Patients' Privacy Protection Act of 2004

Mr. President, I am pleased to be joined by my good friend and colleague from Wisconsin, Senator Feingold, and our good friends who lead the campaign finance reform fight in the House, Representatives Shays and Meehan, in introducing a bill to end the illegal practice of 527 groups spending soft money on ads and other activities to influence Federal elections.

As my colleagues know, a number of 527 groups have been raising and spending substantial amounts of soft money in a blatant effort to influence the outcome of this year's Presidential election. These activities are illegal under existing laws, and yet once again, the Federal Election Commission (FEC) has failed to do its job and has refused to do anything to stop these illegal activities. Therefore, we must pursue all possible steps to overturn the FEC's misinterpretation of the campaign finance laws, which is improperly allowing 527 groups whose purpose is to influence Federal elections to spend soft money on these efforts.

Last week, we filed a lawsuit to overturn the FEC's failure to issue regulations to stop these illegal practices by 527 groups. President Bush and his campaign filed a similar lawsuit against the FEC last week as well, and I also appreciate President Bush's support for the legislative effort we begin today on 527s. We are introducing legislation that will accomplish the same result. We are going to follow every possible avenue to stop 527 groups from effectively breaking the law, and doing what they are already prohibited from doing by longstanding laws.

The bill we introduce today is simply. It would require that all 527s register as political committees and comply with Federal campaign finance laws, including Federal limits on the contributions they receive, unless the money they raise and spend is only in connection with non-Federal candidate elections, State or local ballot initiatives, or the nomination or confirmation of individuals to non- elected offices.

Additionally, this legislation would set new rules for Federal political committees that spend funds on voter mobilization efforts effecting both federal and local races and, therefore, use both a federal and a non-Federal account under FEC regulations. The new rules would prevent unlimited soft money from being channeled into Federal election activities by these Federal political committees.

Under the new rules, at least half of the funds spent on these voter mobilization activities by Federal political committees would have to be hard money from their Federal account. More importantly, the funds raised for their non-federal account would have to come from individuals and would be limited to no more than $25,000 per year per donor. Corporations and labor unions could not contribute to these non- federal accounts. To put it in simple terms, a George Soros could give $25,000 per year as opposed to $10 million to finance these activities.

Let me be perfectly clear on one point here. Our proposal will not shut down 527s, it will simply require them to abide by the same Federal regulations every other Federal political committee must abide by in spending money to influence Federal elections.

It is unfortunate that we even need to be here introducing this bill today. This legislation would not be necessary if it weren't for the abject failure of the FEC to enforce existing laws. As my colleagues well know, some organizations, registered under section 527 of the Internal Revenue Code, have had a major impact on this year's presidential election by raising and spending illegal soft money to run ads attacking both President Bush and Senator Kerry. The use of soft money to finance these activities is clearly illegal under current statute, and the fact that they have been allowed to continue unchecked is unconscionable.

The blame for this lack of enforcement does not lie with the Congress, nor with the Administration. The blame for this continuing illegal activity lies squarely with the FEC. This agency has a duty to issue regulations to properly implement and enforce the nation's campaign laws--and the FEC has failed, and it has failed miserably to carry out that responsibility. The Supreme Court found that to be the case in its McConnell decision and Judge Kollar-Kotelly found that to be the case in her recent decision overturning 15 regulations incorrectly adopted by the FEC to implement the new BCRA law. That is why a Los Angeles Times editorial today stated that, ``her decision would make a fitting obituary for an agency that deserves to die.''

It should be clear by now why we have introduced legislation to abolish the FEC and replace it with a new enforcement agency. And we will be conducting a major effort starting at the beginning of next year to enact our bill to get a new, true enforcement agency and to pass the 527 reform act we are introducing today. We are not going to allow the destructive FEC to continue to undermine the nation's campaign finance laws as it has been consistently doing for the past two decades. In the mean time, given the unmitigated failure of this agency, I believe that its Chair, Bradley Smith and its Vice Chair, Ellen Weintraub, should resign and recognize that they have failed to carry out their responsibilities as public officials.

Opponents of campaign reform like to point out that the activities of these 527s serve as proof that the Bipartisan Campaign Reform Act of 2002 (BCRA) has failed in its stated purpose to eliminate the corrupting influence of soft money in our political campaigns. Let me be perfectly clear on this. The 527 issue has nothing to do with BCRA, it has everything to do with the 194 law and the failure of the FEC to do its job and properly regulate the activities of these groups.

