Reynolds/Miller deal could encourage future Republican power grabs

Governor Kim Reynolds issued her first item veto of the year this week, rejecting part of a budget bill that sought to limit Attorney General Tom Miller’s authority to sign on to multi-state lawsuits. However, she did so only after Miller agreed not to join any such litigation without her permission, ensuring that he “will not be suing the Trump administration” anymore. In addition, the governor’s veto letter praised the “Legislature’s leadership on this issue.”

While not the worst-case scenario, the resolution of this conflict could invite more Republican bills encroaching on the authority of statewide elected Democrats. The governor and her staff could then pressure those officials to cede some of their power in exchange for a veto.

“THE GOVERNOR AND THE LEGISLATURE SET THE AGENDA FOR THE STATE OF IOWA”

Senate File 615 allocated funds for various state agencies, including the Attorney General’s office. Days before adjourning for the year, House Republicans amended the bill to revise Iowa Code Chapter 13, which defines the attorney general’s powers. The top House Republican on the Justice Systems Budget Subcommittee had previously voiced his frustration over Miller’s occasional decisions to join multi-state legal actions challenging President Donald Trump’s policies.

Signing on to federal lawsuits is an accepted part of the job for state attorneys general. Republicans holding those positions elsewhere filed numerous cases seeking to overturn laws or executive orders enacted during President Barack Obama’s tenure. No legislature ever attempted to revoke their authority to do so.

The obvious remedy for an attorney general you don’t like is to elect a new one. Not only have Iowa Republicans never been able to beat Miller, the party didn’t even field a candidate against him in 2018.

They got their revenge last month, though, with party-line votes approving new restrictions on the attorney general. Under Senate File 615, Miller could join litigation outside the state only with permission from the governor, the legislature, or the executive council (a five-member body now controlled by Republicans).

The lead sponsor, State Representative Gary Worthan, admitted during floor debate that the bill was politically motivated.

It’s political because this attorney general has taken part in out-of-state suits that are completely contrary to actions by the legislature that were signed by the governor. And those are the types of actions that we are trying to restrict. The governor and the legislature set the agenda for the state of Iowa, and not the attorney general.

“OF PARAMOUNT IMPORTANCE TO THE LEGAL INTEGRITY OF THE STATE”

Iowa’s governor has item veto power for appropriations bills. For some time, Reynolds gave no hint of her plans.

In early May, Idaho’s Attorney General Lawrence Wasden, a Republican, wrote to Reynolds urging her to veto the code language. He argued that “the independence and discretion of the Attorney General are of paramount importance for the legal integrity of the state.”

Six former attorneys general from Arkansas, Nebraska, Nevada, Ohio, Rhode Island, and Washington reminded Reynolds in a joint letter,

The job of an Attorney General is to represent his or her state in legal matters and defend the Constitution and rule of law. It is not to represent the state in a way that pleases the majority in the Legislature. No independently elected Attorney General in any state is required to seek permission from the Governor or Legislature in order to represent their state in legal matters of national importance. […]

The impact of this legislation is far-reaching and would stifle Iowa’s voice on crucial issues of national jurisprudence. […]

If voters don’t like the way their Attorney General is advocating for them in such cases, they can replace him or her through the election process.

The Iowa Legislature’s efforts to remove the Attorney General’s independent authority to file suit outside of Iowa is a blow to our Founding Fathers’ vision: a government with checks and balances among the three separate branches, rather than an approach to governing dictated by a single branch. Our Constitution’s Separation of Powers Clause exists for this very reason–to protect the people from any one branch of government growing too powerful.

Both letters are enclosed in full at the end of this post.

“A COMPROMISE BETWEEN MY OFFICE AND HIS”

Reynolds wasn’t willing to let Miller keep doing his job without interference. But she didn’t entirely ignore Wasden’s advice. The Idaho attorney general expressed hope “that Iowa can reach its desired result through working with its Attorney General.” Reynolds agreed to meet with Miller on May 8.

Miller declined to reveal details of that discussion when speaking to reporters on May 22. But Lynn Hicks, communications director for the Attorney General’s office, told Bleeding Heartland that Chief Deputy Attorney General Eric Tabor followed up with the governor’s staff “and provided more information on how this legislation would affect our office and Iowans.”

Reynolds told WHO Radio’s Simon Conway on May 22 that after Miller “walked through his concerns” about the proposal and she thought further, she “came up with what I thought was a reasonable approach.” She described their agreement in her veto letter to Secretary of State Paul Pate.

