The 2022 primary election cycle has now wrapped up. Much of the focus, as primary election days have come and gone, has been on the winners and the losers. But some other interesting trends and themes have emerged over the course of the last nine months. In this last article in our 2022 Elections Guide series, we explore some of these trends and themes in conversations with members of the State AG Group. We asked our team what they thought, and here are their answers. Spoiler Alert: they don’t always agree with one another!
With inflationary winds still blowing, the housing sector weakening and real GDP declining in the first half of 2022, what impact do you think the economy will have on the outcomes of this year’s AG elections?
Ann-Marie Luciano: “It’s the economy, stupid” appeared to be the mantra going into the primaries, with Biden and the Democrats suffering in the polls, particularly when gas prices soared. The political winds changed dramatically post-Dobbs, with many states reporting significant increases in new voter registrations for women. Voter turnout in special elections this summer has brought unexpected victories for Democrats.
Jerry Kilgore: The state attorney general doesn’t generally deal with economic issues. With that in mind, as voters decide how to vote in their state, we may see them linking the vote for governor with their vote for state AG to demonstrate their concern about the state of the economy.
Ann-Marie Luciano: But voters are tracking issues that state AGs can influence. Recent polls have shown abortion and gun policies are now a top concern for voters in addition to the economy. States with abortion issues on the ballot (e.g., Michigan & Vermont) also will likely garner higher voter turnout among Democrats and independents than typical years, which could influence the outcome of close races.
Speaking of Dobbs, how do you see Dobbs affecting the priorities of incoming AGs? Should businesses expect enforcement priority changes?
Ann-Marie Luciano: We’ve already seen current AGs talk about the effect of Dobbs on their priorities, like the California AG issuing warnings for businesses who keep data on consumers, particularly health and location data. AGs from both parties have talked about what they’d do to either support legislation to further restrict abortion or protect access. We should expect Democratic AGs to focus on protecting consumers from the harm caused by sharing their health and location data, and Republican AGs to focus on supporting legislative efforts to further restrict abortion access.
How, if at all, do you think privacy concerns in a post-Dobbs environment will affect the outcome of state AG races?
Mira Baylson: The Dobbs opinion set the stage for a very different midterm elections race and we are already seeing that impact in the state AG races. A red wave was assumed in the state AG space, but the Democratic candidates, particularly incumbents, have shown resilience and are leading in most races. Money is coming in from all sides as voters realize that state by state, reproductive rights are at stake. The privacy aspects that arise from such concerns are myriad, including overreach of big tech/law enforcement and big government invading the doctor’s office. Because of the issues now under the state AG’s purview (and those include the right to vote in several states), people are much more focused on ensuring their state AG is in line with their political values; this focus will only increase the pressure candidates and voters feel to get out the vote. While increased engagement in elections is always a good thing, for many, these elections feel like a litmus test as to whether their state truly allows self-governance.
What is the one piece of advice that you would give to businesses as we approach election day 2022?
Chris Allen: Regardless of who wins, the time to start building relationships is now. The idea that a company can (or even should) remain under an AG’s radar ignores what those of us who have worked with or for state AGs have known for years: the AGs enjoy extremely broad authority, equally diverse interests, and nearly unilateral power. Any of the multiple ways an issue can come to an AG’s attention—a story in the news, consumer complaints, discussion with other AGs through national AG organizations, or lobbying by competitors/advocacy groups—can bring the full investigative and enforcement weight of the office to bear on virtually any business in the country.
As a large number of new AGs prepare to assume office in 2023, businesses have an opportunity to play offense (for once) by introducing themselves and their business, which allows the business to identify and understand AGs’ concerns before they become problems, as well as to understand the AGs’ interests. These conversations also help companies identify opportunities for working collaboratively with the states, while leveraging the AGs’ significant legal and policy influence. And the best time to reach out is now, or at the very latest as soon as the AG-elect has their key front office staff selected, so that the company not only has a touch-point with the AG, but also with the officials who run the office day-to-day.
