The Ascent Of State Attorneys General As Quasi-Policymakers

by Cozen O'Connor

Casual observers understand the important and dynamic role that State Attorneys General (“AGs”) play across the country, whether that role is actively enforcing their state’s laws, challenging the federal government, or joining together as part of multi-state coalitions. What is less commonly recognized and appreciated is the AGs’ expanding role in spearheading state public policy initiatives, shaping the legislative agenda, and advocating in support of legislation.

Public policy is not created in a vacuum; rather, it involves the interactions of a multitude of stakeholders, notably and increasingly AGs. In their evolving role as quasi-policymakers, AGs regularly play a part in the legislative process. This includes directly through drafting legislation and introducing their own bills where they have the power to do so, or indirectly by working with legislators interested in achieving the same policy goals as the AGs.

AGs have traditionally interacted with the state legislative process by serving in the role of chief legal officer, issuing legal Opinions on the constitutionality of legislation, and testifying at committee hearings. Over the past decade, however, there has been an increasing trend of AGs entering the office with legislative experience, such that today approximately one-third of AGs[1] have, at some point in their careers, served as state legislators. This experience has become significant as AGs act more directly in the legislative arena to develop their own policy proposals and initiatives.

During the 2017 legislative season, AGs proved to be active participants in the policymaking process on a wide range of salient issues permeating the national pulse. The following are just a few examples from this year:[2]

Colorado AG Cynthia Coffman introduces insurance fraud legislation

  • As part of her 2017 legislative package, Colorado AG Cynthia Coffman (R) worked with members of the legislature to introduce HB 1048,[3] a bill that amends state law to strengthen criminal penalties for insurance fraud committed by those who purposefully deceive insurance companies or sell fraudulent insurance policies to consumers. In particular, the bill authorizes the AG to bring criminal charges for insurance fraud against employers who present fraudulent insurance certificates to their employees. The bill unanimously passed the legislature and was signed into law by Governor John Hickenlooper on March 23. AG Coffman applauded the efforts of the legislature by stating: “During the interim, our team sat down with citizens and stakeholders to establish our legislative priorities for the year, and identified how our statutes can be improved to protect Coloradans.”[4] AG Coffman’s past experience includes working as an attorney for the Colorado General Assembly’s Office of Legislative Council and as Chief Counsel to former Governor Bill Owen (R).

District of Columbia AG Karl Racine drafts legislation to improve the District’s Consumer Protection law

  • District of Columbia AG Karl Racine (D) drafted legislation that was introduced by the Chairman of the City Council in March that seeks to modernize the District’s general consumer protection law. The legislation, appropriately titled the “Consumer Protection Clarification and Enhancement Act of 2017,[5]” updates key portions of the District’s Consumer Protection Procedures Act to make it consistent with similar statutes in other states and Federal Trade Commission law. Among other things, the bill defines “unfair” business practices and raises the amount of civil penalties that the District can assess per violation. The bill is awaiting further action by the Council, which is expected to take up the bill following its return from summer recess on September 18. In a press release issued by his office, AG Racine stated, “We [Office of Consumer Protection] particularly want to do more to educate and safeguard vulnerable residents like seniors, immigrant communities, and lower-income residents. I look forward to working with the Council as they consider this legislation.”[6]

Illinois AG Lisa Madigan drafts student loan legislation

  • Following a lawsuit filed by her office against one of the country’s largest student loan servicing companies,[7] Illinois AG Lisa Madigan (D) drafted SB 1351,[8] “The Student Loan Bill of Rights,” which imposes transparency and disclosure requirements on student loan servicers in dealing with borrowers. The bill passed the legislature on May 31 and was presented to Governor Bruce Rauner (R) on June 29, who went on to veto the bill on August 25. AG Madigan denounced the Governor’s veto and in a press release issued by her office she stated: “Today Governor Rauner failed to stand up for struggling student loan borrowers, their families and our state’s economy. His veto of the Student Loan Bill of Rights shows he doesn’t care about the financial reality that student loan borrowers face and has instead sided with large corporations that put their profits before their customers.”[9] Before being elected AG in 2002, AG Madigan served in the state Senate.

Kansas AG Derek Schmidt proposes human trafficking legislation

  • At the request of Kansas AG Derek Schmidt (R), the state House Committee on the Judiciary Committee passed substitute language to SB 40[10] that establishes new criminal charges aimed at reducing human trafficking and sexual exploitation of children and requires holders of commercial drivers licenses be trained to recognize potential cases of human trafficking. The bill unanimously passed the legislature and was signed into law by Governor Sam Brownback (R)[11] on May 24. Before being elected AG in 2010, AG Schmidt served in the state Senate and held the leadership position of Majority Leader.

