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87–573 2003

CONSTITUTIONAL PERSPECTIVE OF

CAMPAIGN FINANCE REFORM

HEARING

BEFORE THE

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

Hearing Held in Washington, DC, June 14, 2001

Printed for the Use of the Committee on House Administration

(

(II)

COMMITTEE ON HOUSE ADMINISTRATION 

BOB NEY, Chairman 

VERNON J. EHLERS, Michigan 

JOHN L. MICA, Florida 

JOHN LINDER, Georgia 

JOHN T. DOOLITTLE, California 

THOMAS M. REYNOLDS, New York 

STENY H. HOYER, Maryland, 

Ranking Minority Member 

CHAKA FATTAH, Pennsylvania 

JIM DAVIS, Florida 

PROFESSIONAL STAFF

PAUL VINOVICH, Staff Director 

BILL CABLE, Minority Staff Director 

(1)

CONSTITUTIONAL PERSPECTIVE OF 

CAMPAIGN FINANCE REFORM 

THURSDAY, JUNE 14, 2001

HOUSE OF REPRESENTATIVES, COMMITTEE ON HOUSE ADMINISTRATION, Washington, DC. 

The committee met, pursuant to call, at 11:20 a.m., in Room 

1310, Longworth House Office Building, Hon. Robert W. Ney 

(chairman of the committee) presiding. 

Present: Representatives Ney, Mica, Linder, Reynolds, Hoyer and 

Davis. 

Staff present: Jeff Janas, Professional Staff; Paul Vinovich, 

Counsel; Roman Buhler, Counsel; Luke Nichter, Staff Assistant; 

Sara Salupo, Staff Assistant; Robert Bean, Minority Staff Director; 

Keith Abouchar, Minority Professional Staff Member; and Matt 

Pinkus, Minority Professional Staff Member. 

The CHAIRMAN. The committee will come to order. 

I want to initially apologize for the wait. As you know, we never 

know particularly when there are going to be votes in the U.S. 

House. 

Today the House Administration Committee is holding a hearing 

on campaign finance reform legislation. Today’s hearing will focus 

on the constitutionality of the reform legislation currently before 

this Congress and this committee, namely, the Shays-Meehan bill 

and the McCain-Feingold bill. 

We will hear a lot today about the First Amendment, so I just 

want to start by reading that amendment. It says: 

‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably 

to assemble, and to petition the government for the redress of 

grievances.’’

I am not an attorney by degree, but the words ‘‘Congress shall 

make no law’’ abridging the freedom of speech, or the right of the 

people to petition their government, seem pretty clear to me. Some 

people, I understand, do not have the same opinion. 

One prominent congressional leader who has advocated reforms 

once said, ‘‘What we have is two important values in direct conflict: 

Freedom of speech and our desire for healthy campaigns in a 

healthy democracy. You can’t have both.’’

I think basically that tends to be a shocking statement, but it 

pretty much sums up the thinking of some proponents of some reform measures. To their way of thinking, our first amendment is 

an inconvenient obstacle that must be knocked down to preserve 

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our democracy. I respect their opinion, but I disagree. Under this 

philosophy, to promote speech, we must restrict it. To preserve our 

liberties, we must forfeit them. 

Well, I do not share that view. 

I believe our democracy is best secured when the people, not the 

government control the extent to which they will speak and assemble to discuss public issues. Our democracy is the strongest and 

oldest in the world because of our first amendment, not in spite of 

it. 

As the Supreme Court noted 25 years ago in the Buckley decision, ‘‘In the free society ordained by our Constitution, it is not the 

government but the people individually as citizens and candidates 

and collectively as associations and political committees who must 

retain control over the quantity and range of debate on public 

issues in a political campaign.’’

Some have described certain reform bills before this committee 

as ‘‘an assault on the first amendment.’’ Major newspapers that 

normally jealously guard and protect the first amendment are virtually unanimous in their support of reform in this instance. 

Perhaps not surprisingly, the media is explicitly exempted from 

the speech restrictions in this bill before us. It is unfortunate that 

rather than cry out in protest, as they do when they perceive 

threats to their own rights of expression—and they should cry out 

when they perceive threats or some type of grievance against their 

own rights of expression—the media has, for the most part, wholeheartedly endorsed the proposed limits on speech. Sadly, they do 

not seem to hold the first amendment rights of others as dear as 

they do their own. 

I do realize these statements I am making prompt an editorial, 

but that is also free speech. Instead, having diagnosed a cancer of 

corruption on the body politic, they have bought into the notion 

that nothing short of a radically invasive treatment will save the 

patient. 

I think we need to look at both the so-called disease and the proposed cure. If the disease is corruption, what are the symptoms, 

and how should we combat that corruption? What are the proposed 

cures and what will be their impact? Only by examining and answering these questions will we be able to determined if the cure 

really is worse than the disease. It would be foolish, dangerous and 

irresponsible to swallow the cure without knowing all of the potential side effects. 

I have made my views pretty clear, but I also want to make it 

clear that I realize that people of goodwill can disagree on this 

issue. I am not necessarily personally questioning their integrity. 

I also think statements have been made before the Congress and 

before the committees about corruption in general and rampant 

corruption and also statements about how the political parties are 

money laundering machines. I do not happen to share that belief. 

I think there are a lot of good people in both major political parties 

and all other philosophy parties in this country, and I think that 

the vast majority of people in public office across the United States, 

although we may not philosophically agree with each other, tend 

to be here for the right reasons, which is to serve the people. 

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We need to have a real debate on this subject. It is time to move 

past the simplified stereotypes that cast all those who support reform as heroic and virtuous, while all those who oppose it are portrayed as self-serving and corrupt. I do not necessarily believe that 

to be either case. Reform proponents genuinely believe that the 

proposals are necessary to preserve our democracy and enhance the 

voice of the average citizen. Opponents fear that enactment of 

these proposals will have the opposite effect, discouraging citizen 

involvement and, thereby, endangering our democracy itself. 

I hope that today and in all the weeks ahead we will be able to 

conduct this debate in a fashion that shows respect for the difference of viewpoints. We have a distinguished panel today and I 

believe that this panel brings to us, whether they are for or against 

reform measures, a broad and thoughtful range from a constitutional perspective. 

Mr. Hoyer is detained. I would note to you this is his 39th birthday today. Trying to keep the great comity that we do have together, please tell him I said it is his 39th birthday. 

With that, I yield to Mr. Davis. 

Mr. DAVIS. Thank you, Mr. Chairman. It is my honor to be here 

in place of Mr. Hoyer who is celebrating his 39th birthday, as he 

has done so many times before. 

I was not going to speak, but I feel compelled to do so, because 

you expressed such heartfelt views. 

I have heard that Buckley case, and, you know, Buckley really 

describes the tension that we are trying to work through today and 

that is that the first amendment is balanced against the need to 

protect the republic from corruption, even the appearance of corruption, because, ultimately, the confidence of the voters and how 

we make decisions is what empowers us and empowers this country, and it is the fundamental value on which our republic is based. 

The devil is in the details, and I think this committee has a very, 

very important job to do here. Because one of the things that always makes our life more difficult is when we do not just have different opinions, we have different versions of the facts. Reasonable 

people will disagree, but I am hopeful that this committee can do 

a service to everybody by focusing on what the facts are surrounding this issue. I think that is terribly important. 

The last think I would say is I think what is very, very important about this particular debate is that we—I know I feel this way 

for myself—have to try very hard not to look at this from the 

standpoint of our rights as candidates or incumbents, but how this 

affects the voters, how this affects their ability to make informed 

judgments about the candidates, how it affects their ability ultimately to control the outcome of elections based on the vote, which 

is so sacred. It is the other issue we have been spending so much 

time on, and I laud your work on this issue, and Mr. Hoyer has 

been focusing on it as well. So I look forward to the hearing. 

The CHAIRMAN. Any other opening statements or comments? 

Mr. Mica. 

Mr. MICA. Thank you, Mr. Chairman, for convening this hearing. 

I think it is an important topic, the constitutional perspective of 

campaign finance reform. 

4

One of the problems we have as we undertake this task is that 

we have 535 experts in the House and the Senate on the issue. Unfortunately, we are also handicapped by having an inordinate number of attorneys who are also part of that mix of 535. I think all 

of us would like to see confidence and faith in the system that we 

hold so dear to our electoral process by the same perspective as we 

celebrate Flag Day today and the appreciation of the great constitutional government we live under. We do not want to disrupt 

people’s right to express themselves in an open and free society for 

which so many sacrificed their life under the symbol that we celebrate today. 

So there are some tough questions here. We want to have a good, 

fair, open system, but we want to also keep it within the constitutional framework that is so important. 

So I look forward to working with you on that. I think there is 

a lot of sincerity on both sides, and I do not think people should 

question motivation. Thank you. 

The CHAIRMAN. Thank you, Mr. Mica. 

We will begin with the first panel. We have James Bopp, Jr., 

with the law firm of Bopp, Coleson & Bostrom from Terre Haute, 

Indiana; Cleta Mitchell of Foley & Lardner, Washington, D.C.; Joel 

M. Gora, American Civil Liberties Union, New York, New York; 

Laurence E. Gold, Associate General Counsel, AFL–CIO, Washington, D.C.; E. Joshua Rosenkranz, President and CEO of the 

Brennan Center for Justice, New York, New York; Donald J. 

Simon, Sonosky, Chambers, Sachs, Endreson & Perry, Washington, 

DC. 

I want to welcome the panel, and I appreciate your testifying 

here today. 

STATEMENTS OF JAMES BOPP, JR., BOPP, COLESON & 

BOSTROM, TERRE HAUTE, INDIANA; CLETA MITCHELL, 

FOLEY & LARDNER, WASHINGTON, D.C.; JOEL M. GORA, 

AMERICAN CIVIL LIBERTIES UNION, NEW YORK, NEW YORK; 

LAURENCE E. GOLD, ASSOCIATE GENERAL COUNSEL, AFL–

CIO, WASHINGTON, D.C.; E. JOSHUA ROSENKRANZ, PRESIDENT AND CEO; THE BRENNAN CENTER FOR JUSTICE, NEW 

YORK, NEW YORK; AND DONALD J. SIMON, SONOSKY, CHAMBERS, SACHS, ENDRESON & PERRY, WASHINGTON, D.C.

The CHAIRMAN. We will start with Mr. Bopp. 

STATEMENT OF JAMES BOPP, JR. 

Mr. BOPP. Thank you very much, Mr. Chairman. 

I am a member of the law firm of Bopp, Coleson & Bostrom in 

Terre Haute, Indiana, and the co-counsel to the Washington, D.C. 

Firm of Webster, Chamberlain & Bean. 

My expertise on campaign finance law has developed over 20 

years of litigation where I have brought more than 50 cases challenging on first amendment grounds State and Federal election 

laws, based upon the idea that they violate first amendment protections. Of the some 30 cases, over 30 cases that have been resolved, I have won 90 percent of those cases, winning 1 or more 

cases in 8 of the 12 Circuit Courts of Appeal in the Federal system; 

5

and, among those, I am currently 8 and 0 against the Federal Election Commission specifically. 

Thus, I have won cases, both against the Federal Election Commission and the State election laws, that contained provisions materially identical to the provisions contained in McCain-Feingold 

and Shays-Meehan. The efforts of McCain-Feingold and ShaysMeehan to limit issue advocacy by not-for-profits and labor unions, 

the efforts of McCain-Feingold to severely limit contributions and 

the activities of political parties have been uniformly struck down 

by the Federal and State courts. 

Now, I would characterize McCain-Feingold and Shays-Meehan 

as an unprecedented and broad-based assault on the right of citizens, particularly citizens of average means, to participate in our 

political process. The reason for that is that Shays-Meehan and 

McCain-Feingold attack groups, that is, not-for-profit and for-profit 

corporations, labor unions and political parties. 

Groups are essential for people of average means to participate 

in our political process. In other words, the average janitor does not 

have the funds to buy an ad in The New York Times that would 

express his or her opinion on major issues of the day. Thus, that 

person needs to join a labor union or a citizens’ group in order to 

pool resources and have their voices heard. 

