State attorneys general continue to dominate the national legal and political landscape, with a partisan fervor that sometimes obscures the ongoing investigations and litigation they conduct. It took until the end of December and after a recount and then a lawsuit challenging those results for one state attorney general race, Arizona, to be resolved—a testament to the narrow split seen in other races across the United States.
Thirty state attorneys general faced election in 2022. While several key races remain undecided as of this writing and thus partisan shifts cannot be discerned, it is likely the increased partisan polarization of attorneys general will only increase, at least through the 2024 election cycle. When the final campaign finance reports for these races are filed, it is almost a given that the sums expended by attorney general campaigns, and independent expenditures on their behalf, will exceed past spending.
However, the partisan split among attorneys general has less of an effect than it does in Congress or state legislatures. Each attorney general exercises their sovereign independent judgment, and while they may choose to work with others, they are not bound to and do not answer to a party leader.
As past is often prologue, we expect that Republican attorneys general will continue to use their authority to litigate against Biden administration actions just as Democrats did during the Trump administration and Republicans did during the Obama administration. New to the toolkit are potential threats to private enterprise posed by attorney general involvement in hot-button issues, such as reproductive rights and environmental, social, and governance (ESG) investing, as some attorneys general use their investigative powers to probe the business community’s conduct.
At the same time, we expect that Democratic attorneys general will continue to use their enforcement authority to further partisan and policy goals at a time when the Biden administration may not be able to due to the balance of power in Congress.
The Role of a State Attorney General
A state attorney general serves not only as their state’s chief law enforcement and legal officer, but also as a statewide political official. Those two roles—coupled with the current polarization between the two major political parties—have elevated the power and importance of state attorneys general. We expect this trend to continue over at least the next two years.
Attorneys general are never “lame ducks.” The investigations they commence, actions they file in court, and settlements they reach on the first day in office are just as effective and noteworthy as they are on the last day in office.
While attorneys general are political officials, their role as chief law enforcement officer should never be overlooked. It is a mistake to presume that because a business may be aligned with the policies of one party or another, or because someone has provided monetary and other support to one party or candidate or another, that they will escape the consequences of conduct alleged to violate state laws.
Most attorney general offices are staffed by trained, experienced prosecutors who have great leeway. A businessperson’s merely “knowing” the attorney general is unlikely to be productive. Rather, as it has been in the past, there must be a deep understanding and appreciation of how attorneys general effect results through the proper balance of negotiation and litigation.
All of this occurs in an environment where state funding issues have diminished importance. State attorneys general have access to a self-funded pool of approximately $250 million held by the National Association of Attorneys General (NAAG), which may be allocated to support investigative and litigation costs (with an expectation that any eventual judgment will include the repayment of those funds). It is a mistake to presume that a state can’t afford to litigate because it may well have access to the funds to do so.
Finally, two changes occasioned by current investigations and litigation will almost certainly affect nonpartisan operations going forward. While it may have been historically true that many contingent fee plaintiffs’ lawyers identified as Democrats, over the last five years it has become commonplace for Republican attorneys general to retain these lawyers as well.
Furthermore, the entry of county, local, and tribal jurisdictions into what has historically been the sole preserve of attorneys general will likely make it all the more difficult to resolve some major matters.