OZY on the Trail: Attorneys General Are Becoming America’s Most Powerful Free Agents
WHY YOU SHOULD CARE
Because a state’s top lawyer commands the courtroom and the political agenda.
By Nick Fouriezos
In West Virginia, Democratic candidate Doug Reynolds and his camp have called their incumbent opponent a “dishonest, corrupt, self-serving politician.” Over in Missouri, attack ads in the primary between Kurt Schaefer and Josh Hawley implied that one worked for a terrorist while the other was a secret Chinese sympathizer. And in Pennsylvania — where locals such as 39-year-old Jim Klinedinst say they’re sick of a slew of statehouse scandals — the current officeholder, Democrat Kathleen Kane, was recently found guilty of nine criminal charges.
No, these aren’t your typical politicians — they’re attorney general hopefuls, competing in 10 states across the country to be the people charged with protecting and enforcing the law. In an election that’s been dominated by news about the presidential battle, these are the people who could actually affect your life most directly. In the past year alone, the decisions of attorneys general have been felt across America, in its farmlands and its hospitals, its pill labs and its marriage courts. The job title has evolved from a posture of defense — with historical roots going back to the need for colonies to defend themselves legally against the king — to offense.
Conservatives, such as Louisiana’s Buddy Caldwell and Nebraska’s Doug Peterson, have used the position to fight Obamacare and wage wars with the federal government over water rights. Liberals have crafted career-making stances by refusing to defend legislation they disagree with, as Roy Cooper did when he criticized the transgender-bathroom law signed by Pat McCrory, whose governorship Cooper is now challenging in North Carolina. “They were always seen as stepping-stone positions, but the position means a lot more nowadays,” says Paul Nolette, an assistant professor at Marquette University and the author of Federalism on Trial, which studies state litigators’ increased influence on federal policy.
Attorneys general may be some of the most underrated influencers in government.
Certainly, litigators on both sides will argue that they are legally sound in their crusades. “You want to be clear that your role is not to be a lawmaker, but rather to uphold the law,” Josh Shapiro, the Democratic nominee in the attorney general race in Pennsylvania, tells OZY. Still, the work of attorneys general has increasingly become more partisan, says Nolette. Democrats have mulled using that latitude to advance pet causes like suing Wall Street or discouraging fracking. Hoping to show their conservative bona fides to constituents at home, Republican attorneys general have used litigation to oppose what they see as federal overreach, pushing back against the implementation of Obamacare, for example, or batting back regulatory efforts by the Environmental Protection Agency.
For the evolving definition of this post, look no further than Democrat Maura Healey, the gregarious “people’s lawyer” of Massachusetts. The former professional basketballer has been aggressive in her first term, setting regulations to fight opioid abuse and restrict fantasy-football betting. Her progressive championing has many seeing her as heir apparent to Elizabeth Warren’s Senate seat, should she want it one day. But suggest, as one critic did, that she may be playing timid on some issues, and she is indignant. “If anything, I’ve been talked about as incredibly active,” she has previously told OZY, before listing half a dozen of her protecting-the-people creds. Then there’s the job description painted by Georgia’s Sam Olens, a Republican who has said attorneys general should protect precedent over trying to advance agendas. “Day in and day out, the job of a lawyer isn’t partisan. You’re defending the law,” Olens has said, though his staff didn’t respond to a request to comment here.
Despite their newfound willingness to act boldly, attorneys general are still among the most underrated influencers in government. They are beholden to virtually nobody when it comes to deciding what legislation to ignore or pursue, experts say, decisions that often have millions of dollars at stake. Policy advocates have shifted their strategies to the courts as a way to get around legislatures mired in partisan gridlock. They have “the ability to act, and act nimbly,” as Shapiro puts it, allowing them to be “a force for positive change in a way few other people can.”
But their independence also opens them up to accusations of corruption. Seeming quid-pro-quo cases exist, as some say appears to be the case with Pam Bondi, the Florida attorney general critics accuse of declining to investigate Trump University after receiving a large donation from Donald Trump’s charity. (A spokesperson for Bondi’s office didn’t respond to our request for comment ahead of publication but later said that this matter was properly handled by staff and never rose to Bondi’s level.) In Pennsylvania, Kane, whom Shapiro is looking to succeed, was recently found guilty of leaking grand jury information to discredit a political rival, among other crimes. More common is “pay-to-play politics,” Nolette says, where big businesses donate millions — to the Republican Attorneys General Association, Democratic Attorneys General Association or both — with the hope of escaping or limiting litigation later.
Even though the position was once unheralded and less political, it has now become a jumping pad to national stardom. California’s top cop, Kamala Harris, used her title to enforce truancy laws, hoping to decrease dropouts and crime rates. Her work “greatly improved the education system there,” says Carmel Martin, a top policy director for the Center for American Progress, and is an example of the creative legal maneuvering possible for attorneys general. And after winning more than $20 billion for California in a federal settlement, Harris is now the prohibitive favorite to become the state’s next senator.