John Warner

Mr. WARNER

Mr. WARNER. Perhaps the Senator from Pennsylvania and the Senator from Colorado will work that out between them. I hope they can reach an accommodation.

Mr. WARNER. Mr. President, if I might clarify the situation.

Mr. WARNER. Before the Senator from Pennsylvania specifically advised me he was going to assert his rights, which he has since his amendment was the pending business of the Senate following the three votes, I put in place a modest time slot for our colleague from Colorado, such that he could address the Senate on the general provisions of the underlying bill. But then we reached a subsequent time agreement to accommodate the Senator from Pennsylvania. It is my request, in the course of this debate, if the Senator could, within the parameters of the two unanimous consents, work out a situation where he could have about 15 minutes and then we could return to your debate?

Mr. WARNER. Not from your time agreement. It would be totally separate. In other words, your 90 minutes, now the subject of the second unanimous consent agreement, would be preserved. That is as it was written. But can the Senator accommodate sliding that to some point in time to allow the Senator from Colorado to have 15 minutes?

Mr. WARNER. With no subtraction whatsoever from the unanimous consent in place for the Senator.

Mr. WARNER. That is correct.

Mr. WARNER

Mr. WARNER. Where is the evidence?

Mr. WARNER. Let me proceed to another item. The Senator used the key phrase, she doesn't want any amnesty or anything to prohibit the prosecution, and I think the Senator said ``of those who are guilty.'' But who has to establish guilt in terms of who is and who is not guilty? It seems to me if this were to read that it would ``bar the indictment, apprehension, or prosecution of persons alleged to have committed,'' because the Senator said ``war criminals,'' that could be interpreted as saying somebody is already designated one, two, three, and four as a war criminal and, therefore, you cannot give them amnesty, but there are some, I would presume, in this conflict who have not been designated ``war criminals'' but there are allegations to that effect, and they would have to proceed through the indictment process. But as this is written, the date of the agreement might cut off a class of individuals who are guilty but have not been as yet designated ``war criminals.'' Do I make myself clear?

Mr. WARNER. All right. You want to correct. On what basis do you correct other than the palpitations of your heart?

Mr. WARNER. I reject that argument.

Mr. WARNER. But you don't know that. I don't know that. There is no record before us to show that these were the only two men who were treated unfairly. You come back to that.

Mr. WARNER. On that point, so the Senator's argument tonight is one of fairness. But I say to him, if the Senate were to go along with him, implicitly it would say that all of these reports involving hundreds of conscientious men and perhaps women who were on these boards, some seven or eight boards, were unfair.

Mr. WARNER. Mr. President, I might say, with distinction; a fine officer.

Mr. WARNER. That shows our vintage.

Mr. WARNER. Can the Senator point to any of the investigations that I recited, beginning back in 1941, which in any way, totally or otherwise, exonerated Kimmel or Short?

Mr. WARNER. Let's hope this colloquy has cleared up any other questions. Before we started the debate, I talked with the Senator, and I thought she was very candid in her private comments to me. Supposing that this frightful conflict drags on and the only basis on which anyone can reach any resolution is the question of amnesty, do I understand the Senator's position to be that under no circumstances should the sole remaining provision to stop this conflict be waived by those negotiating and those who eventually have to accept the resolution? Is that your position?

Mr. WARNER. Mr. President, I remember it well. The Senator will recall we referred to it, those of us down in the ranks, as the tombstone promotion; am I not correct?

Mr. WARNER. May I ask, is that fact not borne out in many of these hearings that were held in the period of 1941 to 1946? My recollection is that that was always presented at that time, or at least certainly in the congressional one when the war was over.