At least 14 new AGs will take office in January 2023. What steps should businesses be taking now to prepare? When is the best time to connect with an incoming AG?
Keturah Taylor: With each AG administration change comes an opportunity for businesses dealing with that office—whether in litigation, a formal investigation, or an informal inquiry—to reassess and adjust their strategy. Even if the new AG belongs to the same political party as their predecessor, enforcement priorities will change and the incoming AG will be eager to direct resources towards achieving their campaign promises, and potentially be open to resolving matters that do not align with those priorities.
Of course, career AG staff tend to press forward with their lawsuits and investigations regardless of an administration change, but the AG and their high-level deputies can impact strategic decisions like willingness to settle, whether an appeal is taken, or whether to turn an informal inquiry into an investigation. Businesses should carefully consider the policies and priorities of the incoming AG in any state where they are involved in litigation, an investigation, or an informal inquiry, and work with their State AG counsel to leverage these changes to their advantage.
While AGs often disagree on policy and political matters along partisan lines, they often come together as a unified force with respect to public safety and in consumer protection and antitrust multistates. Based on what we’ve seen this election cycle, do you predict more or less bipartisanship in 2023?
Meghan Stoppel: I think we may see less bipartisanship for a couple reasons. First, we have already seen primary voters reject the more moderate candidates in their respective parties. This happened in Idaho where Republican voters chose Raul Labrador over incumbent Republican AG Lawrence Wasden. It also happened in the open Republican primary in Kansas where voters chose Kris Kobach over his two challengers. If elected, I would expect these candidates to focus on their campaign promises and not building consensus with their Democratic colleagues – at least not in 2023. Second, as we approach the 2024 presidential election, we’re going to see fewer Republican AGs willing to do anything that ostensibly supports the current administration, and some Republican AGs will feel increasing pressure to do exactly the opposite – including those who take office in 2023. Democratic AGs, in contrast, may feel compelled to do exactly the opposite, either in terms of defending the current administration or simply drawing the public’s attention to certain issues.
Paul Connell: At the same time, there is no evidence that as the political parties move further right and left, respectively, that AG offices – and here I mean particularly staff – will alter how they function when it comes to multistate investigations, litigation, and settlements. Savvy businesses and AG practitioners know that while AGs grab headlines via press releases and set an overall agenda for their office, it is the appointed front office staff and career AAGs in consumer protection/antitrust that drive these types of cases and settlements. As a result, this is probably not appropriately described as “bipartisanship” as much as it is simply the continuous functioning in the AG space as it has since the 1990s.
While AGs come and go, career staff remain in place often for 20 years or more, and it is a fact that businesses will always have legal issues involving AGs across a broad spectrum of the economy. As a result, no matter the partisan split of AGs between the parties or how polarizing certain AGs might be on an individual basis, AGs and the business community both benefit from an overall coordinated approach to resolve complex issues across the states. That isn’t bipartisanship. It is everyone agreeing there is no other way for large matters to be investigated, litigated, and resolved.
How much of the voting in the AG primaries reflects national politics versus more local concerns, and how will that carry forward into the general election?
Jerry Kilgore: Much of the voting in the state AG primaries reflected what was going on within the respective national political parties. Former President Trump’s endorsements carried a lot of weight in the primaries, particularly the open seats. On the Democrat side, those candidates that moved more to the progressive side of the spectrum seemed to fare better in these primaries.
Ann-Marie Luciano: Although there are certain local issues that garner the most attention, the AGs generally report that the top consumer complaint-driven issues are national in nature. AGs will continue to respond to the consumer protection issues that generate the most complaints to their offices, and that makes sense because their focus is to be responsive to the latest examples of consumer harm. In addition to addressing local issues, it’s likely that AGs also will continue to pursue their partisan interests when politically expedient.
The State AG Group will be tracking state AG election results live on general election night, November 8, and updating the results in real time based on AP-verified data. Be sure to check back on our website as the night unfolds, and listen to our post-election podcast on State AG Pulse for further analysis of the business impacts.