The wealthy do not have to join a group. They already have all 

the money they need, and they can run off and buy an ad in The 

New York Times. Thus, when you attack groups, you are attacking 

citizens of average means, because it prevents them from putting 

the money together to pool their resources to participate. 

McCain-Feingold and Shays-Meehan expressly does nothing, 

nothing about the wealthy. There is no limit on the ability of 

wealthy people to spend their money. Furthermore, there is no 

limit in McCain-Feingold or Shays-Meehan upon the media and 

their ability to spend money to effect elections. And, of course, it 

finally does nothing to prevent the corruption of candidates, because usually, when we are talking about corruption, it is surely 

not about the ability of average citizens to participate and speak 

out about public officials, but we are talking about incumbent officeholders who take money and, as a result, change their vote. 

Shays-Meehan and McCain-Feingold does absolutely nothing about 

those few incumbent officeholders that might be tempted to sell 

their vote for a contribution. 

Thus, we have winners and losers here. Average citizens are prohibited, driven from the field, because their only effective means of 

participating, the groups that they join, their speech is stifled; and 

then we have the winners, the news media, the wealthy who can 

spend their own money, and incumbent politicians who are now immunized from criticism, immunized from having their constituents 

know, at least to the extent that citizens’ groups want to talk about 

this, know what they are doing to them or for them while in office. 

Now, McCain-Feingold and Shays-Meehan does this in several 

ways. First is by imposing two gag rules. One gag rule is through 

defining express advocacy as an unmistakable and unambiguous 

support for or opposition to a candidate when taken as a whole and 

with limited reference to external events such as the proximity of 

an election. Thus, a communication that talked about, for instance, 

6

how an incumbent Member of Congress is voting in Congress, 

praising them or condemning them for that, if viewed within the 

proximity of an election or with reference to other external events 

anytime during the year, that group, the labor union or corporation, would be absolutely prohibited from engaging in that speech. 

Secondly, if you simply have the audacity to name candidates 

who are, of course, often current officeholders, within 60 days of 

the general election or 30 days of a primary, as a group, you would 

be committing a Federal crime under Shays-Meehan and McCainFeingold. Thus, if there was legislation being voted on, as there 

very often is—in the last Congress, nearly the whole budget was 

being voted on within 60 days of a general election—all groups 

would be prohibited from engaging in grass-roots lobbying such as, 

call your Congressman and tell him to support raising the minimum wage in the budget, or many of the numerous issues that 

were then being debated in Congress. You could not do effective 

grass-roots lobbying because you could not mention the name of 

somebody running for office during that period of time. 

It also prohibits corporations and labor unions from engaging in 

the sort of issue advocacy by creating a coordination trap and, that 

is, if anything of value is coordinated with a candidate, which 

would include any communications about a candidate, if they referenced a candidate, if coordinated, would be deemed a contribution and would also be prohibited, a Federal crime, by a corporation or a labor union. 

Now, this coordination trap is, I think, well demonstrated by an 

attachment to my testimony, which is Exhibit C, which lists the 45 

different ways in which a communication could be coordinated. 

This coordination trap, as does the two gag rules contained in 

McCain-Feingold and Shays-Meehan, also violate the well-established express advocacy test of the Court. The express advocacy is 

where a person uses explicit words to advocate the election or defeat of a candidate. Each of these provisions go way beyond that 

express advocacy test. 

Now, there is so far, to my count, over 40 cases—two Supreme 

Court, 13 Circuit Court, and 25 lower Federal court and State Supreme Court cases—that every single one of them have adhered to 

the express advocacy test, that you must focus on the words, not 

external events like the proximity of election, and the words must 

be specific, that is, explicit words of advocacy. I have listed all of 

those cases that fill up more than a page on page 4 of my testimony. 

Now, to indicate the utter death of support on the other side for 

these provisions, all you have to do is look at the testimony of Mr. 

Simon and Mr. Rosenkranz. In all of their testimony, the only reference to a court case, one reference to a court case is simply referring to the Supreme Court’s holding on the express advocacy test. 

They can cite not one case and do not cite one case to support their 

position. 

In other words, their view is not what the law is or what the first 

amendment requires or what the courts have said the first amendment requires. What their view is is that they hope that the U.S. 

Supreme Court will cut the heart out of the first amendment. That 

is, allow extensive regulation of political speech, cutting the heart 

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out, leaving nude dancing, flag burning, pornography on the Internet. 

That is not what the first amendment was about. It was about 

protecting the right of average citizens to speak out, to criticize incumbent Members of Congress, to talk about what they are doing 

to us and for us in Congress, and that is exactly what Shays-Meehan and McCain-Feingold would unconstitutionally prohibit. 

The CHAIRMAN. I would have to note that what we want to try 

to do is limit each person, unfortunately, to 5 minutes at this point 

in time until we have rounds of question. So I appreciate your testimony, but we should try to keep it to the red light. 

[The statement of Mr. Bopp follows:]

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The CHAIRMAN. Next, Mr. Simon. 

STATEMENT OF DONALD J. SIMON 

Mr. SIMON. Thank you, Mr. Chairman. I appreciate the opportunity to testify on behalf of Common Cause regarding the constitutionality of campaign finance reform legislation. 

The House reform leaders have said that they intend to introduce a bill which is closely modeled on the reform bill recently 

passed by the Senate, the McCain-Feingold bill. For purposes of focusing discussion, therefore, I am going to discuss the constitutional issues as framed by the McCain-Feingold bill. 

The two principal provisions of McCain-Feingold are a ban on 

soft money which is contained in Title I of the bill, and the SnoweJeffords provision in Title II which defines a category of electioneering communications that are subject to appropriate regulation. 

Both of these provision do raise important constitutional questions, 

and I will briefly address each. 

The provisions banning soft money are clearly constitutional. 

Dozens of constitutional scholars have said so. A letter signed by 

every living former leader of the ACLU says so, and multiple rulings of the Supreme Court support this position. 

The Buckley v. Valeo case, of course, is the foundation. The Court 

there held in unequivocal terms that Congress serves compelling 

governmental purposes when it regulates money in the political 

process to deter corruption and the appearance of corruption. Even 

though such regulations undoubtedly do impinge on first amendment rights, they are nonetheless constitutional because they serve 

those compelling governmental interest. 

Buckley upheld limits on contributions to candidates and parties. 

It did so because the Court took note of the reality or appearance 

of corruption inherent in a system permitting unlimited financial 

contributions. The Court noted that the integrity of our system of 

democracy is undermined by large political contributions, and of almost equal concern to the Court was the impact of the appearance 

of corruption stemming from large financial contributions. 

Now, the Court strongly reaffirmed these views just last year in 

the Shrink Missouri case. Again upholding contribution limits, the 

Court said, there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and 

no reason to question the existence of a corresponding suspicion 

among voters. The abuses that the Court sees as inherent in a system of unlimited financial contributions perfectly describes the soft 

money system which, of course, is a system of unlimited financial 

contributions. 

The Court’s repeated recognition that Congress can legislate to 

address those abuses is a complete response to any claim that the 

soft money provisions of McCain-Feingold are unconstitutional. 

These provisions do nothing more than restore the integrity of the 

campaigns finance laws previously enacted by Congress and upheld 

by the Court. They leave the national political parties free to engage in any speech or any activity they want and to spend as much 

money as they want for that speech or those activities, so long as 

the money is raised in compliance with the fund-raising rules that 

apply to the national parties and that have been sustained by the 

28

Supreme Court as necessary to guard against corruption and the 

appearance of corruption. 

I also believe that the Snowe-Jeffords provision of the Senate bill 

is constitutional. There is no question that Congress can regulate 

money spent for political speech. If speech is aimed at influencing 

a Federal election, the law is clear that Congress can impose limits 

on the amount of money that can be contributed for such purposes. 

It can ban entirely the use of money from corporate or union treasury funds. It can require corporations and unions to speak only 

through their affiliated political committees, using money from individuals that was voluntarily contributed, and it can require full 

disclosure of that money. All of these provisions have been in law 

for many years, and they all have been sustained by the Supreme 

Court. 

Congress can impose all of these regulations on the money spent 

for speech aimed at election activity not because the speech is unprotected by the first amendment—I think we would all agree that 

such speech is at the heart of the first amendment—but because 

the Court has repeatedly recognized that first amendment interests 

must accommodate Congress’s purposes in protecting the integrity 

of the election process. 

So the question in this debate is not about whether issue ads 

should be limited or regulated or banned. They should not be. The 

question is how to draw a correct line between issue advocacy on 

the one hand, which is generally not subject to regulation, and 

campaign advocacy on the other hand, which clearly and constitutionally is subject to regulation. 

Now, currently that line is drawn by whether the ad contains 

magic words such as ‘‘vote for’’ or ‘‘vote against.’’ That is almost 

certainly the wrong line, because it is radically under-inclusive. 

Many ads which are clearly campaign ads do not use magic words. 

I dare say in the ads that you ran last year in your own elections, 

they did not use magic words, and you would be in good company. 

Because as a study conducted by the Brennan Center found, only 

4 percent of ads by candidates themselves used words like vote for 

or vote against. These are unquestionably campaign ads, but they 

flunk the magic words test. 

So the one point we can be most certain of in this debate is that 

the magic words test does a poor job of drawing the line between 

issue discussion and campaign discussion. The Snowe-Jeffords provision redraws that line by defining as electioneering activity a 

narrow category of speech, those radio or TV ads which are broadcast within 60 days of a general election or 30 days of a primary 

which refer to a clearly identified candidate and which are targeted 

to the candidate’s electorate. 

Now, critics describe this provision as banning speech. That is 

clearly false. These electioneering communications are no more 

banned than the tens of millions of dollars of campaign ads we see 

every 2 years. Like those ads, of which there are plenty, this new 

category of electioneering communications must be funded by individuals either alone or in association with each other for money 

which is subject to disclosure. 

Lest anyone think that the Snowe-Jeffords provision is too broad, 

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paper, print, pamphlet, leaflet, billboard or other nonbroadcast ad. 

It does into include any ad outside the 60-day pre-election window. 

It does not include any ad which discusses an issue and does not 

mention a Federal candidate in that election, and it does not include any ad which is broadcast anywhere other than to the electorate of that candidate. 

Let me emphasize again, the provision bans no speech whatsoever and creates no new regulations whatsoever. All it does is shift 

the line between nonelection speech, which is generally free from 

regulation on the one hand and election-related speech, which is 

subject to regulations that the Supreme Court has upheld as constitutional. 

Finally, let me state the premise behind this. The premise is that 

when someone spends a lot of money to run an ad right before an 

election that mentions a candidate and is targeted to that candidate’s district, he or she or they are most likely trying to influence that election. That is not a bad thing. It should not be banned, 

and it is not. It just means that the money behind the ad should 

be subject to the same rules that apply to all of the other campaign 

ads being run at the same time. 

Thank you 

The CHAIRMAN. Thank you. 

[The statement of Mr. Simon follows:]

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The CHAIRMAN. Ms. Mitchell. 

STATEMENT OF CLETA MITCHELL 

Ms. MITCHELL. Thank you, Mr. Chairman, members of the committee. 

I, too, want to commend the committee for conducting this hearing on this very important subject. I know that the media is clamoring for swift action: no hearings, do not read the bill, pass it, and 

go home. The fact of the matter is, this reminds of that guy, Jim 

Jones, who took those people from San Francisco to Guyana a few 

years back and handed out Kool Aid and all of those people died. 

I have always wondered why somebody did not look up and say, 

hey, what is in this Kool Aid? I think it is important for Members 

of Congress to say, what is in this campaign finance Kool Aid? It 

is easy for the media to clamor, drink the Kool Aid, drink the Kool 

Aid, because the media is exempt, and they do not have to worry 

about ingesting any poison. 

