Arlen Specter

Mr. SPECTER

Mr. SPECTER. May I ask my friend from Tennessee what language he refers to specifically?

Mr. SPECTER. I do.

Mr. SPECTER. If I may respond, that is always going to be a matter of application, no matter what legal standard you have. However specific it is, it has to be applied. When you refer, if I may direct this question to the Senator from Tennessee, to Snowe-Jeffords covering the Dole ads, the Clinton ads, the Gore ads, or the Bush ads, I think Snowe-Jeffords would cover the clearly identified candidate within a time limit, but it would not satisfy Buckley. Those are viewed as issue ads. They do not satisfy Buckley. With Furgatch, you advance the definition very substantially. You advance the definition with as much precision as the English language can give you. If you want to stick in ``vote for'' or ``vote against,'' OK, that is the language of Buckley. My own legal judgment--and this is a legal issue which is susceptible to different interpretations; it is not like being unambiguous or susceptible to no other interpretation--my view is that the language of a specified candidate and a time limit and a likeness has not come to grips with the specificity that Buckley looks for. They want something which is not vague. Perhaps the challenge is to come up with language which satisfies the Senator from Tennessee that it is not vague. I am open to suggestions, but I think we are not coming to grips with that clear-cut core issue on avoiding vagueness with what you have absent a definition such as Furgatch.

Mr. SPECTER. Why would they come under Snowe-Jeffords?

Mr. SPECTER. Mr. President, I disagree forcibly with my colleague from Tennessee. I do not think you have a bright line, you have a dull line. You have a definition which does not come to grips with what Buckley has said. When the Senator from Tennessee makes an argument that it begs the question to say something is legal or not, that is a fact that turns on a great many considerations as to whether something is legal or not. It involves a judgment and inferences. When you are talking about a factual matter, about ``no plausible meaning other than an exhortation to vote for or against a specific candidate,'' I again direct a question to the Senator from Tennessee: In dealing with the standard of vagueness, how can you have language which is more definitive on its face? Obviously, it is going to have to be applied. There is no question about that. I read at some length, if the Senator from Tennessee had an opportunity to listen to the Dole ads, the Clinton ads, the Bush ads, or the Gore ads--let me start with that question.

Mr. SPECTER. Mr. President, I thank the Senator from Tennessee for his analysis and observations and the question he raises. I respond by noting that where you have the likeness issue or requirement in Snowe- Jeffords, that does not deal with the Buckley requirement of the magic words ``vote for'' or ``vote against,'' and the likeness factor of Snowe-Jeffords is very similar to the language of McCain-Feingold which has ``refers to a clearly identified candidate for Federal office.'' Buckley has said you have to do something more, and what you have to do is be more explicit on voting for or against. Furgatch comes to grips with that issue on the language of its holding by the Ninth Circuit that it meets the Buckley test, although it does not use the magic words because it refers to a message being unmistakable, unambiguous, and suggestive of no plausible meaning. The ads which I read saying Clinton was wonderful and Dole was terrible were viewed as being issue ads--you have a clearly identified candidate, which is McCain-Feingold, and you could have a likeness, which would satisfy Snowe-Jeffords, but that does not meet the Buckley test. I argue as strenuously as I can that if the standard is ``unmistakable, unambiguous, and suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate,'' that comes to grips directly--directly--with the issue of vagueness. Let's discuss it for a minute or two, I say to Senator Thompson. How can the Senator say there is anything vague about a standard which is unmistakable?

Mr. SPECTER. I thank the Chair and yield the floor.

