The Post-Election State AG Enforcement Landscape

By Lisa Madigan
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Law360 (November 5, 2020, 4:18 PM EST) --
Lisa Madigan
Lisa Madigan
Regardless of the outcome of the presidential election and the resulting personnel and policy changes, there's one thing you can count on: State attorneys general will remain on the front lines of important enforcement, policy and political battles.

In the months leading up to the election, state attorneys general were the lawyers fighting in court over their states' election rules. Actions on voting are just one example of state attorneys general using their legal authority to influence outcomes on both the state and national levels. No matter who wins the presidential election, state attorneys general will continue to leverage their power to impact issues on the national agenda.

So far, the elections have produced almost no change to the current political attorney general landscape. The only open attorney general seats were in Indiana and Montana. The Republican candidates won both, keeping the number of Republican and Democratic attorneys general even.

In North Carolina and Pennsylvania the incumbent Democratic attorneys general are in tight races but they are likely to prevail once all the votes are counted. Therefore, in the months ahead, watch for state attorneys general to continue to serve as strategic, vital voices at the state and federal levels.

Over the past decade, state attorneys general increasingly exercised their authority to challenge or support the federal policies they believe are best for the people of their state. Their positions on the Patient Protection and Affordable Care Act split sharply along partisan lines and provided a preview to the escalation of attorney general litigation on federal initiatives.

Routinely now, once rumors of a new federal policy surface, state attorneys general start preparing to challenge or support the eventual policy. State attorneys general led legal charges on every major health care, environmental, immigration and civil rights issue coming out of the federal administration using their power to represent the interests of the people of their states all the way to the U.S. Supreme Court. The California attorney general has sued the current administration over 100 times and other Democratic attorneys general are not far behind.

Due to their increased activity, the national stature of state attorneys general grew substantially over recent years. You see their names in the headlines every week and their faces on television almost every day.

Republican and Democratic state attorneys general have used their positions as the people's lawyer to get involved in nearly every significant issue facing the country. The agendas of state attorneys general now include representing people on more than enforcement matters. Their advocacy has made state attorneys general permanent fighters on the front lines of the most important legal and policy battles facing our country.

These constant, partisan legal challenges signaled to many the end of an era where state attorneys generals agreed and worked closely on enforcement issues, but the reality is more nuanced. It would be a mistake to think state attorneys general have turned into purely political players.

While there is no question that state attorneys general have taken on an expanded, partisan role in high-profile policy arguments, state attorneys general have not abandoned their traditional roles or relationships as the main enforcers of the laws that protect their states' residents. In fact, state attorneys general have continued their historical work of responding to consumer concerns, often forming multistate groups to investigate and sue companies whose goods or services appear to harm or take unfair advantage of their states' residents.

As evidenced by the large, bipartisan groups of state attorneys general who came together in recent weeks to stop robocalls and ask Congress for the authority to enforce consumer protections for airline passengers, state attorneys general of opposite parties still take opportunities to work together. There are a lot of areas where state attorneys general and their legal teams have developed deep expertise that are likely to demand increased attention.

Health Care Gets Hotter

Even before COVID-19, state attorneys general were deeply involved in a wide range of health-related investigations and enforcement initiatives. Going forward, there is no doubt that health care matters will continue to increase in volume and importance.

With the pandemic still raging, uncertainty about the future of the Affordable Care Act and the expense of all aspects of health care to families, employers and government, attorneys general of both parties must prioritize health care matters. And health care is an arena where attorneys general frequently work together.

For example, COVID-19 has brought a flood of fraud and price-gouging complaints to state attorneys general who are directing resources to respond. Even with the deep political divisions in our country, the consequences of some health care issues have unified a new generation of state attorneys general and showed them the power of cooperation.

Big Tech Becomes a Bigger Issue

For a long time, state attorneys general have been active antitrust enforcers, and 20 years ago 18 states joined the U.S. Department of Justice's original antitrust case against Microsoft Corp. So it should not have come as a surprise that a bipartisan group of attorneys general took an interest in tech companies and initiated antitrust investigations.

The recent announcement of attorneys general working on antitrust suits against Google Inc. is a natural outgrowth of the attorneys general's antitrust initiatives and the claims of their being a lack of regulatory oversight of tech companies. Antitrust enforcement is also an area where several attorneys general have a focused their interest and increased their staff.

In the tech arena there are plenty of other issues that attorneys general will continue to confront. For almost two decades, state attorneys general have led the charge on data breach notification and holding companies and other entities accountable for data security.

In the process, attorney general offices developed an interest and expertise on emerging tech and data privacy issues. With little chance of federal legislation on data privacy, more states will follow the lead of California and pass their own privacy measures requiring state attorneys general to dedicate additional resources to regulation and enforcement on technology and artificial intelligence issues.

Environment

Aside from consumer protection and antitrust, environmental protection is another area where attorney general actions are steadily increasing, although not in a bipartisan manner. These increases are often occurring at the intersection of environmental enforcement and energy policy.

While some state attorneys general have authority to represent the interests of ratepayers in front of state public utility bodies, increasingly, state attorneys general have recognized the relationship between energy production and its impact on climate change. The result is a growing number of state attorneys general actively participating in the development of energy policies.

Other Emerging Areas

A growing number of state attorneys general have the responsibility to investigate police-involved shootings and discriminatory policing practices. In the aftermath of the George Floyd protests, this work has become a top priority for many state attorneys general.

In addition, many state attorneys general have requested dual enforcement authority under the congressional statute that gives the DOJ authority to pursue pattern and practice investigations into local police departments.

Democratic state attorneys general are instituting workers' rights bureaus in their offices and directing them to investigate and advocate for fair policies in the workplace. Attorneys general have focused on the inappropriate use of on-call scheduling and noncompete and no-poach agreements, and are expanding to investigate and respond to the impacts of the gig economy on workers. 

While it is evident that there will not be bipartisan cooperation on all matters, there are still a large number of issues where state attorneys general recognize the value of joint action.

In the months ahead, state attorneys general will not cede the ground they have gained nationally. State attorneys general have become vital voices at the state and federal levels.

The public has come to rely on state attorneys general as effective leaders and other officials know state attorneys general bring experience, knowledge and legal authority to the table. It is undeniable that state attorneys general will continue to extend their power and influence in the years ahead.



Lisa Madigan is a partner at Kirkland & Ellis LLP. She previously served as the first female attorney general of Illinois from 2003-2019.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

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