Tag Archives: cuccinelli

Neither Cuccinelli nor McAuliffe can win. And yet one of them must.

When a candidate is described as “divisive,” generally it’s intended to mean that while his own party loves him, the other party can’t stand him. In what’s shaping up to be a race between Terry McAuliffe and Ken Cuccinelli for the Virginia governorship, there are two wildly divisive candidates who are perhaps more divisive within their own parties than outside of it.

Four years ago, McAuliffe came in a distant second in a three-man race for the nomination for governor (despite raising $8M), won no geographic portion of Virginia, and endeared himself to nobody in the process. He’s never been elected to public office and has no constituency. The percentage of Democrats who would definitely not vote for him exceeds the percentage who would vote for him. That’s not in the primary—that’s in the general election. McAuliffe is a Clinton-era Democrat, the sort of old-school Democrat accustomed to winning elections by sucking up to power brokers, the sort who was purged from positions of power in the party round about 2005. It’s his turn to run for office, you see. He’s a glad-hander (it’s always “good to see you,” never “good to meet you”), always ready with the grip-and-grin. His performance at the 2009 Jefferson-Jackson Day Dinner really said it all.

And the Bill Clinton thing. Good Lord, the Bill Clinton thing. Guess who McAuliffe just got off the phone with? Guess who he just played golf with? You know who told him the funniest thing the other day? McAuliffe cannot stop mentioning Clinton because it’s all he’s got. Terry McAuliffe : Bill Clinton :: Marge Simpson : Chanel suit.

McAuliffe’s business bona fides aren’t much better. Global Crossing. (Need I say more?) His current business, Greentech Automotive, recently established an auto plant…in Mississippi. Despite that McAuliffe knew full well that he’d be running for governor of Virginia, touting his business experience on a platform of creating jobs. (“The main reason Terry is running for Governor is to make it easier for companies to create jobs right here in Virginia,” says his spokesman.) Why didn’t he build the plant in Virginia? Oh, it’s not his fault—it’s the fault of Virginia Economic Development Partnership! “It was their decision,” McAuliffe spinelessly informed The Note. How was the location of his factory a decision of tiny state agency? They wouldn’t pay him enough to locate his plant in Virginia. Yes, McAuliffe believes that states should bid for businesses (an economic loser just about every time), even his own business, not by creating environments conducive to running businesses and recruiting employees, but by just offering cash. This, of course, is why this company was located in Hong Kong when he bought it—in a globalized economy, a lowest-bidder approach will leave manufacturing out of the U.S. permanently. Mississippi, you see, is the U.S.’s version of a third-world country. Perhaps McAuliffe will be running on a platform of making Virginia more like Mississippi? In their defense, VEDP says that McAuliffe never even completed their application. McAuliffe shopped around for a state in which to open a factory the same way that he shopped around for a state in which to run for governor. Virginia’s apparently great for running for governor, but not so great for building “cars” that are legally identical to golf carts.

Not one Democrat in a hundred is excited about McAuliffe. Democrats are fired up about him the same way that Republicans were fired up about Mitt Romney. The base will fake it through November and, if he loses, they’ll all say how they never really liked him in the first place. If he wins, of course, they always believed in him!

Then there’s Ken Cuccinelli. Christ, what an asshole. “Extremist” has seldom been a more suitable word to describe a candidate. He supports a no-exceptions ban on abortion, opposes homosexuality (period), thinks Virginia needs Arizona-style anti-immigration laws, believes that global climate change is a conspiracy theory, and thinks that President Obama didn’t really win reelection last month. He has 95% of the traits that have been laying waste to the Republican Party in recent years, save one—he’s not dumb. In fact, he’s an intelligent guy, and a too-common mistake made by Democrats is to believe that just because he professes wildly retrograde, utterly contra-factual beliefs, that he must be a fool. He is not. (This is in sharp contrast with Sarah Palin, Rick Perry, Michele Bachmann, etc., who, even collectively, are dumber than a sack of hammers.) Unlike McAuliffe, he actually has a base, and he’s been elected to office repeatedly. He represented Fairfax in the General Assembly for two terms and, of course, successfully ran for attorney general. While McAuliffe is a generic sort of a centrist-ish Democrat who is hobbled by a terrible personality and the perception that he’s a carpetbagger, Cuccinelli is hobbled by holding views that are wildly out of step with Virginians, Americans, and the facts. I’d guess about 20% of the electorate probably adores him, but far more deplore him (or will, come next October).