So I think it is important to note that in both Shays-Meehan and 

in McCain-Feingold, particularly McCain-Feingold, there are 31⁄2

pages in McCain-Feingold of directives to the United States Sentencing Commission to enhance the criminal penalties for violation 

of the law by candidates and high campaign officials. There are increased civil penalties—substantial increased civil penalties to be 

imposed by the Federal Election Commission for violation of the 

law. This is something that the Congress needs to pay very close 

attention to. 

By way of introduction I am an attorney. Our practice is entirely 

devoted to advising people how to participate in the political process without violating the law. Believe me, I would commend the 

chairman’s comments at the beginning of this hearing, because the 

truth of the matter is, people get involved in political activity, they 

are not there to try to corrupt anything and, oftentimes, after advising people who want to participate in the process, the proverbial 

chilling effect has occurred. They say, I do not want to deal with 

all of this regulation, and they walk away. I think that is terribly 

unfortunate. 

I want to mention in my brief period of time here a couple of 

things. I have attached to my testimony two things I hope the 

members of the committee will look at. One is the impact on State 

and local political parties, the practical impact on State and local 

political parties of McCain-Feingold as it was passed by the Senate, 

I think with some modification; and the same thing would be true 

by passage of Shays-Meehan. 

The other is, one of the reasons that this issue is so front-andcenter is because there has been spent over the last 5 years—we 

have documented in a report by the American Conservative Union 

Foundation—over $73 million spent by the pro-campaign finance 

regulation movement in the last 5 years alone, yet there is not one 

organization who would essentially exist solely on what I would 

consider my side of the issue, which is to say we do not think that 

these additional regulations are a good idea. There is not one organization that exists solely to do that on our side. So I think it is 

very important to realize that we have been subjected to a mass 

52

media and financial cabal urging that Congress enact more regulations on citizens who want to participate in the political process. 

Now, as the chairman pointed out at the outset, the first responsibility of this committee is to identify what is the corruption or the 

appearance of corruption which Congress is trying to solve by enacting legislation in this arena. Because this is legislating in the 

first amendment arena, Congress is obligated to identify the problem. 

The Supreme Court has said the only compelling governmental 

interest in enacting legislation in this area is corruption or the appearance thereof. So what is the corruption that people are concerned about? Those—

I heard Mr. Hoyer’s opening comments at the first hearing conducted by this committee, and I was struck by your comments with 

respect to this issue of corruption and the sense that the public has 

that there is something corrupt going on. 

Do not, please, members of the committee, do not just allow yourselves to be stampeded by these epithets of corruption. Identify 

specific instances. Do the committee members know of specific instances of corruption that have occurred because of contributions to 

the political parties? If so, have hearings on that. Ferret out the 

information. Do not let the appearance of corruption argument be 

like a modern-day McCarthyism of screaming that there is communism behind every tree. 

I would argue and submit to the committee that if it is concerned 

that there is corruption in terms of special interests having influence with Members of Congress, then perhaps the committee ought 

to recommend to the House the enactment of then candidate and 

now President Bush’s proposal a year ago which was to prohibit 

contributions to Members of Congress from lobbyists during the 

congressional session. There are a dozen States that have such a 

prohibition, that legislators and elected officials may not solicit or 

receive contributions during the session. If it is corruption because 

of the relationship between special interests with bills before the 

Congress, then it seems to me that Congress ought to do something 

about that which affects you directly, rather than stampeding the 

rights of ordinary citizens and political parties. 

Secondly, I am not going to read to you all the language from 

Buckley, although I would like to, because I really think that people—it is like the Federalist Papers where everybody has said we 

have read them and I do not think we really have. But remember 

that the Supreme Court in Buckley created the express advocacy 

test, and they said that there had to be a bright line, that citizens 

had the right to know in advance what speech would be regulated 

by the government and what speech would not. 

And if you come up to the line, if you do not cross it, if you do 

not use, using their words, the constitutional deficiencies can be 

avoided only by reading the law as limited to communications that 

include explicit words of advocacy, of election or defeat of a candidate. It must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat 

of a clearly identified candidate for Federal office. This construction 

would restrict the application of the statute to communications containing express words of advocacy, of election or defeat such as 

53

‘‘vote for,’’ ‘‘elect,’’ ‘‘support,’’ ‘‘cast your ballot for Smith for Congress,’’ ‘‘vote against,’’ ‘‘defeat,’’ ‘‘reject.’’

It is important to note that the Supreme Court created that 

bright line. 

I have heard Members of Congress and so-called reformers argue 

in favor of restrictions on issue advocacy because of two problems, 

only two that I can recall. One, the anonymity that groups run 

issue ads and you do not really know who they are. The other is 

that voting records or positions on issues are distorted. 

I would submit to the committee that there is a more narrowly 

tailored—I do this at my peril because I basically do not believe 

that you should be regulating this area. But I would submit to you 

that when you are legislating in the first amendment arena you are 

obligated to ascertain if there is a more narrowly tailored solution 

to the problem you have identified. I would submit to the committee that there is a more narrowly tailored solution than that 

contained in either Shays-Meehan or McCain-Feingold. 

One, the Federal Communications Act already provides that a 

nonpolitical ad is subject to the same standards of accuracy as an 

aspirin commercial. An issue ad is not defined under the Federal 

communications law as a political ad, only candidate ads; and candidate ads cannot be rejected for content. I have advised clients 

and worked with stations on ascertaining accuracy. And if issue 

ads were accompanied by a disclosure statement that simply tied 

the content to the specific public record, that substantiates the assertions, and if you are concerned about anonymity, the FCC already requires that all broadcast advertising must disclose the true 

identity of the sponsors. And in the disclosure statement you could 

simply require a certain minimum threshold that a percentage of 

who pays for the production or broadcast of the advertisement to 

be identified, to identify the legal entity. 

The CHAIRMAN. I have to let you know we are running over. We 

want to get to questions. 

Ms. MITCHELL. But I just wanted to make sure that the committee knows——

Mr. MICA. Mr. Chairman, could we by unanimous consent have 

their entire statements made a part of the record? 

The CHAIRMAN. Yes. Your statements, without objection, will be 

entered into the record. 

Mr. MITCHELL. I urge the committee to carefully consider that 

there are other solutions, and in order to make certain that the 

committee does its job to propose those solutions that are more narrowly tailored to address the problem rather than the meat-ax approach that these bills represent. 

Thank you. 

The CHAIRMAN. Thank you. 

[The statement of Ms. Mitchell follows:]

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The CHAIRMAN. Mr. Rosenkranz. 

STATEMENT OF E. JOSHUA ROSENKRANZ 

Mr. ROSENKRANZ. Thank you, Mr. Chairman. I thank the entire 

committee for inviting me here. It is an honor to testify about such 

an important set of issues that are so fundamentally important to 

the health of our democracy. 

Let me begin with some pretty significant common ground. I 

agree with the basic thesis of people who often view themselves as 

opposed to me on this set of issues. Certainly the people before this 

committee representing vitally important institutions in American 

life, the AFL–CIO, the American Civil Liberties Union, the various 

right-to-life committees, these are fundamentally important committees that do empower average citizens in their voices on important issues of public policy. What these various institutions are not 

are vehicles for electoral advocacy, and they do not claim to be. 

It is important to keep in mind as we consider this set of issues 

that what is before this committee is the regulation of elections, 

and the Supreme Court has made abundantly clear that elections 

are special. Elections are different. Elections, therefore, are subject 

to different constitutional constraints, that every other set of issues 

of public policy, that speech relating to elections and the funding 

of that speech are subject to special rules, precisely because it is 

so important to protect this critical mechanism of our self-government. 

Those specific rules really fall into three categories. 

The first are fund-raising restrictions, restrictions on the money 

that is raised that goes toward electoral speech. 

The second is disclosure. If you are going to try to influence our 

vote in an election, you have to tell us who you are and who is paying for what you are saying. 

Third and most significantly for today’s conversation are source 

restrictions, restrictions on corporations or unions that, according 

to the Supreme Court, and this is black letter law, are not permitted to spend a single penny directed at influencing a vote in 

elections and restrictions on other organizations that rely on corporate and union money. This is black letter law, Mr. Chairman. 

There is no dispute within this committee about what the law is 

as it relates to election communications. 

The critical issue before this committee and before Congress is 

where exactly the line falls. Other members of this panel will insist 

that we are stuck with a rule that they claim the Supreme Court 

adopted in 1976, a claim that I disagree with, but, most importantly, they believe that that rule is chiseled into stone, despite 

what might be enormous evidence that this rule does not even 

begin to describe the correct boundary between electioneering and 

all other speech. 

Mr. Simon already mentioned some of the evidence that the rule 

the Supreme Court articulated as an amendment, in essence, as to 

what Congress had adopted when Congress put in the definition is 

really, truly an absurd rule. 

The Supreme Court, Mr. Chairman, does not live in a fantasy 

world. It lives in practical reality. And if there is any lesson that 

73

we can draw from the last Supreme Court case, Shrink Missouri,

it is really twofold. 

First, the Supreme Court is concerned about practical rules, constitutional rules that actually describe what goes on in the real 

world; and, secondly, in this context of electoral reform, the Supreme Court wants to defer in the very narrow, specific line-drawing to the legislature, which is most familiar with how campaigns 

work. 

While we are talking about practical reality, let me just end with 

one point. You are going to hear today—you have already heard, 

and certainly the testimony, the written testimony, is rife with 

hypotheticals of ads that various groups would want to bring but 

cannot any longer bring if the McCain-Feingold legislation passes. 

What we should look for are the actual facts of what campaigning 

is about and what these groups are actually doing. 

So I will end with a challenge to the various other members of 

this panel, really two challenges. To the ACLU, I would ask them 

to identify a single ad that was run in 1998 or 2000, an actual ad 

that they ran within the time frame regulated by the McCain-Feingold bill and claim that that ad could not be run under McCainFeingold. I believe, because we actually have the data of all of the 

ads, that they will not be able to identify a single one. 

To the AFL–CIO and Mr. Bopp who represents right to life, yes, 

they run such ads. While they are testifying here under oath, I 

would ask them to point to two or three that run afoul of the 

McCain-Feingold test, but they can attest to this committee that 

they were actually not intended—I would even say fundamentally, 

predominantly intended to influence the election. If you do not hear 

a satisfactory answer to that question, you should feel more confident that these rules do not actually infringe the rule of these 

very important organizations in educating the public about important issues of public policy. 

Thank you. 

The CHAIRMAN. Thank you very much. 

[The statement of Mr. Rosenkranz follows:]

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The CHAIRMAN. Next, Mr. Gora. 

STATEMENT OF JOEL M. GORA 

Mr. GORA. Good morning, Chairman Ney. Thank you for holding 

these hearings, and thank you for introducing your remarks by 

reading from the text of the first amendment because I think the 

first amendment imposes a special injunction upon Members of 

Congress, because its first words are ‘‘Congress shall make no law 

abridging the freedom of speech,’’ a special injunction on you that 

when you consider laws that do abridge the freedom of speech, the 

first amendment must be your guideline. 

I am a professor of law at Brooklyn Law School, counsel to the 

ACLU, and I was one of the ACLU attorneys who challenged the 

campaign finance laws in Buckley v. Valeo. But even before the 

Buckley case, we got our first test of what it was like when the government wanted to regulate what we now call issue advocacy. 

A group critical of then President Nixon ran an ad in The New 

York Times criticizing his foreign policy. Within a month, that 

group was visited by the Justice Department, which filed suit 

against the group on the ground that, since it was an election year 

and Richard Nixon was a candidate for reelection as President, 

that ad was for the purpose of influencing the outcome of the election and would subject that group to all of the regulations and controls of the Federal Election Campaign Act. 

We defended that group in court, and we secured a ruling from 

the Second Circuit Court of Appeals which said, such issue advocacy, even though it mentions and criticizes incumbent officeholders, is protected wholly by the first amendment, and the government cannot be allowed to impose rules and regulations that 

would suppress that kind of citizen issue advocacy about government and politics and the politicians that run government. Issue 

advocacy was born. 

Despite the injunction of that case, Congress passed a provision 

in the Buckley statute which regulated groups that simply reported 

voting records of Members of Congress. The D.C. Circuit struck 

down that provision as unconstitutional. A court which upheld 

every other feature of that bill struck that down. What they said 

was you cannot regulate groups simply because they put out public 

information about the records of Members of Congress. 

