Nos. 02-1674 et al. 

IN THE 

~upreme <!Court of tbe OO:niteb ~tate!i 

MITCH MCCONNELL, UNITED STATES SENATOR, ET AL., 

Appellants I Cross-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, ET AL., 

Appellees I Cross-Appellants. 

On Appeals and Cross-Appeals 

from the United States District Court 

for the District of Columbia 

BRIEF OF THE HONORABLE FRED THOMPSON 

AS AMICUS CURIAE IN SUPPORT OF 

DEFENDANTS-APPELLEES 

August 5, 2003 

DAVID C. FREDERICK 

Counsel of Record 

SCOTTK. ATTAWAY 

KELLOGG, HUBER, HANSEN, 

TODD & EVANS, P.L.L.C. 

1615 M Street, N.W. 

Suite 400 

Washington, D.C. 20036 

(202) 326-7900 

Counsel /or Amicus Curiae 
QUESTION PRESENTED 

Amicus will address the following question: 

Whether the evidence of overwhelming abuses in the 

raising and spending of soft money in the 1996 presidential election, which were uncovered by a Senate 

Governmental Affairs investigation in 1997 and 1998 

and debated in the context of passage of the Bipartisan 

Campaign Reform Act of 2002 ("BCRA"), Pub. L. No. 

107-155, 116 Stat. 81, shows that Congress had ample 

justification to enact BCRA Titles I and II to prevent 

corruption, the appearance of corruption, and widespread circumvention of the existing federal campaign 

finance laws. 
111 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED ................................................ i 

TABLE OF AUTHORITIES .............................................. v 

INTEREST OF AMICUS CURIAE .................................. 1 

STATEMENT ..................................................................... 2 

SUMMARY OF ARGUMENT ........................................... 5 

ARGUMENT: 

I. PERVASIVE SOFT-MONEY FUNDRAISING 

LED TO A WIDESPREAD PUBLIC PERCEPTION THAT THE CAMPAIGN FINANCE 

SYSTEM WAS CORRUPT ....................................... 6 

A Both Parties Traded Access To Candidates 

And Senior Government Officials For Large 

Soft-Money Contributions .................................. 6 

B. Soft-Money Fundraising Distracts Elected 

Officials From Their Public Duties .................. 17 

II. CONGRESS !Lt\D A COMPELLING INTEREST 

IN REGULATING USE OF SOFT MONEY TO 

FUND SHAM "ISSUE ADS" .................................. 19 

A The National Parties Used Massive 

Amounts Of Soft Money To Fund Sham 

"Issue Ads" ....................................................... 20 

B. The National Parties Coordinated Sham 

"Issue Ads" With Their Presidential Candidate's Campaign .............................................. 23 
iv 

C. Both Parties Shifted Soft Money From 

National To State Party Coffers To Fund 

More Sham "Issue Ads" .................................... 24 

D. Non-Party Groups Used Massive Amounts 

Of Soft Money To Fund Sham "Issue Ads" ...... 26 

III. THE BCRA ADDRESSES THE SOFT-MONEY 

AND ISSUE ADVERTISEMENT ABUSES 

DOCUMENTED IN THE REPORT ....................... 28 

CONCLUSION ................................................................. 30 
v 

TABLE OF AUTHORITIES 

Page 

CASES 

Buckley v. Valeo, 424 U.S. 1 (1976) .................... 2, 3, 17, 30 

STATUTES AND RULES 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 

107-155, 116 Stat. 81 ..................................................... 1 

Tit. I, §§ 101-103 .......................................................... 28 

Tit. II,§§ 201-214 ......................................................... 28 

Tit. III: 

§ 307(a), 2 U.S.C. § 441a(a)(1) ................................ 19 

Federal Election Campaign Act of 1971, 

2 U.S.C. § 431 et seq ....................................................... 2 

2 U.S. C. § 441a(a)(1) (2000) ....................................... 2, 7 

2 U.S. C. § 441a(a)(6) (2000) ........................................... 7 

2 U.S.C. § 441b (2000) .................................................... 2 

Sup. Ct. R. 37.6 .................................................................. 1 

LEGISLATIVE MATERIALS 

147 Cong. Rec.: 

p. S2463 (daily ed. Mar. 19, 2001) ............................... 29 
VI 

p. S3138 (daily ed. Mar. 29, 2001) ............................... 29 

p. S3251 (daily ed. Apr. 2, 2001) ............................. 29, 30 

148 Cong. Rec.: 

p. S2104 (daily ed. Mar. 20, 2002) ............................... 29 

pp. S2133-34 (daily ed. Mar. 20, 2002) ........................ 29 

p. S2137 (daily ed. Mar. 20, 2002) ............................... 29 

pp. S2138-41 (daily ed. Mar. 20, 2002) ........................ 29 

Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns, 

S. Rep. No. 105-167 (1998) .................................... passim 

ADMINISTRATIVE MATERIALS 

FEC Adv. Op. 1978-10 ....................................................... 2 

Final Report of Independent Counsel In Re: Bruce 

Edward Babbitt (Aug. 22, 2000) .................................. 17 

OTHER MATERIALS 

The Gallup Organization, Americans Not Holding 

Their Breath on Campaign Finance Reform (Oct. 

11, 1997) ....................................................................... 30 

Michael Isikoff & Mark Hosenball, Soft Money, Easy 

Access, Newsweek, Oct. 21, 1996 ................................ 3-4 
Vll 

Robert P. Meier, Comment, The Darker Side of Nonprof~ts: When Charities and Social Welfare Groups 

Become Political Slush Funds, 147 U. Pa. L. Rev. 

971 (1999) ..................................................................... 28 

Alison Mitchell, Building a Bulging War Chest: How 

Clinton Financed His Run, N.Y. Times, Dec. 27, 

1996 ................................................................................ 3 

Michael Weisskopf & Charles R. Babcock, Donors Pay 

and Stay at lVhite House; Lincoln Bedroom a Special Treat, Wash. Post, Dec. 15, 1996 ............................ 3 
INTEREST OF AMICUS CURIAE1 

Senator Fred Thompson, a Republican from Tennessee, 

served in the United States Senate from 1994 to 2003. 

From 1997 to 2001, he chaired the Senate Governmental 

Affairs Committee, which investigated numerous abuses 

of the campaign finance laws during the 1996 presidential 

campaign. That special investigation culminated in a sixvolume report spanning nearly 10,000 pages (including 

numerous exhibits) that became a substantial basis for 

Congress's enactment of the campaign finance reforms 

now before this Court. See Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election 

Campaigns, S. Rep. No. 105-167 (1998) ("Report"). 

Senator Thompson also co-sponsored the Senate bill 

Congress enacted as the Bipartisan Campaign Reform Act 

of 2002 ("BCRA''), Pub. L. No. 107-155, 116 Stat. 81, just 

as he had co-sponsored the original campaign finance reform legislation introduced by Senators John McCain and 

Russell Feingold in 1995. Accordingly, Senator Thompson 

has a strong interest in the BCRA reforms being upheld 

as constitutional. This amicus brief seeks to show that 

the Report's findings on campaign finance abuses in the 

1996 election provided Congress with an overwhelming 

factual basis for concluding that the BCRA reforms are 

necessary to plug the "[u]nanticipated loopholes discovered in the federal campaign finance laws since they were 

developed in the 1970s." Report at 4499. Those loopholes 

allowed for "campaign finance law manipulation and corruption" that needed to be redressed to restore confidence 

and integrity in our electoral system. I d. 2 

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus represents that it authored this brief and that no entity other than amicus 

made a monetary contribution to its preparation or submission. All 

parties have consented to the filing of this amicus brief. 

