Olympia Snowe

Ms. SNOWE

Ms. SNOWE. The time off I yield to the Senator.

Ms. SNOWE. I am glad to yield.

Ms. SNOWE. Madam President, I will yield time to the Senator from Michigan. I just want to make a couple of points in response to the Senator from Washington and to Senator Jeffords.

Ms. SNOWE. The courts have allowed and made those distinctions in the past where we can draw a line in terms of methods of communicating and have allowed different rules for public airwaves. We are focusing on the most egregious abuses that have been identified in these campaigns in the past. If anything, I think the 1996 cycle highlighted the extent of the problem by the amounts of money that were placed in issue advertising that ordinarily would be, I think, a significant component in the campaign. But what has developed in the final analysis, as we all know, is sort of circumventing some of the restrictions that are currently in campaigns by what is masked as issue ads but really are candidate advocacy ads. That is what we are highlighting in this amendment by requiring disclosures by those groups that support these advertisements on behalf of candidates or in opposition to candidates shortly before the election. So we create a very narrow timeframe so that we do not engage in any possibilities of interfering with first amendment rights. We limit the medium to television and radio, again, so we do not invite any infringements on freedom of speech. Candidates-specific. They have to identify the candidate. Again, if that advertisement is targeted to a candidate's State, or in terms of House of Representatives elections, towards that candidate's district, again it is a threshold so that we don't affect small groups. If the sponsor of the ad spends less than $10,000 in a calendar year, they would not be required to disclose. Again, the Senator from Kentucky has mentioned Court cases like the NAACP v. Alabama in 1958, saying that the courts say you should not be required to supply your donor list because such disclosure could cause the fear of reprisal by its membership. Certainly there are exceptions to every rule, but you can have those exceptions without having the Court rule on its constitutionality. So, yes, there are exceptions, and the Court would require groups to obviously demonstrate that they had reasonable feeling that disclosing their donor base would be a reprisal. But there are exceptions, and there can be exceptions, but the law can be allowed to stand without suggesting that it will be ruled unconstitutional because there is an exception to that rule. We have drawn this amendment to be as narrow as possible in order to be as protective of the first amendment rights, constitutionally. If even possible we could have gone further but we chose to be narrow so that we don't create any problems with this legislation, because one of the concerns originally with the McCain-Feingold legislation is we would have the ban on soft money, but the issue advocacy provisions very possibly would have been struck down. So we designed this amendment in order to address those concerns. Mr. President, I yield such time as he may consume to Senator Jeffords, the other sponsor of this amendment.

Ms. SNOWE. I think it is the most cautionary approach.

Ms. SNOWE. Yes.

Ms. SNOWE. If I might reclaim my time to answer the Senator's question. My concern--and I think shared by others, such as Senator Jeffords, who is a lead sponsor of this amendment as well--we are concerned about the political advertising that is in these campaigns, hundreds of millions of dollars, where there is no disclosure, that influences the campaigns. So we are creating a separate category of advertising called ``electioneering communication,'' in response to the question.

Ms. SNOWE. I think we are taking the approach in this amendment to draw it as narrowly as possible so that we do not affect the first amendment rights. So, we are taking the most prudent, most cautious approach in designing this amendment.

Ms. SNOWE. Well, obviously, we are talking about political advertising that is sponsored by organizations. That is what we are identifying here because that is obviously playing the primary role.

Ms. SNOWE. That is correct.

