After a campaign during which Gov. Paul LePage divulged little about his plans for a second term, the newly re-elected governor on Thursday started to offer a taste of his second-term agenda. Unfortunately, a part of it appears more rooted in acting on a grudge than in passing sound policy.
Two days after his re-election victory, LePage told the BDN he hopes to narrow the powers of the office of the attorney general. Specifically, LePage said he wants to eliminate a requirement in state law that the attorney general sign off on rules developed by state departments as a way of ensuring their legality.
“We have a stack of regulations that we were entrusted to write and we can’t get them through because we have an attorney general who says it’s illegal,” LePage said.
In truth, the attorney general’s office has held up just one rule out of hundreds proposed on average each year, according to the attorney general’s office.
Not only is LePage’s proposed move foolhardy and potentially pricey, it’s just the latest move by LePage that would advance an ongoing clash with Attorney General Janet Mills, a Democrat elected by the Legislature whose office has been at odds with LePage on a number of matters over the past two years.
LePage has already taken steps on his own to limit the attorney general’s influence. In April, he issued an executive order (which he signed with a smiley face) instructing state agencies — which regularly develop rules that detail how they’ll carry out state laws — that they no longer needed to consult with the attorney general’s office early in the rulemaking process.
That pre-review requirement had been in effect for 11 years, and it was designed to ensure at every step of the rulemaking process that state agencies weren’t setting themselves up for legal trouble. LePage also is seeking to eliminate the review requirement later in the process, a change that would require the Legislature’s approval.
If he succeeds, LePage would have to set up other means to ensure state agency rules pass legal muster if he decides to act responsibly. Perhaps each state agency would hire its own lawyers to conduct the review, representing an added expense for state government. Without any legal review, the state would expose itself to potential lawsuits, which would represent major headaches and significant expense that an attorney general’s legal review could prevent.
Either way, the LePage proposal borders on the irresponsible and is almost undoubtedly personal.
Since Mills has taken office, she has served as an important check on LePage’s powers. Recently, she declined to give in to LePage’s desire to try to limit the movements of Kaci Hickox, the Fort Kent nurse who treated Ebola-infected patients in West Africa. LePage’s attempt to restrict the nurse’s movements had no legal basis and was rejected by a judge. In January, Mills attempted to compel LePage to release consultant Gary Alexander’s controversial and expensive report on the state’s welfare programs; LePage refused.
Most notably, Mills’ office declined to approve a proposed Department of Health and Human Services rule in January that would have made many noncitizens ineligible for general assistance. DHHS later moved ahead with a similar, stripped-down policy change but didn’t submit it to Mills’ office for review. Mills maintains it’s illegal, and the policy change is the subject of a lawsuit.
LePage hasn’t hesitated to make known his distaste for Mills — and to act on it. He initially proposed a slimmed-down budget for the attorney general’s office in 2013, setting aside the money for his office to hire alternative legal defense. And earlier this year, LePage refused to sign off on pay raises for assistant attorneys general that the Legislature had approved. Meanwhile, he allowed the raises to go through for district attorneys and assistant district attorneys who do not work for the attorney general. (LePage later relented and allowed the raises.)
One other attorney general-related change LePage is seeking is a sensible one that we have long supported. He said Thursday he wants the attorney general — along with the secretary of state and treasurer — to be popularly elected, rather than chosen by the Legislature. They now typically come from the ranks of the party that controls the Legislature and are often those who lost their most recent elections or were forced out of office because of term limits.
Even if LePage is seeking the change for the wrong reasons, it’s a change that would be more democratic. Plus, a greater number of statewide elections offer voters more chances to vet and become acquainted with potential future candidates for higher office, such as the governorship and U.S. Senate. It also would make these officers more accountable to the public.
But the Legislature has repeatedly considered this change — which would require a constitutional amendment — and rejected it. That means LePage is choosing two uphill battles — one sensible, one not — to start off his second term.