2 Rather than advance constitutional and other legal arguments 

similar to those that the government and others will make, which 

amicus adopts, this brief seeks to show that Congress had more than 
2 

STATEMENT 

1. The Federal Election Campaign Act of 1971 

("FECA"), 2 U.S.C. § 431 et seq., was enacted to reduce the 

"actuality and appearance of corruption" created by the 

"opportunities for abuse inherent in a regime of large individual financial contributions." Buckley u. Valeo, 424 

U.S. 1, 26-27 (1976) (per curiam). FECA set limits on how 

much an individual may contribute to a candidate's campaign or a national political party committee for the purpose of influencing a federal election. 3 It also continued 

longstanding prohibitions on the use of a corporation's or 

labor union's treasury funds to influence federal elections. 

See 2 U.S.C. § 44lb (2000). The purpose behind those restrictions was to ensure that contributors could not exercise or be perceived as exercising undue sway over a candidate by making massive contributions. 

As contrasted with that "hard money," as funds subject 

to those limits came to be called, political parties also 

raised "soft money," supposedly for general party-building 

purposes or state elections (but, as explained below, in 

actuality to influence federal elections). Soft money was 

not subject to the same regulatory limits and prohibitions 

as hard money, and consequently was limited in its use to 

influence a federal election. See JSSA 30sa-32sa (per curiam) (discussing FEC allocations permitting party activities that influence federal elections to be funded with a 

mix of hard and soft money) (citing, inter alia, FEC Adv. 

Op. 1978-10). Over time, however, clever politicians and 

their tacticians devised ways to use unlimited soft money 

in the party's coffers to influence federal campaigns. 

ample factual support for enacting the BCRA, as evidence gleaned in 

the Report demonstrates. 

3 Prior to enactment of the BCRA, those limits were: $20,000 per 

calendar year for an individual contribution to a national political 

party committee; $5,000 per calendar year to any other political committee; and $1,000 per election for a candidate seeking federal office. 

See 2 U.S.C. § 441a(a)(l) (2000). 
3 

2. The 1996 presidential election campaign brought 

into stark relief the breakdown of the system established 

under FECA and upheld as constitutional by this Court in 

Buckley. The soft-money fundraising and spending in 

that election rendered all but meaningless the source and 

contribution limits that Congress had established in the 

1970s in FECA. In 1996, the national parties' total softmoney spending reached $272 million, or 30% of total 

spending, up from $80 million, or 16% of total spending, 

in 1992. See JSSA 34sa-35sa (per curiam). 4 

Once soft money was placed in party coffers, the parties 

then used it for purposes that exploited loopholes in how 

such funds could be spent. In 1996, the parties aired 

thousands of thinly disguised "issue advertisements" on 

television and radio that in reality were intended to, and 

did, influence federal elections. The theory of the legality 

of this practice was that the ads stopped just shy of using 

so-called "magic words" of express advocacy, such as "Vote 

for Clinton" or "Reject Dole," which would have required 

the ads to be funded with regulated hard money. See 

JSSA 778sa (Kollar-Kotelly). Non-party interest groups 

such as unions and nonpro:fits also got into the act by 

running similar sham issue ads, which often were orchestrated by or coordinated with a political party. 

As the 1996 campaign proceeded, public attention focused on White House coffees and overnights, large contributions to parties by persons interested in affecting national policy, and an unprecedented television blitz of advertisements that touted the leading candidates for president.5 In early 1997, in response to this rapid increase in 

4 These staggering figures have only gotten larger with time. JSSA 

38sa (per curiam) (noting that national party soft-money spending rose 

to $498 million, or 42% of total spending in the 2000 elections). 

5 See, e.g., Alison Mitchell, Building a Bulging War Chest: How 

Clinton Financed His Run, N.Y. Times, Dec. 27, 1996; Michael 

Weisskopf & Charles R. Babcock, Donors Pay and Stay at White House; 

Lincoln Bedroom a Special Treat, Wash. Post, Dec. 15, 1996; Michael 
4 

soft-money fundraising and spending, the Senate Committee on Governmental Affairs commenced a special investigation to determine whether those activities were 

legal under FECA or, if technically legal, were abusive 

evasions of the campaign finance laws. Relevant here, the 

investigation focused on: 

The independence of the presidential campaigns 

from the political activities pursued for their benefit 

by outside individuals or groups; 

Unregulated ("soft") money and its effect on the 

American political system; 

Promises and/or the granting of special access in 

return for political contributions or favors; 

The effect of independent expenditures (whether by 

corporations, labor unions, or otherwise) upon our 

current campaign finance system, and the question as 

to whether such expenditures are truly independent; 

[and] 

Contributions to and expenditures by entities for 

the benefit or in the interest of public officials. 

Report at 11-12.6 The committee issued 427 subpoenas, 

reviewed more than 1.5 million responsive documents, 

took 200 depositions, conducted more than 200 witness 

interviews, and held 32 days of hearings where it took 

testimony from 72 witnesses. !d. at 15. 

The committee's Report, released in March 1998, was 

approved by a vote of eight to seven, split along party 

lines. See id. at 23; id at 1-4555. The minority committee 

members published their own findings and recommendaIsikoff & Mark Hosenball, Soft Money, Easy Access, Newsweek, Oct. 

21, 1996. 

6 The committee also investigated other issues such as illegal foreign contributions and conflicts of interest of federal officials. Report 

at 11. Although those issues are not directly relevant to the matters 

before this Court, they do illustrate the carelessness of the political 

parties in their relentless pursuit of soft money. 
5 

tions, which will be cited herein as the "Minority Report." 

See Minority Report at 4557-9575. Due to a politically 

charged atmosphere, the majority Republican committee 

members focused more on abuses by Democrats, while the 

minority focused more on abuses by Republicans. 7 Both 

majority and minority fully agreed, however, that "[t]he 

Committee investigation has built an undeniable case for 

campaign finance reform" by showing that "[t]he soft 

money loophole ... led to a meltdown of the campaign finance system that was designed to keep corporate, union 

and large individual contributions from influencing the 

electoral process." ld. at 4562, 7515; see also Report at 

4459 ("[T]he federal campaign finance system virtually 

collapsed."); Additional Views of Senator Collins at 4535 

("[T]he hearings provided overwhelming evidence that the 

twin loopholes of soft money and bogus issue advertising 

have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble.").8 

SUMMARY OF ARGUMENT 

Congress had a compelling interest in enacting the 

BCRA reforms. The rapidly increasing practices of raising and spending soft money (with a significant focus on 

sham "issue ads" that unquestionably influence federal 

elections) fully justify the BCRA reforms. "[S]oft money 

spending by political party committees eviscerates the 

ability of the FECA to limit the funds contributed by individuals, corporations, or unions for the defeat or benefit of 

specific candidates." Report at 4468. The evisceration of 

the original limits set by FECA through soft-money contributions has "caused a loss of public confidence in the 

integrity of our campaign finance system. By inviting 

7 The majority and minority members also differed at times on 

whether certain of the abuses were actual violations ofpre-BCRA law. 

8 Although as Chair amicus did not vote in favor of the Minority Report, the combined findings of both reports provide a devastating look 

at the fundraising practices of both parties. For that reason, this brief 

cites and discusses the findings of both the majority and the minority. 
6 

corruption of the electoral process," the raising of such 

massive sums of soft money from large donors 

"threaten[s] our democracy." Minority Report at 4565. 

Many of the proponents of the BCRA cited the findings 

of the Report and advanced its legislative proposals. Understanding the basis for the committee's Report, therefore, serves as a critical factual predicate to Congress's 

enactment of the BCRA. 

