Ken Cuccinelli has gone after health care reformers, academics, gays and a breast-baring Amazonian goddess. He says he's just doing his job.


On July 1, Virginia Attorney General Kenneth Cuccinelli II and his legal team appeared in Richmond’s U.S. Circuit Court as they attempted to dismantle federal health care reform. While monumental enough—a state attorney general taking on a bill passed into law by Congress and signed by the President—it’s hardly all. Cuccinelli is also suing the Environmental Protection Agency, arguing that it used bad science to conclude that greenhouse gases are harmful. And he’s being sued by UVA because he is demanding that the University turn over reams and reams of documents, e-mails and scientific models from a professor who hasn’t worked there in five years.

Those are just the still-raging tempests. In March, he sent a letter to Virginia state colleges and universities telling them they could not specifically ban discrimination on the basis of sexual orientation, which led to campus protests until Republican Governor Bob McDonnell intervened [Not kept up with all the Cooch has been up to? See sidebar, below.]

Six months into the Ken Cuccinelli regime, many Virginians are rubbing their eyes and wondering: Have we elected a kook?

Most of this—the states’ rights battles, the challenge to the university elites, the culture-war skirmishes—has endeared Ken Cuccinelli to the conservative base both in Virginia and across the country. He’s the toast of the Tea Party, “a tea partier before there was a Tea Party,” in the admiring words of Republican State Delegate Dave Albo. Even nationally embraced conservative darling Marco Rubio calls on Cuccinelli to headline a fundraiser for his U.S. Senate campaign.

That same stuff has made “Ken Cuccinelli” a punchline on the political shows. But looking past the polarized praise and ridicule Cuccinelli has manufactured with his political gambits, is there sense to be made of Virginia’s activist attorney general? Is he truly Kookinelli—a crazy radical who slipped through Virginia’s moderate radar? Or is his real identity Craft-i-nelli—a savvy political gamer harnessing the winds of public opinion to propel himself to higher office?

As usual, the truth lies somewhere in between.

Well-worn conservative dogma

Cuccinelli’s “craziness” as attorney general, to date at least, can be explained by three beliefs: that the threats of global warming are overblown; that homosexual acts are wrong; and that government power—and federal power in particular—needs greater limits.

Those aren’t his explanations, by the way—Cuccinelli tries to explain his activism as simple reaction.


Your primer to the Attorney General’s many controversies

February: EPA lawsuit
Controversy: Cuccinelli sues the EPA to make it reconsider its classification of carbon dioxide and other gases
Cooch’s core issue: Whether humans are responsible for increased levels of carbon dioxide in the atmosphere
What’s at stake: Federal standards for automobile fuel emissions
Outcry: “It’s disturbing that our state attorney general chooses to challenge the mountain of evidence, considering the number of Virginia businesses and residents experiencing firsthand the consequences from rising sea levels and other impacts of a changing global climate.”—Morgan Butler, Southern Environmental Law Center
Cooch’s response: “The methods and objectivity of the global warming scientists on which the EPA relied for its decision have been seriously questioned.”
Status: In D.C. Court of Appeals

March: Discrimination ban
Controversy: Cuccinelli advises state colleges and universities to strike down discrimination bans that specifically mention sexual orientation
Cooch’s core issue: The state constitution
What’s at stake: Civil rights at Virginia’s colleges and universities
Outcry: “What he’s saying is reprehensible. I don’t know what he’s doing, opening up this can of worms.”—Vincent F. Callahan Jr., former Republican member of the House of Delegates, current member of George Mason’s Board of Visitors.
Cooch’s response: “A public university lacks the power to create a new protected class because that power only rests with the General Assembly.”
Status: Governor McDonnell mitigated Cuccinelli’s ruling with a directive to state agencies prohibiting discrimination, in-cluding on the basis of sexual orientation.

March: Federal health care lawsuit
Controversy: Cuccinelli sues federal government over health care reform, calling it unconstitutional
Cooch’s core issue: Federal power and state’s rights
What’s at stake: Federal power; afford-able health care for uninsured Americans
Outcry: “These cases are all but sure to be promptly tossed out of court for procedural reasons obvious to a first-year law student.” – Simon Lazarus & Alan Morrison,
Cooch’s response: “Just being alive is not interstate commerce. If it were, there would be no limit to the Commerce Clause and to Congress’s authority to regulate everything we do.”
Status: Federal Fourth Circuit judge is deciding on a motion to dismiss.

