draws a very bright line and it says: Show the likeness or mention the name of a candidate. That is a very bright line. This is a campaign slogan or words that, when taken as a whole and with limited reference to external events, such as ``proximity to an election''--these words--I admit to the Senator from New Mexico, I am not a lawyer, but I have been involved so long and so engaged in these issues that words do have meaning, and this amendment is very vague. I am sure we can make a judgment on a lot of ads we have seen and the same ads the Senator and I find disgusting and distasteful and should be rejected. But at the same time, I don't know how we can say, OK, if this station doesn't run my ads, I am going to go to a judge and have the judge make them run my ads. It just is something that would be very difficult. I would love to work with the Senator from New Mexico. He has been a steadfast stalwart for campaign finance reform. I would love to work with him to try to achieve this goal. Frankly, after going around and around on this issue, identifying who paid for the ad, full disclosure and, frankly, not allowing corporations and unions to contribute to paying for these things in the last 60, 90 days, which is part of our legislation, is about the only constitutional way that we thought we could address the issue. I thank the Senator from New Mexico. He is addressing an issue that has demeaned and degraded all of us because people don't think very much of you when they see the kinds of attack ads that are broadcast on a routine basis. As the Senator pointed out, they are dramatically on the increase. I will tell you what. You cut off the soft money, you are going to see a lot less of that. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that because people who can remain anonymous or organizations that can remain anonymous are obviously much more likely to be a lot looser with the facts than those whose names and identity have to be fully disclosed to the people once a certain level of investment is made. I thank the Senator and I regret having to oppose his amendment. I yield the floor.

Mr. McCAIN. Mr. President, may I be recognized?

Mr. McCAIN. Mr. President, again I thank the Senator from New Mexico. He has identified a very serious issue. I want to work with him on this issue. It is important because his graph dramatically illustrates the magnitude of the problem. The Senator from New Mexico is trying to address one of the most serious issues that affects American politics today and makes us much diminished in the eyes of our constituents and the people around the country. I really do applaud the Senator from New Mexico on this issue. At the appropriate time, I will move to table the amendment.

Mr. McCAIN. Mr. President, I move to table the amendment, to take place at 5:55 p.m.

Mr. McCAIN. May we ask unanimous consent to engage in a colloquy?

Mr. McCAIN. I say to the Senator from Texas, we established a $100,000 threshold so those who went above that would be disclosed; that is the outline of the agreement. Senator Lieberman agrees, I agree, and I look forward to working with the Senator from Texas.

Mr. McCAIN. I yield the floor.

Mr. McCAIN. Will the Senator from Michigan perhaps call for a quorum call for 5 minutes to see if we cannot sort this out. I thought we had an agreement, but perhaps we do not.

Mr. McCAIN. Mr. President, in behalf of the Senator from Kentucky, I yield such time as the Senator from Wisconsin may consume.

Mr. McCAIN. I thank both leaders for their cooperation on this. I am confident after tomorrow, if there are technical amendments, they will only be allowed if we are in agreement. On the issue of coordination, we are ready to consider amendments and votes on that issue.

Mr. McCAIN

Mr. McCAIN. Will the Senator yield?

Mr. McCAIN. I thank the Senator from Kentucky.

Mr. McCAIN

Mr. McCAIN. Mr. President, I thank the Senator from Nevada. Again, I thank Senator McConnell for the level and tenor of this debate. I understand his concerns about one additional amendment we will have tomorrow concerning coordination, and I have given him the language. We want to work with him on that particular amendment. I also know a lot of time and attention is going to be devoted to the issue of severability. I thank the Senator from Maine for a very important presentation. I find myself between two of my dearest friends on this amendment. I, obviously, am strongly in favor of the Snowe- Jeffords amendment which the Senator from Maine and the Senator from Vermont have worked on for literally years together. This Snowe- Jeffords amendment, unlike some of the business we do around here, was not hastily thrown together. It was crafted after careful consultation with constitutional experts all over America. It clearly addresses a growing problem in American politics. I believe that the Snowe-Jeffords amendment, if removed, would open up another huge channel for the use of soft money into so-called independent campaigns. I also listened with great attention to my friend from Ohio, Senator DeWine. I understand his concerns, and I appreciate them. He makes a very strong case. But I would like to say why we think Snowe-Jeffords is constitutional and why we are convinced of it. First, it avoids the vagueness problem outlined in Buckley by instituting a bright-line test for what constitutes express advocacy versus issue advocacy. People will know if their ads are covered by this statute. They will know whether it is covered by Snowe-Jeffords. Second, the main constitutional problem with bright-line tests is that they eliminate vagueness at a cost of overbreadth--a situation in which constitutionally protected speech such as issue advocacy is unintentionally swept in by the statute. Specifically, the Supreme Court is concerned whether there is ``substantial overbreadth'' as far as the statute is concerned. Snowe-Jeffords minimizes the overbreadth concern. It only covers broadcast ads run immediately before an election that mention a specific Federal candidate. Studies show that only a minuscule number of these types of ads in this time period are strictly issue ads. Anyone who observed the last couple campaigns would attest to that. Besides, we all know that Buckley's ``magic words'' are not necessary to make a campaign ad. In fact, a Brennan Center for Justice analysis of the last congressional election showed that only 1 percent of candidates' own campaign advertising used express advocacy language--in other words, magic words--to promote the candidate. In sum, Buckley left the door open for Congress to define express advocacy. That is what Snowe-Jeffords seeks to do, in keeping with the Supreme Court's concern about protecting free speech guaranteed by the first amendment. In addition, we can demonstrate that the Court's definition of ``express advocacy''--magic words--has no real bearing in today's world of campaign ads. You never see an ad anymore that says ``vote for'' or ``vote against.'' You see plenty of them that say: Call that scoundrel, that no-good Representative of yours or Senator of yours, who is guilty of every crime known to man. Call him. Tell your Senator that you want thus and such and thus and such. We have seen it all develop to a fine art. I believe Snowe-Jeffords is a very vital part of this bill. If it were removed, it would have a very significantly damaging effect on our desire to try to enact real and meaningful campaign finance reform. I thank my friend from Ohio for his impassioned advocacy of the other side. I believe this is really what this debate has been all about: What we have just seen between Senator DeWine and Senator Snowe, an open and honest and informed ventilation of a very important issue to the American people. I am very proud of the performance of both because I think the American people have learned a lot from this debate, especially on this very important amendment. Mr. President, I yield back the remainder of my time.

