Politicians and the Policing of Sexuality

...Despite some timid dissent, the media blitz that began last January aimed to convict the president politically before he was legally proven guilty...

...that law is being used to cloak politics in a way that squarely contradicts the emerging democratic will of the population...

...Radical cultural criticism led many of us to think that however democratic the formal institutions of contemporary capitalist societies may be, popular control and accountability of government had vanished due to the decline of the civil public sphere—supposedly an unavoidable effect of the mass media and the culture industries...

...But it is a losing scenario, as the American public has now revealed...

...MOREOVER, this is the wrong case with which to establish precedents in the area of sexual harassment...

...No worker should be subject to the kind of behavior alleged by Paula Jones: it is discriminatory, creates a hostile environment, and fear of future repercussion...

...The media stress economic well-being, and undoubtedly this plays a role...

...tolerance of this pluralism should be fostered, not undermined, by the law...

...Public opinion may now protect the president, but it is powerless to end a process that threatens to weaken both him and the presidency...

...UMI), the Social Sciences Index, the Social Science Source, and Sociological Abstracts...

...The special-prosecutor law was enacted to protect the republic against corrosive illegality by power holders...

...If wanted consensual intimacy between adults is not safe from unreasonable search and seizure, interrogation by prosecutors, grand juries, the police, or the FBI, then everyone is a potential informer and the mutual trust, the sine qua non of intimacy, is destroyed...

...But there are much more serious matters at stake...

...Please send a stamped (55 cents postage), selfaddressed 9" x 11" envelope...

...Moreover, would Judge Susan Webber Wright have had the courage to dismiss the Paula Jones case in another political context...

...Certainly Kenneth Starr's ties to the extreme right are there for all to see...

...This is a pity: the law should be reformed, not dumped...

...The first—let's call it the liberal-constitutional aspect—is an institutional design that secures the election of competent, responsible officials who respect the constitutional order and encourage alternation among political elites or parties...

...Second, the decline in journalistic ethics becomes obvious, particularly when it comes to confidentiality and verification of sources...

...Politicization of the law is being complemented by a legal derailing of politics...

...Citizens ask: Why do they want so badly to get rid of him...

...Legal regulation in the intimate domain should only be for protection against injustice (such as violence, abuse, fraud, and the like) or to facilitate wanted and rewarding intimate relationships...

...The Republicans, remembering Watergate and Iran-contra, always opposed it...

...This affair has also revealed certain surprising strengths in American democracy, particularly the astonishing vitality and relative independence of public opinion...

...it's the law that counts...

...The campaign should have succeeded, because it was not Hillary Clinton's "right-wing conspiracy" (a plausible idea) but Newsweek, the New York Times, the Washington Post and ABC-TV that played dominant roles...

...yET IN THE face of all this, popular support for Clinton continued to increase along with negative perceptions of Starr...

...It can only be worse when a special prosecutor is appointed despite obvious political conflicts of interests, and when his competence is readily extended from one case to another (as it has been thanks to the weakness of Attorney General Janet Reno...

...If loyal subordinates of a head of government can be ruined through legal costs, whether or not they have anything to hide, then all capable people will be driven from this type of public service...

...Since the president's public and private personae have been blurred in this matter, the pursuit of the private man inevitably weakens the public one...

...Jones v. Clinton teaches us above all that there are two values at stake in current sexual harassment cases: gender equality and private autonomy...

...Attempts by the president's side to use legal means of self-defense against the powerful if uncoordinated onslaught by the media and special prosecutor Kenneth Starr were dismissed as "spin doctoring" at best or obstruction of justice at worst...

...Now that Starr has trivialized and politicized it, few legislators will favor its renewal next year...

...that is, the domain that informs the electorate about issues and choices, promotes discussion that can lead to democratic demands, and brings popular concerns to the attention of decision makers...

...Second, we need to define sexual harassment more precisely so that loopholes used by Judge Wright, however justifiable in this special case, can be closed...

...But Congress is also constrained by the president's veto power and the threat of filibuster by a member of his party in the Senate...

...Let's hope that the American public can teach its elites that moralism about sex should be gone from our politics —with the politics of scandal in quick retreat...

...It seems to us, however, that the relationship between the media and public opinion in the Clinton crisis shows that obituaries for a thinking and critical civil public have been premaDISSENT / Summer 1998 61 ture...

...The mainstream media boosted its audience through a kind of self-tabloidization...

...The contexts of the "imperial presidency"—the New Deal, world war, cold war—now belong to the past...

...Until there are full and adequate survey data, one can only speculate about the reasons...

...Insecurity and fear of exposure have a chilling effect on speech and action in all domains of life...

...And how can it be functional if Clinton's confidential discussions with close advisers must be revealed to a grand jury, and then can be leaked by the prosecutors...

