Attorney General Herring’s Legislative Package

by James C. Sherlock

The Virginia Constitution (Article V, Section 5) assigns the Governor legislative duties. He is the only member of the Executive Department assigned such duties. The Attorney General has, well … none.

Of the duties of the Attorney General (Article V, Section 15), the Virginia Constitutions says only: “He shall perform such duties … as may be prescribed by law.”

The Attorney General heads the Office of the Attorney General, also referred to as the Department of Law. Under the laws of Virginia, primary duties of the Attorney General include:

  • Provide legal advice and representation in court for the Governor and the state in general and to members of the Virginia General Assembly and local government officials;
  • Defend the state in cases or criminal appeals and suits filed against the state;
  • Prosecute significant crimes; and
  • Defend the constitutionality of state laws.

Those duties illustrate why the Attorney General was not given legislative responsibilities in the Constitution.

It is impossible for him to both advocate for or against laws and be seen to be faithfully executing his duties. Virginians will always wonder whether such an advocate will fairly execute the laws or fairly advise the Governor and General Assembly.

Most importantly, there is the issue of the fact or appearance of public corruption.

The Attorney General, like other Virginia state and local elected officials, is the recipient of unlimited campaign donations.

Attorney General Herring set up One Commonwealth PAC in March 2014 to raise political donations. Major donors include Altria, HCA (hospitals), Brambleton Group (Ashburn homebuilders), McGuire Woods, American Federation of State County and Municipal Employees (AFSCME), Facebook, Williams Mullen, Genworth Financial, Anthem, Mid-Atlantic Laborers’ Political Education Fund, Service Employees International Union, Va AFL-CIO — you get the picture.

Another Herring donation center is the Democratic Attorney Generals Association of Virginia. Major donors are Rent A Center, Beverly Enterprises (Nursing Homes), Altria (again), Citigroup, Sprint, Service Employees International Union (again), Capital One, AstraZeneca Pharmaceuticals, Pfizer, major law firms and many more.

In all of his various fund raising committees, Mr. Herring has received nearly $3.5 million from single issue groups, $2.3 million from law firms, $1.27 million from organized labor and $378,000 from public employees.

Code of Virginia § 18.2-447. When person guilty of bribery.

“A person shall be guilty of bribery under the provisions of this article:
(2) If he accepts or agrees to accept from another (a) any pecuniary benefit offered, conferred or agreed to be conferred as consideration for or to obtain or influence the recipient’s decision, opinion, recommendation, vote or other exercise of discretion as a public servant or party official, or (b) any benefit offered, conferred or agreed to be conferred as consideration for or to obtain or influence either the recipient’s decision, opinion, recommendation, vote or other exercise of official discretion in a judicial or administrative proceeding or the recipient’s violation of a known legal duty as a public servant or party official;”

From Mr. Herring himself:

“I hold myself and the employees of the Office of Attorney General to the highest ethical and legal standards.” https://oag.state.va.us/our-office/about-the-office

So imagine my surprise when I read this press release from the AGs’ office.  The headline was:

“ATTORNEY GENERAL HERRING’S LEGISLATIVE PACKAGE TO GO INTO EFFECT TOMORROW
~ Herring’s legislative package helped to make 2020 the most progressive legislative session in Virginia history, includes bills that will make Virginia’s criminal justice system more fair, equal, and just; protect vulnerable communities; protect consumers; and more ~”.

“I want to thank my colleagues in both the Senate and the House for helping to pass my priorities this year. And I look forward to seeing how much more we are able to accomplish next year.”

You should read the entire press release — an official press release/campaign document prepared by state employees at state expense. It is extraordinary.

We are left to wonder about the reaction of the Governor and the Democrats in the General Assembly to the Attorney General claiming credit for legislative victories.

This brings me to the letter I recommended be sent by one or more General Assembly Members to the Attorney General asking for an opinion on a list of questions concerning public employee collective bargaining.

As I understand it, that letter is in the mail to the Attorney General from a sitting Senator.

Will Mr. Herring’s answer be informed by Virginia law or the more than $1.6 million that organized labor and public employees have contributed to the Attorney General? We will find out.

In case you missed it, Mr. Herring wants to be Governor. The transition should be easy.

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40 responses to “Attorney General Herring’s Legislative Package

  1. Former AG Mary Sue Terry probably was not the first with such a “legislative agenda.” But the former legislator so upset her former House colleagues with such behavior in the mid 1980s that they passed a bill preventing attorneys general from running for governor. Wrote that up during my reporter days and thought it was quite a slap. But it didn’t become law, and the pattern has been set.

