The elephant (or the donkey) in the room: is the GA party important? | Cozen O’Connor
In today’s hyper-partisan political environment, we’d be remiss if we didn’t discuss how the political affiliations of state attorneys general matter — and how they don’t. Many of the ideas we’ve discussed in our previous four articles in this series play a part in understanding this topic, so it may be helpful (but not necessary) to read them before embarking on this article.
GAs are inseparable from politics
Our motivation for writing this series was to help businesses understand the implications of the upcoming elections. As we noted in our first article, most AGs are popularly elected, but politics still plays into their selection in states where they are not. The five governors who appoint AGs are all elected, as is the Maine Legislature, which only elects the AG. Even in the last state where the AG is not elected, Tennessee, the state Supreme Court justices who select the AG are subject to retention elections. This crowded 2022 election cycle will include not only direct GA elections in 30 states and DC, but also gubernatorial elections in Alaska, Hawaii, New Hampshire and Wyoming; legislative elections in Maine; and a rare retention election for the five seats on the Tennessee Supreme Court.
AG positions on issues tend to follow party lines
Partisanship, as discussed earlier in this series, impacts the positions AGs can take on issues and how actively they engage, usually in line with trends in national politics. Typically, Democratic GAs are vocal promoters of anti-discrimination, social justice, and pro-worker and employee initiatives. Republican AGs generally support immigration restrictions and are actively involved in matters involving religious freedom and gun ownership. Democratic and Republican GAs are opposed on most environmental issues, and Democrats tend to support more efforts to expand federal regulatory authority, while Republicans generally oppose such measures.
That said, AGs are among the few remaining influential government officials for whom working together across party lines is almost essential to accomplishing some of their core responsibilities. This is especially true when MAs act in their capacity as enforcers of their broad regulatory authority to investigate and prosecute consumer protection, antitrust, data privacy and other matters.
Currently, the overall political makeup of the GA ranks is fairly balanced (27 Republicans to 24 Democrats, counting DC). Historically, the most high-profile AG actions have been truly bipartisan, including the 1998 Tobacco Framework Settlement Agreement focused on consumer protections (46 states and DC), the 2012 National Mortgage Settlement (49 states and DC) and the Opioid Distributor Settlement of 2022 (41 states). Currently, dozens of AGs from both political parties are lined up as plaintiffs in multiple concurrent actions against major Big Tech companies. These have made odd pairings, for example Republican Nebraska AG Doug Peterson working hand-in-hand with Democrat Colorado AG Phil Weiser to bring cutting-edge antitrust cases, and the signatures of Democrats Bob Ferguson of Washington and Karl Racine of DC appearing alongside Republicans Ken Paxton of Texas and Todd Rokita of Indiana on a data privacy complaint.
These high-profile actions are in addition to hundreds of multi-state AG investigations, many conducted by professional personnel. As we have discussed, the staff usually does not change when a new AG arrives. For the most part, ongoing litigation and investigations, often led by an executive committee made up of staff from many different states, continue independent of a new AG, even an AG of a new political party. These multistates tend to be in the areas that have the most direct and consequential impact on businesses, and typically focus on one business at a time. They transcend industries – pharmaceuticals, telecommunications, hospitality, automotive, airlines, healthcare, vitamin supplements, retail and financial services are just a few of the major industries who have recently been or are currently the subject of multi-state, bipartisan AG investigations that have resulted in billions of dollars in payments to the states. These types of actions also typically impose a dramatic injunction whereby AGs can essentially regulate entire sectors of the economy via settlement terms.
GAs are well placed to find common ground
The collaboration of AGs in these enforcement efforts is partly due to the continuity of personnel, but it is also facilitated by the backgrounds that many AGs share. The career paths of many AGs include experience that goes beyond a partisan worldview, including as former prosecutors, private practitioners, judges and businessmen. While not determinative of the impact of a given GA’s policy on their priorities and approach to the office, such experience, when coupled with GAs’ prominent roles as consumer advocates in their states, means that AGs are generally in a better position to find common ground for many initiatives than other politicians may be.
NAAG under pressure
This is not to say that the GAs always work together on these issues, or that even this bipartisanship is without political tensions. More recently, the traditionally nonpartisan National Association of Attorneys General has come under increasing pressure as several Republican AGs, including Alabama, Texas, Montana and Missouri, publicly withdrew from the organization, saying their disagreement with NAAG’s alleged “leftist” orientation and its receipt of a share of monetary payouts from recent multistate settlements—money that could have gone to the states. This practice, these Republicans say, gives NAAG an incentive to promote multistate actions instead of simply providing a forum for AG collaboration. Not all AGs seem to agree, and Democrats and Republicans have responded by expressing support for their participation in the NAAG. And even those retiring from GA Republicans have noted that they intend to continue to lead and collaborate with other GAs on national issues.
Knowing whether an AG is a Democrat or a Republican can undoubtedly serve as a basis for understanding some of an AG’s priorities. But it’s far more risky to try to draw conclusions about where a given AG will speak on a business-critical enforcement or policy issue based on political affiliation. This will remain true even if the overall political composition of the AGs shifts more in favor of Republicans in 2022 – such a change will not be as important for AG collaboration on key issues as, for example, the composition of the United States Senate will be for this organ. . The fact that an AG has a “D” or an “R” next to their name is just one of countless reasons why an AG will initiate, or even lead, bipartisan investigations and litigation against industries that fall under of its enforcement authority, as virtually all industries do. . For this reason, companies and others should make efforts to know and understand AGs on both sides of the political aisle so that they are better placed to engage AGs on any issue.