McKenna Enjoys Perks of Office
It's good being attorney general.
Last month when former Rep. Jay Inslee, D-Wash., filed a disclosure complaint against his opponent in the gubernatorial contest, Republican Attorney General Rob McKenna vowed to respond in kind. He came through on that promise yesterday, filing a counter-complaint, but using a method that gives him the upper hand.
McKenna's complaint alleges that Inslee has illegally transferred funds from his congressional campaign account to his gubernatorial campaign. Likewise, Inslee's earlier complaint alleges that McKenna funneled funds from his attorney general campaign account to his gubernatorial account. Both campaigns claim that the opposing complaint is bogus.
However, instead of filing an ordinary complaint with Washington state's Public Disclosure Commission, as Inslee did, McKenna filed what's called a "citizen action." There are two major differences between the two. One is that, unlike an ordinary complaint, a citizen action must be approved before the Public Disclosure Commission will rule on it. And here's the rub: that approval must come from either the King County Prosecutor's office, which is currently headed up by a fellow Republican, or from the state attorney general's office itself, essentially giving McKenna the authority to approve his own complaint
The second difference is that McKenna's citizen action must be ruled on within forty-five days, whereas the commission has no deadline to consider Inslee's and could do so long after the election is over.
"I think it's problematic that it's the attorney general who is the one who is supposed to be making the decision as to what happens next," said Lori Anderson, a spokeswoman for the disclosure commission, adding that McKenna seemed to be "trying to force" the commission to make a ruling before the election.
However, she noted that the commission's hands are tied. There is nothing they can do about the complaint until it has been forwarded to them -- from McKenna's office. "While it's a problem, it's not our problem," she said.
Of course, Inslee could have done the same thing McKenna did; a citizen action is exactly what it sounds like -- it can be filed by anyone. But it's hard to see the attorney general's office - or his allies in King County - rushing to forward a complaint about the attorney general himself. Instead, they could allow the forty-five-day time limit, and a subsequent 10-day final notice period, to expire without making any decision on it at all. That would Inslee's campaign with the option of either abandoning the complaint or filing a lawsuit themselves. Whatever Inslee spent on the suit could be reimbursed by the state -- but only if he won.
However, Anderson says situations like those, though possible, are extremely rare and the attorney general almost always passes disclosure complaints along to the commission.
Once the commission makes a ruling, one of two things can happen: it can file charges or pass the case back to the Attorney General either because the commission found no evidence of wrongdoing, or because the case is too big for their office to handle. In either case the attorney general's office or the King County prosecutor can still pursue charges.
"We followed the process that's set in place," McKenna's communications director Charles McCray told reporters on a conference call on Friday. As for a conflict of interest, McCray said that while he couldn't speak for the attorney general's office, he would "imagine" that they would bring in outside counsel or hand the case over to another agency.
Whatever happens, McCray insisted that the McKenna campaign is intent on going forward with the case. "We are certainly prepared, if need be, to pursue this," he said.
The process is a win-win for McKenna. The disclosure commission must make a decision by October 7 (or the 17th at the latest given a 10-day final notice period), less than a month before the election. And should he be unhappy with the results, his own office has the power to file and pursue charges against Inslee's campaign anyway. Of course the former case -- having an outside group label Inslee's campaign tactics inappropriate - would be an ideal scenario. But should the PDC reject McKenna's complaint, his campaign can easily spin a lawsuit as just another action against wrongdoing by a strong attorney general standing up for the law.