Ms. SNOWE. Thank you, Mr. President. I think that the debate on the Snowe-Jeffords amendment has been very important in terms of underscoring the issues that need to be addressed in reforming our campaign finance system. I would like to review for the membership of this body exactly what the Snowe-Jeffords amendment would do, because we have heard so much about the impact of it and the misconceptions about the impact of the provisions included in this amendment. The fact is, this amendment will affect several categories with respect to advertising by groups across this country during the course of an election designed to influence the outcome of a Federal election. We are not saying they cannot advertise. We are not saying that they cannot engage in political activity. But what we are asking these groups to do is to disclose their major donors if they advertise on either medium, radio or television, 60 days before a general election, 30 days before a primary, in which they identify or mention a candidate for Federal office. They then would be required to disclose their major donors who contribute more than $500. That is more than twice the threshold for disclosure for Federal candidates. So, unlike the suggestion of those who are opposed to the campaign finance proposal and the Snowe-Jeffords amendment that this is too invasive, too broad, it is not. In fact, it would meet the Buckley standards handed down in that Supreme Court decision of not being invasive. In that Court decision, they were considering the impact of requiring donors of more than $10 to be disclosed. Obviously, that is broad and invasive. But this would pass constitutional muster. We are talking about groups that spend money on television or radio broadcasts in which they identify a Federal candidate 60 days before a general election, because, obviously, when those ads are aired at that point in time, they are intending to influence the outcome of an election. The medium is radio and television. The timing is 60 days before a general election, 30 days before a primary. The ad must mention a candidate's name or identify the candidate clearly. Targeting: The ad must be targeted at voters in the candidate's State. And the threshold: The sponsor of the ad must spend more than $10,000 on such ads in the calendar year. It is very narrow, it is very clearly targeted, very specific. And the Supreme Court has said that you can make a distinction of electioneering communications from other forms of speech. That is exactly what the Snowe-Jeffords amendment does. We are replacing the issue advocacy provisions of the McCain-Feingold legislation, section 201, that could raise constitutional questions. The proposals that Senator Jeffords and I are offering today are ones that have been designed by legal and constitutional experts based on court decisions. What the Snowe-Jeffords amendment would not do, because, again, we have heard so much about what the impact would be and, in many cases, have been very erroneous in some of the circulations in Congress by various groups, it would not prohibit groups from communicating. If they want to advertise, they have every right to do that. They can communicate with their grassroots membership. It does not prohibit them from accepting funds, corporate or labor funds. It would not require groups to create a PAC. They can continue what they are doing. But they are required to disclose if they are going to identify a candidate 60 days before an election in a television advertisement or radio broadcast. It would not affect the ability of any organization to urge grassroots contacts with lawmakers in upcoming votes. They can say, ``Call your Senator, call your Member of Congress, using the 1-800 number,'' which is a popular means today. That is certainly allowed. There is nothing to discourage that. If they identify a candidate in a TV or radio broadcast 60 days before an election, then they have to disclose their donors of more than $500, and that is all we are requiring. So it is not invasive; it would not require them to give an advance of the specifics of their advertisement and the text. What we are requiring in all of this is disclosure so that everybody understands who is financing these advertisements when they are designed to influence the outcome of an election. It guards against sneak attacks. Doesn't everybody have the right to know? Absolutely. And that is why the Supreme Court made that distinction in Buckley and in other cases, to draw that bright line, which is what the Snowe-Jeffords amendment does. The Court has never said that there is one route towards what can be distinguished in terms of electioneering communications. The fact of the matter is, it said you can make that distinction, that the U.S. Congress has the prerogative to make that distinction in a very narrow, very targeted way. This amendment would pass constitutional muster. I think that is what causes some anxiety for some people, because they are opposed to this amendment because it will require disclosure of major donors. Since when has disclosure been antithetical to good government, to campaign financing? Because that is the thrust of this amendment. It is disclosure. I think