So the big news in Alaska politics this week was the resignation of controversial Attorney General Talis Colberg. Poor Talis. When he was asked to be Attorney General, you've got to think that he was looking forward to four years of managing the Department of Law, signing off on motions and speaking at Bar Association luncheons. No way did this small-town lawyer foresee the hurricane that was about to come bearing down on him once Troopernof hit the national stage. But bear down it did, and he made the choices he made, and were I he I'd be more than happy to get the hell out of Juneau and head back to my storefront to re-hang my shingle, to be perfectly honest.
What I'll be interested to see now is what happens to House Joint Resolution No. 4, "Proposing amendments to the Constitution of the State of Alaska relating to the office of attorney general," which might more correctly be called the "Let's Punish Our Ambitious Governor By Wantonly Digging Up The Foundations Of Our State" Bill. Or something more catchy. Like the Colberg Amendment.
One of the issues that arose after people got all worked up about former AG Colberg's ill advice to state employees (and certain first spouses) who received legislative subpoenas in the Troopernof matter was the fact that Alaska's attorney general is appointed by the governor rather than elected by the people. This outraged a number of people, some of them even residents of Alaska, who felt that AG is too important a position to be a political appointee, and it ought to be decided by the people. (Side Note: Because the people, of course, in our infinite wisdom, have never been known to nominate unqualified individuals for crucial government positions.) And then a pre-filed bill materialized at the beginning of the legislative session, sponsored by Rep. Harry Crawford, proposing that the constitution of the State of Alaska be amended to require the election of the attorney general.
Okay, kids, get settled in. I know you're used to me babbling about hair and shoes and state government gossip. But this is going to be a long one, and I'm about to go a little wonky on you. Because if there's one thing that bothers me more than Crocs at the opera, it's people who want to mess around with Alaska's constitution, which is recognized nationwide as one of the greatest legal documents ever written in these United States.
Follow me back in time, if you will, to the winter of 1955-56, when 55 mildly insane visionaries gathered in an unpretentious room at the University of Alaska to hammer out a little document we like to call the Constitution of the State of Alaska. Why mildly insane, you ask? Because they met in Fairbanks in the dead of winter, which seems totally crazy given Fairbanks's proclivity for Antarctic-grade temperatures, but which probably made sense at the time because in the 1950s, Fairbanks was, in some ways, the center of Alaska's territorial universe. (Side Note: Actually, Fairbanks may have been the center of the actual universe; Michael Carey told me once that Edgar Cayce had some kind of theory about Fairbanks having major cosmic importance.) As far as Alaska statehood is concerned, for a few months in the mid-1950s, Fairbanks was Delphi, because that's where these visionaries (smart in the brain, maybe a little dead in the nerve receptors from the cold) met to draft the document that would end up becoming the fabric of Alaska's state government.
Alaska's constitution is a pretty beautiful thing. The fifty-one men and four women who drafted it knew what they were doing. Not one single word went unscrutinized. If you ever get the chance, listen to Vic Fischer talk about the constitutional convention and the deliberate voice that was developed for the finished document. There is not one wasted word in our constitution. In fact, even if the amendments that came later weren't so handily labeled as such, you'd be able to tell they weren't part of the original document because they're frequently about twenty times wordier than the passages to which they've been appended.
The framers had a lot going for them, of course; chiefly, they had forty-nine other state constitutions to learn from. (Side Note: Yes, even Hawaii's constitution is older than ours, although we ended up getting statehood before they did.) That's a big part of the reason our constitution is so effing kick-ass. They could learn from the mistakes made by other states, and pick and choose from among systems that had been successful elsewhere. One of the decisions they made was not to choose an attorney general through election. As with every other decision they made, the framers talked it to death before inking it to the document.
On January 14, 1956, day 53 of the convention, Delegate Frank Barr of Fairbanks proposed an amendment that would have made attorney general an elected position. He argued:
"In case we had a governor who wanted to bulldoze something through anyhow, if it were a little bit questionable, the attorney general might feel that he was obligated to the governor if he were appointed and his opinion might be biased a little bit. I wouldn't say that he would flout the law, but he could be biased a little bit to either one side or the other. And even if he were entirely honest and tried to render an impartial decision, I'm afraid his conscience would hurt him a little bit because he was obligated to the governor and went against the governor's wishes, so to remove him from that embarrassing position, I think that he should be elected. Now I grant you in electing any man we cannot be sure that we will get a good man, and on the other hand, by appointment we cannot insure that we will get a good man, but I believe that if we are going to elect another official because the people want it, then it should be the attorney general."
"The blunt fact is that there is a general misconception as to the function of the attorney general. The attorney general is a lawyer and his opinion is the equivalent of any other lawyer's. It can be attacked. Any recommendation he makes, if acted upon, can always be attacked in the courts by private citizens. His opinion is worth the paper it is written upon. It's impressive upon the state and the officials are bound by it until some irate taxpayer attacks it and the actions taken under the authority of it, and the courts can promptly overrule it. There is a misconception about the function of the attorney general; his functions are not quasi-judicial. If you're going to elect him, elect him, but by and large if you're creating a strong executive, then give him the power to appoint his own attorney general."
