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Season Finale: 2022 AG Election Wrap-Up

Bernie makes his final predictions before we return after the 2022 general election to analyze the results. He, Lori and Mira review the incumbents and the challengers, talk about who may ride in on whose coattails, and speculate on the make-up of what looks like a bumper freshman class of AGs entering office in 2023.

PRODUCED IN COLLABORATION WITH:

Chris Allen, Member, Executive Producer

Hannah Cornett, Associate

Suzette Bradbury, Director of Practice Group Marketing (State AG Group)

Elisabeth Hill Hodish, Policy Analyst

Legal Internet Solutions Incorporated

Transcript

Bernie

State Attorneys General, once little known officials, have emerged as legal and political juggernauts across the country; they make headlines every single day and they continue to grow in power and influence. As their states’ chief legal officers, AGs wield broad authority to investigate virtually any business practice across every single industry. Every company, including yours, that hires employees, makes or markets a product or service, interfaces with consumers, or contracts with the government, may be and likely will be subject to scrutiny by an AG. If your company fits into one of those categories, and everyone does, this podcast is definitely for you.

Lori

Welcome to State AG Pulse, presented by Cozen O’Connor’s State AG group, and proudly hosted by Bernie Nash.

Bernie

That’s me.

Lori

And Lori Kalani, and that’s me. State AG Pulse is a limited series podcast that will leverage our decades of experience to help business leaders navigate the upcoming 2022 state AG elections and understand and manage the related opportunities and risks. So now let’s jump right into this week’s episode. Welcome back to the State AG Pulse podcast. I’m Lori Kalani and I’m here with Bernie Nash, my law partner and Mira Baylson, my law partner. Welcome everybody.

Bernie

Thank you, Lori.

Mira

Thanks Lori.

Lori

Mira and Bernie, last week you and Milton evaluated the open seat race in the Commonwealth of Massachusetts, where General Maura Healey is running for governor. Great episode. Thanks for that. Milton was able to provide his invaluable insights from his time working in the Massachusetts AG’s office. And I think Milton may have made somewhat of a prediction, but I’m not sure about that. Bernie, you still probably remain our predictor-in-chief. I think that’s what we call you?

Bernie

Indeed. And I’ll give kudos to our friend and partner Milton, because shifting away from the Massachusetts episode, the Maryland primary was recently decided, and Milton didn’t quite say exactly who the winner would be, but he was very clear that Anthony Brown had the edge. He had more voters in his district, et cetera, et cetera. And Anthony Brown did win by a landslide. So Milton was spot on in his one very firm prediction.

Lori

Semi-prediction.

Bernie

I have a lot of predictions to make, but this is not the time for it. Towards the end, I’m going to wrap up. I’m going to give you the entire country. Yeah. But we’ll do this at the end.

Lori

Okay. Yeah. I can’t wait to hear that. That’s a surprise to me, the prediction for the entire country. Include some lottery numbers there, if you would. So today is really our finale in our election series and really the lead up to our next episode, which will be after the general election in November, where we can criticize Bernie’s predictions or tell him how brilliant he is. But in the meantime, I just wanted to sort of recap where we’ve been. Today is our 13th episode. I think we’ve talked about 30 states over the last several months. And if I’m adding up the minutes right, I think our listeners have heard 328 minutes of content. Bernie and I have been really pleased to be joined by eight of our Cozen partners and we’ve had some guests from outside of Cozen who have helped us make these episodes really informative. And just to add a few more numbers on, this is like the Southwest Airlines magazine where it’s Southwest by the numbers, that back page. We’ve talked about 65 Republican candidates, 42 Democrat candidates. Now you know what airline I fly. And I think over the term of this podcast, there’s been about 17 million primary votes, or at least somewhere around there, right? It’s a decimal point. So there’s been a lot covered here. And Bernie, Mira, I know Mira you’ve joined us on a number of these episodes, I’d love to hear from you on what you think some of the highlights are and takeaways from those episodes.

