For those who, at first blush, might not see the link between the First Amendment and campaign spending, the court elaborated: “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”
To put it simply, enacting limits on what people can spend in an election ultimately limits the very discourse the First Amendment was designed to protect. For the framers of the Constitution, the highest form of speech—the one most needful of absolute protection—is political speech, particularly at those moments of national decision we call elections. Underneath my liberal colleagues’ efforts to regulate political speech through campaign finance reform measures was the great, untested premise that the collision of private interests with politics is somehow inherently corrupting. But what they weren’t (and still aren’t) able to understand is that the opposite is true. A government that spends multi-trillions of dollars a year is big enough to take away everything we’ve got. In the face of something so powerful, of course the public would want to elect somebody they agree with, to influence the course of legislation. To the maximum extent possible, the government needs to stay out of the way of that process, allowing everyone who wants to speak—politicians included—to do so as loudly as possible. Despite the argument offered by the Left, limiting a candidate’s speech does not level the playing field, it does the opposite. Like trying to place a rock on Jell-O, pushing down on one type of speech just raises that speech elsewhere, allowing someone else to control the discourse—the press, the billionaire, the special interests, the incumbent.
On a more personal level, my first run for the Senate brought these issues to light in a concrete way. I never would have been able to win my race if there had been a limit on the amount of money I could raise and spend. The only way a guy like me had a chance—a guy with no real political connections and no money, no strong political party apparatus to rely on, holding views opposed by the mainstream media and organized political groups like the labor unions—was to get around the inherent advantages of the liberal majority party by raising enough money to take my message directly to voters.
During my first term, I’d fought to kill a major campaign finance reform bill, and the experience had given me a little more self-confidence in those otherwise uncertain years. Now, in my second, up for debate was Boren-Mitchell, and it was awful. It included spending limits and public subsidies for congressional campaigns, essentially creating a tax-funded entitlement program to pay for political races. The Democrats had a lot riding on this measure. Campaign finance reform had been a significant feature of Bill Clinton’s presidential campaign, but here we were, two months before the 1994 election, and he hadn’t managed to enact one piece of legislation on it. The bill passed both the House and Senate, and before heading to the president’s desk, it needed to be referred to a conference where members of both houses would come together to iron out differences. At that time, the appointment of members of those conferences required three motions put to the Senate by the majority leader in a process that was typically a formality. But I had been spending a good bit of time with Bob Dove, a former parliamentarian whose job was to help advise Republican senators on procedure. The thing about guys in Dove’s position is that while they have an almost inexhaustible knowledge of parliamentary rules, they typically only answer the specific question they’re asked. However, one afternoon, Bob, Steven Law, my chief of staff at the time, and I were having a conversation about where things stood with the Boren-Mitchell bill when Bob said something that astonished us:
“Why does nobody think to debate the appointment of conferees? It’s never been done before in the Senate’s history, but it’s clearly a debatable motion.”
This was a stunning piece of news. These appointments were debatable motions that could be filibustered. And because the legislation had come up so late in the Senate’s session, the Democrats were running out of time. They needed to send the bill to conference, come up with a final bill, and send it to Clinton to sign all before the session ended and we left for recess. I sensed an opportunity.
Filibustering is sometimes presented as an obstructionist tactic by its opponents, but in my view, if legislation as awful as this bill is brought up for consideration, there is a duty to obstruct its passage. So when the first committee nomination was made, I announced my intention to filibuster the nomination, knowing the Democrats would invoke cloture. Under cloture, if three-fifths of the senators present vote to end a filibuster, it must end. But after cloture, you are allowed thirty hours of debate, with no single senator allowed to speak for more than one hour.
I conceived of the idea of using those thirty hours of debate post-cloture to stall the appointment of conferees. This would require a tremendous amount of organization. We couldn’t afford to lose control of the floor at any point, and because of the one-hour time limit, I couldn’t accomplish that myself. I went to work, organizing my colleagues, convincing people to take part in my plan, and lining up senators around the clock to show up and use their full hour. The other side was completely caught off guard, and they were furious. But on our side, as the members of my conference began to realize we’d figured out a novel way to beat this bill, a real esprit de corps developed. My staff helped prepare people’s speeches, and I set up cots in an anteroom off the Senate Chamber for anyone who’d committed to speak in the middle of the night—much like the idea of “going to the mattresses” in The Godfather. And we did it. We burned the clock for the full thirty hours and killed the motion.
When the second motion was up for approval, I thought we had a chance of defeating cloture this time because, unbeknownst to anyone but me, I had secured votes from a number of Democratic senators. But Bob Dole, the minority leader at the time, and Alan Simpson, the whip, thought I was wasting my time.
“We can’t win this,” Dole said. “Why are you spending so much effort on it?” But in the end, five Democrats voted against cloture, and we defeated the bill by filibustering the motion.
