Your State Attorney General Really Matters

Lots of power, lots of moves to higher office, not much voter attention.

Photo credit: Gage Skidmore

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A 2018 survey by political scientists at Johns Hopkins University showed that, even though most Americans trust in and approve of the job their state government is doing, they also know precious little about how that state government operates or who their state-level officials are.

That becomes especially true once residents get beyond the higher-profile state offices such as governor, with one third of survey respondents not sure which offices they vote for come Election Day, never mind which candidates are on the ballot.

This came to mind this week with the news that Vice President Kamala Harris is all but the presumptive Democratic Party nominee for president, having consolidated support across the party following President Joe Biden’s decision not to run for a second term. Harris first came to national prominence as the attorney general of California, an office she held before winning a U.S. Senate seat and then the vice presidency.

To be clear, I will not be prognosticating at all on Harris’ chances, record, or the wisdom of Democrats coalescing around her. You can get plenty of that elsewhere, and honestly, anyone predicting with any confidence how the presidential election will play out come November is full of it.

What I do want to talk about is why state attorneys general are so important and deserve much more attention, as well as highlight some states that are providing AGs with important new powers and resources, and others where AGs are doing innovative work that will likely trickle up to the federal government.

My reasons for doing so are two-fold: 1) State attorney general is a powerful position that can affect the relationship between corporations and communities in positive or negative ways depending on the officeholder and 2) AGs often rise up the ranks to become governors or even presidents, so knowing who these political players are can give you a read on the future leadership of both parties and, potentially, what they will do when they hold higher office.

There’s even a joke that AG actually stands for “aspiring governor” rather than attorney general. Indeed, several potential running mates for Harris from the Democratic governor ranks, including Kentucky Gov. Andy Beshear, Pennsylvania Gov. Josh Shapiro, and North Carolina Gov. Roy Cooper, were state AGs before moving into the governor’s mansion.

And, fun fact, the last former state AG to eventually become president was Bill Clinton, which was not that long ago in the grand scheme of things.

State attorneys general are, broadly speaking, the state’s chief law enforcement officer, tasked with prosecuting violations of state law, and in some areas enforcing federal law on behalf of their state’s residents. In 43 states, AGs are elected. Democrats currently hold 22 state AG offices, Republicans hold 27, and Hawaii’s is officially nonpartisan. The other seven are appointed.

Enforcing state law a pretty broad remit, and I can’t do the extent of state AG responsibilities any justice here in one newsletter. So to narrow it down a bit, I’m going to focus on how AGs have broad powers over policy regarding corporate consolidation, labor, consumer protection, and other ways in which state economies are structured and regulated.

To start, AGs enforce both state and federal antitrust and consumer protection law, meaning they can bring suit either under their state’s specific statutes or federal antitrust statutes such as the Clayton Act. This means they have the power to assess mergers and potentially sue to block them, which is quite common, or bring monopolization cases, which is much less so. And they can use state consumer protection law to police fraud or deceptive marketing, among many other items.

For example, to bring it back to Harris for a moment, she was very active as AG in investigating and moving to block health care consolidation amongst hospitals and insurers. Today, there are state AGs across the country similarly working to block consolidation in health care, retail, and other industries; this is one of the area’s in which AG power is clearest and, I would argue, most politically salient.

It’s also an area in which I’ve seen increased interest from legislators for expanding AG powers. For example, the Minnesota legislature last year successfully broadened the state AGs ability to block health care consolidation, and Pennsylvania is aiming to follow suit this year, with a bill that’s already cleared the state House of Representatives.

State AGs also, depending on the state, have jurisdiction over labor law, meaning they can sue employers over issues such as wage theft or misclassification, i.e., pretending full-time employees are actually independent contractors. And they can intervene in utility rate cases on behalf of consumers, if they feel the utility has erred in some way while hiking prices or implementing other rules.

Most state level antitrust bureaus are small, though. The vast bulk of the resources are concentrated in just a handful of large states such as New York, California, Florida, and Texas. So a key role state AGs play is joining together in multi-state lawsuits or joining with federal antitrust enforcers to bring cases that would be too expensive or unwieldy for one office to handle.

You see this in, for example, the 42-state case against Facebook alleging that the social media platform illegally addicted teen users, or the 30 state AGs who joined the Department of Justice’s lawsuit alleging that Ticketmaster/LiveNation illegally monopolized the live events industry.

An interesting dynamic I’ve noticed is that state AGs are often ahead of federal enforcers in policing corporate power, such as when the former Washington D.C. AG Karl Racine and Washington State AG Ferguson sued Amazon long before the Federal Trade Commission launched its own similar case (which a bunch of states then joined), or when a group of states led by Texas AG Ken Paxton sued Google for monopolizing digital ad markets, which was emulated by the DoJ three years later.

In that vein, Arizona AG Kris Mayes and current D.C. AG Brian Schwalb sued RealPage for fixing rental housing prices ahead of a federal case that appears to be coming down the pike. And many state AGs have sued pharmacy benefit managers for harming local pharmacies and driving up drug costs, an area the FTC is actively studying today.

Ohio AG Dave Yost even sued to have Google considered a common carrier, which would allow it to be regulated more like a utility, presaging an interest in big tech regulation that has creeped up to the Supreme Court and, I think, will become more politically viable in the years to come.

States haven’t always been leading on antitrust, though. In fact, in the mid-20th century, states largely ceded the antitrust space entirely. A 1956 survey showed that states had only filed five antitrust suits in the preceding 20 years. One commentator in 1961 pronounced state antitrust law “dead.” It’s been encouraging to see that today, the wind is blowing in a different direction.

But AGs are not confined to filing lawsuits. They are also quasi-legislators that can propose, support, or oppose legislation, such as when Minnesota AG Keith Ellison backed the law I mentioned to rein in health care consolidation during the legislative process, or California AG Rob Bonta publicly advocated for what became California’s ban on so-called “junk fees.”

And because nearly all of them need to be elected, AGs are political actors too, able to use the bully pulpit to move interest on the issues and priorities they and their offices hold. For example, I doubt New York becomes a leader in addressing the ways in which social media harms kids were it not for AG Tisch James’ clear interest in the subject and suits against the tech firms.

This is really only scratching the surface! But I hope I’ve conveyed that, if you care about corporate power in your community, you need to care about your state AG — who may just be your future governor or even president.

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— Pat Garofalo