Kane: Part of a Bigger Problem

April 28, 2015

G. Terry Madonna & Michael L.Young

Kathleen Kane, Pennsylvania’s embattled attorney general, is having some bad days.  A year ago she was the toast of state politics, in 2012 becoming the first women and first Democrat to win the office. These days she looks more like toast herself as she struggles to hold on to that office.

Among her various problems, she faces possible indictment on grand jury tampering and has been criticized for her prosecution decisions. Some have called for her resignation or even impeachment.

Her problems, widely discussed and hotly debated, are, however, not the topic addressed here.

Discussed here instead is the office itself. Kane is not the first Pennsylvania attorney general to confront strife and dissension. Indeed the attorney general who begins and ends their tenure unscathed by controversy is a rare bird.

Some history of the office and its incumbents is useful.

Pennsylvania has had a multitude of attorneys general, reaching back into the colonial era. Counting several “acting” attorneys general and allowing for some spotty record keeping in earlier times, the state since the 1680’s has sworn in approximately 105 attorneys general.

The vast majority of these until 1980 were appointed in some way, in a fashion similar to that used today to select the federal attorney general -- presidential nomination, followed by Senate confirmation.

All that changed abruptly 35 years ago in the aftermath of Pennsylvania’s “limited” constitutional convention devoted to modernizing the aged state constitution.

One proposal coming out of the 1968 convention was a provision to elect rather than appoint the attorney general. Subsequently, ratified by voters in a statewide referendum, this proposal became effective (1980), with passage of “the Commonwealth Attorney Act,” establishing the attorney general as an independent elective office.  

Since then Pennsylvania has elected five attorneys general, one woman and four men. The governor has appointed another five “acting attorneys general."

These then, as a popular crime drama likes to put it, are “the facts” behind Pennsylvania’s almost four-decades long experiment with electing the state’s top law enforcement officer.

But they are far less than the whole story.  Early advocates of election expected much from the new office. It would be independent from the other branches of government, while decreasing corruption and increasing the accountability of state officials.

It hasn’t worked out that way.

For a while it seemed it could. The first elected attorney general, Leroy Zimmerman (R), performed well in office, encountered no major controversy, stayed out of blatant political intrigues and finished his two terms widely respected.

But former Lackawanna County District Attorney Ernie Preate (R) followed him, a gubernatorial aspirant caught in a campaign money scandal that earned him a conviction for mail fraud and a year in federal prison.

Preate’s successor, Mike Fisher (R), a former legislator and talented litigator who successfully argued a case before the U. S. Supreme Court, also lost a gubernatorial contest and left office a year early during his second term to accept an appointment to the third federal circuit.

Fisher’s successor, Tom Corbett (R), aggressively pursued corruption, successfully prosecuting dozens of legislators and staff in the so called “bonus gate” scandal.  He resigned in his second term when he was elected governor, the first elected attorney general to do so. But Corbett’s term as governor was widely viewed a failure, an outcome many link to his inability to make the transition from AG to the political world of governor.

Corbett’s successor, Kane (D), is a story yet unfinished. However, few predict her term will end happily or that she will escape the fate of most of her predecessors.
Only one elected Pennsylvania attorney general finished his term without resigning.

There are two vital lessons to learn in this long litany of frustrations confronted by Pennsylvania’s elected attorney general.

One: politics and law enforcement do not work well together in Pennsylvania’s unique political culture. Virtually all of the problems encountered by attorneys general are linked to their political activities or aspirations.

Two: the qualities needed to succeed in high political office such as governor do not often fit well with the qualities needed in the state’s top law enforcement officer. Corbett is the poster child for this argument. Excluding Kane, three of the four people elected attorney general since 1980 aspired to the governor’s office.

Some would point to elections as the problem. In a sense, it is.

But elections also mean attorneys general are “independent” of the other branches of government. Without this independence, history firmly teaches that an attorney general will neither ferret out corruption nor prosecute bad behavior by politicians. So, if we throw out elections, we also throw out independence -- not a good bargain.

The better answer is to continue elected independence for attorneys general while proscribing incumbents from running for another state office without resigning. A number of states and cities already have these “resign to run laws.” They might well be extended to the other two independent offices in Pennsylvania, treasurer and auditor general.

The current crisis with Pennsylvania’s attorney general will be resolved in due time in the appropriate forums. But there are other systemic problems with the office that transcend the current crisis. 

Resolving that current crisis will not solve them.

Politically Uncorrected™ is published twice monthly, and previous columns can be viewed at http://www.fandm.edu/politics. The opinions expressed in this article are solely those of the authors and do not necessarily reflect the opinions of any institution or organization with which they are affiliated. This article may be used in whole or part only with appropriate attribution. Copyright © 2015 Terry Madonna and Michael Young.