The people who wrote the Kentucky and United States constitutions set up elegant systems to assure there is always someone with the power to challenge even the most powerful people.
That’s why in Kentucky, attorneys general have pursued abuses of power in the administrations of governors of their own party and those of the opposition and have been able to recover tens of millions of dollars from powerful outside corporations that have cheated Kentuckians.
House Bill 281, a clearly politically-motivated measure that has passed the Kentucky House, would make it harder for attorneys general to go after huge multinationals that have hurt Kentuckians in many ways, including price gouging, unfair mortgage practices and pushing addictive medications.
Even worse, in the Senate a proposed amendment seeks to strip away an elected attorney general’s power to root out wrongdoing by Kentucky officeholders and give that authority instead to the governor.
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This deplorable amendment, which strikes at the system of checks and balances that’s at the heart of our form of government, was presented by Senate President Robert Stivers, R-Manchester, early Wednesday morning at a meeting of the Senate Judiciary Committee.
Stivers defended it as a matter of clarity, simply a way to present a unified voice. “Who is the voice of the commonwealth,” he asked, when governors and attorneys general are at odds in the courts, or when attorneys general demur from defending actions taken by the General Assembly.
Kentucky needs“a common voice,” Stivers said, and that should be the governor.
Our longstanding system of checks and balances can be messy, complicated and confusing, at least in the short term. But that’s a small price to pay for keeping the corrupting influence of power under control.
While Stivers’ amendment is the most troubling, and likely unconstitutional, aspect of HB 281, the original bill is also at odds with the interest of Kentuckians. It seeks to cap the fees that outside law firms can receive for representing the state on a contingency basis.
These cases are rare, extremely complex, can go on for years, involve huge multinational companies, tens of millions of dollars, and are very costly to pursue. Examples include the action against Purdue Pharma, the maker of OxyContin, for driving up addiction and death in Kentucky by misleading physicians about how addicting the drug was, and battles over the distribution of tobacco settlement funds.
The attorney general’s office doesn’t have the money and manpower to pursue these cases. So, to assure Kentuckians are fairly represented, the office seeks bids from large national and regional firms to take on the cases on a contingency basis (usually a percentage of the settlement), meaning the firms front all the costs and are only paid when and if there is a settlement.
HB 281 seeks to micromanage this process by setting maximum percentages firms can receive for different levels of settlement, with a total cap of $20 million.
It’s hard to see how this bill, if it becomes law, can do any good but it can certainly do a lot of harm.
As Beshear explained at Wednesday’s committee meeting, the AG’s office asks for bids, evaluating them on price and qualifications, producing competition among those bidding. By setting limits the legislation all but assures that fewer firms will bid and those which do so will set their fees at the maximum allowed. Reducing competition and guaranteeing a fee hardly seem designed to attract the best firms to fight for the interest of Kentuckians.
HB 281 has passed the House, although without Stivers’ amendment, which was added only hours before the Senate Judiciary committee meeting. The committee did not act on the bill but will meet again Tuesday. It should reject this unnecessary meddling with the AG’s office and the threat to separation of powers represented by Stivers’ proposed amendment.
In this case speaking with a common voice simply means shutting up opponents.