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Introducing State AG pulse – Lexology

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Welcome to the inaugural episode of State AG Pulse. From now until August, we’re excited to bring you our insights and commentary on the 2022 state attorney general elections, and why they matter for business leaders. In this first episode, Pulse hosts Lori Kalani and Bernie Nash talk with Karen White, Executive Director of the Attorney General Alliance. They provide a quick “AGs101” tutorial and discuss just how powerful AGs really are. They also preview key issues in the eight open seat races and note which incumbents are at risk in their state races, including some surprises so far in the run up to and early primaries. The discussion also touches on how much it costs to run an election campaign, whether money matters, and the impact of national politics on state races. For all this and more, check out this week’s episode.
Transcript
Bernie Nash:
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 state’s chief legal officers, AGs will have 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 Kalani:
Welcome to State AG Pulse presented by Cozen O’Connor’s State AG Group and proudly hosted by Bernie Nash.
Bernie Nash:
That’s me.
Lori Kalani:
And Lori Kalani and that’s me. State AG Pulse is the 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. Hello to all of our listeners. Bernie and I are super excited to kick off our limited series podcasts that will focus on this year’s State AG elections. Over the next three months or so, we’re going to be bringing you a terrific lineup of episodes that will include in-depth discussions of each of the eight open seat AG races.
We’ll also welcome several guests to join us along the way, more to come on that, but for today’s episode, we’re going to cover a number of important things as we launch this podcast. We’re going to talk about AG’s 101, which is what I tend to think of as just a little refresher or maybe a little information on what AGs do for those people who don’t know. We’re going to cover the open seats. We’re going to talk about the incumbent AGs who may be at risk and why are they at risk because of the impact of the national politics and the scene above them on the ticket. So with that, let me introduce our first and in my opinion, most special guest we’ll have on this podcast, Karen White. Hi, Karen. How’re you doing?
Karen White:
Hi, Lori. Hi, Bernie. Good to be with you.
Bernie Nash:
I am so excited about this podcast because I’ve known Karen since 1997, which makes it almost 25 years. We met, if I recall correctly, at an AG meeting in Montana. Well, we’d love it if you tell us a little bit or a lot actually about AGA the Attorney General Alliance because I remember going back to 1997 when CWAG first started, and that’s the predecessor named The Conference of Western AGs, there were maybe 13 states, and in 1997 you might have had it in the twenties or low thirties. So tell us how many you have today and how you have grown it, and what AGA does because it is truly the preeminent AG organization in the country?
Karen White:
Well, I was lucky enough to come into the AG world over 32 years ago. I was in law school and actually had been, my entire life has been around AGs. My dad was a chief deputy attorney general in California and served the State of California for almost 30 years. So unlike some folks who aren’t sure what AGs do or what their roles are, I was tutored on AGs from the time I could talk. When I was 19 actually, and in law school, I got invited to be an intern at the association and it was very small, and we had probably 100 people who interacted and focused on a variety of nuanced issues that were specific to the West, water, tribal matters, minerals, the things like that.
There were other AG organizations that we took a look at and I was thinking about how we make an AG experience special, started hosting events that people like you started coming to Bernie, where we took a look at what the issues were before AGs and then expanded the conversation to include private sector partners, federal partners, and other state partners. That model became so popular and is what the itineration is that we are today that we now have 47 states, a little Western organization started receiving applications from larger states to join us and present our special kind of venue that allowed us to convene different perspectives for conversations that were of absolute importance and front and center before AGs.
Lori Kalani:
Well, Karen, if I could just interrupt you. I think you were so smart to do that because obviously the issues that were Western-focused back in the beginning have become national issues. Just look at the water issues that AGs are dealing with. It’s not just the Western states or even Indian gaming or gaming in general. It makes a lot of sense. And Bernie and I were having a debate earlier today about how many states were in AGA. I was shooting for 50. You have to work much harder Karen to get those last three in.
Karen White:
Believe me, I’m working for 52. So, we’ve got a couple of states that we’d love to bring in. And those generally, most of the elected states, most of the elected AGs are members. As you both know, five states have appointed AGs and they answer to their Governor or to their legislatures or their Supreme Court. So while almost all the states are elected, sometimes it takes a little more work to talk with the appointed AGs and get them to go to their Governors or Supreme Court or legislature and enlist them into this AGA program. But we’re getting there.
