State AGs Used to Play Nice in Elections. Not Anymore.

2018 will be the first big election year when attorneys general target their peers in other states. Will it hinder the history of bipartisanship among them?
by | November 15, 2017
Mark Herring waving at a campaign stop.
Earlier this month, Mark Herring won re-election in the Virginia AG race. The Republican and Democratic associations representing attorneys general spent in the neighborhood of $10 million on it. (AP/Steve Helber)

State attorneys general have operated in an increasingly partisan manner in recent years -- both in terms of how they campaign and what cases they pursue.

State AGs have a long history of working together in a bipartisan fashion --  pursuing consumer cases, for example, that affect people across state lines. That still happens. But now, incumbent AGs are targeting their peers in other states in a way they've never done before.

The Republican Attorneys General Association (RAGA) and the Democratic Attorneys General Association (DAGA) had a handshake agreement that they wouldn't target seats held by incumbents from the other party. The Republicans voted to end that policy in March.

"RAGA has a clear mission to win races," says Zack Roday, the association's spokesman. "The decision was made: Where you have good candidates and can draw a clear difference, you don't leave those types of races on the table."

Once RAGA made its decision, there was never any doubt that Democrats would follow suit.

"This is the new playing field," says Lizzie Ulmer, DAGA's communications director.

In 2018, with 32 attorneys general seats at stake, millions more dollars will be spent by the two groups. Big money in attorney general contests is nothing new. In this year's race in Virginia, RAGA and DAGA spent in the neighborhood of $10 million between them. (Mark Herring, the Democratic incumbent, ultimately won re-election.)

But up until the Virginia race, the big money against incumbents came from outside groups, rather than the partisan AG organizations themselves. From now on, incumbent AGs are going to have to think about their counterparts raising money directly to try to take them out.

"Inevitably, that's going to have a negative impact on the relationships between the Republican and the Democratic AGs," says Paul Nolette, a political scientist at Marquette University. "It's hard to work cooperatively with your fellow AGs if you're always wondering what they're going to use to try to target you in the next election."

Their roles in national politics had already grown more partisan. The number of multistate lawsuits that AGs file against the federal government has been growing rapidly.

A total of 18 such suits were filed against Bill Clinton's administration, according to Nolette. Under George W. Bush, the number shot up to 45. During Barack Obama's presidency, the number increased to 59. Some of those cases were bipartisan, but generally the lawsuits brought against the Obama administration involved Republican AGs on issues such as health care, immigration and environmental regulations. The number of partisan briefs filed with the U.S. Supreme Court has also been on the rise.

Now that Donald Trump is president, it's Democratic AGs who are regularly suing the administration over issues such as immigration and the environment. The homepage for the Democratic Attorneys General Association boldly states: "Democratic Attorneys General are the first line of defense against the new administration."

"All the Democrats are pretty well lined up on these Trump investigations," says Jim Tierney, who runs a program on AGs at Harvard Law School. "The presumption is that everyone will be in on the Democratic side."

Some AGs continue to insist that they can continue to operate in a bipartisan fashion.

"These are more partisan times, but it hasn't pulled AGs over a cliff," says George Jepsen, the Democratic AG in Connecticut. "I can tell you absolutely that that has not affected the capacity of AGs to work together on issues of mutual concern."

Roday, RAGA's communications director, agrees: "I think there are going to continue to be bipartisan decisions."

There is continuing evidence of cooperation. More than 40 attorneys general -- with plenty of members from each party -- have joined forces on cases involving generic drug price fixing and security breaches at the credit bureau Equifax.

But while there are still AGs accustomed to collaborating across party lines, the risk is that they will become more contentious with one another over time.

"As each cycle goes by, the presumption is going to be that the AG across the table is going to destroy you if he or she can," says Tierney, who is also a former Democratic attorney general in Maine.

In a world where AG jobs are increasingly seen as stops along a political career trail, that could undermine the credibility of the office itself. "The more an AG acts like a congressman, the more they'll be treated like a congressman," says Tierney.

For now, as attorneys general pursue different courses on national issues and compete more directly with each other, it's impossible to know the extent to which their traditions of bipartisan comity can continue.

"This is new," says DAGA's Ulmer. "We are in a new environment compared to where we were even two years ago."