On Campaign Trail, Attorneys General Walk a Fine Line

Michigan Attorney General Mike Cox, who is running for governor
Photo courtesy of MikeCox2010.com
Michigan gubernatorial candidate Mike Cox is one of 10 state attorneys general running for higher office this year.

Michigan Attorney General Mike Cox filed a legal brief in federal court last week, defending Arizona's new immigration law from an Obama administration lawsuit. Arizona and other states, Cox wrote, have the right to secure their borders if the federal government won't.

Cox filed the brief in his official capacity as Michigan's top lawyer. But it also came in handy for his run to win Michigan's Republican gubernatorial primary on August 3.

The brief is likely to play well with conservative Michigan voters who favor the Arizona law. It landed Cox national TV appearances on Fox and MSNBC, and he has referred to it at least four times from his campaign Twitter account . "Just filed in AZ federal ct to defend the citizens of Arizona — and MI- from Obama," Cox wrote in one dispatch. In another, he criticized Obama for "suing the citizens of AZ 4 defending fed immigration law he refuses to enforce."

Like the nine other attorneys general who are running for higher office this year (seven for governor and two for U.S. Senate), Cox must walk a fine line between the official duties of his current job and the political demands of campaigning for a new one. Sometimes — as the legal brief over the Arizona immigration law shows — the two roles intersect. When they do, it can help candidates politically even as it leaves them open to criticism that they are improperly leveraging their state offices for a boost in the polls.

"It's a patently political ploy in his quest for the Republican nomination for governor," a spokeswoman for Democratic Jennifer Granholm, the current Michigan governor, grumbled about Cox .

State attorneys general, of course, are not alone in having dual responsibilities when they run for other jobs. Plenty of candidates around the country already hold positions of power, and each of them is capable of making policy decisions that are helpful to their campaigns. In Michigan alone, the five-way GOP gubernatorial primary features a sheriff, a state senator and a U.S. congressman; Democrats will choose between a mayor and the speaker of the state House.

Power to be noticed

But attorneys general may have an outsized ability to generate headlines on their own. They are generally seen as state government's second-most powerful leaders, and they have increasingly helped set national policy through a series of multi-state legal actions, from the landmark tobacco settlement that produced an estimated $246 billion windfall for the states in 1998 to more recent deals that helped change the way the social networking giants MySpace and Facebook operate.

This year, Cox is far from alone in facing accusations that he is using the power of his office for political gain. Attorneys general from both parties have found themselves embroiled in similar debates as campaign season heats up.

California's Jerry Brown, a Democrat who has already been governor once and is fighting to win his old job back, spent much of last week making televised public appearances to tout the work he is doing as the state's top lawyer, including expanding the state's DNA database and suing the nation's two largest mortgage lenders. As The Los Angeles Times noted , Brown has yet to air TV ads in the governor's race, and the carefully coordinated press conferences and interviews helped "to keep the Democratic candidate in the spotlight" while his Republican rival, Meg Whitman, invests heavily in TV time.

In Florida, gubernatorial candidate Bill McCollum is one of nine attorneys general who joined Cox's legal brief over the Arizona immigration law last week. But McCollum has come under fire for it even in the GOP primary, where his opponent, Rick Scott — himself a supporter of the Arizona law — complained that McCollum was making an "overtly political move" by joining the court fight over the legislation.

In Pennsylvania, Republican Attorney General Tom Corbett has been leading a months-long criminal investigation into campaign work allegedly done by state legislative employees on the taxpayers' dime. The scandal, dubbed "Bonusgate" because of the taxpayer-funded bonuses reportedly paid out for the campaigning, has helped Corbett cultivate an image as a law-and-order reformer as he runs for governor. But it also has attracted negative attention to his campaign, particularly after his office tried, as part of its investigation, to subpoena a pair of Twitter users who have been critical of Corbett in anonymous online postings.

Democratic Pennsylvania gubernatorial nominee Dan Onorato accused Corbett of using his office to bully political opponents, while labor unions and other groups have called on the attorney general to step down while he runs for governor. Corbett, however, has flatly rejected the notion.

"The people of Pennsylvania elected me to be the attorney general," he said in an interview with Stateline in April. Resigning, he said, would go against the will of the electorate. He also noted that in Pennsylvania, "it's not a tradition and it's not a law" for attorneys general to step down when they run for governor.

Avoiding conflicts of interest

Only Virginia has an informal tradition in which attorneys general step down after they announce they are running for governor — as the state's current governor, Republican Bob McDonnell, did last year when he launched his gubernatorial campaign.

New York Attorney General Andrew Cuomo has taken precautions not to be accused of a conflict of interest this year, although he has stopped short of stepping down. Cuomo recused himself from a pair of investigations into Governor David Paterson — who, at the time, was his likely opponent in the Democratic gubernatorial primary. Paterson has since dropped out of the race, leaving Cuomo as the front-runner.

In some instances, attorneys general who do resign find themselves caught in a Catch 22: They are accused not of misusing their offices for political gain, but of abandoning the jobs they were chosen to do. That's what happened in New Hampshire last year, when Kelly Ayotte, the Republican attorney general, stepped down to run for the U.S. Senate. Ayotte, the state Democratic Party chairman complained, was "deserting the people of New Hampshire in favor of personal ambition."

Adding to the scrutiny attorneys general are receiving this year is the fact that they have become closely involved in the national debate not only over immigration, but over the controversial health care law Obama signed in March. At least a dozen attorneys general — all but one of them Republicans — have challenged the federal law in court, including all three who are running for their states' GOP gubernatorial nominations: Corbett, Cox and McCollum. That could help win political points in an election year that is dominated by anti-Washington sentiment.

James Tierney, a former Maine attorney general and the director of the National State Attorneys General Program at Columbia University, says it should come as no surprise that candidates emphasize the positions they take, particularly when they align with popular opinion in a way that might help them win elections. But Tierney cautions against reading much into their positions on national issues such as immigration and health care, noting that governor's races, in particular, are more likely to be about the local economy than any criminal or civil litigation the attorney general is pursuing.

"The overwhelming issue in every election is going to be jobs and the state budget," Tierney says. "It could be that an entire attorney general's record is irrelevant to their campaign for governor."


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