Mr. McCAIN. One minute.

Mr. McCAIN. Mr. President, I want to take a minute to thank Senator Feinstein and Senator Thompson. I have been privileged to see negotiations and discussions between people of good faith and a common purpose. I was privileged to observe that in the case of Senator Thompson and Senator Feinstein. The Senator from Oklahoma, Mr. Nickles, was very important, as was the Senator from Michigan, Mr. Levin, as well as Senator Hagel of Nebraska and others, as well as the Senator from New York, Mr. Schumer. I know I am forgetting someone in this depiction. I am proud that people compromised without betraying principle to come to a common ground so we can advance the cause of this effort. I express my deep and sincere appreciation to those Senators who made this happen, as well as our loyal staffs.

Mr. McCAIN. Could we have a total of 10 minutes?

Mr. McCAIN. Could I be yielded about 4 minutes to speak on the amendment?

Mr. McCAIN

Mr. McCAIN. Basically, what we are asking for is the concurrence of Senator McConnell and Senator Dodd. I hope that would be forthcoming to have a vote on something that had been agreed to by all parties. If not, the Senator from Tennessee has the right to pull down his amendment and we would propose another amendment.

Mr. McCAIN

Mr. McCAIN. Mr. President, I appreciate the thoughts of the Senator from Kentucky. It is hard for me to understand now, with just 2 full days, 2\1/2\ days, why we wouldn't, as is our practice around here once we have considered a lot of amendments and a lot of proposals, as we reach the end, narrow down amendments. One, then, has to wonder what the intentions are. I don't perhaps disagree with the Senator from Kentucky about the language of the unanimous consent agreement. I believe everyone was laboring under the impression that we would reach final resolution of this issue with an up-or-down vote. There are some Senators who now question that. So I will be back with another unanimous consent request, and if that is not agreeable, then one can only draw the conclusion that there is an objection to a final disposition of this issue and that, obviously, would be something we would have to then consider. I want to make perfectly clear again what I said at the very beginning, and I will be glad to read the Congressional Record when the unanimous consent was entered into with this distinguished majority leader. No matter how long it takes, as long as I can maintain 51 votes, we will not move to other legislation until we dispose of this legislation. For years we were blocked. For years we were not allowed to have this process which we now all agree has been valuable and helpful. But we need to take it to a final vote. I will be back with further unanimous consent requests so that we can fully bring this issue to closure. I yield the floor.

Mr. McCAIN. I amend my unanimous consent request that in the event the Thompson amendment is not tabled, a second-degree Feinstein----

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

Mr. McCAIN. Mr. President, I do not disagree except to say it is the intention to have a Feinstein second-degree amendment immediately following the vote which will be to table the Thompson amendment. It is my understanding that is perfectly agreeable with the author of the amendment to have that vote on a second-degree amendment as well. I ask to amend the unanimous consent request that, following that vote, a Feinstein second-degree amendment be in order.

Mr. McCAIN. Reserving the right to object.

Mr. McCAIN. Mr. President, I am very pleased at the progress we have made. We have disposed of a number of amendments. I think we have had a level of debate with which Americans are pleased, as are certain Members of the Senate, by the significant participation that has taken place. We really only have two major issues remaining. One is the issue of severability, which is, if there is a constitutional challenge to this legislation, if one part falls, whether or not all of it falls. The other is the hard money issue, with lots of negotiations and discussions going on as I speak. It was agreed at the beginning we would spend 2 weeks on this issue, and that was my understanding. It is now my understanding that there are some Members who think perhaps we would not move to final passage. I am committed to moving to final passage. As I have said before, it is not the 2 weeks that counts; it is the final disposition of this legislation which I think not only I but the American people deserve. As I say, we have disposed of the major issues with the exception of two. Therefore, in regard to further consideration of the bill before the Senate, I ask unanimous consent that first-degree amendments be limited to 10 each for the proponents and opponents of the bill; that relevant second-degree amendments be in order, with 1 hour for debate per second-degree amendment; and after all amendments are offered, the bill be immediately advanced to third reading for final passage, with no intervening action or debate.

Mr. McCAIN

Mr. McCAIN. I ask for the yeas and nays.