Mira

Yeah. First, so thrilled to be back for this last podcast before the primaries wrap up and before the general election. I’ll tell you, some of my favorite episodes were not the ones that I was involved in, although they were great. My favorites were the ones with Sean Rankin and Pete Bisbee, so, respectively from DAGA and RAGA, who came on and talked about what the year in elections looks like for them. Both are admittedly partisan, and I felt like that was really great to hear their takes. Both, I think, were a little overconfident, but I guess that remains to be seen. But I thought that those were really stellar podcasts and taught me a lot, not just about what might happen, but really what the parties are thinking about the upcoming elections. Bernie, what about you?

Bernie

I think that November elections will prove them, as you said, to be overly exuberant regarding what’s going to happen to their favorite candidates. But I guess they’re paid to be overly exuberant and create the excitement. I think that some interesting things that we have not talked about should be mentioned. Most recently there’s been lots of controversy about NAAG, DAGA and RAGA. Well NAAG finally, after several months of interviews has hired a new executive director, Brian Kane, the chief deputy of the state of Idaho. So it’ll be quite interesting to see if the NAAG turmoil dissipates or not. My prediction about that is that NAAG will not disintegrate, NAAG will continue to exist, but I think it will exist in a restructured and reduced format and something will be done with respect to the several hundred million dollars of tobacco and other funds that it is holding. I think the Republicans are pretty firm about the changes that have to be made. I do believe other Republican states will leave, will come close to leaving. But I do believe, under Brian’s leadership, some consensus might be found provided that the NAAG membership, and of course, those are the AGs, provided the membership agrees to restructure and limit the objectives and mission of NAAG. So that’s my prediction regarding NAAG. It’s a very important institution, it’s been around for almost 100 years. And just like the National Governors Association exists, the National Association of State Secretaries, the National Association of Secretaries of State, I think there’ll be a NAAG, but in a reduced format. Another observation is for the first time ever, there will be four former United States congressmen sitting together as state attorneys general. Jeff Landry from Louisiana is an attorney general, is a former Congressman. Todd Rokita from Indiana is a former congressman. And after the November elections, General Griffin of Arkansas will be joining us and General Labrador of Idaho.

Lori

Bernie, you missed one. Keith Ellison.

Bernie

So for the first time ever, there will be five. I love to be corrected. So my first prediction is already wrong. They’re going to be five, not four. But there will be, for the first time ever, five former Congressman. Thank you, Lori.

Lori

I thought you were going to say for the first time ever you’ve been wrong.

Bernie

No, it’s the second time ever. But the first time this year. And the other observation regarding that, is previously, there was four United-

Lori

Wait, sorry. I was wrong too. Rob Bonta.

Bernie

Who just texted you?

Lori

Nobody.

Mira

Wait. Wasn’t Rob Bonta state Senate, not United States.

Lori

He was both.

Mira

He was a congressman as well?

Lori

No, he wasn’t. Shoot, I was mixing him up with General Becerra. All right. See, okay. Sorry about that. I should stop while I’m ahead. All right.

Mira

Folks at home, even the pros get it confused. There are just too many to keep straight.

Bernie

And so while we’ll have five former congressmen sitting come the November election, there will only be two former United States Attorneys sitting. And ironically, it’s from the states of North Dakota and South Dakota. So how’s that for a bit of trivia.

Lori

Not bad, not bad. Yeah. And I should just mention South Dakota, the AG after the election will be Marty Jackley, who is the former AG of South Dakota and is now coming back and does not have an opponent. So he is the guy and we’ll welcome him back and enjoy working with him. One of my favorite episodes was the one that, Mira, you and I did with Frankie Sue Del Papa and Betty Montgomery. I just thought it was a blast to the past and in a lot of ways and very interesting to get their perspective on bipartisanship. And I agree with you that the RAGA and DAGA episodes were great, but it’s funny because when I think about this stuff, I’m thinking about how does every election, how does every candidate affect our clients’ business? How does it affect the business community? What does that mean trend-wise or priority-wise? And obviously, Pete Bisbee and Sean Rankin, not a word. That’s probably what made those interesting episodes and make me just a complete geek. But I guess it is what it is. So with that, that’s a good segue just to say again, well, I think even more so than when we started, and we said AGs have huge influence. I think every day that goes by you turn on the news, you see it. It’s national news. I think even more so than a few months ago, with the Dobbs decision, with redistricting, you see that AGs really are, and frankly with people leaving Congress to run for these seats, I think you just see the enormous influence that AGs have and will continue to have moving on into the future.