Mr. SPECTER. Mr. President, this amendment does two things. It sets forth findings which I believe are indispensable in order to have legislation which will pass review by the Supreme Court of the United States. In recent years, the Supreme Court has stricken a great deal of congressional legislation starting with Lopez in 1995, upsetting 60 years of solid precedents for Federal legislation under the Commerce Clause, and has invalidated on constitutional grounds, substantial legislation--the Disabilities Act, the provision of the Violence Against Women Act--on the basis that there is insufficient factual foundation. This amendment seeks to provide findings to pass constitutional muster. I shall deal with them in detail in this floor statement. Second, this amendment deals with the definition of what is an advocacy ad contrasted with an issue ad. The provision in the pending legislation, McCain-Feingold, says it is the purpose of this provision to try to establish a test which will pass constitutional muster under the decision of the Supreme Court in Buckley v. Valeo. It may be that this definition is sufficient to pass constitutional muster. It is arguable. It may be that this definition is not sufficient to pass constitutional muster. That is also arguable. The Supreme Court of the United States in Buckley, in 1976, said this: In order to preserve the provision against invalidation on vagueness grounds, section 601(e)(1) must be construed to apply only to expenditures for communications that, in express terms, advocate the election or defeat of a clearly identified candidate for Federal office. Then the Supreme Court drops a footnote which says: This construction would restrict the application of 608(e)(1) to communications containing express words of advocacy of election or defeat such as ``vote for,'' ``elect,'' ``support,'' ``cast your ballot for,'' ``Smith for Congress,'' ``vote against,'' ``defeat,'' ``reject.'' On its face, it seems difficult to see how the language from McCain- Feingold, in and of itself, would satisfy the mandate articulated by the Supreme Court of having language such as ``vote for, elect, support,'' et cetera, which is straightforward and unequivocal in expressing a view for the election of a candidate or the defeat of a candidate. Constitutional interpretation is complicated because different members of the nine-person Supreme Court see the issues differently, and especially at different times. A great deal has happened in the electoral process, with hard money and soft money and so-called issue ads, so that it is possible that a court, looking at this language in a different era and in a different context, might say that it is constitutional. From my view of the Constitution, it is hard to see that that would happen just on the face of the language which I have read. There is one opinion in a court of appeals, ninth circuit. Of course, the courts of appeals are right under the Supreme Court. It is a case which has articulated a different definition. The case is the Furgatch case, and that case said that the ad is an advocacy ad if the ``message is unmistakable, unambiguous, suggestive of only one plausible meaning.'' This is a very complicated field and unless you have read the cases and/or followed this debate very closely, it is hard to put all the pieces in place to understand the statutory and constitutional structure. But the rule has been if you have an advocacy ad, then it can be regulated by legislation. But if you have an issue ad, it cannot be regulated by legislation. Even with some advocacy ads--according to the Supreme Court decision in F.E.C. v Massachusetts Citizens For Life Committee--regulation doesn't pass constitutional muster because it is too much of an infringement on freedom of speech. The Court has set the ground rules to say that there must be corruption or the appearance of corruption which would warrant an infringement on first amendment rights of freedom of speech. And the Court has equated money with speech. To my thinking, that is a far stretch. I agree with Justice Stevens that the conclusion that money is speech is unreasonable because it so elevates money and what money can do in the electoral process. But, in any event, unless you have express advocacy under the Buckley decision, you cannot have any regulation at all. The amendment which I am offering today would take the Furgatch language and add it as an additional definition of what constitutes an advocacy ad. This language builds upon and does not in any way change the provisions of McCain-Feingold. And we do not address any other issue in this amendment as to who is covered or what the circumstances are, so that we have all the controversy about individuals, corporations, labor unions, or whatever--McCain-Feingold is left untouched. All we are doing is adding to the definition of an electioneering message to provide a solid basis for Supreme Court review to conclude that this legislation would deal with advocacy ads. The language in the amendment traces the language of Furgatch, and provides that there is an electioneering message which ``promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against the candidate.)'' The language I just read is existing in McCain-Feingold. The additional language is ``and which, when read as a whole, and in the context of external events''--that means what is happening in an election--``is unmistakable, unambiguous, and suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.'' What does that mean in the context of what has happened in the Presidential elections of 1996 and the year 2000? In 1996, the Democratic National Committee--I am going to come to Republican ads because this amendment is balanced between what Republicans have done and what Democrats have done in a way which is critical on all sides. I start first with the President Clinton advertisements run by Democratic National Committee. The announcer comes on and says: 60,000 felons and fugitives tried to buy handguns but couldn't because President Clinton passed the Brady bill-- five day waits, background checks. But Dole and Gingrich voted no. 100,000 new police--because President Clinton delivered. Dole and Gingrich? Vote no, want to repeal 'em. Strengthen school anti-drug programs. President Clinton did it. Dole and Gingrich? No again. Their old ways don't work. President Clinton's plan . . . As that advertisement is being read, any person listening would say that is an ad which advocates the election of President Clinton and advocates the defeat of Robert Dole. But under the interpretations of Buckley v. Valeo, because the magic words ``vote for'' or ``vote against'' are not used, that is deemed to be an issue ad and is not subject to the limitations of the Federal election campaign laws. Then turning to one of the advertisements coordinated between