April: UVA investigation
Controversy: Cuccinelli launches an investigation of former UVA professor Michael Mann and demands that UVA turn over reams and reams of emails, documents, and computer models
Cooch’s core issue: The veracity of global warming research
What’s at stake: Academic freedom at state schools
Outcry: “This investigation is a threat to scientific discoveries everywhere.” – Francesca Grifo, director of the Union of Concerned Scientists’ Scientific Integrity Program
Cooch’s Response: “Neither academic freedom nor the First Amendment have ever been held to immunize a person, whether an academic or not, from civil or criminal actions for fraud, let alone immunized them from an otherwise authorized investigation.”
Status: UVA and Cuccinelli have a hearing slated for August 20.

May: Boob-gate
Controversy: Cuccinelli gives his staff lapel pins with modified (and modest-ified) Virginia state seal emblems, cover-ing the breast of the Amazon woman Virtus
Cooch’s core issue: Humor
What’s at stake: Cuccinelli’s reputation for prudishness
Outcry: “God forbid his highness should ever happen to stroll by the Library of Congress, and see the various church and school groups jostling to get their pictures taken at the fountain, where a well-endowed Neptune and his buxom nymphs frolic. He won’t be able to sleep for weeks.” – John Aloysius Farrell, U.S. News & World Report
Cooch’s Response: “I cannot believe that joking with my staff about Virtue being a little more ‘virtuous’ in this antique version has become news.”
Status: Dead. Cuccinelli backed off the lapels muttering that no one can take a joke.

May: Gun ban case
Controversy: Cuccinelli files brief that de-fends George Mason University’s ban on guns on campus in State Supreme Court case
Cooch’s core issue: According to Cuccinelli, state constitution; according to critics, gun rights
What’s at stake: Ability of universities to prohibit guns on campus
Outcry: “That looks like something that Sarah Brady would write!” – Philip Van Cleave, president of Virginia Citizens Defense League
Cooch’s response: None, beyond what’s in the brief: “Students do not have the right to interrupt a class, alumni function or grad-
uation ceremony to express a particular viewpoint, and neither do they have a right to carry a firearm anywhere and at any time.”
Status: Case will be heard at the Virginia Supreme Court

June: Funeral protest case
Controversy: Cuccinelli is one of only two attorneys general in the country who don’t file an amicus brief supporting the family of a dead Marine whose funeral drew pro-testors from the infamous Westboro Bap-tist Church
Cooch’s core issue: Freedom of speech
What’s at stake: Ability to stand on public property outside a soldier’s funeral saying “Semper Fi fags”
Outcry: “We are getting to be the laughingstock of the country for the things [Cuccinelli] is doing.” – Ward Armstrong, state House minority leader
Cooch’s response: “The case could set a precedent that could severely curtail certain valid exercises of free speech.”
Status: Case will be heard during the U.S. Supreme Court’s next session.

“The office is by its nature a very reactive office,” says Cuccinelli in an interview with C-VILLE. “The EPA—we don’t sue the EPA if they don’t have an endangerment signing. Health care, we’re not in that lawsuit unless there’s a bill that contradicts a Virginia bill and the Constitution. A lot of the things that have made news out of our office have been simply us responding to the circumstances that we’re confronted with.”

Cuccinelli’s explanation would be more convincing if he hadn’t promised his activism in advance. In fact, what Cuccinelli has actually done is less shocking than the idea he might not have done those things. None of these views was a secret as he campaigned for attorney general in 2009, as The Washington Post made clear in its Cuccinelli profile several weeks before the election: “In addition to talking up gang prevention, Internet crimes and sex offenses against children, Cuccinelli promises to make defending Virginia’s ban on gay marriage a top prority. He doesn’t believe the theory of climate change. He is ready to sue the federal government if it restricts emissions or expands union powers.”

