While everyone focuses on races for the U.S. Senate and governorships this fall, the results of the elections for 31 state attorneys general will sometimes have more impact on the daily lives of voters.
Over the last 20 years, Democratic AGs have become major players in class-action lawsuits against corporations. The tobacco settlement alone resulted in a $200 billion bonanza for trial lawyers and states. Democratic AGs have also been a key to the dismantling of state laws against gay marriage and barriers to tort reform. Conversely, Republican attorneys general have become a formidable defensive bulwark against the overreach of the Obama administration, taking it to court and frequently winning cases on issues ranging from EPA overreach to attempts by Eric Holder’s Justice Department to block voter-ID laws.
“The Republican AGs have done more than Republicans in Congress, statehouses, or anywhere else to block, cripple, undermine, or weaken Obama’s initiatives,” reported The Weekly Standard’s Fred Barnes last year. “The administration has been put on notice: If you adopt policies inconsistent with constitutional limits and the rule of law, Republican attorneys general will come after you.”
Among the most prominent cases is the one the Oklahoma AG Scott Pruitt has filed to block Obamacare’s health-insurance exchanges from handing out subsidies to buy insurance. In 2012, the IRS issued a regulation allowing the distribution of insurance subsidies through the health exchange set up by the federal government in the 36 states that chose not to establish their own exchanges. But the IRS regulation flew in the face of the clear language of the Obamacare law, which specified that the subsidies are available only “through an Exchange established by the State.”
The case, which has seen federal appeals courts in the District of Columbia and the Fourth Circuit disagree, is likely to go to the Supreme Court. If Pruitt wins, the very heart of Obamacare will have been cut out of the law, likely forcing President Obama to negotiate other reforms to make Obamacare functional.
Conservative attorneys general are also playing a key role in fighting the Obama administration’s overreach on environmental issues. They’ve forced a rollback of federal efforts to seize control of mining permits from state regulators. But their big battle is with the EPA. In 2011, the EPA issued a new rule that regulates carbon dioxide emissions from existing coal-fired power plants. A group of twelve Republican AGs is challenging the rule. They note that the Clean Air Act gave to the states the power to regulate pollution and that the law explicitly forbids “double regulation” of plants by the federal government. They argue that the EPA rule will lead to hefty increases in electricity prices, which will slow down economic growth and lead to the loss of a minimum of 75,000 coal jobs — all for very small reductions in actual pollution. In an example of the polarization of our politics, eleven Democratic AGs have intervened to support the EPA’s power grab.
If the EPA rule stands, it will continue the dangerous trend toward ever-greater federal control of the private economy. During the 20 years covering the administrations of George H. W. Bush, Bill Clinton, and George W. Bush, the EPA attempted a takeover of five state air-quality programs. In the six years of the Obama administration, the EPA has attempted 51 such takeovers.
All this underlines the importance of the 31 races for state AGs that will be on the ballot next week. Currently, Democrats have a 26-to-24 overall advantage in control of the AG offices nationwide, and Republicans have more AG seats to defend this year — 17 versus 14 for the Democrats.
Here are the top races and how they stand.
Republicans are now narrowly favored to keep their open seats in Colorado and Arizona. But Wisconsin is highly competitive given that the union onslaught against Governor Scott Walker could be a drag on down-ticket GOP candidates. Should Republicans lose the AG race in Wisconsin, it’s quite possible that an activist Democratic AG could throw roadblocks in front of Governor Walker’s reform agenda and obstruct his possible 2016 race for president. On their side, Democrats are being pressed hard in Nevada by aggressive Republican lawyer Adam Laxalt, the grandson of former senator Paul Laxalt, who was one of Ronald Reagan’s closest friends. Governing magazine also gives Republican Susan Riedel an even chance to win the AG’s race in New Mexico, on the strength of Republican Governor Susana Martinez’s coattails. In Arkansas, former Republican National Committee legal counsel Leslie Rutledge is favored to capture the AG’s seat; if he does, it will be the first time since Reconstruction that the state’s top legal job is held by a Republican.
Though they once occupied a relatively quiet corner of politics, state attorneys general on both sides of the aisle have now become major political and economic players. More than ever, it matters who the states’ chief law-enforcement officer is, because the AGs’ widely divergent philosophical agendas have real-world consequences for their states.
— John Fund is national-affairs correspondent for NRO.