GOP bill aims to strip chief lawyer of duties

By Chas Sisk, Tennessean.com
March 26, 2011

Republicans in the state Senate may try to strip the attorney general of many of his powers and give them to a lawyer chosen by the legislature, a move that proponents say would reshape the office of Tennessee’s top lawyer to reflect political changes in the state.

GOP senators are working on legislation that would create a new state position — the solicitor general — and give that person many of the functions of the attorney general, the state’s official lawyer chosen by the Tennessee Supreme Court.

The idea is one of several proposed this year by Republican lawmakers that would redefine the attorney general’s office. Others include a proposal from state Sen. Mae Beavers to elect the attorney general, as most other states do, and a resolution filed earlier this week by Senate Majority Leader Mark Norris to give the governor the power to appoint the position.

Norris took part in a panel earlier this month on potential changes to the attorney general’s position.

The proposals follow years of jabs at the attorney general from conservative lawmakers over issues such as a state income tax and the federal health-care reform law. Creating a solicitor general would give conservatives an advocate in court without going through the long process of amending the state constitution or waiting for the Supreme Court to name a Republican to the attorney general’s office, proponents say.

“I’m not a fan of waiting forever and ever for something that might occur or that might not occur,” said state Sen. Stacey Campfield, R-Knoxville, a backer of the plan. “The way we’re doing it with my bill is the solicitor general would be answerable to the people through the legislature.”

Tennessee is the only state where the attorney general is chosen by its judges. Voters in 43 states elect the attorney general, and six states let the governor or legislature fill the office.

The Tennessee attorney general serves an eight-year term, with the current holder of the office, Robert Cooper, set to leave in 2014.

State’s system unique

Tennessee’s unique system dates back to the state constitution set up after the Civil War. The system keeps the governor or legislature from leaning on the attorney general to take actions they favor, and it discourages political figures from trying to use the position to catapult to higher office, supporters say.

“If a corporation’s going to hire a lawyer, they want to hire the best lawyer they can to get the most objective advice they can,” said Allan Ramsaur, executive director of the Tennessee Bar Association. “That’s our system.”

Supporters of Tennessee’s attorney general say the job also differs from that in other states. He does not act as a prosecutor, and his main job is to advise and represent the governor and the legislature.

“The current system works well and the proof is a long line of independent and respected attorneys general,” Cooper said in a statement.

Conservatives upset

Cooper, however, has ruffled conservative feathers. Last year, he refused to join a lawsuit filed by attorneys general in other states challenging the federal health-care reform law.

Cooper told lawmakers that courts probably will find the law to be constitutional, and if they do not, the result in Tennessee will be the same, whether it joins the suit or not.

Conservatives also point to attorney general opinions before Cooper’s tenure that suggested a state income tax would not violate the Tennessee Constitution, and they say the attorney general has shown a pattern of favoring Democratic positions in countless low-profile opinions.

“He’s refused to do things that we’ve asked him to do,” Campfield said. “It’s a partisan position.”

Soon after Cooper’s ruling on the health-care law last year, the state Senate passed a resolution calling for a constitutional amendment that would make the attorney general’s position elected.

The resolution was not taken up in the state House of Representatives.

Last month, a Senate committee voted again to place the same amendment on the ballot for 2014. The goal is to place the attorney general’s position closer to the voters, said Beavers, the resolution’s sponsor.

“We have a Supreme Court that is not elected by the people, so the attorney general is twice removed from the voters of this state,” she said.

But Beavers said she has held back on moving her proposed amendment through the legislature this year. Proposals such as the bill backed by Campfield, which would take away some of the attorney general’s powers while leaving the office itself intact, could accomplish the same goal without the time and trouble of a constitutional amendment, she said.

“That can happen a lot faster than what I’ve got,” she said.

Idea tried before

Campfield is not the first lawmaker to propose stripping the attorney general of his powers. Five years ago, a bill was filed that would have created a solicitor general’s position that would be elected.

But Cooper’s predecessor, Attorney General Paul Summers, said in an opinion to the legislature that such a plan would violate the state constitution’s separation of powers clause. The proposal died in the legislature without coming to a vote.

“I spoke about that issue every year I was attorney general,” Summers said. “It seems like we’re hearing more of it now, quite frankly because they’ve (GOP critics) got the numbers.”

Legislative staffers are working on a new bill that would get around the objections raised by Summers. How it would do so, Campfield said, is still being worked out, but the idea is to have a solicitor general chosen by the legislature while giving some oversight for the office to the attorney general.

Legislative staffers estimate a solicitor general’s office would cost the state $426,100 a year, assuming most of its personnel would be transferred from the attorney general. The measure should be ready before the legislative session ends later this spring, Campfield said.

Summers, however, said critics of the attorney general should simply be patient. With a Republican governor and large GOP majorities in both chambers of the legislature, it is nearly inevitable that a Republican will soon be appointed to the attorney general’s position.

“It’s a solution desperately in search of a problem,” he said. “I would suggest that if they would just wait around awhile, it will get to them.”

 

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