The experience was exhilarating, and I was extremely proud to have used the rules of the Senate to protect the First Amendment, and to keep congressional elections from being taken over by the government. I was, however, royally skewered in the media. Majority Leader George Mitchell blamed the Republicans, and me personally, for using obstructionist tactics to kill the bill—and he predicted that come the election in the fall, my actions would turn voters toward the Democrats.
He couldn’t have been more off the mark—the 1994 midterm elections would be the Republicans’ best elections in decades. Not only would we pick up eight seats in the Senate, and regain the majority, but much to everyone’s surprise, with a net gain of fifty-four seats in the House of Representatives, we also took the House for the first time since 1952. Meanwhile, the American people, and my colleagues in the Senate, were finally beginning to know who I was.
These efforts to stand my ground against campaign finance reform measures were the first of many that would come to earn me a moniker of which I’m quite proud: First Amendment Hawk. But a few months after Boren-Mitchell was defeated, a constitutional amendment was proposed to ban flag burning and I was faced with another First Amendment fight that would prove to be far more difficult.
When my father died in 1990, we held a service for him at the First Baptist Church in Shelbyville. Several hundred people came, and it was a very emotional day. I sat beside my mother as the pastor spoke. Before my father’s coffin was lowered into the ground, the American flag that had been draped over it was removed, folded, and presented to my mother and me. That flag is now one of my most prized possessions. It honors my father’s military service in World War II, when he fought to
protect the freedoms that flag represents, and it rests proudly on the mantel in my Senate office.
The same year my father died, my feelings about the flag in general, and that flag in particular, were so strong that I stood on the floor of the Senate and spoke in support of a constitutional amendment to ban the desecration of the flag. But when the 104th Congress came into session in 1995, and we were asked to consider just such an amendment, I strongly argued against it.
It’s never easy for a politician to change his mind, and when it comes to an issue such as the flag, which is all but guaranteed to stir people’s deepest patriotic sentiments, it’s even trickier.
I revere the American flag as a symbol of freedom, and I don’t share the slightest shred of sympathy with anyone who would dare desecrate it. To do so demeans the service of millions of Americans, including my father, and it’s an action that deserves rebuke and condemnation. But behind the flag is something much larger—the Constitution. When my father fought in Europe, he fought not for the flag itself, but for what it represents, including the freedom to express ourselves fully and to live our lives as free Americans. Our Founding Fathers believed the answer to offensive speech was not to regulate it, but to counter it with more speech, because no act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that. So altering our First Amendment, even for the worthy purpose of protecting the flag, was not—and is still not—something I could support.
When the amendment was proposed, I knew that as politically unpopular as it would be, especially in my own state, I had to oppose it. I was not willing to cherry-pick on the issue, arguing that political speech should be protected while offensive speech should be limited. Speech is speech, and it’s certainly not the role of government to decide what is offensive and what is not. To do so would not only weaken the First Amendment, it could also set a dangerous precedent for the entire Bill of Rights. If we successfully carve out an exception to one basic freedom, those who seek to curtail our Second Amendment rights—the right to bear arms—might carve out another. Or the right to own private property, as expressed in the Fifth Amendment, could come under assault.
My staff was concerned that I was going to vote in opposition to the amendment as reelection was looming, but this was too important to me, upcoming election or not. After all, we’ve had a regularly scheduled election every two years since 1788, and at any point in American history one could have said, “Oh, we can’t do this. The election’s coming up.” An election is always coming up and it should never dictate votes. So not only did I vote against the amendment, I became the lead proponent of defending flag burning as a constitutional right.
Not long after, I was invited to attend a campaign event at a VFW hall in south Louisville. Knowing how the audience of veterans was going to feel about my vote on this matter, it would have been a lot easier to turn down the invitation or to go and make excuses for how I had voted. Instead, I decided to confront the issue head-on. As I walked into the large, overly lit room crowded with about seventy-five veterans, I felt like Daniel heading into the lions’ den. But I did exactly what I’d come to do: I took my place behind the podium and spent the evening hearing from people who’d come to speak their minds. It wasn’t easy. The stories I heard were raw and emotional—stories about the battles that had taken people’s brothers and friends, about months and years spent away from wives and children, all in service to our country. I listened to every one of them, and when they were done, I spoke. I explained my position to them the same way I had to my colleagues in the Senate. What I was ultimately fighting for on this issue was not just our flag but what it represented: our freedom. You could not guarantee other freedoms by limiting one. It was a rough evening, but as I prepared to leave, a man approached me.
“I think you’re dead wrong and I don’t agree with you one bit,” he said. “But I admire you for coming here and defending your position.” I walked into the night, the warmth of his handshake on my palm. I knew I’d done the right thing, and though it wasn’t an easy or politically expedient decision to make, I felt sure of my decision. And quite sure my father would have been proud of me for making it.