Finally, just to be sure that the point was made, the Supreme 

Court said that any information that is communicated about the 

politician is completely free and immune from any governmental 

regulation, unless that communication expressly advocates the election or defeat of that politician. The Court knew that people would 

be able to come close to the line, as Ms. Mitchell said, and they 

draw that line clearly and high to allow people to remain on the 

nonregulated free speech side of that line. For 25 years, that line 

has stayed firm, and the bills before you now are efforts to obliterate that line. 

The 300,000 members of the ACLU have long been devoted to 

trying to make sure that campaign finance reform is consistent 

with free speech and democratic values embodied in the first 

amendment. For that entire period of time, we have insisted that 

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dom of political speech and association and expanding political opportunity and participation. 

The bills before you, unfortunately, do neither of those things. 

They are fundamentally inconsistent with these goals. Instead, 

they are distractions from, really, the serious business of campaign 

finance reform. 

Some people mistakenly think that the ACLU is not in favor of 

campaign finance reform. We certainly are. We support a comprehensive program of public financing of Federal campaigns consistent with the first amendment, a program which would develop 

programs for providing public resources, benefits and support for 

all qualified Federal political candidates.

Twenty-five years of experience that we have had with these 

campaign finance laws have shown that limits do not work and 

that what we must seek is a more first amendment-friendly way 

to deal with the problem that some people have more resources 

with which to get their message out than others. We think the first 

amendment, least drastic alternative is a system of public funding. 

But McCain-Feingold contains nothing of that. McCain-Feingold, 

Shays-Meehan are basically about limits, limits and more limits. 

They limit issue advocacy in a way I think which is clearly unconstitutional, under Supreme Court guidelines and all of the lower 

court cases that have followed that, and even the cases that predated the Supreme Court. Simply putting out information about a 

Member of Congress, no matter how much you praise or criticize 

them, is privileged from any kind of governmental regulation unless it crosses that line into express advocacy. 

Once again, the Court understood that people would tiptoe up to 

that line. But it put that line there so that speakers would feel free 

to criticize you, Members of Congress, without fear of retribution 

or regulation; and these bills basically fly in the face of over 30 

years of doctrine that make it clear that issue advocacy cannot be 

regulated. 

If I might just for a moment, the ACLU has not run TV ads recently that might fit my friend Josh’s description, but the NAACP 

certainly has. It ran a series of television ads last fall harshly critical of then Governor George Bush and his record on hate crimes 

legislation, harshly critical. Those ads would be outlawed under the 

bill before you. 

To my mind, any bill that would outlaw the ability of the NAACP 

to run ads like that is a bill that is flatly inconsistent with the first 

amendment. And if he answers, well, the NAACP can reorganize 

as a PAC and have its individual members run those ads and have 

their names disclosed, well, I hope the irony of that does not escape, since the most important first amendment precedent on the 

right of groups to speak for their members without having to disclose their members to the government is called NAACP v. Alabama.

So, yes indeed, television ads by issue advocacy groups would be 

interdicted and prohibited by this legislation; and that is why we 

think the issue advocacy provisions are flatly unconstitutional. 

Secondly, the coordination issues. The coordination rules are so 

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sible for representatives of citizens’ groups to have conversations 

with you, Members of Congress, for fear that those conversations 

a year from now, if those groups put out information about how 

you voted on the issue they discussed with you, will deem them in 

coordination with you, and then anything that they do that might 

be viewed as helping your cause will be viewed either as an illegal 

corporate contribution or as a limited individual contribution, and 

ensnare them in all of the campaign finance rules and regulations. 

These new provisions will set up almost a campaign finance witchhunt to trace down every possible conversation that might lead to 

these new conclusions of coordination. 

Finally—Mr. Chairman, I realize I have exceeded my time—

these bills also cut to the heart of the ability of political parties to 

do the things that they do which are really the essence of democracy: registering voters, putting out issues, developing ideas, and 

the soft money bans would undercut the rights and the abilities of 

parties. 

Finally, in conclusion, Mr. Chairman, I think the committee 

should make no mistake about the radical agenda that these bills 

promote and about the drastic departure from settled first amendment doctrine that they represent. It is the ACLU’s hope that this 

committee will educate its colleagues in the House about the grave 

constitutional defects contained in McCain-Feingold and ShaysMeehan and that will help us turn away from those fatally flawed 

first amendment rights and perhaps that will help us turn toward 

what we believe at ACLU is a less drastic and constitutionally less 

offensive means to achieve reform, and that is public financing of 

political campaigns. 

If I might just have one more moment, Mr. Chairman. I, too, was 

shocked when I heard a distinguished member of this House say 

that we had to choose between free speech or clean elections, we 

could not have both. Well, in my mind, under the first amendment, 

we cannot have one without the other. 

Thank you. 

[The statement of Mr. Gora follows:]

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The CHAIRMAN. Our last witness on the panel is Mr. Gold. 

STATEMENT OF LAURENCE E. GOLD 

Mr. GOLD. Thank you, Mr. Chairman. Good afternoon, Mr. Hoyer 

and Mr. Linder. 

I represent the AFL–CIO, a federation of 65 national and international unions with a total membership of more than 13 million 

men and women throughout the United States. We welcome this 

opportunity to comment on some of the constitutional issues implicated by the ongoing debate over whether and how to revise the 

Federal Election Campaign Act. 

The AFL–CIO has articulated a comprehensive set of campaign 

finance reform principles to guide legislation that would best promote greater working family and overall civic involvement, promote 

the free flow of ideas and information, and minimize the raw influence of pure financial power on electoral outcomes. The key elements of our policy include the public financing of Federal election 

campaigns; elimination of soft money donations to national political 

parties; maintenance of the current limits on hard money contributions to candidates and parties, insofar as the privately financed 

campaign system remains in place; provision of free or reduced 

broadcast time to candidates; and vigilant protection of the speech 

and association all rights of individuals and organizations concerning issues and candidates. Unfortunately, the parameters of 

the Congress’s current focus on campaign finance reform fall well 

short of embracing these goals and in several key aspects are antithetical to them. I will briefly address two of these aspects today. 

In Buckley v. Valeo, the Supreme Court in 1976 made clear that 

political communications are entitled to the highest degree of protection afforded by the first amendment. The Court recognized that 

election-related speech often includes both partisan and issue commentary. In order to ensure that citizens would not be chilled from 

discussion of issues during an election campaign and recognizing 

that the discussion of public issues is often tied to discussion of 

candidates, particularly incumbents, the Court in Buckley insisted 

that any restriction of political expression be narrowly and clearly 

drawn. Essential to that specificity, the Court held, was a standard 

that depended entirely upon the text of the communication and did 

not delve into matters concerning the Speaker’s intent, whether actual or as perceived by a listener. For these reasons, the Court established the express advocacy issued advocacy line between permissible and impermissible regulation under the act, a line that 

the court and the lower courts, particularly in recent years, have 

uniformly maintained. 

The election time broadcast censorship provisions of S. 27, the 

McCain-Feingold bill, and the all-media, all-the-time censorship 

provisions of H.R. 380, the Shays-Meehan bill, are utterly in conflict with the substantial and one-sided case law. These provisions 

would preclude, for example, references to sponsors of legislation. 

In fact, the bills, would outlaw references to the McCain-Feingold 

or Shays-Meehan bills themselves. They would outlaw public appeals to name legislators to vote for or against a pending bill; voter 

guides or other comparisons of candidate positions; public statements intended to prompt candidates to address or to commit to 

103

sponsor or vote for or against particular kinds of measures if they 

are elected; and a host of other messages, related and unrelated, 

to an election itself. 

One of the fundamental flaws in the argument favoring these 

provisions is that the first amendment does or should tolerate a 

line of legality that distinguishes between all speech that concerns 

elections or candidates and all speech that does not. It is simply 

not so that ‘‘black letter law’’ says that corporations and unions 

cannot spend money in a way that might influence an election. 

That is the opposite of what Buckley plainly stated where it said, 

so long as persons and groups issue expenditures and in express 

terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the 

candidate and his views. We urge the Congress to refrain from legislating the wishful thinking that would outlaw such speech and 

force affected groups to litigate to uphold their first amendment 

rights. 

The provisions in these bills establishing new definitions of what 

conduct constitutes coordination with a candidate, rendering that 

conduct either unlawful or limited depending on who is doing it, 

also fail the first amendment test. The McCain-Feingold standard 

applies to coordinated expenditures and disbursements if they are 

made ‘‘in connection with an election, regardless of whether the expenditure or disbursement is for a communication that contains express advocacy.’’ But the Supreme Court in the Massachusetts Citizens for Life case in 1986 construed the same language in FECA’s 

prohibition of a corporate or union ‘‘expenditure in connection with 

any election’’ to be limited to express advocacy communications in 

order for it to meet the constitutional requirement of clarity. The 

same McCain-Feingold language cannot be applied any differently. 

S. 27 also defines coordination to include, in part, ‘‘any general 

or particular understanding between the spender and the candidate 

or a party.’’ That phrase, found nowhere else in the United States 

Code, invites civil and criminal enforcement against groups and 

candidates not on the basis of how they act but on how it is inferred that they have thought. 

The Shays-Meehan coordination provisions are identical to those 

originally included in S. 27 and which Senators McCain and Feingold abandoned after they were convinced of their confusion and 

overbreadth. Indeed, they are so hopelessly convoluted that they 

would ban and, through any particular enforcement, could criminalize a broad range of political and legislative activity and advocacy, substantially chilling routine citizen and group contacts with 

Federal officeholders, candidates and political parties. 

The AFL–CIO recommends that the censorship proposals in 

these bills be dropped entirely and that the coordination provisions 

either be dropped as well or revised to reflect the precisely tailored 

standard such as that set forth on pages 17 and 18 of my full testimony. 

Thank you. I welcome your questions and comments. 

The CHAIRMAN. Thank you. 

[The statement of Mr. Gold follows:]

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The CHAIRMAN. Again, all additional statements we have, without objection, will be entered into the record. 

We will start with Mr. Linder. 

Mr. LINDER. Thank you, Mr. Chairman. 

Mr. Gold, you favor the elimination or the use of soft money for 

political parties. Do you favor the inability to use soft money for 

unions? 

Mr. GOLD. Well, I think there is a substantial difference between 

these two concepts. The words ‘‘soft money’’——

Mr. LINDER. I just asked you a question. Do you favor the elimination or the use of unregulated money for unions as you do for 

political parties? 

Mr. GOLD. Well, if you are saying we cannot spend our money 

on anything, of course I do not favor it. 

Mr. LINDER. I am saying, you want to eliminate what political 

parties can use—in fact, you want to say that they cannot use unregulated dollars in political activity. That is what you are in favor 

of, according to your testimony. Are you willing to say that unions 

should not be able to use unregulated dollars in political activity, 

also? 

Mr. GOLD. No, Mr. Linder. If you are referring to our own treasury money and our own ability to communicate with our members 

on political issues and other issues, our ability to talk to the public 

about what we believe and to promote legislation and that sort of 

thing, we certainly do not favor that. But we are talking about—

we are comparing apples and oranges here. 

Mr. LINDER. Political parties cannot do it, unions can. 

Mr. GOLD. What we favor is that private donations of soft money 

to national political parties be banned. We do not favor the same 

with respect to State and local parties, and we have some issues 

to raise with the pending legislation that we have not covered yet 

today. 

Mr. LINDER. There are three exceptions for the use of soft money 

in political parties and other interested parties, and that is you can 

use it to administer your PAC, which I assume the union does, use 

treasury money; you can use it for party billing activities such as 

turn out the vote and voter education and voter registration; and 

you can use it for communicating with your membership. The 

union uses all three of those categories. 

Why do you want to eliminate those opportunities for political 

parties when you are charged with the responsibility, it seems, to 

put together the system, and you want to continue to use it for 

yourself? 