Senator Dole and the Republican National Committee, the announcer comes on: ``Three years ago, Bill Clinton gave us the largest tax increase in history, including a 4 cent a gallon increase on gasoline. Bill Clinton said he felt bad about it.'' [Clinton] ``People in this room still get mad at me over the budget process because you think I raised your taxes too much. It might surprise you to know I think I raised them too much, too.'' [Announcer] ``OK, Mr. President, we are surprised. So now, surprise us again. Support Senator Dole's plan to repeal your gas tax. And learn that actions do speak louder than words.'' Obviously, anybody listening to that advertisement would say it advocates the election of Senator Dole and it advocates the defeat of President Clinton. But that is not the result. The result under Buckley is that it is an issue ad, even though coordinated between the Clinton campaign and the Democratic National Committee; and then the other ad coordinated between Senator Dole's campaign and the Republican National Committee. They are issue ads and not subject to Federal regulation. Then the same pattern emerges in the election in the year 2000. An advertisement paid for by the Democratic National Committee said the following: George W. Bush chose Dick Cheney to help lead the Republican party. What does Cheney's record say about their plans? Cheney was one of only eight members of Congress to oppose the Clean Water Act . . . one of the few to vote against Head Start. He even voted against the School Lunch Program . . . against health insurance for people who lost their jobs. Cheney, an oil company CEO, said it was good for OPEC to cut production so oil and gasoline prices could rise. What are their plans for working families? Anybody listening to that television ad would say conclusively that the purpose of the ad was to defeat Mr. Cheney, and to elect the Gore- Lieberman ticket. But, under the Supreme Court decision in Buckley, that is considered to be an issue ad and not subject to regulation. How in the world can there be issue advocacy in advertisements which take up the Clean Water Act passed many years ago, or the Head Start Program, which is no longer in issue, or the school lunch program, or health insurance for people who lost their jobs? Those matters long since ceased to be issues. But, notwithstanding that, they are categorized as issue ads and not advocacy ads where the only purpose would be to advocate the defeat of Dick Cheney for Vice President and the defeat of the Bush-Cheney ticket. Under my amendment and the language of Furgatch, there would be no doubt that that message is ``unmistakable, unambiguous, and suggestive of only one plausible meaning.'' The ads of the Republican National Committee were similarly directed to defeat the Gore-Lieberman ticket. This is an illustrative ad by the Republican National Committee. [Announcer] ``Under Clinton-Gore, prescription drug prices have skyrocketed, and nothing's been done. George Bush has a plan: add a prescription drug benefit to Medicare.'' [George Bush] ``Every senior will have access to prescription drug benefits.'' [Announcer] ``And Al Gore? Gore opposed bipartisan reform. He's pushing a big government plan that lets Washington bureaucrats interfere with what your doctors prescribe. The Gore prescription plan: bureaucrats decide. Bush prescription plan: seniors choose.'' Obviously, that is an ad which advocates the election of George Bush and advocates the defeat of Vice President Gore. But under the Buckley decision, that would be an issue ad and not subject to Federal regulation. The findings set forth in my amendment recite the essential facts of how the candidates coordinated these advertisements with their parties. Findings 7, 8, and 9, starting on page 2, line 29, recites: During the 1996 Presidential primary campaign the Clinton Committee and the Dole Committee both spent millions of dollars in excess of the overall Presidential primary spending limit that applied to each of their campaigns, and in doing so, used millions of dollars in soft money contributions that could not legally be used directly to support a Presidential campaign. The Clinton and Dole Committees made these campaign expenditures through their respective national political party committees, using these party committees as conduits to run multi-million dollar television ad campaigns to support their candidacies. These television ad campaigns were in each case prepared, directed, and controlled by the Clinton and Dole campaigns. And finding 10, page 3, line 13: Former Clinton adviser Dick Morris said in his book about the 1996 elections that President Clinton worked over every script, watched each advertisement, and decided which advertisements would run where and when. Finding 11, page 3, line 17: Then-President Clinton told supporters at a Democratic National Committee luncheon on December 7, 1995, that, ``We realized that we could run these ads through the Democratic Party, which meant that we could raise money in $20,000 and $50,000 blocks. So we didn't have to do it all in $1,000 and run down what I can spend, which is limited by law so that is what we've done.'' There is no doubt about the fact of coordination when it comes from the mouth of the Presidential candidate, President Clinton, running for reelection and from Dick Morris, his campaign manager. Findings 18, 19, and 20, starting on page 5, line 9, recites: After reviewing spending in the 1996 Presidential election campaign, auditors for the Federal Election Commission recommended that the 1996 Clinton and Dole campaigns repay $7 million and $17.7 million, respectively, because the national political parties had closely coordinated their soft money issue ads with the respective presidential candidates and, accordingly, the expenditures would be counted against the candidates' spending limits. The repayment recommendation for the Dole campaign was subsequently reduced to $6.1 million. On December 10, 1998, on a 6-0 vote, the Federal Election Commission rejected its auditors' recommendation that the Clinton and Dole campaigns repay the money. The pattern of close coordination between candidates' campaign committees and national party committees continued in the 2000 Presidential election. The Supreme Court of the United States, in Buckley v. Valeo, made a conclusive finding that such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act. But notwithstanding that clear-cut statement of law, when the Federal Election Commission picked up the issue and had a decision to make, the Federal Election Commission said that there was not a violation of the Federal election law. The findings go into some detail about the experience of the 25 years since the 1976 decision of Buckley v. Valeo on the number and frequency of advertisements which avoid being advocacy ads