KEISLING: Failed vote to oust AG Kathleen Kane portends real trouble for state’s long-entrenched political and media interests

 

The fall of the House of Insiders

“Did you hear the cops finally busted Madam Marie, for tellin’ fortunes better than they do?” – Bruce Springsteen

by Bill Keisling

For more than a year Pennsylvania Attorney General Kathleen Kane’s opponents in government and the media put out a script that everyone else was supposed to follow:

Kane would be charged criminally for a news story given to the Philadelphia Daily News; her law license would be suspended; and an obscure constitutional provision would then be invoked by the state Senate to quickly remove her from office without a real hearing.

Everyone would go along, these insiders thought. Not because it was a good plan, or a fair plan (it was neither).

They thought everyone would go along simply because these insiders had always controlled the script, and they couldn’t imagine any other outcome.

What other script did the public have to follow?

A funny thing happened on the way to that outcome.

Kane ended up winning the vote to stay in office, and her opponents were dealt a stinging defeat.

The outcome of the failed vote to oust Kane — considered a sure thing by the insiders only a day before — portends real trouble for the state’s long-entrenched political and media interests.

This week they all belatedly awoke to the age of the Internet, and were dumbfounded to learn that their day is near over.

The failed vote to oust Kane suggests that these entrenched interests no longer control or monopolize the conversation in state government, or the outcome, like they once did.

That’s very good news.

And that’s the big story here.

So why did the Senate leadership and their close pals in the old-line media fail to oust Kane, after ineffectively pounding on her for more than a year?

Looking back, despite what the insiders were saying, the ground began shifting in Kane’s favor over the last few months.

Kane, it turned out, had growing support in the real world, away from the capitol.

And other factors came into play.

Former Gov. Ed Rendell did a good job testifying before the Senate’s removal committee in January. Rendell told the senators to slow down, and to consider impeaching Kane instead of resorting to the many uncertainties of the bizarre “Direct Address” removal plan, rooted as it was in obscure 19th century lunacy law.

“It would add to the chaos,” Rendell warned them.

Rendell no doubt had an impact on the Senators, especially the Democrats.

Several other events, including missteps by the Republican senators on the removal committee, and even a cold shoulder from the state’s Supreme Court, backfired, and played to Kane’s favor.

On January 13, Senator Lisa Baker, a Republican on the removal committee, foolishly wrote a letter to Deputy Attorney General Bruce Beemer, questioning AG Kane’s appointment of a special prosecutor in the pornographic email scandal.

“Under what legal authority does the Attorney General make such an appointment?” Sen. Baker asked Beemer.

This made it look all the world like the Republicans on the committee were more interested in protecting Republican wrongdoers on the Supreme Court caught in the porno email scandal than looking fairly at Kane’s circumstances.

Then, only a week before the removal vote, word came that apparatchiks on the Supreme Court had come up with the cockamamie plan to enlist a well-known if long-in-the-tooth insider as a “mediator” in hopes of sparing Justice Michael Eakin a public trial for his alleged transgressions with the porno email chain.

The implications were clear: to protect his career and reputation, Justice Eakin would be spared a public trial for his behavior, while AG Kane would be given the heave-ho from office without a trial.

People seemed to be waking up to what was going on.

As chance would have it, the day before Senate Republicans planned to vote to oust Kane, Gov. Tom Wolf gave his pugnacious budget address to a joint session of the legislature.

“If you can’t agree to the budget reforms I’ve proposed, then help me find a sustainable alternative,” Wolf told the Republicans who had yet to pass a budget for the previous year. “But if you won’t face up to the reality of the situation we’re in, if you ignore that time bomb ticking, if you won’t take seriously your responsibility to the people of Pennsylvania, then find another job.”

Coming as it did the day before Kane’s removal vote, Wolf’s address charged the political poles and atmosphere in the legislature, and the Senate.

In hindsight, Republicans in the legislature should probably have passed a budget before accusing AG Kane of not doing her job.

Still, even as late as the night before the vote on Kane, the conventional wisdom had it that Kane was done.

I got a call from a capitol reporter who asked if I thought Kane would barricade herself in her office after the Senate voted to remove her, and whether state police would have to be sent in to clear the attorney general’s office.

That’s how certain insiders were of the outcome.

But the night before the vote I was on a radio program in Harrisburg, and the host, who’s no friend of Kane’s, told me he thought public opinion had shifted for Kane, particularly after the ham-handed attempts to protect Justice Eakin.

The morning of the vote, I showed up at the Senate gallery to watch the debate, not knowing what to expect.

There was an awkward, dark feeling in the air. I struggled to understand the dynamic.

