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Burden of Proof

Can Campaign Finance Reform Get Through Congress?

Aired March 19, 2001 - 12:30 p.m. ET


ROGER COSSACK, HOST: Today on BURDEN OF PROOF: getting tough on soft money. Campaign reform heads to the United States Senate. Is there enough support to overhaul a political machine which is fueled by election greenbacks?


SEN. JOHN MCCAIN (R), ARIZONA: We recognize we're asking incumbents to vote to change a system that keeps incumbents in office and every special interest in this town that uses money in order to buy access and influence is apoplectic about the prospect of losing that influence.

SEN. RICK SANTORUM (R), PENNSYLVANIA: One of the big problems is that it constrains the candidate's ability to control his own campaign by limiting the amount of money that the candidate can receive to a level that was set back in 1975.

SEN. RUSS FEINGOLD (D), WISCONSIN: And people in this building, the U.S. Capitol, have become addicted to soft money and now they're trying to pull the wool over the people's eyes by saying that gee, we won't have political parties without this. Well, we had political parties for 200 years in this country without soft money.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

Throughout the 2000 presidential campaign, Senator John McCain had a driving message for his straight talk express -- reform the system which elects our most powerful politicians.

Today, in less than a half hour, the McCain-Feingold campaign finance bill heads to the Senate as its Republican namesake predicts a 60 percent chance of passing the massive overhaul.

But McCain is not likely to get overall support from his GOP colleagues and Democrat John Breaux has dropped his support of the bill, saying it could hurt his party.

Now, the sponsors fear the bill would be watered down with amendments from both sides of the aisle. The heart of the bill, attacking soft money. A final bill could limit or ban soft money contributions, which are loosely regulated and account for much of the money raised from individuals, corporations and unions.

Joining us today from Capitol Hill is Democratic Senator Bill Nelson of Florida. And joining us from New York, ACLU counsel Joel Gorsa. And here in Washington, Tippy Pierce (ph), election law attorney Ken Gross and Larry Gold, General Counsel to the AFL-CIO. In the back, Chris Kenney (ph) and Brian Hamm (ph).

I want to go right to you, Ken, for a quick definition, hard money and soft money.

KEN GROSS, ELECTION LAW ATTORNEY: Hard money is the money that can be contributed directly to federal candidates. That's PAC money within limits, $5,000 per candidate per election, and individual money, human beings at $1,000 per election per candidate.

COSSACK: That's the direct contribution?

GROSS: That's the direct money. That's the hard money. The soft money is the money that goes indirect. It goes to the party committees, to other groups and that's corporate money, labor money and large individual contributions.

COSSACK: All right, Senator Nelson, is the system broken? Does it need to be overhauled?

SEN. BILL NELSON (D), FLORIDA: The system is broken and it needs to be overhauled and this is the first time since Watergate we've got a crack at changing it and we've got a good shot at doing it.

COSSACK: Is the McCain-Feingold Bill the answer?

NELSON: Well, it's a step in the right direction. It's not the total answer because just on the definition of hard and soft money, you want to ban all soft money, you've got to ban it not just from the parties, but from individual groups as well, outside groups, third party groups.

But there's a constitutional question there and so we ought to make the step in the right direction at this time and get some reform and that's with McCain-Feingold.

COSSACK: Senator, what's wrong with having people be able to contribute soft money and hard money? And let's just for this moment put aside what the constitution or the Supreme Court might say, but isn't that participatory democracy? Isn't that how people involve themselves in democracy?

NELSON: Well, in an ideal world you might use that definition, let everyone contribute whatever they want as long as they disclose it. But that's not the world that we're living in and what we are living in now is where the system is corrupted by all of these huge contributions, both corporate and individual, that flow through various avenues under the guise of issue advertisements, which are nothing more than campaign ads, and thus the whole system is corrupted.

COSSACK: Senator, there's another bill that's being offered, the Hagel bill, which would have limitations, but not quite as strict as Senator McCain's bill. Tell us about that bill.

NELSON: Well, I'm not in favor of Hagel because what he does is he tries to institutionalize soft money. He allows big amounts to go in through the parties and that's what we're trying to eliminate and Hagel is a way to try to defeat McCain-Feingold and I'm not for that.

COSSACK: Senator, in a philosophical question, let me just sort of draw this out a little bit. I understand your objection that large contributors can give large amounts of money, but isn't that, in a democratic system, I mean isn't that the way it works? If we're going to have people be involved, unions, in fact, it's many, many people giving through their union. What actually is wrong with that?

NELSON: Well, in an ideal world, as I said, where you could have disclosure and know instantly what everybody is giving, that might be a way to go. But that's not the system that we have. We have one that is supposed to have limits. The Congress has said that there should be limits. Money is going to flow in political campaigns until you can get everything out into the open and until you can start reducing the cost of campaigns. And what we need to do is take our best hold and step forward and reform the law right now.

COSSACK: Larry, the implication, of course, is that people, for example, corporations or unions, are able to get what they want because they have the ability to control the purse strings. That's what the argument is against -- that's why McCain-Feingold, that's the argument it makes. Is that true? You represent the unions.

LARRY GOLD, AFL-CIO GENERAL COUNSEL: Well, we're not against a ban on soft money contributions to the national parties. We've supported that position for years. One concern we have about this bill is that if it passes, if something passes and it's only a half measure that it could be many years before we get true campaign finance reform, comprehensive reform, which we think at the core of which has to be public financing.

Senator McCain just the other day said that if something passes this year, somebody asked him won't he find a way and he said yes, and in 20 or 30 years, you'll have another Senator McCain and Senator Feingold dealing with it. Well, I don't think we can wait another 20 or 30 years for true reform.