...Democracy and Public Opinion But the news is not all bad...

...The absence of checks on the legal profession is alarming: just consider the willingness to leak grand jury testimony and other legal documents in a scramble for media prestige and the transformation of the adversarial system into a sport event (remember 0.J...

...Zealots of various persuasions may think this fine, but it ought to alarm democrats...

...JEAN COHEN is professor of political science at Columbia University...

...It responded to a real need, even if it lacked adequate safeguards...

...The entire picture is further complicated by the decline of professional ethics among lawyers and prosecutors...

...All this, combined with twenty-four-hour-aday reporting, constant broadcasting of opinion polls, the Internet, but also the likes of electronic gossip Matt Drudge, has at least two consequences...

...Many Americans would also like to dismiss the whole affair as trivial or as an obvious attempt to "get Clinton" that has made political use of sexual moralism, lawyers' dirty tricks, rich right-wingers, and media madness...

...His opponents, on the other hand, are perceived as trying to use every means available to undo the 1996 elections...

...Here Jeffrey Rosen is wrong to blame feminists and sexual harassment law per se for the intrusive policing of sexual conduct that often accompanies workplace sex codes and harassment suits...

...He responds with an appeal to the rule of law, which also motivated the unanimous Supreme Court decision in Jones v. Clinton...

...Starr is settling in for a long siege due to Republican reluctance—in the face of public opinion—to attempt an impeachment before the upcoming elections...

...But she was right to dismiss the case given the obvious falsity of the Supreme Court's earlier assumptions in Jones v. Clinton, and also in view of the "outrageous" politicization of the case by Jones's lawyers...

...Private Autonomy If a Clinton impeachment led to a genuine na64 DISSENT / Summer 1998 tional re-examination of the problem of sexual harassment, it would be worth it...

...Ironically, it is Kenneth Starr's unchecked power and ideologically motivated rule-of-law absolutism that, in the end, threatens to weaken seriously one of the central instruments of American democracy...

...Freedom of intimate associations must he protected against the traditionalists of the right and puritanical fundamentalists of whatever persuasion...

...The reasons range from increased newspaper sales and high ratings to the hubris of reporters who ache to become today's Woodward and Bernstein...

...There is no longer a consensus on the "one right way" to conduct such relationships...

...Gender Equality vs...

...Current polls, however, don't indicate that a similar development is likely...

...At the same time, no one—even if charged in a civil suit—should have to undergo public and hostile dissection of his or her private sexual life...

...Compared to a prime minister in a parliamentary system, an American president has great constraints...

...BUT WON'T the rule of law be damaged by strong—and well-founded—suspicions that the agents of the law are merely carrying out politics by other means...

...The immense majority of letters to the editor in all the papers that we have seen confirmed the testimony of countless polls...

...Do they take us for moralistic fools who cannot distinguish private vice from public virtue...

...Privacy" is too often a camouflage for gender subINDEXAVAILABLE The cumulative index for volumes 43 and 44 of Dissent is available from the Dissent office, 521 Fifth Avenue, Suite 1700, New York, N.Y., 10017...

...Commentator Jeffrey Rosen was right when he pointed out that the confluence of the specialprosecutor statute with the Supreme Court decision to allow a civil sexual harassment suit, with potentially unlimited discovery procedures, against a sitting president, has set in motion a process that will be difficult to restrain by political or legal means...

...The investigation, they say, is not about sexual conduct but perjury, subornation of perjury, and the obstruction of justice...

...Invasions of privacy—wiretapping, sting operations, forcing close relatives to testify, hunting for peripherally related private documents—are deeply disliked by Americans and accepted only when invisible or justified by a significant public interest (such as thwarting organized crime...

...The second, democratic, aspect is political responsiveness based on genuine popular participation and the influence of public opinion...

...The president's room to move on domestic policy is also restrained by divided government and party discipline...

...What is needed is a reorientation of sexual harrasment law and privacy rights, not their abolition...

...Third, we need to restore due process in sexual harassment cases...

...Moreover, if there is a revival of harsh sex laws privileging one form of intimate association —say heterosexual, monogamous marriage —over others, the politics of scandal will always he available to discredit anyone who "deviates...

...The attempt to reverse judicially the results of a democratic election is unpopular...

...Starr's methods were highly visible and had no such justification...

...Since Eisenhower, only Ronald Reagan completed two terms...

...More important, however, the direction taken by the investigation of Clinton has come to pose real dangers to personal freedoms, to the integrity of the electoral processes, to the office of the presidency, and to the very structure of American constitutional democracy...

...These shows monitor the spin doctors and openly discuss their own potential impact on politics and public opinion...

...To assume that such relations become harassment if the partners are "unequal" is pernicious...

...Nixon also had ample opportunity to appear presidential, but he was transformed into a demonic figure...