Mr. WARNER. Look at the Dorn report. I would like to refer to that at some point here. Let's just go over the Dorn report. This is a very comprehensive analysis by the Department of Defense over a considerable period of months. I would like to refer to some of their findings. First, that these officers did receive warning messages on November 27, stating that Japan might take hostile action at any moment. Kimmel and Short concluded the attack would occur in the western Pacific and not Hawaii. That was apparently their independent judgment. The Army and Navy were separate departments reporting directly to the President. There is a question about the collaboration of these two senior officers on the islands of Hawaii. Lack of mission discussion between Kimmel and Short on defense plans for Hawaii and long-range air patrols--in other words, they had not collaborated to coordinate the assets of the United States as a deterrent, or indeed a defense against any attack on which they had warning on November 27. Kimmel and Short did not share their internal intelligence with each other. That, to me, is a very troubling fact. Just to say, as this report does, that responsibility is broadly shared does not absolve Kimmel and Short of accountability for this action to some degree. For example, the commander has plenary, that is, full, complete, and absolute, responsibility for the welfare of the people under his command and is directly accountable for everything the unit does or fails to do. That is legendary in military history. Even in the Navy, there are cases where the captain was in his quarters, properly, perhaps, taking a rest and arose with the ship, and there are hundreds of cases where he is held accountable, even though he was not on the bridge at the time. Three- and four-star positions are listed as positions of importance and responsibility. Both commanders made errors in judgment. The most serious ones were failure to establish a state of readiness in light of warnings received and to liaison between the two commands, i.e., Army and Navy, and to coordinate defensive measures and to maintain effective reconnaissance. Intelligence available to Kimmel and Short was sufficient to justify a higher level of vigilance than was maintained. An officer may be relieved of command if a superior decides the officer has failed to exercise sound judgment. And that is precisely what was done in this case. The Senator points out that history does show, facts and mitigation, that responsibility was shared in Washington for failure to communicate on a timely basis some intelligence, but it does not absolve them from taking prudent actions as field commanders at a time of very high tension. That is the point I make. Indeed, those facts may have been the mitigating facts that these men were not actually court-martialed and incarcerated for this tragedy. This was an absolute, at the time, frightful blow against the United States of America. All of us have seen the pictures, and we know the history well. That is why it concerns me to try this revisionist action at this late date. Relief does not require a finding of misconduct or unsatisfactory performance, merely a loss of confidence with regard to the specific command in question. There is a vast difference between a degree of fault which warrants court-martial action and a level of performance which warrants removal of command. Promotion is based on potential and not past performance. That is, promotion is based on expectation of performance to the level at which the individual is being considered for promotion. Posthumous advancement in rank would be based on the judgment that, at a minimum, they had served satisfactorily at the three- and four-star level. Their superiors at the time decided they had not, and there is no compelling basis to contradict this earlier decision, made at a time when there were live witnesses and clarity of memory in the minds of many. There may be a debate as to fairness and justice, but there can be no argument about the legitimacy of those who exercised their power for relief in retirement. The official treatment--this report goes on--of Kimmel and Short was subsequently temperate and procedurally proper; mention of court-martial but no charges brought; some allegations that there was no court-martial because the Government feared bringing charges would implicate other senior military and civilian leaders; could also be there were sufficient grounds for successful court- martial prosecution. Mr. President, there is no new evidence before the Senate tonight. I would like to go on. I am going to put this in the Record. Is there some other point the Senator wishes to make? If I understand--you have been very forthright--there has been no new evidence. So what we are really doing is trying to exercise fair and impartial judgment by giving our own independent assessment of facts that were deduced in a timely manner in the period of 1941 to, say, 1946. That is the conclusion of this congressional review. Now we are determining from those facts which were deduced at the time of clarity of memory and presumably many witnesses who testified before the Congress. We are now asked to make this important decision which is tantamount, in the minds of many Americans, to exonerating totally these two officers from any misconduct or dereliction of duty at the time of Pearl Harbor. I just simply cannot go along with that, I say to the Senator. First, again, there are no new facts. We are agreed on that.

Mr. WARNER. Mr. President, we do not know that as a fact. The Senator keeps repeating everyone else was allowed to advance. I do not see anything before me.

Mr. WARNER. The Senator has recited them. Certainly, I accept that for the record. I also commend your able assistant, Mr. Brzezinski here, who has worked tirelessly on this for several years and done the research. But let me ask you this question. We are both lawyers; we spent years in courtrooms. What new evidence do you bring before the Senate tonight to ask for a reversal of some nine different boards and commissions that have reviewed this over a period of these many years? What new evidence do you bring in support of your petition?