ARGUMENT 

I. PERVASIVE SOFT-MONEY FUNDRAISING LED 

TO A WIDESPREAD PUBLIC PERCEPTION 

THAT THE CAMPAIGN FINANCE SYSTEM WAS 

CORRUPT 

After Republicans won control of both houses of Congress in the 1994 mid-term elections, President Clinton's 

1996 re-election campaign developed a virtually unslakable "thirst for money" in the drive to keep the White 

House. Report at 23. Unable to raise sufficient amounts 

of hard money under FECA's contribution limits, the 

Democrats turned to soft-money contributions given, not 

to the Clinton/Gore campaign, but rather to the Democratic National Committee ("DNC") and state Democratic 

parties. As the Report details, the Republicans naturally 

followed suit. Those soft-money contributions, in turn, 

funded issue ads and other activities designed by both 

parties to influence the 1996 presidential election. 

A. Both Parties Traded Access To Candidates 

And Senior Government Officials For Large 

Soft-Money Contributions 

The pursuit of large contributions of soft money led to a 

"willingness to sell access to senior government officials." 

Report at 65. Candidates urged potential donors to contribute soft money to federal and state party committees 

(or to interest groups working to elect the candidate). In 

exchange, donors expected and often received unprecedented access to federal officeholders. Soft-money contri-
7 

butions - unlimited in amount - were thus far more 

successful at gaining access for contributors to politicians 

than hard-money contributions, which FECA limited to 

$1,000 per person. See 2 U.S.C. § 441a(a)(1), (6) (2000). 

As the following examples gleaned from the Report establish, public officials used their offices to raise massive 

contributions from donors, who in turn sought and received access to those officials to advance their own interests. Such a process gave rise, at a minimum, to a powerful perception of corruption. 

1. White House Coffees, Overnights, and Other Fundraising Events by Democrats. The Report concluded that 

President Clinton used the 'White House on hundreds of 

occasions to reward contributors and to provide access for 

donors who gave massive amounts of money to the DNC. 

See Report at 41 ("Perhaps nothing illustrates this merchandising of the Presidency better than the DNC's White 

House 'coffees'- fundraising events at which major donors 

were provided access to the President in exchange for 

their campaign contributions."). In January 1995, 

Terrance McAuliffe, then-DNC Finance Chairman and 

soon-to-become National Finance Chairman for Clinton/ 

Gore '96, drafted a memorandum suggesting White House 

coffees, overnights, golf games, and morning jogs as ways 

to give major donors '"quality time"' "'to discuss issues 

and exchange ideas with the President."' !d. at 194. The 

President responded, "'yes, pursue [these events] and 

promptly - and get other names at 100,000 [dollars] or 

more; 50,000 [dollars] or more."' Id. at 195. 

Between January 11, 1995 and August 23, 1996, 

the White House hosted 103 coffees. Most lasted at 

least an hour, and the President attended the vast 

majority of them. Approximately 60 of these were 

DNC-sponsored coffees, 92 percent of the guests at 

which were major Democratic Party contributors. 

These guests made contributions during the 1996 

election cycle of $26.4 million, an average contribu-
8 

tion of over $54,000 per person, with one-third of 

their total donations, some $7.7 million, given 

within a month of the donor's attendance at a 

White House coffee. 

Id. at 41; see also id. at 196 ("in keeping with the DNC's 

plan to cultivate 'top top' contributors, at least 12 individuals contributed at least $100,000 on or around the 

dates of the coffees they attended") (footnote omitted).9 

Many donors also stayed overnight at the White House, 

"often in the historic Lincoln Bedroom." Minority Report 

at 7956. These overnight guests, "178 individuals- from 

114 different families - contributed a total of more than 

$5 million to the DNC ... during the 1996 election cycle[,] 

... an average contribution per family of over $44,000." 

Report at 199 (footnote omitted). As the evidence discussed further below demonstrates, many donors hoped to 

get the administration's assistance to further their private business interests, and some apparently succeeded. 

The President and Vice President also placed many 

phone calls soliciting soft-money donations for the DNC. 

See id. at 501-12. Such telemarketing by our highest 

elected officials at best "amounted to unsavory and unseemly activity that lessens the dignity of these offices." 

Id. at 521. It also "would defy reality not to recognize that 

the recipients of such calls, many of whom had business 

interests, would find it difficult to turn down requests for 

funds from persons who exercise such vast power." Id. 

2. Republican Soft-Money Fundraising Efforts. The 

Minority Report catalogued Republican use of access to 

the White House and senior government officials for fundraising for the Republican National Committee ("RNC''). 

"Tablebuyers" purchasing 10 seats at the 1992 President's 

Dinner were "entitled to attend a 'Private Reception 

9 Coffees were a highly efficient way to raise money. The DNC's 

overhead costs were ''negligible," while direct mail overhead ran at 

42%. Report at 196 & n.29. 
9 

hosted by President and Mrs. Bush at The White House' 

or a 'Reception hosted by The President's Cabinet."' ld. at 

5418 (noting that tablebuyers could also attend a '"Luncheon hosted by Vice President and Mrs. Quayle'" and a 

"'Senate-House Leadership Breakfast hosted by Senator 

Bob Dole and Congressman Bob Michel"'). Tablebuyers 

could also '"request a Member of the House of Representatives to complete the table of ten,"' and the purchase of 

a second table gained the '"option to request one Senator 

or one Senior Administration Official."' ld. at 5418-19; 

see also id. at 5419 (explaining that fundraisers would receive similar benefits, and warning: "'Note: Attendance 

at all events is limited. Benefits based on receipts."'). 

Promotional materials for the RNC's two principal donor programs, Team 100 and the Republican Eagles, 

promised that members "would receive special access to 

high-ranking Republican elected officials, including governors, senators, and representatives." Id. at 7968. Team 

100 membership requires an initial contribution of 

$100,000, and $25,000 for each of the next three years; 

Republican Eagle membership requires contributions of 

$15,000 annually. Id. One fundraising letter to a prospective Team 100 member represented that, after Ed 

Lupberger, CEO of Entergy, joined Team 100, Haley Barbour, then-Chairman of the RNC, "'escort[ed] him on four 

appointments that turned out to be very significant in the 

legislation affecting public utility holding companies. In 

fact, it made Ed a hero in his industry.'" I d. at 7971. And 

a memorandum from an RNC aide to the Team 100 chairman reported that the RNC sought to get a "'hot'" 

prospect '"an appointment with [Representative] Dick 

Armey, so we can get his other $50,000."' Id. at 8036. 10 

10 "[A] 1995 Eagles brochure contains photographs of Eagles members meeting with former President George Bush, former Vice President Dan Quayle, Governor Pete Wilson, Senators Connie Mack and 

Kay Bailey Hutchison, and Mayor Rudolph Giuliani." Minority Report 

at 7969. The brochure states: '"Each Year Eagles receive invitations 
10 

From May to August 1996, presidential candidate 

Robert Dole attended "at least 25 RNC soft-money fundraisers." ld. at 8301. A 1997 fundraising letter by thenSenate Majority Leader Trent Lott, sent on behalf of the 

National Republican Senatorial Committee, promised contributors "'plenty of opportunities to share [their] personal 

ideas and vision with some of our top Republican leaders, 

senators, and panel members.' Failure to contribute 

meant that 'you could lose a unique chance to be included 

in current legislative policy debates- debates that will affect your family and your business for many years to 

come."' ld. at 797 4 (alteration in original); see also id. at 

7968-78 (more examples of special access for large RNC 

donors). 11 

3. The Roger Tamraz Contributions. "One of the most 

egregious examples of access being provided in exchange 

for political contributions concerns businessman Roger 

Tamraz," id. at 457 4, one of "a number of alarmingly unsavory characters" who gained access to President Clinton, Report at 41. Tamraz, an international businessman, 

was wanted by French police and faced an Interpol arrest 

warrant for embezzlement in Lebanon. ld. at 43. 

to four national meetings. At least two of these meetings take place in 

Washington, D.C., and feature strategy and issue committee sessions 

with prominent elected Party leaders from the U.S. Senate and House 

on such topics as the budget and tax reform, international trade and 

regulatory reform, health care and foreign policy. Other participants 

have included Republican Presidents (at the White House), Governors 

and former Administration officials."' Id. 

