Lawmakers’ Latest Power Grab: Just the Facts


H.5072  one of the most brazen acts of legislative retaliation we’ve ever witnessed – would allow the House and Senate to authorize a special prosecutor to investigate “alleged” violations of ethics laws by constitutional officers, including the Attorney General. This prosecutor would also be empowered to investigate “other officers,” a term that may include legislators. (More on that below.)

If authorized, the special prosecutor would be appointed jointly by the Senate President Pro Tem and the House Speaker. The prosecutor would also be entitled to the full resources and use of the state grand jury.

Since this bill would violate the state constitution, legislators have introduced another bill – H.5073 – which creates a ballot proposition to amend the constitution. The amendment would strike constitutional language that gives the Attorney General all of his legal powers – effectively deleting that office in all but name from the constitution.

Proponents of the bill argue the bill is necessary to maintain “separation of powers,” but that is flatly untrue. Below are three arguments some of the legislation’s supporters have put forward, together with a realistic analysis.

What proponents claim: There aren’t enough checks on the Attorney General. In order to maintain the balance of power, the legislature should be empowered to launch investigations of the A.G.

The facts: There are already numerous checks on the Attorney General – indeed, more than there are on the legislature.

First, the A.G. is subject to impeachment under Article XV, Section 1 of the state constitution. “The House of Representatives alone shall have the power of impeachment in cases of serious crimes or serious misconduct in office by officials elected on a statewide basis, state judges, and such other state officers as may be designated by law.”

Second, the Attorney General can be removed from office by the governor under Article XV, Section 3 of the constitution: “For any willful neglect of duty, or other reasonable cause, which shall not be sufficient ground of impeachment, the Governor shall remove any executive or judicial officer on the address of two thirds of each house of the General Assembly.”

Third, the Attorney General is accountable to the State Ethics Commission for all matters related to campaign finance.

Fourth, in some instances the Attorney General may also be held accountable by the local solicitor in the county where the crime is committed.

What proponents claim: The Department of Administration (DOA) bill gives the governor too much power, so we need to give the legislature more power.

The facts: The DOA bill barely gave the governor any more power than she had previously. The Budget and Control Board was essentially renamed to the State Fiscal Accountability Authority. The government is still essentially controlled by the legislature. Enforcement of the law is an executive function, not a legislative function. Lawmakers already have the power to investigate and punish each other, effectively putting themselves beyond the law’s reach. Additional powers over the executive branch are completely unwarranted.

What supporters claim: The bill has nothing to do with the current matter related to the Speaker, and wouldn’t apply to the General Assembly at all.

The facts: A 1962 Attorney General opinion defined “constitutional officers” as follows: “when the Constitution creates an office and fixes the term thereof and prescribes the mode to filling it, the legislature is without power to abolish the office, or remove or suspend the officer, unless authority for such action can be found in the Constitution.” In effect, House members (and senators, for that matter) could be considered constitutional officers, and in that case this bill would allow the legislature to authorize a special prosecutor in the matter currently pending against the Speaker.

Legislators – specifically sponsors of these bills – have tried to defend them as some sort of “clarifying” measure. In fact, the only thing this bill would clarify is that the legislature can and will assume more power from either of the other branches of government the moment a legislative leader feels threatened.

Of course, the fact that these bills were introduced “without reference” – allowing them to bypass the usual committee process – makes all these highminded rationales sound pretty silly. There’s clearly more going on here than a concern for the separation of powers. Lawmakers should be clear about what the bills’ purpose is.

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