National Lawsuits Should Reflect Pennsylvania Consensus

By David A. Atkinson

No matter which party holds the governorship, and no matter the political philosophy of the individual occupying the position, Pennsylvania is indisputably a strong governor state. This causes natural tension between the chief executive and the legislature, because it tilts the balance of power. Additional friction occurs when governors invariably have moments of obvious disdain for state legislators, even when their party controls both ends of the General Assembly. This tension over responsibility and discretion is built and baked into the system. No matter how many guardrails are installed, the nature of the action will still depend on the political inclinations of the players.

When we have a governor who seems allergic to even pretending to engage in legislative and community consultation, as is the case with Tom Wolf, the conflict between branches is going to take on greater range and intensity. The pandemic has aggravated the situation, with the imposition of controversial state mandates. Arguments over checks and balances deteriorated to the point where two constitutional amendments were proposed and approved, reining in the governor’s emergency powers. Of course, a legislative override or two of misbegotten Wolf vetoes could bring things back into equilibrium. But after years of multiple missed chances, an override does not appear likely.

This is not the only place in state government where the mix of public responsibility and personal ambition creates concern over the need for stronger check and better balance. In that vein, it is well past time for Pennsylvania to reassess the power and discretion wielded by the state attorney general.

Many years ago, then state Senator Chip Brightbill introduced measures intended to assure citizens that the attorney general was primarily looking at prosecutions through the criminal justice and consumer protection lenses, and not through reelection prospects or as a springboard to higher office. Step one of reform was to limit the AG to a single term, but extend the length to six years. Step two was to require a resignation before a campaign for another office could commence. No more free run. No more major diversion of attention. Less potential conflict of interest when campaign contributors were facing the possibility of charges for criminal conduct. A more professional veneer could lead to less suspicion of ulterior motive in prosecutorial decisions.

There is another notable aspect of this proposal. At the time, only Republicans had held this elected office. That circumstance would continue for years. Rather than putting political restraints on a promising prospect for the other team, this proposal was effectively shortening the bench of Republican candidates for governor or U.S. Senator.

What was not to like about this? Apparently something near and dear to someone, because momentum for action never really developed. It is questionable how many people today recall such an issue was ever raised.

Now this is not just a belated autopsy on another good idea buried without honors in the legislative graveyard. The context has changed in significant ways. What looked like a celebratory moment when a female Democrat – Kathleen Kane – broke through a notable glass ceiling turned into embarrassment as she succumbed to a series of ethical missteps. Given her apparent proclivities, she might have gone rogue under any construction of the office of attorney general. Nevertheless, her example does help flesh out the brief for change.

Any attorney general, faced with a wide field of responsibilities and the diversity of opinion across the commonwealth, will draw criticism for decisions to prosecute and decisions not to proceed. He or she was elected to make those difficult choices. There is public accountability through elections. There is fiscal accountability through the response of legislators and the governor to budget requests. This recent history of criminal consequences demonstrates the state’s top cop is not above the law.

Nevertheless, there is part of the attorney general’s portfolio that needs to be looked at in terms of checks and balances. For some years now, attorneys general for the states have become more overtly political in their pronouncements and their actions. Many are fond of filing suit challenging federal actions, from presidential directives to the regulatory actions of departments and agencies. By and large, there is an unmistakable partisan tinge. Republican attorneys general sue Democratic presidents; Democratic attorneys general sue Republican presidents. The traffic picked up considerably during the Trump years, as the president was aggressive in governing through executive orders and relentlessly rolling back regulations in areas ranging from environmental protection to financial institution oversight. Pennsylvania’s current attorney general has been an aggressive player.

The concern raised here is that playing on the national stage has larger implications for Pennsylvania’s standing. These actions can have all sorts of repercussions and reverberations. Pennsylvania’s state government is divided in power. The citizenry is fairly well divided in partisan terms and along the philosophical spectrum. So should these federal lawsuits be solely the province of the attorney general?

A situation highlighting the difficulty recently erupted into public view. Our state attorney general entered into a settlement in a national opioid case. That settlement is being criticized by the district attorneys for Philadelphia and Allegheny County as too low. Each happens to be a Democrat, so the quick and easy diagnosis of this being another partisan food fight does not work. The undervalued state settlement undermines their city and county lawsuits, because a condition for receiving the settlement money involves local jurisdictions surrendering their separate damage claims. Whether there was insufficient consultation or their views were rejected is not part of the visible record. The state attorney general, surely nettled by an accusation of sellout, argues in his court filing that they do not have the authority to sue him. However this works out, it will make an interesting case study for political science and law school courses.

This underscores the fundamental point. The lone wolf power being exercised by the attorney general in these high-stakes lawsuits of national scope has complications and consequences we are just beginning to recognize.

It would seem prudent and beneficial to create a mechanism to assure that lawsuits against the feds or national companies represent a sense of the state interest, and not just the priorities or preferences of the attorney general. Obviously, requiring multiple signoffs to proceed would be too restrictive. But some sort of consultative requirements, such as a public hearing to give legislators and the public a chance to review and comment before an action is filed, is not burdensome. These lawsuits are discretionary, so time for consultation forfeits nothing. It would help ease the growing perception that state government in general is too dictatorial and increasingly eschewing consultation.

Again, the purpose is not to hogtie the attorney general. Rather, it is intended to bring balance into actions on behalf of the state that have national implications. There are just too many places where the divides are deepening and the interests are narrowing. It looks to the citizenry as if government at every level and people in every partisan tribal grouping are going through the terrible twos at the same time. Collaboration and negotiation, the traditional avenues for building consensus in a disparate democracy, have been relegated to the scrap pile of political heresies.

The notion that law enforcement and criminal justice are above the political fray has been impeached by the practitioners. Prosecutors have increasingly been offering up commentary on events beyond their jurisdiction, often when judgment ought to be withheld until more facts become apparent and thorough investigations conclude. This partisan overlay of philosophy and ambition is going to make the debate over prosecutorial conduct just as fraught as the debate over community policing raging across the state and nation. And equally hard to reconcile in any manner of reform.

To make clear, Pennsylvania ought never to return to an appointed attorney general. The independent office is of clear value to the public interest. The question is whether the wide latitude for action granted the chief enforcement officer remains the best approach. It is a subject worthy for reviewing and weighing potential reform.

For taxpayers and good government advocates, it is immensely frustrating to watch costly, time-consuming, and cynical chases for voter fraud crowding out serious issues. Most were convinced long ago that the fraud patrol is more likely to find Jimmy Hoffa or Judge Crater than massive voter and official mischief. How much better for governance and public faith if legislators would turn to real reform. Raising public trust in the position of state attorney general is an excellent place to pivot toward.

David A. Atkinson is an Associate of the Susquehanna Valley Center for Public Policy.

Nothing contained here should be considered as an attempt to aid or hinder the passage of any legislation.

The views expressed here are those of the author and not necessarily those of The Susquehanna Valley Center for Public Policy.