Is Arizona really opposed to the Paramount-Warner merger?

This shouldn't be a unilateral decision by the state attorney general.

According to news reports, “Arizona” has joined 11 other “states” to challenge the Paramount-Warner merger in federal court.

There is nothing technically wrong with this description and formulation, and I wouldn’t suggest that it should be reported differently.

Nevertheless, the formulation bugs me.

There has been no deliberative process undertaken in Arizona to reach the decision that the merger presents such discrete and disproportionate harms within our boundaries to justify the time and expense of going to federal court to thwart a merger of international reach and consequences.

In reality, the state of Arizona isn’t suing to prevent the merger. Our attorney general, Democrat Kris Mayes, is the one suing. And her client, while technically the “state”, is really just herself. She, and no other body or elected official – such as the Legislature or the governor – was involved in the decision. In fact, it’s reasonable to assume that the Legislature, controlled by Republicans, would be opposed.

It was a decision Mayes, as attorney general, made unilaterally. The same is true in the other states. In reality, this is not a lawsuit brought by 12 states. It is a lawsuit brought by 12 Democratic attorneys general.

Way too much public policy is made in this country through lawsuits, rather than through elections and legislative deliberations. When a Republican is president, Democratic state AGs flood the courts with challenges that have nothing to do with addressing consequences peculiar to their states. When a Democrat is president, Republican state AGs do the same thing.

Arizona AGs have been big players in this game. Whenever Joe Biden sneezed, Mayes’s predecessor, Republican Mark Brnovich, sued. Mayes has serially sued the Trump administration.

I’ve long thought that the U.S. Supreme Court should tighten standing requirements for a solitary state official, the AG, to challenge federal action. At present, if a state AG can show some monetary consequence to state government, even if exceedingly modest, the justices have waived him or her into court.

With respect to the Paramount-Warner merger, I think the concern that the Trump administration waived it through in part because of the political influence of the Ellisons, who control Paramount, has some merit. But giving state AGs, in actuality only representing themselves and not their states, the ability to gum up the works of mergers of national and international reach and consequences, makes no sense in terms of national economic policy. If there are really adverse antitrust concerns, aggrieved private parties will rise to legally challenge them.

Arizona attorneys general, of both parties, have long asserted that they have some inherent authority because they are elected. That isn’t Arizona’s constitutional scheme. The state constitution establishes the position of attorney general, but says that the duties “shall be as prescribed by law”. In other words, by the decision of the Legislature and the governor.

Unfortunately, state statute gives the AG unilateral authority to take action on behalf of the state in federal court. I’ve also long argued that there should be a broader consensus established, through some sort of involvement by the Legislature and the governor, before asserting a position in federal court on behalf of the “state”.

Support for this should be bipartisan. The Arizona AG shouldn’t be a partisan warrior making unilateral decisions to attempt to influence national policy in which Arizona doesn’t have a disproportionate stake, as occurred under Brnovich and is occurring under Mayes. And will occur, without reform, under Mayes’s Republican challengers, Rodney Glassman or Warren Petersen, if they win in November and a Democrat is elected president in 2028.

Arizona should opt out of the state AG partisan duels regarding national policy. Go to federal court only when there is a broad consensus that state government or its constituents have a large and disproportionate interest in asserting a particular legal position.

In other words, when the AG is truly representing the “state” and not just him or herself.

That’s just the beginning of the reforms I would make to the office. Years ago, former state Senate President Leo Corbet proposed that the office be bifurcated: a department of law to function as in-house counsel and a prosecutor’s office to enforce the law. It made sense to me at the time, and still does. There is an inherent tension in having a single office offer legal advice to state agencies and also be in a position to prosecute them. There have been numerous conflicts over the years because of this inherent tension.

As I recall, Corbet called for the head of the department of law to be appointed and the prosecutor to continue to be elected. I think both should be appointed positions.

Positions should be elected when political judgment is relevant to the functions of the office. There should be no role for political judgment in either giving legal advice to state agencies or taking legal action to enforce the laws.

Now, the AG position wouldn’t be first in my line to be appointed rather than elected. That would be the state treasurer.

The treasurer manages roughly $35 billion in investments and $65 billion in annual cash flow. Why in the world would we give that job to a politician or a would-be politician?

Reach Robb at robtrobb@gmail.com.