Seal of Virginia

In the open race to serve as the Attorney General of the Commonwealth of Virginia, state Senator Mark Herring (D-VA 33rd) faces-off against state Senator Mark Obenshain (R-VA 26th). Incumbent Attorney General Ken Cuccinelli (R-VA) has chosen not to seek reelection and is running as the Republican candidate for Governor of Virginia.

The attorney general has constitutional authority for providing legal advice to the state government, including the governor and the General Assembly, for defending the state in lawsuits, and for defending the constitutionality of state laws. The attorney general is also second in the line of gubernatorial succession, following the lieutenant governor. Traditionally, the attorney general’s office is used as a political stepping-stone for higher office and, as such, elections for the office are overly politicized. In considering the Off on a Tangent endorsement, I only consider issues that are particularly germane to the role of the attorney general—public safety, civil liberty, and legal competence.

Virginia attorney generals must be at least thirty years old, citizens of the United States, and hold the qualifications to be a ‘judge of court record.’ They are elected to four-years terms and there are no term limits.

The Democrat: Mark Herring

State Senator Mark Herring (D-VA 33rd) represents the suburban 33rd District, which encompasses parts of Fairfax and Loudoun counties. Before being elected to that seat in a 2006 special election, he served on the Loudoun County Board of Supervisors representing the Leesburg District. He has also worked as a private-sector attorney, having established a law practice in Leesburg, Virginia. I lived in the 33rd District during the 2007 elections, and chose to endorse Herring’s opponent, Patricia Phillips (R). Herring went on to win that election with fifty-seven percent of the vote.

Before diving into the specific issues, I must point out that Herring’s campaign has been unusually negative and deceptive, with more effort directed toward slandering his opponent than toward making a positive case for his own candidacy. Although this style of campaigning has become depressingly common all across the United States, Herring’s is by-far the most negative and dishonest campaign in memory for this particular office, which bodes ill for the future tenor of Virginia statewide politics.

Herring also falls into the old pattern of running a general-interest campaign for an office that is, by nature, narrowly-focused. I don’t particularly care what Herring’s policy proposals are with regard to veterans’ services, for example, nor do I care what legislation he likes and dislikes with regard to the definition of marriage, abortion policy, gun control, and so-on. Attorney generals do not legislate; they are responsible for the enforcement (and defense) of existing legislation as-written. Herring’s thoughts on what laws Virginia ought to change or enact are only relevant insofar as they tell us something about Herring’s views on key law enforcement and civil rights issues.

On the topics relevant to the office, Herring makes a reasonably strong case for himself. He says that he will work hard to crack down on Internet predators, attempt to establish an independent state ethics commission (in response to apparent ethics violations by incumbent Governor Mark McDonnell [R-VA]), expand access to government records, work to eradicate human trafficking, improve school safety, prosecute cyber-criminals, protect seniors from scam artists, combat sexual and domestic abuse, and more. In these areas, Herring’s campaign is largely inoffensive.

But there are signs of trouble if you read between the lines. Herring’s proposals for improving ethics in the state government include calls for an unconstitutional dollar-limit on political gifts, for example. His proposals for school and public safety include calls for unconstitutional limits on private firearm ownership and reinstating the useless ‘one handgun per month’ law, which we know would have no discernible impact on gun violence . . . because we had it for many years and it didn’t do anything but annoy law-abiding citizens. Herring also calls for violating the Constitution of Virginia by allowing marriage-like arrangements for same-sex couples. Whether or not you support changing our constitution to allow this, it should trouble all Virginians that a candidate for the highest law-enforcement office in the state would publicly declare his intent to ignore a law because he doesn’t like it . . . especially one enshrined by voter referendum into the state constitution. For the record, I disagreed with that amendment too . . . but it passed fair and square.

Herring also deceptively claims to be a staunch defender of civil rights, and yet he is also a staunch, public denier of the fundamental right to life—the most essential civil right of them all. It is unfortunate that Herring, who is seeking a high law-enforcement office, is apparently unaware of the very existence of the rights that he would be charged with defending.

The Republican: Mark Obenshain

State Senator Mark Obenshain (R-VA 26th) represents the largely-rural 26th District, which is centered around Interstate 81 in the Shenandoah Valley, roughly from Harrisonburg to Strasburg and Front Royal. Before being elected to that seat in 2003, Obenshain had worked as a private-sector lawyer for twenty-five years.

Unusually for an attorney general candidate, Obenshain’s campaign has focused primarily on issues relevant to the office—law enforcement and civil rights. This is a pleasant change of pace. He has only deviated from this focus when he has been forced to address deceptive claims made by his opponent in negative campaign ads. Obenshain does also point to his experience and says that the attorney general’s office doesn’t allow for ‘on-the-job training,’ which is curious since he and his opponent both have very similar resumes. Obenshain has a few more years in the Virginia Senate than Herring, and has had a longer legal career, but Herring also served on the Loudoun County Board of Supervisors and has followed a similar political trajectory into this race.

On the relevant issues, Obenshain points to his legislative record of keeping Virginians safe by cracking down on meth dealers, establishing new ‘mandatory minimum’ sentencing guidelines, toughening laws regarding the violation of protection orders, improving laws against the solicitation of minors, and making some cyber-crimes into felonies. Obenshain also wants to continue cracking down on Internet predators, prevent elder abuse and neglect, fight human trafficking, improve transparency in government, and institute ethics reforms. In these areas, he sounds quite similar to Herring.

Where they differ, however, is that Obenshain does not propose any unconstitutional laws or regulations—except for an unfortunate call for a dollar-limit on political gifts, identical to Herring’s. Despite this misstep, Obenshain seems much more willing than Herring to work within the confines of the laws as-written rather than as-wanted.

Obenshain is also very clear about his defense of civil rights and liberty, which includes, most fundamentally, the right of all Virginians to live. He expresses strong support for the state’s reserved powers and a willingness to fight against the federal government’s overreach, following in the footsteps of incumbent Attorney General Ken Cuccinelli (R-VA). In today’s political climate, it is essential that our chief law enforcement officer be willing to defend Virginia’s rights, and the rights of all her citizens, in accordance with the U.S. and Virginia constitutions.

Conclusion

Both Herring and Obenshain make strong cases, and could be expected to plot similar paths on law enforcement issues. But Herring demonstrates a troubling disregard for civil rights and for the constitutional limits on government authority, up to and including simply ignoring those laws that he does not like. Obenshain, on the other hand, clearly respects and is willing to defend our rights against any encroachment at the state or federal levels, and is apparently willing to enforce our laws as-written as long as they do not run afoul of those constitutional limits.

It is essential that the government of the Commonwealth of Virginia operates within its established legal and political structure, and that the state works diligently to defend and protect all citizens’ liberties. Herring cannot be trusted on either count. I endorse the election of state Senator Mark Obenshain as Attorney General of the Commonwealth of Virginia.