we all can concur that secrecy does not invite the kind of campaign that we want to see in America. We are entitled to know who finances these campaigns when it comes to major donors, when they are running ads that influence the outcome of these campaigns. The fact is, these groups have spent at least, based on what we know because it is a guesstimate because they did not have to disclose, $150 million--$150 million. The best we can guess, because, again, it does not require disclosure, is a third of all the money that was spent was spent on campaign advertising in the last election cycle, and we do not know where one dime comes from. We don't have the identity of donors, and yet they play a key role in influencing Federal elections. We had $150 million spent on issue ads in the 1996 election, and $400 million was spent for all the candidates: for the President, the Senate and the House. And yet, of this $150 million--this is probably a conservative estimate; this is based on the Annenberg Public Policy Center study; probably the most definitive study on issue advertising and issue advocacy. In fact, what they did was they analyzed advertising that was done by 109 organizations--109 TV and radio advertisements from 29 organizations. So we would expect that that estimate is pretty conservative. So what we are saying here is that there should be a means for disclosure. The courts have never said that disclosure is not in the public interest. The fact is that the Supreme Court has ruled time and again, and specifically in Buckley, that there is strong governmental interest that justifies disclosure, and that is why we have designed this amendment in the manner that we have. We also restrict campaign spending by unions and corporations with their nonvoluntary contributions in television and radio advertising in which they mention a candidate 60 days before a general election and 30 days before a primary because, again, there has been a century-long decision by the Government as well as the Congress in which that distinction can be made. The courts have made that distinction that Congress has the right to restrict spending by those entities because of those benefits that have been conferred on unions and corporations by the Congress, so that we are entitled to draw that distinction. And we do in this amendment. The courts have ruled that the Congress has the right to enact a statute that defines electioneering as long as it isn't vague or overbroad, that we can develop a more nuanced approach, because I know the Senator from Kentucky has cited cases in which he said that the Court would not support this type of an amendment. To the contrary, the fact of the matter is, this amendment is not vague and it is not overbroad. Not only will it pass muster, I think the Court would have the advantage of seeing what has happened over the past 22 years since it ruled in Buckley that has made a mockery of the campaign laws in ways in which the system works today. If they had had the advantage of that back when they made the decision in Buckley, I think there is no question that they would have indicated the approach that we have here today. There is something wrong in a system where we have $150 million influencing Federal campaigns and we do not require disclosure, and that is what the Snowe-Jeffords amendment is all about. Mr. President, I hope that Members of the Senate will see fit to support this amendment because I think it is in the interest of our campaign system, it is in the interest of good government. We have heard so much about these issues ads and the content of these so-called ``issue ads'' in the last election. Every group has the right to state their position. They have the right to communicate with their lawmakers. They have the right to even participate in the political process in advertisements and voting for or against. But I think they also should be required to identify their major donors when they are identifying a candidate 60 days before an election. Now, there are different kinds of issue ads. The one that I am mentioning here in the content of so-called ``issue ads'' isn't pure issue advocacy because there is a difference between issue advocacy and candidate advocacy. In this case, what we are seeing in what is so-called ``issue ads,'' 87 percent of what is called ``issue ads'' actually referred to a candidate or an official--87 percent. So rather than just talking about an issue and informing the public or running an ad that says, ``Call your Senator or call your Congressman,'' it was one in which it was designed to influence the outcome of an election, because 87 percent of those ads referred to an official or a candidate. In fact, according to the Annenberg study, 41 percent of those ads were ``pure attack''--41 percent--and yet not one dime is required when it comes to disclosure. So $150 million of this money was spent on so- called ``issue ads,'' and some of them were pure issue ads, but many of those ads, in fact 87 percent, referred to an official or to a candidate that, again, had the impact, or certainly had the intent, of affecting the outcome of an election, or otherwise they would not have mentioned the candidate's name.

