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The Story Behind the Prominent Rise of State AGs

The role of attorney general in states has evolved from policy enforcer to policy creator.

There’s strength in numbers. No one understands that better than state attorneys general.

Over the past two decades, AGs have banded together to launch dozens of lawsuits. The resulting settlements have not only brought billions into state coffers, but also changed the regulatory landscape in areas such as health care, banking and energy. The role of de facto national policymakers that state AGs have assumed for themselves -- and how they were able to pull this off -- is the subject of a new book called Federalism on Trial, by Marquette University political scientist Paul Nolette.

The shift began with the massive settlement with the tobacco industry back in 1998. Having failed to get a deal through Congress, state AGs got cigarette makers not only to pony up more than $200 billion, but also to agree to change their marketing strategies.

If tobacco is still the biggest deal the AGs have pulled off, it’s far from the only one. Since 1980, state AGs have launched more than a hundred cases against the pharmaceutical industry alone. As Nolette points out, the relatively few cases brought by more than one attorney general back in the 1980s typically involved fewer than five states. Today, there are far more cases involving far more actors. “Litigation involving over half of the nation’s AGs, once an unusual event, represents over 40 percent of all the multistate cases conducted since 2000,” Nolette writes.

Why are AGs banding together? For one thing, a series of federal statutes offered them more resources and authority. Many social policies enacted since the Great Society of the 1960s carved out large enforcement roles for the judiciary, which in turn created openings for attorneys general.

But the main impetus was being able to convince entire industries to change their ways. Sure, the money is often nice, but altering business practices has also been a prime motivator. “Our major task is to change behavior,” Betty Montgomery, a one-time AG in Ohio, said back in 2002 about her work chairing a pharmaceutical industry task force for the National Association of Attorneys General. The money collected  through settlements, she said, was only “incidental.”

Attorneys general today are much more likely than their forebears not just to join hands with peers across state lines but also to act in concert with allied policy groups such as the Sierra Club or the U.S. Chamber of Commerce. AGs, after all, are often concerned with forcing action, not just from private-sector players but the federal government as well. AGs have used the court system to push Washington to address a number of issues, such as climate change and acid rain. “Rather than resisting the growth of a national regulatory state that threatens to expand federal power at the expense of states, AGs have more frequently used coordinated litigation to promote the expansion of national regulation,” according to Nolette.

Of course, AGs have also pushed back against the feds, particularly during the Obama era. Republicans and their allies have been more aggressive in recent years in funding AG candidates, erasing the historic Democratic advantage held in the office nationwide. Participation in multistate lawsuits, like everything else, has grown more partisan in recent years. Republican AGs are “far more active” now than they were the last time a Democrat was president, Nolette writes, seeking to block the administration in areas such as the Affordable Care Act and environmental regulations that were proposed, in fact, to answer complaints brought by earlier generations of AGs.

Regardless of party or target, it’s clear AGs will continue to view litigation not only as a tool for enforcing the law, but also as one to shape national policy.

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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