The state constitution, last rewritten 70 years ago, gives New Jersey’s governor some of the broadest powers of any in the country, including the authority to appoint cabinet members, judges, prosecutors, and dozens of other officials who serve in key positions at all levels of government.
Adding to that power is the authority to also select the state attorney general, making New Jersey’s governor one of only a handful of chief executives across the country who can pick who fills the state’s top legal office, which is something most other states leave up to voters.
But now, one of the leading candidates running in this year’s gubernatorial election in New Jersey is proposing to end that long-held tradition and instead make the state attorney general position an elected office. Lt. Gov. Kim Guadagno, a second-term Republican, inserted the call for an elected attorney general into the first major policy proposal she’s released sincefor governor last month.
“The problem with Trenton is really quite simple, they (voters) don’t trust us anymore,” Guadagno said in an interview with NJ Spotlight.
“Let’s bring the attorney general’s office out into the light,” said Guadagno, a former federal prosecutor whose resume also includes a stint as a high-ranking official in the state attorney general’s office.
Guadagno is likely facing an uphill battle this year thanks to Gov. Chris Christie’s historic unpopularity and a general advantage that Democrats already hold over Republicans in New Jersey when it comes to voter registration. She is also being challenged in the GOP primary by Assemblyman Jack Ciattarelli (R-Somerset), and several other Republicans. A top Democratic legislative leader, Assembly Speaker Vince Prieto (D-Hudson), has also already come out against her proposal to make New Jersey’s attorney general an elected official, which would require approval from the Legislature and voters to go into effect.
Still, legal experts say Guadagno’s idea deserves a full discussion and a weighing of the tradeoffs that come with increasing the attorney general’s office’s legal independence, but also its involvement in statewide politics.
“It’s a mixed bag, but the truth is, it’s not necessarily a bad proposal,” said Robert F. Williams, a New Jersey constitutional law expert who serves as the associate director of the Center for State Constitutional Studies at Rutgers University-Camden.
Right now, a total of 43 states fill the role of attorney general through a statewide election, according to the National Association of Attorneys General. New Jersey is one of only five states that allows its governor to appoint someone to fill the position. The others are Alaska, Hawaii, New Hampshire, and Wyoming.
Williams described the practice followed in New Jersey as a compromise position between the federal government’s model, where the U.S. attorney general serves only at the pleasure of the president, and the states with the elected-official model, where the attorney general has complete independence. The current setup was included in the latest revision of the state constitution, which occurred in 1947, but also has roots in the 1844 version. New Jersey’s attorney general position is also one that is subject to the advice and consent of the state Senate.
“That’s sort of the nature of where we stand now,” Williams said.
Several calls to turn the New Jersey attorney general’s office into an elected position have emerged in recent years from the Legislature, which is controlled by Democrats, including during the immediate aftermath of the George Washington Bridge lane-closure scandal.
During the Bridgegate scandal, Christie chose not to appoint a full-time attorney general for three years. And while federal corruption charges were filed against three of Christie's close allies by New Jersey U.S. Attorney Paul Fishman, no state charges were ever filed.
If New Jersey’s acting attorney general had decided to pursue a Bridgegate investigation, Christie would have been able to effectively dismiss him by formally nominating a full-time replacement. Instead, Christie waited until June 2016 to nominate current, well after the federal case was on its way to trial.
Guadagno announced the proposal to turn New Jersey’s attorney general into an elected office last week, including it with calls for a thorough audit of state government and a host of other financial reforms. She acknowledged during her interview with NJ Spotlight that people will likely link the attorney general proposal to Christie and Bridgegate, but she said it’s rooted in a broader desire to “convince people they can trust their government again.”
“It really has to be the number 1 item on their (priority) list,” Guadagno said of New Jersey’s voters.
Williams, the constitutional law professor, also brought up Bridgegate while discussing Guadagno’s proposal, and he said turning New Jersey’s attorney general into an elected official would instantly provide the state’s top legal officer with full independence from the governor, which could be a good thing.
“One of the pros, of course, is independence, and even potentially, a different political party than the governor,” Williams said. He also said the move would serve to whittle away some of the governor’s overall power by taking a way a key appointment.
But Williams said the change would also open the attorney general up to having to run for office and raise money to do so. He noted in other states the shorthand term “AG” is often jokingly referred to as “aspiring governor” instead of attorney general.
“That can infuse politics into the attorney general’s position in a way that interferes with its independence,” he said. “Particularly, if they’re angling to run for governor.”
That’s also a concern raised by Prieto, the Assembly leader, who has immediately come out in opposition to changing the way New Jersey seats its attorney general. Since the current method is written into the state constitution, it would take a referendum to create a new elected office, just as it was when thewas approved by New Jersey voters in 2005.
“An elected attorney general raises many concerns,” Prieto said. “The last thing New Jersey needs is an openly political attorney general making decisions based on whether it will help them in an election and, potentially most concerning, raising money to campaign.”
But Daniel Feldman, a former New York state lawmaker who also served as a high-level official in the New York State Office of the Attorney General, said having an attorney general involved in elected politics is not necessarily a bad thing if the official has the right approach. He said the “aspiring governor” moniker is also popular in New York, where in recent years Gov. Andrew Cuomo and former Gov. Eliot Spitzer both held the office of attorney general before moving on to the governor’s office.
“If you’re sensible you can be politically ambitious and get there the right way,” said Feldman, who is now a professor at the City University of New York's John Jay College of Criminal Justice and also co-author of the book “The Art of the Watchdog: Fighting Fraud, Waste, Abuse and Corruption in Government.”
Feldman also said there are some big advantages to electing the top legal official, as New Yorkers do. First and foremost is being freed from the pressure of being fired by a governor for political reasons.
“It just sets up a safeguard against any conflict or tension that’s there,” Feldman said.
Guadagno said New Jersey already allows voters to elect county Sheriff’s to serve in a law-enforcement position in each of the state’s 21 counties. In fact, she herself was Monmouth County Sheriff before being elected lieutenant governor on a ticket with Christie in 2009.
“I think this is analogous,” she said.
Guadagno also said she would be in favor of establishing term limits for New Jersey’s elected attorney general, just as the governor’s tenure is limited by the state constitution, to two terms in office. And even though she’s now seeking the governor’s office, Guadagno said she isn’t afraid of taking away some of the office’s broad powers.
“The problem here is I think it’s too powerful,” she said.