President Trump and former Vice President Biden have laid out sharply contrasting visions for the future of the country in their 2020 race for the White House. The winner’s vision and agenda will impact virtually every facet of American life. Following up on our recent analysis of the 10 upcoming races for state attorney general (AG), in this Alert we consider the likely impacts of a continuation of the Trump presidency or a new Biden/Harris administration on AGs’ priorities and areas of focus in the policy and enforcement arenas.
BIPARTISAN INITIATIVES WILL CONTINUE
Regardless of who wins the presidency, multistate AG investigations and initiatives will continue across party lines, especially in the consumer protection space. In cases of alleged false advertising or unfair, deceptive, or abusive practices, Democratic and Republican AGs will continue to collaborate both through coordinated enforcement actions, such as their ongoing opioid investigations, and through advocacy in Congress, such as their efforts to protect victims of elder fraud. Indeed, in remarks to the National Association of Attorneys General’s Virtual Fall Consumer Protection Conference on Tuesday, October 27, Tennessee Attorney General Herb Slattery expressly lauded the bipartisan work of AGs on issues of consumer protection and emphasized how important it is in protecting the public from unscrupulous business practices.
We also expect to see continued bipartisan AG activism around data privacy, especially with COVID-19 having upended traditional models for working and learning. AGs have long been the leading national regulators in this space. As online consumer scams and data breaches continue to proliferate, AGs have repeatedly shown that they will confront companies whose actions (or negligence) expose consumers’ personal data. Community Hospital Systems, which has agreed under the terms of its multi-state settlement to pay millions of dollars in fines and overhaul its data security systems and protocols, is just the latest poster child for AG action in response to an alleged major data breach.
While concerns about data use and user privacy are the primary driver of AGs’ coordinated actions against tech companies like Facebook and Google, AG interest in antitrust is entering a new “golden age” of sorts. In addition to their focus on Big Tech, we expect AGs to continue to address anticompetitive activity that harms consumers by creating barriers for new market entrants, raising prices, and reducing choice. Recent AG interest and activity in antitrust include New York Attorney General Tish James’s lawsuit seeking to enjoin the T-Mobile/Sprint merger, amicus briefs regarding pay-for-delay agreements between branded and generic pharmaceutical companies, and consolidation in the health care industry.
IF PRESIDENT TRUMP IS REELECTED
If President Trump is reelected, it is likely that Democratic AG activism opposing the president’s agenda will accelerate and potentially surpass the caucuses’ efforts over the past four years. In President Trump’s first term, Democratic AGs filed a record number of lawsuits against the federal administration, primarily over its regulatory rollbacks and executive actions related to the environment, education, and immigration policy. With federal agencies such as the CFPB, the FTC, the EPA, and the Department of Education displaying greater restraint in regulating industry than the previous administration, many Democratic AGs stepped in to fill the void. A second Trump term would likely see a continuation of its deregulatory efforts and relatively laissez-faire approach to oversight. Democratic AGs could be expected to continue to move into the perceived breach, doubling down on litigation in the federal courts in an attempt to stop the Trump administration’s efforts to reshape federal regulation. Similarly, Democratic AGs would perceive no choice but to continue to investigate and litigate against bad actors without complementary federal agency support, particularly when compared to the Obama administration.
IF VICE PRESIDENT BIDEN IS ELECTED
Should Biden win, we predict that many federal agencies, including the FTC, CFPB, and the Departments of Education and Labor, will take a revitalized view of oversight of the business community. A significant consequence of this will be increased agency cooperation with AGs, effectively acting as a force-multiplier to AG multi-state investigations of business. One need only look back to the 2012 National Mortgage Settlement involving 49 states, the U.S. DOJ, HHS, and HHS-OIG as a prime model of what federal-state cooperative enforcement would look like under a Biden administration. Nothing of comparable complexity, not even the AG response to the opioid epidemic, has come out of the first term of the Trump administration.
Vice Presidential nominee Senator Kamala Harris also served as the AG of California before moving to the U.S. Senate. Her personal understanding of the authority and power of state AGs will likely vest a Biden administration with confidence that AGs can help execute the president’s law enforcement and policy agenda. Biden’s son, the late Beau Biden, also served as the Delaware AG for two terms, which gives the former veep a unique personal perspective on the role of an AG. Accordingly, a Biden administration is unlikely to be shy about turning to Democratic AGs to partner in enforcement and regulation, and existing relationships between Team Biden and many AGs will likely enhance the institutional comfort between the federal government and state authorities.
At the same time, a Biden administration will most certainly drive an increase in litigation initiated by Republican AGs against the new government, a return to the game plan Republicans ran with considerable success against President Obama. Should the new administration seek to reverse Trump’s regulatory rollbacks related to, for example, environmental protections and for-profit colleges, we expect Republican AGs would use litigation to slow or block policy change.
Within the vast array of cases currently pending in the federal courts — most led by Democrats against federal agencies — we expect AG realignment across many of these matters. None of those cases are likely to be dismissed outright; instead we predict an inversion of the parties’ positioning. In addition, we expect Republican AG-led litigation to firewall any Democratic attempts to regulate the energy economy with further restrictions on carbon emissions, auto emissions, fracking, and pipeline construction. One area of Republican AG activism that is unlikely to change, however, is their scrutiny of the power and discretion of social media platforms to moderate content, particularly conservative political content that Republican AGs have accused the platforms of treating unfavorably.
Finally, if Democrats are successful in their efforts to regain the Senate majority, the party will have control of the White House, the House, and the Senate for the first time since 2010. The Democratic party now includes a vocal and powerful progressive caucus that would advance an agenda focused on “Bidencare,” worker protections, and green energy, among other more progressive agenda items that emerged in this year’s Democratic races. In this scenario, we fully expect Democratic AGs would provide ancillary firepower in advancing these efforts. Industry players in impacted industries — energy, health care, the gig economy, and finance among others — as well as major employers should take note and be prepared.
The 2020 presidential election presents the American electorate with two very different options. Regardless of who wins, however, one thing is certain: AGs will continue to exert significant influence on national policy through litigation and advocacy, and their impact will be felt far beyond their individual states. After November 3, we plan to conclude this series of Alerts with a deeper dive into likely AG policy and enforcement directions.