The 2018 elections: This down-ballot office is taking on lots of national importance


 

A sexual-abuse report in Pennsylvania in mid-August created an earthquake within the Catholic Church.

A court ordered last week that downloadable blueprints for 3-D-printed guns be banned from the internet.

And this week oral arguments began in a federal-court case that could gut the Affordable Care Act.

These disparate developments have something in common: None would have happened without the actions of state attorneys general.

It is the kind of down-ballot office that rarely gets much attention, especially in a heated election season when control of both houses of Congress is up for grabs.

But the outcome of more than 30 attorney general races — with Democrats aiming for pickups in at least five states that are also presidential battlegrounds — could have as profound an effect as anything else that happens in November.

Among the most competitive are races in Minnesota, Wisconsin, Michigan, Ohio, Arizona, Colorado, Nevada and Florida. Total spending on AG contests is expected to reach at least $100 million, which would be a record.

AGs have the capacity to expose the rot in institutions outside of government, as Pennsylvania Attorney General Josh Shapiro has done so admirably with his investigation of the Catholic Church in his state. His work will no doubt spawn probes elsewhere.

AGs have also become the muscle of the resistance, a role given new urgency as President Donald Trump has pushed the limits of executive power and demonstrated contempt for law enforcement. “Trump is willing to challenge the rule of law more so than any president in memory,” says Iowa’s Tom Miller, a Democrat and the longest-serving AG in the country.

But the growing footprint of the state attorneys general is also a symptom of deeper problems — of the intractability of the nation’s polarization, and the fact that political differences can no longer be worked out by the dysfunctional legislative and executive branches in Washington.

The assault that Republican state attorneys general waged on Obama administration policies has been returned in kind by Democratic AGs during the Trump years. It started just days after Trump’s inauguration, when AGs won court orders to freeze his ban on travel into the United States from a handful of predominantly Muslim nations.

The ban was upheld in June by the Supreme Court, but only after the administration rewrote it twice.

Democratic AGs have also sued the administration over family separations at the border, net neutrality, marijuana enforcement and a wide range of regulatory rollbacks.

Republican AGs have not sat back, however. In February, 20 Republican-led states filed a lawsuit to dismantle Obamacare. Among those they will be up against in this week’s oral arguments in Fort Worth, Texas, are 17 of their Democratic counterparts, who are defending the law.

State attorneys general “can freeze in place an entire administration. That has sort of weaponized the position,” says George Brauchler, the GOP nominee in Colorado, who is district attorney of the state’s 18th Judicial District. “They’re becoming like third U.S. senators with a unique set of powers, legislating through litigation.”

His Democratic opponent is former University of Colorado Law School Dean Phil Weiser, a first-time candidate who says he decided to run the night Trump was elected.

“We are watching our federal government take a number of steps that are flatly against the law,” Weiser said. “The position that is uniquely situated to protect people and the rule of law in this moment is state attorney general.”

Attorney general used to be a relatively parochial position, handling consumer complaints, prosecuting criminal cases and giving legal advice to state agencies. They began expanding their reach during the Reagan administration, over its consumer protection and antitrust policies. In the 1990s, state attorneys general of both parties were at the forefront of legal action against tobacco companies, which resulted in a landmark $206 billion settlement.

But it was not until the Obama years that attorneys general emerged as the parapolitical force we see today.

In 2013, then-Texas Attorney General Greg Abbott summed up his typical workday: “I go into the office, I sue the federal government and I go home.” Abbott is now governor.

Republicans wrote the playbook, but Democratic attorneys general are now following it. And come January, there are likely to be more of them telling the Trump administration: See you in court.

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