After 11 months of controversy, John Swallow finally left office this week as Utah's highest law enforcement officer. It was none too soon. Swallow enmeshed the office in a series of legal investigations at the federal, state, and county levels. However, what happens now will determine the future of the office of attorney general.
Under state law, the governor has the responsibility for selecting a replacement who will serve until the next general election in November 2014. He will choose from among three candidates recommended by the Republican State Central Committee. (Why a party committee is the best vehicle for nominating the highest state law enforcement officer is a mystery to me!) Some are suggesting appointment by the governor should be the permanent mode of selection of the state's attorney general. Senator Todd Weiler is considering proposing a constitutional amendment to make the attorney general's office an office appointed by the governor.
That would be a mistake. Here's why:
The attorney general must be an office independent of the governor and other state officials in case the governor or his/her administration is under investigation. It is true that the president appoints the U.S. attorney general, but that model has not been duplicated in state constitutions for this reason. The U.S. attorney general is too close to the president. When scandals have occurred that involved the president, such as Watergate or the Monica Lewinsky affair, the Justice Department has been suspect as an independent investigator due to its department head's allegiance to the president. In both Watergate and the Lewinsky affair, independent prosecutors were needed to do what the Justice Department should have been able to do.
Even short of investigations and possible prosecutions, the state's attorney general should not be beholden to the governor for appointment. The attorney general must be able to make decisions about cases to pursue without having to worry about what the governor thinks. A gubernatorial appointment would rob the attorney general of that independence.
Assuming the appointment would have to be confirmed by the state Legislature (or at least the state Senate), the power of the governor and the Legislature would increase significantly. A potential appointee would have to satisfy the agendas not only of the governor, but also of a majority of legislators. Moreover, the appointment could be mired in political battles between the governor and the Legislature, thus further politicizing the office.
Rather than give the power of selection to the governor, it is better to keep the attorney general a separate elected official accountable directly to the people. However, there are ways to depoliticize the office without granting increased power to the governor and the Legislature. The Legislature should consider this alternative:
The attorney general should be elected through a non-partisan election. That would remove the party's role in the process. No need to appeal to convention delegates. No connection with party donors. It would reinforce the notion that the attorney general is different from other elected officials.
At the same time, that non-partisan election should be subject to strict campaign limits. Several years ago, the Governor's Commission on Strengthening Democracy recommended several changes in campaign finance such as setting limits on how much individuals and organizations could give to candidates. It is time to dust off that report and enact the campaign finance limits recommended therein. Perhaps if voters see how successful such limits are in removing the temptation on the part of the attorney general to curry favor with large donors (apparently Mark Shurtleff and John Swallow's problem), they will want the Legislature to expand campaign finance limits to other races as well.
Utah's citizens deserve an attorney general who can act independently to further the people's interests, not those of other political elites. This will require innovation in the selection of the occupant of the state's highest law enforcement office. No other state currently elects this officer in this way. But other states may look at Utah's mode and want to duplicate it. Indeed, Utah should be a paragon of governmental ethics. This may be one way to reach that goal.
Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU.