The move may seem like smart politics, but — in the category of “be careful what you wish for” — the Democrats who engineered it may come to rue it.
Last Friday, in a partisan vote, the Joint Legislative Fiscal Committee sharply reduced a funding request for the state Department of Justice’s litigation fund, from $777,000 to $300,000. The committee, which approves state expenditures, comprises both House and Senate members, but, like each of the legislative branches, it is controlled by Democrats.
The attorney general is required to act for the state in all criminal and civil cases, and the funding for the Justice Department to fulfill that responsibility covers the gamut of the state’s legal matters, including investigating and prosecuting crimes, court proceedings involving other state agencies such as the Environmental Protection Bureau and representing the state in court when it has been sued. Given this range, the costs are substantial. Over the past five fiscal years, they have averaged over $1.4 million annually, but in any individual year have ranged from about $900,000 to nearly $2.3 million.
Before last Friday’s action, a little over $900,000 had been authorized for the current fiscal year, and in submitting December’s request for additional funding, Attorney General Gordon MacDonald projected almost $1.2 million of additional litigation-related costs would be incurred by the end of the state’s current fiscal year. After an offset of about $400,000 in reimbursement for costs in connection with some health systems affiliations overseen by the department, this led to the request to the fiscal committee for the $777,000 of additional litigation funding.
It would have been understandable if, as an exercise of fiscal oversight, the committee’s majority had challenged the validity of MacDonald’s estimate of the additional costs the department would incur in performing its mandated role. Instead, it chose to undercut that role by stripping out of the funding an amount the Democrats estimate is the department’s cost of defending Senate Bill 3 and House Bill 1264, the two voting laws that are being challenged in the courts by the state Democratic Party and others.
We have long considered those laws an unwarranted effort to restrict voting rights of students and others and believe they should be struck down in the courts. But at present they are state laws, and the attorney general’s obligation is to defend them unless they are manifestly unconstitutional. Given that their constitutionality is the very issue being litigated in the two pending cases against SB 3 and HB 1264, the attorney general clearly has a duty to litigate the issue.
Gov. Chris Sununu issued a rather hyperbolic statement following the fiscal committee’s action, claiming the justice department “will not have the necessary funds to prosecute murders and other violent crimes, litigate clean water lawsuits, or comply with the State’s obligations under the community mental health agreement.” That’s quite an overstatement, and, indeed, fiscal committee Chair Mary Jane Wallner, a Concord Democrat, asserted after the vote that the department could seek additional funding for criminal and other matters and the committee would act favorably.
Missing from the partisan back-and-forth, however, is the dangerous precedent the fiscal committee’s funding reduction sets. Conceivably, this would embolden the legislative branch to tighten the purse strings whenever the attorney general defends a state law the controlling party doesn’t like. Right now, it’s the voting laws. But who’s to say what will happen in the future if a state law favored by Democrats — for example, a law to extend protections for a woman’s right to an abortion if the U.S. Supreme Court were to overturn Roe v. Wade — faces a court challenge at a subsequent time when Republicans are in control, and they withhold funds so as to prevent the attorney general from defending it?
The proper remedy for addressing bad laws is for them to be reversed either through the legislative process or if the state fails to convince a court of their validity. This mischief of cherry-picking which of the attorney general’s responsibilities should be funded not only is bad policy, but may well come back to haunt Democrats.