ChangeServant: October 2005

On November 8th, Virginia voters will choose the man who will be their lawyer for the next four years. The Virginia Attorney General is, in fact, the people’s lawyer serving as our advocate on consumer matters, defending our decisions as jurors in criminal appeals, protecting our investments in charitable organizations and institutions, initiating and overseeing prosecution of government fraud and conflicts of interest, and advising the state officials and agencies who serve us.

Just as you choose carefully the lawyer who advises your business and your family, each Virginian should look carefully at the qualifications and stated priorities of the two candidates who seek election this year as Attorney General, and vote in November for the person you think would best serve you.

Senator Creigh Deeds (D Bath County) currently represents the people of the 25th district, stretching from Bath County to Charlottesville. He was the elected prosecutor of Bath County for four years before his election to the Virginia House of Delegates. He moved to the Senate in 2001, winning a special election for the seat left vacant by the death of Senator Emily Couric. Creigh Deeds says that as attorney general, "I will use my experience working across the aisle to make the office less political and improve the overall efficiency and responsiveness of our government. I will focus on the rights of those victimized by crime and respond to the surge of gang violence, illegal drug use, and domestic violence." For more information visit his website, www.creighdeeds.com.

Delegate Robert F. McDonnell (R VA Beach) has represented the people of the 85th House district in Virginia Beach since 1992. Prior to being elected to the House of Delegates, he served as a prosecutor in the Virginia Beach Commonwealth’s Attorney’s office. He is a retired Lt. Colonel who served in the Army for 21 years (active duty and reserves). Bob McDonnell says that as attorney general he will protect children from violent sexual predators, fight the scourge of drugs and protect Virginians from terroristic threats. For more information visit his website, www.bobmcdonell.com.

Certainly, this information is helpful to those paying attention to this so-called "down ballot race." Nonetheless, there is more that you need to know about these candidates beyond their carefully scripted, politically marketable platforms and platitudes to make an informed choice in November.

Here are some questions that you should be asking both candidates for Attorney General so that you can decide which man to "hire" as your lawyer when you enter the polling booth to vote on November 8th:

How will the candidates represent your interests as "consumer counsel?"

Under the Code of Virginia, the Attorney General is required to represent the "interests of the people as consumers." What does this mean to the candidates for Attorney General? Will either of them take an active role in investigating and enforcing Virginia’s Consumer Protection Act? When she was Attorney General, Mary Sue Terry helped reduce the costs to businesses and consumers of liability and workers’ compensation insurance at a time when premiums were rising and insurance was increasingly unavailable. She did this through legislation she advocated and through aggressive representation of consumers in insurance rate cases pending before the State Corporation Commission.

How will each of these candidates use his authority as Attorney General to represent Virginia consumers? Will he take action to address the malpractice insurance crisis, protect consumers from price gouging during the current gas crisis or prosecute those who deceive consumers by making false claims about their products or services; for example, those businesses who sell international drivers licenses falsely claiming that it is legal to drive in Virginia using such a document?

How will each candidate decide how money from settlements negotiated in consumer class action cases will be distributed?

With the exception of the tobacco settlement funds, the distribution of settlement proceeds from consumer lawsuits is completely within the discretion of the Attorney General pursuant to whatever agreement ending the lawsuit was approved by a court. Some past Attorneys General have distributed money from lawsuits in a manner designed principally to serve their political objectives. One Attorney General distributed money from the settlement of a price fixing lawsuit involving a woman’s shoemaker to so-called crisis pregnancy centers rather than in a manner more likely to benefit directly the consumers who had paid more for shoes because of the company’s anti-trust activities. Another made grants from settlement funds to health care institutions and organizations in jurisdictions that could be of strategic importance in a future campaign.

How will each candidate decide when to challenge or defend a law passed by the legislature, appeal a case or sign an amicus ("friend of the court") brief in a case pending in another jurisdiction?

In past administrations, Virginia Attorneys General, acting on behalf of the people of the Commonwealth of Virginia (their ultimate client), have: 1) refused to defend the legislature’s decision to increase office allowances for members of the House and Senate (the legislature won); 2) defended at trial and on appeal a plainly unconstitutional statute passed by the legislature that sought to ban a particular abortion procedure (the so-called partial birth abortion bill); 3) filed lawsuits attacking the application of certain EPA rules and the federal Motor Voter Law to Virginia; and 4) authored or signed briefs that advocated severe limitations on the right of individuals to sue the state for discrimination under the Americans with Disabilities Act, the Age Discrimination Act and Title IX of the Education Amendments of 1972.

What policy will this year’s candidates follow in making these kinds of decisions? Will their actions reflect their personal beliefs, those of their respective political parties or some other standard? Will they consult with the Governor before committing the people of the Commonwealth to a side in a legal dispute?

How will the candidates interpret the law in official opinions they write as Attorney General? Will the candidates be "activists" or "strict constructionists?

One of the important roles played by the Attorney General is quasi-judicial. The Attorney General is obligated by law to issue a formal opinion regarding how the law should be interpreted when asked by certain public officials. The questions asked each year cover far reaching issues from the legality of "pull tabs" in fraternal lodges to the right of localities to regulate shooting ranges to the Lieutenant Governor authority to vote as "a member of the Senate." An official opinion of the Attorney General is not the same as a court decision, but it is entitled to great deference by the courts. Once an Attorney General issues an opinion, the failure of the legislature to take action to override it by changing or clarifying the law is read by the courts as an indication that the legislature agrees with the Attorney General’s reading of the law.

Just as it is important to know how a judge will apply the law and what regard he or she will have for past decisions, it is important to know how a candidate for the office of Attorney General will approach this quasi-judicial opinion writing function.