Bernie

And it’s not just social policy, it’s also critical legal issues about the so-called regulatory state and the entrenched staff and the extent to which the independent agencies are creating law rather than executing the laws enacted by Congress. Kudos to Attorney General Morrisey of West Virginia, who for years was strategizing and developing cases, which one finally got to the Supreme Court, which effectively overturned Chevron in West Virginia versus EPA. And so that’s, I don’t want to say as important as Dobbs. To me, Dobbs was a negative decision. It might have been legally correct, but it’s a horrible impact upon more than half our population. But in terms of the impact upon the business community and the deference to regulatory agencies, West Virginia made a major, major change in the law before the Supreme Court.

Lori

Yeah. I agree with that. And I’ll just say, I said Dobbs, and certainly, it’s a social issue, but my head has been spinning about all the legal issues that are going to come out of that, with respect to employers and with respect to insurers. And I’m sure there’s multiple parties I’m not thinking of, but I think that’s going to fall right into the hands of AGs and I talked with a couple of them who pick up the phone and say they’re running to the next hearing in their own states. So this is very fast moving and I think there’s going to be a lot of AG involvement around implementing where we end up today, right Mira?

Mira

Absolutely. And I think, myself included, a lot of Americans feel like there is nothing happening in Washington, DC. There is gridlock. And it’s been like that for the last four years. And you look at AGs and they are nimbler. And with regards to things like response to COVID and even response to Dobbs, although I’ve been disenchanted by a lot of the AGs’ actions, certainly they are moving faster. They are being responsive to their constituents. They’re being responsive, both people and businesses, and you really can see why it is a position that someone who’s in Congress would leave to come be in charge of. Because they really are making fast decisions that are going to impact everyone in their state. And Dobbs is an example, the Chevron decision being overturned as an example. COVID, we saw the AGs step up and deal with price gouging immediately. That was amazing, I thought. We saw them dealing with workers’ issues in terms of being safe during COVID and things like that. Kudos to them, and I think that because of that power, you’re seeing all these people who, getting to Washington was the goal, but I think that’s really changing, and we’re seeing that. And I’ll just say, back to the Dobbs thing, Lori, to your point, I think you’re right about employers and insurance and AGs are really going to be in the middle of it because so much of this includes a criminal component. And you see some of the new laws that are being enacted and they’re calling on the AG to criminally enforce people who are assisting, crossing state lines and things like that. That is going to run directly into the stated policies of probably 100 of the top 100 companies in America. So they are gaining prominence and importance, not losing it, as this election comes to a head.

Bernie

And I would add because of the gridlock and the AG stepping to the fore across a whole host of issues, the traditional law enforcement, but as well as these policy issues through the rule of law, that also has led to a clash and a difference of opinions, politically, and policy-wise between Democratic and Republican AGs. Not 100%, not every single one, but by and large, which has also led to the fracturing of NAAG, and oftentimes, we forget that while they are disagreeing on policy and political matters, they do come together as a unified force with respect to more traditional law enforcement, as they’ve done in the past. You still have collaboration across party lines on multistates with respect to consumer protection and antitrust, particularly. So while there is a clash and a cleavage, there’s still some bipartisanship going on with respect to the more traditional law enforcement functions.

Mira

Lori and Bernie, let me ask you guys a question I’ve been thinking about. We often talk about top of the ticket controlling the down-ticket, right? So we talk about the governor’s race being the most important to decide who’s going to end up being AG, for example. Based on the prominence that the AG is gaining, I almost feel like it’s going to shift a little bit, right? Like that the AG might be influencing the governor a bit. Not in like a blue state like Massachusetts, but what I’ll call the purple states. So who’s going to replace Arizona AG, Mark Brnovich, is critical, I think. And I wonder if that’s also going to influence who is going to be taking the US Senate seat, for example, in that same state. Do you think that’s relevant at all? Or am I making too much of the AG’s position?

