A political ad masquerading as a coal lawsuit

WHEELING – West Virginia Attorney General Patrick Morrisey’s recent op-ed in the Washington Examiner provides a starting point for a nationwide discussion.

The discussion should not concern Morrisey’s latest long-shot lawsuit, though, but rather the ways AGs like him use litigation as a political platform. While Morrisey’s methods are likely to be cheered by some in the short run, they are debasing a critical office with litigation that is publicity-seeking, partisan, and worst of all, frivolous.

As the oral argument revealed, Morrisey’s lawsuit, argued Thursday, has little to no chance in the D.C. Circuit, and none at all in Supreme Court. The effort to seek an injunction based on mere fears of what an agency might do has to fail, because courts know they would hear nothing but such suits if this one proceeded any further.

Some lawyers only get paid when they win, and therefore have little incentive to file futile cases. Other lawyers get paid by the hour, but still seek to avoid embarrassing losses that would hurt their chances at acquiring future business. But in Morrisey’s case, he means to win by losing, so long as great publicity and attention is gained in the process.

Morrisey’s well-timed op-ed telegraphs this again and again. His overheated language about “aggressive assaults,” “skyrocketing energy costs,” the obligatory “Obama ... must be stopped” rhetoric, and his other grandstanding declarations pre-figure not a courtroom victory, but a 2016 political campaign that he began rolling out two weeks ago. While the execution may be admirable as professional politics, it leaves a lot to be desired as, well, lawyering.

Attorneys general used to act something like real lawyers. But more recently, they have become more like at-large representatives of their political constituencies, and their donors. Morrisey might be the paradigmatic example of the trend, even going so far as to misrepresent West Virginia’s implementation of the Affordable Care Act in order to strike a partisan pose.

Energy corporations increasingly see AG offices as fertile ground for purchasing political support, but Morrisey has become a remarkable outlier in how far he’s taken the idea. Rather than soliciting donations from representatives of those his office exists to regulate during his election campaign, he is actually soliciting those donations after being elected. He’s managed this by loaning himself large sums to run his race, and by taking donations after the election to “repay” himself.

As a result, Morrisey can go to Harrisburg, Ill., where coal giant Murray Energy has some nice facilities, and take tens of thousands of dollars in “contributions” that go not to any political campaign, but are actually earmarked for his own pocket.

A bipartisan consensus is emerging that the politicization of AG offices, and corporate influence over them, is serious problem. At the heart of that consensus we find the common-sense idea that West Virginians should not be paying for an ambitious politician’s permanent campaign, much less his frivolous lawsuits.

Meanwhile, Murray Energy knows as well as Morrisey that the lawsuit can’t win. No matter. It frames a political question they want to push as they prepare for 2016. The anti-administration, pro-coal rhetoric resonates in Appalachia, and they are pleased to keep it in the newspapers. But eventually, we all pay the price when our attorneys general use their offices as donor-courting political platforms, instead of filing practical, winnable cases that help citizens.

Regan is the vice chairman of the West Virginia Democratic Party and an attorney with Bordas & Bordas in Wheeling. He blogs atwww.homeyesterday.com.