LePage, Mills and why Maine must change how it chooses the attorney general

Can we change how Maine chooses constitutional officers now?

The latest dispute between the LePage administration and Attorney General Janet Mills over which lawyers may lawyer for the state brings the problem into focus. Mills points to the statutory duties of her office, but the administration has a reasonable argument when it expresses concern over the objectivity of the advice it receives.

The Maine Supreme Court’s advisory opinion on the “how many days to veto” question last summer went against the governor — a fact everyone acknowledges. However, people seem to extrapolate that holding into a belief Gov. Paul LePage has had no legal victories, especially when it comes to contesting legal interpretations of the AG. They are wrong.

Attorney General Janet Mills and Gov. Paul LePage. BDN photo by Ashley Conti and Reuters photo by Gretchen Ertl.

Attorney General Janet Mills and Gov. Paul LePage. BDN photo by Ashley Conti and Reuters photo by Gretchen Ertl.

For example, the attorney general prevented the Department of Health and Human Services from adopting a rule prohibiting the provision of General Assistance to immigrants here unlawfully. The department cited federal statute as a basis, while the AG said the initiative was illegal. Prevented from completing the rulemaking process, DHHS adopted the policy anyway through a memorandum. This led to a lawsuit against the state from Portland and others, publicly backed by the AG and her interpretation. Ultimately, the court vindicated LePage’s position.

If that is not enough, you could consider the governor’s triumph at the Law Court over the AG’s management of funds for outside attorneys. Yet the fights between Janet Mills and Paul LePage are mere symptoms of an underlying problem: the idiosyncratic way we choose constitutional officeholders.

Before rushing to accusations of partisanship, imagine if congressional Republicans, as an exercise of their majority, got to choose the attorney general without any input from President Obama. Does that sound like a recipe for a coherent, well-functioning federal government? I’ll give you a hint: no.

When we elect individuals into executive offices — governor, president — they deserve the opportunity to hire their subordinates and other officials. It should not be absolute; few powers in our government are. Instead, we provide “checks-and-balances” through a confirmation process, giving the opportunity for the legislative branch to weigh in on the qualifications of the nominee.

Maine’s process for choosing the secretary of state, treasurer, and attorney general includes no checks and balances. It is a purely legislative action. And it can lead to conflicts when the popularly elected governor has a different philosophical outlook than the legislatively chosen official. This doesn’t simply apply to the current LePage-Mills contest; the relationship between Republican Gov. Jock McKernan and Democratic AG Jim Tierney was just as contentious from all accounts, with the latter suing the former’s insurance superintendent.

So how else can the selection process be structured? One option would be to follow the example of most other states and put the positions to a statewide vote. While preserving the possibility of public spats between the chief executive and others, they would at least be coming from equal footing, with the voters’ imprimatur.

Of course, this would then lead to the expansion of government-funded campaigns for constitutional offices. And if a statewide gubernatorial campaign gets $3 million in tax dollars, shouldn’t these new statewide campaigns get the same? What’s another $18 million every few years between friends?

Or we could follow the federal example and, for the AG, that of five other states, and make the positions appointed by the governor subject to legislative confirmation. To help maintain independence, the appointment could be for a term, like judges, boards, and other positions. This ensures there is a level of trust between the offices charged with enforcing the law, reducing the likelihood of political disputes trumping the people’s business.

Changing the selection process is a reasonable question that deserves fair consideration. And even if the Legislature passed a constitutional amendment today changing it, voters would have to weigh in this November. To remove any concerns about political calculus, make it take effect in 2018, passing by the LePage administration. Without any thought as to who the next governor may be, we can freely ask the question. Maybe we’ll find a better answer.

Michael Cianchette

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.