Fred Thompson

Mr. THOMPSON

Mr. THOMPSON. If my friend will yield for a question.

Mr. THOMPSON. Mr. President, I was wondering if we would not be really worse off in that situation because under the Senator's original amendment the language would be added to the Snowe-Jeffords language. So we would still have the Snowe-Jeffords clearly identified candidate language, which I think is going in the right direction. We would be adding that to that language. Under the Senator's latest suggestion--if it was either/or--you might have a situation where you would not have the Snowe-Jeffords language but only the new language ``unmistakable, unambiguous,'' et cetera, which we have been discussing. If I am correct this is a constitutional problem in terms of vagueness, then we would be less likely to have that upheld than if it were coupled with what I believe is constitutionally permissible language under Snowe-Jeffords.

Mr. THOMPSON. I am going to defer to the Senator from Maine for that. I intruded on the time of the author of that provision enough on this. I will refer that question to her, if I may.

Mr. THOMPSON. That is what you get for asking me a question.

Mr. THOMPSON. It is in the bill. It is in the statute. It reads that way. Why I think it is constitutional is that the Supreme Court for some time now has said you can regulate express ads, express advocacy. What the Court did in Buckley is define express advocacy--words such as ``vote for, vote against.'' And it said the reason we are setting this out, in effect, is because you need a bright line. A person needs to be able to tell whether or not they are going to run afoul of the statute.

Mr. THOMPSON. Yes.

Mr. THOMPSON. Yes. Yes.

Mr. THOMPSON. If they make specific reference to me as a candidate, and I am running and they do it within 60 days of the election, Snowe- Jeffords would capture that to the extent of requiring disclosure.

Mr. THOMPSON. If I may, while the Senator from Maine has just arrived, my own view is that Snowe-Jeffords captures all that it can, constitutionally.

Mr. THOMPSON. I think so.

Mr. THOMPSON. I see what the Senator is getting at. I think if this were passed and this were considered in the light of a similar ad, this would catch it. Yes, I do. Because they would be referring to a clearly identified candidate. If and when the Court considers the Snowe-Jeffords language, I think there is a reasonably good chance they will uphold it as constitutional. If that becomes the operative language, or some operative language, along with the language they had in Buckley--if all of that now is permissible and such an ad is run which mentions a clearly identified candidate, then it will be applicable at that time.

Mr. THOMPSON. If I may respond to my friend, I am not suggesting they advance those ads. What I am suggesting is in McCain-Feingold, in the Snowe-Jeffords provisions of McCain-Feingold, it requires clear reference to mention of a fact that would be undisputable; that is, whether or not a fellow's name, a person's name, is mentioned. I believe that is closer to the Buckley standard, which says you have to have something objective. That is closer to the Buckley standard than language which says ``in the context of external events, is unmistakable, unambiguous, and suggestive of no plausible meaning, other than an exhortation to vote.'' Again, that begs the question. Here is something that is unambiguous. Here is something you call unambiguous. That is the difference to me.

Mr. THOMPSON. I think it would--no, it would not. It requires the likeness, as I recall--or does it require both? It says ``refers to a clearly identified candidate.'' The answer is yes. I was wrong.

Mr. THOMPSON. The language requiring the likeness of candidate used within 60 days of an election. That is an objective standard. The Supreme Court in Buckley didn't say you must have an ad that is unambiguously a campaign ad. They said in that case, words such as ``vote for'' or words such as ``vote against.'' Anybody can look at that, even the Members of this body would have to all agree whether or not that was in a particular ad. That is a bright line. Now Snowe-Jeffords comes along and provides its own bright line. We will be debating that, as to whether or not it is sufficient, whether or not it complies with Buckley, or whether or not the Supreme Court might take a look at it again and say it was unconstitutional in light of other circumstances. Again, one can objectively look at an ad and tell whether or not it has a likeness of a candidate. But you can't look at an ad and tell whether or not it is unambiguous unless you get to court.

Mr. THOMPSON. I suppose my thinking is that the Snowe-Jeffords language is much closer to the bright line requirement than this language would be.

Mr. THOMPSON. If my friend would yield for a moment.

Mr. THOMPSON. They mentioned the name of the candidate and came within 60 days of the election. Some of them can. Let me get back, if I may, to the original issue. My question is, when the statute says that the words must be unambiguous, I ask: Unambiguous in whose eyes? Unambiguous to whom?