Lori

That’s really interesting Mira. I think we’re still too early. And although we know who all the state AGs are, I think lots of people still, just your average citizen, doesn’t necessarily know until around election season when they see all the commercials and have the candidates knocking on their doors. But I do think that there may be more coordination at some point or more of an election, a campaign strategy around trying to tie the two together. And I think there is some of that. I think there were some of that in Oklahoma where they were tying the AG to the governor. So to your point, maybe not for the right reasons, but I do think that ask me that question five years from now, or maybe eight years from now and I think that you will see more of that. And I’ll let Bernie also answer, and then I want to talk about Senate races because that’ll raise Nevada, where I think there’s a lot to talk about. But go ahead, Bernie.

Bernie

Not surprisingly, I agree with Lori. I think we are years away from that for a lot of reasons. One, money talks and X, Y, Z walks. I won’t say what the X, Y, Z is. And the top of the ticket, the gubernatorial and center races bring in tens and hundreds of millions of dollars to those races and the AGs have never been able to raise anything close to that. And I don’t think that’s going to change in the near term. Also, you have party line voting, and that’s why you see if governor X wins by a very large margin, oftentimes, that carries the AG with him or her. And so I think we are years away from seeing governors riding on an AG’s coattails.

Lori

Yeah. But it’ll definitely be here. I’ve been thinking about Nevada and obviously, the U.S. Senate race is one of the most important U.S. Senate races out there. And I know there’s a ton of attention being given to that race, that’s Catherine Cortez Masto, the former AG for the state of Nevada, who’s the incumbent U.S. Senator. And she’s being challenged by Adam Laxalt, also the former attorney general of the state of Nevada. And I think that’s been a very close race, and I think a lot about Aaron Ford, the Nevada attorney general, who’s got a Republican challenger, and how all the money and all the attention in the state being spent on that U.S. Senate race could impact the merits of the AG race. But I also thought, okay, so if you have Catherine Cortez Masto and Adam Laxalt, and let’s just say, Adam Laxalt were to win, according to Bernie’s theory, that might mean that the Republican would win for AG. But I started thinking maybe not, maybe that’s just not the case. Aaron Ford’s done such a great job, and I think he’s been really well received in Nevada, that maybe he can pull that out, which I certainly hope that he would.

Bernie

Well to interrupt for a second, if Adam Laxalt wins by four or five points, that is going to make a difference in Aaron’s race. But if I expect, the Senate race is going to be a nailbiter, a hair-splitter, counting the ballots three days later, then there won’t be coattails to carry Aaron one way or the other the way I see it. So I can easily see Aaron winning if Adam wins, as long as it’s nailbiter race.

Lori

So speaking of nailbiters, I always say election night is always like my least favorite night of the year, because it’s just nerve-wracking, and I want answers now and it never comes quick enough. So I think we’ve made some predictions and actually, there’s a couple of states with respect to AG elections, where it’s already decided because there’s no major party opponent. And that would be DC, Brian Schwalb, South Dakota, who I mentioned earlier, Marty Jackley has no opponent, Mike Hilgers in the State of Nebraska and Gentner Drummond in Oklahoma.

Bernie

Well, I love predictions as you’ve heard. And we’ve talked a little bit about predictions in some of the races. I think incumbents are going to have a banner year. I think 14 incumbent AGs running for reelection will win. There are, in my mind, three tight races that are really hard to predict right now, because there are different things that will impact the result. And they are Georgia, Iowa, and Nevada. And we spoke a bit about Nevada. They’re going to be tight, tight races. And if you all want to know which incumbent will lose, you need to pay attention to what happens early November, when the people vote. Now with respect to the open seats, I think there are 12 open seats and a number of them are pretty clear, Arkansas, North Dakota, Idaho, Maryland, Massachusetts. But I think that there are two open seats that may change parties, Arizona and Kansas. With respect to Kansas, if Kris Kobach is the Republican nominee for attorney general, and I’ll stand by my prediction, I don’t think he will, but he easily could be the candidate, I think Kansas could be a nailbiter as well and that party may change. I think Derek Schmidt, the sitting attorney general running for governor, will win. And I don’t know if his coattails will be long enough, if Kris Kobach is the candidate. And then we have six states where attorneys general are not elected by the people. One AG, Maine is elected by the Legislature. One state, Tennessee, is elected by the Supreme Court. We’re going to have a Supreme Court announcement I would say any day now, or certainly within the next couple of weeks, with respect to who the next AG will be, because General Slatery has announced that he is not running, not interested in serving another term.

