As attorney general, Ken Cuccinelli has attacked in court “Obamacare” and federal environmental rules. He’s pressured the Virginia Board of Health to impose restrictions on abortion clinics. He’s thwarted Gov. Bob McDonnell from considering anti-discrimination protections for gay state employees.
And every time Cuccinelli acted, he made sure he had everyone’s attention.
The Republican nominee for governor may have a new objective, though he doesn’t seem to be telling many people: Scuttling Virginia’s 16-year-old ban on campaign fundraising during the annual legislative session.
In a little-noticed opinion for a Democratic lawmaker, Cuccinelli expanded the range of fundraising activities that he deems permissible when the General Assembly is meeting. This is the latest in a string of opinions by Cuccinelli since 2010 that potentially erode a prohibition that has little to do with government and a lot to do with politics.
Delegates and senators would have to vote to scrap the restriction. It also would require the governor’s signature.
Giftgate — and Cuccinelli’s ties to it — could make lifting the fundraising restriction difficult, if not impossible. The scandal that is ruining McDonnell’s career and threatening Cuccinelli’s could unnerve lawmakers, many of whom would be perfectly happy being freed to again multitask; that is, legislating and fundraising.
In Virginia, an attorney general’s opinion carries the weight of law unless it is disrupted by state statute or judicial edict. That is to say, an attorney general’s opinion can provide legal cover for conduct by a public official that otherwise might not pass the smell test.
And because attorneys general change, opinions change. It is a reminder that, particularly in the political realm, sometimes the law is less important than the lawyer interpreting it.
If you look at Cuccinelli’s three opinions as if they were tiles in a mosaic, a distinct image emerges: that of an arrow suggestively pointing toward repeal of a 1997 law that didn’t diminish the influence of money in politics.
If anything, the law made fundraising surreptitious and more transactional — demanding more quo for quid.
Legislators are driven into the shadows because they can’t openly seek contributions, via one-on-one meetings with donors, events or snail- and e-mail. They tailor their votes in the winter to ensure maximum leverage with contributors in the spring, summer and fall. They rely more heavily on aides, advisers and allies to identify and nurture benefactors.
Further, the restriction makes politics less competitive.
No one knows this better than Cuccinelli. For two months this winter, he couldn’t raise any money for his gubernatorial candidacy. At the time, Terry McAuliffe, the Democratic nominee, had nothing to do but raise money. That may have contributed to McAuliffe’s nearly 2-to-1 advantage in cash on-hand.
In the first opinion, in 2010 for Republican Robert Hurt, Cuccinelli makes a distinction between fundraising for state office and fundraising for federal office. That allowed Hurt, then a state senator from Chatham, to hit up donors for his congressional campaign.
In the second opinion, in 2012 for Republican Sen. Jeff McWaters of Virginia Beach, Cuccinelli says there is no barrier to a legislator raising money for a federal candidate. This cleared McWaters to collect dollars for Mitt Romney, the GOP presidential candidate. Democrats could do the same for President Barack Obama.
In the third opinion, issued July 12 to Democratic Del. Scott Surovell of Fairfax, Cuccinelli says a lawmaker can solicit and accept contributions for non-Virginia candidates, state and federal, as well as national PACs, super PACs, and committees that are federal in focus but operate at the local, regional or state levels.
In each instance, legislators busy with the people’s business in Richmond will turn to the usual suspects — their usual suspects: friends and neighbors back home for small-dollar donations, corporate and professional types for bigger checks; lobbyists and trade groups for the fattest contributions.
In these settings, legislators are all but collecting money for their campaigns. They are doing something essential to fundraising: building and expanding networks of donors and learning their likes and dislikes, which drive decisions about who gets a check or doesn’t.
Cuccinelli’s opinions provide a screen behind which legislators, while officially focusing on federal campaigns, unofficially fortify their state campaigns. The attorney general may see the distinction. Here’s betting voters don’t.
Virginia is among 15 states that prohibit fundraising during their legislative sessions, according to the National Conference of State Legislatures. Fourteen states do not allow lobbyists to make donations when their legislatures are meeting.
In his three opinions, Cuccinelli navigates the shifting and overlapping labyrinths of state and federal law that guide campaign fundraising. Cuccinelli explains how a missing word here or a turn of phrase there promotes or precludes the chase for political cash.
But it is, perhaps, Cuccinelli’s references to the U.S. Constitution that are most telling. He argues that one of the principles allowing a state legislator to raise dollars for federal and non-Virginia candidates is the Constitution’s Supremacy Clause; that federal law trumps state law.
Coming from Cuccinelli, that’s a first.