Mr. THOMPSON. And a good deal of them would come under Snowe- Jeffords, I believe, for starters.

Mr. THOMPSON. May I respond to my friend? I think the difference here is the difference between something being unambiguous and something being called unambiguous. In Buckley and in Snowe-Jeffords, standards are set out that one can look at and conclude they are ambiguous or unambiguous. I do not believe we can in a statute just say that it must be unambiguous. In the eyes of whom? In the eyes of a judge ultimately, I assume. That is like saying your behavior will be legal and you will be punished, in a criminal statute, behavior that is not legal. That begs the question. What behavior is allowed, and what behavior is disallowed? In this case, it seems to me under the Supreme Court you have to have a bright line in the statute itself. You have to have something that you can look at and conclude that it is unambiguous. You cannot just write in the statute that this is unambiguous or it must be unambiguous to pass muster in the eyes of a judge later. That is the distinction I make.

Mr. THOMPSON. I thank my friend. I want to make a couple comments, partly in the nature of inquiring of my friend from Pennsylvania to make sure I understand his remarks. We had an opportunity to talk briefly about this. I tried to listen to his explanation. First of all, I commend him for his good lawyering in recognizing that findings of fact are certainly official in a situation such as this in helping to create a record. From my perusal, I think that is certainly well done. I do have a concern with regard to the other provision of the amendment. Buckley pretty clearly established that we could only regulate express advocacy under certain conditions or in certain ways. Buckley set forth the so-called magic words. In other words, if you have words in there saying ``vote for'' or ``vote against'' somebody, that is an express ad, and you can require people to have contribution limits, or notice, or disclosure, and whatnot, with regard to those kinds of ads. Clearly, time has proven that to be inadequate in many respects, and what Snowe-Jeffords does--and we will debate that later on--is it comes along and says, in addition to those magic words, we think that also, if within 60 days of an election --and you know an election is around the corner--you use the likeness of a candidate, that that also, in effect--and these are my words--is express advocacy. In other words, it applied its own bright-line test. The Court in Buckley was concerned that people know what the rules of the game were before they started speaking and that they not inadvertently get caught up in something not of their own making which would penalize them in some way. They said you will certainly know if the rule is words such as ``vote for'' or ``vote against.'' Anybody can understand that. Those are the rules. You know what you can and cannot do. I think the same thing applies to Snowe-Jeffords. You certainly know if you are running an ad within so many days, and if you are running the likeness of someone. In either of those cases, I think you have a bright-line test. The average person can look at those situations and decide whether or not to put themselves in the middle of that or not. My concern is the language that is used. I understand that what I would refer to as the unmistakable and unambiguous language of the current amendment would be in addition to the Snowe-Jeffords requirement. In other words, you would still have the likeness and 60- day requirement and, in addition to that, under this amendment, you would have this: . . .when read as a whole, and in the context of external events, is unmistakable, unambiguous and suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate. . . . And so forth. That is my understanding. I think that is done in addition to tightening up Snowe-Jeffords, perhaps, in some way, to lay an additional requirement on Snowe-Jeffords to make it even tighter in some ways. That is a laudable goal, if it can be done. The only problem is that this language being used to do that in and of itself is pretty clearly unconstitutional, it seems to me. We have a vagueness problem because when you ask yourself, do you have the bright line that you had in Buckley, such as ``vote for'' or ``vote against,'' or do you have the bright line, as in Snowe-Jeffords, such as you must use the likeness within 60 days, the answer must be no. The line here is unambiguous and suggestive of no other meaning. I think the Senator from Pennsylvania and I could agree probably on just about any ad as to whether or not it fit this bill, but certainly it is not definite enough, it seems to me, so that there could be no reasonable disagreement as to whether something was really a campaign ad or not. I sympathize with the effort, and I discussed this matter with my friend and we jointly discussed what might and might not be done about it. As I understand the explanation, and as I look at it, it seems to me this misses the mark substantially in trying to apply some bright-line test so the Supreme Court might arguably or possibly uphold this as being, in effect, express advocacy and, therefore, subject to regulation. Obviously, I am going to listen with great care to my friend from Pennsylvania, but those are my concerns. I yield the floor.