Bernie Nash:
Well, I remember my first AG meeting in December 1976 when I was still counsel to the senate judiciary committee and there were about zero outside people there. And maybe in addition to AGs, there might have been about five or six federal type persons there. And then in 1981, when I went to my second AG meeting on behalf of Home Box Office, there were a total of three outside people, myself, John Redpath, who was then general counsel of HBO and someone else from a different company. I don’t remember who that was. So, today in 2022, about how many people come to your conferences at AGA Karen?
Karen White:
Well, our largest conference, we have to cap attendance. It’s touched up on 1000 people. We try to make it a little smaller and manageable than that. Our largest meeting, the ones that you’re referencing Bernie that started out with a handful of people, maybe 40 or 50, that one’s up to 1000.
Lori Kalani:
That’s not bad, Karen. I forgive you on the three states that aren’t members of AGA. I think that’s really a testament to the rising prominence and importance of state AGs and you know, the role that they play vis-a-vis the business industry. And so I think that’s a perfect segue to talk a little bit. I wouldn’t be Lori Kalani if I didn’t give AG’s 101 at the outset just for anybody listening who has forgotten or doesn’t quite know what AGs do. It’s worth spending just a minute on that. The AGs have very, very broad authority. I think that they’re more powerful than the governors in their state. They provide legal advice to, as you said, the governor, the legislature and the state agencies, even when they’re elected, certainly a slightly different relationship when they’re appointed. A large part of what they do is protect consumers.
Lori Kalani:
And they have this broad authority called the UDAP statute that gives them the authority to investigate and enforce the law with respect to goods and products that are sold in their state. And as you can imagine with a world where things are more digital and there’s the Internet of things and there’s privacy concerns, AGs have really become the de facto regulators across the country. Some of them have original criminal authority, but by and large, they’re really the way we view them. And I think the way our clients view them is the protector of the consumer with very, like I said, broad authority. They also have national reach, which we can come back to in a minute. You would mention Karen that AGs are elected in 43 states plus DC. Bernie, anything we’re missing on that with respect to elections before we jump into this year’s particular midterm election?
Bernie Nash:
Well, I’ll make two points. One, going back to your earlier comment about the broad reach of AGs, as you well know, what we often do for our clients is we kind of move AGs into a positive, what can they do to help our clients in critical policy issues and critical legal issues. And many people don’t realize that AGs file amicus briefs in the US Supreme Court, several a month. And so AGs can be very, very helpful to the business community if you reach out early enough and they can align themselves with your position in supporting cert and supporting your substantive position if cert is granted. And another thing that they do, which is critical to the business community is as you said, they are involved in the federal regulatory process. And so they oftentimes can support the business community in their comment letters for official rule making et cetera.
So I just wanted to throw that in. AGs are typically elected in off year elections, mid-cycle elections. This year, I think there are 31 or give or take elections this November and there are eight open seats. So there’ll be a minimum of eight new AGs. And because of certain AGs who are running for higher office and some AGs that are at risk, and we get into that a little later, they could be as many as 15 new AGs this year.
We talked about the election, Karen, and how many seats are up and obviously typically once you get past the primaries, and there are some tough primaries this year, but once you get past the primaries you have a Democrat running against a Republican, and those races have become pretty high tense in terms of the accusations being cast. It’s almost like senate and gubernatorial races. So eventually one wins, one loses and say you have 25 Republican AGs, 25 Democrats give or take, how do they work together? How do they collaborate? How do they work within AGA after coming off such bruising political battles?
Karen White:
That’s actually been the biggest challenge and will probably continue to be the biggest challenge in the AG space, is basically politicians are boxers and they end up getting in a slug fest to make it through at their own primary level or in their adverse positions as different parties on the ballot. So the work to change the AG mindset from election and warrior mode to office holder and progress maker and issue resolver is something that we start on right away. And so I view myself somewhat as a mediator in terms of understanding who these people are, understanding what happened to them during the election because those can be pretty brutal, and then finding a path for them to communicate and meet people in person or through personal contact because personal contact changes perception, and that I think is what our job is in creating this AG space is the opportunity for people to lay down arms and to move forward together.
