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Posts by Walter Smith

Walter Smith is the Executive Director of the DC Appleseed Center for Law and Justice, an independent organization that works with pro bono attorneys, business leaders, and community experts on the biggest public policy problems facing the National Capital Area. 


Should DC downsize its elected Attorney General?

In 2014, the District will join 43 states when its Attorney General becomes elected by the people, rather than being appointed by the Mayor. This is the result of the people's overwhelming choice in the November 2010 referendum, when 76% of voters ratified a Home Rule Charter amendment changing the selection process for the Attorney General.

Not everyone agreed with this change. In fact, when DC Appleseed suggested that the Council present this issue to the voters, we highlighted several arguments against the change. One of them was the potential for disagreement and tension between an elected attorney general and an elected mayor.

This potential has led the current Attorney General, Irv Nathan, to propose transferring a significant amount of his office's authority to the Mayor before the new Attorney General becomes elected. However, Mr. Nathan's proposals also have significant dangers.

The Attorney General's proposal and its potential benefits

The District's legal services would undergo three significant changes under Mr. Nathan's proposal. First, the bill would transfer control over the lawyers who advise agencies from the Attorney General to agency directors. Second, it would establish the Mayor's Office of Legal Counsel to coordinate those agency counsel. Finally, it would move the Child Support Services Division from the Attorney General to the Department of Human Services.

Mr. Nathan testified to Councilmember Tommy Wells' Committee on the Judiciary and Public Safety on March 26 that these changes are needed "to minimize the potential for conflict . . . within the divided executive." He argued that his proposal is consistent with the voters' intent, because it leaves the Attorney General responsible for litigation and binding, formal legal opinions, and the Mayor responsible for programmatic, budget, and policy choices.

According to Mr. Nathan, it's reasonable to expect harmful conflict to arise because the Attorney General will aspire to be Mayor and therefore will find it to his or her political advantage to oppose the Mayor. This could undermine the Mayor's ability and responsibility to establish and implement policy for the District. The bill seeks to prevent this by making agency counsel, through their agency directors, accountable to the Mayor, rather than to the Attorney General.

Mr. Nathan is right that the elected Attorney General may well want to run for mayor, and that there could potentially be disagreements and tension between the two officers. Mr. Nathan is also right that an attorney general who believed the Mayor was attempting to implement policy not in accordance with law could effectively thwart that policy by directing agency counsel to oppose it. On the other hand, removing the Attorney General's authority over agency counsel also presents at least three potential downsides.

Potential problems with to the AG's proposal

First, the whole point of electing the Attorney General was to ensure that legal advice given by that officer and the agency counsel he or she supervises would be independent of the Mayor and accountable to the public. When the DC Council passed the referendum bill, it explained in its report that making the Attorney General elected would ensure the public that the officer "conducts their legal business without fear or favor, respecting the law and not pursuing the political agenda of anyone in either the legislative or executive branches of the government." Taking authority over agency counsel away from the Attorney General and transferring it to the Mayor appears to be at odds with this purpose.

Second, the proposal appears to be a step backwards from the efficient consolidation of legal services under the Attorney General that the Council spent 15 years establishing. Until 1998, the District's legal services were organized similarly to how Mr. Nathan now proposes, with agency counsel being independently controlled by their respective agency directors. The professionalism, coordination, and unity of the District's legal operations suffered under this bifurcated structure.

The Council remedied these problems by consolidating agency counsel under the Attorney General, first giving the then-Corporation Counsel supervisory authority in 1998, then giving the Attorney General complete control in 2005. This consolidation brought the District into line with the best practices in states that elect their attorneys general.

Among other things, the consolidation ensured that the Attorney General would be better prepared to defend agencies against litigation, because the Attorney General would have been supervising and coordinating actions by agency counsel action before any lawsuits could arise.

Finally, Mr. Nathan's proposal appears to undercut the referendum passed by voters. At the time of the referendum, no suggestion was made that its passage could require or permit a substantial downsizing of the office. Instead, the referendum was presented to voters as a way to make the office independent of the Mayor and the Council and accountable to them. Yet the current proposal undermines the authority of the office and transfers that authority to the Mayor.

At the same time, the downsizing of the Attorney General's office seems likely to reduce the willingness of the ablest candidates to run for the office, another result that appears inconsistent with the voters' intent.

Respect the voters and leave the Attorney General alone

The risk of tension and conflict between an elected Attorney General and an elected Mayor is real. But it is not at all clear that this risk is a problem that needs to be "fixed." In fact, it was expected that there would be constructive tension between the Mayor and the Attorney General that, on balance, would benefit the public. It was also expected that having legal advice that was independent of the Mayor would be of benefit to the public.

At the same time, it is clear that transferring authority over legal advice to the Mayor would bring very real costs. It would return the District to a dysfunctional system of legal advice that existed before 1998. It would potentially contradict voters' expectations when they passed the Charter Act referendum. And it would discourage able candidates who might run for the new office of elected Attorney General.

The best course, therefore, seems to be to allow the people to elect an Attorney Genial who would administer the office as it is now constituted. If the hoped-for benefits from this do not materialize, and the downsides that Mr. Nathan fears occur, there will be time later to make changes. For now, the Council should conclude that if it isn't broken, don't fix it.


