Arizona lawmakers should kill the legislative subpoena

Robert Robb

Submitted photo/Robert Robb

Rarely is a legislative subpoena necessary to acquire sufficient information to legislate or provide apposite oversight. These days, it is instead principally used to grandstand or make a political point.”

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OPINION — According to Arizona law, a subpoena can be issued by the president of the Senate, the speaker of the House and the chairman of any committee. The Legislature has over 30 committees.

So, there are over 30 Republican legislators who, on their own and sole initiative, can compel the appearance of a witness or the production of documents. That’s well over half of all Republicans elected to serve in the Legislature.

There is no internal check on the exercise of this power. We are witnessing the blatant abuse of it, so blatant that it reinforces my belief that the legislative subpoena should be abolished, at both the state and federal level.

State Sen. Jake Hoffman is chairman of the Senate Government Committee. He is also a political consultant whose firm has received over $1 million to support the election of the Republican nominee for governor, Andy Biggs, and the defeat of the Democratic incumbent, Katie Hobbs.

Hoffman recently announced an investigation, and the issuance of legislative subpoenas, into the decision by the Hobbs administration to increase the reimbursement rate for a provider of state foster-care beds. He did so standing behind a lectern bearing a sign that read: “Katie Hobbs’ corruption hurts Arizonans,” an echo of what appears to be Biggs’s main argument in the gubernatorial campaign.

Hoffman professed great indignation that the impartiality and integrity of his investigation would be doubted just because he was personally and professionally involved in the effort to defeat Hobbs and that his announcement featured a sign already expressing a conclusion and an echo of Biggs’s main campaign message.

It’s hard to fathom how a chap could be so clueless.

The optics of Hoffman leading such an investigation was apparently too much, even in MAGA-land. The inquiry has been handed off to a different committee chairman. In an attempt to further sanitize it, former state Supreme Court Justice Andrew Gould has been appointed special counsel for the investigation.

The taint of the provenance, however, cannot be expunged. The new chairman, Appropriations head David Farnsworth, stood behind the same lectern with the sign already expressing a conclusion, at Hoffman’s initial press conference. According to a Senate spokesperson, it is Hoffman who chose Gould as special counsel. And Gould is not just a former justice. He was an attorney general candidate in 2022, and so a would-be political rival to Kris Mayes, whose investigation of the reimbursement rate decision is also supposedly to be under scrutiny.

Now, I think there is a legitimate related issue regarding Hobbs’s conduct here, although not the one Biggs and Hoffman are attempting to breathe some life into. In fact, it’s pretty cheeky of Trump supporting Republicans to attempt to run on the corruption issue. It’s not as though — to pick a completely theoretical example — she has personally pocketed $1.4 billion in dodgy crypto deals.

The foster-care provider, Sunshine Residential Homes, has contributed sizable sums to the Democratic Party and to Hobbs’s inaugural fund and legal-defense fund. There was a legitimate policy reason for the increase in the reimbursement rate. Sunshine was a major provider of state foster-care beds and was threatening to withdraw them to serve a federal program with a higher reimbursement rate.

However, businesses and business executives make these contributions in the belief that there will be some benefit for them. And while the Mayes investigation didn’t find any quid pro quo evidence, it would be a neglectful administration that wasn’t at least aware of when a major contributor had an important decision before it. The politics of these things tend to be background and indirect factors.

The legitimate issue is Hobbs’s lack of transparency about some of these funds. She raised nearly $2 million for an inauguration bash that cost just a little over $200,000. The surplus was channeled into Hobbs’s political operation. Yet Hobbs fiercely resisted disclosing the donors until the public pressure became too great. She is similarly resisting revealing the donors to her legal-defense fund.

Irrespective of what the law requires, the public deserves to know who these donors are. There is an influence, if well short of outright corruption. Hobbs’s reluctance to level with voters about these funds is a just cause for criticism and concern. However, nothing that requires a legislative subpoena to establish.

The justification for a legislative subpoena is two-fold: The legislative branch needs the ability to compel information required to write laws and to exercise oversight of the executive branch. In the modern political world, I think the potential for abuse outweighs either justification.

Rarely is a legislative subpoena necessary to acquire sufficient information to legislate or provide apposite oversight. These days, it is instead principally used to grandstand or make a political point.

The Hoffman example is particularly transparent and egregious. Recently, the U.S. Senate had the spectacle of 85-year-old Anthony Fauci repeatedly invoking the 5th Amendment at a public hearing, to which he had been subpoenaed. Now, I think Fauci made mistakes in managing the COVID-19 pandemic, and even acted unethically in some respects. But there is already enough on the public record for such judgments to be made.

Fauci’s lawyers believed, I suspect with considerable justification, that the hearing was mostly a perjury trap being set by anti-Fauci chairman Rand Paul, whose libertarian instincts I generally share. There was no true legislative purpose served by the spectacle.

If Democrats take over one or both chambers of Congress, they have already announced that the first order of business will be extensive investigations of Trump, his family and his administration. There are actually things I think it would be useful to know that subpoenas might be necessary to bring to light.

However, I don’t trust Democrats to engage in a truly fact-finding mission. They will instead be using these investigations as political theater to set the stage for the 2028 presidential election. The legislative subpoena shouldn’t be used primarily to produce campaign research.

Simply put, I don’t think the politicians we are electing to the legislative branches today can be trusted with the power to compel witnesses and the production of documents.

It’s ridiculous that over 30 state legislators have that authority. Arizona would benefit from a bipartisan good-government group with the resources to take on some hygienic reforms to state government. Reforming or abolishing the legislative subpoena would be a good early candidate.

Getting rid of the legislative subpoena at the federal level would be more difficult, since the U.S. Supreme Court has held that it is an implicit power conveyed by the Constitution. I don’t agree with that, but I doubt the current court would be inclined to reconsider.

There are more internal checks on the subpoena power in Congress than in the state Legislature. And the courts occasionally exercise some checks and restrictions on it. If the Democrats take over one or both chambers, I suspect that courts will be very busy attempting to define and apply these checks and restrictions. Not a productive exercise for the country.

There is a lament in this conclusion about getting rid of the legislative subpoena. I’ve been reading a lot about Harry Truman lately. He made his mark in the Senate as chairman of a committee investigating military contracts. His investigations included the use of subpoenas.

His committee operated in an entirely bipartisan manner. The committee’s work continued over several years. Every report the committee issued was unanimous. The committee’s efforts were widely celebrated and appreciated, even in the executive branch being investigated.

Such a fact-based, bipartisan effort just to improve the government’s management of an important function is inconceivable in today’s political world, at either the federal or state level.

That’s a dispiriting observation, but not a condition to be ignored.

Retired Arizona journalist Robert Robb opines about politics and public policy. Reach him at robtrobb@gmail.com. Please submit comments at yourvalley.net/letters or email them to AzOpinions@iniusa.org. We are committed to publishing a wide variety of reader opinions, as long as they meet our Civility Guidelines.