Also coming down against Barr's proposal was Delegate Ralph Rivers:
Barr's amendment failed, 40-12 (there were three absences that day). Pretty much every delegate whose name you would recognize (including Vic Fischer, Bill Egan, Frank Peratrovich, and George Sundborg, who just passed away last Feb. 7) voted against it. Barr then withdrew another proposed amendment that would have similarly instituted the commissioner of labor as an elected position. (Side Note: Interestingly enough, I haven't heard any clamor about the unfairness of having an appointed commissioner of labor. On the other hand, I don't think Click Bishop has managed to get himself entangled in any explosive political situations.)
Why did Barr's amendment fail? It comes down to this: The State of Alaska is a strong executive state. The position of governor is designed to have a certain amount of power and influence. That (like everything else) was deliberate on the part of the framers of the constitution. When you support the executive, it's great, because your governor can get a lot accomplished. When you don't support the executive, it can be frustrating, because the executive can do things like buy a stupid jet or appoint an Attorney General who really gets under your skin.
My point is this: Let's not all go jumping on the Elect The AG bandwagon without taking some time to really think about this issue. I mean, sure, Talis Colberg has done his part to make the case for an elected AG, but at the same time, many attorneys in the state will also argue that he didn't politicize the Department of Law and otherwise, with the exception of the legislative subpoenas, wasn't bad at his job. Plus, if we go running to amend the Constitution every time someone in state government does something we don't like, you know what we're going to end up with? A really big, gross mess of a Constitution. It's what my mother (and probably your mother, too) would call "cutting off your nose to spite your face." At this point, there's a good-sized group of people who are pretty irritated with what they've seen of the performance of the recently-departed AG. But that doesn't mean we should scramble to amend the state constitution - to alter the very foundation upon which our state government is built - just to reprimand the governor for picking him. Amending the constitution doesn't compel those state employees to go back in time and respond to their subpoenas. It just opens up the position of attorney general to all kinds of unpleasant possibilities.
But, as LeVar Burton would say, you don't have to take my word for it. To get some well-reasoned insight on the subject, I did what anyone with half a brain would do: I asked Jeff Feldman (who, if not officially recognized as such, is commonly understood to be pretty much the smartest attorney in the state) to share his thoughts on the Colberg Amendment.
"It's almost always a bad idea to change the rules about how life is lived in response to a single experience," Feldman said. "Electing the attorney general would have at least two serious, and I believe adverse, consequences."
First of all, Feldman said, electing the AG would "seriously change the kind of people who would wind up serving in the position."
"Most lawyers are not politicians," he said. "Many highly qualified lawyers who would accept an appointment and agree to serve as AG would not pursue the position if it meant running a political campaign." As an example, he cites former AG Charlie Cole of Fairbanks, who is generally regarded to have been pretty awesome. "You have to ask the question, 'Do you want the state's senior legal officer to be a good lawyer or a good politician?'" Feldman added. "The constitutional framers resolved this in favor of aiming for a good lawyer."
And the second adverse consequence, you ask? Why, here comes that strong governor system, rearin' its head in our airspace.
"Admittedly, changing to an elected AG would make for a more independent AG, but it would come at the cost of eroding the 'strong governor' structure of state government," Feldman said. "No doubt, in the context of the current administration, there are people who think that weakening the 'strong governor' structure would be a good thing. But that gets us back to the first point above: It's almost always a bad idea to change the rules about how life is lived in response to a single experience."
(Side Note: Will fans of this amendment still be fans when, say, Bob Poe or Hollis French is governor and Wev Shea or Wayne Anthony Ross is elected AG?)
"The 'strong governor' structure of state government ensures that there is a clear line of accountability that leads directly to the Governor," Feldman added. "It also ensures that the state's legal interests and policy decisions will not be mired in political battles between the Governor and an elected AG, who may have his or her sights set on becoming governor." Frequently, state policy decisions (say, development of a gas line) are, in Feldman's words, "inextricably intertwined" with its legal decisions (say, whether to sue oil companies for spill damages). Finally, Feldman translated his response into terms that fit the OTS lexicon:
"You probably wouldn't give up dating men just because one man broke your heart."
And that's really what it boils down to, kids. Do we fundamentally alter the foundations on which our state was built fifty years ago just to "get" Sarah Palin? Doesn't that seem horrifically shortsighted? (Side Note: That's a rhetorical question, asked for effect, but the correct answer is "No, we do not, because yes, it is, in fact, horrifically shortsighted.") One of the other beautiful things about the Alaska constitutional convention is that the framers, who came from all over the state and all across the political spectrum, managed to work together, putting politics aside, in order to construct a document that would best serve the interests of the state. The Colberg Amendment isn't designed to advance the interests of the people of Alaska. It's designed to make Sarah Palin look bad. And I, for one, am not willing to poke holes in the fabric of our statehood just to punish the governor for wanting to be vice president.