Starr v Feingold: The Future of Political Reform


In his 1931 autobiography, San Francisco native and Calbuzz hero Lincoln Steffens recalled visiting many years earlier with Israel W. Durham, the boss of Philadelphia, who was near the end of his days:

“When I said that one business man’s bribe was nothing but a crime, but a succession of business briberies over the years was a corruption of government to make it represent business, he said thoughtfully, ‘Then contributions to campaign funds are more regular and, therefore, worse than bribes!’”

The story came to mind the other evening when Calbuzz listened to the unctuous Kenneth Starr  — former President Bill Clinton’s Grand Inquisitor and infamous anti-gay marriage proponent — expound upon the virtues of the US Supreme Court’s decision in Citizens United v. Federal Election Commission as an historic affirmation of the First Amendment.

Needless to say, the other panelist, former US Sen. Russ Feingold, co-author of the famous McCain-Feingold law limiting federal campaign contributions, was far less enamored of Starr’s defense of freedom of speech for corporations, but rather described the decision as upholding the right of corporations to make “unlimited secret contributions.”

The occasion was a discussion titled “The Future of Political Reform” at Stanford, on the eve of the 40th anniversary of California’s Political Reform Act, organized by FPPC Chairwoman Ann Ravel and sponsored by the Stanford Law School and the Bill Lane Center for the American West.

Glimpse behind-the-scenes: We went to the event hoping to hear some discussion of the future of political reform – a subject in which Calbuzz has a direct interest since some of the issues involve how campaign spending is done on the internet. And we were delighted to be included in the very small private reception before the panel, that included (among others) Starr and Feingold, moderator and political law scholar Pamela Karlan of Stanford, Bill Lane Center director Bruce Cain, campaign law aces Robin Johansen and Chuck Bell, Judge Miguel Marquez, Palo Alto City Councilwoman Liz Kniss and always-around-the-ball consultant Jude Barry. Just lemonade to drink, but the marinated shrimp were especially tasty.

Unfortunately, once the panel got cranked up, there was very little discussion of the future of political reform. As our old friend Bruce Cain said at the start, perhaps the event should have been titled “Does Political Reform Have a Future?”  It would have been informative, for example, to hear more about the steps California, New York, Alaska and Maine have begun taking to force tax-exempt advocacy organizations and trade associations to fully disclose contributions and spending, as the LA Times has reported.

Rather, the discussion centered on the giant boulder in the road to political reform – Citizens United, the right-wing ramrod masquerading as a non-profit, founded in 1988 with major funding from Charles and Bill Koch, the Rosenkranz and Guildenstern of plutocratic politics.

Feingold basically argued that political reform was working well until John Roberts and four other members of the Supreme Court decided to take a case that could easily have been dismissed or overruled on narrow grounds and used it to engineer a right-wing brake on democratic reforms that were working to limit secret corporate influence on American politics.

What’s wrong with Citizens United: Feingold, who lost his Senate seat from Wisconsin in 2010 after serving three terms, is a lecturer at Stanford Law School and founder of Progressives United whose mission is: “To stand up to the exploding corporate influence in our political system by organizing and amplifying the voices of those who believe that corporations have too much power, and by promoting solutions that ensure individual rights and democratic principles are upheld to the highest standards, even in the face of the lawless Citizens United Supreme Court decision.”

His agenda is simple: He’s an unreconstructed liberal from the progressive Wisconsin tradition, dedicated to grass-roots democracy. (Too bad he voted to confirm Roberts – his classmate at Harvard Law School – to the Supreme Court.) If he could wave a magic wand, he’d enact voluntary public financing for all federal campaigns with agreed-upon limits on spending.

Kenneth Starr, now president of Baylor University, would eliminate all campaign contribution and spending limitations. That’s what he calls a “system of free expression.” (See Steffens above)

But Starr’s role in American politics and jurisprudence reaches far beyond Citizen’s United. While Justice Anthony Kennedy wrote the majority opinion, it was Starr’s former political deputy – Roberts — who engineered argument on the case and placed it onto the court’s front burner.

As David Savage expertly explained in the Los Angeles Times, when Starr, then Solicitor General, hired Roberts to work for him back in 1989:

Together, Starr and Roberts pressed a strongly conservative legal agenda for 3 1/2 years.

They argued for limiting the scope of civil rights laws, ending race-based affirmative action, restoring some prayers to public schools and overruling Roe vs. Wade, the case that established a woman’s right to abortion.

