(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.
General Tom Horne speaks about weapons and drugs seized from the Mexican Sinaloa cartel during "Operation Pipeline
Express" at a news conference in Phoenix, Arizona October 31, 2011. REUTERS/Joshua Lott
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.
SOME
SUCCESS
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.
(Reporting By Joan Biskupic; Editing by