Mr. THOMPSON. Ten minutes.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I thank the Chairman of the Banking Committee, Senator Gramm, and the Ranking Member, Senator Sarbanes, for their kind assistance in working with me and the other members of the Committee on Governmental Affairs, in crafting a fair and balanced solution to the current workforce needs of the Securities and Exchange Commission (SEC). Senators Gramm, Voinovich, Cochran, and I have drafted an amendment which permits the SEC to establish a new compensation system for its employees. This new system is to be patterned on the pay and compensation systems established for other federal banking agencies under section 1206 (a) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. Agencies in trouble often come to the Governmental Affairs Committee seeking flexibility because they can't get their job done under the current civil service system. Like most federal agencies, the Securities and Exchange Commission has difficulty finding, hiring, and retaining the people with the right skills to do the jobs they need done. In these situations, I often ask, if flexibility is good for one agency, why shouldn't we grant such flexibility governmentwide. Clearly, flexibility is right for the Securities and Exchange Commission. At a very minimum, however, this legislation requires the SEC to plan strategically for the adoption of these flexibilities and report to us on the success of their implementation. We require that the SEC include its plans for these flexibilities in its annual performance plans and reports, required under the Government Performance and Results Act. The Results Act requires agencies to adopt performance management principles--drafting a strategic plan, setting annual goals, and reporting to Congress on the extent to which they are meeting their goals. I applaud the fact that the SEC has embraced performance management in the past. I am sure they will agree that this is an excellent mechanism with which the SEC can report on its progress in addressing its workforce problems. Guidance set forth by the Office of Management and Budget requires that agencies include their human resource strategies in their annual performance plans. Specifically, this guidance requires that agencies include in their performance plan the specific workforce they need to meet their goals. This legislation will allow the SEC to take the lead in integrating workforce planning with their performance plan and report to Congress on the extent to which the flexibilities they were granted allowed them to better meet their goals. Again, I thank Chairman Gramm and Ranking Member Sarbanes for their cooperation and support on this important amendment. We've crafted something that may prove of enormous benefit to the Government as a whole, especially with respect to the workforce challenges that lie ahead.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today Senator Lieberman and I are introducing a bill designed to clarify the existing criminal provisions of the Federal Election Campaign Act and strengthen their enforcement. Sen. Lieberman, myself, and the members of the Government Affairs Committee spent a year investigating some of the worst campaign finance abuses in our nation's history. Despite a number of obstacles, witnesses fleeing the country, people pleading the fifth amendment, entities failing to comply with subpoenas, our Committee uncovered numerous activities that were not only improper but illegal. But although we were able to demonstrate to the American people exactly what went on in the 1996 election, I was disappointed in the failure of the Justice Department to use that information to aggressively investigate and prosecute those that violated the law. After four years of investigation the many, wide-ranging abuses, only one person connected with the presidential election, Yogesh Gandhi, will spend any time in jail. The question we have to ask ourselves is ``why?'' Unfortunately, the primary reason is that the Justice Department simply did not do its job. Leads were not pursued, subpoenas were not sought, suspects were ignored, agents were instructed not to ask questions about certain people, the law was misapplied, and no independent counsel was ever appointed to ensure a credible investigation. A hearing we held at the Governmental Affairs Committee provided just one example of how the Department ran its campaign finance probe. So impatient was the FBI with the Department's resistance to investigating Presidential friend and DNC fundraiser Charlie Trie that the Bureau's senior agent in Little Rock wrote an angry letter to FBI Director Freeh complaining about Department incompetence and stalling. The plea bargains that were entered into also raise concern. However, we have also learned that, the federal election law itself also makes prosecution of violators more difficult than it should be. The bill that we are introducing today would ensure in the future that conscientious prosecutors can more effectively pursue those who violate existing law. This bill accomplishes the following five goals: First, the bill makes knowing and willful violations of the Federal Elections Campaign Act, FECA, involving at least $25,000 in a year a felony. Currently, no violations of FECA are felonies. The law does not differentiate between the donor that accidentally writes a check in excess of the $1,000 limit and the fundraiser that launders $100,000 to a party or campaign. This bill will provide a deterrent and appropriate punishment for those who knowingly and willfully flaunt the campaign finance laws. Second, the bill will extend the statute of limitations from three to five years. Outside of the Internal Revenue Code, virtually every violation of federal law has a statute of limitations of at