They sought to make it harder for environmentalists to challenge the government in court. They intervened on the side of Operation Rescue to shield abortion protesters from being sued. And they joined Texas state lawyers in arguing that new evidence of a death row inmate’s “actual innocence” did not entitle him to reopen his case in federal court.

In the first right-to-die case to reach the Supreme Court, they intervened on the side of then-Missouri Gov. John Ashcroft to argue that state officials may keep a comatose woman alive over the objections of her family.

And as Irregular Times noted, Roberts and Starr were as thick as thieves:

The Federalist Society, to which John Roberts belonged and served in high roles such as member of the Washington D.C. steering committee, provided strong legal resources to the effort to impeach Bill Clinton for getting a blow job. At the time, the Federalist Society coordinated efforts with the most extreme right wing political organizations known in America. Ken Starr himself was also a member of the Federalist Society right along with John Roberts, and received assistance from the far right legal club just as John Roberts did.

Dont’ forget the stained blue dress: And who can forget Starr’s loathsome role in arguing at the California Supreme Court where he sought to save California’s unconstitutional ban on gay marriage?

That any right may be taken away from any group by a mere amendment passed by a bare majority of voters, with no filter of legislative deliberation required, as would be the case for a proposed constitutional revision.

This is just a sprinkling from Starr’s career as an avatar of right-wing ideology and judicial influence – his arguments inevitably set forth with the most genteel and reasonable-sounding delivery one could imagine. Such a lovely man with such a horrific agenda.

He wraps his antediluvian arguments in the sweetest of constitutional principles – standing forthright and shoulder-to-shoulder with the patriots as he argues that more speech is always better than less speech – unless he’s fighting for a school principal’s right to tear down a kid’s banner shouting BONG HiTS 4 JESUS” as he did in Morse v Frederick.

As for the future of political reform, obviously at the federal level something must be done to mitigate the effects of Citizens United. Since Starr proclaims himself all for disclosure, a good place to start would be for him to support a proposal – that Feingold heartily endorses – for the Securities and Exchange Commission to require disclosure of any and all political contributions made by any corporate entity. (After the panel, when we suggested to Feingold that he should recruit Starr to support this idea, he replied, “He’d have to be for it. I wish I’d thought of that.”)

The Steffens-Calbuzz alliance: Here in California, Calbuzz has laid out an approach for handling campaign communications made over the internet. As we have said on more than one occasion, when voters increasingly get their political information from online sources, they need to know if what they’re reading is bought and paid for.

This can all be done by regulating and requiring disclosure of campaigns and independent spenders without trampling the First Amendment rights of conveyors of news and analysis in print, over the airwaves or (ahem) online.

Ravel wants to preserve and expand California’s commitment to confronting actual and apparent corruption in politics. Eliminating anonymity entirely with explicit disclosures in greater detail and at more frequent intervals would help.

Just don’t let Ken Starr anywhere near the process.

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There are 10 comments for this post

  1. avatar sqrjn says:

    I comment when I disagree and I must post to contest your extremely unfair characterization of Rosencrantz and Guilderstern. Two hapless men caught up in the machinations of their superiors, they are certainly not comparable to the Koch’s. I may be under the spell of Tom Stoppard but I think any fair reading of the play puts R&G at several orders of magnitude less competent and machiavellian than the Koch’s.

  2. avatar Ernie Konnyu says:

    You Liberals who regularly and steadfastly bash corporations and the attorneys who protect and enhance corporation rights are enemies of American capitalism. You ignore that our corporations made our country the most economically successful Nation on Earth. So I imply that when you are fighting corporations you are engaged in a form of economic self-destruction.
    As long as we have a true market economy corporations can not really have, as you claim, too much power.

    You are fighting the wrong windmills Pancho.

  3. avatar JohnF says:

    Been awhile since I had heard about Starr. Last I knew, he was going to be the Dean of the Pepperdine Law School, I figured that would not last too long, since Malibu has way too many people not wearing much clothing a lot of time. A real prude all the way around. No wonder he does care much about gay rights, forces him to think about sex. But then again he kind of likes like that, he used to get rather excited about Bill and Monica.

  4. avatar cbarney says:

    los angeles prop c in the may 21 election is summarized thusly by the “proposition simplicfication committee”:

    “THE ISSUE: Shall the voters adopt a resolution that there should be limits on political campaign spending and that corporations should not have the constitutional rights of human beings and instruct Los Angeles elected officials and area legislative representatives to promote that policy through amendments to the United States Constitution?”

    there is in fact a lively movement, movetoamend.org, promoting a constitutional amendment stating that corporations are not people and money is not speech. makes a certain intuitive sense; try putting bp in jail for polluting the gulf, or talking your way into a pair of tickets for a giants game.

