GOP lawmakers are so eager to alter how the state’s top lawyer is chosen that the real fight in the Legislature this year may not be over whether change is necessary, but what solution is most prudent, affordable and politically doable.
“All I want is somebody who’s more accountable to the voters,” said Sen. Mae Beavers, who for the second year in a row is pushing for the popular election of the attorney general via a constitutional amendment.
So far, Republican lawmakers have pitched three proposals for changing up how Tennesseans get an attorney general, and other bills are rumored.
Among the ideas being batted around are the popular election of the attorney general by the state’s citizenry or an appointment by the Legislature or the governor. Also under consideration is a shifting of power to a solicitor general either elected by voters or hand-picked by lawmakers or the governor, and, finally, granting the governor new powers to seek and deploy specialized legal counsel.
Gov. Bill Haslam has said he’s not convinced turning the attorney general, now appointed by the state’s Supreme Court, into a popularly elected position is a prudent move. Haslam worried the office might be transformed merely into a political training ground for higher office-seekers. Haslam “only half-jokingly” told a Chattanooga Times Free Press reporter he’d prefer to choose the next AG himself.
In fact, some lawmakers, like Rep. Joe Carr, R-Lascassas, think that’s not a bad idea at all and ought to be taken seriously.
Although the attorney general doesn’t have to listen to any of the three branches of government if they ask him to take legal action, he is still constitutionally tucked in under the governor’s purview and should act accordingly, Carr said.
“In a sense, we have a fourth branch of government, and that certainly is not constitutional,” Carr said.
Because Carr believes the state’s top lawyer and the governor should be philosophically on the same page, the second-term Rutherford County lawmaker is introducing a bill granting the governor power to seek special legal counsel to pinch-hit in court for the state if the AG won’t litigate at the chief executive’s bidding.
In any case, lawmakers pushing for change say the current system has at minimum institutionalized a clear conflict of interest that warrants addressing: the state Supreme Court chooses the attorney general, who in turn regularly argues cases before the state’s highest court.
“I’m open to any idea that can fix that,” said Lt. Gov. Ron Ramsey.
His counterpart in the House of Representatives, Speaker Beth Harwell, told TNReport earlier this month she is as yet undecided about whether or in what way to change the attorney general’s selection process.
Another issue fueling the debate is Attorney General Robert Cooper’s refusal last year to join a growing list of states challenging the constitutionality of aspects of the 2010 federal health care package.
Tennessee Tea Party leaders, who are no fans of so-called ObamaCare themselves, have said making the attorney general stand for election in Tennessee is a key legislative priority for them. Barring that, they’ve suggested shifting duties to an elected solicitor general would work as an alternative.
But the state already has a solicitor general, who has an upper management role in the AG’s office, double-checking its cases moving through the legal system and overseeing the drafting of official opinions. And in 2006, then-Attorney General Paul Summers opined that repositioning the solicitor general as the elected legal heavyweight is unconstitutional because those duties were specifically meant for a constitutional officer.
Sen. Stacy Campfield is pitching that idea, anyway.
“I’m for electing just about everybody, really,” said Campfield. “I’d go down to the dog catcher should be elected.”
The Knoxville Republican’s plan to change state law could be passed with a simple majority vote of the Legislature — although some kind of legal challenge down the road wouldn’t seem unlikely in that scenario.
Beavers’ plan, by contrast, would require a lengthy constitutional amendment process. Tennessee’s is one of the most arduous in the United States. It requires lawmakers to approve the measure twice — the second time on a two-thirds majority vote — before placing the question before voters in a gubernatorial election year.
Beefing up the solicitor general’s duties would likely carry a hefty price tag, Sen. Mike Faulk said.
“It’s one more position that we can’t afford,” said the Kingsport Republican, who formerly served as vice chairman of the Tennessee Human Rights Commission. “I’m sure additional staff would be necessary.”
Like Beavers, Faulk is proposing a constitutional amendment that would pave the way for voters to decide the AG question in 2014 at the earliest. His bill would allow for a popularly elected attorney general, however he would require candidates have seven years of state residency before running for election whereas the Beavers bill requires five years.