I share many of the concerns expressed by members of the Legislature about the past actions of Attorney General Tom Miller in courts outside of Iowa. He has participated in litigation throughout the nation, repeatedly taking positions in the name of the State of Iowa that are in conflict with Iowa’s statutes, the policy goals of the Legislature and Governor, and the best interests of Iowans. […]

As a result of the Legislature’s leadership on this issue, Attorney General Miller and I have had the opportunity to engage in a thoughtful discussion about the appropriate balance of authority between the Governor and the Attorney General with respect to Iowa’s involvement in litigation. And ultimately, Attorney General Miller agreed to my proposal to adjust our litigation practices in a manner that I believe addresses my core concerns without amending Iowa’s current statutes.

Attorney General Miller has agreed that so long as he serves as Attorney General, he will not prosecute any action or proceeding or sign onto or author an amicus brief in the name of the State of Iowa in any court or tribunal other than an Iowa state court without the consent of the Governor. He retains the authority to participate in litigation or author letters in his own name, as Attorney General of Iowa. Attorney General Miller has also agreed that if the Governor requests that he prosecute an action or proceeding or file an amicus brief in any court, he will do so or facilitate outside counsel, and that such participation requested by the Governor shall be conducted in the name of the State of Iowa.

According to Hicks, the agreement does not require withdrawal from any of the pending cases Miller joined in 2017 or last year.

Reynolds asserted that the agreement “ensures that the State of Iowa will speak with one consistent voice” in court proceedings outside the state while respecting “the Attorney General’s independent authority and accountability to the people of Iowa.”

What she depicts as an “appropriate balance” constrains Miller in an unprecedented way. No other state attorney general has been coerced into accepting such a deal.

“GENERALLY I WILL NOT BE SUING THE TRUMP ADMINISTRATION”

After Reynolds announced her veto, Miller explained why he entered into what he called a “good-faith agreement.” (Strong-arming someone into ceding part of his independence strikes me as the opposite of good faith.)

In his written statement (enclosed in full below), Miller said he was primarily concerned with protecting “the institution of the Attorney General and its powers and duties” for his successors.

While I am Attorney General, I agree to get the consent of the Governor to bring out of state cases when the State of Iowa is the plaintiff, but not when the Attorney General of Iowa is the plaintiff. This means that generally I will not be suing the Trump administration. I brought a selective number of lawsuits against the Trump administration in the last two-plus years. I believe they were well grounded in the law. According to the available polling data, these cases, such as the ones concerning the Dreamers and separating children from parents, were supported by a majority of Iowans. The cases were also supported by Iowans in their overwhelming re-election of me just last November. I am reassured by the fact that the cases will continue to be brought by my 26 Democratic Attorney General colleagues, and they will do a very effective job.

This agreement allows my office to continue to protect Iowans through consumer enforcement actions, which are primarily filed in Iowa courts. It also allows me to express my opinion on matters affecting Iowans before federal agencies and Congress.

Will the deal protect the authority of future attorneys general? If they are Republicans, sure.

But Reynolds and the GOP-controlled legislature have set a precedent. Any future attorney general who joins a lawsuit they don’t like will face the same choice Miller did: give up your power or have it removed via statute.

“I COMMEND THE LEGISLATURE FOR STARTING THIS IMPORTANT DISCUSSION”

Near the end of her veto message, Reynolds wrote,

I commend the Legislature for starting this important discussion and Attorney General Miller for his willingness to reevaluate our practices with respect to engaging in litigation on behalf of the State of Iowa.

Don’t count on “this important discussion” to end with the attorney general.

Iowans have elected Michael Fitzgerald as state treasurer ten times and in 2018 elected Rob Sand to be Iowa’s first Democratic state auditor since the 1960s. Given how Reynolds dealt with this proposal, Republicans now have every incentive to use their control of the House and Senate next year to pass bills limiting the roles or powers of Democratic-held offices. Legislation could remove the treasurer or auditor from the executive council, or require them to obtain the governor’s or legislature’s approval to initiate actions their offices have long handled.

Reynolds could pretend to take the high road as she did this week, promising to veto the encroachments if and only if Fitzgerald or Sand agree not to do certain aspects of their jobs without her blessing.

I don’t blame Miller for accepting this deal. “Voluntary” limits on his own power are better than statutory limits on all future attorneys general. It’s unlikely the current Iowa Supreme Court would have found the legislature lacked the authority to change this part of the code.