    AG Earley, my boss, had such a package and crowed about his successes, so I can’t point any fingers. One of the many great bills I have in my head, that will never pass, would create a felony offense for using state employees or state resources on a campaign activity for, oh say, one second….Pass that and both the AG and LG (and perhaps even the Third Floor) could trim much staff.

  2. Jim is among those who are questioning our institutions and it’s actually something we should be doing but it would be better if it were done on a truly non-partisan basis instead of being perceived as weapons aimed at one side.

    Haner is on the right track IMHO.

    As a practical matter – I would expect the AG to look at laws as currently written and enforced – and to render an informed opinion about them and potential changes needed.

    I don’t see that as a nefarious thing.

    For instance, I’m pretty sure you’ll hear from Sheriff’s associations about their legislative thoughts…

    I know the police organizations come on strong on laws sometimes – like for instance, the proposal to do away with state inspections…
    Is that a conflict on their part since they enforce that law?

    How about drug laws? Doesn’t law enforcement weigh in on those laws?

  3. “Defend the constitutionality of state laws. …
    It is impossible for him to both advocate for or against laws and be seen to be faithfully executing his duties.”

    Well, it is impossible to extricate oneself from the requirement to defend and not advocate for or against. If your lawyer is supposed to defend you, certainly an integral part of any defense is to a priori warn.

    • For example, and this is just a hypothetical situation, suppose the GA and Governor were contemplating a law, oh, I dunno, lemme just spitball, that is so outrageous that it has maybe a 15 minute life expectancy.

      Hmmm, oh, I got it. Suppose the law would actually require a man to undergo an invasive medical procedure. Hey, I got it, a law that demands a transanal ultrasound of his prostate gland to receive a prescription for Viagra.

      I know, it’s a stupid example, and no State could ever contemplate such a law, but roll with me here. Don’t you think that an intelligent AG might just want to … what’s another word for a lawyer? ADVOCATE.

  4. I see now. An attorney general is not supposed to have any ideas on law

    • Crickets.

    • Peter, again you have lost your way. “any ideas on law”. Really. That refers to nothing I wrote.

      I have offered in this post an analysis of the role of the Attorney General under Virginia’s Constitution and laws.

      I have offered the observations that:
      1. Only one member of the executive branch has legislative responsibilities, the Governor;
      2. Since the AG has prosecutorial discretion, he should not be seen to favor one law over another, but rather be seen to enforce them all;
      3. Virginia’s lack of limits on campaign donations make the Attorney General beholden to major contributors, calling reasonably into question the ethics of his taking a position on laws that favor or disfavor his largest contributors; and
      4. for those reasons, since his responsibilities are demonstrably executive and not political, he should at least avoid having his own legislative agenda.

      If you cannot agree with that, since it applies to Democrats and Republican Attorneys General equally, please inform all of us of the basis for your comments.

    • Peter, I read it.

      My analysis of the constitutional and legal responsibilities of the Attorney General has no connection whatsoever to your insights “Inside the Mind of Attorney General Mark Herring”.

      That is more information than anyone needs to assess what he is legally entitled to do and ethically should do vs. what he has done.

      The stink of mindless hubris and public corruption won’t be covered up by the perfume of a fanboy article.

  5. A fair number of blog posts here are pointed at Virginia, Northam, Herring, VDH, etc… and that in and of itself is fair game IF it’s a problem in Virginia and not in other states.

    For instance, DJ often makes the case that one-term for Gov is an issue.

    Or that we tend to be a Dillon Law state and not a Home Rule.

    With respect to Herring – pull back and look at AG in Virginia over several terms – both GOP and DEM and ask if the Dems are doing something different than the GOP did – and beyond that is the AG in Virgina doing something different than other states AGs?

    I’m not saying that a “wrong” is “okay” if all other states are also doing it – but at least make the distinction that this issue is not unique to Herring as a Dem or Virginia as a State.

    There are no shortage of things that Virginia does “wrong” IMHO – as a state – both Dems and GOP – and those are fertile ground to plow.

    And that has been one of the really fine things about BR in the past and sometimes even now…

    • Larry, the “they all do it” defense is the last refuge of the scoundrel.

      • Jim – if it were actually wrong, maybe but even then you’re impugning just about every AG in the country – GOP and DEM except you’re acting like only Herring does it!

        If you think that kind of thing is wrong across the board – make your case that way. Just making Herring a partisan target undermines the credibility of the premise.

        What Herring is doing is fairly standard practice and accepted widely as legitimate..by both parties in most states.

        If that practice is wrong – then attack the practice not one guy.