Mr. WARNER

Mr. WARNER. Mr. President, today I introduce the Constitutional and Effective Reform of Campaigns Act, or ``CERCA'', which I first introduced during the 105th Congress. This legislation is the product of two years of hearings during my Chairmanship of the Rules Committee, discussions with numerous experts, party officials, and candidates, and nearly two decades of participating in campaigns and campaign finance debates in the Senate. Many of the proposals in this bill have been made in some form by several of my Senate colleagues and by Members of the House, and I readily acknowledge drawing on their expertise. The important discussions last Congress during the meetings of a task force headed by Senator Nickles, at the request of Majority Leader Lott, were invaluable. This legislation offers an opportunity for bipartisan support. It is a good faith effort to strike middle ground between those who believe public financing of campaigns is the solution, and those who believe the solution is to remove current regulations. It offers a package of proposals which realistically can be achieved with bipartisan support and meet the desire of the majority of Americans who believe that our present system can be reformed. In my judgment, we will not succeed with any measure of campaign reform in this complicated field without a bipartisan consensus. In drafting this legislation, I began with four premises. First, all provisions had to be consistent with the First Amendment: Congress would be acting in bad faith to adopt provisions which have a likelihood of being struck down by the federal courts. Second, I oppose public financing and mandating ``free'' or reduced-cost media time which in my mind is neither free nor a good policy idea. Why should seekers of federal office get free time, while candidates for state office or local office--from governors to local sheriffs--do not receive comparable free benefits? Such an inequity and imbalance will breed friction between federal and state office seekers. Third, I believe we should try to increase the role of citizens and the political parties. Fourth, any framework of campaign reform legislation must respect and protect the constitutional right of individuals, groups, and organizations to participate in advocacy concerning political issues. This bill is designed to be a ``bilateral disarmament'' on the tough issues of soft money and union dues: each side must give up equivalent ground. The Republicans should give ground by placing a cap on soft money which has tended to favor our side. And Democrats should give ground by allowing union members to decide voluntarily for themselves whether to contribute the portion of dues which goes to political contributions or activities. Specifically, on the issue of soft money, no reform can be considered true reform without placing limits on the corporate and union donations to the national political parties. This bill places a $100,000 cap on such donations. While this provision addresses the public's legitimate concern over the propriety of these large donations, it allows the political parties sufficient funds to maintain their headquarters and conduct their grassroots efforts. In addition, the current limits on ``hard'' contributions must be updated. The ability of citizens to contribute voluntarily to a wide range of candidates and to their parties is fundamental. At the same time, the practice of mandatory union dues going to partisan politics without union members' consent must end: it is counter to all the political freedoms that make America a true democracy. The concept of ``paycheck protection'' must be included in any campaign finance reform, so that these deductions are voluntary, whether these dues fund direct contributions to candidates or parties, or pay for undisclosed spending on phone banks, get-out-the-vote efforts, literature, and television ads. Under this legislation, unions would be required to obtain advance, written consent before deducting money for political activities from union members' paychecks. The present state of the law requires most union workers to give up their rights to participate in the union if they seek refunds of that portion of dues going to politics. In addition, this section would strengthen the reporting requirements for unions engaged in political activities and enhance an aggrieved union member's right to challenge a union's determination of the portion of dues going to political activities. In the Senate debates thus far, there has been much discussion about whether corporations should be required to obtain shareholder approval to make political contributions. This is an issue which warrants consideration. My proposal not only limits these corporate and union contributions to $100,000, it also includes a requirement that companies disclose their donations to federal political parties in their annual reports. And under current policies of the Securities and Exchange Commission, shareholders have the same rights to make recommendations to boards of directors on the propriety of political donations as they do on any business issue related to the company. In addition, the SEC is in the process of making it easier for shareholders to raise questions related to social policy matters at annual meetings. I am monitoring how these changes are implemented: if they are insufficient to guarantee adequate rights to shareholders, I will consider amending my bill to protect these rights. As an aside, I reject the notion that the status of union members is similar to those who belong to groups such as the National Rifle Association or the Sierra Club. Nobody is compelled to join these types of organizations, and those that do, know or should know that their dues are going in part to political causes. Furthermore, I considered including in this bill a narrowly-tailored disclosure requirement for individuals and groups spending large sums on public advertising affecting the public image of candidates during election seasons. However, in keeping with my first basic premise that reforms must pass the federal court test of constitutionality, I concluded that such a provision, in view of a long line of Supreme Court cases, likely would be declared unconstitutional, and thus I did not include the provision. The McCain-Feingold bill was thoroughly debated in the Senate, and any objective observer of the Senate would agree that we are genuinely deadlocked. This body needs to move beyond the debate of McCain- Feingold. I hope that all Members will review my bill as an objective and pragmatic approach to current problems with our campaign system. I encourage other Members to come forward, as I have, with proposals which