11 A 1993 letter urging contributors to join the Republican Senate 

Council stated that a '"standard'" membership ($5,000 yearly) '"entitles you to monthly meetings while the Senate is in session[,] ... generally consist[ing] of discussion on current pending legislation with the 

ranking Republican on the pertinent committee addJ:essing the membership. The Policy Board level [$15,000 yearly] is entitled to all the 

standard membership benefits in addition to quarterly dining with this 

smaller group and the Republican Senators. The meetings serve as a 

virtual one-on-one as the Senators may outnumber the Policy Board 

members.'" Minority Report at 8033. 
11 

Tamraz sought U.S. government backing for an oil pipeline project in the Caucasus and was willing to invest significant sums of money to get it. When officials at the National Security Council ("NSC") determined that his 

schemes were untenable and harmful to U.S. foreign policy interests, Tamraz began making huge contributions, 

donating a total of $300,000 to the DNC and several state 

democratic parties, and promising more. See id. at 2910-

14. The allocation of those donations came at then-DNC 

National Chairman Don "Fowler's direction." Id. at 2913; 

see also id. at 2914 ("Buoyed by their success in winning 

such large sums from Tamraz, DNC Finance Director 

Richard Sullivan recounted, 'all of us were continually 

asking him for money through the course of the year' -

perhaps 'every six weeks' during 1996."). When asked at 

the committee hearings whether access to the President 

for promotion of his pipeline was a reason for the donations, Tamraz candidly replied: '"Senator, I'm going even 

further. It's the only reason -to get access."' Id. at 2913 

n.46; see also id. at 2915 ('"[I]f they kicked me from the 

door, I will come through the window."'). 

Despite warnings by DNC staff regarding Tamraz's 

background and NSC staff concerns that he should be denied access to senior government officials, see id. at 2911-

13, "Tamraz was able to attend events with President 

Clinton on no fewer than six occasions from September 

1995 through June 1996," id. at 2920. 12 After one conversation, the President asked Thomas McLarty, Counselor 

to the President, to look into the pipeline. Through 

McLarty's influence, Energy Department officials tried to 

12 These events were "(1) a reception for the DNC's Business Leadership Forum on September 11, 1995; (2) a DNC dinner on September 

15, 1995; (3) a DNC Chairman's holiday reception on December 13, 

1995; (4) a DNC Trustee's dinner on March 27, 1996; (5) a Presidential 

coffee on April 1, 1996; and (6) a buffet dinner and pxivate screening of 

the film Independence Day on June 22, 1996." Report at 2920. 
12 

use Tamraz's sizeable donations to change the NSC's opposition to dealing with Tamraz. See id. at 2921-29. 

Although Tamraz was ultimately unsuccessful in persuading the government to support his pipeline, he "did 

succeed in subverting the policy of the U.S. Government," 

as established by the interagency Caspian energy working 

group, "to deny him access to high-level U.S. officials. Despite the working group's firm position against such access, Tamraz found access to the President of the United 

States to be available for a price through Donald Fowler 

and the DNC." !d. at 2930. More ominously, Tamraz 

used his vast contributions to "enlistO senior [U.S.] officials in his attempt to change the working group's policy 

on Caspian energy issues." !d. Though ultimately 

thwarted in receiving full government support for his oil 

pipeline project, Tamraz was unrepentant. As he told the 

committee, '"I think next time, I'll give [$]600,000."' Id. 13 

Although the most publicized incidents involving Tamraz concerned soft money given to the DNC, he also 

"openly bought access from both political parties." Minority Report at 8095. "In February 1997, Tamraz received 

letters from Republican Senators Trent Lott and Mitch 

McConnell inviting him to become a member of the Senatorial Inner Circle. . . . Senator McConnellrsl ... letter 

stated that for a contribution to the Republican Party, 

Tamraz could discuss high-level policy issues at exclusive 

dinners with the Senate leadership." !d. at 8113 (noting, 

however, that Tamraz's subsequent contribution was returned). "When asked why he had contributed this time, 

Tamraz responded, 'you set the rules, and we are following the rules. . . . [T]his is politics as usual. What is 

new?'" !d. (alterations in original). 

13 Ironically, "Tamraz seems to have come closer to purchasing policy concessions in the [U.S.] than he did in the unstable and corrupt 

new democracy of post-communist Russia," where he reportedly made 

an unsuccessful offer of $100 million to Boris Yeltsin's re-election campaign in exchange for endorsement of his pipeline. Report at 2930-31. 
13 

As the Tamraz saga additionally demonstrates, donors 

often give to both parties in order to ensure access. "In 

1996, for example, corporations such as RJR Nabisco, 

AT&T, and Walt Disney were among the top contributors 

to both parties. In the words of Common Cause President 

Ann McBride, '[S]oft money is not about ideology .... It is 

about making sure "whoever wins, my special interest has 

a place at the table".. . . It is about gaining access and 

influence."' Id. at 7517 (alterations in original). The 

cynicism of the Tamraz affair was perhaps best illustrated 

by the fact that he did not even bother to vote. Tamraz 

"believed himself to possess 'more than a vote' by virtue of 

his campaign contributions." Report at 2909. 14 

4. Michael Kojima's Fundraising and Contributions. 

Because he contributed $500,000 to the 1992 President's 

Dinner, Michael Kojima and his wife were placed "at the 

head table with President and Mrs. Bush." Minority Report at 7372. In addition, the Republican Presidential 

Roundtable (a Republican fundraising organization) wrote 

letters on Kojima's behalf to obtain meetings for him with 

U.S. embassy and foreign officials, to facilitate Kojima's 

pursuit of private business interests. See id. at 5416-17. 

In sum, "[i]n a two-year period, due to his contributor 

status, Kojima met President Bush on five occasions, including at an Oval Office reception; met with Vice President Quayle twice; met Cabinet members at an intimate 

lunch; and met multiple times with U.S. ambassadors and 

senior embassy personnel." !d. at 5428. 

5. Charlie Trie. Charlie Trie was a former Little Rock 

restaurateur who contributed and raised substantial sums 

of money to benefit the DNC to gain access to the Clinton 

14 "In theory, every voter is equal; the reality is that some voters, to 

borrow George Orwell's phrase, are 'more equal than others.' No one 

can deny that individuals who contribute substantial sums of money to 

candidates are likely to have more access to elected officials. And most 

of us think greater access brings greater influence." Minority Report 

at 4563. 
14 

White House and senior Administration officials for himself and his associates. See Report at 2524, 2527 ("Trie 

... managed to contribute a total of $220,000 to the DNC 

between 1994 and 1996," and he "made a commitment to 

the DNC to raise $350,000" in 1996 alone). Trie visited 

the White House "at least twenty-two times" from 1993 to 

1996, and his Macau-based business associate, Ng Lap 

Seng (who actually funded Trie's contributions), visited 

the White House 10 times between 1994 and 1996. Id. at 

2531-32. "Trie['s] contributions and fundraising made him 

a DNC Managing Trustee and member of the DNC's National Finance Board of Directors, and afforded him VIP 

treatment at DNC events." Id. at 2532 (footnotes omitted). 

