America was introduced to our Attorney General Leslie Rutledge this summer and fall as she appeared on TV as a surrogate for Republican presidential nominee Donald Trump. A nation cringed (with the exception of true Trump believers) as she insisted nobody cared about the self-described billionaire’s tax returns, scoffing at polls that show, by a large majority, people do want to see Trump’s business interests and what he pays (nothing, by his own admission) in federal taxes. Her conversations with people, she said, were more accurate than the myriad polls on the subject.
But Arkansans already knew Rutledge, 39, who won the state’s second-highest office in 2014, as a politician rather than a legal mind. Indeed, when Rutledge campaigned for office, she promised to “wake up every morning” thinking how she would sue the federal government that day.
She’s made good on that vow, focusing the office’s legal energies on ideological battles against the Obama administration, standing with Republican attorneys general across the nation. Her actions, as lead attorney in some suits and as a friend of the court in others, are anti-woman (defending bad anti-abortion legislation and funding for Planned Parenthood), anti-LGBT (decrying transgender rights squashed by so-called “bathroom bills”), anti-immigrant (joining the Texas case to halt President Obama’s executive orders on deferred deportation), anti-labor (fighting overtime and union rules) and anti-environment, where she’s party to several suits fighting rules over clean air and water. She has not been able to reverse the Affordable Care Act (which, as a Republican, she was duty-bound to promise she’d do).
Rutledge described herself at the Republican National Convention as a “Christian, pro-life, gun-carryin’ conservative woman.” The Batesville native is also the first female attorney general of Arkansas and the first Republican attorney general since Reconstruction. She was elected as part of the Republican wave that washed away Democrats after the election of the first black president and turned Arkansas deeply red.
Rutledge entered her 2014 race with lots of baggage — a job history that included being put on a “do not rehire” list at the state Department of Human Services because of “gross misconduct” and a trail of startling emails, including one she forwarded that was written in a denigrating black dialect that she defended as “country talk” (as in: “baby’s momma done turn into a ho and a stripper an she be raisin’ fusses and kickin’ and bitin’ and whoopin dis man … .”). She’d been living in D.C. — in fact, was still registered to vote there when she was running for office in Arkansas.
There was backlash to her portrayal of her Republican primary opponent, David Sterling, as a lawyer for pornographers and supported by the “porn industry” (he’d represented Cupid’s Lingerie in a noncompete case against a former employee some years earlier).
But she has become the darling of the Republican Attorneys General Association, and has joined up with her fellow GOP generals in dozens of lawsuits targeting federal government rulemaking.
In addition to suing Uncle Sam, Rutledge has spent much of this year campaigning for Trump, unfazed — like many party loyals — by his contempt for Hispanics and Muslims and his vulgar boast he could grab any woman’s “pussy” by virtue of being famous. Besides defending Trump’s refusal to release his tax returns — she told a dumfounded CBS newsman Bob Schieffer that she knew no one cared because “real Americans” had told her so — she’s been dutifully reciting the Tea Party rulebook, making the bewildering claim that Hillary Clinton is a poor “role model” for women because she said ugly things about women her husband has been linked to. Rutledge has responded to TV interviewers’ questions about the thrice-married Trump and Rudy Giuliani’s televised announcement he’d be marrying his mistress by flashing the Rutledge smile, all tight lips and teeth and no eyes. Having trashed Hillary, she then pivots to say the election is really about jobs, etc.
Rutledge likely made her own legal staff cringe when, at her Republican convention speech, she trashed a Supreme Court justice, saying Clinton should go home and “take Ruth Bader Ginsburg with her!” (Rutledge has reportedly told people that, should Trump win the election, she has a good shot at a Supreme Court appointment.)
On MSNBC, she called Alicia Machado a “disgruntled former Miss Universe,” shrugging off Trump’s misogynistic belittling of Machado as fat and an “eating-machine.” Again she insisted, “Americans do not care about this.” Reminded (again) that polls spoke differently, Rutledge countered that polls showed most women resent Hillary Clinton for disparaging Monica Lewinsky, though she could not say who took the polls. And when Trump tweeted about a mysterious “sex tape” made by Machado, Rutledge went completely haywire in his defense, saying Trump’s action was in no way as awful as Bill Clinton’s and besides, Hillary Clinton was a “disgusting” person who had never created jobs and had lived off the government teat all her life.