COSSACK: Ken, what's wrong with it?

GROSS: Well, what's wrong with the bill?

COSSACK: What's wrong with the bill? You're my neutral observer here today.

GROSS: I think some of the problems with it, and the Senator referred to the outside funding, there have been cases that have already cast doubt about the ability to regulate soft money contributions to outside groups. That is one of the areas that is going to be called into question.

And if there is a provision in this bill that says if any part of it is ruled unconstitutional the whole thing goes down, then the whole thing will likely go down.

If it has a severability clause where only part of it would go down, then I think parts of it could survive.

COSSACK: All right, let's take a break.

Up next, would a strict campaign finance bill restrict free speech? Sifting through the U.S. constitution after this short break. Don't go away.



FEINGOLD: This is a modest bottom line bill. We are not interested in reshaping or reforming soft money. We're interested in getting rid of it.


COSSACK: Today on Capitol Hill, U.S. Senators are debating a bill which could affect their own abilities to keep office. The McCain-Feingold campaign finance bill targets soft money contributions and restricts political advertising by outside groups.

Now, on the Sunday talk show circuit, Republican Senator Mitch McConnell claimed the bill threatens the constitutional right to free speech.

Joel, let me go to you. What about this argument that the McCain-Feingold Bill does affect the constitutional right to free speech? The Supreme Court has held that donating money most of the time is something that's guaranteed under the First Amendment.

JOEL GORSA, ACLU COUNSEL: Well, I think you're right, Roger. The Supreme Court has held that giving and spending money for political activity is protected by the First Amendment. I think the problem with McCain-Feingold is that it's precisely a step in the wrong direction. It's a step in the direction of violating the free speech rights that citizens and groups have under the First Amendment.

It's a step toward censoring those groups and what they want to say on radio and television. It's a step toward starving the political parties from doing the kinds of things that enrich a democracy, getting out the vote, registering voters, developing issues, developing candidates, all of those things...

COSSACK: But, Joel what, what about the argument...

GORSA: ... are funded by soft money, Roger.

COSSACK: I understand that. GORSA: And those are the kinds of things that would be gone under this bill. And if I might say one other thing. This bill, which is a limits bill, we've been down the road of limits. We've had limits for 25 years and as a result now we're concerned about soft money and issue advocacy because people are going to try to find a way to get their message out.

I think that Congress should spend less time trying to figure out how to limit free speech and more time trying to figure out how to encourage it through things like a serious program of public financing. That's what I'm for.

COSSACK: All right, Senator Nelson, that's the argument. That's the argument against it, that it restricts free speech and that it's a limitation on people's rights to do what they wish. Your response?

NELSON: It's a good argument. I favor public financing as well. But we're not at the point that we can get public financing. So what are we going to do? My preference is that we would ban all soft money instead of allowing soft money just to flow through third party independent groups, which will then take the place of the parties. But that's not the choice that we have.

The choice that we have is a system that is on tilt and we've got to change the system. The public wants it, the country needs it and we're going to do it.

COSSACK: Let me just interrupt here for a second. We're going to go to Natalie Allen with some breaking news.



We're talking about campaign finance reform. Larry, I think earlier I identified you as the general counsel from the AFL-CIO. I know you're the associate general counsel.

GOLD: Right.

COSSACK: Let me get right to the question, you've heard, we've heard both sides argue the constitutionality versus what's necessary reform. Is there a perfect answer that would be constitutional?

GOLD: Well, among the, part of the perfect answer has to be is that you don't limit speech by individuals and groups that have a legitimate reason to participate fully in the political process, to comment on candidates, to comment on issues, and Professor Gold is right in that regard.

Leaving aside, there's a big difference between restricting speech and restricting transfers of actual cash from one party to another. There is a constitutional answer to this, but it has to include letting groups speak. Look what just happened. We were interrupted by a press conference by the White House Press Secretary. Candidates, the President, federal office holders have tremendous access to broadcast, to the media. We have to have, we can't be censored from our ability to pay to respond and address issues.

COSSACK: That brings us to an interesting question. Joel, should the media play a role in campaign finance reform, and I mean by that should the media be forced to donate time -- sorry, guys from the AFL, from AOL?

GORSA: Well, I think that may be where all of the campaign finance limits are headed. I mean after all, if you can limit the ACLU or corporations or unions or political parties, it's kind of like who's next? And you guys are next. I thought in a country where we had a First Amendment which said Congress shall make no law abridging the freedom of speech or of the press we shouldn't be considering these kinds of bills.

We should be trying to figure out ways to enhance speech and press rather than limit it and impose restrictions on it and the like.

And I need to say one other thing. The idea that this bill is a reform bill, I think that's a sham. This bill is an incumbents' protection act. This bill would insulate incumbents from being criticized by corporations or organizations or groups like the ACLU or the AFL-CIO within two months before an election. This bill would make it impossible for parties, which is the main source of support for challengers to incumbents, to help their challengers develop their issues.

In a number of other ways, the rules against coordinating between politicians and interest groups that want to talk to them about things that their members care about, in a number of ways these, this bill is designed to insulate incumbents, to protect them from criticism and to make it easier for them to be reelected. There's no reform in this bill, not to mention the ferocious First Amendment problems.

COSSACK: Ken, in a nutshell, the conflict between First Amendment and donation of money and free speech, is it ever going to be resolved?

GROSS: You know, as long as we define campaign money as protected by the First Amendment as the Supreme Court did, I don't think we're ever going to resolve this problem because you've got the First Amendment protection and as long as it's there, you can make all the laws in the world, but there's going to be a way around it.

COSSACK: All right, Ken, you get the last word.

That's all the time we have today. Thanks to our guests and thank you for watching. Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.



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