published Sunday, February 27th, 2011

Legal post calls for greater accountability to voters

By Keith Randall

We live in a country founded on the principle of democratic accountability, where the source of executive and legislative power is the ballot box. From the statehouse to the White House, executive and legislative officials know their every action is judged and measured by voters. In that way, the voters of this country stand ready to hold them accountable. However, there is one executive who is exempt from the democratic process. Today, the Tennessee attorney general stands alone among his peers -- free to act, or not act, apart from democratic influence.

The Tennessee attorney general is appointed by the justices of the Tennessee Supreme Court for a term of eight years. The justices are appointed through the Tennessee Plan, a much-debated selection process with limited democratic accountability. As a member of the judicial branch, the attorney general is insulated from both the governor and the legislature. The attorney general needs only to answer to those who select him: the justices of the Supreme Court. Yet those justices themselves enjoy significant independence from democratic accountability due to the particulars of the Tennessee Plan.

Tennessee is unique in this respect. In the United States, 42 states directly elect their attorneys general. In six states, the presiding governor appoints the attorneys general, and in one state, Maine, the legislature makes the appointment. Direct election allows the voters to hold their attorney general directly account

able for executive decisions. Appointment procedures allow for indirect democratic accountability. When a state's voters are upset about the actions of their attorney general, they can vent their frustrations by holding his or her superiors accountable. This creates an incentive for the attorney general's boss to keep him in line with the will of the people.

At the time it was established, Tennessee's appointment procedure was not so shocking. When the current Tennessee Constitution was drafted, the position of attorney general was merely clerical. For much of the 19th and 20th centuries, the Tennessee attorney general served primarily as a reporter of Tennessee Supreme Court decisions. Law enforcement and prosecutorial duties were handled by the local district attorneys. With primarily clerical duties, it made sense for the justices on the Tennessee Supreme Court to choose the state attorney general.

Eventually, the legislature began expanding the powers of the attorney general. Over the past 40 years, the office evolved into the chief law enforcement officer in the state, responsible for both criminal and civil enforcement. Eventually, the attorney general also became the ultimate decision-maker over whether to initiate a lawsuit against private parties or the federal government. All these duties are entirely executive in nature.

For example, Attorney General Robert Cooper's decision not to initiate a lawsuit against the federal government over the constitutionality of ObamaCare, right or wrong, was a political decision made free from democratic accountability. The voters of Tennessee had no input on Cooper's decision.

Proponents of the current system argue that it provides democratic insulation to the attorney general by allowing decision-making without the vagaries of politics. That claim would have merit if in reality the position weren't steeped in partisan politics. A recent paper I co-authored with Ammon Smartt titled "A Report on Tennessee Attorney General Selection" researched the political affiliation of all Tennessee attorneys general starting from the time the first version of the Tennessee Plan was implemented. The research indicates that for that 40-year period, all of Tennessee's attorneys general that served for any significant period of time were affiliated with the Democratic Party.

This one-party dominance of the attorney general's office would not be as surprising if the rest of the state government were under one-party rule for the past 40 years. However, during the same period of time, Tennessee was a remarkably nonpartisan state. Out of 10 gubernatorial races (not counting the most recent), a Republican won five of the races (50 percent). And out of 15 U.S. Senate races, a Republican won ten (66.66 percent). The evidence demonstrates that this allegedly nonpartisan position has been filled consistently with members of one political party, while at the same time Tennesseans have voted marginally more Republicans into statewide offices. Were the position truly apolitical, one would likely have seen at least one Republican serving as attorney general in the past 40 years.

The 2010 election provides additional evidence that the attorney general is entirely free from democratic accountability. In a highly favorable year for Republicans, the party captured the governor's mansion and both houses in the legislature. The office of attorney general, however, remains in the hands of a Democrat until 2014. In a year when the voters of Tennessee clearly desired Republican control of state government, a significant statewide position remains with the party so soundly defeated in November.

Tennessee should reaffirm its commitment to the principles of democratic accountability, and change the selection procedure for the attorney general to a system of direct election or governor appointment. Only through that accountability can executive government be legitimate. Without reform, Tennessee will remain out of step with modern society -- and the rest of the country.

Keith Randall is a student at Vanderbilt University School of Law and a co-author of "A Report on Tennessee Attorney General Selection." He can be reached at Keith.W.Randall@vanderbilt.edu.

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