2003 Silha Lecture: Political Liberty: Campaign Finance and Freedoms of Speech and Association

Starr speaks on Bipartisan Campaign Reform Act

The 18th Annual Silha Lecture featured Kenneth Starr, whose presentation, "Political Liberty: Campaign Finance and the Freedoms of Speech and Association" provided a unique perspective on the controversial Bipartisan Campaign Reform Act, also known as McCain-Feingold.

McCain-Feingold, which President Bush signed into law on March 27, 2002 , amends the Federal Election Campaign Act of 1971. Starr is a member of the legal team representing Sen. Mitch McConnell (R-Ky.) in his constitutional challenge to the Act.

In May 2003, a three-judge federal court panel in Washington, D.C., issued a 1,638-page opinion striking down parts of the statute, including the ban on national party committees raising "soft-money" from corporations, unions and others. Other sections of the law were upheld, including a ban on soft money solicitation by federal officeholders. The panel later stayed the ruling, and the U.S. Supreme Court declined to lift that stay pending its own review of the case. The Supreme Court heard oral arguments on Sept. 8, 2003 . Starr said he expects a decision by the end of the calendar year.

The legal team argued that McCain-Feingold violates the First Amendment rights to free speech and association by restricting political spending by individuals and groups. "It has taken our nation into territory previously viewed as off limits to governmental regulation," Starr said.

Starr discussed Buckley v. Valeo, the first campaign finance case brought to the Supreme Court in 1976. The Court's decision effectively overruled two parts of the 1974 Federal Election Campaign Act, which imposed mandatory spending limits on all federal races and limited independent spending on behalf of federal candidates.

The Court ruled that such restrictions violated the First Amendment guarantee of freedom of expression, finding that spending limits on political campaigns reduce the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.

Starr said that the Supreme Court treats matters of political campaign financing carefully. "This is political regulation of activity that goes to the heart of representative government," he said.

Starr contrasted McCain-Feingold with the Supreme Court's 1964 ruling in New York Times v. Sullivan. In Sullivan, Starr said, ordinary citizens pooled their resources to buy an ad in The New York Times in order to increase national exposure to the struggle for civil rights in the South. This, Starr said, was a perfect example of political speech and free association as guaranteed by the First Amendment. Under McCain-Feingold, a similar ad could, under some circumstances, constitute a crime, he suggested.

Starr used the American Civil Liberties Union (ACLU) as an example of the broad spectrum of groups whose speech would be affected under McCain-Feingold. Under the statute, it would be a crime for the ACLU to broadcast an ad on radio or television advocating a particular civil liberties issue if the ad mentioned a candidate for public office by name and were broadcast close to the election.

Starr also pointed out that the new Act only covers television and cable. The law exempts print media and the Internet. "McCain Feingold has abruptly reversed the trend of deregulation of the media itself and more precisely citizens' use of the media to convey citizens' messages and to express their views and concerns," Starr said.

The University of Minnesota bookstore sponsored a book signing for Starr's new book First Among Equals: The Supreme Court in American Life. The book examines the influence of the Supreme Court on American culture.

Starr has been a partner at the Washington, D.C. office of Kirkland & Ellis since 1993. From 1989-1993, he served as the Solicitor General of the United States and was a U.S. Circuit Judge, D.C. Circuit from 1983-1989.

Starr spoke to a crowd of approximately 470 at the Ted Mann Concert Hall on the West Bank of the University of Minnesota Twin Cities campus on Nov. 6, 2003. University faculty, staff and students, as well as media and legal professionals and members of the general public, attended the lecture.