Cuccinelli is the sort of social conservative that’s driving a wedge into the Republican Party. Regular ol’ fiscally conservative Republicans have tolerated allowing this type into the tent so long as they’ve furthered the same collective goals, but it’s started to get embarrassing (e.g., the Tea Party). Those regular Republicans were victorious in the nomination process for the presidency this year, allowing Romney to defeat a field that consisted largely of crazies, but after Romney’s loss, it’s not clear which side will be running the party soon. Dick Armey’s departure from FreedomWorks (one of the the Koch-funded companies that created and bankroll the Tea Party) is the latest evidence that the conservative power brokers have lost control over their own creations—the inmates are running the asylum. Cuccinelli is proudly on the inmates’ side of the fence, and unless he’s prepared to tamp down that image, he’s going to have a tough time getting support from the kind of Republicans who supported Mark Warner over Jim Gilmore. This, of course, is why Lt. Gov. Bill Bolling is flirting with running as an independent. His is the wing of the party that thinks that the grassroots need to be trimmed back (to abuse a metaphor), the wing that Cuccinelli is going to have a tough time wooing, and a tougher time still if Bolling gets into the race.

Power-brokers on both sides are pooh-poohing talk of primary challengers and third-party candidacies. When former congressman Tom Perriello demurred a few days ago, that was the prompt for Democrats to declare that it’s time to get behind McAuliffe as our candidate. This has not been greeted with enthusiasm.

All of this reminds me of the Republican presidential nomination process in 2008 and 2012. Reviewing every candidate, there was a clear and obvious argument to be made as to why they couldn’t possibly win the nomination. And yet somebody had to win and, indeed, somebody did. Neither Cuccinelli nor McAuliffe can possibly win a gubernatorial election. And yet—unless somebody else enters the race—one of them will.

This is the worst kind of election, the kind in which a supermajority of the voters in each party have to support not their preferred candidate, but the one whom they loathe the least. (To be fair, this is how some voters feel about every election.) That may be what makes it such an ideal race for a solid third-party candidate like Bolling to take a run at election. Russ Potts’ 2005 gubernatorial candidacy was a threat to Republican nominee Jerry Kilgore, but there was never any danger of him winning the election. Republicans were OK with Kilgore, and Democrats liked Tim Kaine. Things are different this time. If Bolling can trim his sails a bit (he is a conservative Republican after all), he can take votes from both candidates, money from both sides, and I think it’s entirely possible for him to win. At least, then, it’ll be possible for somebody to win.

Not with a bang, but a whimper.

Attorney General Ken Cuccinelli’s inglorious defeat at the hands of the Supreme Court of Virginia was surely not how he envisioned the conclusion of his UVA fishing expedition. Without any cause for suspicion, or the slightest evidence of malfeasance, Cuccinelli went after Michael Mann and the University of Virginia. In the multi-year saga, he couldn’t come up with a single piece of evidence that Mann’s climatology research was in any way fraudulent (mirroring the many “Climategate” investigations, all of which came to the same conclusion). And yet that’s not what did ultimately did him in. What killed his case was that he simply lacked the power to attempt to pry this information out of UVA—he had no legal authority to do so.

If Cuccinelli had hoped that this conclusion might allow him to retain some shred of his dignity, he hoped wrongly. Although there’s no great surprise in the Washington Post editorial board lambasting him for his stunning waste of government resources (if Cuccinelli wants to find a waste of state government money, he might start with the $600,000 that UVA had to spend to defend itself against his foolishness), he may be rather more chagrined to find that that most conservative of Virginia editorial pages—the Richmond Times-Dispatch joined in on upbraiding Cuccinelli, writing:

[Cuccinelli’s] pursuit of Mann was wrong in just about every way that it is possible to be wrong. […] That it rested on dubious science was the least of its many shortcomings. […] [H]e is a lawyer, and he should know something about the law. […] Cuccinelli never accused Mann of failing to do the work for which he was paid, or of spending the research money he received from the state and federal governments on, say, fast cars and fancy suits. Albemarle Circuit Judge Paul Peatross was entirely right when he said the AG never clearly stated “the nature of the conduct” Mann supposedly engaged in that constituted fraud. “What the attorney general suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the commonwealth simply is not stated,” Peatross wrote. […] If this were a robbery case, then the AG has now effectively been told (a) he used the wrong statute to seek a search warrant, and (b) he can’t use a search warrant in the hopes of finding out whether anything has been stolen. This will not go down in history as an episode of great lawyering prowess.