In addition, the committee concluded that "Trie's contributions and fundraising purchased his otherwise unwarranted appointment in 1996 to the Commission on U.S.-

Pacific Trade and Investment Policy." Id. at 2519. Despite a disqualifying financial interest in the affairs of the 

commission (due to Trie's Asian business interests), and 

despite the fact that all slots on the commission were 

filled, Trie received the appointment. "In order to accommodate the White House's interest in the inclusion of Trie 

... , the President issued [an] Executive Order ... expanding the membership of the Commission." Id. at 2534. The 

paperwork on Trie's disqualifying financial interest "simply 'fell through the cracks."' Id. at 2535. 15 

15 Trie also arranged admission to a White House coffee for a Chinese arms dealer and advisor to the Chinese government. See Report 

at 2714 ("The President subsequently admitted his meeting with Wang 

Jun was highly improper."). The Committee found generally that the 

White House's vetting process "was essentially nonexistent." Id. at 

753. Due to the soft money quest, "too many unsavory individuals 

were allowed entrance to the White House and access to President 

Clinton." Id. For example, major DNC donor Ted Sioeng, "a foreign 

national with suspiciously close ties to the Chinese government, sat at 

the head table with the President or Vice President at several fundraisers." Id. at 41; see also id. at 963-80. 
15 

6. Johnny Chung. Major DNC soft-money donor 

Johnny Chung likewise enjoyed repeated access to the 

White House. His "DNC contributions helped Chung obtain access to the White House at least 49 times between 

February 1994 and February 1996- access that he used 

. . . to further his interests with foreign business clients 

. . . . So close was the nexus between Chung's donations 

and his visits, in fact, that White House officials actually 

collected money from him in the First Lady's office in exchange for allowing him to bring a delegation of his clients 

to White House events." Id. at 783 (footnote omitted). In 

Chung's own colorful and candid view, he was granted access because the "'White House is like a subway: You 

have to put in coins to open the gates."' Id. 

7. Native A.merican Fundraising and Access. Native 

American groups found that the same principle - fundraising money for political access - operated to them as 

well. "It is clear that access to the DNC resulted in increased access to administration officials for tribes. And 

the way to get access to the DNC was to make political 

contributions. . . . The tribes with greater resources had 

many more doors opened to them." Id. at 3080. 

For instance, the Mashantucket Pequots, owners of one 

of the world's largest casinos, were "assured ... special 

attention from the DNC" by virtue of their "generosity to 

the Democratic party." Id. at 3075. In a briefing memorandum for a meeting between then-DNC head Don 

Fowler and the Pequot chairman, "Fowler was encouraged 

by DNC staff to ask the Pequots to contribute 'at least' 

$250,000 to the DNC. The memo notes that an issue of 

special significance for the Pequots was a provision in the 

1995 budget bill that proposed a 35% tax on Indian gaming revenues. Inasmuch as the Foxwoods Resort casino 

[owned by the Pequot tribe] has yearly revenues of approximately $1 billion, such a tax would have had a huge 

impact on the tribe. The provision was removed, and, according to the memo, Fowler 'played an active role in expressing' tribal opposition regarding the tax to the Ad-
16 

ministration and Congress. The memo exhorts Fowler to 

'take credit' for that and other pro-tribal achievements." 

Id. (footnotes omitted); see also id. at 3076-80 ("finance 

officials at the DNC and Clinton Gore were [regularly] 

targeting various Indian tribes for contributions"). 

In another instance of donor access that "confirms the 

public's worst suspicions about how things seem to work in 

Washington," three impoverished bands of Wisconsin Indian tribes applied to open a casino in Hudson, Wisconsin. 

Id. at 3167; see id. at 3167-94. The Bureau of Indian Mfairs' area office initially approved their application in November 1994 over the objections of the wealthy, neighboring tribes whose nearby gambling casinos would face competition from the applicants. "At the same time the area 

office decision was sent to Washington for final approval, 

on a separate track began a full-tilt lobbying effort against 

the decision, which involved the DNC and the White 

House." Id. at 3167. 

The Report found "strong circumstantial evidence that 

the Interior Department's decision to deny the Hudson application was caused in large part by improper political 

considerations, including the promise of political contributions from opposition tribes. At a minimum, it is clear 

that the opposition tribes and their lobbyists activated the 

DNC and, to some extent, the White House, to take action 

on their behalf. Financial support - both past and future 

-was crucial to this effort." Id. at 3168. "According to 

FEC records, in the four months following the Department's denial of the Hudson application, the opposition 

tribes contributed $53,000 to the DNC and the [Democratic Senatorial Campaign Committee ("DSCC")]; they 

donated an additional $230,000 to the DNC and the DSCC 

during 1996, and gave more than $50,000 in additional 

money to the Minnesota Democratic Party." Id. at 45. 16 

16 The Minority Report contended that the denial "was based upon 

legitimate concerns," Minority Report at 8390, although it agreed that 

such incidents do create a strong appearance of impropriety, see id. at 
17 

The taint of wrongdoing in that episode was so strong 

that an independent counsel was appointed to investigate. 

See Final Report of Independent Counsel In Re: Bruce Edward Babbitt (Aug. 22, 2000). Although the independent 

counsel found insufficient evidence to bring a criminal 

bribery prosecution, its scathing conclusion about softmoney fundraising bears remembering, as it pertains directly to the types of concerns the Buckley Court invoked 

to uphold the constitutionality of FECA: "From a criminal 

justice perspective, as long as large sums of money outside 

of the regulatory authority of the campaign finance lawsi.e., 'soft money' - may be given to political parties, the 

possibility of attempted corruption of official actions will 

loom large, public confidence in the integrity of governmental decision-making will be undermined and federal 

prosecutors will too often be required to give extraordinary 

scrutiny to what should be ordinary administrative agency 

actions." !d. at 422. 

B. Soft-Money Fundraising Distracts Elected 

Officials From Their Public Duties 

The Report documented examples of how soft-money 

fundraising has diverted the attention of key elected officials from their public responsibilities. In a 10-month period before the 1996 election, for example, President Clinton attended more than 230 fundraising events, raising 

$119,000,000. See Report at 43. 

According to Presidential campaign advisor Dick 

Morris, President Clinton "would say 'I haven't slept 

in three days; every time I turn around they want me 

to be at a fund-raiser ... I cannot think, I cannot do 

anything. Every minute of my time is spent at these 

8368 ("One of the most discouraging aspects of the present campaign 

finance system is that even public policy decisions undertaken in the 

utmost good-faith can take on an appearance of impropriety in the context of a system where so many of the individuals or entities likely to 

be affected by government actions are able to make the kind of large 

campaign contributions presently permitted by our system."). 
18 

fundraisers."' This frenzied pursuit of campaign contributions raises obvious and disturbing questions. 

Can any President who spends this much time raising 

money focus adequately upon affairs of state? Is it 

even possible for such a President to distinguish between fundraising and policymaking? 

Id. (alteration in original); see also id. at 42 ("As Vice 

President Gore himself noted, 'we can raise the [necessary] 

money ... ONLY IF - the President and I actually do the 

events, the calls, the coffees, etc."') (alterations in original). 

Former Vice President Walter Mondale testified that 

'"[i]t is the most degrading and humiliating thing that can 

happen to a public officer to have to spend a substantial 

chunk of his or her time pleading for money in this kind of 

way .... That is one of the most powerful arguments for 

repeal of the soft money loophole."' Minority Report at 

7520 (alteration in original). "In some ways, the most 

troubling result of the White House's and DNC's ceaseless 

quest for campaign funding is the great amount of time 

the President and the Vice President themselves actually 

spent raising money." Report at 42. "The bottom line is 

this: were it not for the lure of soft money and the relentless pressure to raise it, our nation's highest officials 

would have not been placed into the inappropriate situations in which the Committee too often found them. The 

President and the Vice-President, for example, never 

would have felt the need even to consider personally phoning supporters for donations, and we likely never would 

have seen the White House and Capitol Hill conscripted 

into serving the fundraising goals of the DNC, the RNC, 

and the two major presidential campaigns." Additional 

Views of Senator Lieberman at 9538. 