Maryland Brian Frosh requests prescription price gouging legislation

  • At the behest of Maryland AG Brian Frosh (D), the Speaker of the Maryland House of Delegates introduced HB 631,[12] which was enacted into law by Governor Larry Hogan (R) on May 27. The legislation, which becomes effective October 1, 2017,[13] makes Maryland the first state to enact legislation that prohibits “unconscionable” price increases for essential off-patent or generic drugs, and defines an “unconscionable increase” as excessive and unjustified and which results in harm to consumers because of the importance of the drug to their health and inadequate marketplace competition to ensure access. The legislation empowers the Maryland AG to determine whether a price increase impacting the state Medicaid program is unconscionable. In so doing, the legislation authorizes the AG to demand the manufacturer of a drug provide a statement justifying the price increase, and further authorizes the AG to require, including via a court order, a manufacturer or distributor to provide records or documents relevant to a determination of whether the price increase is unconscionable. The bill also, among other things, allows the AG to seek remedies against a manufacturer that the AG deems to have engaged in an unconscionable price increase, including imposing a civil penalty of up to $10,000 per violation and restraining or enjoining such conduct. AG Frosh was a strong advocate and helped lead the campaign for the bill’s passage. AG Frosh stated: “This bill is important as it will hold drug makers accountable – making them more transparent about potential cost increases – which is vitally important to every consumer.” In a press release issued by his office at the end of the session commending the legislature for taking action on several of his office’s other policy priorities healthcare, public safety, privacy, and consumer protection AG Frosh said, “Working together with advocates and members of the General Assembly, we made great progress this year protecting Marylanders from prescription drug price gouging…[14].” Before being elected AG in 2014, AG Frosh served in the state Senate.

North Carolina AG Josh Stein leads advocacy campaign for opioid legislation

  • In response to the state’s growing opioid problem, North Carolina AG Josh Stein (D) worked alongside a group of bi-partisan lawmakers and interest groups to ensure passage of HB 243,[15] the Strengthen Opioid Misuse Prevention Act” (STOP ACT). The legislation places stricter rules on prescribers and pharmacies to prescribe and dispense opioid drugs and strengthens the state’s controlled substance reporting system. In June, the bill unanimously passed both chambers and was signed into law by Governor Roy Cooper (D) on June 29. Before being elected AG in 2016, AG Stein served in the state Senate.

Ohio AG Mike DeWine explores cybersecurity legislation

  • Last fall, Ohio AG Mike DeWine (R) launched CyberOhio,[16] “a collection of cybersecurity initiatives aimed at helping Ohio businesses fight back against data security threats.” As part of this comprehensive cybersecurity package, AG DeWine is currently working with the Ohio legislature to draft legislation to improve the legal cybersecurity environment in Ohio for businesses and consumers. While legislation has not been introduced yet, the legislature is in session year-round and, with AG DeWine running for Governor in 2018, we can anticipate that legislation may take shape in the coming months. Before being elected AG in 2010, AG DeWine served in the U.S. Senate, as Ohio Lieutenant Governor, and in the state Senate.

Oregon AG Ellen Rosenblum requests emergency immigration legislation

  • In the wake of President Donald Trump’s executive actions against
    “sanctuary cities,” AG Ellen Rosenblum (D) and Governor Kate Brown (D) requested that the legislature introduce HB 3464,[17] an emergency measure that would prohibit “public bodies” such as state and local agencies from disclosing or inquiring about a person’s immigration status except as required by state and federal law. The bill was introduced on June 1 and expeditiously sailed through the legislature with signature by Governor Brown on August 16.

With states taking the lead role in enacting policies and regulations governing a myriad of issues, companies should anticipate the continued involvement of AGs in the policymaking process, particularly as they plan their legal, compliance, regulatory, and political strategies for next year.

[1] AGs Xavier Becerra (CA); George Jepsen (CT); Lisa Madigan (IL); Derek Schmidt (KS); Janet Mills (ME); Brian Frosh (MD); Bill Schuette (MI); Hector Balderas (NM); Eric Schneiderman (NY); Josh Stein (NC); Wayne Stenehjem (ND); Mike DeWine (OH); Josh Shapiro (PA); Peter Kilmartin (RI); Ken Paxton (TX); and Mark Herring (VA).

[2] This list is non-exhaustive and highlights a few examples from the 2017 state legislative season. Many other AGs have taken action on the policy issues referenced.









[11] On July 26, 2017, President Donald Trump formally nominated Kansas Governor Sam Brownback to serve as the State Department’s ambassador at large for international religious freedom. If confirmed, he will resign as Governor.


[13] On July 6, 2017, the Association for Accessible Medicines, one of the main U.S. trade associations for generic pharmaceutical companies, filed a lawsuit in federal court in Baltimore to seek an injunction that would block state officials, including AG Frosh, from enforcing the law.





DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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