because they leave out the magic words. We recite the finding that in 1996 there was an estimated $135 million spent on these so-called issue advertisements. The estimate for 1998 ranged from $275 to $340 million. And for the 2000 election, the estimate for spending on such advertisements exceeded $340 million. In Buckley v. Valeo, the Supreme Court of the United States said that legislation affecting campaign contributions would be based on corruption or the appearance of corruption. Since the Buckley decision was decided, there have been many books written documenting the details of corruption and the public perception of the appearance of corruption. It is not a cottage industry; it is a major national industry. Last year, the year 2000, a book was edited by Robert Williams entitled ``Party Finance and Political Corruption.'' In 1999, a book was published ``Corruption, Public Finances, and the Unofficial Economy,'' by Johnson, Kaufmann and Zoido-Lobatoon. In 1999, an incisive book entitled ``The Corruption of American Politics: What Went Wrong and Why'' was written by Elizabeth Drew, tracing the Governmental Affairs hearings in 1997. In 1998, a book was written by Timperlake and Triplett entitled, ``Year of the Rat: How Bill Clinton Compromised U.S. Security for Chinese Cash.'' In 1998, a book was written by Cecil Heftel, entitled, ``End Legalized Bribery: An Ex-Congressman's Proposal to Clean Up Congress.'' The findings recite a great many books, including Philip Stern's 1988 book, trenchantly entitled, ``The Best Congress Money Can Buy.'' There is an unmistakable basis for this kind of legislation and the tightening of legislation that reaches these issue ads. The reports on the appearance of corruption are as fresh as yesterday's newspaper. The New York Times reported on March 13--finding No. 30-- A lobbying campaign led by credit card companies and banks that gave millions of dollars in political donations to members of Congress and contributed generously to President Bush's 2000 campaign is close to its long-sought goal of overhauling the nation's bankruptcy system. On March 16, a New York Times editorial observed: Business interests generously supported Republicans in the last election and are now reaping the rewards. On a bipartisan basis--the Washington Post, on September 15, 2000, criticized the Democrats, noting that--finding number 27, at page 8 of this amendment-- A group of Texas trial lawyers with whom former Vice President Gore met in 1995, contributed thousands of dollars to the Democrats after President Clinton vetoed legislation that would have strictly limited the amount of damages juries can award to plaintiffs in civil lawsuits. Finding 28, page 8, line 21: According to an article in the March 26, 2001 edition of U.S. News and World Report, labor-related groups--which count on their Democratic allies for support on issues such as the minimum wage that are important to unions--spent more than $83.5 million in the 2000 elections, with 94 percent going to Democrats, prompting some labor figures to brag that without labor's money, the election would not have been nearly as close. Finding 32, page 9, line 19: It has become common practice to reward big campaign donors with ambassadorships, with an informal policy dating back to the 1960s allocating about 30 percent of the nation's ambassadorships to non-career appointees. According to a Knight Ridder article from November 13, 1997, former President Nixon once told his White House Chief of Staff that ``Anybody who wants to be an ambassador must at least give $250,000.'' That, in essence, sets forth findings which, in my legal opinion, warrant the legislation being considered today, although, candidly, it may be wise to add even more findings in the face of what the U.S. Supreme Court has done recently in invalidating congressional legislation on constitutional grounds, notwithstanding very strong findings, as I believe these findings are. The essence of the legislation goes to a standard which would satisfy the U.S. Supreme Court, although, realistically, the language of McCain-Feingold and even the language of Furgatch does not come directly in line with what the Supreme Court said in Buckley when they talked about a ``vote for'' or ``vote against.'' I believe that in the context of what has happened with money and elections, with the language of Furgatch supplementing the language of McCain-Feingold, this bill would definitely pass constitutional muster. I refer to an extensively quoted bit of language from the opinion of Justice Robert Jackson in a case captioned United States v. Five Gambling Devices, decided in 1953, where Justice Jackson said the following at page 449 of volume 346 of U.S. Reports: This court does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power. The rational and practical force of the presumption is at its maximum only when it appears that the precise point in issue here has been considered by Congress and has been explicitly and deliberately resolved. What we are doing in this bill is seeking to overturn the direct holding in Buckley v. Valeo which has required the magic words ``vote for'' or ``vote against.'' But as Justice Jackson has noted and as constitutional doctrine has evolved, the court will give special consideration to what the Congress does in a specific context where it appears that ``the precise point in issue has been considered by Congress and has been explicitly and deliberately resolved.'' I submit that if you take the underlying language of McCain-Feingold on the definition of an electioneering communication and add to it the language of Furgatch, that Congress is coming to grips explicitly and deliberately with what the court has done and that, building upon the strong presumption which Justice Jackson notes is present, the strong presumption of constitutionality to Acts of Congress, and then looking to Buckley itself, which said their concern arose that there not be constitutional invalidity because of vagueness, I do not believe there is any realistic way it can be said that there is anything vague about a standard which is ``unmistakable, unambiguous, and suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.'' That certainly satisfies the court's requirement that the legislation not be vague. With this language, we will end the charade of having these extraordinary ads which, on their face and in the context of their substance, urge the election of a candidate and the defeat of another but, because of the absence of the magic Buckley words, are held to be issue ads and outside the purview of Federal control. This language will end that charade, will end the trauma caused by soft money in enormous sums, and put some sense back into the campaign finance laws. I inquire how much time is left of the 3 hours allocated to the sponsor of the amendment.