Mr. GOLD. Well, there is a difference between our own ability—

a union’s ability to spend money that it derives from dues, per capita taxes, and I guess, whatever interest is earned on accounts. 

That is the money flow that arises from the union’s existence as 

an associational voluntary membership organization. 

Mr. LINDER. Is it voluntary? 

Mr. GOLD. We believe—if I may finish, we believe that there is 

a difference between that and mass and unlimited transfers of cash 

from private interests to political parties or to committees that are 

controlled by candidates. We believe that in regulating elections 

and regulating campaign finance you can draw a line that says 

139

that that can be limited, but when you are talking about a union 

or any other membership organization—I mean, unions and membership organizations are very much the same here. If you are talking about their own ability to raise money from their own members 

through the ordinary course of their own operations and spend 

their money on all sorts of matters, not including contributions to 

candidates and parties, because we are, of course, barred from 

using that money in a contribution to a candidate or a party, that 

is entirely proper, and it is very different than the circumstance I 

believe you are describing. 

Mr. LINDER. Well, I would suggest that most union members do 

not make voluntary contributions in their dues. I expect that is 

pretty mandatory. You have about an $8.5 billion cash flow when 

you take all the unions together and you use it as you see fit, including using it for voting against candidates that 42 percent of 

your membership votes for. 

Mr. Gora, you said my favorite five words in the Constitution: 

‘‘Congress shall make no law.’’ We could stop right there. 

Mr. GORA. Pretty much. 

Mr. LINDER. You said the Second Circuit Court decided on the 

Nixon ad. Has any other court overruled that since then? 

Mr. GORA. No. In fact, that case was followed in other lower 

court decisions prior to Buckley. It was followed in the decision I 

mentioned to Congressman Hoyer, where we knocked out the disclosure provision of the Buckley bill, and it was cited in Buckley as 

part of the Court’s reasoning for developing the express advocacy 

doctrine that says, any speech about politicians other than expressly advocating their election or defeat is completely free. 

One other point—and it has been followed by dozens of cases. 

Mr. Bopp’s testimony contains a list of dozens of cases ever since. 

I mean, if there is any doctrine in this area that is clear, it is that 

doctrine. 

Mr. LINDER. You talked about the illegal coordination of outside 

groups in writing legislation. Would that have applied to the environmental groups in the 1980s when they sat down with the members of the Resources Committee and drafted the environmental 

laws? 

Mr. GORA. I think it would, Mr. Linder. I think the language on 

coordination, once one can fathom it, is so broad in the kinds of 

contexts between citizens’ groups and members that would render 

the contacts coordination, that any kind of discussion—I mean, I 

think that is one of the most pernicious parts of the bill. The part 

that bans ads on television, we can all get the sense that that is 

a ban and probably violates the first amendment. I think that will 

pretty clearly be declared unconstitutional. But it is hard to understand the perniciousness of the coordination rules. 

But when I speak to our full-time legislative representatives here 

in Washington, for the ACLU, and they describe to me what this 

bill would do to them and how it would chill and structure conversations they have with Members of Congress about civil liberties 

legislation, it really is frightening. I am glad I am not a lobbyist 

to have to live under this bill were it enacted. 

Mr. LINDER. You mentioned the NAACP ad, which is probably 

one of the most egregious affronts that I have seen in my 27 years 

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of this business. I do not think I know a single person who paid 

for that ad. Was it ever reported anywhere? 

Mr. GORA. I am not aware of the funding of the ad, nor should 

I be entitled to know the funding of the ad. 

Mr. LINDER. Would this bill force the disclosure of the funding 

of that ad? 

Mr. GORA. I think the bill would do two things. As written, it 

would make it a crime for the NAACP to sponsor an ad, because 

it is a corporation and corporations are barred from running ads 

that are deemed to be election ads by this new definition. But even 

were there some way that you could reconfigure the NAACP into 

a PAC, then the first requirement would be disclosure of anybody 

who gives more than $200 and, of course, anybody who gives excessive amounts to fund an ad like that would have to have their 

name disclosed. 

Again, I think the irony, you could cut it with a knife, that it was 

the NAACP that established through Supreme Court decisions the 

right of associational privacy, that the government cannot learn 

who members of issue groups are because it might chill and deter 

people from wanting to join those groups and make those contributions for fear of harm from the disclosure of their association. 

Mr. LINDER. Ms. Mitchell, you mentioned $73 million spent to 

pass laws. I have seen some of your writing on this. We have 

talked about it once or twice. Are those dollars subject to disclosure 

and regulation? 

Ms. MITCHELL. Part of them. The dollars that are given to—they 

are not subject to any kind of regulation. The dollars that are 

given, the bulk of the dollars were given by private charitable foundations to 501(c)(3) entities, and those are disclosed really by looking at the annual reports of the charitable donors, not the recipients. 

Some of them do actually disclose who they get money from. The 

campaign finance groups will say who they get money from. Common Cause will tell you they have spent X amount over a period 

of years, but it is not required to be disclosed, no. In fact, while 

you are required—a charitable entity, a 501(c)(3) or (4), has to tell 

the IRS if they get a contribution of over $5,000 and who it is from. 

They are not required to make that information public. 

Mr. LINDER. Thank you. 

Mr. Simon, you said that the provisions in this bill are clearly 

constitutional. Have they even been held to be constitutional, and 

is that not the job of a court? 

Mr. SIMON. Well, I said that the soft money provisions in my 

opinion were clearly constitutional. I think the Buckley case and 

the Shrink Missouri case clearly do stand for the proposition that 

contributions to the political parties can be limited because those 

limits are compelling public purposes. 

Mr. LINDER. Thank you. 

Mr. Gold, one more point, if I might. 

Dr. Troy at Rutgers has followed union spending for some time. 

I am sure you heard his name before——

Mr. GOLD. Yes. I testified with him last year before Senator 

McConnell. 

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Mr. LINDER [continuing]. And I believe he suggested that over 

the last several cycles unions have spent somewhere in the range 

of $500 million to $600 million each cycle of soft money influencing 

elections. 

I can tell you from personal experience that in several districts 

across the country you folks paid for 15 or 20 young people—you 

paid their room and board and salaries and travel expenses—to 

spend all year and three months in one person’s district to influence that election under party-building activities. Did you ever report that? 

Mr. GOLD. Sir, that was not party-building activities. That is 

under a provision of the Federal Election Campaign Act that says 

unions and corporations and membership organizations cannot be 

and are not restrained in their ability to spend their resources to 

communicate with their members on any subject, political or otherwise. 

Mr. LINDER. So going door to door in a community is communicating with members? 

Mr. GOLD. We do not go door to door communicating with the 

community; we may go door to door, but it is with our own members. The premise of your question is factually incorrect. 

If I may say about unions, we are voluntary membership organizations. Dr. Troy’s figures are purely of his own imagination. I do 

not know what the figures are, and what he calls political I think 

way overstates what truly is. 

Unions are operated—all of our officers are elected by secret ballot. Our members have legally enforceable Federal rights to participate in our organizations. These are rules that do not apply to any 

other membership organizations, most of which operate with selfperpetuating boards, and they certainly do not apply to corporations, which are funded in a completely different manner and 

whose soft money, I should point out, dwarfs that of the entire 

labor movement probably thousands of times over. We are not looking to restrict their ability to speak, their ability to communicate, 

their ability to lobby, as these bills do, any more than we think we 

should be restricted 

Mr. LINDER. Let me point out that it is against the law for corporations to demand dues from their membership in order to put 

it to action into political activity. They can get voluntary contributions only, not dues. 

Mr. GOLD. And we do the same. 

Mr. LINDER. Let me just point out that I was, in 1998, in maybe 

three or four districts where you had young people on the ground 

going door to door and they seemed to not know which door was 

always owned by a union member, because they were going to a lot 

of other doors, too. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Hoyer. 

Mr. HOYER. I do not have time to fully develop what I think you 

said there, comparing whatever unions spend and what corporations spend in advocacy, however one might describe it. I am not 

going to get into a legal definition, but it is at least 10 to 1 at a 

very minimum. You said maybe 1,000 times, I do not know if that 

is a case, but do we have a figure on that? I think I’ll recall it——

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Mr. GOLD. Well, yes. The figure I was referring to, when I say 

dwarfed by a factor of thousands to 1, I am referring to available 

assets. I do not know that the figures have been added up, although I think the Labor Department has them. 

Mr. HOYER. It is an interesting theory, but there is an extraordinary discrepancy between what corporations who have a fiduciary responsibility to their stockholders and who do not ask individual stockholders how that money is to be spent, and an extraordinary difference between what corporations spend in advocacy and 

what labor unions spend in advocacy, and labor unions pale almost, 

not quite, luckily, when that comparison is made. 

Mr. GOLD. I think that is exactly right, Mr. Hoyer. 

Mr. HOYER. Now, let me ask a question about these bills. First 

of all, let me thank all of you for coming. I have heard some of your 

testimony before. I think it is all very thoughtful testimony. I have 

said before I think there are significant honest differences of opinion on these issues. Very frankly, I will make an observation that 

this Congress and previous Congresses have not necessarily been 

too persuaded in passing legislation because they were thought to 

be unconstitutional. Some of your groups advocate legislation that 

is clearly, from my perspective, unconstitutional, if I may say so as 

respectfully as I can. Ultimately, none of us are going to know, 

whether it is a flag amendment, partial birth, or campaign finance, 

until the Supreme Court makes a decision. I think any of us who 

voted on the bill that we clearly believe it was unconstitutional 

would not be appropriate. I would hope that our oaths of office 

would dissuade us from doing that. 

However, clearly we have some very bright, able people at this 

table. 

Now, Mr. Gora, let me ask you a question. Is Mr. Rosenkranz 

correct when he represents that there are literally a large score of 

former presidents of the ACLU and other officials who disagree 

with your conclusion? 

Mr. GORA. Well, there are people——

Mr. HOYER. Is that correct? 

Mr. GORA. Yes, he is correct that there are people who used to 

be officials of the ACLU, many of them are my friends, and many 

are my mentors, who disagree with the current position of the 

ACLU. 

Mr. HOYER. Do you believe that those opinions are honestly held? 

Mr. GORA. Oh, they may very well be honestly held, they are 

quite wrong and, more importantly——

Mr. HOYER. Mr. Gora, if I can get by your self-confidence, which 

I admire, the point I want to make is am I correct then in concluding that because their opinions are honestly held and your 

opinions are honestly held, that there is an honest disagreement to 

your conclusion? 

Mr. GORA. Well, I think there is a disagreement. I certainly 

would not want to characterize it as honest or dishonest, but as 

lawyers, we can read the law and read the decisions and get some 

sense of what the law is. That is what we tell our students. 

Mr. HOYER. Mr. Rosenkranz and Mr. Simon have done that as 

well. 

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Mr. GORA. I understand. Well, but let me just finish my point 

about the ACLU. 

Mr. HOYER. Yes, sir. 

Mr. GORA. The leadership of the ACLU, the democratically-elected members of the board of directors of the 300,000-member organization, have looked at this issue several times for more than 25 

years, and each time they have taken the position that is reflected 

in my testimony. And they looked at it most recently 2 or 3 years 

ago and some of the officials that signed the letter you are referring to appeared before the board and presented their case, and the 

board, even though it is concerned about many of the imbalances 

of funding, was not willing to say that the way to deal with our 

campaign finance problems is to sell out the first amendment. 

So the ACLU’s position is as I have stated it. 

Now, honest differences of opinion? Yes. 

Mr. HOYER. To throw out the first amendment, an intellectual 

argument, or——

Mr. GORA. Well, I am trying to be pithy in my response. But on 

the honest difference of opinion, I think, for example, the case law 

governing the express advocacy I think is extremely clear, and I 

think most people honestly, if you asked them off the record, would 

say the chances of that provision being upheld are very remote. 

Now, in all honesty, the soft money issues are a little different. 

Not that the principle is different, but there are not 30 years of 

precedent saying that Congress cannot regulate soft money activity. So on that I think maybe one might say there might be more 

of a difference of opinion. But I do not think there is really a wellfounded difference of opinion on issue advocacy. 