Lori Kalani:
A very wise AG once said to me, my first day on the job, I had to deal with my in-state issues, but it was also like being a new kid at a new high school and meeting my 50 classmates. And he was referring to the other AGs across the country, whether they were several term AGs or whether they were new AGs, and I think that was very telling because it is true given they work together so often and they work in multi-states and they call one another and ask what this state is doing or that state is doing.
So I do think that the ability for new AGs to meet their incoming colleagues from across the country is very important. If we could talk about the open seat races for just a minute, and certainly our future podcasts will dedicate a lot more time to these, but I think it would be helpful to run through them and I’ll go through them in order of the primary. So I’ll start with Nebraska, and Nebraska is the earliest primary and that’s currently Attorney General, Doug Peterson, who has announced that he will not seek reelection. We’ve met some of the candidates there in Nebraska. And I think that tends to be one early on. Usually that’s a Republican seat. Arkansas General, Leslie Rutledge, she is term limited and also is running for Lieutenant Governor. We’ve had the pleasure of talking to some of the candidates there as well, some great candidates.
Bernie Nash:
I will interrupt for that. I will go out on a limb and make predictions. I know you don’t like when I do that, Lori, but I’m going to do it anyway, and I would say in the great State of Arkansas, you’re going to have the Attorney General who is running for Lieutenant Governor, swap seats with the sitting Lieutenant Governor who will become Attorney General. So, I think it’s going to be a swap.
Lori Kalani:
I think you’re right, Bernie. New Mexico’s Hector Balderas is the current Attorney General and he is term limited. And speaking of swapping seats, it’s not quite swapping seats, but Brian Colon, who’s the I think front runner there, happens to be the state auditor and just like Hector Balderas if he is elected, he will be a former state auditor who becomes Attorney General. General Balderas was also state auditor before he held the seat of attorney general.
And next is the District of Columbia. Very interesting because we have General Racine, who is the first elected attorney general in the District of Columbia. That used to be an appointed position by the mayor. He has announced that he will not seek reelection. There’re a number of candidates there. We’ve met a number of them and look forward to continuing that conversation. And I’ll just say at Cozen O’Connor, it is our goal to meet virtually every candidate before the November election. Because once the November election happens, things get really busy and we want to have the relationships ahead of time and understand what the priorities are and who the people are that could be the next AG.
Karen White:
And Lori, can I just interject that? One of the things that you all do well in meeting these candidates is another thing that we focus on as well, which is outreach to the folks who are running to try to expand their vision because all elections of course are local and their focus is on state things. But like you said, the first day in office, they have their state things to manage and then they have their multistate things to manage. So I think one of the biggest changes I’ve seen in the AG world is the candidates that are running in each state suddenly come onto a national scene. And, those that do well within their state usually get elected, have expanded the amount of information and the number of people that they need to interact with in order to position themselves within their state to be effective.
Lori Kalani:
Yeah, it’s a great point. The next state is Maryland. General Frosh has indicated that he will not seek reelection. There’s a couple of great candidates there as well. Congressman Anthony Brown and Judge Katie O’Malley. So they’re both Democrats. I think that, that race will basically be decided in the primary. And I believe that primary just got pushed out. It’s July 19th. I think it was previously June. Arizona, our friend General Brnovich in Arizona is running for the United States Senate. And we wish him luck on that race. Boy, I think there’re about eight candidates running in Arizona. So it’s a crowded primary there.
Lori Kalani:
General Schmidt in Kansas is running for governor. So there is an open seat in Kansas. Last but not least, Massachusetts, and that was a seat that we weren’t sure would be open, but it is open because General Healy has announced that she will run for governor in the State of Massachusetts. And there are a number of candidates there as well, who filed. Anything else we want to say about the races in general, there’s been a couple of surprises, I guess Tish James in New York had announced that she was running for governor and has now said that she will actually run for reelection as AG of New York.
Karen White:
Well, I think that list presents a couple of talking points. One that we do need to touch on as well is Hawaii. Governor Ige there is term limited and the Hawaii AG is appointed. And most governors appoint their own AG when they come in to office. So, I think that Hawaii will be in play. I think that state really leans towards the Democrats. So, I’m almost positive and secure in saying it’s going to be a Democratic governor and a Democratic AG appointed. But the other thing, Lori, looking and thinking about your list, and then thinking about some of the other Senate races that I think that your people need to know is a change that we’ve all seen is this catapulting of the state AGs into other prominent offices, whether it’s the Senate, whether it’s the Governor’s mansion or even as we have right now to the Vice President seat of the United States.
