This article first appeared in the St. Louis Beacon, Oct. 16, 2012 - Attorney General Chris Koster's party switch ensures that his legacy will be viewed through a political lens. But in his first bid for re-election, Koster is making a point to showcase his office's professional accomplishments, noting that he's run the office in ways that transcend traditional partisan politics.
The Democratic incumbent says he's built an administration with people from respected corners of the legal community. He also touts his decision-making on big cases, which he says were helped through his experience both as a prosecutor and a trial attorney.
“I think we’ve tried to operate this as a conservative, Democratic office and it has run smoothly,” said Koster in a telephone interview with the Beacon. “We’ve tried to make prudent decisions that are respectful of the business communities and also respectful of the regulatory role the office has to maintain to do its job.”
Although Koster holds a big financial advantage, GOP challenger Ed Martin nevertheless is pulling out all the stops to halt Koster’s bid for a second term. Not only is he bringing in national Republican political figures, but third-party groups are coming to his aid to slice into Koster’s financial advantage.
While facing tough odds -- down-ballot incumbents rarely lose re-election -- Martin says that he wants to halt Koster’s political rise once and for all. If elected, Martin said he’ll spend time dealing with the imposing challenges facing the state.
“I don’t think there’s an example or precursor like this year in Missouri’s history,” said Martin, noting that Missouri didn’t vote for President Barack Obama in 2008 and wiped out Democratic candidates in 2010. “I want to win and that’s great – elections are great. But the reason to win is we’re at a big moment. And serious leaders need to step up from both parties and communicate and talk give people a sense of what the future can be.”
Building an experienced office
Koster’s political path is already the stuff of Missouri political legend. The Harrisonville native had a meteoric rise, moving swiftly from Cass County prosecutor’s office to the Missouri Senate to the attorney general’s office.
Koster has said he switched to the Democratic Party when the GOP became too extreme, an explanation derided by his adversaries who characterize Koster's shift as simple political opportunism.
When Jay Nixon, then attorney general, won in 2008 a landslide victory to the governorship, many key people within the attorney general's office left with him. Ultimately, Koster filled these positions with people from the judiciary, county government, state government and private sector. Most notably, he convinced Joe Dandurand and Ron Holliger to leave the Western District Court of Appeals and take key positions within his administration.
Koster said his philosophy was to build an organization “that had a great deal of gray hair around it and was prudent in its delivery when we’re faced with problems.”
“We brought in very experienced individuals – many of them from senior positions in the judiciary – to give stability and a seasoned viewpoint to the office,” Koster said. “We are aware of other organizations that stumbled or fell because the people that they brought in were simply too young or didn’t have the discernment to deal with the difficulties or challenges that come to government organizations in Jefferson City.”
Koster is quick to point out that many of the office’s assistant attorneys general come from the upper ranks of their law school classes. While he said much of that coincides with a difficult economic environment for new lawyers, he added that the office retooled its recruiting and boosted pay for the rank-in-file.
“There are a lot of smart people out there that would like to give part of their career to public service -- a lot of very bright law review types typically have a streak of altruism in them that makes them desire to work in public service,” Koster said. “But you have to pay them a salary that at least makes a payment on their law school loans. If they can’t make their payments on their law school loans, then they can’t work for the government.”
Koster encountered plenty of high-profile cases during his first term, including a complicated grain scam in Mid-Missouri, the collapse of auto warranty giant U.S. Fidelis and the criminal indictment of Mamtek CEO Bruce Cole. But the national housing crisis occupied plenty of Koster's attention, especially after his office announced Missouri’s share of a 50-state settlement with five of the country’s largest banks.
In addition to $155 million to help people with their mortgages, Missouri got $40 million, which it then directed to higher education. Republicans in control of the General Assembly essentially praised that decision while Democrats nationwide were harshly critical.
“The decision to take the $40 million and give it the appropriations committee was to say look, I went out and did this for the lawyer for the state. But I am not the appropriations chairman,” Koster said. “I’m not the appropriations committee. This is a large pool of money. I’m not talking about splitting up $100,000 between school districts in a corner of Missouri. We’re talking about $40 million.
“And so, as somebody who thinks about government a lot and cares about this, I still believe that giving the money to the General Assembly for them to decide what are the state priorities for spending was an important decision,” he said, adding the vast majority of attorneys general in other states chose a different path.
Conservative warrior
Martin didn't start the campaign season running for attorney general. First he considered the U.S. Senate contest and then he looked at the 2nd congressional district race before settling on the attorney general’s contest.