In her out-of-state travel for Trump, Rutledge has had an entourage of security officers, Judd Deere, the attorney general’s spokesman, confirmed. He said the detail “travels out of state with General Rutledge when there are credible threats of violence,” and when federal law enforcement recommends it. The detail accompanied her to the Republican convention and the Democratic National Convention. Deere also traveled with her.
Now, having gotten poor reviews for her national TV performances and Trump looking like a loser, Rutledge is looking to get re-elected in Arkansas. She announced Oct. 17 her intention in an interview with the Associated Press that she would be seeking a second term two years from now. This writer would have liked to add Rutledge’s voice to this article, but she declined the Arkansas Times’ requests for an interview.
Rutledge chose not to introduce a legislative package in 2015, and said last week she has no plans to do so in 2017, either.
The attorney general appears disinterested in an important Arkansas consumer issue: payday lending. Fighting payday lenders was a top priority with predecessor Attorney General Dustin McDaniel, who sued in-state and online lenders citing the state Constitution’s cap on lending and who was able to send most of them packing. Rutledge, on the other hand, has taken no action against CashMax, a North Little Rock lender, despite the North Little Rock city attorney’s position that it’s violating state law. The office, a spokesman said, is investigating.
It may be significant that in May, Rutledge protested the Consumer Financial Protection Bureau’s proposal for greater limits on payday loans, saying “sweeping federal standards” would harm small dollar lending and stifle the free market.
Payday lending may not get Rutledge’s ire, but when cities pass laws prohibiting discrimination against LGBT citizens, she acts to try and stop them. She’s fighting a ruling in a Fayetteville circuit court upholding that city’s nondiscrimination ordinance, saying it violates Act 137 of 2015. The legislature intended Act 137 to prevent nondiscrimination ordinances at the local and county level, but a Fayetteville circuit judge has ruled that the state Constitution allows such protections and let Fayetteville’s ordinance stand.
The attorney general has been more active taking on legislation in other states: She has involved the Arkansas office in standing up for Texas’ laws to end abortion rights, a fight in Washington state by a florist who refuses to do business with same-sex couples, backed North Carolina’s legislation to require transgendered people to use bathrooms in accordance with their gender assignments at birth, and supported a North Carolina county commission’s right to open its meetings exclusively with Christian prayer.
Joining in amici cases is a cheap way to express political philosophy, unlike actually going to court. For that work, Rutledge hired the state’s first solicitor general, Lee Rudofsky.
What follows is a rundown of what Rutledge has done for Arkansas. States’ rights supporters who chafe at national policies on environment, civil rights and abortion will applaud.
Since 2015, Rutledge has signed on as a friend of the court in numerous anti-environmental, industry-friendly actions. This is unsurprising not just because she vowed to try and sue the federal government every day, but because of where her campaign dollars came from, including polluter representatives the American Coalition for Clean Coal Electricity and Koch Industries.
By May of this year, Rutledge made Arkansas an original plaintiff or filed friend of the court briefs in 26 cases fighting federal rulings. Among the environmental actions the state seeks to stop are the Environmental Protection Agency’s Clean Power Plan and rules on ozone; power plant startup, shutdown and malfunction emissions; the Waters of the United States and Mercury Air Toxic Standards rules; and regional haze.
One of Rutledge’s first acts in office was to file to intervene in a Virginia case against the Clean Power Plan, which requires states to reduce greenhouse gas emissions from power plants by 30 percent by 2030. Rutledge (like AG McDaniel before her, it should be noted) said the EPA’s clean air rulemaking will “skyrocket electric rates for Arkansans.”
That’s the same argument she makes for Arkansas’s opposition to the regional haze rule, which regulates haze from pollutants in wilderness areas and national parks. She doesn’t think Arkansas has any haze; in testimony before the U.S. House of Representatives on the rule, Rutledge said, “Anyone who has ever visited Arkansas would be hard-pressed to believe that our beautiful mountains have a smog problem.”
