The Nation’s Worst State Attorneys General 2015 By Hans Bader August 2015 ISSUE ANALYSIS 2015 NO. 4 The Nation’s Worst State Attorneys General 2015 By Hans Bader Executive Summary Due Process and Commerce clauses, for example, State attorneys general (AGs) are among the most forbid one state from imposing its laws on another or powerful office holders in the nation, yet there are few from seeking to regulate interstate commerce. institutional checks on their power. This new survey However, over the past 20 years many state AGs have of the nation’s half-dozen worst attorneys general, like increasingly usurped the roles of state legislatures and the 2007 and 2010 studies that preceded it, focuses on Congress by using lawsuits to impose interstate and the most egregious abuses of power by some of the national regulations and extract money from out-of-state nation’s most aggressive and overreaching state AGs. defendants who have little voice in a state’s political Historically, the job of a state AG is to act as the process. This sort of activism may serve a state state’s chief legal advisor, charged with defending the AG’s political ambitions, but it imposes real costs state in court and giving legal opinions to officials on on consumers, businesses, and the economy. These pending bills and policies. In some instances, AGs are lawsuits foster corruption; circumvent legislative also empowered by state legislatures to enforce specific checks on regulation, taxes, and government spending; laws and assist district attorneys in prosecuting serious undermine government transparency; and divert crimes. But increasingly, state AGs are ignoring these attention from core AG responsibilities. basic obligations and meddling in areas traditionally State AG misdeeds can be roughly categorized as outside their purview. follows: In evaluating candidates for the worst state AGs, this 1. Ethical Breaches and Selective Applications of study sought to identify those AGs who have engaged the Law. Using campaign contributors to bring in noteworthy ethical and legal breaches, including lawsuits. Using the AG’s office to promote per- violating the Constitution, fabricating legal norms, sonal gain or enrich cronies or relatives. Favoritism usurping legislative powers, hiring outside counsel towards campaign donors and other uneven or (often campaign contributors) on a contingency-fee unpredictable application of the law. basis, and suing businesses over conduct occurring outside their own states. Particular attention was paid 2. Fabricating Law. Advocating that courts, in effect, to news coverage of state AGs who appeared, or came rewrite statutes or stretch constitutional norms in close to appearing, in CEI’s previous AG ratings in order to make new law—for example, seeking 2007 and 2010, to see if their successors warranted judicial imposition of new taxes, regulations, or inclusion this year, since a bad political culture and restrictions on private citizens’ freedom to overreaching state AGs seem to go hand in hand. contract—or making up regulatory requirements out of thin air. Like other government officers, state AGs theoretically have limited powers, set forth by their respective state 3. Usurping Legislative Powers. Bringing lawsuits constitutions and statutes. These powers are also that usurp regulatory powers granted to the federal constrained by federal law. The U.S. Constitution’s government or other state entities, or that are not Bader: The Nation’s Worst State Attorneys General 2015 1 tied to any specific statutory or constitutional grant player in the Big Tobacco settlement, which put of authority. $85 million into the pocket of hand-picked trial lawyers, some whom subsequently became donors 4. Predatory Practices. Seeking to regulate conduct to Miller’s election campaigns. occurring in other states—for example, preying on out-of-state businesses that have not violated state 4. Kamala Harris, California—disregarding repeated law and have no chance of remedy at the polls. court warnings of prosecutorial misconduct’ misleadingly rewriting the wording of ballot measures in order to sway voting outcomes’ On the basis of these factors, and given the misdeeds thwarting mergers that would have saved struggling highlighted below, the following have earned a spot hospitals in order to win favor with unions; on this year’s list of the nation’s worst state AGs: 5. William Sorrell, Vermont—repeated flouting of 1. Kathleen Kane, Pennsylvania—a long list of state election laws; channeling contingency-fee abuses, ranging from leaking confidential grand lawsuits to campaign supporters; backing clearly jury information to blocking corruption prosecutions illegal speech restrictions that were destined to be to concealing contracts from public view; ultimately overturned; pioneering the imposition of retroactive Medicaid liability on tobacco companies; 2. Jim Hood, Mississippi—attempting to control Google’s search methods despite the gravest of 6. Eric Schneiderman, New York—seeking campaign First Amendment and federalism concerns; hiring contributions