Martin, an attorney who resides in St. Louis, says he has plenty to offer besides simply taking away a statewide office from the Democrats. His legal career includes stints as the director of the Human Rights Office for the Archdiocese of St. Louis, a clerk at the U.S. 8th Circuit Court of Appeals and a litigator for St. Louis-based Bryan Cave. He also served as chairman of the St. Louis Board of Election Commissioners and as chief of staff for Gov. Matt Blunt.
After leaving Blunt’s administration, Martin spent time advocating against abortion rights and for term limits. In 2010 he challenged U.S. Rep. Russ Carnahan in the Democratic-leaning 3rd congressional district snd narrowly lost.
If elected, Martin said he’ll take a similar approach to when he worked for the St. Louis Board of Elections: Take stock of the employees and then take counsel from a wide variety of people on how to proceed.
“I don’t have any preconceived notions,” Martin said. “Except to say after 20 years of one-party rule, we’re going to have to take a hard look at all the priorities and make sure the office is set up right and everybody’s got job descriptions and they’re evaluated for reaching the milestones they need to. To run the office as [former U.S. Sen. Jack Danforth] said, you’ve got to run the law firm of the state. That’s going to require me to do more managing of staff and priorities than a lot of people may realize.”
Since he began campaigning, Martin’s proposed to set up a committee to clamp down on crime throughout the state. He’s also expressed a desire to fight against a regulatory environment hostile to farmers and to assist veterans.
He also said would launch an initiative counteracting what he terms as “government overreach,” which he said could look at burdensome environmental regulations or abuse of eminent domain.
But more than anything, Martin’s been critical of Koster’s politicking – especially in the realm of campaign finance. He went so far to call his opponent earlier this year “pretty corrupt,” pointing to the manner in which Koster received money from the Democratic Attorneys General Association and how a state audit criticized his office's handling of contingency-fee contracts.
He also said the way Koster handled the foreclosure settlement was indicative of how attorneys general – regardless of party – have operated in recent years, adding that it amounted to “pure politicking.”
“When you come back and you grandstand and say ‘not only did I get this settlement and we got the settlement and we’re making the citizens who were wronged whole’ – which is fine, which is good and that’s what you’re supposed to do,” Martin said. “But now you have this slush fund of money that I asked for above and beyond and now I’m going to target for higher ed. He’s not the governor. And the foreclosure settlement was not related tangentially toward education.”
Focus on health care
Martin has made Koster's decision over the federal health-care law a major issue. Martin – as well as supportive third-party groups – argued that Koster didn’t do enough to oppose President Barack Obama’s signature domestic achievement, even though Missourians voted for a measure in 2010 effectively expressing disapproval of the law.
Martin said he’ll make fighting the Affordable Care Act a priority if he becomes attorney general. He added other parts of the law will require future attention, including a mandate involving contraception and implementation of health-care exchanges.
“To be clear, the U.S. Supreme Court has spoken on the individual mandate,” Martin said. “And I am someone who respects the law and the Constitution. That issue is settled. I wish the decision was different, but it’s settled. That is a big piece of the law. But the law is over 3,000 pages and includes lots of other aspects that have not yet come into effect. And as attorney general, I believe that law – how it was passed and what it did and what it’s doing – raises lots of questions.”
Koster’s office did release an amicus brief while the law was winding through the courts system, a document that received a decidedly mixed reaction. He said the brief – which, among other things, argued the individual mandate was unconstitutional under the commerce clause and was severable – struck a middle ground during a contentious debate.
“There was a lot of pressure on us to [join forces] with other Democratic attorneys general who had the opinion that there was no problem with the Affordable Care Act and everything was fine. We rejected that as well,” said Koster, noting that decision prompted a scathing editorial from the St. Louis Post-Dispatch.
He later added, “When you compare what we said to what the Supreme Court said is the constitutional mandate of the land, I would argue that our brief held up better than any of the 37 state opinions that were laid out before that court.”
Martin disagrees, pointing to an analysis from University of Missouri-Columbia law professor Josh Hawley’s that found the brief to be confusing and unclear. While Martin said Hawley is supporting him and is “a more conservative guy,” he said the brief showed that the state's legal leader “isn’t making a strong argument either way – he’s just sort of making a blog.”
Martin went so far to say that had he been in office, he would have taken the lead in litigating against the law. Koster, though, questioned whether any further action beyond what he did would have made much of a difference.