As further evidence of the FEC's lack of capability, let me quote from a couple of recent court decisions which highlight this agency's shortcomings. First, in its decision upholding the constitutionality of BCRA in McConnell v. FEC, the U.S. Supreme Court stated that the FEC had ``subverted'' the law, issued regulations that ``permitted more than Congress had ever intended,'' and ``invited widespread circumvention'' of FECA's limited on contributions. Additionally, just this past Saturday, a federal district court judge threw out 15 of the FEC's regulations implementing BCRA. Among the reasons for her actions were that one provision ``severely undermines FECA'' and would ``foster corruption'', another ``runs completely afoul'' of current law, another would ``render the statute largely meaningless'' and, finally, that another had ``no rational basis.''

The track record of the FEC is clear, and by their continued stonewalling, the Commission has proven itself to be nothing more than a bureaucratic nightmare, and the time has come to put an end to its destructive tactics. The FEC has had ample, and well documented, opportunities to address the issue of the 527s illegal activities, and each time they have taken a pass, choosing instead to delay, postpone, and refuse to act.

Enough is enough. It is time to stop wasting taxpayer's dollars on an agency that runs roughshod over the will of the Congress, the Supreme Court, the American people, and the Constitution. We've fought too long and too hard to sit back and allow this worthless agency to undermine the law.

So, here is the bottom line: if the FEC won't do its job, and its commissioners have proven time and time again that they won't, then we'll do it for them. The bill Senator Feingold and I introduce today will put an end to the abusive, illegal practices of these 527s. And we will fight beginning next year to replace this rogue agency with a real enforcement agency.

I urge my colleagues to support swift passage of these bills and put an end to this problem once and for all.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today, I rise to introduce the Patients' Privacy Protection Act, legislation that will close a loophole in the Federal Rules of Evidence and ensure that every American's medical records remain confidential. I want to acknowledge my friend Congressman Nadler who is introducing the House companion to this bill today as well as Senators Corzine, Wyden, Lautenberg, Boxer, Jeffords, and Mikulski who join me as original cosponsors of this critical measure.

I began exploring this issue when I learned that Attorney General John Ashcroft had subpoenaed the confidential medical records from thousands of women around the country to defend the first-ever Federal abortion ban in Federal court. The fact that the women in question were not a party to the lawsuits did not deter him.

Such a deliberate intrusion into people's medical privacy record is deeply disturbing. Americans deserve full confidence that the government is not looking into their medical records. Without such an assurance, how will Americans trust their doctors? What procedures, discussions, and diagnoses will they avoid for fear that these records could shame them or adversely impact their future if unearthed?

At issue in this bill is what a reasonable person should expect when they walk into a doctor's office. That person expects that what they say to her doctor stays with her doctor. Only because of that confidence are people able to be honest. And only through that honesty are people able to obtain the healthcare they need.

The right to private medical records is an issue that, in rhetoric at least, has broad support on both sides of the partisan divide. In fact, it was President Bush himself who, as recently as 2001 during a statement on the Medical Privacy Rule said, ``I believe that we must protect both vital health care services and the right of every American to have confidence that his or her personal medical records will remain private.''

Even Attorney General Ashcroft has made strong statements in support of the privacy of medical records. Back in 1998, in a press release put out by his Senate office in which he is referred to as a ``consistent champion of privacy rights,'' then-Senator Ashcroft says ``We should guarantee that the federal government does not undermine an individual's fundamental right to privacy . . . Without privacy protections in place, people may be discouraged from seeking help or taking advantage of the access to health care.''

I agree. But unlike Attorney General Ashcroft, I believe preserving patient privacy entails more than issuing a press release. Patient privacy doesn't end when it conflicts with a political agenda, no matter how deeply felt that conviction.

Throughout this Administration, we have seen Attorney General Ashcroft disregard civil liberties in the name of preventing terrorism. But through this action, we see him disregarding civil rights in the name of outlawing abortion. This is a very slippery slope that, if unchecked, could affect not just women seeking reproductive healthcare, but all Americans. Over the past few months, the Department of Justice has asserted that federal law does not recognize the doctor-patient privilege, and that individuals no longer have a reasonable expectation of medical privacy. These are alarming statements.

Thankfully, Attorney General Ashcroft is not being allowed to run roughshod over our right to privacy and medical confidentiality. On March 5, 2004, a San Francisco court ruled that the Department of Justice has no right to view the records in question in the Planned Parenthood Federation of America lawsuit against the abortion ban. The decision issued by Judge Phyllis Hamilton soundly affirmed women's right to privacy. She said, ``There is no question that the patient is entitled to privacy and protection. . . . Women are entitled to not have the government looking at their records.''

Nevertheless, we cannot take a chance that once again, when it suits the political or ideological interests of this Administration or Administrations to come, the federal government will intrude upon the most personal of information. That is why I stand before you today.

The Patient Privacy Protection Act of 2004 is very simple. It states that a patient's medical records and any communication about their medical history are confidential unless a judge determines that the public interest in those records being made public significantly outweighs the patient's privilege. In the cases where a judge orders the records to be disclosed, the court shall, to the extent practicable, eliminate any and all personally identifiably information.

