2022 Elections Guide

The Elephant (or Donkey) in the Room: Does an AG’s Party Matter?

By: Christopher J. Allen and Mira Baylson

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 four prior articles in this series play into understanding this topic, so it may be helpful (but not necessary) to read those before jumping into this piece.

AGs are inseparable from politics

Our impetus for writing this series was to help companies make sense of 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 Maine’s legislature, which uniquely elects the AG. Even in the remaining state where the AG is not elected, Tennessee, the justices of the state supreme court that select the AG are subject to retention elections. This crowded 2022 election cycle will feature not only direct AG 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 all five seats on the Tennessee Supreme Court.

AGs’ positions on issues tend to follow party lines

Partisanship, as we’ve touched on earlier in this series, does impact the positions AGs may take on issues, and how actively they become involved, typically in line with trends in national politics. Generally, Democratic AGs are vocal boosters for anti-discrimination, social justice, and pro-labor and employee initiatives. Republican AGs typically support restrictions on immigration and are actively involved in cases implicating religious liberty and gun ownership. Democratic and Republican AGs are on opposite sides of most environmental issues, and Democrats tend to support more efforts to expand federal regulatory authority while Republicans typically 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 AGs are acting in their capacity as enforcers of their broad regulatory authority to investigate and sue over consumer protection, antitrust, data privacy, and other issues.

Odd couples

Currently, the overall political composition of the AG ranks is fairly balanced (27 Republicans to 24 Democrats, counting DC). Historically, the highest profile AG actions have been truly bipartisan, including the consumer protection-driven 1998 Tobacco Master Settlement Agreement (46 states and DC), the 2012 National Mortgage Settlement (49 states and DC), and the 2022 opioid distributor settlement (41 states). Currently, dozens of AGs from both political parties are aligned as plaintiffs in several concurrent actions against major Big Tech companies. These have made for odd pairings, for example Republican Nebraska AG Doug Peterson working hand-in-hand with Democratic 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 those of 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 AG multistate investigations, largely driven by professional staff. As we’ve discussed, staff generally do not turn over when a new AG comes in. For the most part, ongoing litigation and investigations, often helmed by an Executive Committee comprised of staffers from many different states, continue irrespective 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 company at a time. They transcend industries—pharmaceuticals, telecommunications, hospitality, automobiles, airlines, healthcare, vitamin supplements, retail, and financial services are but a few of the major industries that recently have been, or currently are, the subject of bipartisan AG multistate investigations resulting in billions of dollars in payments to the states. These types of actions also typically impose dramatic injunctive relief through which AGs can essentially regulate entire sectors of the economy via settlement terms.

AGs are well-positioned to find common ground

AGs’ collaboration on these enforcement efforts is in part attributable to staff continuity, but is also facilitated by the background many AGs share. Many AGs’ career paths include experience that goes beyond a partisan worldview, including serving as former prosecutors, private practitioners, judges, and businesspeople. While not determinative of the impact of a given AG’s politics on their priorities and approach to office, such experience, when paired with AGs’ preeminent roles as protectors of the consumers in their states, means that AGs typically better positioned to find common ground for many initiatives than other politicians may be.

NAAG under pressure

That is not to say AGs always work together on such issues, or that even this bipartisanship is without its political tensions. Most recently, the traditionally non-partisan National Association of Attorneys General has come under increasing strain as several Republican AGs, including Alabama, Texas, Montana and Missouri, have publicly withdrawn from the organization, asserting disagreement with NAAG’s purported “leftwing” focus and its receipt of a share of monetary payments from recent multistate settlements—money that could have gone to the states. That practice, these Republicans have alleged, gives NAAG an incentive to promote multistate actions as opposed to merely providing a forum for AG collaboration. Not all AGs appear to agree, and both Democrats and Republicans have responded by voicing support of their participation in NAAG. And even those withdrawing Republican AGs have noted that they intend to continue to lead and collaborate with other AGs on national issues.

Knowing whether an AG is a Democrat or Republican can serve as a baseline for understanding some of an AGs’ priorities, without doubt. But it is much riskier to try to draw conclusions as to where a given AG will come down on an enforcement or policy issue critical to business based on political affiliation. That will remain true even if the overall political composition of AGs shifts further in Republicans’ favor in 2022—such a change will not be as significant for AGs’ collaboration on key issues as, say, the composition of the U.S. Senate will for that body. Whether an AG has a “D” or “R” next to their name is only one of myriad reasons why an AG will engage, or even lead, bipartisan investigations and litigations against industries that fall under their enforcement authority, as virtually every industry does. For that reason, businesses and others should make efforts to know and understand AGs on both sides of the political aisle so they can be best positioned to engage AGs on any issue.