Today’s Washington Post, Metro section, leads with a story by Rosalind Helderman called "Democrats try to curb Cuccinelli’s powers." The story reports on an effort by some Virginia Commonwealth Senators to change state law so that the state Attorney General must get court approval before issuing a "civil investigative demand" (CID). The proposal is an obvious response to concerns that Virginia’s current Attorney General, Ken Cuccinelli, is abusing the power to issue CIDs by focusing on a global warming scientist.
Mr. Cuccinelli’s office issued a statement suggesting that the proposed limit on CIDs could lessen Virginia’s share of recoveries for false claims actions. The article mentions an increased share for states "when they win fraud cases." This may be a reference to the Grassley Amendment to the Deficit Reduction Act. Under the Grassley Amendment, states that have their own "Little FCA" Acts that meet federal standards will get a bigger share of federal recoveries from fraud claims in their states. Virginia’s law already meets these standards. (Maryland does not; read here about why.) The federal government is still working to get states to adopt their own Little FCAs, and has not excluded any state for limits on CIDs. For Mr. Cuccinelli to use the Grassley Amendment to deflect criticism of, or limits on, his use of CIDs is a misuse of the FCA.
"My general opinion is that this is what happens when political hacks in both parties step into the FCA arena — good law gets hacked up," says Patrick Burns of Taxpayers Against Fraud. "The Civil Division at DoJ has never engaged in partisan politics or open-ended witch hunts, and what Cucineill is doing here feels very much like that."