Cuccinelli told The Virginian-Pilot in a written response that homosexual acts are wrong,and that “I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society.”

In his seven years in the General Assembly, he patroned bills that tracked conservative dogma—bills that would have made it harder to get an abortion, limited local governments’ ability to raise real estate taxes, and restricted the use of eminent domain. He repeatedly tried to make life harder for immigrants. One bill, introduced in 2006, would have allowed businesses to sue competitors “if the [competing business] employs or employed persons it knew or should have known were illegal aliens.” In 2008, he proposed a resolution to urge Congress to amend the Constitution to limit citizenship only to those whose parents are citizens.

Patricia Ticer, a Democratic State Senator from Alexandria, says that Cuccinelli was easy to get along with in a social context and difficult to deal with in a political one. “He pretty much was off the wall on most of his issues,” says Ticer. “So I don’t know that he really expected most of the things that he patroned to pass.”

To win the nomination for attorney general, Cuccinelli beat out more moderate opponents at a May 2009 GOP convention. At the time, some Democrats were pleased with a polarizing figure considered more vulnerable in the general election. As a state senator representing a swath of Fairfax County, Cuccinelli eked out his 2007 election by only 101 votes.

Yet in the general election, Cuccinelli won 58 percent of the statewide vote—more total votes than any other AG candidate in Virginia history (a fact he is fond of pointing out). Did his big win come because of or in spite of his far right views?

“He was treated like he was a normal, nominal Republican instead of the true activist conservative that he is, and I don’t think that ever got across to voters before they voted for him,” says Ben Tribbett, who runs the left-leaning blog “Not Larry Sabato.”

“I think McDonnell took such a big lead [over Creigh Deeds] that the whole ticket was sleeping and the media was so busy covering the sleep that it wasn’t really covering the issues.” That killed the down-ballot candidates, in Tribbett’s view. “An attorney general candidate can’t go organize 20,000 canvassers.”

Isaac Wood, political analyst at the UVA Center for Politics, also thinks Cuccinelli’s win is explained by McDonnell’s huge lead over Deeds. “If you’re looking for the main explanation of why he won, I’d say that has to be it,” says Woods. “At the same time, nobody can claim that Ken Cuccinelli was hiding his true ideology on the campaign trail. It’s impossible to say if voters were holding their nose and voting the Republican ticket.”

The Madison-Reagan axis

Cuccinelli was born in New Jersey, but schooled in Virginia. A Catholic, he got a mechanical engineering degree at UVA and a law degree at George Mason University, and co-founded a small firm in Fairfax County.

“I think of myself as a Madisonian liberal,” Cuccinelli says with a chuckle in a phone interview with C-VILLE. “In today’s parlance, I’m basically a small government conservative.” He cites James Madison and Ronald Reagan as the two political thinkers who have influenced him most. Both were firm believers in limited government—as is Cuccinelli.

“Unless something very unforeseen happens,” he says, “I’ll probably always be arguing to reign in the growth of government for the duration of my political career.”

Cuccinelli doesn’t consider himself a libertarian—he doesn’t go for the legalization of drugs and prostitution (his opposition to gay marriage also stands in contrast to many libertarians). He does, however, share a libertarian concern of government overreach that verges on paranoia. At a campaign event last year, he told an audience that he and his wife, Teiro, were considering not getting a social security number for their seventh child because “it is being used to track you.” Four of their children are home schooled.
It’s no wonder, then, that the white whale of Cuccinelli’s current targets is the health care bill—and that at its core is an issue of federal power.

The health care bill includes a provision that requires individuals to purchase health insurance or else pay a penalty to the IRS. That provision is a linchpin of the health care reform bill, justified, says the federal government, by the Constitution’s Commerce Clause, which gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

But does this allow the federal government to require individuals to buy health insurance? Cuccinelli argues that the demand crosses a line by regulating inactivity. “If commerce comprehends a decision not to engage in economic activity, and the command to purchase health insurance or pay a penalty is valid, Congress has a power under the Commerce Clause indistinguishable from a national police power,” his office argues in court documents. The first judicial ruling will come within a month, on the federal government’s motion to dismiss.

