GOP moves to dilute power of governor, AG, secretary of state

Beth LeBlanc
The Detroit News
Michigan speaker of the House Tom Leonard, R-DeWitt, jokes with reporters om the House Chambers recently, telling them they're wasting their time covering the House today, and asking "What are they doing over on the other (Senate) side?" on November 27, 2018.

Lansing — With Democrats set to take over top statewide offices next year, Michigan Republicans are considering proposals that would allow the Legislature to intervene in legal battles and shift oversight of the state’s campaign finance law to a new commission.

The lame-duck power plays would limit the power of Gov.-elect Gretchen Whitmer, Attorney General Dana Nessel and Secretary of State Jocelyn Benson. Democrats have not held all three posts since 1990.

A House bill introduced Thursday by state Rep. Rob VerHeulen, R-Walker, and quickly praised by Republican leaders seeks to guarantee the GOP-led Legislature could intervene in legal battles involving state laws that Democrats may be hesitant to defend.

A separate proposal from Sen. Dave Robertson, R-Grand Blanc, would shift oversight of the Michigan Campaign Finance Act from the Secretary of State’s Office to a newly proposed “fair political practices commission.”

View of the chambers of the Michigan legislature at the State Capitol in Lansing.

Verheulen denied his bill would supplant the authority of the attorney general, though it likely would give the Legislature a voice in ensuring the rationales for laws the House and Senate passed get defended in court.

"More and more public policy arguments are being made in the courts rather than in the legislative chambers, and I think there may be occasions where the House or the Senate or both want to simply express their view before the court," said VerHeulen.

Nessel, in her winning campaign for attorney general, said she may not defend state laws she views as unconstitutional, including a 2015 law that allows faith-based adoption agencies to decline working with gay residents. Same-sex couples have sued the state over the law, and the litigation remains in court. 

First reported by Gongwer News Service, the bill would let the Legislature intervene in any court case to protect the rights and interests of the state or Legislature. It would give the state House and state Senate the right to take any action that other parties to the litigation have, including prosecuting an appeal and applying for a re-hearing.

The courts currently can allow the Legislature to weigh in on cases, but judges are not required to do so, VerHeulen said. Utah recently passed a similar bill, he said.

The expected legislation drew an immediate rebuke from Nessel's camp.

The attorney general-elect opposes and is "deeply concerned and troubled" by the legislation, which apparently aims to "undermine the role of the state's attorney general," said Kelly Rossman-McKinney, communications director for Nessel's transition team, in a statement.

"Those legislators pushing this law should be reminded that the people elect their attorneys general and their governors and such a proposal — should it pass — would have a dramatic and disastrous impact on the state of Michigan and its residents for years to come," Rossman-McKinney said.

Benson will be the state’s first Democratic secretary of state since 1994, but Robertson’s proposal would strip her office of a key responsibility by creating a new commission to oversee campaign finance laws.

Similar to the Federal Election Commission, the new state panel would include three members from each major political party, as appointed by the governor after recommendations from the Michigan Republican Party and Michigan Democratic Party.

A message seeking comment on the proposal was left with Robertson’s office. Amber McCann, a spokeswoman for GOP Senate Majority Leader Arlan Meekhof, said Republicans will likely discuss the measure in caucus next week.

Benson is a "national-known election and campaign finance law expert" who was elected by voters looking for a fair and transparent democracy, said Liz Boyd, Benson's transition team director. 

"Legislative Republicans are now trying to thwart the will of the voters with bills that ignore their voices, (defy) history and will make Michigan a national punch line by effectively ending enforcement of the campaign finance laws they are required to abide by," Boyd said in a statement. "It's shameful." 

A longstanding Michigan law gives the attorney general the authority to intervene in any civil or criminal case “when in his own judgment the interests of the state require it” but does not give special privileges to legislators, who can ask judges to intervene in cases but are not guaranteed the right.  

But the Legislature can compel the attorney general to defend the state in certain cases, VerHeulen said, arguing his bill would give the Legislature an independent voice in those proceedings.

"It's simply a means by which the legislative branch can express itself in the judicial body," he said.

Whitmer's gubernatorial transition team did not directly comment on the bill but is "monitoring all pending legislation during lame duck as part of an overall effort to ensure the governor-elect is prepared to assume office on Jan. 1," said spokeswoman Clare Liening.

Republican legislators this month were thwarted in their attempt to intervene in a lawsuit challenging the recent repeal of the state’s prevailing wage law for construction workers. In a Nov. 9 ruling, Court of Claims Judge Cynthia Stevens denied GOP Rep. Jason Wentworth of Clare and the Republican Senate Caucus permission to join the case.

The GOP sought to intervene to explain the Legislature's "rules and processes." But the challenges were on the constitutionality of legislation and the legislative procedure used to enact the repeal, Stephens wrote. Because plaintiffs did not allege any “improper action” on the part of the caucus, she denied the caucus' motion to intervene.

In an appeal of Stevens' denial Monday, Wentworth's lawyer said the newly elected, union-backed Democratic governor and attorney general might "lay down their swords" rather than defend the Legislature's processes. 

Since the governor and Legislature will be from opposing parties, "not only is the executive branch ill-suited to defend the Legislature's processes, but it will have a strong incentive to diminish the Legislature's control...," the motion read.

House Speaker Tom Leonard, the DeWitt Republican who lost the attorney general's race by 3 percentage points to Nessel, called the bill "good government reform." 

"If something had happened and both chambers had gone Democrat in the last election and had I won the attorney general race, I would still support this because it gives the people of the state of Michigan a stronger voice," Leonard said. 

Republicans held on to control of the House and Senate in the November election despite losing several seats in each chamber.

Meekhof, R-West Olive, said he is “open to” the legal intervention proposal, noting the state does not have an independent counsel statute allowing for expanded investigations.

“Maybe (the Legislature) would have to provide some evidence to a court to be able to expand different things that they’re already working and maybe have to do more,” Meekhof said. “I think there are a lot of things the Legislature could do to be helpful.”

Michigan House Democrats in a statement called the legislation "a shameful power grab" that undercuts the authority of the attorney general. 

"It threatens the separation of powers, wastes taxpayer dollars, and raises a number of constitutional questions about legislator standing," said Samantha Hart, a spokeswoman for the House Democrats.

Republicans have controlled the offices of secretary of state and attorney general since the 2002 election. Democrats last held the governor's office in 2010 under Jennifer Granholm.

When Democrats Whitmer, Nessel and Jocelyn Benson take office on Jan. 1, 2019, it will mark the first time in 28 years that Democrats have controlled the offices of governor, attorney and secretary of state at the same time.

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