Sadly, this is probably still a political win for Cuccinelli. His base will undoubtedly see this as him losing on mere technicalities—they’ll just remember that he took on Mann (and, wait and see, will come to remember him as having been victorious).

As the RTD points out, for all of Cuccinelli’s talk of original intent and strict scrutiny, his application of the Fraud Against Taxpayers Act shows that’s really nothing more than that: talk.

The Virginia Supreme Court has ruled against Cuccinelli in climate case, with prejudice.

Another round in court, another loss for Ken Cuccinelli. The attorney general issued, famously, a civil investigative demand to the University of Virginia, insisting that they turn over all records pertaining to and generated by climatologist Michael Mann. UVA refused to comply with the demand. Now the Supreme Court of Virginia has ruled against Cuccinelli, in a decision that should surprise nobody who has been paying attention. (The ruling “set aside the CIDs with prejudice,” quite a stronger decision than the circuit court issued last year.) In the 26-page decision, Justice LeRoy Millette Jr. concluded that the Fraud Against Taxpayers Act (FATA) is not intended to apply to state agencies, regardless of whether or not they are incorporated, as is UVA:

[A]s not all Commonwealth agencies are corporations, reading “corporations” to include UVA would produce the inexplicable and awkward result that state agencies operating as public corporations are subject to FATA while other arms of the Commonwealth are not. We find it unlikely that the General Assembly intended such a result. In light of 16 the multiple inconsistencies raised by such an interpretation, we conclude that the General Assembly did not intend Code § 8.01-216.2 to include agencies of the Commonwealth in its definition of “person.”


[In the context of § 8.01-216.2], “corporation” should be understood as a similarly oriented private sector entity, and not as encompassing an agency of the Commonwealth.

(Note that if Bob Marshall’s HB1 had passed, then fetuses would also be subject to investigation under FATA. If that sounds funny to you, pause just for a moment to consider whether Ken Cuccinelli would slap a CID on a fetus in order to prevent a woman from having an abortion.)

It was last year that Judge Paul Peatross considered the case, and explained that there were several obvious reasons why Cuccinelli is in the wrong, including that the all but one grants Cuccinelli is questioning are federal (thus outside of the scope of an investigation into the use of state funds) and that Cuccinelli has demonstrated absolutely no basis for an investigation. Justice Millette did not even consider these concerns, “because the statute does not give the Attorney General authority to issue CIDs to UVA, all other issues are rendered moot.”

Justice Elizabeth McClanahan dissented on the matter of prejudice; she agrees with the majority’s ruling, but for different reasons. She thinks that UVA should be obliged to comply with the CID, but agrees with Peatross’s earlier ruling that there’s no there there—the Cuccinelli has failed to state any violation of the law in the CID, and thus is not enforceable. Yes, even the judge who sides with Cuccinelli does not side with Cuccinelli.

Links for November 13th

  • Harvard Business Review: Put Your Best People On Your Most Boring Challenges
    I agree completely with this suggestion that the exciting work shouldn't be saved for enthusiastic, capable employees. The most interesting, important, effective work that I've done professionally was working on tasks or projects that were considered boring. This summer the FDA asked me to advise on how to improve the efficiency of the process by which they approve breakthrough medical technologies. I declined, and instead spent some time advising them on how to overhaul the process by which everything *else*—all the boring stuff—gets approved. Why? Because those were the changes would have the most impact—turning something slow and mediocre into something efficient and extraordinary. They were a little baffled by my interest, but wound up being excited by my proposed changes. I hope they implement some of them.
  • New York Times: Homework and Jacuzzis as Dorms Move to McMansions in California
    Suburbia is famously unable to be modified to suit changing use patterns. While an urban block can be refurbished cyclically (factory becomes loft apartments becomes attorneys' offices becomes factory), a McMansion can't be divided up into apartments and is rather unlikely to become an office. But college kids have figured out that they can split up the enormous houses among a half-dozen roommates, living well for $250/month. The neighbors, having believed they were buying into a homogeneous community of middle-class, middle-aged people, are apparently less than thrilled.
  • Daily Progress: UVa replaces weapons policy
    Ken Cuccinelli published a July opinion that held that university weapon bans couldn't be policies, but had to be regulations, and thus UVA couldn't ban guns. As best as I can tell, a "policy" is a rule created by the university, but a "regulation" is one that's created by the board of visitors and published in the Virginia Register. So UVA has turned their policy into a regulation, and will publish it in the Virginia Register. Problem solved.
  • Rotten Tomatoes: Jack and Jill
    Adam Sandler's new movie has a 2% rating on Rotten Tomatoes. It is summarized as such: "Although it features an inexplicably committed performance from Al Pacino, Jack and Jill is impossible to recommend on any level whatsoever."

