It seems we have a little problem in the state attorney general’s office. It has become a separate branch of government. It starts its own programs and grows at its own pace, notwithstanding the state Constitution and the fiscal controls that restrict the other agencies of government.
We were reminded of this phenomenon the other day when Attorney General Dustin McDaniel announced with great fanfare that he was setting up an office to prosecute Internet sex predators of children and a forensics unit to track child porn on the Internet.
Never mind that local police agencies, the State Police, prosecuting attorneys and the state Crime Laboratory are already involved in child-porn investigation and prosecution. This is a very popular task and any rising politician would want to get in on it if he could. McDaniel is running for governor in 2014.
The legislature never authorized the attorney general to set up such an office and it never appropriated a dime for the purpose, although the state Constitution has said for 135 years that no agency of government can spend a dime without an appropriation by the legislature. A fundamental article of the American division of powers is that the legislative branch of government controls the purse strings. But not now in the case of the attorney general.
Here is how McDaniel has filled bank accounts outside the state treasury with millions of dollars that he can spend as he sees fit, regardless of the Constitution’s prohibition: He gets a court, federal or state, to tell him he can spend money from litigation settlements as he sees fit. The attorney general or his staff typically draws up these consent orders for the judges to sign.
In the latest case, the attorney general sued Eli Lilly, the pharmaceutical giant, for overstating what one of its brain drugs, Zyprexa, would do for patients. Attorneys general from many other states had joined in a big class-action suit that was certain to win, but McDaniel sued separately. That way, the settlement order in Arkansas could be tailored to fit his office’s needs. Lilly settled for $18.5 million with Arkansas, and the consent order signed by the judge said the Arkansas attorney general could use the proceeds as he saw fit. A federal court can override the state Constitution. It is not clear that a state court can.
McDaniel couldn’t spend the whole $18.5 million—the office’s bank accounts were already flush—so he donated a big part of it to the state Medicaid fund and kept much of the rest to grandstand. He set aside $2 million of it for a consumer-education and enforcement fund—where? In his office. And then he set up the Internet porn program.
The legislature, which people elected to do the job, almost surely would have found other uses for the money. It might have been some logrolling project in their communities—a hillbilly music museum, say —but maybe for desperate public-health needs. You have to trust them.
It was not the first time McDaniel used settlement funds for Arkansas people that way. Last year, a settlement with another drug company, Pfizer, Inc., brought in a tide of money, again with a court stipulation that the attorney general could spend it as he chose. The legislature might have weighed the state’s many needs and determined which were the greatest. That’s the historic job of the legislative branch.
But McDaniel announced ceremoniously that he was donating $100,000 to fund an Arkansas Fallen Firefighters Memorial on the Capitol grounds. Is he a hero now to every firefighter and his or her family in the state? You bet. You win elections voter-by-voter and interest group-by-interest group.
McDaniel says he did not choose to skirt the state Constitution. This began with his predecessors some years ago when state attorneys general began to join in class-action suits against corporate predators like the tobacco companies and price fixers. The Arkansas officials began to have the settlement proceeds channeled to their offices rather than to the state treasury for appropriation and distribution. It builds empires and lets politicians do crowd-pleasing things with the public’s money. That is what politicians do.
But it is bad government. The legislature could demand to appropriate settlement funds just as it does all taxes, fees and most of the non-tax receipts of agencies and institutions. Federal courts wouldn’t have to oblige the legislature, but the attorney general might think twice before crafting consent orders that corner the money for his own use.
