Feingold bill that will significantly reduce the major problems of soft money and phony issue ads.

The Chairman. Thank you, Mr. Morrison.

Dean Sullivan, you are familiar, I think, with the FEC nomination of Professor Bradley Smith. From what I hear in listening to you and from what I have heard in listening to him, your views on the First Amendment and the Buckley decision are quite similar. Ms. Sullivan. Yes.

The Chairman. Interestingly, Professor Smith's hearing occurred on the very day your op-ed piece in the New York Times appeared in effect pointing out that the now infamous Wiley Brothers issue ads in proximity to the New York Presidential Primary were protected First Amendment speech. So I raise the issue whether one could advocate that that was protected First Amendment speech and still be eligible for the Federal Election Commission.

To my amazement, some Senators said no, which puts us in the curious position that Senators in consideration of the Bradley Smith nomination may take the view that the First Amendment views of the Dean of Stanford Law School and the American Civil Liberties Union, if held by a nominee for the Federal Election Commission, could make him ineligible for service.

I find that rather astonishing, but that gives you a sense of where this debate has been in recent weeks. I really do not have a question, but rather just wanted to make the observation, even though it is shocking to you.

You might not be eligible for the Federal Election Commission around here.

Senator Dodd. I suspect she may have taken that position just to exclude herself.

[Laughter.]

Senator Dodd. That is a sought-after position.

Ms. Sullivan. Mr. Chairman and Senator Dodd, I am very happy with the job I have.

The Chairman. I would not trade it if I were you anyway. But it is astonishing that we have some members of the Senate, in effect, arguing that your view and the view of the ACLU, and the view of Professor Bradley Smith on the First Amendment might somehow disqualify you for service on the Federal Election Commission. That gives you sort of a sense of the level of the debate around here. It is sometimes rather frustrating.

But I want to go, Dean, to the corruption issue that you raised. My own personal view, having watched this over the years, is that the appearance of corruption is whatever the New York Times says it is. I am interested in what, in your opinion, is the appearance of corruption, and do you think an appearance of corruption could be created where there is no corruption whatsoever? For example, I think it would be fair to say that there was an appearance of communism during the McCarthy era, an appearance of communism. But, in fact, there was no widespread Communist infiltration of the U.S. Government. There certainly was a widespread appearance of it.

Do you think it would have been appropriate for the Government to restrict the constitutional rights of American citizens in the 1950s based on the appearance of communism created by the stir

ring speeches and news coverage of Senator Joe McCarthy? After all, no one would doubt that there was clearly an appearance of communism. Ultimately, is there the potential that a reformer could actually be both the arsonist and the fire fighter at the same time, both spreading the disease and the cure simultaneously?

Do you think that an appearance of corruption could be created by the media running editorials and articles worth hundreds of thousands, if not millions, of dollars related to a candidate in proximity to an election claiming that such candidate was corrupt?

If a Senator were to meet with the New York Times on Monday, introduce a bill on Tuesday, and then get a favorable editorial disseminated to hundreds of thousands of readers on Wednesday, with a value of hundreds of thousands of dollars to the candidate, would that mean such access equalled to corruption or the appearance of corruption?

I would like you to elaborate further about this whole corruption issue and the appearance of corruption, in light of what I have just said.

Ms. Sullivan. Mr. Chairman, I would be happy to do that. You put your finger on the heart of the problem here, and that is that normally we do not think that free speech may be restricted based on an appearance of danger. And you refer to the major debate that led us to take that view. For most of this century we had a debate about whether free speech could be restricted because it might tend to incite people to be opposed to the Government or in favor of its overthrow.

And in a long-fought battle, we came to the conclusion that, no, we cannot do that. The experience of, first, the Alien and Sedition. Acts long ago, but more recently, the red scare and the fears over communism in the fifties led us to restrict a lot of speech based on specters, and ghosts, and fears and appearances. And the Supreme Court came to the conclusion in that debate that you cannot restrict speech based on appearances or specters or fears. You can restrict speech, even if it might have subversive effect, only when it is a clear and present danger, an imminent danger. That is the Brandenberg decision in 1967.

