Unlike other elected officials, Utah's attorney general decides who will be prosecuted criminally and who will be given a pass. Although some think the AG represents "we the people," the Utah Constitution makes it clear that he is the legal adviser to other state officials.
If you believe the attorney general represents you, then call his office and ask for legal advice. You will be told that you are not their "client." But the governor is. For this reason, I believe it makes sense for the governor to appoint the attorney general. This change would help ensure that Utah has the best attorney, not the best politician, for its chief law enforcement officer.
The attorney general is appointed by the governor in five states (Alaska, Hawaii, New Hampshire, New Jersey and Wyoming). The AG is selected by secret ballot of the Maine legislature, and by the state supreme court in Tennessee.
There are at least three reasons to change to appointment of attorneys general where they are elected.
First, elections politicize the role of attorneys general. In 2010, 25 percent of the elected AGs in the United States were running for governor.
Second, the process of campaigning induces bad behavior. It leaves the perception of a relationship between fund-raising and political patronage. Some AGs have referred profitable cases to outside law firms, thereby giving them an incentive to contribute. The attorney general may have limited incentives to regulate or sue those who contributed to their campaign.
Third, most voters are not keeping themselves informed of the attorney general's performance. The problem is increased when the candidate is not an incumbent.
Elections are also susceptible to false and misleading campaign advertisements, a problem often spotlighted in judicial elections as well. With an appointment process, a greater pool of qualified candidates may also emerge.
In New Jersey, the attorney general serves for a fixed term in an appointment system. This provides independence, without substituting dependency on voters and campaign contributors. In the best judicial appointment systems, like the one I suggest for Utah, governors select judges from a group of five nominees who are screened and proposed by a commission.
This adds an assurance of candidate quality and to limit executive discretion, including by avoiding purely patronage and unqualified appointments. This process is adaptable to attorney general selection.
In 1993, well before his appointment to the United States Court of Appeals for the 10th Circuit, Scott Matheson Jr. wrote: "For executive branch legal representation, gubernatorial appointment of counsel would offer greater political accountability, a lower risk of policy gridlock, and diminished conflict of loyalty, but perhaps cause some sacrifice of a checking function within the executive branch.
"For public law enforcement, civil and criminal, the independent election of the attorney general would insulate legal decision making from political pressures of the governor and the governor's appointees, but would also in some areas pose the dangers of accountability confusion, policy impasse, and politicizing an office with quasi-judicial responsibilities."
Todd Weiler represents District 23 in the Utah Senate. He and his wife, Elizabeth, reside in Woods Cross with their four children.