State attorneys general are among the most powerful office holders in the country. Unlike governors and legislators, each state’s top elected lawyer has fewer institutional checks on his or her powers. Yet, with the possible exception of former New York Attorney General Eliot Spitzer, the power wielded by attorneys general receives very little scrutiny from the media, voters, and even tort reform advocates. The following discussion of the nation’s worst attorneys general is an effort to trigger much-needed attention to their most egregious abuses of power.
The historic function of a state attorney general (AG) is to defend the state in court and to give opinions to the governor and legislators on pending bills and policy decisions. In some instances, attorneys general have been entrusted by state legislatures with enforcing certain statutes,[ii] assisting district attorneys in prosecuting serious crimes, or disseminating information on legal issues confronting the state.
Like other government offices, the office of attorney general was designed to have limited powers, set forth by statute and constitution. Under all state constitutions, it is the legislature, not the state attorney general, which is vested with the authority to make laws and prescribe remedies for violations of the law. State constitutions give the attorney general no power to make or rewrite law. In fact, if the legislature has not conferred the authority on an attorney general to enforce a particular law, then the attorney general may well be exceeding his authority by bringing suit under it, violating constitutional checks and balances.
Federal law also limits attorney general power. If he attempts to regulate conduct in another state, that may violate not only state law, but also the due process and commerce clauses of the U.S. Constitution, which forbid any state to impose its laws on another state, or to regulate commerce among states.
Unfortunately, many state attorneys general today find those constraints inconvenient. Over the past decade, attorneys general have increasingly usurped the role of state legislatures and Congress by using litigation to impose interstate and national regulations and to extract money from out-of-state defendants who have little voice in a state’s political processes. The worst offenders flaunt such abuse of power, with the most notorious of the lot, Eliot Spitzer, boasting that he “has redefined the role of Attorney General.” This sort of activism may benefit the political and policy ambitions of the office holder and his allies, but it imposes real costs on consumers, businesses, the economy, and our democratic system. The wave of lawsuits brought by state attorneys general has fostered corruption, circumvented legislative checks on regulation, taxes, and government spending, made the workings of government less transparent, and diverted attention away from their core responsibilities—enforcing state laws, defending state agencies against lawsuits, and providing legal advice to public officials.
Although these abuses are widespread, some attorneys general are worse than others. Based on a set of explicit criteria—such as encroachment on the powers of other branches of government, meddling in the affairs of other states or federal agencies, encouragement of judicial activism and frivolous lawsuits, favoritism towards campaign contributors, ethical breaches, and failure to provide representation to state agencies or to provide legal advice—the following state attorneys general have earned the dishonor of being the nation’s Top Ten Worst:
1. Richard Blumenthal, Connecticut
2. Bill Lockyer, California
3. Eliot Spitzer, New York
4. Zulima Farber, New Jersey
5. Patrick Lynch, Rhode Island
6. Darrell McGraw, West Virginia
7. William Sorrell, Vermont
8. Lisa Madigan, Illinois
9. Peg Lautenschlager, Wisconsin
10. Tom Reilly, Massachusetts