clock menu more-arrow no yes

Filed under:

With arrest of Shurtleff and Swallow, it's time to consider an appointed attorney general for Utah

Following his statement, former Utah Attorney General Mark Shurtleff, rubs his head Tuesday, July 15, 2014.
Following his statement, former Utah Attorney General Mark Shurtleff, rubs his head Tuesday, July 15, 2014.
Scott G Winterton, Deseret News

The multiple felony charges filed on Tuesday against former Utah Attorney General Mark Shurtleff and his successor, John Swallow, demonstrate behavior lacking in integrity.

Whether the men are guilty of the particular charges filed against them is, of course, a matter for a jury. All are entitled to the presumption of innocence until trial. Yet the indictment of two former attorneys general raises serious questions about political corruption in Utah.

Both men were charged with a pattern of unlawful activity, a felony; and three counts of receiving or soliciting bribes by a public official, also a felony. Additionally, Shurtleff was charged with illegally accepting gifts or loans, receiving bribes by a public official, witness tampering, tampering with evidence, and obstruction of justice.

Tuesday’s shocking news can have the effect of casting a pall of gloom over Utah. How could the state’s top-ranking law enforcement officer — and not just one, but two consecutive attorneys general — behave in such a manner? How could they have remained in a position of power for so long under the pattern of conduct with which they are charged?

Stepping back and looking at the problem of corruption, there are at least three factors that may have contributed to the problem.

First, Utah lacks a robust two-party system.

Second, Utah has among the nation’s least restrictive campaign finance laws.

Third, Utah selects its attorney general through a process of election, rather than appointment.

In regard to the two-party system, the reasons for the Republican Party’s overwhelming dominance in Utah politics is a subject better left for another day. Yet it bears noting that without a robust general election contest, much relies upon the caucus, convention and primary system. That system must vet, probe and challenge potentially questionable actions by public officials seeking to be the attorney general.

Regarding campaign finance laws, Utah is one of four states with no limits on campaign contributions. The others are Missouri, Oregon and Virginia, according to the National Conference of State Legislatures. Utah also lacks disclosure: The group ranked it 40th among the 50 states in publicizing campaign contributions. The Legislature’s report documented Shurtleff’s and Swallow’s entanglements with donors who had matters pending before the attorney general.

Imposing restrictions on campaign contributions might be a solution to Utah’s attorney general problem. But restrictions on legislative and executive candidates can have adverse consequences for democracy. Campaign finance laws protect incumbents and limit freedom of speech.

The essence of the “perfect storm” here is the confluence of single-party dominance, no campaign finance rules and an elected attorney general.

In 43 of 50 states, voters elect their attorneys general. To us, this seems anomalous. The federal model — the U.S. attorney general is appointed by the president and confirmed by the Senate — places the top law-enforcement officer in the service of the chief executive officer. Jordan Garn, a contributor to the website Utah Policy, made this point following Swallow’s resignation. Gov. Gary Herbert reviewed potential candidates before naming Sean Reyes acting attorney general:

“Subjecting candidates to an application process with the state’s CEO is much more likely to produce the skills matching the job description. This top-down management strategy is consistent with the [Utah] Constitution’s prescription that the attorney general ‘shall be the legal advisor of the State officers,’ not the people. Anything short of appointment runs afoul of the very notion of attorney/client representation with the best interest at heart of the client — in this case, the governor.”

It is time for the state to begin a serious discussion about how to address the causes of Utah’s “perfect storm.” In the absence of campaign finance restrictions, the state should seriously consider making the attorney general a position that is appointed by the governor and confirmed by the Legislature.