Lori

And Bernie, that’s a six year term. I just wanted to add that will be a six year term.

Bernie

Yes, that’s the longest term.

Lori

Yes.

Bernie

We have mainly four, but we have a couple twos. And then we have Alaska, Hawaii, New Hampshire and Wyoming, all appointed by the governor. There will be new governors in some of those states. So I think we’re going to have new AGs in at least two of those states, potentially three, but the parties will not change, meaning I don’t think if they have a Democratic governor, he or she will be replaced by a Republican or vice versa.

Lori

Yeah. I don’t disagree with that. And obviously, the Arizona and Kansas primaries are taking place tomorrow, and I think the last primary will be very late in Massachusetts, on September 6th.

Bernie

And then of course, tell us about Pennsylvania, Mira, because you are resident in Pennsylvania, you know the candidates up and down the ballot, and you vote there. Tell us about who the next attorney general might be.

Lori

I just have to say Mira is a super resident of Pennsylvania. She is all things Pennsylvania, for anyone listening, if you ever need recommendations on where to eat in Pennsylvania, go on the web and find Mira’s email address and she will hook you up.

Mira

I do have strong feelings, that’s for sure. And I do want to, in all candor, I both volunteer for the current AG, Josh Shapiro’s, gubernatorial campaign, and also for the current Lieutenant Governor, John Fetterman’s, Senate campaign. So the election in Pennsylvania is extremely fraught right now. There’s not an AG election, but if AG Shapiro wins the gubernatorial election, then he will obviously leave his position. He will appoint his successor and then there will be an AG race shortly thereafter. People are already, posturing is the wrong word, people are already lining up to throw their hat in the AG race. And there are people, I can name at least three in Philadelphia, one in Delaware County, one in Pittsburgh who are really already talking about how they would be the right candidate for AG. I think that some of the Republican candidates who didn’t make it through the primary for the gubernatorial race are also going to throw their hat in. This all goes to our basic point that people see the AG office really as a stepping stone to bigger and better things. You’re going to see that in Pennsylvania in spades, when hopefully, fingers crossed, the AG spot opens up. But to the point earlier Bernie made about the coattails in Nevada, and you could see the Republican winning the governor, but AG Ford winning AG. I have fears that you might see a similar thing happening in Pennsylvania in that you might see people voting for the Democrat for governor, but then the Republican for Senator, or, God forbid, vice versa. And so it’s really going to be interesting. And obviously, Pennsylvania is critical for the upcoming 2024 presidential election as well. So, as Pennsylvania goes, I think the rest of the nation goes, and I think you could say the same thing about Arizona too.

Lori

So will that be a special election?

Bernie

There’s not a special election. The governor appoints a person to fill the unexpired term of the AG who leaves. And so it’s quite easy; that Josh Shapiro will decide he wants X to be a candidate to run because he wants X to be his AG while he’s governor. I’m not speaking for Josh. I have no idea what his thinking is, but there’s no requirement. It has been past practice in Pennsylvania, but not every place.

Mira

Yeah. Common thought is that it would be Shapiro’s first assistant deputy, who is Michelle Henry. And by all accounts, she’s very well liked and very well supported in the office. So who knows if that’s the case, but it’s similar to what’s going on in Missouri where the AG is also there running for Senate. Is that correct? Did I get that right.

Lori

That’s right.

Mira

So we’re going to see a similar thing. So even though there aren’t actually AG elections in those two states, very well, we could have a new AG, come November, which would just add to sort of this whole new class of AGs who need to get in, need to get situated and need to get, from our perspective, educated about a lot of the businesses that they’re going to be involved with.