I fear that we are repeating some of the same errors in the campaign finance debate. The Supreme Court in Buckley said you can restrict contributions based on corruption or the appearance of corruption, and more recently reaffirmed that view in the Shrink Missouri Government decision this year.

And we now have a set of lower court opinions and FEC rulings that do make the same mistake we made in the subversive speech context. They say, "Well, does this ad maybe have a bad tendency to lead people to vote for a candidate or against a candidate?" And, again, I would just repeat that I think the Framers would be quite shocked to think that inciting people to vote for or against a candidate is a bad thing. They might have agreed that inciting people to overthrow their Government is a bad thing, but inciting people to vote for or against a candidate is not a bad thing. We should not go further down that route through adding new pieces of reform legislation that try to wipe out more ads because they might have a bad tendency to incite people to vote.

Now, on that point, I must respectfully disagree with Mr. Morrison, whom I have the greatest respect for. He really tried to say to you that the Supreme Court has authorized regulations of any speech that is likely to effect Federal elections. And with all due respect, that is not what the Supreme Court has said in its socalled corruption rulings. And, again, by corruption, it is a very misleading word. What they really mean is unequal influence, not lining anybody's pockets. Nobody thinks this is Tammany Hall, the United States Senate.

It is not the case that the Supreme Court has said any speech may be limited if it is likely to affect a Federal election. Rather, what the Supreme Court has said is that contribution limits may be upheld in order to prevent quid pro quo extraction of promises from candidates. That is what is meant by corruption. And hard money is thought to have that effect. The Supreme Court has not said anything to suggest that it thinks that soft money is likely to have that effect. And it would not do anything to existing hardmoney limits for a court to decide that soft money needs to be protected.

One last word on Mr. Smith. I do think Mr. Smith's views are in the mainstream of constitutional opinion. I like to think that I am enough in the mainstream of constitutional opinion that our agreement on many points would place us both there. And I think it is a good thing, not a bad thing, to have people who are very attuned to constitutional values in Government positions, just as we would think it is a good thing to have a prosecutor who thinks very highly of the Fourth Amendment and wants to make sure searches are always reasonable, maybe more so than some of his colleagues. It is certainly good to have one of those prosecutors in the shop, and it certainly would be a good thing to have one commissioner at least who has those views. I do not see any harm to the Commission in his appointment. In fact, I think his articles are very thoughtful and have made a major contribution to the debate, and certainly authorize him to be an expert in the field.

The Chairman. One other area that I am constantly mystified by. The reformers say we cannot allow democracy to founder on the shoals of a campaign finance system that undermines public confidence in the Government. According to a study published by Oxford Press in 1999, just last year, that was coordinated by the faculty of the Kennedy School at Harvard, public trust in Government and cynicism about Government predate not only soft money, but also the events that prompted the original Federal Election Campaign Act.

And we are often subjected to the argument that if we will just pass this or that version of campaign finance reform, public cynicism is going to be diminished and confidence in the Government is going to go up.

According to the study I just alluded to, public trust in the Federal Government has suffered a fairly steady decline since 1958, when 75 percent of the American people trusted the Federal Government most of the time. By the end of the Carter administration, this number dropped to approximately 25 percent. The trend was temporarily reversed during the Reagan years, but during subse

quent administrations again declined to near pre-Reagan levels of distrust.

The fact that our campaign finance system and soft money have not caused a precipitous drop in public trust and an unprecedented increase in cynicism is confirmed by an even more recent study by two Harvard professors that is just now going to press with the Princeton University Press. In fact, levels of public trust in Government are currently higher than they were in 1994 or at the end of the Carter administration in 1980. Simply put, the best and most recent scholarship establishes that public distrust of Government predates our current campaign finance system and soft money and that the advent of our current campaign finance system and soft money have not accelerated the relatively steady decline in public trust that began in 1958.

So the question is, suppose Congress enacted the type of regulations that reform groups dream of, such as spending limits, public subsidies for congressional candidates, advertising regulations, is there any empirical evidence to suggest that the American people would be, in fact, less cynical?