objectively represent pragmatic approaches to what can be achieved. I do not claim to have the only solution: those with other ideas should come forward. In addition to the issues of soft money and union dues discussed above, nine other fundamental problems--all of which can be solved in a constitutional manner--are the most pressing. Here are these problems, in no particular order, and my proposed solutions: Problem 1: Politicians spend too much time fundraising, at the expense of their legislative duties for incumbents, and, for both incumbents and challengers, at the expense of debating the issues with voters. Solution: The current individual contribution limit of $1,000 has not been raised, or even indexed for inflation, for over 20 years. This fact requires that candidates must spend more and more time seeking more and more donors. The limit should be doubled, as well as indexed for inflation. Problem 2: The influence of voters on campaigns has been diminished by the activities of political action committees and interest groups. Solutions: I propose a $100 tax credit for contributions made by citizens, with incomes under specified levels, to Senate and House candidates in their states: this credit should spark an influx of small dollar contributions to balance the greater ability of citizens with higher incomes to participate. In addition, the increased individual contribution limit should balance the activities of political action committees. Problem 3: The influence of voters on campaigns has been diminished by contributions from those not eligible to vote. Solution: If you are not eligible to vote, you should not contribute to campaigns. My bill would prohibit contributions by those ineligible to vote, including non-citizens, children, and persons under felony convictions. It also codifies current regulations concerning political donations by domestic subsidiaries of foreign companies. Problem 4: Compared to incumbents, challengers face greater difficulties raising funds and communicating with voters, particularly at the outset of a campaign. Solutions: This legislation will allow candidates to receive ``seed money'' contributions of up to $10,000 from individuals and political action committees. This provision should help get candidacies off the ground. The total amount of these ``seed money'' contributions could not exceed $100,000 for House candidates or $300,000 for Senate candidates. To meet the constitutional test, this provision would apply to both challengers and incumbents alike, but in the case of an incumbent with money carried over from a prior cycle, those funds would count against the seed money limit. Second, Senate incumbents would be barred from using the franking privilege to send out mass mailings during the election year, rather than the sixty day ban in current law. Problem 5: Candidates with personal wealth have a distinct advantage through their constitutional right to spend their own funds. Solution: If a candidate spends more than $25,000 of his or her own money, the individual contribution limits would be raised to $10,000 so that candidates could raise money to counter that personal spending. Again, to meet constitutional review, this provision would apply to all candidates. Problem 6: Current laws prohibiting fundraising activities on federal property are weak and insufficient. Solution: The current ban on fundraising on federal property was written before the law created such terms as ``hard'' and ``soft'' money. This bill updates this law to require that no fundraising take place on federal property. Problem 7: Reporting requirements and public access to disclosure statements are weak and inadequate. Solutions: Under this proposal, the FEC would be required to post reports on the Internet for all to see, and to require that candidates, and groups making independent expenditures, make faster and more complete reports. In addition, registered lobbyists would be required to report their campaign contributions and those of their employer on their lobbyist disclosure reports. Problem 8: The Federal Election Commission is in need of procedural and substantive reform. Solutions: This legislation contains a number of procedural and substantive reforms of the FEC, including term limits for commissioners, and increases in penalties for serious violations. Problem 9: The safeguards designed to protect the integrity of our elections are compromised by weak aspects of federal laws regulating voter registration and voting. Solutions: The investigations of contested elections in Louisiana and California have shown significant weaknesses in federal laws designed to safeguard the registration and voting processes. The requirement that states allow registration by mail has undermined confidence that only qualified voters are registering to vote and only registering once: states should be allowed to decide whether to allow mail-in registrations. In addition, states should be allowed to require proof of citizenship when registering and proof of identification when voting: we require a photo ID to buy beer or cigarettes and can certainly allow states to protect the voting process by requiring a photo ID. Lastly, this bill would allow states to purge inactive voters and to allow state law to govern whether voters who move without reregistering should be allowed to vote. These are the problems which I believe can be solved in a bipartisan fashion. Attached to this statement is a section by section review of the legislation. I look forward to working with my colleagues to enact meaningful campaign reform, by looking at reform beyond the usual sound bites and addressing the real problems with our present campaign system. Mr. President, I ask unanimous consent that the text of the bill summary be printed in the Record.

Mr. WARNER

Mr. WARNER. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 on Tuesday, May 25. I further ask consent that on Tuesday, immediately following the prayer, the Journal of the proceedings be approved to date, the morning hour be deemed to have expired, the time for the two leaders be reserved, and the Senate then resume consideration of S. 1059 as under that order. I further ask unanimous consent that at the hour of 12:30 p.m. the Senate stand in recess until the hour of 2:15 p.m. in order for the party caucuses to meet.

Mr. WARNER. Mr. President, I ask unanimous consent that no additional amendments be in order, other than the amendments agreed to in the previous consent, prior to the votes at 2:15 p.m. on Tuesday.

Mr. WARNER

Mr. WARNER. Mr. President, I ask unanimous consent that the Senate now proceed to a period of morning business with Senators permitted to speak for up to 10 minutes each.