“Becoming the 27th signature on a document that already had 26 signatures on it – which was the plaintiffs’ document that Florida filed and then went to the 11th Circuit and went to the Supreme Court – I don’t think (that) moves the needle at all,” Koster said.
Widening rancor
With a sizable fund-raising advantage, Koster’s campaign blanketed Missouri airwaves with ads that focus heavily on his prosecutorial experience. That’s an almost identical strategy to 2008, when Koster spotlighted his experience in comparison to his Democratic and Republican opponents.
Koster has received donations from traditional Republican contributors such as Harbour Group founder Sam Fox and retired financer Rex Sinquefield; Martin managed to pick up $250,000 from TAMKO CEO David Humphreys.
Koster said the choice this time around is clearer than when he ran against Mike Gibbons, a Kirkwood Republican with a conservative voting record and a moderate temperament.
“Inside, Mike was center-right – not a far-right guy,” Koster said. “And Ed is an individual who’s more associated with the far right. And so the choice has sort of defined the nature of the campaign. Because I can comfortably be myself as a conservative Democrat, and the differences in the two candidates are easily discernible from that vantage point.”
Koster launched an ad this week criticizing Martin’s sometimes stormy tenure as Blunt’s chief of staff, including his legal battle with Scott Eckersley. Martin fired Eckersley, a former staff lawyer for Blunt. Eckersley claimed that he was ousted for challenging the e-mail retention policy. Martin claims the firing was for other reasons.
Soon after, Eckersley sued Blunt, Martin and others in a case that cost the state more than $2 million. Eckersley eventually received a $500,000 settlement, although Martin noted he never admitted to wrongdoing.
For his part, Martin said the charges in the ad – some of which were used against him when ran against Carnahan in 2010 – show that Koster knows he’s facing a vigorous challenge.
“He’s going to lose the election, but he’s going to lose because he hasn’t done his job and has to mislead,” Martin said.
While Martin too has run ads, he’s also attracted visits from high-profile Republicans including U.S. Sen. Marco Rubio, R-Fla., and Texas Gov. Rick Perry. While Martin says that's a sign that the race is competitive, Koster dismissed that as a fund-raising tactic.
Experience as a prosecutor
Throughout the campaign, Koster has emphasized his prosecutorial experience -- and Martin's lack of it.
Some past opponents – including Gibbons – have argued that Koster is vastly overstating the importance of such expertise.
Martin’s campaign has vigorously objected to Koster's ad highlighting the case of the killer of of Highway Patrolman Carl Dewayne Graham Jr. The perpetrator -- Lance Shockley -- was eventually sentenced to death.
Martin and others, including the current Carter County prosecutor, have criticized Koster for giving the impression that he personally tried the case, even though his staffers did the work.
Koster said he spent a considerable time behind the scenes on the case, adding that “short of one of our own assistant attorneys general being assassinated the way Dewayne Graham was, it was though a member of our office had been murdered.”
For his part, Martin noted that Nixon and Danforth weren’t prosecutors before holding the office.
“It’s a distraction,” Martin said. “And it’s insulting to me when people come up to me and says ‘you didn’t do this or that.’ Because he doesn’t say what the job is. The job of the attorney general is not to be head prosecutor of Missouri.”
But Koster said his prior experience has had a real impact in how the office functions. For one thing, he said, the office has dozens of attorneys that deal with criminal prosecutions.
“Having somebody who understands these cases and can get on the phone in the Graham case and talk about evidentiary issues, challenges in the selection of jurors and the sequences in which witnesses come in – it’s important to be able to critique the work of your employees and say ‘no, that’s not the way you do it,’” Koster said.
He also said the expertise was vital in analyzing cases outside the criminal realm. One case involved the collapse of U.S. Fidelis, which he noted started off as multi-state investigation. He said even though his office’s decision to pursue the matter alone criminally caused consternation among other states, it was the type of call that helped stabilize a car warranty industry that’d been in crisis.
He also pointed to the office’s decision to prosecute criminally the CEO of DocX, a firm involved so-called “robo-signing” of mortgage documents.
“Three years into the mortgage meltdown, nobody had taken on this case – not one prosecutor in the country had challenged these guys to the legality of this,” said Koster, adding that the Missouri media missed the significance of the decision to prosecute criminally. “We got a banner headline – one side of the paper to the other – in the New York Times. The significance of this case was very material. The president of this company is going on trial next year in Kansas City. You know in our mind, this is a crime.
“So – and this is a very long answer – does this matter? It matters a lot,” he added. “Does law enforcement experience matter? Yes, it does a lot.”