Cuccinelli is not alone in seeing this Commerce Clause issue. As the health care bill worked its way through the legislature, the Congressional Research Service told the U.S. Senate, “it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.” Florida’s attorney general has also filed suit over the health care bill, and that lawsuit also has this individual mandate issue at its core.

While 19 other AGs have signed onto the Florida lawsuit, none have joined Cuccinelli in his. Ostensibly, that’s because Cuccinelli’s argument is rooted in a Virginia law that hasn’t been passed in other states.

What’s hardly unique, however, is Cuccinelli going it alone. A few weeks ago, he chose to write his own letter to BP rather than sign on to one with other AGs. Cuccinelli was one of only two attorneys general not to join a Supreme Court amicus brief on behalf of the family of a soldier killed in Iraq whose funeral was picketed by Fred Phelps, pastor of the Westboro Baptist Church, and his “God Hates Fags” followers.

He always has his reasons. And in the Phelps case, those reasons earned some support from the left. While Cuccinelli deplored the “vile and despicable acts” of Phelps, “the case could set a precedent that could severely curtail certain valid exercises of free speech,” he argued in a press release. “If protestors—whether political, civil rights, pro-life, or environmental—said something that offended the object of the protest to the point where that person felt damaged, the protestors could be sued.”

Cuccinelli caught quick flak. Some wondered whether his motive was protecting the First Amendment or specifically protecting homosexuality protestors. Ward Armstrong, a Martinsville Democrat and state House minority leader, said that Cuccinelli went “beyond the pale”: “We are getting to be the laughingstock of the country for the things [Cuccinelli] is doing.”

Yet it cheered Kent Willis, executive director of the ACLU of Virginia. “This is the mavericky libertarian Cuccinelli we’ve been looking for all these months,” he wrote on the ACLU of Virginia blog.

State Senator Ticer says she saw the same pattern over and over. “He does everything on his own,” she says. “His is better, his solution is better, his effort he always thinks is better. He has the answer that other people don’t have.”

At times, that go-it-alone approach seemed even to embarrass Republican Governor Bob McDonnell. In early March, Cuccinelli sent letters to the heads of Virginia’s state colleges and universities advising them to rescind anti-discrimination policies that specifically protected people based on their sexual orientation. Predictably, the letters were leaked to the press, and a firestorm ensued. More than 1,000 protested at Virginia Commonwealth University. Outgoing UVA President John Casteen expressed concern. Some universities passed resolutions reaffirming their policies in direct defiance of Cuccinelli. McDonnell finally issued a nonbinding executive order that prohibited discrimination, including against homosexuals, in an attempt to clarify Cuccinelli’s supposedly clarifying letter.

In some ways, Cuccinelli’s extremism works in McDonnell’s favor—a conservative foil that makes McDonnell look more moderate. Yet the discrimination letter raised issues about Cuccinelli’s relationship with McDonnell.

“We frequently communicate beforehand about things he might want to know about just so that he has a heads up,” says Cuccinelli. “He’s my main client, if you think of it in those terms, and we have a great working relationship.”

Mann up

Cuccinelli’s other two attention-grabbing lawsuits both stem from his skepticism of global warming, and in both cases he draws justification from “Climate-gate.”

The “Climate-gate” scandal emerged in November 2009 when a hacker somehow copied a server full of emails from the University of East Anglia’s Climatic Research Unit (CRU) and put the information in the hands of global warming skeptics.

More than 900 professors have signed a letter urging Cuccinelli to drop his investigation of climate scientist and former UVA professor Michael Mann. In connection with what some see as an academic witch hunt, UVA is suing Cuccinelli. Albemarle County Circuit Court will hear the case on August 20.

Though thousands of e-mails were pilfered, the controversy revolves around only a handful of them among four scientists. One of them is a former UVA professor of environmental science, Michael E. Mann, whose most well-known research charted a dramatic recent rise in global temperatures. In 1999, a CRU professor wrote Mann and two others an e-mail referencing a statistical “trick” developed by Mann in order to “hide the decline;” in 2009, Mann wrote in an e-mail that “As we all know, this isn’t about truth at all, it’s about plausibly deniable accusations.”