Such frenzied pursuit of soft money fatally undermines 

public confidence in our political system, as examples from 

both parties illustrate. As one White House coffee attendee commented, "'the White House coffee was an improper 
19 

"shakedown" for money ... in the presence of the President."' Report at 214. Another donor found the Vice 

President's telephone "sales pitch ... 'revolting,"' and still 

another felt the call he received had "'elements of a shakedown."' Id. at 501-02. In March 1995, the National Policy 

Forum (a think-tank established by the RNC, see Report 

at 16) held a conference on telecommunications at which 

then-Senate Majority Leader Robert Dole and other Republicans spoke. See Minority Report at 4664. One newspaper reported: "'[E]ven though the [requested] $25,000 

payment is not mandatory to attend, company representatives professed surprise at the size of the contribution 

request. "It's pretty astounding," said one invitee. "If this 

doesn't have 'payment for acces[s]' (to top GOP lawmakers) written all over it, I don't know what does.""' Id. 

(first alteration in original). 17 

II. CONGRESS HAD A COMPELLING INTEREST 

IN REGULATING USE OF SOFT MONEY TO 

FUND SHAM "ISSUE ADS" 

The way soft money is spent is just as problematic as 

the way it is raised. During the 1996 election campaign, 

both the DNC and the RNC (along with corporations, unions, and other interest groups) found a gaping loophole 

through which they ran so-called "issue advertisements" 

designed to influence federal elections. 18 Under FECA, 

soft money cannot be used expressly to advocate the 

17 Although candidates arguably would have to spend more time 

raising hard dollars if unlimited soft money could no longer influence 

federal elections, lower limits are less likely to place a candidate in the 

position of asking for massive contributions from individuals and 

therefore giving the appearance of being beholden to them. The 

BCRA's hard-money limits of $2,000 per person to a candidate and 

$25,000 to a national party address that concern. See BCRA § 307(a), 

2 U.S.C. § 441a(a)(l). 

18 See JSSA 39sa (per curiam) ("It does not appear that prior to 

1996, the practice of using issue advertising to influence federal elections was a widespread practice."). 
20 

election or defeat of a clearly identifiable federal candidate, but rather may be used only for more generic partybuilding activities. See supra at p.2. 

A significant development of party-building, however, 

was through "issue ads," television advertisements that do 

not expressly advocate the election or defeat of a specific 

candidate. Report at 4465. Parties learned over time that 

a cleverly worded ad can technically meet this standard by 

portraying candidates in a positive or negative light "in 

the context of issues." Id. at 4478. 

By the 1996 presidential campaign, "[t]he vast majority 

of issue ads identified specific candidates and functioned 

as campaign ads. . . . [Those ads] were effectively indistinguishable from candidate ads." Minority Report at 

7515. Both the national parties and corporate, union, and 

other interest groups ran numerous such issue ads funded 

substantially19 or completely with unregulated soft money. 

These sham ads, highly problematic in their own right because they were used to influence federal elections and not 

restricted to generic party-building uses, were made worse 

by the fact that they were often coordinated with- indeed, 

controlled by- the 1996 presidential campaign from which 

they purportedly were independent. 

A. The National Parties Used Massive Amounts 

Of Soft Money To Fund Sham "Issue Ads" 

In the 1996 election, the DNC spent approximately $44 

million in soft money on issue ads, and the RNC spent approximately $24 million. See Report at 4482; Minority Report at 8294. At the committee hearings, Harold Ickes, 

President Clinton's Deputy White House Chief of Staff, 

responded to a question asking whether the average person would understand the DNC and RNC issue ads as 

suggesting a vote for Clinton or Dole: '"I would certainly 

19 Under FECA, federal law permitted issue ads run by a national 

party in an election year to be paid for with 35% soft money, and the 

rest with hard money. See JSSA 33sa-34sa (per curiam). 
21 

hope so. If not, we ought to fire the ad agencies.'" Minority Report at 8286. 

The President knew he was using DNC soft money to 

fund issue ads in the service of his re-election campaign. 

He told a group of major contributors to the DNC: 

"[W]e even gave up one or two of our fundraisers at 

the end of the year to try to get more money to the 

Democratic Party rather than my campaigns. My 

original strategy had been to raise all the money for 

my campaign this year, so I could spend all my [time] 

next year being president, running for president, and 

raising money for the Senate and House Committee 

and for the Democratic Party. 

And then we realized that we could run these ads 

through the Democratic Party, which meant that we 

could raise money in twenty and fifty and hundred 

thousand dollar lots, and we didn't have to do it all in 

thousand dollars. And run down- you know what I 

can spend which is limited by law. So that's what 

we've done. But I have to tell you I'm very grateful to 

you. The contributions you have made in this have 

made a huge difference.'' 

Report at 62 (emphasis added; alteration in original). 

The Dole campaign adopted a similar strategy. "[T]here 

can be little doubt that the RNC's issue ads were intended 

to influence the outcome of a federal election . . . . One of 

those issue ads, entitled 'The Story,' was nothing more 

than a biography of Bob Dole." Id. at 4014. 20 Indeed, an 

20 "The Story" stated as follows (Report at 4014) (alteration in 

original): 

"Audio of Bob Dole: We have a moral obligation to give our children an America with the opportunity and values of the nation we 

grew up in. 

Voice Over: Bob Dole grew up in Russell, Kansas. From his parents he learned the value of hard work, honesty and responsibility. 
22 

internal RNC memorandum concluded that '"[m]aking 

this spot pass the issue advocacy test may take some doing."' Id. at 4015; see also id. at 4014-15 (discussing another RNC issue ad that "focused on personality traits [of 

Bill Clinton] rather than public issues"); Minority Report 

at 8301 (quoting Dole campaign manager as saying, "'[w]e 

went out in April and May and raised $25 million for the 

party, ofwhich about $17, $18, or $19 million was put into 

party building ads, which were Bob Dole in nature"'). 

While being interviewed by Ted Koppel of ABC, Dole 

candidly admitted that, although his campaign did not 

have enough money to pay for advertising, the RNC would 

be running "generic" ads on his behalf (Report at 4153-54): 

"Q You said generic spending, and then it says 'Bob 

Dole for president', is that considered generic spending? 

SEN. DOLE: It doesn't say 'Bob Dole for president.' 

It has my- it talks about the Bob Dole story. It also 

talks about issues. It never mentions the word that 

I'm - it never says that I'm running for president, 

though I hope that it's fairly obvious, since I'm the 

only one in the picture! (Laughter)." 

So when his country called ... he answered. He was seriously 

wounded in combat. Paralyzed, he underwent nine operations. 

Audio of Bob Dole: I went around looking for a miracle that 

would make me whole again. 

Voice Over: The doctors said he'd never walk again. But after 39 

months, he proved them wrong. 

Audio of Elizabeth Dole: He persevered, he never gave up. He 

fought his way back from total paralysis. 

Voice Over: Like many Americans, his life experience and values 

serve as a strong moral compass. The principle of work to replace 

welfare. The principle of accountability to strengthen our criminal 

justice system. The principle of discipline to end wasteful Washington spending. 

Voice of Bob Dole: It all comes down to values. What you believe 

in. What you sacrifice for. And what you stand for." 
23 

B. The National Parties Coordinated Sham 

"Issue Ads" With Their Presidential Candidate's Campaign 

In the 1996 campaign, the White House "operated the 

[DNC] party apparatus as a slush-fund for the President's 

re-election campaign." Report at 23. The Clinton campaign and the DNC engaged in "unprecedented" coordination "over the content, placement, and production of advertisements.. . . By the end of the campaign, any distinctions remaining between the White House, the DNC, and 

Clinton/Gore had been obliterated." Id. at 107. 

