This is the third in a series of articles by the Cozen O'Connor State AG team providing guidance on what corporate America needs to know in planning legal, regulatory and political strategies to anticipate and react to shifts in the AG landscape. We go beyond the basic who-what-where of the election cycle and provide you with insights to properly prepare for the election outcomes. To read the first and second articles in our series, go here:
- State Attorney General Elections Matter: Preparing for November 2022
- Past as Future: AGs' Prior Experience Can Shape Their Priorities and Policies
The 2022 election cycle for state attorneys general is squarely upon us, and the outcome of these elections will affect the staff attorneys and supervisors serving in AG offices across the country. In the 9 open seat races, the name on the AG's door will certainly be different come January 2023, and in today's volatile political environment that number could be quite higher. At the same time, businesses seeking to understand how an AG election (or post-election transition) could impact their business should consider not only the chief office-holder, but also the staff serving in the current administration. The old adage that "the more things change, the more they stay the same" is popular for a reason. It is a fitting description for how much continuity AG staff bring to the offices in which they serve.
Understand the Role of AG Staff to Understand the Office
To fully appreciate the ability of AG staff to influence an incoming administration, businesses must first understand the roles played by these individuals and the indelible imprint they leave on the offices they serve. They are often, if not exclusively, responsible for the day-to-day operations of the office. They conduct investigations, interface with their counterparts in other AG offices and various federal agencies, litigate cases, respond to open records requests, and provide legal counsel to other state agencies and their colleagues within the office. In other words, they know the most about how any particular division operates and, in some areas (such as consumer protection or antitrust matters), how similar work is being done by AG offices in other states.
For businesses trying to predict how an incoming AG may execute on the priorities he or she articulated on the campaign trail, they need look no further than the past. Rapid, tectonic shifts in how an AG office functions are unusual, as this article will explain, although they can certainly happen, particularly when a political party changes—witness the staff turnover in Virginia when Republican Jason Miyares replaced Democrat Mark Herring in 2022. Even with an increasingly politicized election atmosphere, the shifts we often see after a transition typically are much more subtle – and sometimes quite slow. Internal reorganizations. An uptick in investigations of a certain kind. Or the quiet settlement of certain claims. And it makes sense if you stop and think about it.
These individuals were hired either to enforce or to defend the law – and those laws rarely disappear after an election. State constitutions (which state AGs typically swear an oath to defend), ongoing investigations, litigation, and statutory responsibilities to other state agencies typically also endure. Might a new administration reorganize certain functions within the office? Sure. Is it possible to see more interest in certain cases? Absolutely. But even in those cases where priorities are realigned with a new administration, the execution of those priorities rests on the shoulders of AG staff. Those seeking to understand how an investigation might unfold, or what position a new AG might take on a particular issue, should start by carefully examining how similar matters have been handled previously by AG staff in that particular office.
AG Staff Transcend Administrations and Party Politics
While the number of political appointees varies from one state to another, most incoming AGs hand-pick the individuals who will serve as their closest advisors. The titles for these positions vary from one office to another, but typically, they include someone who serves as the equivalent of a Chief Deputy (or General Counsel), a Chief of Staff, a Solicitor General, policy advisors, and a communications teams. Many will report directly to the AG, and they often serve in what we refer to as "the Front Office."
However, the majority of AG staff serving a state AG are not political appointees. These individuals work in a variety of divisions, sections, or units that exist within the office, assigned to specific issues like consumer protection, Medicaid fraud, or handling criminal appeals. Some will have developed significant expertise in their practice area(s) by serving in multiple prior AG administrations.
Many of these individuals will be offered the opportunity to serve an incoming administration because of this expertise and experience with the office. Of course, how an incoming administration assesses the current AG staff will vary widely depending on the office, the state, the incoming AG's priorities, and particularly whether the transition involves a change in political party.
During a transition involving continuity in party affiliation, an incoming administration may work closely with the incumbent AG's administration in the weeks following the election – on both personnel and administrative matters. Those transition teams may opt to interview only management-level employees, with an expectation that any employee working for those individuals will be retained on the basis of the manager's recommendation or upon a cursory review of the employee's personnel file. However, even a new AG of the same party may have different priorities or interests, which can further impact personnel decisions. In states where an election begets a change in party affiliation for the office, the incoming administration may take a "hands off" approach with existing AG staff until after inauguration. At that point, AGs taking over large offices in particular may take a similar approach of only interviewing management-level AG staff, as re-interviewing hundreds of employees is simply impracticable. In small offices, though, an incoming administration may take a different or more personal approach, scrutinizing every line-level attorney as they determine how to allocate resources and priorities.
Staffers Abide
Yet, regardless of the approach taken by an incoming administration to acquaint itself with the staff, the reality is that most state AG offices experience limited turnover both before and immediately after an election. So why is that?
Practically speaking, retaining personnel is essential for the office to function. Investigations must continue. Litigation deadlines must be met. State agencies must be advised. Proposed legislation must be reviewed. Lawsuits against the state must be defended. Massive turnover, either immediately before or after a transition in an administration, would cause the office's operations to grind to a halt.
But most importantly, institutional knowledge must be retained. A wholesale firing would leave very few individuals to advise the new administration on how the office functions, why certain tasks are handled in a particular manner, and more importantly, the potential risks in deviating from those practices.
Moreover, replacing AG staff with particular expertise in a given area is a time-consuming and expensive endeavor. Competition in the labor market is at an all-time high, especially for attorneys with litigation and regulatory experience essential to an AG's office. States budgets can rarely be stretched to accommodate the wages offered by either the private sector or even federal agencies. As a result, AGs' ability to recruit new employees may be severely limited. For this reason alone, businesses should expect to see incoming administrations opt to retain more of their existing AG staff.
It would be a mistake for any outsider to underestimate either the influence or experience of AG staff, including their ability to shape the execution of both enforcement efforts and policy in general. Most incoming AGs will look to retain the institutional knowledge held by these individuals – for their own benefit and the benefit of their constituents. Therefore, at election time, as AGs come and go, the one thing that will likely be a constant is the staff. It's not just valuable, it's critical to get to know them, as people and as professionals. They are key to working smoothly through change and advancing business interests with an AG's office.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