Global warming skeptics read these as confessions of bad research, at least intentionally obfuscated if not completely fabricated. Yet various investigations in the U.S. and in the UK have so far concluded that no data-tampering took place and that the basic science produced by CRU is sound. Mann has worked at Penn State since 2005, and its investigation into the e-mails and Mann’s conduct cleared him of all charges, finding no credible evidence that Mann suppressed or falsified data.

“The so-called ‘trick’ was nothing more than a statistical method used to bring two or more different kinds of data sets together in a legitimate fashion by a technique that has been reviewed by a broad array of peers in the field,” it ruled. It is still investigating whether Mann’s conduct deviated from “accepted” practices.

Still, Cuccinelli has used “Climate-gate” to justify his legal escapades against the Environmental Protection Agency. He claims that “Climate-gate” invalidates a December “endangerment finding” by the EPA, one of its last necessary steps before regulating emissions from vehicles. Cuccinelli’s rationale? The EPA ruling relied heavily on data from the United Nations Intergovernmental Panel on Climate Change, whose research arm is CRU. That tainted the ruling, according to Cuccinelli. He demands that the EPA reconsider its finding, and 14 other states eventually joined him. Cuccinelli’s lawsuit is awaiting hearing in the D.C. Court of Appeals.

In May, Cuccinelli’s obsession with climate-gate brought him into direct battle with the University of Virginia over its former professor, Mann. Not satisfied with the Penn State investigation, Cuccinelli started his own. He issued UVA a civil investigative demand—basically, a subpoena—requiring a litany of documents related to Michael Mann. Ostensibly, the investigation was about possible fraud involving five grants totaling $485,000 that Mann was awarded while at UVA.

But Cuccinelli’s demand went far beyond the grant applications to include: e-mails Mann sent to and received from 39 scientists and all of his assistants; all documents generated by the grants; and any computer algorithms, programs and source code created or edited by Mann at any time. The demand didn’t even spell out what alleged fraud Mann committed, only citing three sections of the Virginia Fraud Against Taxpayers Act (FATA), which prohibits defrauding the Commonwealth.

The University bristled at the demand. It hired outside counsel and sued Cuccinelli in Albemarle County Circuit Court, asking it to set aside the demands entirely. Four of the five grants, it argued, were federal and therefore outside FATA’s jurisdiction. The fifth was awarded in 2001, two years before FATA was passed into law. “Investigating the merits of a university researcher’s methodology, results, and conclusions (on climate change or any topic) goes far beyond the Attorney General’s limited statutory power,” UVA argued. “…Permitting them to be used in the sweeping fashion attempted here would impair academic freedom in the Commonwealth.”

The perceived threat to academic freedom set off alarm bells within the academic world. More than 900 professors signed a letter urging Cuccinelli to drop the investigation. The Albemarle County Circuit Court is set to hear the case on August 20.

Getting nippy in here

For the most part, Cuccinelli has weathered the criticism his actions have created. But at times his skin has worn thin, particularly during “Boob-gate.”

He says he was trying to make Virtus, the Amazon on the state seal, “more virtuous” by covering her bare breast. But instead, Cuccinelli made himself ridiculous. “Liberals don’t have a sense of humor,” he pouted, when “Boob-gate” hit the national media.

Cuccinelli had lapel pins made for his staff with the state seal of Virginia, which depicts an Amazon—Virtus—standing atop a defeated man with the caption “Sic Semper Tyrannis.” In the version of the seal used since 1930, Virtus has one exposed breast. But Cuccinelli went with an earlier version, used during the Civil War, that depicted Virtus in a full breastplate. The joke: Cuccinelli wanted “to make Virtus a little more virtuous.” Soon he was mocked and pilloried across the World Wide Web as the second coming of John Ashcroft.

In the immediate aftermath, a bruised Cuccinelli refused to answer questions from a Roanoke TV station about it.

“We took an amusing comment and turned it in to a serious policy statement,” says Cuccinelli. “I was making a joke. I’m a firm believer that liberals don’t have a sense of humor, and I believe that based on massive empirical evidence, and that’s just more proof of it. I’m going to keep making jokes, and they’re going to keep jumping down my throat for them, but life is too short to give up a sense of humor.”