Yet utilities in Arkansas, anticipating the rules and seeking to avoid the cost of retrofits, have already cut back on the use of coal and are investing in clean alternatives. Entergy, for example, is working out a plan to close its White Bluff coal-fired plant to comply with the regional haze rule and has reduced production there as well as at its Independence coal-fired plant. The reduction, state Sierra Club chapter director Glen Hooks said in an interview, is “dramatic”: Entergy ran the White Bluff plant at 43 percent capacity, and the Independence plant at 30 percent last year.
“It’s getting harder to make an economic argument” in fighting clean air and water laws, Hooks said. Yes, coal is the cheapest fuel. But it comes with secondary costs: dollars spent on water cleanup from coal ash spills, on health care for industry workers and health threats to a wider group of people from breathing bad air. Harvard researchers put the hidden cost of coal at a third of a trillion to half a trillion dollars every year. “If you are only focusing on electric rates, you are not seeing the true cost of damage done by the fossil fuel industry,” he said.
Because Arkansas did not come up with its own regional haze plan, the EPA was to write it for the state. When the EPA did not meet a deadline to do so, the Sierra Club sued. Rutledge sought to disqualify the Sierra Club as plaintiff; she lost. As a result of the Sierra Club lawsuit, the EPA wrote the regional haze plan for Arkansas.
When Rutledge announced she would join 16 states in challenging the power plant startup, shutdown or malfunction emission rules, she said, “Once again, the EPA is choosing to put the political interests of the Sierra Club ahead of Arkansans.” That she views the Sierra Club’s mission as political rather than honest says more about Rutledge than it does about the Sierra Club: It puts her in the company of those who believe that global warming is not a fact but a political position. Is the EPA, she mused in testimony about the Clean Air Plan before Congress in 2015, “about working cooperatively with the states and stakeholders to preserve clean air or is this rule established to force states into complying with a national energy policy to fit the needs of the current administration?”
Arkansas could have submitted its own Clean Air Plan by the EPA’s deadline, as well as a regional haze plan. It did not.
Rutledge also called “devastating” the EPA’s proposed Waters of the United States rule to clarify what bodies of water fall under the Clean Water Act, saying it would cripple Delta farmers. Though an EPA administrator sought to assure Rutledge that the new rule would not burden farmers, and a Democratic congresswoman said the new plan left exemptions for farmers in place, the attorney general was skeptical.
What is the short-term effect of Arkansas’s battles against these plans, which take years to implement?
“It you’re talking to people, ‘Hey, I’m from Arkansas,’ ” Hooks said, “a lot of times people will [mention] the Buffalo, the Ozarks or hunting. It’s a destination for people who are outdoorsy. If we have an activist fighting against efforts to improve water, forests, air, it doesn’t add to our reputation.”
Abortion and women
In the past few years, the state has spent time and money in federal court trying to defend its unconstitutional laws to restrict a woman’s right to abortion.
Rutledge, not satisfied to fight Arkansas’s failed attempts to ban abortion at 12 weeks and prevent women on Medicaid from getting birth control or cancer screens from Planned Parenthood, also intervened in the legal challenge to Texas’ draconian law that would have shut down its abortion clinics by requiring them to, basically, be outfitted like hospitals. In explaining her decision to intervene, Rutledge said she was only thinking of the women, wanting to protect them from the stigma that would arise if they sought medical help at an emergency room.
Having an abortion is a shameful act? Again, that statement seemed to say more about how the attorney general feels about women who seek to end an unwanted pregnancy than the women themselves.
The U.S. Supreme Court found the Texas law unconstitutional in a 5-3 ruling.
In a fruitless gesture, Rutledge fought federal district and appeals court rejections of state Sen. Jason Rapert’s “Human Heartbeat Protection Act,” which would have made abortion after 12 weeks gestation illegal — the most restrictive in the nation and unrelated to fetal viability — all the way to the U.S. Supreme Court. The Supreme Court, which for 24 years has set fetal viability at 23 or 24 weeks, refused to hear Rutledge’s appeal. The former attorney general had informed the legislature he questioned its constitutionality, but as the state’s lawyer defended it in court.