The soft money the President and Vice President had 

been so instrumental in raising for the DNC was used to 

fund DNC issue ads over which "the President himself exercised total control." Id. at 34. According to Dick Morris, 

President Clinton's campaign advisor, "the President 'was 

as involved [in the DNC and Clinton/Gore '96 media campaign] as any of his media consultants were,' '[e]very line 

of every ad came under his informed, critical, and often 

meddlesome gaze,' such that '[t]he ads [for both the DNC 

and Clinton/Gore '96] became ... the work of the President himself."' Id. at 122 (alterations in original); see also 

id. at 123-25 (detailing close involvement of Vice President 

Gore and other White House officials). The coordination 

even "extended to the exact day the media team chose to 

run a DNC advertisement versus a Clinton/Gore '96 advertisement," id. at 118, and both the DNC and Clinton/Gore '96 "employed all the same consultants, pollsters, 

and media producers," id. at 34. One meeting agenda candidly stated: "'[u]se DNC to pay for it, we [the joint White 

House, DNC and Clinton/Gore media team] control 

production.'" Id. at 118-19 (alterations in original). 

Although such close coordination was arguably illegal 

under FECA, the Attorney General declined to appoint an 

independent counsel. She opined that "'FECA does not 

prohibit the coordination of fundraising or expenditures 

between a party and its candidate for office."' Id. at 4528. 
24 

The Attorney General's opinion and the perception created 

by these fundraising scandals thus made clear that Congress had to close this enormous loophole. See Minority 

Report at 8290 ("By permitting such coordinated efforts to 

raise soft money and spend it on political activities that 

advance the interests of presidential campaigns, the federal election laws create a tremendous loophole to both 

contribution limits and spending limits."). 

The committee's investigation also showed that, to a 

lesser degree, the Dole campaign and RNC coordinated 

ads; indeed, their media campaigns came under common 

control. The Minority Report concluded that Senator 

Dole's "campaign manager, chief fundraiser, media consultant, and pollster controlled the RNC's media campaign." Id. at 8297; see also id. at 8302 ("[F]ormer Dole 

staffers who were on the RNC payroll ran every aspect of 

the bankrupt Dole for President campaign, from planning 

campaign events for Dole to raising money for a multimillion-dollar ad campaign designed to boost the senator's 

candidacy."). Moreover, the RNC's issue ads were typically run (like the DNC ads) only in "battleground" states 

"where Clinton and Dole were close in the polls." ld. at 

8299 ("[T]he criterion used by the RNC and the Dole campaign for deciding where to run issue ads was whether the 

ads would help Senator Dole win electoral votes."). 

C. Both Parties Shifted Soft Money From 

National To State Party Coffers To Fund 

More Sham "Issue Ads" 

Pre-BCRA law permitted issue ads run by a national 

party in an election year to be paid for with 35% soft 

money. See JSSA 33sa-34sa (per curiam). Because FEC 

regulations permitted state and local parties to fund issue 

ads with more than 35% soft money, see id. at 34sa-36sa & 

nn.l4-15, national party committees often transferred soft 

money to them. "Substantial amounts of such transfers 

are made to state and local political parties for 'generic 

voter activities' that in fact ultimately benefit federal 
25 

candidates because the funds for all practical purposes 

remain under the control of the national committees. The 

use of such soft money thus allows more corporate, union 

treasury, and large contributions from wealthy individuals 

into the system." Report at 4466. 

The size of such transfers is truly massive. In 1996, the 

Democratic committees transferred as much as $64 million 

in soft money to state parties, nearly nine times more than 

in 1992. See id. at 4467; Minority Report at 7520. The 

Republican committees transferred $50 million in soft 

money to state parties, or almost 10 times more than in 

1992. See Minority Report at 7520. The transfers did not 

generally entail any loss of control over how the transferred soft money was spent. As one RNC memorandum 

explains (id. at 8300): 

"Some have voiced concern that buying through the 

state parties could result in a loss of control on our 

part. There is absolutely no reason to be concerned 

about this. As was demonstrated in our efforts recently in the [California] and [Oregon] special elections, our field staff is fully able to insure that state 

parties make good on any arrangement we make with 

them. This is simply a book keeping hassle, but not 

in anyway [sic] a reason not to proceed." 

State parties thus "acted as mere conduits, exercising 

no independent judgment over the ads." I d.; see also Report at 4468 ("the state entities operated as little more 

than a pass-through for the DNC to pay for the production 

and broadcasting of ads by the [same] firm" that produced 

DNC and Clinton/Gore '96 ads).21 Indeed, the communica21 This mechanism was also used in elections at other levels. The 

DNC, for example, accepted a $230,000 soft-money contribution and 

shortly thereafter transferred $215,000 to the Kentucky Democratic 

Party, "which in turn paid for an advertising blitz that closely paralleled the themes that [the donor's] favored candidate used in campaigning for the U.S. Senate." Report at 4467; see also id. at 4467-68 

& n.32 (detailing incident where "the DNC saved $122,810 in hard 
26 

tions director for the Florida Democratic Party commented 

with regard to ads run under the state party's name: 

'"Those aren't ours; those are the DNC's."' Id. 

D. Non-Party Groups Used Massive Amounts Of 

Soft Money To Fund Sham "Issue Ads" 

The loophole identified and exploited by the national 

parties was likewise used by a wide array of advocacy 

groups to influence the 1996 election. Such groups spent 

an estimated $55-70 million on political advocacy campaigns, or "roughly one-seventh of the 400 million dollars 

expended on political advertising during the 1996 elections 

by parties, candidates and others." Report at 3993. A 

substantial (though indeterminate) portion of those funds 

was spent on issue ads meant to influence federal elections, yet, like the ads run by the national parties, avoided 

using magic words of express advocacy (and thus arguably 

avoided being deemed in-kind contributions subject to 

hard-money limits). Id. 

In addition, those expenditures were often coordinated 

to varying degrees with the 1996 presidential campaigns 

or the national parties. For example, "White House aides 

and the AFL-CIO carefully reviewed each other's advertisements and coordinated their timing and placement." 

Id. at 49; see also id. at 3997 ("Evidence ... indicates [that 

AFL-CIO] programs were conceived, designed and implemented to defeat Republican Members of Congress during 

the 1996 federal elections."); id. at 3997-4006. 22 

dollars by using the Michigan Democratic Party as a conduit to pay for 

... advertisements" produced by the DNC's own media consultant). 

22 "[I]n August 1995 [Deputy White House Chief of Staff Harold] 

Ickes organized and chaired a White House meeting in the Roosevelt 

Room between representatives of the DNC and Clinton/Gore '96 media 

team and approximately seven representatives of various labor unions. . . . [B]oth the union representatives and the DNC and Clinton/ 

Gore '96 media team displayed advertisements each had run or were 

considering running. [Clinton presidential campaign advisor Dick] 
27 

The minority found that a conservative group, The Coalition: Americans Working for Real Change, "was formed 

to counter-balance issue ads run by the AFL-CIO. To do 

so, it reportedly spent at least $4.5 million, supported 23 

Republican incumbents, and criticized the voting records 

of four Democrats in tight races. The Coalition's ads also 

contained nearly identical language to that used in ads 

broadcast by the National Republican Congressional Coalition ("NRCC"), a division of the RNC. In addition, the 

Coalition's ads were run at the same time as the NRCC's 

ads and in districts where the Republican incumbent's 

seat was vulnerable." Minority Report at 8944 (footnotes 

omitted). 