Ms. SNOWE. If I can answer the Senator's question, that is correct. I know the Senator from Kentucky has objected to any possibility of impacting the first amendment. We would all agree in that respect, that obviously we want to draw that bright and distinctive line. Because no one wants to chill the first amendment right of freedom of speech. So that is where you can invite the possibility of concerns when it comes to printed material and to direct mail and to newspapers. We also know that most of the money in campaigns is particularly in television, rather than radio, because it has the greatest impact. It can have the greatest effect. So as a result, we do narrowly target those two mediums.

Ms. SNOWE. No. Television and radio.

Ms. SNOWE. Mr. President, I ask unanimous consent to move the vote on MilCon to 6:10 p.m. so that we can complete the debate before the votes begin.

Ms. SNOWE. Excuse me?

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

Ms. SNOWE. I thank Senator Jeffords for those comments. He is entirely correct on that issue. Obviously, there were legitimate fears of bodily harm and economic retribution in the 1950s in Alabama. That is what that case was all about. The court recognized that concern, and exceptions can be made, and have been made. In fact, in response to the issue that was raised by the Senator from Washington and the Senator from Kentucky, several legal experts--Burt Neuborne, from New York University School of Law; Mr. Ornstein, of the American Enterprise Institute; Dan Ortiz, University of Virginia School of Law; and Josh Rosenkranz, from the New York University School of Law and the Brennan Center--wrote a response to these concerns. These are legal and constitutional scholars in response to some of the groups suggesting that somehow they would fear the same reprisal. They said: These groups, like any other group, may be entitled to an exemption from electioneering disclosure laws if they can demonstrate a reasonable probability that compelling disclosure will subject its members to threats, harassment, or reprisal; but the need for these kinds of limited exceptions certainly do not make general disclosure rules contained in the Snowe-Jeffords amendment unconstitutional. So, yes, exceptions can be made without making a broad ruling with respect to the constitutionality of any legislation that we might pass here. To further buttress this point in terms of anonymity of donors, the courts have indicated in the past that there is no generalized right to anonymity. The Senator from Vermont mentioned the Buckley case upheld that. Another case that has been identified here is McIntyre v. Ohio Elections. Justice Scalia said: The question relevant to our decision is whether a right to anonymity is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer is clearly no. He went on to say: Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a government periodical that has a ``letters to the editor'' column disavow the policy that most newspapers have against the publication of anonymous letters? . . . Must a municipal ``public access'' cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end. Scalia went on to say that not only is it not a right, disclosure can be helpful in curbing ``mudslinging'' and ``character assassination'' and improving our elections. So the point of it all is that disclosure is in our public interest. It is the public's right to know. That is essentially the thrust of the Snowe-Jeffords amendment--to require disclosure of major donors over $500. It is in all of our interest to have such a requirement. Now I yield to the Senator from Michigan 20 minutes.

Ms. SNOWE. That is correct.

Ms. SNOWE. Mr. President, I now yield 4 minutes to the Senator from Rhode Island.

Ms. SNOWE. I am glad to yield to the Senator from Vermont.

Ms. SNOWE

Ms. SNOWE. Mr. President, I am delighted to be able to yield a minute to my colleague from the State of Maine who has been a leader on campaign finance reform.

Ms. SNOWE. Mr. President, I now yield a minute to my colleague from Vermont, Senator Jeffords. I want to express my appreciation to him for all the work he has done on this amendment and his leadership on that as well.

Ms. SNOWE. Madam President, first of all, I express my appreciation to my colleague, Senator Jeffords, for all of his efforts, and to all of my colleagues who have supported this endeavor. First of all, Madam President, I ask unanimous consent to have printed in the Record a letter from Public Citizen. I know my friend, the Senator from Kentucky, quoted portions of their letter opposing disclosure. But they have distributed a letter in support of the limited disclosure in the Snowe-Jeffords amendment. In fact, they said, ``Opponents of reforms assert that they would violate freedom of speech. But what they are really protecting is the freedom to spend unlimited dollars to corrupt our democratic process.'' They support our amendment.

