State AG Offices Still a Democratic Power Source

Posted September 15, 2004 at 6:11pm

Look around the political landscape and the degree of Republican control quickly becomes clear. The White House and both chambers of Congress are in Republican hands. So are 27 of the 50 governorships, as well as a majority of state Houses and state Senates.

But state attorneys general are another story. In AG offices, Democrats hold a 30-20 lead over Republicans, including a 26-17 edge among attorneys general who are elected rather than appointed.

Democratic AGs have even thrived in otherwise Republican states. Of the 26 elected Democratic AGs, 12 of them — almost half — serve with Republican governors, including AGs in Colorado, Georgia, Kentucky, Mississippi and Montana.

As a result, Democrats increasingly regard AG offices as a reservoir of political talent, making AG races — once sleepy affairs with only modest input from the national parties — a growing focus of attention.

During the 2000 and 2002 election cycles, five former Democratic AGs won governorships. Another, Mark Pryor of Arkansas, was elected to the Senate. This fall, two Democratic AGs — Colorado’s Ken Salazar and Washington state’s Christine Gregoire — are running strong campaigns for Senate and governor, respectively.

Over the same time period, by contrast, only one Republican AG moved up to higher office — Sen. John Cornyn (Texas). Democrats also dominate the list of current attorneys general who are frequently cited as rising stars. Topping that list are California’s Bill Lockyer, Connecticut’s Richard Blumenthal and New York’s Elliott Spitzer.

“Many of the AGs who later run for governor have established their reputation with voters as individuals who can get to the bottom of complex state issues,” says Nicole Harburger, a spokeswoman with the Democratic Governors Association.

An attorney generalship was not always such a launching pad. For generations, most AGs failed in their efforts to run for higher office.

“There was blood in the hallways — most AGs couldn’t even get out of the primaries,” recalls James Tierney, who was Maine’s attorney general from 1980 to 1990 and who now directs the state attorney general program at Columbia University Law School.

The problem, Tierney says, is that “when you’re an AG, you walk on a razor blade every day.” The smallest oversight, or an unpopular stance taken to fulfill the office’s mission, can torpedo a candidacy, he says.

Now, though, AGs in both parties are eager to take the offensive. Bolstered by the emergence of “devolution” as a rallying cry in Congress and the Supreme Court, AGs are undertaking so many investigations and lawsuits that mid-level staff sometimes feel ragged, insiders say.

The prosecutions coming out of AG offices may (or may not) serve the public good, but thanks to the headlines they generate, they’re likely to boost an AG’s ambitions.

“Someone like Spitzer has good state laws to work with, and is willing to be aggressive, take chances, and has people behind him,” says Jeff Modisett, a former Democratic attorney general of Indiana who is now a lawyer in Los Angeles. “With that kind of momentum, you tend to get people willing to settle because they don’t want to face him.”

Modisett adds that today’s state AGs are much more skillful about coordinating their investigatory and enforcement actions. “That gives you much more leverage, power and visibility,” he says. “That lends itself to activist AGs.”

To be sure, the Democrats don’t have a lock on AGs offices. In fact, Republicans say with some justification that the Democratic hold on AG offices is slipping. One Democrat acknowledges that his party “was behind the 8-ball” in aiding AG races nationally and is only now catching up.

In mid-1999, the GOP established the Republican Attorneys General Association to serve as a fundraising and campaign-coordination arm. The Democrats didn’t form an equivalent group, the Democratic Attorneys General Association, until 2002.

During the 2000 and 2002 election cycles, money and leadership from RAGA helped boost the number of Republican AGs from 12 to 20. The victories included pivotal takeovers in Florida and Michigan.

“Our goal is to get a majority of AGs and maintain it,” says Tim Barnes, the executive director of RAGA’s parent, the Republican State Leadership Committee. “We want to be able to do it by 2006.”

In this quest, Republican AGs have been aided by pro-business groups. These groups perceive Democratic AGs as a potential threat to businesses small and large because of historic Democratic ties to the plaintiffs’ bar.

“For many years, trial lawyers were very adept at infiltrating the political process, including state Supreme Court races and AGs,” said Sean McBride, the vice president of communications with the U.S. Chamber of Commerce’s Institute for Legal Reform, which has been involved in selected AG races during the past few cycles. “They understood fairly early on the value of having kindred spirits for their agenda. But in recent years, the business community has been better coordinated and is increasingly taking a look at both Supreme Court and AG races.”

McBride said that his group is weighing which of this November’s 11 AGs races it will get involved in.

If Republicans are touting the economic danger of unfettered lawsuits, Democrats are emphasizing the danger of out-of-control corporations. While Republican AGs, like Democratic AGs, have often taken a tough line against business malfeasance, Republicans sometimes find it trickier to run as anti-business crusaders.

