Texas Governor Greg Abbott recently proposed a few changes to the constitution. This isn’t the first time elected officials or polticial pundits have suggested these kinds of changes, although it is always interesting to see the suggestions, and consider what would happen if these were in place. Abbott’s proposas include requiring a supermajority of the Supreme Court for certain decisions, and preventing Congress from regulating commerce that occurs exclusively within a state.
The most interesting proposed amendment I’ve seen came from a Slate series about potential changes to the US constitution. Garrett Epps suggested making Attorney General an elected position rather than a cabinet position, under the logic that it would be the people’s lawyer rather than the President’s. The election for that office would be held in the midterms.
He would have amended Article II Section 1 of the Constitution as follows…
Office of the Attorney General
The legal, law enforcement and investigative functions of the Department of Justice and other legal duties as shall be specified by law shall be vested in one attorney general, who shall be elected by vote of the people for a term of four years during those years in which members of Congress shall be elected but no presidential election shall be conducted.
The attorney general shall represent the United States and shall conduct the law-enforcement and investigative functions of the department, and all other duties as shall be assigned by law, in conformity with this Constitution, laws made pursuant to it and treaties made or which shall be made under the authority of the United States. In conducting his duties, the Attorney General shall at all times safeguard the public interest.
The attorney general shall give the president legal advice, in writing, at the president’s request and at other appropriate times and shall inform the president of the actions taken by the Justice Department, and shall attend sessions of the Cabinet; however, the president may not require the resignation of the attorney general.
The attorney general shall from time to time give to the Congress information of the state of the legal and law-enforcement policy and actions of the United States, and shall furnish to Congress information requested concerning the same, excepting only such information as may compromise ongoing legal investigations or reveal information properly classified.
Simply put, the office of the attorney general is different in kind from that of, say, secretary of the interior. Most cabinet officials are really extensions of the president. But the nation’s chief law-enforcement officer should be more independent.
That’s why we should consider making attorney general an elective position. Forty-three states have elected attorneys general; in two others, the AG is named by either the legislature or the courts. Only five states have a system of gubernatorial appointment.
The candidates for attorney general could run for office during midterm elections rather than in presidential years. This would ensure an election that would be more about the candidates themselves than the strength of presidential coattails.
And the next time a White House advisor wanted to oust prosecutors for partisan aims, or secure a legal-sounding blank check for lawless executive action, he or she would have to call across town to an attorney general who had an independent constitutional role and who could not be fired for refusing to toe the administration line.
The plan has some advantages. I’d imagine more people would vote in midterm elections if there was at least one national campaign, and it would restrict the power of a corrupt, or just overly ambitious, President. It would establish the justice department’s independence from the White House.
However, it also forces Attorney Generals to be able to wage national campaigns. And it creates a launching pad for the White House that is limited to lawyers. I can’t help but wonder who would have won the elections, and how that would have changed the political landscape. Sometimes, it would have simply been a buddy of the President. And it would often not have been someone who would make a Salon writer happy.
Geraldine Ferraro might have been elected to the office in 1986, as a former prosecutor with national name recognition. Or the same things that doomed her senate campaigns could have doomed a bid for higher profile office. If John Kerry had run for an elected position of US Attorney General, and won in 1998—he had the resume as a former prosecutor and it was a cycle in which Democrats were competitive—he probably would have been Gore’s running mate. 2002 would almost certainly have seen the election of Rudy Giuliani—a former US Attorney with 100% name recognition at the height of his post 9/11 popularity—to the office. 2006, assuming similar political circumstances, would have been a very Democratic year. I could easily imagine a tough primary fight between a lawyer and former Vice Presidential candidate, and a popular state attorney general, resulting in the election of either Eliot Spitzer or John Edwards to national office. So it would have been interesting to see the consequences when their problems gained national prominence.
2010 was a very Republican year, although there weren’t many Republican prosecutors with national reputations. The 2012 presidential field didn’t include a former prosecutor, which is a relatively rare development. Perhaps it would have been an opportunity for 2008 alsorans Fred Thompson and Rudy Giuliani to make a comeback, or for a more obscure figure to develop a national profile. Charlie Crist—a former Florida Attorney General—might have run for this office, avoiding the embarrassment and the switch to the Democratic party that came when Marco Rubio started beating him in the Senate election. 2014 would probably have been Chris Christie’s year—immensely popular Governor and former US Attorney?—allowing him to avoid the reelection bid that led to bridgegate.
It’s an interesting thought experiment, showing the consequences of one aspect of the change. The Attorney Generals would no longer be the President’s men, but they would have their own ambitions.