Lori Kalani:
Yeah, it’s a great point. And this year, which I don’t think we’ve mentioned yet is that the Missouri Attorney General is running for the US Senate. He’s in the middle of his term. So if he prevails and is elected to the Senate, then that would become an open seat that would be filled by a Governor appointment until the end of the term. And then also Pennsylvania General Shapiro is running for Governor of Pennsylvania and should he win and I believe that he will, that seat would also be an appointment for the remainder of his term. So I think there’s not just the eight open seats, but a number of other seats in states where there’re gubernatorial elections as you said, Karen, and also where a couple of AGs are running midterm.
Bernie Nash:
Over the past 15 years or so, I think they’ve been 20 sitting United States Senators who were previously state attorneys general. Right now, there are six sitting United States senators who are former AGs, there are six sitting governors who are former AGs, and we have one cabinet official Secretary Becerra, former Attorney General of California, who’s now HHS. Getting to know AGs is not only important for your day to day work running your companies and all the things they can do for you or against you, but they are the future of the elected officials of the states and the federal government. I think in the upcoming race, I mean we talk about the open seats, but I do believe that national politics is going to have an impact or could have an impact certainly on some races that heretofore were rather safe seats.
And there’s a vicious Republican primary going on in Idaho to unseat I think an eight term incumbent AG. There are going to be close races in Wisconsin, Michigan, Nevada and Iowa because of national politics, not local. And talking about a primary, Attorney General Chris Carr of Georgia was not really a favorite of former President, Donald Trump, because of his stance on the election. And he now has a primary on the last day to file someone endorsed by President Trump. So national politics is impacting AG races and AG races are not cheap. So in the 2021 Virginia race, for example, incumbent Democratic AG, Mark Herring, raised $1.4 million, but he lost to a Republican challenger, Jason Miyares, who raised $425,000. Right now in Texas, Attorney General Paxton was in a four way primary, and he did not get 51% of the vote. So, General Paxton is in a runoff against George P. Bush. And in General Paxton, you have $7.5 million in his war chest for a primary notwithstanding what he already spent in the first round of the primary. So these races are almost like national races now.
Lori Kalani:
I think that the money doesn’t necessarily matter in the case. And we saw that in the case of Virginia. I mean, it’s certainly important and sometimes it is the deciding factor, but not always. And I think again, to your point, that national politics really has an effect on these AG races. So, I think we will see some surprises, but certainly we’ll have some newcomers to our world and some work to do between now and November and certainly once November happens and they’re sworn in early next year. I think we’ve covered a lot here. Is there anything else you want to add Bernie or Karen about these races? And as I said, we’ll dig in the upcoming weeks on the individual states, but wanted to use this opportunity to sort of set the stage for the year.
Bernie Nash:
Well, unless we missed something, I think we’ve pretty much exhausted our agenda and I’m going to let Lori close, but I would like to thank you, Karen, and like to thank our audience and hope if you like this. And even if you didn’t, give us a second chance and we’re going to have our next podcast next week. It’ll be May 2nd where we’re going to talk about the election in the state of Nebraska and our special guests then will be one of our colleagues, our partner, Meghan Stoppel, and Meghan is a former Chief of Consumer Protection in the State of Nebraska and so she has a lot of firsthand knowledge to bring to that race.
Lori Kalani:
That’s right. And we’re going to test her history of Nebraska and have her name at least the last 20 AGs. So Meghan, if you’re listening, get ready. No, Meghan is great and I look forward to that next episode. Meghan has a long history in AG offices, but what I find most interesting about Meghan is that she also worked in the Kansas Attorney General office and has worked in-house, which coming from being an in-house lawyer myself, I always think is really important to do this job. So, look forward to talking with you, Bernie and Megan, next week. And Karen, huge thank you as always. You’re a wealth of information and a bright light in this world and we really appreciate your input and having a conversation with us.
Karen White:
Thank you both. And thank you to your entire Cozen team who is a tremendous asset in our AG space.
Bernie Nash:
Thank you, Karen. You’ve been listening to State AG Pulse brought to you by Cozen O’Connor’s State AG Group. Research for the podcast is provided by four of 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 a five star rating and review, which will help our visibility and will allow other listeners to learn about the podcast. And of course, please tune in again next week.
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