By Luther Strange
Several Republican state attorneys general recently welcomed special assistant attorneys general to work in their offices funded by a conservative group with the explicit agreement to investigate and prosecute organizations that oppose that group’s policy goals.
Give it a minute and a few Tweets. Cue the outrage. Ethicists and lawyers fill the airwaves explaining why it is highly unethical and, if not illegal, creates serious optics problem.
While the opening line is (thankfully) not true, it is unfortunately exactly what is being done to push a climate change agenda through state AG offices around the country.
In fact, the effort was announced to great fanfare; the Washington Post reported, “NYU School of Law will launch a new center, financed by Bloomberg Philanthropies, aimed at helping state attorneys general fight any federal moves to roll back renewable energy, environmental protections and climate policies.”
That was in August 2017; a year later, its mission has apparently expanded. Last month, the New York AG’s office announced a lawsuit against Exxon Mobil for allegedly misleading its investors. One of the attorneys that signed the case is Special Assistant Attorney General (SAAG) Matthew Eisenson – a lawyer whose salary is paid for by the NYU State Energy and Environmental Impact Center. Mr. Eisenson and his cohorts can be found in at least seven state AG offices.
The issue arises when you follow the money: the SAAGs are funded by the NYU Center which is ultimately funded by Bloomberg Philanthropies – a private foundation established by former New York City mayor Michael Bloomberg that is “driving strong, measurable and local action on climate change”. Mr. Bloomberg is an environmental advocate and he contributes to the discussion in many positive ways. However, the Bloomberg Philanthropies-NYU-SAAG relationship is one avenue that should be reconsidered.
A recent report documented the conflicts of interest: a state AG office applies to the NYU Center to get additional legal support, stating that the office’s climate and environmental work could not get done but for the NYU Center funding. The NYU Center, which is funded by Bloomberg Philanthropies, hires lawyers and pays their salaries. The lawyers then work in State AG offices as SAAGs, even though they remain employees of the NYU Center.
Certainly, many state AG offices utilize external resources. They may retain outside counsel and experts from time to time. However, the key is that those resources are paid for and controlled exclusively by those AGs using taxpayer funds.
It is perfectly appropriate to ask a state AG office to champion a certain cause or to look into alleged wrong-doing. However, it is another thing entirely to develop an opaque payment scheme to get an AG office to carry out a group’s stated policy agenda. Just as there is no free lunch in life, there’s no free legal support under this NYU scheme. Instead, these lawyers are paid for, and subject to influence by, special interests to pursue specific policy goals.
In fact, under the agreements in question the State AG office must regularly report back to the NYU Center on the activities of the SAAG and must “collaborate” with the Center on public announcements relating to environmental issues the SAAG worked on. This arrangement exposes the heart of the problem. The NYU scheme allows climate activists to carry out their agenda under the authority of state governments, with zero transparency into who is paying for what.
As a former AG for the State of Alabama, I find this kind of arrangement very troubling. And I’m not alone in this discomfort. According to the report, even the Oregon State Attorney General – whose office also has a SAAG in its midst – deliberated with colleagues about the scheme, stating in an email: “We need to be sure we are prepared to explain his position to the media, who, no doubt, will be interested. (Because he is being paid by an outside entity—which is quite unusual I think).”
The Oregon State Legislative Counsel was even more uncomfortable, writing in September 2018 that, “[t]his arrangement does not comply” with Oregon statute.
Some states are beginning to root out this rot. Earlier this year, Alabama’s Governor signed an executive order to clearly ban the practice of “loaned executives” who work in state government but are paid by private parties. It is time for other states to consider similar measures to prevent activists from infiltrating government offices to advance their own causes.
The Oregon State Legislative Counsel closed its letter stating, “We hope this is helpful.” I’d say it is because of the light it shines on the situation. There are many avenues through which to advocate for climate change policies, but this one should be put to an end because of its ethical and potential legal problems.
If it’s not, then prepare to see a proliferation of foundations supported by special interests to adopt the same strategy for working with state attorneys general. Wherever you stand on the political spectrum, that won’t be good for the administration of justice.
This op/ed originally appeared in Morning Consult on December 11, 2018.