As challenging—and politically risky—as my decision to stand firm in this instance was, I’d face my most challenging task not long after. In the summer of 1995, Kyle Simmons, my new press secretary, walked into my office, looking a little drained. “We just got a call from Schieffer,” Kyle said, referring to Bob Schieffer, who was then the moderator of Face the Nation.
“What’s his question?”
“He didn’t call with a question,” Kyle said. “But with a comment.”
“Okay, what’s that?”
“He says I’m making you look like shit.”
“Great work,” I said. “Keep it up.”
Whereas a few years earlier I would have been happy if even one reporter showed interest in my efforts, at this time, the phone calls wouldn’t stop. Journalists from across the country were calling to ask about the work that was monopolizing a fair amount of my time: investigating one of my Republican colleagues in my position as chairman of the Ethics Committee.
When I was interning with Senator Cooper in 1964, he was working to establish the Ethics Committee. Before 1964, ethics was not of great concern to the Senate and, in fact, things operated far differently than they do today. Virtually every senator had a source of outside income, and it wasn’t considered improper to give paid speeches or be affiliated with, and paid by, a law firm. But that would all change in 1964 in the wake of the Bobby Baker case.
Bobby Baker was Lyndon Johnson’s secretary for the majority, and a rather unsavory character. He was accused of bribery and arranging sexual favors in exchange for congressional votes and government contracts. His investigation fell to the Rules Committee, which was neither a particularly important nor interesting committee assignment. Either way, it wasn’t equipped to take on the task of investigating Baker, but as Cooper realized, that was the least of its problems. The makeup of the Rules Committee, like every committee in the Senate, is predicated on which party holds the majority. Its membership is based on a ratio that’s roughly in proportion to the two parties in the Senate, and the majority party controls all committees. Given this, Cooper foresaw the possibility of the majority going after members of the minority with no fear of reprisal, or, if a majority member was in trouble, simply using the force of the majority to thwart any investigation that might arise. Understanding the implications of this, Cooper went to work helping to establish the Ethics Committee. It would have six members, three Democrats and three Republicans, and four votes would be required to move forward. That would, of course, immediately provide protection for the minority against the tyranny of the majority in a misconduct case.
Back in 1993, I’d been asked by Bob Dole to serve as vice chairman of the committee, and after we won the majority in the Senate after the 1994 elections, I became committee chair. At the time, there was a very difficult case in progress. Bob Packwood—a Republican from Oregon who was first elected to the Senate in 1968, at age thirty-six—had come before the Ethics Committee in December of 1992, after the Washington Post published allegations of sexual misconduct. Packwood issued a general apology and sought treatment for alcoholism afterward, but it was still up to us to look into the details and decide if any action needed to be taken.
Investigating Packwood was not, to put it lightly, an enviable task. He was a smart and capable guy, as well as the chairman of the Finance Committee, arguably the most influential committee in the Senate. I also knew Bob personally, having first gotten to know him when I worked in Marlow Cook’s office. Since becoming a senator myself, Packwood and I had been allied on a number of issues, like campaign finance reform.
Kyle came on board in the midst of this, and from day one he had a clear mandate from me: do not speak to the press abou
t it. He’d later tell me he felt as if he’d been hired as the press secretary for the CIA, that’s how silent we were on the matter. This was important not only as a matter of honoring the privacy of my friend, but also as a matter of Senate procedure. It’s a tradition to this day that the deliberations of the Ethics Committee are entirely confidential. We had to remember at all times that this was not a trial, but a private process.
Unfortunately, because of the number of charges against Bob, and the salacious nature of those charges, there was tremendous interest from the press. Journalists, as well as some of my colleagues, assumed I was keeping the details quiet in order to sweep the matter under the rug. Senators Barbara Boxer from California and Carol Moseley Braun from Illinois were particularly adamant that we hold public hearings. Senator Boxer even threatened the committee, saying that if we didn’t vote to make our hearings public, she would offer an amendment on the floor of the Senate forcing the issue.
In the history of the committee, there wasn’t one example of the full Senate trying to micromanage or control the committee’s decision. In any important case, the Ethics Committee would finish its work and if Senate floor action was required, the chairman would bring the issue to the floor. Senator Boxer obviously wanted to ensure we followed the right path, and thought that flouting procedure was good politics in the service of justice. But I found it highly regrettable, especially since I had no intention of sweeping this matter under the rug. In fact, I was considering what to do very seriously. (Neither Senator Boxer nor I could have predicted that two decades later, we’d find ourselves reminiscing about this early intersection of our Senate careers over dinner and drinks, during our efforts to jointly pass a multi-year highway bill.)
The Long Game Page 10