Links for September 9th

  • Washington Post: Poll Finds Public Wary on Tax Cut
    The A1 headline in the Washington Post on the morning of September 11, 2001 was for this prescient story: "A majority of Americans say they are prepared to roll back President Bush's $1.35 trillion tax cut to help deal with the shrinking federal budget surplus and say Bush more than congressional Democrats bears responsibility for a problem that has suddenly put him on the defensive."
  • Commonwealth of VA vs. Kathleen Sebelius
    I recommend a quick reading of the Fourth Circuit Court's smackdown of Ken Cuccinelli. The decision starts on page 17, and it reads like a Constitutional Law 101 lesson, one that Cuccinelli needs badly. "The sole provision challenged here—the individual mandate—imposes no obligations on the sole plaintiff, Virginia." End of story.
  • Wall Street Journal: Many Afghans Shrug at ‘This Event Foreigners Call 9/11’
    In two Afghani provinces, 92% of 15–30-year-old men surveyed had never heard of September 11th. Keep in mind that few people have access to newspapers or television (TV was banned by the Taliban), that many Afghanis were young children when it happened, and that many of them probably find it preposterous that a building could be so tall that thousands of people could die in one.

Cuccinelli has found support for a UVA ban on firearms, but I’m not sure he’s got it right.

Attorney General Ken Cuccinelli issued an advisory opinion on firearms on campuses (PDF) a few days ago. Before I even read it, I knew I’d be torn about his conclusions, whatever they would prove to be. I own a few firearms (long guns, not handguns), and I paid close attention to Heller a few years ago, though I didn’t root for either side in that case—it was just clarity that I’d hoped for. Sen. Emmett Hanger (R-Mount Solon) had asked Cuccinelli for his opinion on whether UVA may prohibit firearms within university buildings, a topic on which there’s been a fair amount of debate over in the past few years, especially after the 2007 Virginia Tech massacre. Cuccinelli’s response was:

It is my opinion that, under the present state of the law, the University lawfully may promulgate a policy that prohibits persons from openly carrying a firearm in the buildings that are subject to the policy. It is further my opinion that with respect to persons who have a concealed carry permit, because the University adopted a policy rather than a regulation, it has not “otherwise prohibited by law” persons with a concealed carry permit from possessing a handgun, and, therefore, the policies may not be used to prohibit persons with such a permit from carrying a concealed firearm into the buildings covered by the policy.

In short, Cuccinelli finds that universities have the power to enact such prohibitions. (In Heller, Justice Antonin Scalia, writing for the majority, wrote that “nothing in our opinion should be taken to cast doubt on…laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” So the SCOTUS provides backup on this point.) But there is that bit of important hair-splitting, the matter of a “policy” vs. a “regulation.” What’s the difference? Well, § 18.2-308 (“Personal protection; carrying concealed weapons; when lawful to carry”) says:

The granting of a concealed handgun permit shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law or is prohibited by the owner of private property.

“Prohibited by law.” So what’s a “law”? We find that in Title 2.2, Chapter 40 of the state code (“Administrative Process Act”), which leads with a listing of definitions, including this definition of a regulation:

“Rule” or “regulation” means any statement of general application, having the force of law, affecting the rights or conduct of any person, adopted by an agency in accordance with the authority conferred on it by applicable basic laws.

UVA has both “policies” and “regulations.” They’re even listed separately: this is their list of policies, and this is their list of regulations. The ban on weapons is a “policy,” not a “regulation.”

Why is the ban a policy and not a regulation? I have no idea. I speculate that regulations require the Board of Visitors to approve them, and policies do not, but I’m really just making that up. Presumably the university could address this by simply making this prohibition a regulation and that would be that.

There is one bit of Cuccinelli’s decision that I’m not totally convinced of, though it doesn’t help that I’m not attorney. In support of his conclusion that a policy does not have the force of law, he cites the definition of regulation (as I have, above), but “absence of evidence is not evidence of absence,” as Carl Sagan once wrote. Cuccinelli’s only support of the idea that this is an actual matter of state law comes in the form of a citation of a case, in footnote 17, wherein he writes:

See also Woods v. Commonwealth, 26 Va. App. 450, 457, n. 3, 495 S.E.2d 505,509 n. 3 (1998) (“a statement of policy does not have the force of law ….”) (quoting Shenango Tshp. Bd. of Supvsrs. v. Pa. Pub. Util. Comm’n, 686 A.2d 910, 914 (Pa. Commw. Ct. 1996)).

