Home Transportation Transportation Law Debate Shows Cuccinelli’s Dysfunctional Gov. Campaign

Transportation Law Debate Shows Cuccinelli’s Dysfunctional Gov. Campaign

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by Paul Goldman

Having once provided legal advice to a boxing commission, I have to ask: should the state of Virginia grant a boxing license to the fight between Terry McAuliffe and Ken Cuccinelli? At this rate, I am not sure it could get a license in most other states given the AG’s press release cited below.

On transportation, Terry has a policy: Mr. Cuccinelli has a legal opinion. They are not running for the same job, at least yet.

There is a good, solid political reason why Virginia Attorney Generals have opted to resign as opposed to remaining in office while running for governor. Contrary to what the AG thinks, it has nothing to do with the ability to do both jobs, as a matter of intellectual ability or work load. With all due respect, neither position is all that difficult. Rather, it is something far different.

I am presuming Professor Sabato will discuss this at some point with his class, using yesterday’s press release for Attorney General Ken Cuccinelli as the only necessary course material. I quote now the pertinent part, thanking ace Washington Examiner political guy Steve Contorno:

I  was honored to work with members of the McDonnell administration in making sure the legislation was able to move forward without the threat of any legal challenges,” Cuccinelli said in a statement. “Moving forward, I remain committed to working to fix Virginia’s transportation problems, which will create jobs and ease the congestion across the commonwealth.

As we have been saying for weeks now at 200-proof politics, Cuccinelli’s campaign would gain HUGE if Governor McDonnell signed the Transportation Tax Deal passed by the General Assembly AS IS or made only a minor tweak, leaving the regional taxes essentially alone.

Why? Because as Norm Leahy and I were the first to dare say, the Emperor had no Clothes, his “historic” tax deal was unconstitutional AS IS on those 4 regional taxes. Since Governor McDonnell didn’t propose those regional levies, it seemed to 200-proof politics that he would be wiser to AVOID A LAWSUIT at any costs. However, he showed no interest in our point of view. He was 100% going to defend the GA’s bill except for minor tweaks. We thought he needed to rethink the train wreck ahead.

Enter then, the legal opinion of the Attorney General of Virginia, aka Ken Cuccinelli. He agreed with Norm and me. But as I wrote, he left a big loophole in his opinion declaring the regional taxes unconstitutional. He provided a road map for the governor to try and fix it. It surely wasn’t my job to tell the governor how to fix it, I do 200-proof politics here. To be honest, I was looking to arguing the case in front of the VA Supreme Court (and still may).

The 200-proof equation was simple: Cuccinelli wins big if Governor McDonnell decides to defend the GA’s bill. Cuccinelli loses BIG if there is no suit, since it would be one of those real events one can not duplicate in a campaign.  

Last week, the Washington Post, Virginia Democrats, and even some of Governor McDonnell’s top aides were livid at Attorney General Cuccinelli, saying he was being an ideologue who intended to kill the so-called “historic” transportation plan out of pure partisanship. Standing alone, I defended Cuccinelli and his senior legal advisors, saying they would make the right legal call, that they would not play politics.  

So if you don’t mind, I have earned the right to say: I told you so. As predicted, Cuccinelli made the right legal call. Governor McDonnell has admitted as much. He changed his bill didn’t he? Did he listen to Cuccinelli? Of course he did. McD and posse will not admit it, I get that. Would the Governor have amended the bill as he did without Cuccinelli’s advice? My gut call here: NO. I think they would have gone “all-in” as is. Can I prove this? No. But there is nothing to suggest MCD and posse were going to make a big change in the bill BEFORE Cuccinelli weighed in.

THE LEGAL POINT: The critics of Mr. Cuccinelli, the AG, are plain wrong on the law; he has never played legal politics on this opinion, and it is a shame things have become so partisan that even the Washington Post refuses to admit they were wrong, that they had been Nixonian here.

BUT AS A POLITICAL MATTER: The critics of Mr. Cuccinelli, THE GOP CANDIDATE FOR GOVERNOR, are 1000% correct. The Cuccinelli press release cited above is his attempt to be Nixonian, an absolute disaster even though, on a literal basis, it is correct. The McAuliffe campaign has pounced and rightfully so, although they need to careful to be accurate, not open themselves up to a backlash.

I ask: Whatever possessed Cuccinelli’s campaign to allow such a press release to be released? There is only one logical possibility in my experience. The press release technically came from his office as AG, and thus, he has established a policy of not clearing these things through his political campaign. This is a perfectly legitimate position IN THEORY as the jobs are separate: running for governor and being AG. BUT IT IS POLITICALLY DUMB TO THE NTH DEGREE, an amateurish position. This not law school, this is a campaign for governor. You are either in the game 24/7, or you should step aside and let Mr. Bolling – a 200-proof pol by his own admission – have the GOP nomination.

This is why AGs resign to run for governor. The ability to do the two jobs isn’t the problem: It is the ability to be two different people 24/7. As Einstein pointed out, this is impossible even for Mr. Cuccinelli. He is running for Governor: People want to know his position on transportation, taxes, spending priorities, all the stuff involved with the Tax Deal debate.

AGs decide whether laws are constitutional: governors decide what laws are passed and then checked for constitutionality. The job of governor is different. If Cuccinelli had resigned, another AG might well have approved the original bill. This is what AG Bob McDonnell did in 2007. As I have written, this is what AGs usually do, approve the GA’s bills and let a court decide.  

AG Cuccinelli has basically screwed gubernatorial candidate Cuccinelli out of a big courtroom win, and now has confused his position on taxes, spending priorities, you name it. McAuliffe backed the transportation deal passed by the GA: Cuccinelli opposed it.  That’s the bottom political equation. Or has something changed?

If Cuccinelli has decided to give up the tax issue, to “me too” Terry on transportation, to buy into all the spending priorities attendant to the Transportation Tax Deal, and all the rest, then why is he running for governor, at least on the big issues?  Is this going to be an anti-abortion, anti-gay marriage, 100% social issue campaign for the GOP? If so, then it will be the first Democratic sweep since 1989.

That’s cool: for the Dems, it would be about time. I can write about other things as opposed to stuff which was decided a quarter-century ago. 200-proof politics doesn’t have time for 0% campaign uncertainty. What is the fun in that? The Cuccinelli campaign reminds me more and more of the 2001 Mark Earley campaign. In political shorthand, Earley could never figure out whether to go left or right. I would like to think it had something to do with the strategy imbedded in Warner’s campaign platform.

Like I say, I am beginning to wonder whether the state of Virginia should give a license to this fight. Someone could get hurt if the referee isn’t paying attention.