I am pleased to be introducing this simple, straightforward, common- sense piece of legislation. I do not believe there is a Member of either Chamber of Congress who in good faith could oppose this measure, and I look forward to working with my colleagues, Representative Nadler and others to see it enacted into law expediently.

Mr. President, today, I rise to introduce the Patients' Privacy Protection Act, legislation that will close a loophole in the Federal Rules of Evidence and ensure that every American's medical records remain confidential. I want to acknowledge my friend Congressman Nadler who is introducing the House companion to this bill today as well as Senators Corzine, Wyden, Lautenberg, Boxer, Jeffords, and Mikulski who join me as original cosponsors of this critical measure.

I began exploring this issue when I learned that Attorney General John Ashcroft had subpoenaed the confidential medical records from thousands of women around the country to defend the first-ever Federal abortion ban in Federal court. The fact that the women in question were not a party to the lawsuits did not deter him.

Such a deliberate intrusion into people's medical privacy record is deeply disturbing. Americans deserve full confidence that the government is not looking into their medical records. Without such an assurance, how will Americans trust their doctors? What procedures, discussions, and diagnoses will they avoid for fear that these records could shame them or adversely impact their future if unearthed?

At issue in this bill is what a reasonable person should expect when they walk into a doctor's office. That person expects that what they say to her doctor stays with her doctor. Only because of that confidence are people able to be honest. And only through that honesty are people able to obtain the healthcare they need.

The right to private medical records is an issue that, in rhetoric at least, has broad support on both sides of the partisan divide. In fact, it was President Bush himself who, as recently as 2001 during a statement on the Medical Privacy Rule said, ``I believe that we must protect both vital health care services and the right of every American to have confidence that his or her personal medical records will remain private.''

Even Attorney General Ashcroft has made strong statements in support of the privacy of medical records. Back in 1998, in a press release put out by his Senate office in which he is referred to as a ``consistent champion of privacy rights,'' then-Senator Ashcroft says ``We should guarantee that the federal government does not undermine an individual's fundamental right to privacy . . . Without privacy protections in place, people may be discouraged from seeking help or taking advantage of the access to health care.''

I agree. But unlike Attorney General Ashcroft, I believe preserving patient privacy entails more than issuing a press release. Patient privacy doesn't end when it conflicts with a political agenda, no matter how deeply felt that conviction.

Throughout this Administration, we have seen Attorney General Ashcroft disregard civil liberties in the name of preventing terrorism. But through this action, we see him disregarding civil rights in the name of outlawing abortion. This is a very slippery slope that, if unchecked, could affect not just women seeking reproductive healthcare, but all Americans. Over the past few months, the Department of Justice has asserted that federal law does not recognize the doctor-patient privilege, and that individuals no longer have a reasonable expectation of medical privacy. These are alarming statements.

Thankfully, Attorney General Ashcroft is not being allowed to run roughshod over our right to privacy and medical confidentiality. On March 5, 2004, a San Francisco court ruled that the Department of Justice has no right to view the records in question in the Planned Parenthood Federation of America lawsuit against the abortion ban. The decision issued by Judge Phyllis Hamilton soundly affirmed women's right to privacy. She said, ``There is no question that the patient is entitled to privacy and protection. . . . Women are entitled to not have the government looking at their records.''

Nevertheless, we cannot take a chance that once again, when it suits the political or ideological interests of this Administration or Administrations to come, the federal government will intrude upon the most personal of information. That is why I stand before you today.

The Patient Privacy Protection Act of 2004 is very simple. It states that a patient's medical records and any communication about their medical history are confidential unless a judge determines that the public interest in those records being made public significantly outweighs the patient's privilege. In the cases where a judge orders the records to be disclosed, the court shall, to the extent practicable, eliminate any and all personally identifiably information.

I am pleased to be introducing this simple, straightforward, common- sense piece of legislation. I do not believe there is a Member of either Chamber of Congress who in good faith could oppose this measure, and I look forward to working with my colleagues, Representative Nadler and others to see it enacted into law expediently.

Mr. President, I am pleased to once again be working with my partner in reform, the Senator from Arizona, Senator McCain, and also with the Senator from Connecticut, Senator Lieberman, who was so instrumental in getting the 527 disclosure bill passed in 2000. We are introducing today the 527 Reform Act of 2004. This bill will do what the FEC could and should do under current law, but, once again, has failed to do.

It sometimes seems like our mission in life is to clean up the mess that the FEC has made. We had to do that with BCRA, the Bipartisan Campaign Reform Act, which passed in 2002, closing the soft money loophole that the FEC created in the late '70s and expanded in the '90s. We are doing it again with the regulations that the FEC put in place after BCRA passed. Just this past weekend an extraordinary court decision came down that threw out 15 of the 19 FEC regulations challenged by Representatives Shays and Meehan in a lawsuit under the Administrative Procedures Act. That decision was an extraordinary rebuke to a Federal agency.

