Bench Memos

State Attorney General Races to Watch

Most state attorneys general are elected in races that fail to capture national attention. In many cases that makes sense, especially if the race lives up to the stereotype that some aspiring governor is seeking an office in which to hang out while developing credentials and name recognition. But more and more state AGs are engaging in the debate over the role and scope of the federal government. For instance, the constitutional challenge to Obamacare was joined by more than half of the state AGs, last month a group of AGs announced that they had joined the constitutional challenge to Dodd-Frank, and it seems like every other week an AG is challenging the EPA. In short, one can argue that conservative AGs are emerging as key leaders in the battle for limited, constitutional government. In the coming weeks I will be tracking developments in a few key races where strong, conservative AGs could be elected, including these:  


Montana’s race features Republican Tim Fox squaring off against Democrat Pam Bucy. Bucy is a former state prosecutor who has also spent time in private practice. Fox’s career has spanned government service in environmental law, private practice, and work in the banking sector. This race presents a clear contrast on important issues for conservatives and is a great opportunity for Montana Republicans.

Fox will protect Montana gun rights, and has defended Montana’s Second Amendment rights in court. The National Rifle Association was so impressed with Fox’s gun record that its president, David Keane, traveled to Montana to endorse Fox. Fox has also promised to “initiate litigation when appropriate to contest unconstitutional gun laws.”

Montana is a state rich in natural resources, and the attorney general has significant influence over the state’s energy and environmental policy. Bucy was endorsed by “the Montana Conservation Voters, a group Fox equate[s] with environmentalists who often stand in the way of natural resource development.” Fox will “support responsible development of Montana’s natural resource wealth,” because he recognizes that Montana’s natural resources “hold so much potential for creating new high-wage jobs and generating new revenue for our public schools.”

Tim Fox understands how damaging an anti-business legal climate is for economic growth. He says he will “work with small businesses, lawyers, and community leaders to look for ways to improve our business climate, especially our legal environment, while protecting those who are injured or damaged.”

Finally, while Bucy has called the states’ challenge to Obamacare “contrary to the attorney general’s role,” Fox will protect Montanan’s constitutional rights, and fight to protect the state from the federal government’s overreach.  

This race has attracted significant national attention, with the Republican State Leadership Committee making a $580,000 ad buy in support of Fox. Although Montanans haven’t had a Republican attorney general in 20 years, a recent poll shows Fox ahead 46 percent to 37 percent, with 17 percent undecided.

West Virginia

In West Virginia, incumbent attorney general Darrell McGraw is being challenged by conservative lawyer Patrick Morrissey.  

The American Tort Reform Association ranks West Virginia as the nation’s third-worst “judicial hellhole,” and the state’s attorney general, Darrell McGraw, is a large reason why. According to them, McGraw “remains under fire for running his office as if it were a private personal injury law firm and distributing litigation settlements to programs and organizations of his choosing, rather than the state and its taxpayers.”

McGraw has been attorney general of West Virginia since 1992, and his willingness to engage in contingency-fee arrangements and misuse settlement funds is troubling. According to a 2010 report by Hans Bader of the Competitive Enterprise Institute, which rated McGraw as one of the worst attorneys general in the nation:

In 1996, [McGraw] brought a lawsuit against state agencies that was settled at a cost to taxpayers of more than $2 million, all of which was pocketed by the trial lawyer whom McGraw hired to bring the suit. McGraw also has regularly diverted money recovered by the state from legal settlements to friends and allies,112 endangering West Virginia’s Medicaid funding in the process. As The West Virginia Record notes, he regularly hires “lawyers who are also his faithful campaign contributors. These appointments, most often made without an open and public process, have helped earn outside legal firms huge sums of money in partnership with the powerful office of Attorney General.”

He also diverted, without legislative approval, funds from a recent settlement to open a satellite office, while giving another $1 million to Legal Aid. According to West Virginia Citizens Against Lawsuit Abuse, he has “unilaterally spent more than $430,000 of state settlement funds on advertisements that conveniently promote the attorney general’s name at the same time he is running for reelection.” 

McGraw’s last two elections have been very close. In 2004, he won by only 6,000 votes, and in 2008 he won by only 5,300. Morrissey is well funded and, like Martin, promises to challenge the federal government’s overreach. In a state that is certain to swing heavily for Mitt Romney, this election could leave one of the worst attorneys general in the country seeking employment.  


In Missouri, incumbent attorney general Chris Koster is being challenged by conservative lawyer Ed Martin. This race seems to be capturing more national attention than most. Martin has been endorsed by Senator Marco Rubio and Governor Rick Perry, both of whom have made recent trips to the state to campaign for him. Additionally, the American Future Fund released a statewide TV ad attacking Koster for failing to join the rest of the AGs who challenged Obamacare.  

Koster is co-chairman of the Democratic Attorneys General Association, and is very close to the personal-injury bar, so he shouldn’t have much trouble raising money. But he is not very well known in the state, and what little is known is not flattering. Even the left-leaning St. Louis Post-Dispatch has questioned his character, labeling him “Koster the Imposter” and accusing him of being “a pandering, political Opportunist, with a capital O.” Add in the fact that Missouri is trending rightward and likely to go with Romney by a pretty healthy margin, and Koster’s fundraising advantages are likely to mean a lot less.  

In addition to an unfavorable political environment, Koster will also have to deal with charges that he has used his office to reward trial lawyers who support him politically. According to a recent report by Missouri Auditor Tom Schweich, Koster’s campaign received $170,000 in contributions from 13 of the 28 firms aiming to represent Missouri in lucrative litigation. 

Notably, that was not the first time Koster had to deal with such charges. In 2011 the St. Louis Post-Dispatch reported that Koster opened up the bidding for lawyers to represent Missouri in litigation against the pharmaceutical company GlaxoSmithKline after a New Mexico firm that was seeking the contract gave $25,000 to his reelection campaign. According to the newspaper, Koster received nearly $200,000 from firms seeking work on the same case.   

Martin, on the other hand, promises to fight alongside other conservative AGs who are challenging the national government’s overreach. And a scan of his resume explains why leaders like Rick Perry and Marco Rubio are endorsing him: He has served in leadership positions for the Club for Growth, the Missouri Roundtable for Life, the Archdiocese of St. Louis, the Federalist Society, and the St. Louis Board of Election Commissioners.  He has also distinguished himself in public service, having served as a law clerk to Judge Pasco Bowman on the 8th Circuit Court of Appeals, and as Chief of Staff to former Governor Matt Blunt.  


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