Ms. SNOWE. Madam President, before we vote on the motion to table the Snowe-Jeffords amendment I want to thank Senator Jeffords for his tremendous work and leadership on this issue, as well as the cosponsors of the amendment--Senators Levin, Lieberman, McCain, Feingold, Chafee, Collins, and Thompson--for their invaluable comments and support. We have had a good debate on this amendment this afternoon, but we have also heard a great many misconceptions. So before we vote, I want to once again speak to the importance of this amendment, what it really does and doesn't do, and why the American people are counting on us to pass it. Madam President, the Supreme Court has made clear that, for constitutional purposes, electioneering is different from other speech. And the Supreme Court has also never held that there is only a single, constitutionally permissible route a legislature may take when it defines ``electioneering'' to be regulated or reported. To the contrary, Congress has the power to enact a statute that defines electioneering in a more nuanced manner, as long as its definition adequately addresses the vagueness and overbreadth concerns expressed by the court. This compromise amendment carves out, in a clear and narrow way, a new category of electioneering that meets the Court's criteria. It draws a bright line between issue advocacy--which we don't want to infringe--and electioneering by laying out specific criteria that must be met in order to trigger the requirements of our amendment. Medium: The ad must be broadcast on radio or television. Timing: The ad must be aired shortly before an election--within 60 days before a general election or 30 days before a primary. Candidate Specific: The ad must mention a candidate's name or identify the candidate clearly. Targeting: The ad must be targeted at voters in the candidate's state. Threshold: The sponsor of the ad must spend more than $10,000 on such electioneering ads in the calendar year. If and only if a broadcast communication meets all of these criteria do the following rules apply: First, the electioneering ad cannot be paid for directly or indirectly by funds from a business corporation or labor union. Advocacy groups could not use such funds to run electioneering ads. They could however, engage in unlimited electioneering ads using individual, voluntary funds. This provision builds on nearly a century of law and Supreme Court cases that restrict the use of union and corporate treasury money in politics. It is balanced in that it treats corporations and unions equally, and it gets at part of the problem of these entities using member dues and shareholder monies without their consent. Second, the sponsor of an electioneering ad must disclose the amount spent and the identity of contributors who donated more than $500 toward the ad. This is entirely in keeping with the Supreme Court's Buckley decision, which stated that ``the governmental interests that justify disclosure of election-related spending are considerably broader and more powerful than those justifying prohibitions or restrictions on election-related spending.'' Indeed, the Court put forward a threshold of $200 in terms of contributions candidates need to disclose--our amendment's threshold is more than double that. We don't prohibit advocacy groups from disseminating electioneering communications. We don't prohibit such groups from accepting union or corporation money. We don't require such groups to create PACs or separate entities. We don't address voter guides, pamphlets, or any other print media. We don't affect groups' ability to urge grassroots contacts with lawmakers. We don't have invasive disclosure rules that require the disclosure of entire membership lists. We don't require the disclosure of the text of any ads. We don't even say that corporation or union leaders can't engage in political speech--just that they do it through a voluntarily, individually funded PAC. That's it, Madam President--that's our amendment. A simple, straightforward, reasonable, constitutional, brightly drawn line between issue advocacy and electioneering that only applies 30 days before a primary and 60 days before an election, if a candidate is identified, and only if more than $10,000 is spent. But you don't have to just take my word for it. The approach was developed by noted experts and reformers including Norm Ornstein of the American Enterprise Institute, Dan Ortiz at the University of Virginia School of Law, Josh Rosenkranz at the Brennan Center for Justice at NYU and others. And their approach has also been endorsed by Professor Thomas Baker, Texas Tech University School of Law; Professor Paul Kurtz, University of Georgia Law School; Professor William Cohen, Stanford Law School; Professor Harold Maier, Vanderbilt Law School; Professor Abner Mikva, University of Chicago; Professor Robert Aromson, University of Washington School of Law; Professor Ralph Stein, Pace University School of Law; Professor Robert Benson, Loyola Law School; Professor Elwood Hain, Whittier Law School; Professor Ann Freedman, Rutgers Law School, and Professor William Rich, Washburn University School of Law. Why? Why are all of these prominent scholars in agreement with this approach? Because it represents