Mr. SPECTER. I ask unanimous consent the reading of the amendment be dispensed with.

Mr. SPECTER. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

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

Mr. SPECTER

Mr. SPECTER. I suggest the absence of a quorum.

Mr. SPECTER. Mr. President, I have sought recognition in morning business to reference legislation on campaign finance reform which I originally offered on September 18, 1997, as S. 1191. I refer to it today because there are a number of specific provisions which may form the basis for amendments to S. 27. I wanted to give my colleagues express notice that I might be offering such. My bill does six things: First, it eliminates soft money; second, defines express advocacy; third, requires affidavits for independent expenditures; fourth, adopts the Maine standby public financing provision; fifth, eliminates foreign transactions which funnel money into U.S. campaigns; sixth, limits and requires reporting of contributions to legal defense funds. A major portion of debate will occur on the issue of soft money. The Supreme Court of the United States in Buckley v. Valeo defined advocacy and issue ads in a way which has been very perplexing and very troubling, and in Buckley v. Valeo the Supreme Court said: In order to preserve the provision against invalidation on vagueness grounds, section 6608(e)(1) must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for Federal office. And then the Supreme Court went on to amplify what express advocacy meant, saying vote for X or vote against X. There have been decisions which have said that it is not mandatory to have a statement ``vote for'' or ``vote against'' in order to satisfy the requirements of express advocacy. It is my view that in the ensuing 25 years we have seen advertisements which were clear cut advocacy ads which did not contain any magic words such as ``vote for'' or ``vote against.'' I would give two illustrations--one from the Democratic National Committee and a second from the Republican National Committee in the 1996 Presidential election. A Democratic National Committee television commercial said: American values. Do our duty to our parents. President Clinton protects Medicare. The Dole-Gingrich budget tried to cut Medicare $270 billion. Protect families. President Clinton cut taxes for millions of working families. The Dole- Gingrich budget tried to raise taxes on eight million of them. Opportunity. President Clinton proposes tax breaks for tuition. The Dole-Gingrich budget tried to slash college scholarships. Only President Clinton's plan meets our challenges. Protect our values. Inexplicably, this has been viewed as an issue ad, but nothing could be clearer on its face than that it advocates the election of then- President Clinton and the defeat of then-candidate Senator Dole. Then compare a Republican National Committee ad. The announcer comes on and says: Compare the Clinton rhetoric with the Clinton record. Then President Clinton comes on in a video tape saying: We need to end welfare as we know it. Then the announcer comes back and says: But he vetoed welfare reform not once but twice. He vetoed work requirements for the able-bodied. He vetoed putting time limits on welfare, and Clinton still supports giving welfare benefits to illegal immigrants. The Clinton record hasn't matched the Clinton record. Then President Clinton's face comes on and he says on a video tape: Fool me once, shame on you. Fool me twice, shame on me. Then the announcer comes on and says: Tell President Clinton you won't be fooled again. Here again the other side of the coin--inexplicably interpreted to be an issue ad and not an advocacy ad. In my judgment, Mr. President, those ads clearly constitute advocacy. And when the Supreme Court in Buckley v. Valeo said they needed to preserve the act against invalidation on vagueness grounds, I would suggest that what has happened in the intervening 25 years is that advocacy ads may now be defined legislatively. And as Justice Jackson said in one of his famous comments, when there are close issues and there is a congressional declaration, that is weighed very heavily by the Court on the consideration even of constitutional issues. The Supreme Court has ruled in Buckley v. Valeo on the critical issue of coordination, saying that when ``expenditures are controlled by or coordinated with the candidate and his campaign,'' that such control or coordinated expenditures are treated as contributions rather than expenditures. So the Court said if you have coordination on soft money, it constitutes a contribution and would be governed by the limitations of the Federal election campaign law. But what has occurred is exactly the opposite. In a 6-0 vote on December 10, 1998, the Federal Election Commission rejected its auditor's recommendation that the 1996 Clinton and Dole campaigns repay $17.7 million and $7 million, respectively, because the national committee parties had closely coordinated their soft money issue. Here we have the Supreme Court saying that where there is coordination, they count, but you have coordination and the rule is flouted by the Federal Election Commission, which again illustrates the need for a modification of what is advocacy, what is coordination, and what ought to be subject to campaign finance limitations. In Buckley v. Valeo, the Supreme Court ruled that: Even a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Then the Supreme Court goes on to talk about values to be preserved on the prevention of corruption and the appearance of corruption. It is obvious at this stage, some 25 years after Buckley v. Valeo, with the public indignation as to what has happened with the avalanche of soft money and with the concurrence of much official action in a close time sequence with the avalanche of enormous sums of soft money, so that when the Supreme Court talks about the appearance of corruption, which of course is different from corruption--it is very difficult to prove a bribe, very difficult to prove a quid pro quo to establish the existence of corruption--but when the Court recognizes the ``appearance of corruption'' as a factor which justifies limitation on speech, then, with the 25 years of experience, it is my view that legislation directed at soft money and directed at a modification of the definitions of advocacy and issue ads would be upheld as being constitutional. The legislation which I am introducing today with respect to soft money would prohibit the national committees or political parties from soliciting or receiving any contributions not subject to the provisions and caps of the Federal Election Campaign Act and provides further that State party committee expenditures that may influence the outcome of a Federal election may be made only from funds subject to the limitations and prohibitions imposed by Federal law. The bill requires affidavits for independent expenditures for the individual making the so-called independent expenditure and affidavits from the candidate, the campaign manager, and the campaign treasurer that, in fact, those so-called independent expenditures were not made in coordination with the campaign. There is obviously a great deal more attention paid on individual conduct where that conduct is subject to an affidavit which is prosecutable under the substantial penalties for perjury. There is continuing suspicion that these so-called independent expenditures are, in fact, not independent. The Supreme Court, in Buckley v. Valeo, has upheld independent expenditures saying that freedom of speech entitles someone to spend as much money as he or she may choose as long as it is not in coordination with the candidate or the campaign. In order to take a significant step forward in ascertaining and ensuring that so-called independent expenditures are really independent, my legislation calls for that kind of an affidavit. The provision relating to the Maine standby public financing provision is an interesting one, which provides for public funding when an individual spends a phenomenal sum of money for his or her own campaign. It is an open secret that individuals are prepared to spend virtually unlimited sums of money, as illustrated by the past election, or by prior elections. I oppose public financing generally, but it seems to me that where that sort of excessive expenditure is made, there ought to be public financing which would come into play to match that enormous outpouring of an individual's wealth. If public financing were available, it is obvious that the individual wouldn't be inclined to spend all of his or her own money if it were to be matched by public funding. In a day when seats in the Senate are subject to purchase, the Maine standby provision is one which ought to be adopted as a matter of Federal law. We are about to embark on the consideration of the McCain-Feingold, S. 27, at 1 o'clock. The provision of this legislation which I am submitting now, which, as I say, had been submitted on September 18, 1997, as then S. 1191, contains a number of revisions which are possibilities for my offering as amendments to S. 27. There is no doubt that we are going to become very deeply involved in the constitutional issue on what is an issue ad and what is an advocacy ad and how we deal with soft money. In the 1996 Presidential elections, the line was blurred beyond recognition between party and candidate activities. There is substantial evidence that soft money was spent illegally during the 1996 campaign by both parties. According to a November 18, 1996, article in Time magazine, President Clinton's media strategists collaborated in the creation of a DNC television commercial. The article describes a cadre of Clinton-Gore advisors, including Dick Morris, working side by side with DNC operatives to craft the DNC advertisement which extolled the President's accomplishments and criticized Republican policies. Republicans did the same. Such cooperation constitutes violation of the Federal Election Campaign Act [FECA] which provides: Expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate. 2 U.S.C. 441a(a)(7)(B)(1) Thus, if the alleged cooperation between the Clinton/Gore campaign and the DNC took place, then all of the money spent on those DNC advertisements constituted contributions to the Clinton campaign. Under FECA, such contributions would have to be reported upon receipt and would have to be included when calculating the campaign's compliance with FECA's strict contribution and expenditure limits. The failure to treat the expenditures as contributions would be a violation of FECA, and the knowing and willful failure to treat the expenditures as contributions would be a criminal violation of FECA. There are indications that the Clinton/Gore campaign advisors did realize they were violating the law at the time. The Time article quotes one as saying, ``If the Republicans keep the Senate, they're going to subpoena us.'' The content of the DNC and RNC advertisements appears to have violated Federal election law. When an entity engages in issues advocacy to promote a particular policy, it is exempt from the limitation of FECA and can fund these activities from any source. When an entity engages in express advocacy on behalf of a particular candidate, it is subject to the limitations of FECA and is not permitted to fund such activities with soft money. Where the DNC and RNC advertisements did contain express advocacy, and funded these advertisements with soft money, then these committees violated FECA. The FEC defines ``express advocacy'' as follows: Communications using phrases such as ``vote for President,'' ``reelect your Congressman,'' ``Smith for Congress,'' or language which, when taken as a whole and with limited reference to external events, can have no other reasonable meaning than to urge the election or defeat of a clearly identified federal candidate. 