More concerning, however, is Cuccinelli’s slow response to the controversy surrounding one of his biggest donors, Bobby Thompson, who gave him $55,000 for his AG campaign. Thompson’s nonprofit, U.S. Navy Veterans Association, is under investigation in multiple states for fraudulent fundraising, and Thompson has gone AWOL. While other politicians—including McDonnell and Ticer—have pledged to give away donations from the group, Cuccinelli said that he wouldn’t give away the money unless Thompson was convicted and the money was supposed to have gone to veterans. All he’s done so far is set aside the money in a separate account.

Last month, his former opponent, Steve Shannon, turned up the heat on Cuccinelli. In a Virginian-Pilot op-ed, Shannon outlined some eyebrow-raising timing. Virginia’s Office of Consumer Affairs revoked the U.S. Navy Veterans filing exemption. Thompson gave Cuccinelli $5,000, and four days later, Cuccinelli said that the Office of Consumer Affairs should be moved under the attorney general’s umbrella instead of the Department of Agriculture and Consumer Services. Several weeks after Thompson gave Cuccinelli $50,000, Cuccinelli reiterated his call.

The response so far from Cuccinelli’s office? Only two words from Cuccinelli’s political director: “Sore loser.”

From ref to guv?

One of Cuccinelli’s interests outside politics is sports, and he spent time as a youth basketball referee.

Ken Cuccinelli denies that he has gubernatorial ambitions. Instead, he told the Washington Post, he envisions “a long career as Virginia’s top lawyer—and a dramatic, if slow, transformation of government, state regulations and the lives of Virginians.”

“What I tell people is that the best training for being in public office was being a basketball referee because the minute you blow the whistle half the people are mad at you,” says Cuccinelli. “So it’s good practice.”

He’s blown the whistle a lot so far as AG—but how many Virginians are mad at him? The best reading on what Virginians think of Cuccinelli might not come until his next election, and right now at least he’s in the catbird seat to pick what that will be.

The biggest speculation is that he’s in it for governor. If Cuccinelli did run, however, he would disrupt an agreement made between Lieutenant Governor Bill Bolling and McDonnell—Bolling stepped aside in 2009 with the idea that 2013 would be his turn.

Given Cuccinelli’s history of going it alone, that’s not too hard to imagine, particularly since if he did not run, he would interrupt more than 30 years of precedent of Virginia attorneys general running for governor.

In his campaign, Cuccinelli indicated he was more interested in a second term as AG than a run for governor. According to his Washington Post profile, he envisioned “a long career as Virginia’s top lawyer—and a dramatic, if slow, transformation of government, state regulations and the lives of Virginians.”

Now he won’t say whether or not he’ll run for governor, for re-election, or for something else entirely. “Decisions of things like that are for the future,” he says.

“Bolling has been raising gobs of money already for [governor],” says Wood. “So it’d be pretty tough for him to cut in line there.”

Tribbett thinks it plain enough that Cuccinelli will run—and wipe the floor with Bolling. “I would be shocked if he deferred to Bill Bolling. I’m not sure Bill Bolling could hang within 50 points of him for the Republican primary right now.”

Even if he doesn’t end up with that long career as AG that he envisioned, Cuccinelli could still end up dramatically transforming the lives of Virginians, as he planned. If his health care lawsuit is successful and Florida’s fails, then he gets both the credit for restoring more balance to federalism and the blame for taking away affordable health insurance from millions of Americans. If Cuccinelli succeeds in forcing UVA to produce those reams of e-mails, he will have all kinds of fodder from which to make political hay, fairly or unfairly, as well as a dangerous precedent that allows the state to poke around in academics’ work with little justification.

It’s also possible that his actions, in the long run, will benefit the groups he’s targeting. His discrimination missive proved a rallying cry for civil rights groups. If his Mann hunts end up witch hunts, Cuccinelli could be consigned to a McCarthy-esque footnote in American history.

Regardless, don’t expect the name Cuccinelli to disappear from the news any time soon. We’re only six months into the Cuccinelli era—and three and a half years of antics, capers and crusades lie ahead.

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