A World of LBJs
By David Henderson
THIS PAPER DETAILS AN EXTENSIVE and elaborate campaign using elective law enforcement offices, in coordination with major donors and activist pressure groups,to attain a policy agenda that failed through the democratic process. The plan is revealed in emails and other public records obtained during two and a half years of requests under state open records laws. Most are being released now for the first time. Many were obtained only by court order in the face of a determined and coordinated resistance that one deputy attorney general foresaw, expressing early concerns over “an affirmative obligation to always litigate” requests looking into the effort. The paper details how donor-financed governance has expanded into dangerous and likely unconstitutional territory: state attorney general (AG) offices.
The plan traces back to 2012 when activists agreed to seek “a single sympathetic attorney general” to assist their cause. AGs began subpoenaing private parties’ records in service of a campaign of litigation against opponents of their climate policy agenda. The public records date to a July 2015 email in which Peter Frumhoff of the Union of Concerned Scientists confided the group’s involvement with AGs.
Those public records reveal the following: (a) donors introduced plaintiffs’ lawyers to AG offices (OAGs), (b) a slideshow tour by plaintiffs’ lawyers recruiting OAGs to the effort, and (c) senior attorneys from OAGs flying in—some at taxpayer expense and others on the donors’ tab, which had been run through a pressure group— for a briefing with “prospective funders” about “potential state causes of action against major carbon producers.” One presenter described this briefing as a “secret meeting.” It was secret enough that one AG litigated to withhold the agenda—under implausible claims of privilege—for a year and a half before being compelled by a court to release the lineup for what turned out to have been an AG-assisted fundraiser.
Those public records reveal the anatomy of what began as an “informal coalition” of AGs to use the legal system in pursuit of an overtly political agenda in coordination with activists and plaintiffs’ lawyers. That coalition disbanded under open records and media scrutiny, but it has now reconstituted through a program by which donors fund, privately hire, and place investigators and prosecutors in AG offices. It uses a nonprofit organization to pass the funding through and to provide the OAGs with a network of “pro bono” attorneys and public relations services. In return, OAGs provide office space to the privately hired prosecutors; agree they are there to “advanc[e] progressive clean energy, climate change, and environmental legal positions”; and provide regular reports about their work.
Led and funded by former New York Mayor Michael Bloomberg, this scheme hires “Research Fellows,” which it then places as activist “Special Assistant Attorneys General.” All of the participating OAGs had to promise that this work would not get done but for this private funding. All OAGs also certified they are not violating the law by accepting privately funded prosecutors. At best, as several OAGs tacitly admit, this unprecedented arrangement operates in a gray area with neither prohibition nor authority. One state where the scheme is arguably illegal is New York, where disgraced former Attorney General Eric Schneiderman had a leading and organizing role at every stage of the campaign this paper describes.
These are the opening paragraphs of Christopher C. Horner, “Law Enforcement for Rent: How Special Interests Fund Climate Policy Through State Attorneys General,” Competitive Enterprise Institute, August 2018.
When I read the first two volumes of Robert A. Caro’s magnificent series on Lyndon B. Johnson, The Path to Power and Means of Ascent, I thought LBJ was one of a kind. I still do but reading the Horner brief makes me aware that LBJ has some competitors: ruthless politicians who take extreme measures to get their way and shake down their opponents. Horner’s brief is eye-opening.
By the way, I had an economist colleague, long since retired, who was a “whiz kid” under Secretary of Defense Robert McNamara. My colleague had not read Caro. I leant him one of those two volumes–I think the second. He had thought quite well of his big boss, LBJ. He came into school the next day bleary eyed, having stayed up all night reading the whole of Caro’s book. He told me that when he finished, he felt like throwing up.