Mr. HOYER. Mr. Rosenkranz, do you want to respond? 

Mr. ROSENKRANZ. Yes, thank you, Congressman Hoyer. Two very 

brief points. First, just to be clear, this is not just a few former 

leaders of the ACLU, this is every living former president, executive director, legal director and legislative director of the ACLU 

who was living at the time that this letter was written. 

Secondly, on sort of reasonable differences of opinion, I think the 

best evidence of the differences of opinion on the issue advocacy 

provision and the openness of the question is an ally of the ACLU 

and the Right to Life Committee, Yon Baron, who recently submitted a brief to the Supreme Court requesting them to review the 

case that came out of Mississippi involving issue advocacy, sham 

issue advocacy, listing all of the cases that go both ways, claiming 

it is an open issue that needs the Supreme Court’s resolution, and 

saying that the courts are increasingly going in the other direction; 

that is to say, the direction that Mr. Simon and I have been supporting. 

Mr. HOYER. Let me go to some specific questions. Mr. 

Rosenkranz, first to you. What effect to you think the elimination 

of soft money will have on political parties? That is obviously one 

of the issue that has been raised in this debate. 

Mr. ROSENKRANZ. Congressman, it is a great question, and I 

think it is one of the big red herrings in this entire debate. The 

argument we hear from the other side constantly is that soft money 

is necessary for the health of political parties. 

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I believe very ardently in strong political parties. Political parties 

are very important to our democracy; they play an important mediating role between individuals and the legislature and elected office. But to say that enormous infusions of monies from special interests is equivalent to healthy political parties is like saying that 

eating mountains and mountains of fat-saturated french fries is 

equivalent to creating healthy bodies. 

What you have to be looking at is the reasons that we want political parties to be strong, and that has to do with mobilizing people 

to—actually mobilizing them to join political parties, which has 

very little to do with bombarding people on the airwaves, which is 

what 40 percent of soft money is used for. 

A final point, just to look at the numbers. In the 2000 election 

cycle we had about half a billion dollars of money spent by the political parties, that is soft money spent, compared to 1988 where it 

was 1/11th of that amount. I do not think that there is a significant 

difference in the health of the political parties that is demonstrated 

by that 11 to 1 disparity. Political parties have been vibrant in 

American democracy with and without the ability to spend soft 

money. 

Finally, 40 percent of the money that political parties spend, that 

is the soft money, is spent on the airwaves. Only 80 percent is 

spent on the grass-roots organizing, get-out-the-vote efforts which, 

in my mind, is far more critical to what we believe as being a function of strong political parties. 

Mr. HOYER. Ms. Mitchell, you seem to be motivated to comment. 

Ms. MITCHELL. Mr. Hoyer, thank you for allowing me to comment. 

First of all, I think that because of the limits, the coordinated 

party expenditure limits on hard dollars that parties are limited to 

only spending so much to help their candidates with hard dollars, 

that it creates an enormous pressure in finding other ways to help 

support the candidates. Now, we can all hope, I hope certainly that 

the Supreme Court, either on Monday or the following Monday, 

will strike down those hard dollar limits, and I think if that happens, and even if it does not happen, I would urge Congress to remove those expenditure limits, because once those hard dollar limits would be removed, I think what we would see again is the parties would proceed to help the candidates in the amount that they 

felt was important, and you would not have this kind of attempt 

to circumvent if one exists. 

But I would urge you, Mr. Hoyer, to look at the bullet points I 

put together on the impact of McCain-Feingold on State and local 

parties. It is basically the same, with a few changes, in Shays-Meehan. But Federal election activity is defined as all sorts of activity, 

grass-roots activity, absentee ballots, slate cards, I mean it includes 

the mail-in programs, the generic party building, voter identification, the generic things like the RGA, the Republican Governors’ 

Association, Democratic Governors’ Association, the Young Republicans, Young Democrats. All of these things are covered and paid 

for by soft dollars, and they will no longer be available to do that. 

Even if a Federal candidate is never mentioned, it is still defined 

as Federal election activity. So it nationalizes, federalizes all of the 

State and local political parties. Even a local county political party 

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is suddenly subject to reporting at the FEC, and it supercedes and 

circumvents supplants, the State campaign finance laws of all 50 

States. 

I will give you one example. A political party in a given State 

with which I am familiar, they operate under the laws of the State, 

they have one guy who is a rich guy who just loves the party, and 

so for years, he has paid out of his pocket for their headquarters 

and phones and all of this kind of thing. Under McCain-Feingold, 

he would be limited to giving his State party $10,000, and his contributions to the State party would now be subject to his aggregate 

limits for Federal giving. So right now he can give as much money 

as he wants to the State party under the laws of his particular 

State. Now he is going to have to include his contributions to his 

State party in his aggregate limits for what he contributes to his 

candidates for Congress, the Senate or the President, or Federal 

PACs. 

I think that is what I am saying about look and see what is in 

the Kool-Aid. Look at the practical applications. I deal with this 

every day, and I promise you that there are things in this bill that 

anyone who has run for office and has been involved in everyday 

politics knows that these things are impractical, they have a 

chilling effect on the people who want to participate in the process, 

and I urge you to pay close attention to the realities, not the rhetoric but the realities. 

Mr. HOYER. Mr. Chairman, if I can ask one additional question. 

I have an appropriations——

Mr. CHAIRMAN. Happy birthday, by the way, Mr. Hoyer. 

Mr. HOYER. Thank you so much. 

Ms. MITCHELL. You do not look a day over 38, but he told us you 

were 39. 

Mr. HOYER. Well, that is in the interest of full disclosure. I do 

not know what the Supreme Court has said on the issue of 39, but 

I would be glad to be advised on that. 

Ms. Mitchell, let me say something as an aside. This Kool-Aid 

has been around a long time. This Kool-Aid has been subject to review for a long time. It was passed, as you know, pretty handily 

in this House twice, and in the Senate. So it is not as if Mr. Jones 

just took the Kool-Aid out of his pocket. So I think the analogy falls 

short somewhat in that respect. 

Let me tell you something, and all of you that have heard me 

talk before, and Mr. Gora, you will want to speak to this, that I 

am very concerned. I have the absolute right in my opinion to write 

something on this sheet of paper and hand it out as extensively as 

I want and put it anyplace in our country that I want to. But when 

I use the airwaves, as you said, the FCC does make a requirement 

that the American public know who is talking to them over their 

airwaves. The two gentlemen in Texas became known after they 

spent 21⁄2 million savaging Mr. McCain; that is my word, not anybody else’s. I think it is a very significant concern to democracy 

that we know who is talking to one another, through the public airwaves. Private communication, obviously, that can be known as a 

nondisclosed source. 

I would like your comments on that, I think that is of great concern to every American who participates in this democracy, because 

146

the Citizens for Better Government do not tell any citizen who is 

talking to them—and you have heard my analogy before. If the 

Citizens for Better Government are the oil companies or the Citizens for Better Government are the environmentalists of the world, 

there is a different hearing, there is a different perspective, there 

is a different communication, I suggest to you. 

Now, I understand the NAACP Alabama case, and I am not sure 

how you work that out in terms of membership. I am not saying 

that the entire membership has to be made aware, but I do believe 

that there is a very important question to the sanctity of our democracy and communication for voters, prospective voters, to know 

who is talking to them and making representations. 

Now, you indicated, Ms. Mitchell, as I understand it, in your 

comments that they ought to be able or are obviously required to 

do the FCC disclosure. But I think I would like to hear all of your 

views on that, because I think it is a very critical issue in our democracy. 

Mr. GORA. Well, it is a big question, Mr. Hoyer, and I am only 

able to give you a small answer, and I think the answer is we do 

have slightly different constitutional framework surrounding broadcasting, but on the other hand, broadcasters and people that communicate on broadcasting have significant first amendment rights. 

I am not sure that we can easily balance those two things; namely, 

the additional regulatory authority, if you will, of the government 

because of the airwaves versus the fact that these are still basically 

people and institutions with first amendment rights. Whether it 

comes down to the kind of disclosure of the sponsor because it is 

on television requirement that Ms. Mitchell was talking about, 

whether that would be permissible, I am not sure. But that is a far 

cry. Mr. Hoyer, from the kind of ban that these bills have. 

Mr. HOYER. I understand. I did not ask you about the ban. What 

I am saying is, if the ban does not do it, is this an issue of importance and if so, how do we get at it? I think it is an issue of great 

importance, because I think it impacts very substantially on the 

ability in a democracy of citizens to make a rational decision. 

Mr. BOPP. Could I comment on that? 

Mr. HOYER. Sure. 

Mr. BOPP. I think that is a serious question, and I agree with 

Mr. Gora on that. We do have, to a limited degree, a different constitutional contest. However, I am persuaded, as the Supreme 

Court was in McIntyre, that this is really up to the listener. In 

other words, it seems to me that a person who puts an ad on TV, 

coming up with a new name, something that nobody recognizes or 

without disclosing who they are, they, the speaker, runs the risk, 

and that is—the people, as McIntyre said, people will take that into 

account. The listener knows that they do not know who the Citizens for Good Government are. The listener knows whether or not 

they recognize the group and are prepared to listen to the group 

and, therefore, consider that as part of whether or not they listen 

to the ad, are persuaded by the ad, or simply click the ad or ignore 

it. 

So it is actually a risk that the speaker is running by proceeding 

anonymously, that the listener will simply ignore or turn off, because they consider the source to be important. 

147

Now, the other part of the analysis was that while this is a risk 

for the speaker to take, it is in our proud tradition that people are 

able to communicate anonymously because often the Speaker does 

not—in many cases the Speaker does not want his, the force of his 

argument to be affected by who is making the argument. The Federalist Papers were published anonymously, because they did not 

want the arguments to be taken away from by identifying the 

source, and people could decide on the merit of the argument rather than to whom it was from. 

Mr. HOYER. I apologize to others who want to respond. As you 

heard, my beeper has gone off three times. They are in a vote now, 

so I have to go. 

Mr. Chairman, I have a number of other questions, if I could 

submit them and get some answers. Again, I think your testimony 

has been thoughtful and helpful, and I appreciate it. 

Mr. LINDER. Mr. Chairman, may I ask you to yield for a moment? Mr. Hoyer asked a question I would like an answer to. 

You said you could influence anything you want on a piece of 

paper, but on the airwaves, that is public airwaves and people deserve the right to know who is using them. The Christian Coalition, Mr. Bopp, who you, I understand, represent? 

Mr. BOPP. One of my clients. 

Mr. LINDER. Uses voter guides that go around in paper in 

churches before an election. Would they be in any way impinged 

upon because it was not on the airwaves? 

Mr. BOPP. Oh, sure, because other provisions of McCain-Feingold 

and Shays-Meehan would make it unlawful to engage in that sort 

of issue advocacy. There is year-round prohibitions on any communication that would be unambiguous—you know, in the opinion of 

the bureaucrats, unambiguously support a candidate, while not 

using express advocacy. So furthermore, there is the coordination 

trap that is applied year round to all communications. 

Mr. LINDER. So the notion that we can write down anything we 

want on a piece of paper and disseminate it as broadly as we like 

in any way we like is simply not correct? 

Mr. BOPP. That is correct. Under McCain-Feingold, there are numerous restrictions, and if you look at exhibit C, or appendix C of 

my testimony, anybody that is going to engage in an issue advocacy-type communication, these are all the tests and trip wires and 

hoops that you have to jump through before you finally get to the 

other end here, which says it is either allowed, prohibited or subject to some sort of reporting or contribution limits. I mean only the 

wealthy can afford to hire experts in order to work their way 

through this maze, and only the wealthy would have the audacity 

to take that risk. 

Mr. SIMON. Could I respond to that, Mr. Chairman, just to sort 

of narrow the focus of discussion so we can have a discussion about 

it, but I think it will actually be before the House. The provisions 

that I think Mr. Bopp is characterizing are provisions that are not 

in the McCain-Feingold bill and I anticipate will not be in the 

Shays-Meehan bill that is ultimately introduced and brought to the 

floor. 