11 CFR 100.22 In my judgment, both the DNC and RNC television advertisement crossed the line from issues advocacy to express advocacy. While the DNC and RNC ads did not use the words ``Vote for Clinton'' or ``Dole for President,'' these advertisements certainly urged the election of one candidate and the defeat of another. For example, the following is the script of a widely broadcast DNC television commercial: American values. Do our duty to our parents. President Clinton protects Medicare. The Dole/Gingrich budget tried to cut Medicare $270 billion. Protect families. President Clinton cut taxes for millions of working families. The Dole/ Gingrich budget tried to raise taxes on eight million of them. Opportunity. President Clinton proposes tax breaks for tuition. The Dole/Gingrich budget tried to slash college scholarships. Only President Clinton's plan meets our challenges, protects our values. Does this advertisement convey any core message other than urging us to vote for President Clinton? The RNC ads similarly crossed the line into express advocacy. The following is the script of a widely broadcast RNC television commercial: (Announcer) Compare the Clinton rhetoric with the Clinton record. (Clinton) ``We need to end welfare as we know it.'' (Announcer) But he vetoed welfare reform not once, but twice. He vetoed work requirements for the able-bodied. He vetoed putting time limits on welfare. And Clinton still supports giving welfare benefits to illegal immigrants. The Clinton rhetoric hasn't matched the Clinton record. (Clinton) ``Fool me once, shame on you. Fool me twice, shame on me.'' (Announcer) Tell President Clinton you won't be fooled again. Similarly, the Democrats, through their shared use of campaign consultants such as Dick Morris for Clinton-Gore 1996 and the Democratic National Committee, crossed the line into illegal contributions on television advertisements. There has been substantial information in the public domain about the President's personal activities in preparing television commercials for the 1996 campaign. The activity of the President has been documented in a book by Dick Morris and in public statements by former Chief of Staff, Leon Panetta. There is no doubt--and the Attorney General conceded this in oversight hearings by the Judiciary Committee on April 30, 1997--that there would be a violation of the Federal election law if, and when the President prepared campaign commercials that were express advocacy commercials contrasted with issue advocacy commercials. This bill will end the charade by providing a clear-cut statutory definition of express advocacy wherever the name or likeness of a candidate appears with language which praises or criticizes that candidate. This bill would put teeth into the law to make independent expenditures truly independent. Current law requires political committees or individuals to file reports quarterly until the end of a campaign and to report expenditures of more than $1,000 within 24 hours during the final 20 days of the campaign. This legislation would require reporting for independent expenditures of $10,000 or more within 24 hours during the last 3 months of a campaign. This bill would require the individual making the independent expenditure or the treasurer of the committee making the independent expenditure to take and file an affidavit with the FEC that the expenditures were not coordinated with the candidate or his-her committee. Then, the Federal Election Commission would notify within 48 hours the candidate, campaign treasurer, and campaign manager of that independent expenditure. Those individuals would then have 48 hours to take and file affidavits with the FEC that the expenditures were not coordinated with the candidate or his/her committees. Taking such affidavits coupled with the penalty for perjury would be significant steps to preclude illegal coordination. Anyone who watched the Governmental Affairs hearings in 1997 knows the alarming role of illegal foreign contributions in our 1996 campaigns. This legislation would strengthen the existing law to better prevent transactions which effectively fund domestic political campaigns with foreign financing schemes. Under current law, it is illegal for a foreign national to contribute money or anything of value, including loan guarantees, either directly or indirectly through another person, in connection with an election to any political office. Knowing and willful violations can result in criminal penalties against the offending parties. Mr. Haley Barbour's testimony before the Governmental Affairs Committee in 1997 highlights the need to strengthen and more actively enforce the foreign money statute to ensure that foreign nationals do not circumvent this intended prohibition on foreign political contributions. This bill would clarify the law to cover all arrangements from foreign entities through third parties where funds from these transactions ultimately reach a U.S. political party or candidate. In his testimony, Mr. Barbour acknowledged that the National Policy Forum [NPF], which he headed, received a $2.1 million loan guarantee in October 1994, from Young Brothers Development, the U.S. subsidiary of a Hong Kong company which provided the money. The loan guarantee served as collateral for a loan NPF received from a U.S. bank. Shortly thereafter, NPF sent two checks totaling $1.6 million to the Republican National Committee [RNC]. NPF ultimately defaulted on its loan with the U.S. bank and Young Brothers eventually ended up paying approximately $700,000 to cover the default. The weak link in the existing law is that many people have argued that the Federal campaign finance law does not apply to soft money. Accordingly, there are those who would argue that the NPF transaction described above would be legal so long as only soft money was involved. We need to make it 100 percent clear that foreign nationals cannot contribute to U.S. political parties or candidates under any circumstances. My bill closes this potential loophole by explicitly stating that the foreign money provisions of the bill apply to all foreign contributions and donations, both soft and hard money. The decision of the Supreme Court of the United States in Buckley versus Valeo prohibits legislation limiting the amount of money an individual may spend on his-her campaign. Maine recently enacted a statute designed to deal with this issue which provides a model for Federal legislation. Under the Maine legislation, a voluntary cap is placed on the total amount that candidates can spend during their campaigns for public office. The law further provides that if one candidate exceeds the spending limit, an opponent who has complied with the limit will be given public matching funds in an amount equal to the amount by which the offending candidate exceeded the spending limit. With such matching funds available, it would be a real deterrent to prevent a candidate from exceeding the expenditure cap since that candidate would no longer receive an advantage from his or her additional expenditure. This provision would probably not result in significant public expenditures; and to the extent it did, it would be worth it. This bill would subject contributions for legal defense funds to limits and mandatory disclosure for all Federal office holders and candidates. Testimony before the Governmental Affairs Committee in 1997 disclosed that Mr. Yah Lin ``Charlie'' Trie brought in $639,000 for President Clinton's legal defense fund. While those funds were ultimately returned, there was never any identification of the donors and the fact of those contributions was delayed until after the 1996 election. Contributions to legal defense funds pose a public policy issue similar to campaign contributions. This bill would impose the same limits on contributions to legal defense funds which are required for political contributions. Mr. President, I ask unanimous consent that the legislation I introduced in 1997, along with an executive summary, be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, before being allotted my 10 minutes, I have been asked by the distinguished majority leader to make the following announcement. Today, the Senate will be in a period of morning business until 1 p.m. Following morning business, the Senate will begin debate on S. 27, the campaign finance reform bill. Under the agreement, each amendment offered will have up to 3 hours of debate prior to a vote on or in relation to the amendment. Amendments are expected to be offered during today's session. However, any votes ordered will be stacked to occur later today. Senators will be notified as a vote time is scheduled. Members are encouraged to offer their amendments as soon as possible in order to complete the bill in a timely manner. I thank my colleagues for their attention.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that I be permitted to have the first 10-minute block of morning business.