“Voters seem to be looking for an AG who can be a defender of consumer rights, an opponent of antitrust mergers, and someone who can protect the elderly from fraud and abuse,” Modisett says. “Those are issues that, if you stereotype or generalize, are more traditionally front-and-center Democratic issues.”

Fortunately for the Democrats, their argument has been playing well with the public, aided by a string of corporate disasters including Enron, MCI and the Internet bust. While New York’s Spitzer has made the biggest splash by taking on Wall Street insiders, other AGs have adopted a get-tough approach on frauds, scams, telemarketers and other controversial business activities.

“The Democrats have gotten through to voters that they are as tough on crime as Republicans, and they have been able to portray themselves more activist in going after companies that are considered negative to the environment and consumers,” says Harvey Englander, a Los Angeles-based Democratic consultant.

Englander points to Lockyer, whose Web site touts his efforts to pursue “hundreds of suits against energy raiders … predatory lenders, miscreant title companies, deceptive credit card marketers, and living-trust mills,” as well as his rejuvenation of “once-dormant” environmental sections of his office. Lockyer is highly touted for governor in 2006, especially if Arnold Schwarzenegger (R) forgoes a new term.

The assumption that Democrats will more effectively target harmful business practices seems to extend to state insurance commissioners, as well. Of the 11 elected insurance commissioners in the United States, seven are Democrats.

For instance, California’s insurance commissioner, John Garamendi, is considered a potential gubernatorial rival of Lockyer. In his first term as commissioner, Garamendi boasts, his reforms delivered $1 billion in rebates to policyholders.

One former insurance commissioner, Democrat Kathleen Sebelius of Kansas, has already used the post as a launching pad for the governorship. Sebelius forcefully opposed a planned takeover of Blue Cross Blue Shield of Kansas by an Indiana-based insurer — a stance that “had no political downside,” says University of Kansas political scientist Burdett Loomis. “Standing up to corporate interests was pretty popular,” especially when Sebelius successfully marshaled state pride to defeat an out-of-state company. The episode “worked marvelously” for her gubernatorial ambitions, Loomis says.

Not every issue has worked equally well. One highly publicized AG crusade in the late 1990s — the states’ lawsuit against the tobacco companies — didn’t do much for the political careers of several prominent AGs.

In 1998, Minnesota AG Skip Humphrey (D) lost the governor’s race to Jesse Ventura (I); Massachusetts AG Scott Harshbarger (D) lost a gubernatorial bid to Paul Cellucci (R); and incumbent New York AG Dennis Vacco (R) lost his seat to Spitzer. Mississippi AG Mike Moore never even made a bid for higher office, even though he had been expected to.

The problems of the settlement were epitomized by former Texas AG Dan Morales (D). A year after making an unsuccessful bid for governor in 2002, Morales was sentenced to four years in federal prison for conspiring to divert hundreds of millions of dollars of tobacco-settlement fees.

“Tobacco turned out not to be a political windfall,” says one expert on state attorneys general. “The public doesn’t understand $200 billion. They didn’t see the benefit. What has worked is forcing businesses to change their practices in addition to paying money. It translates to consumers that the AG has done something for them.”

That approach, the expert adds, has been followed by such rising-star Republican AGs as Jim Petro of Ohio and Greg Abbott of Texas. When running for the Senate in 2002, “Cornyn campaigned as if he’d been Elliott Spitzer,” Tierney says. Regardless of party, he says, “you are expected to be an activist, to have done something for people.”

Such efforts underscore how, despite the rugged partisanship seen during the election season, AGs tend to act in much the same way once they’re in office. Most multistate actions are bipartisan, and every AG, out of duty to his office, is regularly forced to argue cases that they — and their supporters — personally disagree with.

“Just by doing their job, AGs become too conservative for Democrats and too liberal for Republicans,” Tierney says. “Republicans see them as anti-business, and Democrats complain that they’re in favor of the death penalty.”

Despite the Republicans’ significant gains in the 2000 and 2002 cycles, Democrats pulled off an unexpected sweep of AG posts in 2003, winning in Kentucky and Mississippi even as the party lost its hold on the governorship. The Democratic AG candidate also won in Louisiana — another state where Democrats are hardly shoo-ins these days. In each case, the Democrats beat well-funded Republicans.

Regardless of how this fall’s races turn out, analysts sense a change in how AGs are elected, now that RAGA and DAGA have gotten involved.

“For years, AG was a ‘row race,’” Tierney says. “It didn’t get a lot of publicity or money, and if you looked at the votes, they [didn’t deviate much] from the secretary of state race. But as more money and attention is devoted to these races, that’s changed.”