So I did see also Woods v. Commonwealth, and I’m not impressed. A footnote on page 9 of that decision includes a series of examples of “other jurisdictions [that] recognize the power of administrative agencies to adopt interpretative rules or guidelines,” with quotes from decisions from Massachusetts, Maryland, Pennsylvania, Rhode Island, and West Virginia. These quotes are just examples within a footnote—the words in those quotes are not standing in for the court’s own, in the manner of my use of the quote from Sagan above. It smacks of desperation for Cuccinelli to lean on this as his sole affirmative evidence that there is precedent for the notion that a policy does not have the force of law. I’m not saying that a policy is law. I have no idea. But if this is the best he’s got, I’m not real confident that it’s good enough.

I am glad to have this opinion as the basis to begin a larger discussion about this, but I hope that smarter folks than me (and less partisan folks than Cuccinelli) will weigh in on the specifics of this in the weeks ahead.

Links for February 24th

  • MySQLTuner
    This is a clever little program that examines your MySQL databases and makes recommendations about how to improve your database's performance in light of the reality of your data. I'll be spending some quality time with this on a few of my websites.
  • Wikipedia: Enclaved countries
    There are only three countries that are completely surrounded by another country: San Marino, Vatican City, and Lesotho.
  • New York Times: Ken Cuccinelli v. Climate Skeptics
    Even ardent climate change skeptics—people who despise Michael Mann—are increasingly convinced that Cuccinelli's "investigation" is totally inappropriate and without credibility.

Cuccinelli: Obama says Perriello is his favorite Congressman. Really?

Said Ken Cuccinelli, in a campaign letter today:

No wonder President Obama has called Perriello his “favorite Congressman”!

Really? I mean, that would be really cool, but that’s the first I’ve heard of that. My suspicion is that Cuccinelli’s so deep in the echo chamber that he’s not aware that’s an invention of the far right, but I don’t know that. It’s possible that, out of 435 members of congress, the president has chosen to single out a freshman from Virginia as his favorite. But I think probably not.

Can anybody find any support for this claim?

Learn about Cuccinelli v. UVA at this Tuesday night event.

I’m putting on an event for Left of Center on Tuesday night that I want to make sure to invite y’all to, “The ACLU on Attorney General Cuccinelli, UVA, and ‘Climategate’.” Kent Willis, the longtime executive director of the Virginia ACLU (and a guy who has saved my bacon three times, including last year), will be our speaker. He’s going to explain what the nut of this dispute is, what Cuccinelli’s argument is, what UVA’s argument is, what case law has to say about this, and what the outcome is likely to be. Obviously, this is an important case for academic freedom, for university independence, for state power, and for the future of publicly funded research in Virginia. I’ve followed this pretty closely, but there’s still a lot that I don’t understand about it, and I’m really looking forward to getting an explanation about what’s going on here.

Here’s the promotional blurb:

Attorney General Ken Cuccinelli has demanded that UVA turn over years of private correspondence between climate researchers. The University is fighting back, arguing that Cuccinelli doesn’t have the right to do that, and that the subpoena amounts to a partisan witch hunt. The outcome of this battle between Cuccinelli and UVA will establish what academic freedom really amounts to in Virginia—and how safe any employee of the University is from this sort of partisan investigation.

Virginia ACLU Executive Director, Kent Willis, will explain what’s really going on here—the process that the Attorney General is using, what UVA’s position is in fighting back, and what the outcome is likely to be.

Free appetizers and socializing (with a cash bar) from 7 to 7:30 p.m. precedes the discussion and question and answer session. Please come join us!

RSVP on Facebook, if you’re into that, or just show up at Rapture, have a drink or two, meet some new people, and learn what the deal is with this whole Cuccinelli subpoena business.

The state seal used to have more nudity.

Cuccinelli’s office says that they’ve simply reverted to an older version of the state seal. And that may be true, but that’s not the whole story. Benton J. Lossing’s An Outline History of the United States, published in 1875, shows the seal of Virginia on page 77. As of 1875, it looked like this:

And this is how it looked in 1780, in a medal that Governor Thomas Jefferson had struck:

Our state seal was designed by Richard Henry Lee, George Mason, Edmund Pendleton, and George Wythe between July 1 and July 5, 1776. Sadly, it is not good enough for Ken Cuccinelli these 234 years later.

As you can see, the most faithful rendering of an older version of the state seal would involve showing both of Virtus’ breasts, not neither of them.