Separation of church and state
The attorney general joined 13 states in a friend of the court brief in Washington state’s supreme court in defense of a florist who refused to do wedding business with a same-sex couple, claiming it offended her religious beliefs.
It was the same argument people once made in denying service to black Americans.
Rutledge believes that there is a “sustained and coordinated assault” on the exercise of religion in America. She and 13 other Republican attorneys general filed an amicus brief in court in North Carolina defending a county commission that routinely opened its meetings with Christian prayer, declaring “there is only one way to salvation, and that is Jesus Christ.” (A three-judge federal appeals court panel overruled an injunction against the prayer last month; the ACLU has asked for the case to be heard by the full court.)
Besides Rutledge’s decision to involve Arkansas in the Washington state case and appeal the Fayetteville court’s decision on that city’s nondiscrimination laws, other actions suggest a certain animus against gay rights. Three months into her tenure, she joined three other Republican attorneys general to sue the U.S. Department of Labor over its rule defining “spouse” under the Family and Medical Leave Act to include same-sex marriage partners. She’s also entered into the bathroom fray, joining nine other Republican attorneys general to sue the U.S. Department of Education, the Department of Justice and other agencies and officials over allowing transgender people to use bathrooms they believe match their gender. She said the Obama administration was bullying children by forcing “local schools to adopt a radical social policy that raises serious safety concerns for school-age children.” Who’s the bully? The courts that have ruled that students may use a bathroom they feel is correct according to their gender, or an attorney general who would make their gender decisions for them? Rutledge also joined a suit lead by Texas that sought to stay an injunction against North Carolina’s “bathroom bill.”
Former AG McDaniel, on the other hand, backed same-sex couples’ right to wed, though he had to defend the state’s 2004 ban.
Attorney General McDaniel, at the request of AG-elect Rutledge, in 2014 made Arkansas party to a challenge of President Obama’s executive action to temporarily halt deportation and provide work permits for undocumented immigrants, expanding on two existing programs, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action or Childhood Arrivals (DACA). Because the Supreme Court split 4 to 4 (Justice Elena Kagan recused), an appeals court ruling that the order exceeded the president’s statutory authority stands. The case could still go to the Supreme Court, however.
An analysis by the Center for American Progress of the impact of dismantling DAPA and DACA said it would be disastrous economically for families and for state and local tax revenues. As was pointed out by Clinton in the last presidential debate, there are undocumented immigrants paying more in federal taxes than Donald Trump.
Other Rutledge (and Republican) fights: The Obama administration’s overtime pay rule that, starting Dec. 1, makes persons earning up to $47,476 a year eligible for time-and-a-half pay after 40 hours. She intervened in a Texas case to enjoin the U.S. Department of Labor’s “Persuader Advice Exemption” to make transparent consultant-management communications. She has also filed a brief objecting to the Washington, D.C., City Council’s ordinance disallowing open carry. That would align with her reversal of an opinion by predecessor McDaniel on the state’s open-carry law, saying the law made open carry legal — as long as the person carrying the gun does not intend to use it to shoot someone.
Republican attorneys general, who have bonded during the Obama administration to wage multistate fights, have been successful in slowing the implementation of regulations on carbon pollution, clean water and immigration. Arkansans can expect Rutledge to continue to fight progressive rulemaking and federal legislation.
Backed in her first campaign by coal interests and Koch Industries, Rutledge has already accepted contributions for the 2018 race from the Entergy PAC, a former Murphy Oil CEO, a Murphy heir, the poultry industry, the Stephens Energy PAC and members of the wealthy Stephens family. She’s also received money from a conservative political action committee created by her father, Keith Rutledge.
In fact, in announcing her decision to run for re-election, Rutledge assured us it would be more of the same. She told the Associated Press that she’ll continue to sue the federal government “as long as we have agencies going beyond the scope of the authority given to them.”