...62 DISSENT / Summer 1998 They find that others feel as they do, and that this is not due to indifference to ethical issues (as the religious right suggests) but to alternative —call them postconventional—moral insights...

...66 DISSENT / Summer 1998...

...The French and the Swedes, among others, seem to handle these things with so much more civility, discretion, and panache...

...Sexual harassment is a pervasive problem, and it strongly contributes to gender inequality...

...undoubtedly, Clinton's rebound from the Republican congressional victory of 1994 has been stalled...

...Dissent is also indexed in Academic Abstracts, the Alternative Press Index, the Infotrak Academic Index, Left Index, Magazine Article Summaries, the PAIS Bulletin, University Microfilms, Inc...

...What he can do depends on political skill, coherent strategy, and political prestige, all of which are hampered by endless legal battles and the atmosphere of scandal...

...This time the threat to democracy—and to the law—originates in the judicial branch, not the presidency as in Watergate...

...The latter exist across the political spectrum and include some progressives and some feminists...

...The goal ought to be the protection of everyone's personal autonomy and equality, and the punishment of discrimination and injustice...

...How is it that public opinion has remained independent through all this...

...These attitudes provide the background to public opinion in the Clinton scandals...

...Equally important is the civil public sphere...

...Both assertions are partially false...

...Even more worrisome is the relentless use of the subpoena powers of the special prosecutor to reach deep into the White House in quest of documents and testimony that may have only the slightest relevance to his case...

...The mainstream press found relatively little to criticize in Starr's questionable practices...

...Even with dismissal of the civil case and disputes about the relevance of perjury where the materiality of testimony (Lewinsky's and Clinton's) is in serious doubt, DISSENT / Summer 1998 • 63 it is up to Starr alone to decide whether or not to continue...

...So wrote Michael Tomasky in the Spring 1998 issue of Dissent ("The President and the Prosecutor," Spring 1998...

...Foreign commentators have professed amazement that an array of alleged peccadillos could undermine the most powerful officeholder in the world...

...If the value of gender equality forces us to examine critically the president's conduct, that of private autonomy should make us wary of his persecutors and a judicial inquiry that is far too invasive...

...The plurality and flexibility of the new media technologies are quite impressive in this regard...

...Today, so-called family values, together with sexism and gender inequalities, not feminism, foster an inquisitorial atmosphere...

...Justice Antonin Scalia was right to suspect that the special prosecutor statute can, in the wrong hands, lead to a dangerous politicization of the law...

...No one's intimate life should be electronically recorded with impunity...

...The special prosecutor is accountable to no one, has unlimited time and resources, and is appointed to investigate a single official...

...The Supreme Court, we know, thought a civil suit needn't take up too much of the president's time, as if the danger were simply distraction from official duties and not the threat of politicization of a juridical procedure...

...In fact, we may be witnessing a trend in the opposite direction...

...But Watergate also occurred in relatively good economic times, and popular opinion eventually turned against Richard Nixon...

...Journalism, as a profession, no longer has the same control over the media outlets...

...First, people are increasingly alert to the recursive relation between public opinion and the media...

...The rule of law dogmatism makes erroneous assumptions about the structural strength of the presidency...

...Consensual and wanted sexual relationships, whether of the accuser or the accused, should not be the subject of inquisitions...

...instead, it concentrated on discussion programs that were previously assumed to be mere entertainment...

...Democracy and personal freedom presuppose one another...

...Starr's partisans might claim that the most powerful officeholder on earth needs elaborate supervision, and his power can well survive it...

...All this might be justifiable if the constitutional stakes ("high crimes and misdemeanors") were great enough, but it is preposterous to undermine the presidency in a truly marginal business...

...Freedom of intimate association is today being pluralized and democratized across gender (and, hopefully, sexualities...

...WITH TABLOIDIZATION of the "serious" outlets, programs like CNBC's Geraldo Rivera show and CNN's Burden of Proof, both known for sensationalism, have assumed the task of promoting serious public discussion...

...It can, however, supply us with some lessons...

...All this helped to transform latent support for the president into an increasingly articulate public perspective...

...If we're right and there is a potential revival of dynamic and sophisticated civil publics, that would be a hopeful sign for American democracy...

...Politics and Law Clinton's critics insist that popular attitudes are irrelevant...

...The other television channels and popular magazines were only a shade more self-restrained...

...What is at stake is not the right to hide secret (and by implication shameful) acts, but the sort of privacy that constitutes the meaning and very possibility of intimacy...

...We ask, in turn, and not only because of our (apparently) differing evaluation of this president and the presidency, wouldn't the cost include some of our personal-autonomy and due-process rights as well...

...Whatever Clinton's alleged sins or illegalities, they do not touch constitutional issues or threaten the democratic process...

...This was the mistaken attitude of the Supreme Court as well (even if it did not anticipate all that has happened...