Lori

Right. Like I said, I was talking to Marty Jackley, who has not been out of office that long and is now returning to the AG’s office. And we were standing in a room where there were a lot of AGs and he said, “I only know about half these people.” And so I thought that was really interesting. So as slow as the days go by sometimes, and as hard as the issues are, and as many times as we sit across the table from an AG, things do change quickly and there is that transition period. And I wish that our partner, Jerry Kilgore, would’ve been able to join us today because I think we would’ve had a great conversation about transitions because once that election is over, on election night or three days later, the transition starts. And I think that really is something we, at Cozen O’Connor, pay a lot of attention to because that’s when the executive staff is appointed and you can see, if it’s visible, and usually it is to us, how those offices are being set up or how they’re being changed or not changed. And Jerry, being a former AG himself and having to transition in, and having most recently run the transition for Jason Miyares in Virginia, when he won last year and prevailed against Mark Herring, I think Jerry would’ve been great to talk to us about transitions, and like I said, how things change or how things stay the same. But I think we will have Jerry back when we come back, right after the election, to talk about everything that happened and how surprised we are about some things and not other things. And I think I need to put on my agenda that we should really focus a little time on transitions, because I do think that’s an important time, not just for the AGs, but for clients who have matters in front of those offices, because sometimes the children play when the boss is away, essentially. And so things happen in offices, what do they call that, lame duck? And in Congress, certain strange things happen and we try to obviously put a force field around our clients to make sure it does or doesn’t happen depending on what the objective is.

Bernie

And I have a little interesting, to me it’s anyway, it’s an interesting, if not funny anecdote going to how quickly things change. So Lori and I spent a little time recently with Raúl Labrador, the next Idaho attorney general, actually. He recently won a primary and upset the incumbent, Lawrence Wasden. But he has a Democratic candidate. But because the Democratic candidate perceived to be so weak, the party is now putting pressure on the Democratic candidate to step down so they can appoint and substitute someone else to run against Raúl Labrador. So while Raúl is now prepared for his race, he’s not sure who the candidate is going to be, who his opponent’s going to be, even though the Democratic primary is over. So I find that’s fascinating to me because I didn’t even know that could happen. I’m not sure why the Democratic party wanted to put a lot of money into a race in Idaho. It’s been many years since George McGovern became the presidential candidate, but so be it.

Lori

I think there’s a lot about to happen and I’m pretty excited about it. And while we won’t be back on the air for a few months, I just want to make sure we’re thanking some of the people who have we’ve mentioned earlier today and that would be Sean Rankin from DAGA and Pete Bisbee from RAGA, and certainly Karen White, the fabulous Karen White, who really opened this series with us and gave us some history on the AG space. She’s got a lot of history there and experience. So we were grateful for her to visit with us. And as I mentioned our guests, when Mira and I spoke with Frankie Sue Del Papa from Nevada, former AG there, and Betty Montgomery from Ohio, the two of them served together a number of years ago. And all of them were so gracious with their time to join us and provide their insight and experience and predictions and some great stories. So thank you to everybody who has joined us. Thank you to our listeners for joining us for those 328 minutes of very exciting content. And please look for announcements on when we’ll be back after the general.

Bernie

And I join Lori in thanking our audience. I look forward to our post-election forecast, which will be a day or two after the election, where we can kind of assess how well we predicted and what we foresee 2023 to be like, with all the new AGs.

Lori

Mira, thanks for joining us today.

Mira

Thanks, as always, for having me guys. Great time.

Lori

Talk to you all soon.

Lori

You have been listening to State AG Pulse, brought to you by Cozen O’Connor’s State AG Group. Research for this podcast was provided by our associates, Ryan Bottegal, Hannah Cornett, Gianna Puccinelli, and Keturah Taylor, as well as our policy analyst, Elisabeth Hill Hodish. If you enjoyed this week’s episode, please leave us a five star rating and review. That will help our visibility and will allow other listeners to learn about the podcast.

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