Referendum is the right strategy for DC budget autonomy

On March 27, Congress' continuing resolution that appropriates federal and DC funds will expire. If Congress does not pass additional legislation by that date, it risks not only a federal government shutdown, but also shutting down the DC government. This is because unlike every other jurisdiction in the country, the District cannot spend its own local revenue without Congress first affirmatively enacting the city's budget.

Image from DC Vote.

Fortunately, the days of the District being caught in such federal budget impasses may be coming to an end. After years of urging Congress to grant the District budget autonomy, the DC Council recently adopted a new strategy on this issue.

It unanimously passed legislation to put a referendum before the voters that would amend the Home Rule Charter and give the District local budget autonomy. The referendum will be on the ballot in the city's April 23 special election.

DC Appleseed has long supported this new strategy for advancing DC democracy. In 2010, DC Appleseed proposed using this strategy to allow DC residents to elect their Attorney General, a move which was ultimately successful. Last May, I testified to the Council about other potential uses for this strategy, including budget autonomy. For several reasons, this referendum is the right strategy now for the District.

Budget autonomy is important

Unlike other states and cities, the District cannot spend the roughly $6 billion in revenue it raises every year without an act of Congress. As a practical matter, this requirement is completely unnecessary. Congress almost never changes the city's budget request. But the requirement nevertheless imposes significant burdens and costs on the District.

First, it adds about 3 months to the budget process. That creates temporary cash shortages that force the District to borrow more money and incur millions in additional interest charges. Second, the lag time between Council approval and the start of the federal fiscal year undermines the District's ability to accurately forecast revenues and expenditures. Finally, the process permits the District to be needlessly ensnared in a federal budget battle that could shut down the government.

The budget autonomy referendum would fix all of this by allowing the District to enact the local budget just as it does all other legislation. The budget would be introduced in the Council, subjected to hearings and markups, and passed after 2 readings.

After receiving mayoral approval, it would be transmitted to Congress and become law after a 30-day review period. Congress would still retain its ultimate authority to legislate for the District, but the budget could take effect without the need for affirmative congressional action. This would be an important step forward for DC democracy.

The District needs a new strategy

The District has long sought, but been unable to, obtain budget autonomy despite bipartisan support in Congress. Rep. Darrell Issa (R-CA), the chairman of the House committee overseeing the District, has been at the forefront with his support, along with Congresswoman Eleanor Holmes Norton (D-DC).

The difficulty lies in the fact that Congress has been unable to pass a "clean" budget autonomy bill that did not also take away certain other District rights. Just last June, Sen. Joseph Lieberman (I-CT) withdrew his budget autonomy bill when it became clear that it would not pass without riders undermining the Council's Home Rule prerogatives.

Riders similarly doomed bills that would have given the District's Delegate a vote in the House of Representatives. These riders have become the fatal obstacle to congressional action that would otherwise advance DC democracy.

This is not to say that such efforts on the Hill should not continue. However, it's time to explore other strategies that might produce a "clean" bill advancing DC democracy. The budget autonomy referendum is such a strategy.

New strategy has many benefits

There are several clear benefits to the budget autonomy referendum. First, it gives DC residents a meaningful role in achieving greater democracy and makes use of the city's broad authority under the Home Rule Act to make changes to that Act. The referendum also offers DC residents an opportunity to make visible to Congress the importance of this issue to the people of the District.

Second, the referendum will itself be the "clean" budget autonomy bill the District is seeking. And under the Home Rule Act itself, Congress is not permitted to amend the referendum by adding riders; instead, it must either approve it by doing nothing, or disapprove it by joint resolution.

Finally, the Home Rule Act makes it hard for Congress to disapprove the referendum. Under that Act, the referendum giving the city budget autonomy will automatically become law unless both Houses of Congress disapprove it within 35 days and the President signs that disapproval.

Even if both houses could pass the disapproval resolution, it seems highly unlikely that the President would sign it. When he decided to put DC's "Taxation Without Representation" license plates on his inauguration vehicles, President Obama issued a strong statement declaring his "willingness to fight for voting rights, Home Rule and budget autonomy for the District."

DC should move forward despite concerns

Some have raised concerns that the referendum is beyond the District's authority, or that it will undermine the city's relationship with Congress, or that it does not bring us full democracy. None of these concerns should keep the residents of the District from fully supporting the referendum.

First, no proposal for greater DC democracy has ever been or will ever be a "slam dunk" legally or politically. There were similar doubts about the soundness of the DC Voting Rights Act, but that bill received strong support and passed both Houses of Congress nonetheless—because it was the best and only viable option then available. That is true now of the referendum.

Second, the referendum is the city's way of showing its support for budget autonomy, and in no way detracts from Congress's own authority on that issue. In fact, former Rep. Tom Davis (R-VA)—Issa's predecessor on the oversight committee—testified to the DC Council that Congress would not view the measure as a slight. And Rep. Jose Serrano, ranking member of the subcommittee on DC appropriations, issued a statement in favor of the referendum, calling it "democracy at its very core."

Finally, some of the top law firms in the city, and the DC Council's own general counsel, have vetted the referendum's legal underpinnings. All agree that that the measure is within the District's authority. And even though the referendum was challenged before the District's Board of Elections, the Board rejected the challenge and certified the issue for the April 23 ballot.

The road to greater democracy has always been filled with obstacles and uncertainty. That is true also for the April 23 referendum. But that referendum is now the best available step forward on that road.

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