a common sense, middle ground approach around which the Senate can coalesce. That's the heart of compromise-- some feel the amendment doesn't go far enough, some wouldn't go as far. But this amendment would take substantial steps toward providing accountability in an exploding and currently unaccountable area of campaigning, and it would take steps toward abating some of the valid concerns raised about the use of union dues and shareholder monies for political purposes. Madam President, we've come to the bottom line here. Either we vote to keep the system as it is--either we vote to continue to allow hundreds of millions of dollars to be spent to influence federal elections without one dime having to be disclosed--or we take a tangible, incremental step toward addressing these abuses. A vote against this amendment is a vote against disclosure--and a vote for secrecy. A vote against this amendment is a vote against the public's right to know who is pouring millions into influencing our elections, and a vote for keeping America in the dark. A vote against this amendment is a vote against putting electioneering ads back into the hands of individuals and a vote for the involuntary use of union dues and shareholder monies for blatant political ads. Madam President, groups spent $150 million or more--we don't know because there is no accountability for these ads--to influence the 1996 elections. That's about one-third of what all federal candidates spent on advertising. This is a massive force invading our system of elections in this country, flying under the radar screen of disclosure or any other accountability. And it's only going to get worse. All we are saying is, let's have some disclosure for these ads, let's give the public information they need in order to make informed decisions, and let's fund these ads with voluntary, individual contributions. That's not an infringement on free speech. That is bringing the facts about elections in America out of the shadows and into the light of debate and discourse. I hope my colleagues will join me in supporting this sensible, incremental approach that will advance the ball for campaign reform. Because frankly, if you can't support this--if you can't support disclosure--I don't know what kind of reform you can support. And the American people will be watching. The American people will be watching, and they will remember who is truly interested in working to restore America's faith in their elections--and they will remember, too, who are the doorkeepers of the status quo. I again thank Senators Jeffords, McCain, Feingold, as well as all of my distinguished colleagues who have joined me in this effort. We are in the majority in this body and I hope after the tabling vote we will be able to have a true up-or-down vote on our amendment. Madam President, and Members of the Senate, in the final analysis, what the Snowe-Jeffords amendment is all about is disclosure. We have heard a lot of issues here today. We have heard a lot about Supreme Court cases and constitutionality and infringement on the first amendment rights of freedom of speech. There is nothing in the Snowe-Jeffords amendment that will restrict freedom of speech. Anybody, anytime, can run any ad. The question is whether or not the public will have the right to know who is sponsoring and financing those ads. Even then the threshold is high for disclosure--$500 or more in donation. I suspect that when Congress was debating the sunshine laws and the right-to-know laws and opening up all of the meetings in the U.S. Congress that we had pretty much the very same debate. A vote against the Snowe-Jeffords amendment is a vote for secrecy. A vote against the Snowe-Jeffords amendment is a vote for the lack of accountability. We don't want to be the doorkeepers of the status quo for a system that has been shrouded in secrecy by the very fact that we have $150 million spent in elections. In this last election, not one dime has been disclosed. Not one dime. We have heard about editorials and newspaper and the print media being excluded. Does anybody think for one moment that that is where the money is put? Absolutely not. We have $550 million total that goes into candidate advertising. And a third of that is not disclosed. That is the issue. It is whether or not you are for secrecy, or the public's right to know who is supporting those ads. That is what it is all about. We have heard about issue advocacy. I think the body should look at what we are talking about. We are talking about issue advocacy versus stealth advocacy. I ask unanimous consent for additional minute.

Ms. SNOWE. An issue ad that talks about the issues doesn't identify a candidate. This chart demonstrates the stealth advocacy that we are talking about that is not disclosed--that talks about individual candidates 60 days before election. And this one would run 60 days before the election naming the candidate. It says, he is just another Washington politician. He has taken over $250,000 from corporate special interest groups. He listens to them but he is not listening to us anymore. No one knows who sponsored that ad. That is what this is all about-- whether or not the public will have the right to know who is financing these ads.