Ms. Sullivan. Is that directed to me?

The Chairman. Yes.

Ms. Sullivan. Not that I know of, Mr. Chairman. I do think it is important to point out though that it cannot increase public trust in Government to keep driving money away through ever-increasing regulation, driving the money away from the candidates who are accountable to the people at the polls to other sources of political expenditure. It cannot increase trust in Government to drive the money away from the very candidates that the people have

some say over.

And, again, these talk about trust in Government, you are quite right to point out that there can be many sources of distrust in Government, including the reign of a popular President who said that big Government is the problem, not the solution. There are many countries that are very successful democracies that have low voter turnout. Switzerland is an example. It can be an indication of the success of a Government, not its failure, if people are relatively willing to stay home from the polls. Facts are often ambigu

ous.

But I think the key point for today is to ask whether you should go farther down the road that the Congress has taken over the last 30 years to try to shut down more loopholes. I think if anyone thinks that is going to increase trust in Government, that, with all due respect, is mistaken. It cannot increase trust in Government to drive politics away from the democratic process.

The candidates who run for election before the people into evermore invisible and subterranean forms outside of that process, that cannot increase trust in Government. It can only increase disaffection when people say, "I am not sure who is running these ads. Won't somebody please tell me who these people really are?" Well, if the money went to the candidates, we would always know where the speech was really coming from. It would be coming from the candidate, and that would be served by lifting or abolishing contribution limits, not trying to add ever-more limits to the picture.

The Chairman. At the risk of answering my own question, I happen to have some data that I wanted to share with you and my colleagues that I think you would be interested in from some other societies that have tried the kinds of legislation that I am sure Mr. Morrison and his group would advocate.

Canada has spending limits for all national candidates, and parties and media subsidies, coupled with advertising restrictions. Despite these measures, the number of Canadians feeling that "the Government does not care what people like me think" has grown from 45 percent to approximately 67 percent. Confidence in the national legislature has declined from 49 percent to 21 percent, and the number of Canadians satisfied with their system of Government has declined from 51 percent to 31 percent after enacting these kinds of measures to restore the confidence of the people in their Government.

In Japan, election campaigns, including campaign financing, are governed by a set of laws that are the most restrictive among all democratic nations. Following the imposition of these regulations, the number of Japanese who said they had no confidence in legislators rose to 70 percent. Only 12 percent of Japanese believe that Government is responsive to people's opinions and wishes and the percentage of Japanese satisfied with the national political system has fallen to 5 percent.

In France, they have regulations almost identical to Japan's, and people's confidence in Government and political institutions continues to decline and voter turnout continues to decline.

In Sweden, they do not permit fundraising or spending by candidates and the Government subsidizes the parties. Since these requirements have been in force, the number of Swedes disagreeing with the statement, "Parties are only interested in people's votes, not in their opinions," has declined from 51 percent to 28 percent. The number of citizens who have confidence in the Swedish parliament has declined from 51 percent to 19 percent.

Now, it raises the question, if that is one of the rationales, leaving aside the Constitution for a minute, which we have discussed extensively, if that is one of the rationales for this, I am wondering if any of the three of you have any evidence anywhere in the world. where passing the kinds of legislation that we have considered over the last few years, and fortunately, from my point of view, have not passed, would cure this disease that we are talking about, which is skepticism or cynicism about the Government?

Mr. Morrison, do you want to take a shot at that?
Mr. Morrison. Certainly, Senator.

First, I was asked here to testify about the constitutionality of the various proposals that are on the table, and I am here to testify about them. I do not purport to be an expert on the kind of matters that you have discussed. I think it is quintessentially a political matter as to how the laws should be written and executed.

I do want to take one point of privilege, Mr. Chairman. You suggested, by referring to these various laws that have spending limitations and would prohibit independent expenditures, that I, personally, and Public Citizen would support them. Speaking only for myself, I have written my views on this topic in an article, "What if Buckley were Overruled," that I would like to have submitted for