  6. As Steve has pointed out, AGs of both parties have been doing this for many years. So, Herring is continuing the tradition.

    One of my dreams is there will be a candidate who makes the following announcement:
    “I am running for the office of Attorney General because I think it would be an honor and a challenge to be the head of the Commonwealth’s law firm. I pledge to voters that I have no ambition for any other office and, if elected Attorney General, will not run for any office other than Attorney General in the future.”

    That person would have my vote, no matter who else was running.

    • And this is where rank choice balloting might have a real opportunity to put a truly independent candidate into that office and reject the Dem and GOP candidates… and change the way we do Governor ….

      Let’s see if Haner, Sherlock and DJ agree…

    • Mine too. I am the staunchest advocate you know of campaign donation limits for Virginia. The fact that we elect the Attorney General, and that in Virginia he has to join the swamp creatures in “dialing for (unlimited) dollars” is a major flaw in our republican form of government. A campaign donation limit in Virginia of say $5000 would put at least a hurdle in the way of the retail purchase of Virginia politicians by high dollar contributors. Now let us find enough politicians to pass that into law.

      • “Mine too. I am the staunchest advocate you know of campaign donation limits for Virginia.”

        Not so quick Captain. You might have some competition from me on that title.

        As I’ve often said … if Washington is a swamp then Richmond is a cess pool.

        The unlimited contributions coupled with a fatally flawed state constitution and the Goebbels – like propaganda of The Virginia Way conspire to make Virginia the most corrupt state in America. However, it all starts with the unlimited campaign contributions.

  7. James Wyatt Whitehead V

    Looking back at history the office of Attorney General has served as a stepping stone to higher office. It worked well for McDonnel, Gilmore, Baliles, Harrison, Almond, and Montague. But this path is often a landmine for others. Just ask Cuccinelli, Kilgore, Earley, Terry, Coleman, and Miller.

  8. Well, where then in the Va Constitution AG job description is the AG’s obligation to challenge the federal constitutionality of federal laws?

    “Cuccinelli had intervened in the case, filed by four Virginians, to support their argument that the wording of the Affordable Care Act meant the penalty could only be levied in states that set up their own insurance exchanges. The penalty will be $95 this year.”

  9. Ah, politics. Liberal pots and conservative kettles calling each other (oh, can’t say that now…) That office is basically an insurance defense firm. The AG’s real job is to advise and protect state agencies so they follow the law in their actions and don’t get sued, and defend them when they do. Lots of exciting contracts to review! It is not “top cop” and it is not “defender of orthodoxy.” But that is all, in a word, boring, and these are people with ambitions…So it has become a stepping stone to higher things. It was a highlight of my life to work there four years, and our team left the office better than we found it.

    Yesterday would have been an ice cream day. AG staffers from that era will get the reference.

    I need to go back and find that bill about AG’s not being able to run for Governor. I’m thinking it was Ted Morrison’s bill, but there were several leading lights in those days. Time to try it again?

    • Well, if that’s an idea no matter what party. I get skeptical when it pops up with folks in the opposite party but AWOL when the AG is putting clothes on a female statue or going after UVA climate scientists for supposed crimes..

      both sides – if you wanna do it – do it without a partisan intent.

    • Burnt? You can’t say burnt? Sheesh, you should come over for one of my spousal unit’s roast beef dinners.

      “It was a highlight of my life to work there four years, and our team left the office better than we found it.”

      Well, of course. Your first two years were in service to the King.

  10. I was expecting a morning “outrage” after Northams latest actions!

    And horror of horrors, he’s passing on the Cares act money to localities instead of using it to help the state budget.

    Surely one of the Conservative stalwarts will get on their horse this morning!

    • His steps in Hampton Roads are reasoned and moderate, and I’m glad he is keeping it localized. It’s based on what they are learning from the contact tracing. Good. The federal helicopter money was intended all along to be passed on to localities, etc., so no surprise there. We can find something else to shoot at, I’m sure. But it’s too hot. Take a break.

  11. Lordy – “reasoned and moderate” – Haner are you one of those CINOs?

    Let’s wait for Kerry to weigh in……….

    FYI: ” Secretary of Finance Aubrey Layne said the state had gone beyond its obligation under federal rules to send 45% of the CARES Act money, as opposed to the 15% required under the law. He also said the state’s decision to allocate the money based on population will help all localities, especially if Congress loosens the rules on how they can spend the money.”

    I’m quite sure there is a nefarious motive here… Layne has to be up to no good… That other shoe … probably tax increases, right?

  12. “Fanboy?” Holy mole I write this profile four years ago!

  13. It’s not me, Ripper. It’s Spell Check gone beserk

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