A Case Study: How the Kentucky Attorney General Affects National Democracy

More than halfway through his four-year term, Kentucky Gov. Matt Bevin has now been sued by Attorney General Andy Beshear four times. Beshear is challenging Gov. Bevin’s increasingly routine attempts to capture power from the Kentucky state legislature, and thus far, the courts have ruled with Beshear—leaving Bevin down for the count.

Bevin has attacked Beshear multiple times, accusing the attorney general of using his position for political gains rather than acting as attorney for the people. Bevin has also expressed the belief that Beshear’s only intention is to embarrass the governor—in one instance, sending Beshear an unsolicited text message calling his office “an embarrassment.”

As Beshear noted to the HPR of Bevin, “[the governor] obviously takes challenges to his authority very personally. In the past, most governors haven’t taken challenges so personally. And when they do take it personally, it sensationalizes it a bit, but it doesn’t change the job.”

This position, elected to four-year terms, is an important check on the governor in a state with a strong executive. As former Kentucky Attorney General Jack Conway pointed out to the HPR, “Constitutionally, Kentucky has a very strong governor, and you need a few checks here and there.” In a state with a strong executive and weak legislature, more checks on power must be in place in order to protect the rights and interests of the people. The attorney general demands separation from the executive in order to truly serve as a check to balance out the authority of lawmaking at the state level. For this reason, Bevin’s recent comments on the attorney general are extremely alarming to democracy in Kentucky and around the nation.

A Call for Change

In September, Gov. Bevin floated the idea of amending Kentucky’s state constitution to allow the governor to appoint the attorney general—a move that would have a significant impact on a state with a legislature that is rarely in session. In even-numbered years, the Kentucky General Assembly is in session 60 days and only 30 days in odd-numbered years. With such sparse time to challenge the governor, other checks must be in place. This is where the attorney general comes in.

Regarding Bevin’s attempted actions, Beshear noted that “[Bevin] is seizing important powers from the legislature,” He added, “What most people don’t realize about these lawsuits is [they are not] about the attorney general versus the governor, [they are] about the executive branch versus the legislative branch. I’m just the one who’s given the constitutional duty to enforce those separations of power.”

Tim Holman, an award-winning high school teacher of government in Louisville, Kentucky, also explained to the HPR why some Kentuckians are so reluctant to provide the governor with this appointment power: “If you truly want to put the law above men, you really need that check of an independent attorney general.”

Kentucky would not be the first state to establish the attorney general position as an appointed rather than elected one; seven states currently appoint their attorneys general. Still, these states experience severe setbacks in terms of the role their attorney general plays as a check on the governor. While a handful of states have other checks in place, either judicial or legislative, Kentucky’s democratic process would be dangerously weakened by changing this selection process. More importantly, other states may choose to follow suit, creating a snowball effect that could hurt the democratic makeup of state governments across the country.

Appointment: A Dangerous Game

One may argue that the appointment of the attorney general at the state level causes no real harm, for Kentucky’s processes would then mirror those of the federal government. The federal government, however, is an entirely different animal. Congress is in session full-time with only regular recesses, creating a permanent and powerful check on any president who violates the Constitution. For this reason, the federal attorney general position is safe to be appointed—in this instance, Congress instead acts as the major check on the executive’s power; the attorney general does not need to do so.

In addition, holding a national election for the attorney general is troublesome for multiple reasons. The president is the only nationally elected individual in the United States—a testament to the importance of our executive position and its legitimacy. Additionally, the attorney general would suffer a loss of independence if elected at the national level, as candidates would be forced to align with a political party in order to acquire campaign money and support. Lastly, an election would also open the floor to possible attorneys—or those without law degrees—to throw their hat into the ring, potentially resulting in an under-qualified attorney general.

If this check is removed at the state level, however, Kentucky could look quite different.

As Conway explained, the executive in Kentucky is extremely powerful, yet the state legislature meets rarely and is thus unable to keep a watchful eye over the day-to-day actions of the governor. United States Rep. John Yarmuth (D-Ky.) confirmed this in a recent interview with the HPR: “Particularly because the Kentucky General Assembly is not a full-time legislature, the need for a check-and-balance on a continuing basis is very important.”

As Beshear noted, “Just look at where Kentucky would be right now if not for the independent check of the attorney general. You would have a governor who would illegally cut and continue to illegally cut university budgets. You would have a governor that blows up university boards at any time for any reason…. You would have illegal budget cuts in excess of allowable amounts.” Beshear’s repeat challenges thus provide this continued check on Bevin’s power—confirming the remarks to the HPR of former Kentucky Attorney General and Gov. Steve Beshear that “the attorney general is the people’s general.”

A National Impact

As of now, only seven states do not elect their attorney general. In Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming, the governor appoints the attorney general in the same fashion that Bevin would like. Maine’s state legislature selects its attorney general, while the state supreme court of Tennessee handles the same decision. All other states hold popular elections for the attorney general.

In the aforementioned states, only in Alaska and Wyoming is the attorney general able to be dismissed by the governor. It is unclear whether Bevin is pushing for this power.

In addition, attorneys general that are not independently elected do not see the same influence that their elected counterparts do. Conway used New Jersey as an example, where Bridgegate, a massive political scandal involving intentional lane closures and traffic jams, resulted in two indictments of members of Gov. Chris Christie’s (R-N.J.) staff, but no action directly against the governor. Furthermore, the investigations were conducted by the United States Attorney’s Office, not state officials. If there had been an independent attorney general, the governor and other officials may have seen more punitive consequences from within.

If Bevin, a controversial outsider in his first term as governor, were able to amend Kentucky’s state constitution, he could become more than an unconventional, eccentric revolutionary, turning into a dangerous, authoritarian trend-setter. Without the independence of the attorney general, executives wield a dangerous authority with little standing in their way—Beshear’s challenges provide these vital obstacles.

Image Credit: Wikimedia Commons/Kittugwiki

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