Analysis: State attorneys general: New Republican power
(Reuters) - In the ornate Chinese Ballroom of Washington's Mayflower Hotel, nine Republican state attorneys general gathered last month at a long, white-cloth covered table for an unusual news conference. One by one, as TV news cameras rolled, they catalogued their many lawsuits against President Barack Obama's administration.
When it came to Arizona Attorney General Tom Horne's turn, he said, "We have eight lawsuits." One of those, defending Arizona's new law requiring police officers to check the papers of anyone they suspect is in the U.S. illegally, will be heard by the U.S. Supreme Court on Wednesday.
Like the Supreme Court challenge to the Obama-sponsored healthcare law heard last month, the Arizona case is part of a larger story about an escalating battle between Republican-led states and the federal government. All but one of the 16 states that have filed "friend of the court" briefs on the Arizona side have Republican governors. Meanwhile, all of the 11 states lining up with the Obama administration are led by Democrats.
The ranks of Republican attorneys general have swelled dramatically in the last decade, resulting in a nearly even nationwide partisan split that is unprecedented in modern history. Republican attorneys general now number 24 of the 50 state attorneys general, compared with just 12 as recently as 2000.
While it is not uncommon for attorneys general to try to use the courts to advance the priorities of their own political party, lawyers on both sides say the newer crop of Republicans - particularly the core nine who organized the Mayflower news conference - are more tightly coordinated and often more vocal about their political goals than Republican attorneys general have been in the past.
In the late 1990s, prominent Democrats such as New York's Eliot Spitzer and Connecticut's Richard Blumenthal set much of the agenda for top state prosecutors.
GROWING REPUBLICAN DOMINANCE
The steady rise in Republican attorneys general partly follows the increased Republican dominance in statehouses since the 1990s and, separately, the higher profile that attorneys general have drawn in recent decades through multistate litigation such as against tobacco companies. The Republicans gained a majority of the governors' offices in the 1994 elections, fell behind Democrats in the 2000s, then again took the majority in 2010 elections.
"There seems to be, in addition to the size, an intensified cohesion and collegiality among the (Republican) AGs," said Texas Attorney General Greg Abbott, one of the nine, in an interview. "Part of it is based on personality. Part of it is based on sense of purpose."
That sense of purpose - to fight what Abbott and the others say is overreaching by the Obama administration - has mitigated differences that might have been prompted by regionalism, individual ambition, age and length of service.
"We trust each other," said Florida Attorney General Pam Bondi, another of the nine and a leader of the challenge to the Obama healthcare law. "We look out for each other. We are a team."
Many of them participate in monthly phone calls coordinated by the Republican State Government Leadership Foundation, a group that raises money for conservative causes and helped arrange the March news conference. Chris Jankowski, the foundation's executive director, said the calls are focused on strategy and policy yet can involve litigation decisions.
The officials also coordinate their efforts through the Republican Attorneys General Association, another fundraising group. That organization, started in 1999 out of frustration with environmental and other priorities of the then-overwhelmingly Democratic state attorneys general, raises money to help elect more Republicans to state office. The timing of that group's founding was ideal, as Republicans took the White House in 2000 and made great strides at the polls over the next decade. (Democratic attorneys general formed their own group in 2002.)
"POLITICALLY MOTIVATED LITIGATION"
White House spokesman Eric Schultz said in an email that the Republican lawsuits against the administration amount to an "unprecedented wave of politically motivated litigation." He questioned how much it might be costing taxpayers.
Abbott and Bondi said litigation costs are largely absorbed through their in-house legal staffs. For the 26-state healthcare challenge, the states hired outside lawyer Paul Clement, a former U.S. solicitor general under President George W. Bush. Clement agreed to a flat $250,000 fee, divided among the states.
On Wednesday, Clement will be representing Arizona in its defense of its immigration law before the Supreme Court. Clement and his legal team will receive $250,000 for work in preparation on this week's case, said Matthew Benson, a spokesman in the Arizona governor's office.
Among those leading the expanding Republican contingent of state attorneys general are veterans such as Abbott, elected in 2002, and new figures backed by the conservative Tea Party movement such as Bondi, who was sworn in last year. Their lawsuits have touched on a myriad of politically charged issues.
In February, seven Republican attorneys general, including Abbott and Bondi, joined Catholic institutions in a case against the Obama administration and its new contraceptive coverage required by the healthcare overhaul. Separately, Abbott and Virginia Attorney General Ken Cuccinelli have taken the lead in ongoing challenges to U.S. environmental protection regulation.
Many of the Republican top state prosecutors also have vigorously fought against Department of Justice efforts to block state voter-identification and other new electoral rules that could themselves affect turnout and ballot results. Texas and Florida have, in addition, challenged the longstanding federal law that requires places with a history of bias against blacks and other minority voters to clear any electoral changes with the federal government.
U.S. Department of Justice spokeswoman Tracy Schmaler had no comment on those cases or others.
Although at an early stage, the Republican effort has had some success, notably in getting the healthcare challenge to the Supreme Court. And in January, Texas was able to obtain a long-shot Supreme Court hearing for its defense of a voting-district map the Obama administration and Latino advocates said could dilute minorities' voting power.
A lower U.S. court had thrown out the state legislature's map and drawn its own, refusing to use the Republican-controlled legislature's plan as a starting point. After the Texas appeal, argued by Clement, the Supreme Court by a 9-0 vote said the district court should have shown more regard for the legislature's map and sent the case back for further proceedings.
Major Republican challenges related to the environment, including one Virginia joined with industry groups against regulation of carbon-dioxide emissions, now at the U.S. Court of Appeals for the District of Columbia Circuit, are still awaiting resolution.
Texas recently won a lower-profile case against the Environmental Protection Agency. In a preliminary decision on March 26, the U.S. Court of Appeals for the 5th Circuit said the agency exceeded its authority under the Clean Air Act when it rejected a state re-permitting process for certain power plants.
Abbott pointed to that case in answering charges of political motivations. "If this were politics and nothing more," he said, "we'd be tossed out of court."
To be sure, attorneys general, most of whom are elected to four-year terms and whose work mainly involves consumer advocacy and crime busting, still join forces across party lines. "Attorneys general, Republican and Democratic alike over the last 10 years, have become somewhat more partisan and more aggressive," said Iowa Attorney General Tom Miller, a Democrat who was first elected in 1978. "But ... the vast majority of things that AGs do are on a bipartisan basis." In March, 49 state attorneys general (all but Oklahoma's) joined the U.S. government in a $25 billion settlement with five major mortgage lenders to help distressed borrowers.
The fact that the partisan split between states' attorneys general is now nearly even has largely gone unnoticed by the public. But during arguments on the healthcare law, Supreme Court Justice Antonin Scalia wryly asked Clement, who was representing the state challengers, "Is there any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors? Is that possible?"
"There's a correlation, Justice Scalia," said Clement.
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