Mounting tensions between Idaho lawmakers and the Attorney General’s office have revealed a political power struggle over whether the state’s elected officials should be able to pursue legal opinions that match their own interests.
Gov. C.L. “Butch” Otter announced April 4 that the office of Attorney General Lawrence Wasden needs to be scaled back and no longer be in charge of providing legal counsel to state agencies. Meanwhile, the Republican supermajority in the Idaho Legislature has found ways to funnel money for third-party legal opinions and has floated several legislative proposals directing Wasden’s office on what to do.
“This is not an attack on the attorney general so much as it is frustration with the system,” Otter said. “I would relish a change.”
The attorney general’s office represents the state in legal disputes and issues legal advice to state agencies and the Legislature. If lawmakers ignore that advice — which happens regularly — the attorney general is still required to defend and enforce those laws.
The job also has meant sometimes pitting himself against members of his own Republican Party. In 2010, Wasden successfully sued the Idaho Land Board alleging they violated the state Constitution by setting rents below-market value on state-owned lakeshore lots. The board is made up of Wasden, Otter and three other constitutional officers. House Majority Caucus Chair John Vander Woude floated a bill that would kick Wasden off the board. While it failed this year, the proposal was supported by other House leaders.
Wasden has maintained that most lawmakers, including Otter, have not talked to him about their concerns. Wasden also counters that the 20-year old system of having the state’s chief legal officer represent most state agencies and commissions has saved the taxpayers millions of dollars. Before 1996, state agencies hired their own counsel, typically much more expensive than using state attorneys.
“Do voters want attorneys who will be cheerleaders for agencies or attorneys providing legal advice based on the rule of law?” Wasden asked.
As a constitutional officer, Wasden answers to voters and not the governor or Legislature. Lawmakers can limit Wasden’s job by either drastically reducing state funding or going to private attorneys for legal counsel. However, stripping Wasden’s powers requires a constitutional amendment. Lawmakers and state officials are protected under client-attorney privileges, which can result in clients freely criticizing the attorney general’s office even though neither Wasden nor his staff can freely respond.
According to the National Association of Attorneys General, the seat sits at the “intersection of law and public policy.” Under Wasden’s tenure, that has meant devoting resources on issues like prosecuting Internet crimes against children, championing access to public records and consumer protection.
Wasden also came under fire for refusing to sign a waiver to allow a shipment of spent fuel rods to be sent to the Idaho National Laboratory. Wasden argues that the U.S. Department of Energy missed one of its cleanup deadlines.
This year, Rep. Jeff Thompson, R-Idaho Falls, introduced a non-binding resolution urging Wasden to sign the waiver. The resolution passed with minimal opposition in the House.
“I can’t predict when someone is going to introduce a resolution in a House committee that (passes) without a hearing. I can’t predict what someone might say at a press conference. I can’t predict when someone might introduce a constitutional amendment to take me off the Land Board. I really can’t predict those things, but I certainly stand ready to have those conversations,” Wasden said.
The political power struggle shows no sign of stopping as lawmakers have vowed to renew their efforts in next year’s legislative session.
Right before adjourning for the year, Senate Majority Leader Bart Davis announced on the Senate floor that he was relinquishing holding the attorney general’s budget as hostage after refusing to allow lawmakers to vote on it for more than a week.
His reasoning? It was too late to make any systematic changes to the office. However, Davis vowed to come back next year with a proposal that would see big changes in 2017.