...At the least, several things are going on...

...Universal suffrage and periodic elections are necessary but not sufficient conditions of accountability and popular control...

...It should be added that the president also gained a great deal of support for his performance (and Hillary's) under fire...

...His ability to compartmentalize his roles has helped others do likewise, and to judge him primarily by political, not personal, ethics: namely his public role and public virtues...

...Constitutional democracy relies on two fundamental components...

...But let's bracket these matters and assume that the Jones and Lewinsky episodes are only about the rule of law and the principle that no one is above the law...

...but if deliberations cannot be effectively translated into decisions by democratic institutions, a problematic situation arises...

...The independence of public opinion has also been reinforced by alternative channels of communication, discussion, and opinion formation...

...Are they so holy...

...Moreover, we find questionable Judge Wright's assertion that a single "outrageous" incident, as alleged by Paula Jones, does not constitute harassment (whatever the specifics of Arkansas law...

...The president's side was shrewd to avoid hostile interviews by the mainstream media...

...For months now, domestic policy making has been hostage to Starr's investigation...

...It was easy enough to believe that mass media—radio, film, television—drew into the public discussion broad segments of the population, albeit at the price of undermining the public's capacity for rational deliberation...

...This, of course, is the agenda of puritanical social conservatives and sex Victorians...

...Even if the media, along with some political fundamentalists, twist the feminist slogan that "the personal is political" into a justification for intrusive policing of sexual conduct, most Americans think the line between public and private, however shifting, is worth preserving...

...This public response, along with a widespread sense that the investigation has gone on too long, clearly had a tremendous political effect: Republican politicians were restrained...

...This provides a strong incentive to pursue an almost permanent investigation...

...The campaign of organized leaks and revelations makes the presidency seem ridiculous...

...If that is so, there is every reason to argue that there is a dangerous blurring of the boundary, never absolute, between law and politics...

...Consensual and wanted sexual relations between adults are widely understood to be the business only of those immediately and intimately concerned...

...Efforts to demonize him only enlarge his personality and enhance his charisma...

...The message it hammered home was: This president is unfit for office because of his "character" as revealed by sexual escapades and his illegal efforts to cover them up...

...Here are some possibilities to consider: • The role of the right and the mainstream media has been so transparent that it invites skepticism...

...In Nixon's case something else was at play— the subversion of the entire electoral process...

...Its viability also presupposes a political culture that cannot simply be designed, and which may actually shrivel under even a liberal democratic constitution...

...Today, freedom of intimate association must be at the core of personal autonomy...

...The morals police pursued people long before such suits became actionable...

...DISSENT / Summer 1998 65 ordination at home and at work...

...The correct reply to interrogations of one's sex life is not defiant public confession, as Ellen Willis believes (Dissent, Spring 1998), but a strong public statement that these questions are out of line and nobody's business...

...No one should be forced to testify under oath about every aspect of his or her sexual history...

...This has baffled and amused outside observers, especially Europeans, who are always ready to sneer at this country's "puritanical" and hypocritical attitudes toward sexuality...

...They are the joint authors of Civil Society and Political Theory...

...Freedoms of press, speech, association, and assembly are preconditions of a democracy's civil public sphere...

...In particular, there need to be restrictions on the almost unlimited process of discovery...

...Freedom of Intimacy Even if the possibility of revived common deliberation warrants optimism, we should not underestimate the vulnerabilities of free public life...

...ANDREW ARATO is the Dorothy Hirshon Professor in Political and Social Theory at the Graduate Faculty of the New School for Social Research...

...The elite theory of democracy, which in its original form considered manipulation and propaganda to be the normal forms of political communication, virtually admitted as much...

...These attitudes have also been fostered by growing diversity in the electronic media and proliferation of forums of discussion, especially live talk shows in which varied ways of understanding the crisis are constantly presented...

...to assume that people—sexually active or not—somehow provoke their own harassment is no less so...

...Polls have played an important role because their publication allows people to see that their own judgments are not idiosyncratic, even if they are repeatedly told otherwise by "experts...

...These include tolerance for a plurality of forms of intimacy together with an insistence on the spirit rather than the letter of the law...

...No one should be accused of perjury or the subornation of perjury for trying to protect consensual and wanted intimacy with another adult...

...Without personal autonomy and a secure zone of personal privacy, democratic public freedom cannot be guaranteed...

...Would the White House have dared to be so critical of Starr's methods...

...And Whitewater, with its own issues of perjury and obstruction of justice, never seriously challenged Clinton because it lacked a vehicle to stir up a mass audience—like sex in the Monica Lewinsky case...

...All of this creates the prospect of an immobile central government...

...First and foremost, the Supreme Court should reverse its earlier decision overruling Judge Wright, which is what allowed Jones v. Clinton to proceed before the presidential term was over...