One example illustrates well the power the Attorney General can wield through the opinion function. In 1962-63, in 1966-67 and in 1991, three Attorneys General had opined that it was unconstitutional under the Virginia Constitution for public school divisions to provide free bus service to students attending private religious schools. Each of these Attorneys General interpreted the Virginia Constitution as setting a stricter standard for the separation of church and state than is set by the First Amendment. This longstanding interpretation was never addressed by the Virginia legislature nor overturned by the Virginia courts. In 1995, stating simply that "I am of the opinion that these prior opinions do not accurately state the current law," then Attorney General James Gilmore issued an opinion overruling the prior opinions and interpreting the law as permitting local school divisions to provide bus transportation to students attending private religious schools. Ironically, the 1995 busing opinion was requested by and issued to one of the candidates for Attorney General this year, Delegate Bob McDonnell.

Will the candidate be a good steward of your tax dollars?

The Attorney General of Virginia is the managing partner of a public law firm with almost 300 employees and a budget of more than $25 million -- not including almost 60 additional lawyers paid for by various state agencies but supervised by the Attorney General, and the millions of dollars spent annually on outside counsel (private lawyers and law firms) who handle matters ranging from issuance of bonds to mundane collection work. What steps will each candidate take to be sure that dollars spent on the state’s legal work are well invested and that the quality of representation provided to taxpayers is high? What will the candidates do to improve the state’s collection of debts owed and fines and penalties unpaid? How will each candidate account for the $9,000 a year that he will receive as Attorney General for expenses "not otherwise reimbursed?"

Will the candidate’s management practices as Attorney General reflect a commitment to full equality of opportunity at all levels?

Every employee of the Office of the Attorney General is an at will employee who serves at the pleasure of the lawyer elected by the people to serve as Attorney General. Will the candidate seek and hire employees based on merit? Will the candidate commit not to discriminate in employment based on race, national origin, gender, religion, disability, Veterans’ status, sexual orientation or gender identity? Will the candidate commit to ensure that the Office’s hiring and personnel practices reflect a commitment to merit over political affiliation and full equality of opportunity and compensation at all levels of employment? How will each candidate assure that the contracting and procurement practices of the Office of the Attorney General under his leadership assure that small, women and minority owned businesses get their fair share of the state dollars that the Office spends?

How the candidates for Attorney General answer these questions will reveal much about what kind of leader each will be in the role he is now seeking and more about what kind of leader he might be as Governor when he (inevitably, it seems) decides to move up in four years.

Mike Shear writes in the Post today about the tenor of the campaigning in the Virginia governor's race. Citing interviews with "more than two dozen teachers, business owners, college students and homemakers across the state last week," the Post said that " Virginians said they felt inundated by the barrage of ads and unmoved by their messages."

Quoting four women, the Post story went on:

Karen Hudson, 48, of Tazewell called it "mudslinging" and said she is disappointed. Suffolk banker Linda Bradshaw, 32, said she hates the "bashing." Kingstown resident Kathleen Snyder, 39, called it all "a colossal waste of time." And Audrey Davidson, an administrator for the Halifax County public school system, said the race has devolved over the past six months.

"Initially, we had two saints running for office," Davidson said over lunch at Ernie's Restaurant in South Boston. "Now, we find out that we have two men with the Devil as an opponent."

But, the Post says despite the voter reaction, "national experts in political advertising say the attack strategy works, so it continues."

Now, I'd like to know the definition of "works" used by the "national experts" .... particularly in Virginia which ranks 36th out of 50 states in the number of women registered to vote and 33rd in the percentage of women who turn out.

The story quotes experts on the emotional influence of the ads, but doesn't give any indication about just what effect the ads have on voter behavior... are they influenced to vote? Or, are candidates satisfied if they just depress turnout among the other candidate's voters?

I've written on this blog before that I think that testosterone driven political fights turn women voters off and depress turnout. I said it after Kerry held his midnight press conference to attack Bush's nomination acceptance speech, and I say it again now .... acting like two rams butting heads or, worse yet, two kids throwing sand in a sand box ... won't get women to the polls.

Do I have studies? No, but I've got lots of women friends and relatives who provide strong "focus group" feedback.

Last August, I wrote in a Daily Press oped about what I thought Democrats should do to increase turnout among women:

Democrats should stop wringing their hands about whether their party and their candidates appeal to NASCAR dads and tax-phobic men over 55 and worry more about connecting with, registering and turning out women (and minority) voters
in Virginia.

Women are listening. All we need to create the emotional spark -- the "torque," as I call it -- that helps drive women voters to the polls, is for our candidates to speak loudly, and with authenticity and concern, about the everyday issues of concern to women ... : equal pay, preventing violence against women, caregiver issues, work/life balance, women's health. Issues that appeal to the sandwich generation and Gen-X alike.

Issues that appeal to real women with real lives.

Sadly, this is not the "strategy" that we see reflected in this year's statewide races.

So, what does this mean about the definition of "works"?

Perhaps, in the refined world of the national experts, it means, that negative campaigning "works" because it depresses turnout generally but energizes the minority of voters who are "true believers" and who increasingly drive national policy into polarized conflicts and politicians to extremes of their parties.

Perhaps it means that negative campaigning "works" because fewer women vote, but that's okay because it means the men stay in charge even though they are a minority of the US population.

Or, perhaps it means that negative campaigning "works" because none of the "national experts" knows how to run a truly inspirational campaign that galvanizes voters across a wide spectrum, so they resort to what "works" ... mean spirited, ennervating campaigns that wear most people out before election day and leave the decision about who will lead us to the few among us who are motivated to vote by passion driven by enmity or "true" belief.

Wouldn't it be refreshing if someone really tried to run a campaign that inspired?