least five years. This provision brings FECA into conformity with the rest of the law. Third, the bill would require the Sentencing Commission to promulgate a guideline specifically for FECA violations. In addition, the bill provides specific factors for enhancement of sentences. Currently, without a specific guideline, judges are forced to turn to other guidelines, typically those intended to govern or set sentences for fraud. Unfortunately, because the donor makes the contribution with full knowledge of the scheme, the enhancement factors for fraud are basically useless. By providing judges with a specific election law sentencing guideline, they can impose appropriate sentences. Fourth, the bill prohibits foreign soft money contributions. Prior to the 1996 campaign, I think we all thought foreign soft money contributions were illegal. Thereafter, the Justice Department interpreted ``contribution'' as used in FECA to have two different meanings depending on how the contribution is used, raising the possibility that foreign soft money did not fall within the scope of FECA's prohibition on foreign ``contributions.'' Indeed, in two cases a Federal District Court Judge in D.C. ruled that foreign soft money was, in fact, legal. Subsequently, he was overruled by the Court of Appeals. However, in order to clarify the law, this bill was definitively prohibit foreign soft money contributions. Mr. President, last year the FEC wrote to Congress and asked for a clarification regarding the legality of foreign soft money. I believe we should provide that guidance. Finally, this bill would prohibit conduit soft money contributions. Under current law, it is illegal to give $500 of hard money in the name of another, but it is perfectly legal to give $500,000 of soft money in another person's name. This bill would close that loophole and provide what I think we all can support--more, full disclosure. Mr. President, I personally believe that we need to reform our campaign finance system. However, reform will mean nothing unless we do a much better job enforcing the law when it is violated. I believe this bill in the hands of prosecutors who are interested in enforcing the law will help ensure that in the future violators of the campaign finance laws will not walk away with a slap on the wrist. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. If the Senator will yield, the Senator is doing an excellent job taking on these questions from all corners. But it is a very interesting amendment. I think my own State of Tennessee has a similar amendment. I think what happens is anybody comes to town a couple days sooner to collect the money. Other than that, my concern, as we consider these amendments, has to do with constitutionality issues. I want to make a couple comments and then ask a question. Obviously, none of us is going to be able to tell what is constitutional or not. But if we have a nonseverability clause--and we don't know whether or not we will--after we have a vote, any amendments that turn out to be not constitutional bring the whole bill down. Some people think that is good. I think we will wind up with a hard money increase, which I think is good, and doing something about soft money, which I think is good. So I think that would be a bad result if that happened. Personally, I think this so-called millionaire amendment we just passed is of very doubtful constitutionality. That is the reason I voted against it. I don't see how you make the kinds of distinctions that that amendment made when you have free speech protection with regard to his spending his own money, how you then favor one over the other, and what you do about the person who wants to make a contribution, and he can give up to, say, $5,000 to candidate X, but to candidate Y he can only give $1,000. We already have an amendment that has been adopted with questions about its constitutionality. With regard to your amendment, my question is this: Will the issue not be resolved on the basis of whether or not there is a compelling State interest? It seems to me that is the question, and if that is the question, if that is the issue, then I look at it to see whether or not what we are doing is of sufficient compelling State interest to overcome the first amendment problems. Obviously, we are impinging on the first amendment. The Supreme Court has said in some cases we can impinge on the first amendment. That is what we are doing when we put hard money limits on people. We impinge on the first amendment, but the Supreme Court says there is a compelling interest to doing that, and that is the appearance of corruption. The question is, it seems to me, are we doing enough? Is there sufficient, compelling State interest for us to do this? Is it really helping the system that much in this time-place-manner amendment in order to impinge on the admitted free speech rights of a potential contributor? I take it the Senator thinks we would be doing enough to help the system, to help the Nation by placing these kinds of limitations on people to overcome an impingement on their first amendment rights. Does my colleague agree that is the issue with which we are dealing?

Mr. THOMPSON. I say to my colleague, that does carry a certain amount of logic to it, but we all know that some of these bills carry on for a long period of time, and these big issues where people are greatly interested and their businesses are greatly affected sometimes go on for a period of years and we have fundraisers interspersed with them. I do not know that I agree the greatest danger has to do with the time proximity of the contribution, but I ask my friend if the rest of his bill tracks what they were doing in that Fourth Circuit situation in terms of the people involved, in terms of the places limited, in terms of the time restriction?