The minority further found that "[t]he issue advocacy 

loophole was also exploited by Triad Management Services, ... [which] channeled millions of dollars from its 

backers to two tax-exempt groups it had established for 

the sole purpose of running attack ads against Democratic 

candidates under the guise of 'issue advocacy.' By operating this way, Triad and its financial backers avoided the 

disclosure and campaign contribution limits of the federal 

election laws." Id. at 4569. For example, under the guidance of Triad, another nonprofit named Citizens for Reform with no previous record and "no ... offices, staff, or 

even telephones," id. at 6301, spent $2 million to run television ads on congressional races from Kansas to Texas.23 

Morris testified that ... 'It was a full briefing of us by them on their 

media plans."' Report at 128 (footnote omitted). 

23 The following ad, for example, aired during the final weeks of the 

Montana congressional race between Bill Yellowtail and Rick Hill: 

"Who is Bill Yellowtail? He preaches family values but took a 

swing at his wife. And Yellowtail's response? He only slapped 

her. But 'her nose was not broken.' He talks law and order ... 

but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support 

payments - then voted against child support enforcement. Call 

Bill Yellowtail. Tell him to support family values." 
28 

III. THE BCRA ADDRESSES THE SOFT-MONEY 

AND ISSUE ADVERTISEMENT ABUSES 

DOCUMENTED IN THE REPORT 

The major problems documented in the Report are addressed in and fully support the BCRA. The Report detailed potential reforms, including banning soft money at 

the national and state party levels and restricting sham 

issue advocacy by nonparty groups. See Report at 4468-

70, 4480-81, 4485-86, 4491-94; id. at 4492 ("A ban on the 

raising of soft money by national party committees effectively deals with the use of union and corporate general 

treasury funds in the federal political process only if it" 

requires funding of candidate-specific ads with hard 

money, such as that contributed to a political action committee.). The Minority Report likewise recommended that 

Congress both "[e]liminate [s]oft [m]oney . . . contributions to political parties from individuals, corporations and 

unions" and enact "reforms addressing candidate advertisements masquerading as issue ads." Minority Report at 

9394. 

The BCRA addresses both problems. Title I regulates 

the uses by political parties of soft money, whereas Title II 

attempts to prohibit labor union and corporate treasury 

funds "from being used to run issue advertisements that 

have an ostensible federal electioneering purpose." JSSA 

47sa. See BCRA §§ 101-103 (Title I), 201-214 (Title II). 

The legislative history shows that Congress relied substantially on the Report in passing the BCRA. 24 Senator 

Minority Report at 6305 (alteration in original); see also Report at 

4007. Although the group was credited with helping Hill beat Yellowtail, it never disclosed how much it spent or the sources of its funds. 

See Robert P. Meier, Comment, The Darker Side of Nonprofits: When 

Charities and Social Welfare Groups Become Political Slush Funds, 

147 U. Pa. L. Rev. 971, 990 n.117 (1999). 

24 The BCRA "legislative process took over six years of study and 

reflection by Congress." JSSA 482sa (Kollar-Kotelly); see id. at 482sa 

n.1 (citing numerous campaign finance reform hills introduced over 

the last six years). Although the Senate and House hills ultimately 
29 

Feingold recounted that, "in the wake of the Thompson 

investigation, we reluctantly concluded that we needed to 

first focus our efforts on closing the biggest loopholes in 

the system: the soft money and the phony issue ads." 148 

Cong. Rec. 82104 (Mar. 20, 2002). 

Senator Lieberman likewise described his "new sense of 

commitment in 1997, when the Governmental Affairs 

Committee conducted its year-long investigation into 

campaign finance abuses in the 1996 Federal elections. 

With the passage of time, the shock of that investigation's 

revelations have started to fade. But it is critical that 

we remember them because they represent precisely what 

is most wrong with the system we plan to change and 

enacted as the BCRA were not accompanied by explanatory committee 

reports, members of Congress frequently invoked the Thompson Committee Report in floor debates as support for the legislation. See, e.g., 

147 Cong. Rec. 83251 (Apr. 2, 2001) (Sen. Thompson) ("The Final Report of the Senate Governmental Affairs Committee's year-long Special 

Investigation documents numerous examples of actual and apparent 

corruption resulting from the solicitation and contribution of soft 

money .... The McCain-Feingold bill will restore a campaign finance 

system that has been completely thwarted by loopholes created in the 

late 1970s."); id. at S3138 (lV1ar. 29, 2001) (Sen. Levin) ("The 1997 Senate investigation collected ample evidence of campaign abuses, the 

most significant of which revolved around the soft money loophole. 

Soft money contributions of hundreds of thousands, even millions, of 

dollars, were shown to have undermined the contribution limits in Federal law and created the appearance of corruption in the public's eye. 

The Republican and Democratic national political parties that solicit 

and spend this money use explicit offers of access to the most powerful, 

elected officials."); id. at S2463 (Mar. 19, 2001) (Sen. Levin) (explaining 

how hearings of the committee exposed how politicians had "trashed 

the limits on contributions that exist in the law" and stating desire 

that, "[h]opefully, McCain-Feingold is going to restore those limits"); 

148 Cong. Rec. 82133-34 (Mar. 20, 2002) (Sen. Collins) ("The problem 

with soft money was painfully evident during the 1997 hearings .... 

We heard from individual after individual who testified about giving 

hundreds of thousands of dollars in order to buy access."); id. at 82138-

41 (Sen. McCain) ("The Senate Governmental Affairs Committee investigation found flagrant abuses by both Presidential campaigns in the 

1996 elections."). 
30 

precisely what helped to begin in full force the effort that 

is about to reach a successful conclusion." Id. at S2137. 

In the wake of the campaign finance meltdown in the 

1996 elections, a Gallup poll showed that 59% of Americans believed elections were "generally for sale to the candidate who can raise the most money," half thought the 

President "was willing to change government policy in exchange for donations," and 77% considered national leaders to be "mostly influenced by the pressure they receive 

on issues from major campaign contributors." The Gallup 

Organization, Americans Not Holding Their Breath on 

Campaign Finance Reform (Oct. 11, 1997). A paltry 19% 

believed elected officials were influenced by what is in the 

best interests of the country. Id. As the court below recognized, more recent polls show these perceptions linger unabated. See JSSA 628sa (Kollar-Kotelly), 1292sa (Leon). 

The investigation by the Senate Governmental Affairs 

Committee in 1997 and 1998 established a documentary 

and testimonial record that proved crucial in convincing 

legislators of the need to close the loopholes in FECA that 

had so badly distorted our electoral system and "to restore 

the campaign finance system to what was intended prior 

to the appearance and exploitation of the soft money loophole." 147 Cong. Rec. S3251 (Apr. 2, 2001) (Sen. Thompson). That record exposed the worst of our system: meetings and sleepovers in the White House for specially chosen contributors of high-dollar soft money, the alteration 

in policy to meet the demands of donors, and the use of 

soft money for advocacy purposes at an unprecedented 

scale. In seeking to return the system to what it had been 

under FECA before those loopholes were discovered, Congress had a more than ample evidentiary record and a 

constitutionally proper mandate under Buckley to enact 

the BCRA. 

CONCLUSION 

Amicus respectfully urges this Court to uphold the constitutionality of BCRA Titles I and II. 
August 5, 2003 

31 

Respectfully submitted, 

DAVID C. FREDERICK 

Counsel of Record 

SCOTTK. ATTAWAY 

KELLOGG, HUBER, HANSEN, 

TODD & EVANS, P.L.L.C. 

1615 M Street, N.W. 

Suite 400 

Washington, D.C. 20036 

(202) 326-7900 

Counsel for Amicus Curiae