RALEIGH, N.C.-- When North Carolina Attorney General Roy Cooper (D) announced in February that the state would receive $21.5 million in a settlement with Standard & Poor’s, he could only make recommendations for how he thought Gov. Pat McCrory (R) and the GOP-controlled General Assembly should dish out the gains.
The legislature had passed a law stripping Cooper of the authority to distribute the settlement money. Still, Cooper's recommendation -- that the money go toward saving an expiring teacher-recruitment program and increasing the salaries of scientists at the state’s crime lab -- was an indication of what types of issues he'll prioritize in his all-but-inevitable bid for governor in 2016.
Cooper has not yet announced his candidacy, but he is considered the likely Democratic nominee to challenge McCrory, who was elected in 2012. The contest is already close -- a poll last month had McCrory up by just two points -- and is expected to be hard-fought, as races in North Carolina tend to be.
But the race is likely to be unique in that, so far, it is the sole contest in which an attorney general is expected to challenge an incumbent governor. And in North Carolina, which has had Democratic governors for the vast majority of the last century, a Cooper victory would return the state to divided government. (After McCrory was elected in 2012, Republicans had complete control of the executive and legislative branches for the first time in more than 100 years.)
On the campaign trail, the state's top lawyer will have to explain why he defended legislation he personally opposed, but also why he occasionally broke from the legislature and the governor -- who are, after all, his clients. Cooper has opposed the administration on issues such as marriage equality and voting rights, which has led to an acrimonious relationship with both the statehouse and the governor's mansion. (Between 2000, when he was first elected, and 2010, when the Republican wave swept the state, Cooper worked alongside a more amenable legislature and two Democratic governors.)
Cooper's highest-profile break from the legislature came in July 2014. After a 4th U.S. Circuit Court of Appeals ruling struck down Virginia's same-sex marriage ban, Cooper said he would no longer defend North Carolina's.
"Our attorneys have vigorously defended North Carolina marriage law, which is their job," Cooper said at the time, explaining his decision. "But today we know our law almost surely will be overturned as well. Simply put, it is time to stop making arguments we will lose and instead move forward, knowing that the ultimate resolution will likely come from the U.S. Supreme Court."
Similarly, in 2013, Cooper caused a stir by urging McCrory not to sign a a sweeping and controversial package of voting restrictions passed by the legislature.
But at the same time, Cooper is the state's lawyer, so he's obligated to defend laws that he believes are defensible, even if he personally opposes them. So, for instance, though Cooper is considered a supporter of reproductive rights, he asked the U.S. Supreme Court last month to review a federal appeals court ruling that struck down a North Carolina law requiring abortion patients to view a narrated ultrasound image prior to the procedure.
The appeals court ruled that the ultrasound law violates the First Amendment rights of physicians by compelling delivery of ideological information "irrespective of the needs or wants of the patient," and transforms "the physician into the mouthpiece of the state." But in petitioning the Supreme Court to take up the case, Cooper said the ultrasound law was consistent with the First Amendment as a regulation of medical practice.
Just a few months earlier, though, Cooper spoke to a gathering of abortion rights supporters, criticizing state leaders "who want the voice of politicians in the medical examining room telling the doctor what to say."
Mac McCorkle, an associate professor of the practice at Duke's Sanford School of Public Policy who has consulted for Democratic candidates, said his sense is that people think Cooper has "been walking the line pretty well."
"This is always been a tough thing, it's a gray area for attorneys general when they are elected. There's an argument that they really are independent and they've been independently hired and elected by the people, so they have some measure of discretion in what they decide to defend in terms of state action," McCorkle said.
But not everyone agrees. "His job as attorney general is to be the attorney for the state of North Carolina and you can't be the attorney of the state of North Carolina by attacking our governor and our legislature," NC GOP Executive Director Todd Poole said of Cooper on Wednesday.
The legislature and McCrory have moved to de-fang Cooper's authority. Last year, McCrory approved a bill to move the State Bureau of Investigation, which had previously been under Cooper's Department of Justice, to the Department of Public Safety, an agency led by a McCrory appointee. The governor said the shift was aimed at "taking the politics out" of the investigative unit, and preventing "interference with any type of an investigation from a political official." But Democrats, along with the NC Sheriffs’ Association, said the unit should be separate from the administration it investigates.
In another rebuff to Cooper, the General Assembly passed a law in 2013 reasserting its own leaders' power to hire their own counsel, stating that the leadership "shall jointly have standing to intervene" on behalf of the legislature. In a case challenging the legislature's redistricting maps, for instance, the legislature hired its own attorneys to defend the district boundaries alongside Cooper, who has indicated his support for an independent redistricting commission to de-politicize the process.
Along the same lines, the law removing Cooper's power to distribute the money from the Standard & Poor's settlement suggested that the legislature wanted to keep the attorney general from pushing his policy priorities.
The assembly's sharp rightward turn since 2010 -- as illustrated by its efforts to cut taxes, restrict voting and reproductive rights, prevent expansion of Medicaid, eliminate the Earned Income Tax Credit and redirect funds to charter and private schools -- gives Cooper a significant amount of ammunition for his likely campaign. He will be able to point to evidence that North Carolinians want a partisan reset: In September, the North Carolina-based Public Policy Polling found that the legislature's approval rating was just 18 percent.
"The legislature is trying to impose a radical national conservative agenda on a state that’s not ready for it, and didn’t ask for it," Morgan Jackson, a spokesman for Cooper, told The Huffington Post. "That’s not the North Carolina way, so the question in 2016 is: Are we going to continue allow that happening or are we going to fight back?"
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