[This article originally appeared in the Washington Examiner in April, 2015]
West Virginia Attorney General Patrick Morrisey’s op-ed in the April 16th Washington Examiner provides a starting point for a nationwide discussion. The discussion should not concern Morrisey’s latest longshot lawsuit against the Obama Administration, but rather the way attorneys general like him use litigation as a political platform.
Although Morrisey’s methods are likely to be cheered by some in the short run, they are debasing a critical office with litigation that is publicity-seeking, partisan, and worst of all, frivolous.
As Thursday's oral argument revealed, Morrisey’s lawsuit has little chance in the D.C. Circuit or the Supreme Court. The effort to seek an injunction based on mere fears of what an agency might do has to fail, because courts know they would hear nothing but such suits if this one proceeded any further.
Some lawyers only get paid when they win, and therefore have little incentive to file futile cases. Other lawyers get paid by the hour, but still seek to avoid embarrassing losses that would hurt their chances at acquiring future business. In Morrisey’s case, he means to win by losing, so long as great publicity and attention is gained in the process.
Morrisey’s well-timed op-ed telegraphs this again and again. His overheated language about “aggressive assaults,” “skyrocketing energy costs,” the obligatory “Obama . . . must be stopped” rhetoric, and his other grandstanding declarations prefigure not a courtroom victory, but a 2016 political campaign that he began rolling out two weeks ago. The execution may be admirable as professional politics, but it leaves a lot to be desired as lawyering.
Attorneys general used to act something like real lawyers. More recently, they have become more like at-large representatives of their political constituencies and donors. Morrisey might be the paradigmatic example of the trend, even going so far as to misrepresent West Virginia’s implementation of the Affordable Care Act in order to strike a partisan pose.
Energy corporations increasingly see attorney general offices as fertile ground for purchasing political support, but Morrisey is a remarkable outlier in how far he’s taken the idea. Rather than solicit donations from representatives of those his office oversees during his election campaign, he loaned himself $1.4 million to run his race, then began taking donations after the election to pay himself back (he still owes himself nearly $1.3 million today). As a result, Morrisey can go to Harrisburg, Illinois, where coal giant Murray Energy has some nice facilities, and take $46,000 that can be repaid to his own pocket.
Meanwhile, Murray Energy knows as well as Morrisey that the lawsuit cannot succeed. No matter -- it frames a political question they want to push as Morrisey prepares for a possible run for governor in 2016. The anti-administration, pro-coal rhetoric of this lawsuit resonates in Appalachia, and Morrisey and his backers are pleased to keep it in the newspapers.
This case demonstrates why a bipartisan consensus is emerging that politicization and corporate influence are serious problems in attorney general offices all over America. We all pay the price when our attorneys general use their offices as donor-courting political platforms, instead of filing practical, winnable cases that help citizens.