    • avatar sqrjn says:

      The problem is corporations are people, groups of people. Citizen United could have been decided differently, but Gods protect us from an amendment to the US constitution drafted by the citizens of West LA

    • avatar pjhackenflack says:

      Corporations are NOT people or groups of people — they are legal entities with legal rights and liabilities distinct from their employees and shareholders.

  5. avatar sqrjn says:

    Let’s accept your position, corporations are not people or groups of people, they have no rights but those which the government grants. The government could then lawful limit the speech of corporations in anyway, the restrictions could be based on content or be entirely arbitrary. Is there anything more odious than the government being able to limit communications in that fashion?

    Citizen United was a non-profit corp formed for political activism. The law they challenged exempted “media organizations”. The restrictions therefore applied only to those corporations that the government disfavored and exempted those which were felt to beneficial. How can a for profit media corporation have a right to speak when a non-profit advocacy corp does not. Do we want the government involved in determine which corporations are offering news as opposed to advocacy? People should really give J. Kennedy’s concerns about chilling speech and the potential for view point discrimination more weight. I dont agree entirely with the Citizen United decision, but there is a real danger from over simplifying the issue and seeing corporations as pure artifice. People are free to associate and incorporate. The government can’t simply restrict the speech of associations that they deem dangerous.

    Btw we should all be more concerned right now that Pres. Obama and members of both parties just gutted the STOCK act. Limitations on corporate speech is a topic on which reasonable people can disagree, insider trading by congressional staffers is not.

  6. avatar chrisfinnie says:

    First, may I say that I currently own an inactive Oregon corporation, and an active one in California.

    I’m not against corporations. I am against treating them as people–especially when they want the constitutional rights of people, but none of the legal liabilities or responsibilities of people.

    Protecting shareholders and employees from liability is actually one of the main reasons to have a corporation. But these are legal rights granted by the various states. They are sufficient for most any reputable company to run a legitimate business. None of the companies I’ve owned has ever needed the additional rights granted to We the People under The Constitution.

    So which corporations do want constitutional rights? Ones who want to force the EPA to get a warrant before they can be inspected for violating environmental regulations. These corporations claim trying to determine if they’re storing enough amonium nitrate to blow up a nursing home and several schools is a violation of their constitutional protection against unreasonable search and seizure. Financial regulation? Oh no! Examining a bank’s financial records to see if they’ve foreclosed on homeowners who never missed a payment falls under the same Fourth Amendment protection. So says the bank. Don’t want fracking under the town water supply? Corporations claim any such zoning prohibitions violate their rights to due process and equal protection under the Fourteenth Amendment. Don’t want uranium mining in the Grand Canyon? Corporations claim they have been deprived of life, liberty, or property without due process of law–prohibited under the Fifth Amendment. Oh, and trade associations with foreign members like Saudi oil corporations that want to spend unlimited dark money to affect elections in the U.S. by claim First Amendment rights to free speech.

    The U.S. Supreme Court may not be able to tell the difference between me and the corporations I own. But I can. My corporation is a binder full of papers that sits on the shelf behind my desk. I bought and paid for it. It is no more a person that can think, feel, and have rights than the bookshelf it sits on. The whole legal fiction is one of the stupidest ideas that has ever been foisted on the American public. And the more people know about it and the problems it causes, the less they like it.

    Because no post would be complete without refuting Ernie’s post: You’re wrong. I’ve owned and operated businesses my whole life. I still do. Taking away these bogus “rights” from my corporation will in no way diminish my ability to do business.

  7. avatar cbarney says:

    ” The government could then lawful limit the speech of corporations in anyway, the restrictions could be based on content or be entirely arbitrary. Is there anything more odious than the government being able to limit communications in that fashion?”

    corporations, not being really people, cannot “speak.” the real people who run corporations, either as owners or executives, can speak. citizens united gives these people to use money to amplify their speech and spread it far and wide, in a manner not possible for ordinary citizens without the money to pay for propaganda campaigns. the right to spend money is not the same as the right to speak. corporate owners and executives are individually as free to speak as any of us. (look at chris finnie.) if they want to use corporate funds to drown out individual speakers, it’s not unreasonable for people to want to know who they are, and to set limits as to how loud they can shout. i need a permit to drive a sound truck through my neighborhood, and no one, i think, has ever made successful first amendment arguments at this form of local government control.

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