Reynolds could have vetoed this act of political revenge with no strings attached. Instead, she used her leverage to increase her own power and stop Miller from holding the Trump administration accountable. Self-congratulatory interviews notwithstanding, this outcome is far from “balanced.”

Appendix 1: Final version of Senate File 615, including Governor Kim Reynolds’ letter explaining her item veto.

On page 21 you can see where the governor crossed out Section 24, which would have allowed the attorney general to:

(2) (a) Prosecute in any other court or tribunal other than an Iowa state court or tribunal, all actions or proceedings including signing onto or authoring amicus briefs or letters of support, civil or criminal, in which the state may be a party or interested, when requested to do so by or with the approval of the governor, executive council, or general assembly.
(b) Defend in any other court or tribunal other than an Iowa state court or tribunal, all actions or proceedings including signing onto, civil or criminal, in which the state may be a party or interested, when, in the attorney general’s judgment, the interest of the state requires such action, or when requested to do so by the governor, executive council, or general assembly.
(c) Subparagraph divisions (a) and (b) shall not be construed to affect any pending litigation in which the attorney general is engaged as of the effective date of this Act.
(3) The authority of the attorney general under this paragraph shall be determined at the time the action is initiated. Transfer of an action to a different court or tribunal shall not affect the attorney general’s authority under this paragraph if the attorney general had authority at the time the action was initiated.

Appendix 2: Full written statement from Attorney General Tom Miller on May 22

Gov. Reynolds, AG Miller create agreement on powers
‘This is a good-faith agreement’
Attorney General Tom Miller issued the following statement Wednesday after Gov. Kim Reynolds vetoed provisions in Senate File 615, an act relating to appropriations to the justice system:

Today I have entered into a compromise agreement with Gov. Kim Reynolds concerning lawsuits filed by my office. I do so for the following reasons.

The legislation would limit the ability of my office and my successors to bring litigation outside the state courts of Iowa. My greater concern was always about the institution of the Attorney General and its powers and duties. My successors were always more important than the current Attorney General. By vetoing the legislation, Governor Reynolds is protecting this interest and concern. A long time ago when I was first elected Attorney General of Iowa, my elders — the other state Attorneys General — preached to me the importance of the powers and duties of our office and the great obligation to protect those powers and duties. I will not be haunted by the ghosts of my elders.

While I am Attorney General, I agree to get the consent of the Governor to bring out of state cases when the State of Iowa is the plaintiff, but not when the Attorney General of Iowa is the plaintiff. This means that generally I will not be suing the Trump administration. I brought a selective number of lawsuits against the Trump administration in the last two-plus years. I believe they were well grounded in the law. According to the available polling data, these cases, such as the ones concerning the Dreamers and separating children from parents, were supported by a majority of Iowans. The cases were also supported by Iowans in their overwhelming re-election of me just last November. I am reassured by the fact that the cases will continue to be brought by my 26 Democratic Attorney General colleagues, and they will do a very effective job.

This agreement allows my office to continue to protect Iowans through consumer enforcement actions, which are primarily filed in Iowa courts. It also allows me to express my opinion on matters affecting Iowans before federal agencies and Congress.

This is a good-faith agreement between Governor Reynolds and me. In my opinion, there are too few good-faith compromises today in Washington and Des Moines. This also leads me to make this agreement.

Appendix 3: Letters from current and former attorneys general to Reynolds, urging her to veto limits on the Iowa attorney general’s authority to join multi-state lawsuits

  • I'm not as skeptical about the deal

    as this post indicates. My cynicism is based in what I believe is a concerted Republican effort to build an electorate that returns them to office cycle after cycle.

    The items Reynolds vetoed were focused on their main target, Attorney General Tom Miller. However something bigger is at stake: re-making Iowa as Republicans envision. The veto was not about policy, it was about culture, and that’s a fight in which we Democrats are not engaged as well as we should be.

  • Miller punted before

    I remember years ago when Iowa’s corporate farming law was under attack by corporations in the courts. I think a lawsuit against Iowa was dropped because Miller agreed not to enforce the law against corporations owning Iowa hogs. See a more accurate explanation here: https://www.calt.iastate.edu/article/iowas-anti-corporate-farming-laws-general-overview

  • I'm curious

    Have any other states experienced political shifts to red as dramatically as Iowa has during the past few years? Are there other formerly-purple states that have enacted such extreme legislation after Republicans have taken over both chambers and the governorship?

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