Mr. SPECTER

Mr. SPECTER. Mr. President, the Committee on Veterans' Affairs has adopted rules governing its procedures for the 107th Congress. Pursuant to Rule XXVI, paragraph 2, of the Standing Rules of the Senate, on behalf of myself and Senator Rockefeller, I ask unanimous consent that a copy of the Committee rules be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, if I might respond, I do not think it was the intention to have any delay but only an intention to keep the current rule in effect until a new rule could be promulgated or this rule might be revised. I would be very interested to work with my colleague from Virginia on an expedited process. One of the suggestions I made with the witnesses I had this morning was to have the experts come in to a hearing on my subcommittee and let's have at it. Let's have it out. I would be interested to know what the Senator from Virginia thinks might be a timetable for getting a new rule.

Mr. SPECTER. I thank my colleague from Oklahoma for his response. I have taken a few moments of the Senate's floor time today, having reserved actually some 15 minutes, to express my concerns. I am continuing to listen to the debate. I have received, as one might expect with a constituency such as mine in the Commonwealth of Pennsylvania, a great many calls. I am continuing to weigh the issues. I note the presence on the floor of the Senator from Massachusetts, who had an idea about the potential for a 2-year delay, which might be accomplished with an amendment to another bill, such as the bankruptcy bill. These issues are complicated. Trying to balance the interests of the working men and women of America with the interests of the employers of America, especially small businesses, trying to figure out how to have rules which are fair and just to all sides, is not an easy matter. I have expressed the concerns I have today. I continue to weigh this matter as I listen to the floor debate. Exhibit 1 Secretary of Labor Washington, DC, March 6, 2001. Hon. Arlen Specter, Chairman, Subcommittee on Labor, Health and Human Services, Education Committee on Appropriations, U.S. Senate, Washington, DC. Dear Chairman Specter. It is my understanding that the Senate will soon consider a Joint Resolution of Disapproval pertaining to the Occupational Safety and Health Administration's (OSHA) ergonomics standard. As you are aware, the Congressional Review Act of 1996 gives Congress the authority to vitiate this standard and permanently prevent OSHA from promulgating a rule in substantially the same form. Let me assure you that, in the event a Joint Resolution of Disapproval becomes law, I intend to pursue a comprehensive approach to ergonomics, which may include new rulemaking, that addresses the concerns levied against the current standard. This approach will provide employers with achievable measures that protect their employees before injuries occur. Repetitive stress injuries in the workplace are an important problem. I recognize this critical challenge and want you to understand that the safety and health of our nation's workforce will always be a priority during my tenure as Secretary. I look forward to working with you throughout the entire 107th Congress. Sincerely, Elaine L. Chao, Secretary of Labor.

Mr. SPECTER. So the essence of the Senator's position is that the prohibition against reissuing a rule ``substantially in the same form'' is not a real impediment to the Secretary of Labor and of the current administration picking up the issue and coming out with a new regulation.

Mr. SPECTER. The Philadelphia Navy Yard was about to top you until some disaster occurred there.

Mr. SPECTER. If the Senator will yield, I think it might be useful, if possible, to have a suggested timetable to carry to the Secretary of Labor to try to have a target date to get this done.

Mr. SPECTER. While the Senator is on the floor, I want to inquire whether he, or perhaps the Senator from Oklahoma, or Senator Enzi, who has done such an outstanding job working in the subcommittee, would have any suggested timetable to which we might look on a new rule.

Mr. SPECTER. Mr. President, at a caucus discussion earlier today, I had a brief colloquy with my distinguished colleague from Oklahoma, Senator Nickles, which I would like to repeat the essence of now. That went to the issue of whether this legislative prohibition against issuing substantially the same rule would be an effective bar or, as one of the authors and having coauthored the statement of legislative intent, a new regulation would pass muster without a likely bar from the limitation of substantiality or substantially the same.