And now we are here to introduce a bill that will make absolutely clear that the Federal election laws apply to 527 organizations. Let me emphasize one thing. We believe that current Federal election law requires these groups to register as political committees and stop raising and spending soft money. But the FEC has failed to enforce the law, saying it is too complicated or that it is too late in the election cycle to take action. Those excuses are unacceptable, so we must act in the Congress.

This bill will require all 527s to register as political committees unless they fall into a number of narrow exceptions. The exceptions are basically for groups that Congress exempted from disclosure requirements because they are so small or for groups that are involved exclusively in State election activity.

Once a group registers as a political committee, certain activities such as ads that mention only Federal candidates will have to be paid for solely with hard money. But the FEC permits Federal political committees to maintain a non-Federal account to pay a portion of the expenses of activities that affect both Federal and non-Federal elections. Our bill sets new allocation rules that will make sure that these allocable activities are paid for with at least 50 percent hard money.

Finally, the bill makes an important change with respect to the non- Federal portion of the allocable activities. We put a limit of $25,000 per year on the contributions that can be accepted for that non-Federal account. And we prohibit corporate or union funds from being given to those non-Federal accounts. So no more will million dollar soft money contributions be used to pay for get-out-the-vote efforts in the Presidential campaign.

Nothing in this bill will affect 501(c) advocacy groups. The bill only applies to groups that claim a tax exemption under section 527. And it would be effective in the next election cycle, not this one.

The soft money loophole was opened by FEC rulings in the late '70s. By the time we started work on BCRA, the problem had mushroomed and led to the scandals we saw in the 1996 campaign. When we passed BCRA, I said we would have to be vigilant to make sure that the FEC enforced the law and that similar loopholes did not develop. That is what we have been doing for the past 2 years, and what are again doing today.

I have no doubt that if we don't act on this 527 problem now, we will see the problem explode into scandals over the next few election cycles. This time we're not going to wait.

I ask unanimous consent that the text of our bill and a section-by- section analysis be printed in the Record.

Mr. President, I rise today as a cosponsor of the legislative efforts of my friends and colleagues Senators McCain and Feingold to close the ``527'' loophole that threatens the health of our Federal elections by allowing unlimited amounts of soft money to dictate the terms of debate in defiance of the letter and spirit of the McCain-Feingold Bipartisan Campaign Reform Act.

These 527 groups have become nothing more than multi-million dollar megaphones advocating the special interests of wealthy individuals and groups. And it will only get worse in years to come.

527 groups have been growing since the mid-1990s thanks to loopholes resulting in part from puzzling decisions by the Internal Revenue Service and the Federal Election Commission.

The 527 groups would get tax-exempt status from the IRS by claiming they existed to influence elections. But then they would avoid election disclosure laws by denying to the Federal Election Commission they were trying to influence elections because they did not use the magic words like ``vote for'' or ``vote against.''

The result was a tax exemption for groups influencing Federal campaigns, but a lack of disclosure so voters did not know who the groups were, who they gave their money to and where they got their money from.

Congress partially closed this loophole in June 2000, by passing the first significant campaign finance reform measure in a quarter century. This legislation was passed out of the Government Affairs Committee, of which I was chairman at the time, and signed into law later that year by President Clinton.

The new law required 527 groups to give notice of their intent to claim tax-exempt status; to disclose information about their large contributors and expenditures; and to file annual informational returns along the lines of those filed by virtually all other tax-exempt organizations.

But this only partially closed this loophole. Despite the McCain- Feingold campaign finance reforms, 527s can still raise unlimited amounts of cash from just a few wealthy individuals or groups whose interests and motivations are likely unknown to the American public. The Federal Election Commission could have closed this loophole but has failed to act despite massive evidence that 527s are skirting Federal election law.

This is both an end-run around our campaign finance laws as well as a direct assault on our democracy. Elections should be determined by millions of individual voters who cast their ballots uninfluenced by the millions of dollars of advertising paid for a by a few individuals or groups with special interests.

Reform of the 527 loophole does not mean silencing these groups or taking away their right to put their message on the air. All this reform would require from 527s is to follow the same rules as other political advocacy groups when it comes to raising and spending money on federal elections. The money must come from individuals in amounts no larger than $5,000, with no contributions from corporations or unions allowed.

If the 527 groups' support is as widespread as they claim, they will have no problem getting their message out.

We started the job in 2000. We knew it was not enough. Now it's time to finish the job and get unlimited soft money out of the system.

The voices of millions of average Americans should not be reduced to a whisper because they can't afford the price of the pulpit.

And the voices of a few should not shout like thunder because they have the money to command the air waves.