In at least a handful of blue states, a disturbing trend is emerging: Left-wing state attorneys general are acting less like legal representatives of their constituents and more like partisan political activists. Why is this disturbing? Because, unlike your run-of-the-mill community organizer, activist attorneys general have at their disposal broad legal powers (not to mention millions upon millions of tax dollars) that they can use to investigate, subpoena, sue, or prosecute the targets of their political party — and they’re doing just that.
In New York, Attorney General Eric Schneiderman announced this spring that he would be leading a battle on climate change by investigating fossil-fuel companies, such as ExxonMobil, for “[misleading] investors and the public on the impact of climate change on their businesses.” A thin legal theory, to be sure: Unlike cases in which a corporation has unique information about its own products and services, on the issue of climate change there is a vast public trove of articles and analysis for investors to examine. But Schneiderman was able to invoke broad subpoenas and threats of prosecution under the auspices of New York’s infamous Martin Act, an obscure 1921 statute revived by Schneiderman’s predecessor Eliot Spitzer as he assumed the mantle of the “Sheriff of Wall Street” before the financial crisis. And Schneiderman isn’t alone in this particular effort: Other state AGs lined up beside him. Claude Walker, the attorney general for the U.S. Virgin Islands, issued to the Competitive Enterprise Institute a sweeping subpoena that demanded it turn over all communications with nearly every free-market think tank (including the one that employs the authors of this piece) on issues relating to climate change. (This subpoena has since been withdrawn.)
Out West, California attorney general Kamala Harris — a candidate for the U.S. Senate seat currently held by Barbara Boxer — has used her broad investigatory powers to go after another member of the Democratic party’s “enemies list.” Her target: K12, a company that operates virtual charter schools. K12 earned the enmity of the California Teachers Association when the company pushed back against its efforts to unionize their schools. (The California Teachers Association has donated $32,695 to Harris’s Senate campaign.) The investigation recently led K12 reaching a $168 million settlement over allegations of fraud and misleading marketing. The Wall Street Journal referred to this as the product of “thuggish government.”
California attorney general Kamala Harris has used her broad investigatory powers to go after a member of the Democratic party’s ‘enemies list’: K12, a company that operates virtual charter schools.
When politicians selectively use their legal authority to regulate and intimidate political opponents through sweeping investigations and prosecutions, they don’t just undermine the political process, they undermine the very thing that distinguishes our nation from the dysfunctional states of the world: respect for the rule of law.
— Jim Copland is a senior fellow and the director of legal policy, and Rafael A. Mangual manages legal-policy projects, at the Manhattan Institute, a 501(c)(3) think tank in New York City.