The CHAIRMAN. Well, I think just looking at the two bills, not to 

interrupt, but I think the groups, at least what I have looked at 

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and what I have heard, the groups are gotten on one end by coordination; if not that, they are gotten on the other end by direct language. 

Mr. BOPP. And both are in McCain-Feingold or Shays-Meehan. 

The CHAIRMAN. Either bill wraps around somehow to stop the 

payments, because this was a huge issue for debate last time. They 

both have some type of wrap-around language. 

Mr. SIMON. Well, if I could just respond to that, I think in both 

areas on the regulation of so-called sham issue advocacy and on coordination, there are very significant differences between the 

Shays-Meehan bill that has previously been considered by the 

House and the Senate bill, the McCain-Feingold bill that was 

passed in April and that will be brought to the House next month. 

In terms of the Snowe-Jeffords provision, which is the applicable 

regulation of sham issue advocacy, as I said in my opening statement, that applies only to broadcast ads, it does not apply to nonbroadcast ads or the kind of voter guides that Mr. Linder was referring to. 

In terms of the coordination provisions, there were very extensive 

coordination provisions of the sort that Mr. Bopp was referring to 

that were in the Shays-Meehan bill previously, that were in the 

original McCain-Feingold bill, and that were taken out during the 

floor consideration of McCain-Feingold, and that again I anticipate 

will not appear in the bill that is before the House next month. 

Mr. BOPP. Mr. Chairman, there is a provision of McCain-Feingold 

called the electioneering communication provision that is a yearround ban on corporations, labor unions from communications that 

go way beyond express advocacy. Mr. Simon is simply not familiar 

with the bill he supports. 

Mr. GOLD. Also, I think it is important to note that the ShaysMeehan bill as introduced this year, not 2 years ago or more, contains that very intrusive and hopelessly, in our view, oppressive 

and unconstitutional language that the McCain-Feingold bill did 

abandon a few months ago. This is the bill that is pending, and nobody has changed it yet, so that is what we have to deal with. 

The CHAIRMAN. All of you, all of you on either side of the issue 

raise a point and I have stated, along with a Member of Congress 

who testified here, that we should have done this in two weeks, 

this bill should have been out, and I said to that member, what do 

you think about the millionaire clause? His answer was, I think my 

quote is correct, I do not know, we haven’t looked at that yet. One 

person wanted it in 2 weeks, one person wanted it in 3 weeks. Exactly all of the statements of all of you on either side proves I think 

these bills have changed. 

Plus, I want to make this public point. We have newly elected 

Members of Congress who have not served here before. Whether 

Republican or Democrat, everybody has a right to their day before 

this podium here to testify and their day of debate. I just wanted 

to throw that out, because I think the debate of the last 5 minutes 

shows that there are differences, there have been differences. 

Maybe some of the substantive points are still there, but there has 

been some change. 

I have a couple of questions I wanted to ask, one of Mr. Simon. 

The AFL–CIO has about 13 million members. Do you deem the 

149

AFL–CIO a special interest group or a public interest group? What 

membership do you become the public in versus the special interests? And you know why I am asking this question, because their 

money in some people’s minds is tainted because they are the special interests. They have 13 million people. 

Mr. SIMON. Those obviously are nonprecise and somewhat rhetorical terms. I think the point of the legislation is that money that 

is used to influence Federal elections should be subject to Federal 

fund-raising rules which are intended to ensure that corruption 

and the appearance of corruption is not created by the use of that 

money from whatever group it comes from. 

The CHAIRMAN. But do you, the AFL–CIO, view them as a special interest, just as Common Cause is viewed as a special interest 

group? 

Mr. SIMON. I guess Common Cause does, and probably a lot of 

people view Common Cause as a special interest group 

The CHAIRMAN. But you are deemed to be a public interest 

group? 

Mr. SIMON. We are deemed to be a public interest group by those 

who call us that and we are deemed to be a special interest group 

by those who call us that. Again, these are not totally imprecise 

terms. 

The CHAIRMAN. This weighs on the discussion because what happens in this bill that bothers me significantly is that the 60 days 

before the election, the AFL–CIO cannot use its money because it 

is ‘‘tainted and soft,’’ and soft means dirty money, although it is 

coming from 13 million people. But it cannot go on the radio and 

it cannot go on television. Now, a person worth $50 million, one person, not 13 million people, can launch a tirade, let’s say in my district, about how good 

Right to Work would be and how bad supporting a labor union 

would be. That is one person. And they then, without any restrictions, launch $1 million worth of ads up to the minute the polls 

close. But the AFL–CIO in fact could not defend its position on 

Right to Work, which is very dear issue, because its money is tainted. So you still have money in the system. Now you have the millionaire controlling free speech without the other side being able to 

come into it, and that is juxtaposed to Right to Work, and I use 

that as just one issue. I could use Right to Life. I am just saying, 

what—the thing I cannot clarify in my mind, what makes their 

money so different in what they want to say versus one human 

being who is loaded with money that can do whatever they want. 

Mr. SIMON. Well, basically what makes the difference are precisely the lines laid down by the Supreme Court that have reviewed campaign finance regulations in light of the first amendment restrictions, and the Court has said, and did say in Buckley,

that when you are talking about campaign-related speech, electioneering speech, the amount of money an individual can spend cannot be limited. When you are talking about speech by a union or 

a corporation, that money comes through a Political Action Committee which the AFL–CIO has and from when it can raise money 

for its member to engage in this speech. 

The CHAIRMAN. And can be limited by Congress, as we know. It 

can limit amounts spent. 

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What I am saying is—I am not saying that you shut off the multimillionaire from free speech. I am not saying that. But the system 

is not fair when you allow that multimillionaire, the wealthy, the 

rich, the influential—the numbers in this body have grown; in fact, 

some of the caucuses seek out millionaires to run in this institution, and I think we need diversity here of all income structures 

and all racial backgrounds. But it has become sort of a wealthy—

you cannot restrict, I understand, the millionaire from speaking, 

but the counter to that is to allow the other groups to speak also. 

So we hide I think behind well, you cannot restrict the speech of 

the millionaire, well then why come over and restrict NOW or 

Right to Life or the AFL–CIO or the corporation? That is my question. Why do that? 

Mr. SIMON. Well, when you are talking about speech relating to 

issues that do not mention candidates, there is no restriction, not 

in this bill and not otherwise in Federal law. When you are talking 

about speech relating to campaigns, the restrictions laid out by 

Congress previously and approved by the Court is that corporations 

and labor unions speak through their political committees, and 

there is no limit on the amount of spending that those political 

committees can engage in for such speech. 

Mr. BOPP. Mr. Chairman, thank you. I challenged Mr. Simon and 

the other witnesses on the other side to name one case, one case 

that supports their argument, one case that supports any of the 

provisions of McCain-Feingold or Shays-Meehan. In fact, this is not 

a matter of subjective opinion or simply hand-raising. 

The CHAIRMAN. I think Mr. Rosenkranz——

Mr. BOPP. I know——

Mr. ROSENKRANZ. I thought there was a challenge. 

The CHAIRMAN. Go ahead. 

Mr. BOPP. And of course—and they cited no such testimony in 

their written testimony, and in fact we have cited 40 cases that ha 

held, as has been testified, that it has to be express advocacy. That 

is equally true and most importantly true with corporations and 

labor unions. 

First National Bank of Boston v. Bellotti, Supreme Court, 1972, 

and Citizens Against Rent Control v. Berkeley, both hold that corporations and inferentially labor unions, have an absolute right to 

issue advocacy. Buckley said that issue advocacy encompasses talking about candidates, what their positions are on issues, what incumbents have done to us and for us while in office. Only express 

advocacy is limited. And then the Supreme Court in 1996 went so 

far as to say that for a not-for-profit idealogical corporation; i.e. 

Mass Citizens for Life v. FEC said that even express advocacy could 

not be limited, even though they are a corporation and segregated 

into a PAC, and, of course, what Shays-Meehan and McCain-Feingold does is take issue advocacy that is considered by the Court absolutely protected and tries to force it under a PAC when you cannot even do that with express advocacy for certain corporations. 

Mr. ROSENKRANZ. Mr. Chairman, I would be happy to take up 

the challenge and I will multiply it by 3. Furgatch in the 9th circuit upheld a line that was very different from magic words. 

Crumpton. v. Keesling, out of Oregon, and the Supreme Court statVerDate jul 14 2003 20:53 Aug 27, 2003 Jkt 087573 PO 00000 Frm 00152 Fmt 6633 Sfmt 6602 E:\HR\OC\A573.XXX A573
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ed emphatically, while striking down an overly broad provision, 

that it seemed different from the magic words test. 

Ultimately, this will be a Supreme Court case and only the Supreme Court will decide, but if I may finish, Bellotti was not a case 

that had anything to do with elections and, in fact, the Supreme 

Court distinguished Bellotti on the ground that this was, in fact, 

a pure issue advocacy case about a ballot proposition. 

The CHAIRMAN. There might be a vote coming up. 

The GOLD. I want to say I appreciate the chairman’s example of 

the AFL–CIO and the line of questioning throughout, but I think 

the proponents of this are operating on a real utterly false legal 

distinction, which Mr. Bopp just described, and that is that somehow you draw a line between something that discusses a nonelection-related issue and noncandidates and that you discuss candidates and elections on the other side, and that somehow draws 

a line of legal invalidity. That is totally contrary to what Buckley

expressly says, and it would be terrible public policy for the law to 

take that direction. We do not believe it will. We believe even if 

Congress were to go that route, the Court certainly would strike it 

down, regardless of what an old 9th Circuit decision says, which is 

in the distinct minority and also I think pumped up a little more 

than what it says by the proponents in two State court decisions. 

The CHAIRMAN. I want to ask a couple of other questions, because we have talked about the Supreme Court today. If this bill 

is well thought out and this bill has been around for a long time 

and we should just pass it the first 2 weeks we are over there, why 

are proponents of the bill afraid of nonseverability? Why are they 

opposed to nonseverability? 

Mr. ROSENKRANZ. I have a very easy answer. The easy answer 

is Buckley v. Valeo, in which the Supreme Court took, you know, 

a wide variety of issues and cut them up in various different ways. 

No one here, I think, would be prepared to say with 100 percent 

certainty that every single provision in the McCain-Feingold bill or 

whatever version passes is absolutely 100 percent constitutional. 

Courts are unpredictable. 

The CHAIRMAN. But what you get is, the proponents of this would 

say voluntary. I have talked to the other side of the aisle, I have 

talked to unbiased individuals from the legal aspects. I think there 

is a great percentage that think that parts of this would be found 

unconstitutional, and that happens in our country. But you are trying to craft a bill that you can follow through the campaign process 

and major components are all of a sudden evaporated, and what do 

you have left? 

And here is my real worry about this—because this bill does not 

affect my reelection, it does not effect one dot or paragraph of any 

money I can raise or not raise, it does not do anything to me. In 

fact, I think we probably, as incumbent protection thinkers, should 

just pass McCain-Reingold or Shays-Meehan, or both of them, and 

combine them, and we can live here another decade having groups 

not say anything about us. But heaven help a Member of Congress 

that somebody dares to says something about them 60 days before 

the election. You can say something some amount of time before 

that, but not the last 60 days. 

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My point is, this bill does not have a bearing on reelection. Now, 

having said that, though, it does affect people across this country 

who are trying to run for Congress. I came from the State Senate. 

I was elected 21 years ago. I had been in office my third year out 

of college, the house and the Senate, and had been around a while. 

I had the ability to have attorneys, accountants, a press secretary, 

a campaign manager. I had some advantages. You also have disadvantages as an incumbent because you have a record that can 

be attacked. I understand that. 

But I think we have a structure that potentially, because so 

much of it is loose, goes to the Supreme Court, you have bits and 

pieces. You are going to have the FEC making all kinds of rules 

and regulations, because they do it and it has force of law. And you 

have people running all over this country that are going to be challenging, and we are probably going to end up in court and in jail 

with the party chairmen of all the political parties. 

This question of nonserverability. Why can’t we try to craft something that is more solid? People that support this bill say we know 

that is—I think part of this is a litany I have given you. I understand that, but——

Mr. SIMON. If I might, just on the specific nonseverability point. 

Part of the problem with that is that it sort of invites a sand-bag 

tactic, that a nonseverability is put on the bill and opponents of the 

bill have an incentive to put in a provision regulating internal communications that would be unconstitutional, precisely for the sake 

of bringing the whole bill down. And I think that is a risk that the 

sponsors of the legislation do not want to open themselves up to. 

I assure you that in all likelihood, the day after this bill is signed 

into law, that it will be challenged in court, probably by four of the 

lawyers sitting to Mr. Rosenkranz’s left. This is a case, as Mr. 

Rosenkranz said, is a case that will get to the Supreme Court. And 

the bill has provisions for an expedited review, and we will get a 

definitive and, I believe, quick Supreme Court decision about these 

very contentious legal issues. 

The CHAIRMAN. Isn’t that sort of a ‘‘take what we can get’’ philosophy and we do not care about the consequences? Because no matter what that Court decides, no matter what pieces all of a sudden 

are taken out of the McCain-Feingold, Shays-Meehan bill that has 

10 major points to it, now you have three, who knows how the FEC 

is going to rule on it? It does not affect the incumbent. It does not. 

We have attorneys, we have campaign funds, we can hire attorneys, you can hire accountants, lawyers. But it affects the challengers, I think. 

So it just goes back to my point again. Things have changed in 

this bill. And for those who said we should have passed it in 2 

weeks, I think we are being as expeditious as we can. But I think 

it is the duty of this committee to at least look at some really outstanding unconstitutional—admittedly unconstitutional by proponents of the bill—clauses of the bill to see what we can do to 

clean them up. 

I have one question, and I will get to you, Ms. Mitchell. The 

AFO-CIO suit. Do you oppose both McCain-Feingold and ShaysMeehan in their current form? 

153

Mr. GOLD. In their current form, we don’t believe they should be 

passed. We believe that there are elements of both that are meritorious, and, as I said, we are very much for campaign finance reform and a principled approach to it. 

Ms. MITCHELL. Mr. Chairman, I want to return to something 

that you said. I really want to applaud you again for holding these 

hearings. I know that there has been enormous pressure on this 

committee and on you as Chairman to not hold hearings and just 

whisk these bills through to the floor. So we know that you have 

done a very, very great service by having hearings. 

I want to go back to something and hope that you will perhaps 

consider having a hearing specifically on the coordination issue. 

One of the things that McCain-Feingold does is that it repeals, 

even before final enactment, the coordination rule that the Federal 

Election Committee has spent the last 18 months or longer trying 

to promulgate. And it directs the Commission to promulgate new 

regulations on coordination and sets out some parameters, and in 

some cases doesn’t even say what it is that Congress wants them 

to decide, but says look at this and decide if this or this can be 

done. 

I would urge the committee to spend a lot of time looking at 

some of the things that the Commission has already been doing in 

this coordination realm. And in particular in my testimony, I refer 

specifically to the investigation conducted by the Commission over 

5 years, first against the AFL-CIO, which was closed last August. 

There were 11 separate complaints filed against the AFL-CIO, various people associated with the AFL-CIO, and the most egregious 

for the ad campaign that the AFL-CIO ran in the 1995–1996 time 

frame, which were issue ads which mentioned at that particular 

time various Republican Members of the House. 

The CHAIRMAN. I was subject to the AFL-CIO’s myself. 

Ms. MITCHELL. And I disagreed with the content of those ads. 

But I believe the first amendment protects the right of the AFLCIO to run those ads. And one of the most outrageous things to me 

in the general counsel’s report in closing that case after 5 years 

and 35,000 documents and after 28 Democratic House candidates 

were interviewed, subpoenas, depositions, the works, the comment 

there is a part of that report that talks about how the FEC sent 

investigators out to investigate the Wyden for Senate campaign in 

January 1996, the special election. And the Federal investigators 

went and interviewed union members and/or their spouses who had 

volunteered for what were called ‘‘labor walks’’ in that campaign. 

I think it is incumbent upon the Congress to stop and think 

about what that means. It means you volunteer in a campaign—

you are a working person. You volunteer in a campaign and you 

get a letter from a Federal investigative agency saying, we are 

going to come and interrogate you. And I don’t think that is what 

the United States of America is all about. But that is happening 

today. It is happening today. 

And I would urge the committee to spend some time on this coordination issue, because it is an egregious assault on the rights of 

citizens to participate in the process. 

The CHAIRMAN. The AFL–CIO was, you know, involved with the 

1996 election, for example. I have never argued about that. They 

154

have a right to do it. They were wrong in the ads, but they have 

a right to be involved in the election. But I knew they were involved. I do like disclosure. 

But my whole point is the AFL–CIO has that right. And somebody coming and running our campaign ads to say they were 

wrong, we have that right, too. In 1996 they ran ads against me. 

We are going to shut them off 60 days before the election because 

their money is now tainted. But the millionaire can come in, let’s 

say, to my favor, without any coordination, but some millionaire 

likes what I do and they can run all kinds of ads. That is fair, and 

it is fair for the AFL–CIO, or Right to Life or NOW or Gun Control 

Incorporated or NRA, if everybody is in the mix, there is where I 

personally think it is fair. I don’t understand where it is not fair. 

The bells rang. A couple more questions, if anybody would want 

to answer these. Can you explain to me why all of a sudden the 

tainted money can’t be used on just radio or TV? 

Mr. ROSENKRANZ. I can, Mr. Chairman. 

Mr. CHAIRMAN. What about newspapers? 

Mr. ROSENKRANZ. I think this is a perfect example of exactly how 

carefully drawn this provision was. The drafters of the provision 

have changed it over the years to focus specifically on the areas 

where, you know, the authority to regulate is at its height. Broadcasters, we have already heard from Ms. Mitchell, is a place which 

is much more heavily regulated. Clearly identified candidate is another example. A threshold of $10,000 is yet another example. And 

the targeting is yet another example. 

All of these are designed to tailor this as narrowly as possible so 

that nobody can claim, A, to be caught off guard by a regulation; 

or B, that their intent was actually other than to engage in electioneering—directly intended, predominantly intended to influence 

the election. I haven’t heard anyone yet, except for Mr. Gora, take 

up my challenge to claim that any of these ads are not intended 

to engage in electioneering. Mr. Gora took it up by saying, no, in 

fact the ACLU never ran such ads. 

The CHAIRMAN. The bells rang. I have one other question that is 

also bothering me about the bill. What is wrong with the Republican, Democrat parties, Natural Law, whoever’s party, what is 

wrong with those parties receiving support from unions or corporations and taking that money and registering people to vote? 

Now, you know, 120 days before, you can’t do it. I don’t understand what is wrong with that. 

Mr. SIMON. Well, if I may, Mr. Chairman. What is wrong is that 

since 1907 there has been a Federal law, which has been sustained 

multiple times by the Supreme Court, which says corporate money 

should not be spent to influence elections. There is a comparable 

law for union money. 

The CHAIRMAN. I should clarify. If corporations or unions would 

like to make donations and this is not influencing elections but registering people to vote, just registering people. We all want young 

people to vote. They do not vote. 

Mr. SIMON. They can conduct their own vote or registration 

drives. The problem comes in donating the money to political parties and having that money solicited by Federal officeholders raises 

155

the concerns about corruption and the appearance of corruption——

The CHAIRMAN. I don’t think the Federal officeholders should solicit that money to give to them to use for that purpose. I am saying you take a company and if they have contributed into a political party of any type, then all of a sudden they cannot use that 

money for voter registration. 

Mr. BOPP. You know, the thing about that provision, too, Mr. 

Chairman, is that it applies to State and local parties. And State 

and local parties in over 20 States lawfully can receive corporate 

and labor union contributions and the expenditure of those funds 

for voter registration is 100 percent legal under State law. 

But, because of the obsession by some people about Federal elections as opposed to State and local elections, because there is one 

Federal candidate on the ballot, one candidate, then it is now unlawful under Federal law to use lawfully raised State and local 

money under State law. 

The CHAIRMAN. That is the point. That is the point I have made 

about the fact that this is also federalizing the local elections. It 

says we don’t care what your law says in these States, this is what 

you will follow, because I happen to be on the ballot when Governor Taft is on the ballot and all of a sudden my election makes 

the whole difference for the statewide executive officeholders in 

Ohio. And somebody says, no, there is a $10,000 per county kickin right now, that they can spend X amount soft money, sort of 

$10,000 per county. That is not really accurate because of the fact 

that if anybody happens to be a volunteer and knocks on a door 

and happens to say, gee, I am supporting Bob Ney, or I am running 

against Bob Ney, all of a sudden they or the party chairman of the 

political party is going to be dragged to Washington, D.C., and 

stand before the FEC. 

We have now put our fingers in State elections, all because one 

of us are on the ballot. And all of us are always on the ballot after 

2 years in these elections. 

Mr. BOPP. State and local parties really care much more about 

State and local elections than the Federal elections. 

The CHAIRMAN. Twenty-one years ago I ran against the former 

chairman of this committee. When I went into the incumbent structure to try to run—he was very well liked in our area, and when 

I went to that structure, I couldn’t get assistance. Either I wasn’t 

the right type of Republican or, in fact, it was hopeless for me to 

win. The only people who would take a look at me was the party 

structure itself, who never asked me for anything, didn’t ask me for 

a vote, didn’t worry how I was going to vote. They were willing to 

take a look at me as a chance. 

I think if this bill were in existence 21 years ago, I think a lot 

of people like me would not be sitting here. We would have to go 

to the good old boy network and do the litmus test and see if I am 

the kind of candidate for them. The parties are more generous in 

looking at picking up seats versus your background, where you 

come from, and what kind of votes are you going to cast. 

I view these bills as also gutting the political ability of the two 

political parties and all other blossoming parties in the country. 

156

Ms. MITCHELL. Mr. Chairman, can I make one comment about 

your question that I think Mr. Simon or Mr. Rosenkranz failed to 

consider? Under existing law, a corporation or a labor union cannot 

spend its treasury funds registering voters on a partisan basis. If 

the AFL-CIO wants to register people to vote, under the law they 

are supposed to register people Republicans or Democrats. Corporations, the same thing. So if they want to be able to affiliate and 

use some of their treasury funds to encourage more registration in 

the Democratic Party or the Republican Party, they have to give 

that money to the party to do it. And that is one of the things that 

bothers me, is that people do not know how the current law will 

work with the proposals and the practical—again, the practical implications. 

And I would close with responding to Mr. Hoyer. This bill may 

have been around for a while, but I do not think—I think that a 

lot of people thought it would die in the Senate, so they did not pay 

much attention to its contents. When it comes from the Senate and 

the President says I will sign it, now is the time I think to start 

looking at what it does. 

The CHAIRMAN. Again, it is not my intent or the committee’s intent in fact to kill this bill. I said that from day one. There are 

those who think we have this nefarious plot to all of a sudden not 

have a vote. That is not going to happen. We are going to do something. If it makes people feel good, we want to do some things. If 

it makes people more confident in the system, then Congress ought 

to act. 

I am just saying there are a couple of provisions that we need 

to have a serious debate on and hopefully construct a bill that will 

take care of some of the problems, some of the perceptions, but also 

not gag the groups that we do not think maybe we like their form 

of money that they have been able to raise. 

I want to thank each and every one of you. It has been very interesting testimony from everybody concerned. And I want to thank 

you. 

I ask unanimous consent the witnesses be allowed to submit 

their statements for the record and members have 7 legislative 

days to insert extraneous material into the record and that those 

statements and materials are to be entered into the appropriate 

place in the record. 

Without objection, the material will be entered. 

The CHAIRMAN. I also ask unanimous consent that staff be authorized to make technical and conforming changes to all matters 

considered at today’s hearing. 

Without objection, so ordered. 

Having completed our hearing today on campaign finance reform, 

the committee is now adjourned. 

[Whereupon, at 1:22 p.m., the committee was adjourned.]

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