“They don’t have the votes to remove her,” one Senate staffer whispered to me.

I looked down from the gallery into the ornate Senate chamber below. The two caucuses were combatively squared off against each other on the Senate floor, in battle mode. The Democrats were hunkered down at the opposite side of the chamber from the Republicans, who looked worried and vexed.

This was not the collegial, bi-partisan Senate that the Republican leadership had hoped to muster to oust Kane.

The minority leader, Democrat Sen. Jay Costa, did an admirable job defending Kane. He said he’d vote against her removal, and urged his caucus members to do the same.

It turned out that testimony from the removal committee’s own hearings backfired to help Kane.

Sen. Costa pointed out that a judge in Armstrong County had upheld the right of the attorney general’s staff to conduct prosecutions even though Kane’s law license had been suspended. This question had been fretted over the during the removal hearings. Costa pointed out that Kane was still a member of the bar, as required by the state constitution, and that her suspension hadn’t adversely affected any cases.

Even the Supreme Court’s brusque treatment of Kane played to her favor.

Kane, in January, asked the court to reconsider her law license suspension, but had been refused, not on the merits of the request, but because, the court said, her request had come too late, and so was untimely.

This slap down of course was intended by court officials to politically harm AG Kane, and to cook her goose in the Senate. But it had the opposite effect.

Democrat Sen. Judy Schwank, a member of the Special Committee on Senate Address, pointed out that Kane’s request to the court to reinstate her license hadn’t been refused on its merit, but only timing.

Of all the senators, Schwank seemed to understand the history of the moment.

Sen. Schwank told the chamber that she had been reading the long history of the state constitution’s Direct Address provision, and found its last use, in 1891, “fascinating” reading. (As readers know, much if not all of this history had been brought to light by newslanc and yardbird.com.)

The removal clause was clearly intended for cases of mental or physical infirmity, Sen. Schwank said. She called it an “outdated provision” from the 19th century, and “dusty.”

Sen. Schwank pointed out that the Direct Address removal provision had never been intended to apply to an elected attorney general, as the Republicans were attempting now to do.

Knowing the history of the provision gave the senators ammunition to oppose it. The provision after all failed in 1891, for political and due process reasons.

What the Republicans and their friends in the media were proposing for Kane only made sense if there was no history behind it. Which is probably why none of them bothered to dig up or write about the history. Or perhaps they were just lazy, and cocksure, as usual.

Knowing the failed history of the Direct Address provision helped concerned senators put real meat on what otherwise would have been bare bones arguments.

“We shouldn’t be overturning the will of three million voters,” is a reasonable argument, but mighty thin gruel. The historical arguments added meat and potatoes to the soup, and helped to carry the day.

It turns out history might have a future in Pennsylvania.

Sen. Art Haywood, another member of the removal committee, said that Kane’s predicament was a matter for the courts and the attorney disciplinary board. It was not appropriate for the political Senate to act as a court, and to anoint itself the “Supreme Senate,” Haywood said.

The day after the hearing, Sen. Haywood issued a statement that shed light on the backstage machinations leading to the vote in Kane’s favor.

“After examining the evidence and concluding that the Attorney General should not be removed by Senate Address, I led the effort to persuade others across the state and in the Senate,” Sen. Haywood writes. “I appeared across the state on six television stations, in more than 700 news articles, and reached thousands online to make the case against her removal. As you know, reaching people through media is one way, among others, of influencing legislators. Through our advocacy, we have achieved a victory and protected our democracy from Senate overreach.”

Back in the Senate chamber on the day of the vote, the roll call vote sparing Kane came like a thunderclap.

The Republican leadership and their loyal servants in the media who had for months predicted Kane’s removal looked stunned, and Godsmacked.

I wandered out to the rotunda, where the Republican leadership, looking dazed and confused, gave statements to a thick ring of equally shook and confounded capitol reporters. Their faces were so long they had to pick them up off the floor.

For months all these capitol insiders had been following a poor script of their own writing. In years past, everyone would have been forced to go along.

But no more.

They knew their time was up. They no longer could control or monopolize the debate, or the means to inform the public about what’s going on. And it scares them. Couldn’t happen to a nicer bunch of old boys and girls.

Thanks to the Internet, an alternative script was written and presented to the public, and the Senate. And it prevailed.

Politics in Pennsylvania will never be the same.

EDITOR:  And we add, thanks also to Bill Keisling who contributed at least a hundred hours of his time to dig out and report upon the history behind  and purpose of the “Direct Address” removal process. Keisling showed once again that he is as much a historian as a reporter and commentator.