Mr. SPECTER. Mr. President, I thank my colleague from Oklahoma, Senator Nickles, for yielding to me. He was next in line. I have sought recognition to comment on the pending issue on the Congressional Review Act as it relates to the pending ergonomics rule. The issue before us at the moment has been a long, contentious one that I have had considerable contact with in connection with my responsibilities as chairman of the Appropriations subcommittee, which has jurisdiction over the Department of Labor. The issue of rulemaking on ergonomics has been around since a study was ordered more than a decade ago by then Secretary of Labor Elizabeth Dole. There have been a number of delays, as the issue has come before the subcommittee on appropriations for the Department of Labor where efforts have been made to withhold funding, and then to seek additional studies. There have been many studies, and there have been very substantial delays. I am concerned about the need to provide further protection to America's workers on repetitive motions and the other kinds of physical activity encompassed by this ergonomics rule. But I am also concerned about the complexity of the rule which is at issue here. In an effort to try to get additional factors which would bear on the question of cost and on the question of complexity, I convened a hearing which was held this morning--late notice on the hearing, but this matter has just been recently scheduled to be on the floor today. We heard from three witnesses who provided a fair amount of insight into the issue. We heard from Joseph M. Woodward, Esq., Associate Solicitor for Occupational Safety and Health at the Department of Labor; from Lynn Rhinehart, Esq., Associate General Counsel of the AFL- CIO; and Baruch A. Fellner, Esq., a partner at Gibson, Dunn & Crutcher--where his practice centers on employment law, with an emphasis on occupational safety and health; and he spoke, in essence, for the Chamber of Commerce and the business interests. In the course of this morning's hearing, I think it is fair to say there was generalized agreement on the need for regulation. But, there was total disagreement on the issue of what the cost of this regulation would be and whether the regulation needed to be as complex as it is. Mr. Woodward testified that the OSHA calculation was that the regulation would cost $4.5 billion, and there would be benefits of some $9.1 billion. Mr. Fellner testified that the cost could range from somewhere around $100 billion to as much as $1 trillion. When I asked Mr. Fellner what the benefits would be, if any, on the figure advanced by Mr. Woodward of $9.1 billion in benefits, contrasted with $4.5 billion in cost, Mr. Fellner said there were no real benefits; and if any did exist, they would be subsumed by the enormous amount of cost. In listening to these two witnesses testify, and in focusing on what the role of the Congress is, the Senate is--and my role as a Senator in trying to evaluate congressional review on agency rulemaking--I must say that I did not get a whole lot of guidance from these witnesses, as they testified as to what the cost factor would be. When we got into the issue of the complexity of the rule, again, it is a very complicated matter. We focused on a couple of the rules in particular--one, which was set forth on page 68848 of the Federal Register, Volume 65, No. 220, Tuesday, November 14, 2000, specifying a repetition rule: Repeating the same motions every few seconds or repeating a cycle of motions involving the affected body part more than twice per minute for more than 2 consecutive hours in a work day. There was considerable debate in the hearing this morning, but, again, not a whole lot of light shed as to what the real import was. Mr. Fellner made a suggestion that there ought to be experts convened--between 6 and 12 on each side--who would debate and discuss just exactly what this repetitive motion meant, to have some better appraisal and better understanding as to what the impact was on the individual who is subjected to that kind of work. Another rule which we considered at some length involved the force issue on the same page: Lifting more than 75 pounds at any one time; more than 55 pounds more than 10 times per day; or more than 25 pounds below the knees, above the shoulders, or at arms' length more than 25 times per day. The analysis again leaves me somewhat in a quandary as to really the import of the rule or exactly what its impact is and how important that is for the well-being of the employee, so that it is not an easy matter to make a calculation as to the import of those rules in terms of workers' safety contrasted with what the cost of those rules would be. I was concerned with the information heard this morning. We had an extensive informal meeting before going to the formal hearing, when the point was made that there had been no public comment on the specific rule which related to the action level, which means the repetitive motion for a period of time, and there had been no public comment on the hazard resolution. All of this, candidly, left me with the conclusion that there was a need for promoting worker safety; but a concern as to whether the entire matter ought to be substantially simpler. When we talk about the enormous volume, the regulations themselves cover 9 pages only, with 16 pages of factual backup, and then the balance of several hundred pages on analysis and hearings. The representation was made that if an employer is to really understand the rules to find out what has to be done, that employer is going to have to read the full text in order to have some real understanding. An additional concern I have turns on what will the effect be if this resolution of disapproval takes effect with respect to any later rulemaking. The statute in question, the congressional review of agency rulemaking has a provision: A rule that does not take effect or does not continue under paragraph 1 may not be reissued in substantially the same form. And a new rule that is substantially the same as such a rule may not be issued unless the new rule is specifically authorized by law enacted after the date of the joint resolution disapproving the original rule. From this language, I am concerned that a new rule may be subject to being invalidated if it is determined to be ``in substantially the same form.'' And I am concerned about the mischief that could come from virtually endless litigation, with what whatever any new rule may be, if it conflicts with that statutory provision on interpretation that it is substantially in the same form. I have conferred on this matter with my colleague from Oklahoma, Senator Nickles, who referred me to a joint statement which was made on the enactment of the Congressional Review Act back on April 18, 1996, a statement made by Senators Nickles, Reid, and Stevens, which constitutes the managers' interpretation. On page 3686 of the Congressional Record for April 18, 1996, the following language is set forth: If the law that authorized the disapproved rule provides broad discretion to the issuing agency regarding the substance of such rule, the agency may exercise its broad discretion to issue a substantially different rule. Then continuing somewhat later: It will be the agency's responsibility in the first instance when promulgating the rule to determine the range of discretion afforded under the original law and whether the law authorizes the agency to issue a substantially different rule. Then, the agency must give effect to the resolution of disapproval. The substance of this appears to state that where the agency has broad discretion, the agency can issue a new rule without falling under the prohibition of being substantially the same; that it is the agency's determination as to what discretion they have. I contacted the Secretary of Labor, Elaine L. Chao, about this matter yesterday and received a letter from her today saying in part: Let me assure you that in the event a Joint Resolution of Disapproval becomes law, I intend to pursue a comprehensive approach to ergonomics which may include new rulemaking that addresses the concerns levied against the current standard. The key word there, of course is ``may.'' So that it is within the discretion of the Secretary of Labor and that, of course, would remain to be seen. The letter does signify, in addition to the conversation I had with Secretary Chao, her concern about the entire issue and her determination to take a very close look at it, which is some assurance but obviously not totally dispositive. I ask unanimous consent that the full text of the letter be printed in the Record at the conclusion of my remarks.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation that will honor the importance of the steel industry in the Commonwealth of Pennsylvania and the nation by creating the ``Steel Industry National Historic Park'' to be operated by the National Park Service in southwestern Pennsylvania. The importance of steel to the industrial development of the United States cannot be understated. A national park devoted to the history of the steel industry will afford all Americans the opportunity to celebrate this rich heritage, which is symbolic of the work ethic endemic to this great nation. There is no better place for such a site than in southwestern Pennsylvania, which played a significant role in early industrial America. I have long supported efforts to preserve and enhance this historical steel-related heritage through the Rivers of Steel Heritage Area, which includes the City of Pittsburgh, and seven southwestern Pennsylvania counties: Allegheny, Armstrong, Beaver, Fayette, Greene, Washington and Westmoreland. I have been very pleased with congressional support for the important work within the Rivers of Steel Heritage Area expressed through appropriations levels of $1 million annually since Fiscal Year 1998. I am hopeful that this support will continue however, more than just resources are necessary. That is why I am introducing this important legislation today. It is important to note why southwestern Pennsylvania should be the home to the national park that my legislation authorizes. The combination of a strong workforce, valuable natural resources, and Pennsylvania's strategic location in the heavily populated northeastern United States allowed the steel industry to thrive. Today, the remaining buildings and sites devoted to steel production are threatened with further deterioration or destruction. Many of these sites are nationally significant and perfectly suited for the study and interpretation of this crucial period in our nation's development. Some of these sites include the Carrie Furnace complex, the Hot Metal Bridge, and the Unites States Steel Homestead Works, which would all become a part of the Steel Industry National Historic Park under my legislation. Highlights of such a national park would commemorate a wide range of accomplishments and topics for historical preservation and interpretation from industrial process advancements to labor-management relations. It is important to note that the site I seek to become a national park under this bill includes the location of the Battle of Homestead, waged in 1892 between steelworkers and Pinkerton guards. The Battle of Homestead marked an important period in our nation's workers' rights movement. The Commonwealth of Pennsylvania, individuals, and public and private entities have attempted to protect and preserve resources such as the Homestead battleground and the Hot Metal Bridge. For the benefit and inspiration of present and future generations, it is time for the federal government to join this effort to recognize their importance with the additional protection I provide in this bill. I would like to commend my colleague, Representative Mike Doyle, who has been a longstanding leader in this preservation effort and who will sponsor the companion legislation in the House of Representatives. I look forward to working with southwestern Pennsylvania officials and Mr. August Carlino, Executive Director of the Steel Industry Heritage Corporation, in order to bring this national park to fruition. I urge my colleagues in the United States Congress to cosponsor this legislation and I will work for its swift passage. I ask unanimous consent that the bill be printed in the Record.