from those who stood to gain or lose outside counsel for lucrative cases, who then col- from his prosecutions; using payouts from his lected payouts that rightfully belonged to the state; lawsuits as slush funds for his office; ignoring state repeatedly defending a clearly incompetent state corruption to the point where federal prosecutors pathologist’s ability to provide “expert” testimony had to step in. in criminal trials; 3. Tom Miller, Iowa—chief negotiator of the It should be noted that Pennsylvania AG Kane made the $25 billion nationwide mortgage settlement, the top of our list before she was indicted in early August costs of which were chiefly borne not by banks but for leaking grand jury materials. by innocent third-party mortgage investors; key 2 Bader: The Nation’s Worst State Attorneys General 2015 Introduction that have researched the issue of state State attorneys general (AGs) are attorney general misdeeds and abusive among the most powerful office holders lawsuits. It surveys settlements of major in the nation, yet there are few institu- cases brought by state AGs for signs tional checks on their power. This of collusive shifting of costs on to third A bad political discussion of the nation’s half-dozen parties. Particular attention was paid worst attorneys general, like its 2007 to news coverage of state AGs rated culture and and 2010 precursors, seeks to focus badly in past years, or who had come overreaching much needed attention on the most close to appearing on CEI’s previous egregious abuses of power by some AG ratings in 2007 and 2010, to see if state attorneys of the nation’s most aggressive and their successors warranted inclusion general seem overreaching state AGs.1 this year, since a bad political culture and overreaching state attorneys to go hand The historic function of a state attorney general seem to go hand in hand. general (AG) is to act as the state’s in hand. chief legal advisor, charged with Like other government agencies, state defending the state in court and giving attorney general offices were designed legal opinions to officials on pending to have limited powers, set forth by bills and policies.2 In some instances, their respective state constitutions state legislatures have entrusted and statutes. Every state constitution attorneys general with enforcing empowers the legislature, not the specified laws and assisting district attorney general, to make laws. If the attorneys in prosecuting serious crimes. legislature has not specifically given But increasingly, state attorneys the attorney general the right to enforce general are ignoring even these basic a particular law, then he may exceed obligations. his authority by bringing a lawsuit under it.3 In evaluating candidates for the worst state attorneys general, this study relies Federal law also limits an attorney on extensive legal research to identify general’s power.4 When a state attorney those AGs who have engaged in general attempts to regulate conduct in noteworthy ethical and legal breaches, another state, that may violate not only including violating the Constitution, state law, but also the Constitution’s fabricating legal norms, usurping Due Process and Commerce clauses, legislative powers, hiring campaign which forbid any state from imposing contributors as outside counsel on a its laws on another state or from contingency-fee basis, and suing seeking to regulate interstate businesses over conduct occurring commerce.5 outside their own states. It also Many state attorneys general now examines publications by organizations ignore these constraints. Over the past Bader: The Nation’s Worst State Attorneys General 2015 3 20 years, many state AGs have judicial activism and frivolous lawsuits, increasingly usurped the roles of state and shown favoritism towards legislatures and Congress by using campaign contributors. lawsuits to impose interstate and Taking into account such abuses of national regulations and extract money Over the past power, and the criteria described below, from out-of-state defendants who have the following attorneys general have 20 years, many little voice in a state’s political process.6 earned a spot on this year’s list of the A classic example is the 1998 tobacco state AGs have nation’s worst state attorneys general: Master Settlement Agreement (MSA), increasingly which settled lawsuits against the big 1. Kathleen Kane, Pennsylvania tobacco companies by creating what is usurped the 2. Jim Hood, Mississippi effectively a perpetual national tax on roles of state cigarettes. That resulted in a $30 billion 3. Tom Miller, Iowa windfall for politically connected trial legislatures and 4. Kamala Harris, California lawyers hired by some of the attorneys Congress by general.7 The MSA’s costs are borne 5. William Sorrell, Vermont by smokers, the very people the state using lawsuits to 6. Eric Schneiderman, New York attorneys general claim were victimized impose interstate and defrauded by the tobacco companies.8 and national Criteria for AG Ratings regulations and This sort of activism may serve a state 1.