State Attorneys General Take On National Fights

This article originally appeared on Stateline, an initiative of the Pew Charitable Trusts.

When a bipartisan bunch of state attorneys general announced this summer they had cut a deal with phone companies to crack down on infuriating robocalls, Democratic Attorney General Josh Stein of North Carolina led the news conference in Washington.

When four AGs — two Democrats and two Republicans — pursued a settlement framework with opioid manufacturers last month, Stein was on board. And when prosecutors decided to investigate Facebook and Google earlier this year, Stein was among the core group of state attorneys general of both parties steering the probes.

He was the first to sue Juul, the e-cigarette company; he joined a coalition of Democratic attorneys general opposing the end of the Deferred Action for Childhood Arrivals (DACA) program for immigrant children; and he submitted comments on behalf of 22 Democratic AGs opposing the Trump administration’s proposed changes to a federal fair housing rule, which they say would make it harder to prove discrimination. He also joined the states suing the Trump administration over its plans to undermine the Obama-era Clean Power Plan.

Stein, 53, has inserted himself into nearly every high-profile action that state attorneys general have taken since he started the job in North Carolina in 2017.

He is emblematic of a new kind of state attorney general — more aggressive, often bipartisan — rising to prominence nationwide. What used to be a relatively high-profile position within a state’s boundaries has become a springboard for publicity across the country.

As politics on the national level becomes more polarized, and with Congress stymied by attention on a presidential impeachment investigation, attention has increasingly turned to the states, where legislatures are primed to act, governors have some real power and attorneys general are stepping up, particularly on consumer issues where the federal government has largely stepped away.

In the first two years of the Trump presidency, attorneys general as a group filed or joined 61 lawsuits against the administration, including challenges to the Clean Power Plan rollback and separations of migrant children at the Southern border, according to the Center for Public Integrity, a Washington-based news organization. Under Stein, who took office the same month as Trump, North Carolina was part of many of them.

To be sure, during the Obama years, it was Texas Attorney General Ken Paxton and his red-state peers who led the charge against the president’s policies. Now, it’s Democrats such as Stein, Xavier Becerra in California and Letitia James in New York.

No one seems more poised to take advantage than Stein, whose activism stands out, even among his peers. Particularly visible is the way he interacts with Republican AGs as well as members of the GOP in his home state. He is one of only a handful of Democratic AGs who must contend with a Republican-dominated legislature.

Stein has used consumer issues to ingratiate himself with North Carolina voters and the GOP-led legislature. Meanwhile, showing that he can fight Trump-led Republican initiatives has boosted his national Democratic profile.

“It is designed to have positive effects and boost their credentials if they have ambitions for higher office, which it is fairly clear that Stein does,” said Andrew Taylor, a political science professor at North Carolina State University. “He’ll demur, as they usually do, but you might be able to detect it from his eyes.”

Former Maine Attorney General James Tierney, a Democrat who now teaches at Harvard Law School, said fraud “doesn’t have a partisan hat” when attorneys general are going after bad actors. But, he said, Stein and other AGs are “not going to get elected or re-elected based on what they do on robocalls.” They may work across party lines on corporate fraud or consumer protections, but when it comes to election time they usually revert to party positions, he said. 

In his first term in office, Stein also is working to make a name for himself on the interview circuit. According to a tally by a North Carolina business publication, he conducted at least 14 media interviews in September, mostly on opioids and vaping, appearing on many national outlets as well as in North Carolina media.

So, are Stein’s demonstrations of bipartisanship and activism a signal that he is running for higher office?

“It’s the job,” he said in a recent interview in an austere conference room next to his office in a Raleigh building that sits kitty-corner from the Greek Revival-style, 1840 Capitol building. “My job is to protect the people of North Carolina. That’s why I ran for the job. I love this job and I’ll seek re-election as attorney general and cross my fingers that the people will re-hire me.”

As for higher office?

“My imagination is not that big. I’ve got to win re-election in 2020.”

His imagination may not stretch that far at this moment, but others’ have. Lawmakers in North Carolina point out that Stein’s predecessor in the AG’s job, and the man for whom he worked as an assistant attorney general, Democrat Roy Cooper, is now North Carolina’s governor. That was the same path followed by the previous AG, former Gov. Mike Easley, also a Democrat.

Republicans certainly are paying attention. Perhaps reluctant to be quoted praising a rising Democratic politician, neither of the two GOP attorneys general who joined Stein in Washington, D.C., earlier this year to tout an anti-robocall deal with telecom companies would comment on Stein for this story, when approached in person at a recent national attorneys general conference.

New Hampshire Attorney General Gordon MacDonald said he didn’t have time, and Arkansas Attorney General Leslie Rutledge sent a bland email saying she “has a long track record of working with her colleagues across the aisle” without mentioning Stein by name.

When Stein says he is homing in on his reelection, there’s truth to his potential vulnerability in a state that is divided nearly 50-50 between Republicans and Democrats. Stein points out that he won his current office with 50.2% of the vote in 2016. He previously served in the state Senate from 2009 to 2016.

In an interview with Stateline, Stein’s focus was on describing his work. But once through with the session and after posing for some photos, he darted away with a quick handshake, no time for small talk. It was just one day after he announced the expanded investigation into Facebook, part of an effort of an AG steering committee on which he served and which was first pursued by New York, and there was no time to waste.

Divided Government

Paul Nolette, political science professor at Marquette University in Milwaukee and author of the 2015 book, Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America, said AGs operate on two tracks — partisan and nonpartisan. The bipartisan part, he said, involves investigating corporations and consumer protection.  The partisan half is about suing the federal government to block administration policies.

“Someone like Josh Stein, who represents a swing state, has even more incentive to work across party lines than someone like Xavier Becerra who represents California which has gotten even more Democratic over time,” Nolette said.

While Stein pursues his lawsuits and investigations nationwide, there’s no getting around the fact that he has to deal with divided government in North Carolina. The legislature is controlled by Republicans. Sometimes, Stein is able to work with them, as on the opioid crisis, but other times they butt heads.

In 2017, the GOP-led legislature cut $10 million from the state Justice Department’s budget.  Stein and fellow Democrats maintained the cuts were related to his activism, but GOP lawmakers issued on-the-record denials. Stein eliminated 45 positions from his staff, shifted some work to district attorneys and cobbled together help from other state agencies, commissions and boards.

But on legislation to address the opioid epidemic, which has affected rural areas severely as well as cities, Stein fared better with state lawmakers.

The legislature approved a bill to limit prescribing of opioid painkillers and another to beef up law enforcement tools and crack down on health care workers and first responders who steal the drugs and then sell them. A sticking point was providing more money for drug treatment and recovery services in the second bill. The measure “expresses the General Assembly’s intent” to do so but didn’t come up with extra funds. Cooper signed both into law.

State Sen. Jim Davis, a Republican who worked closely with Stein on the opioid bills, said passage would have been impossible without Stein. On paper, Davis and Stein could not be more different. Davis is a 72-year-old orthodontist from the mountains. He drives 315 miles one way to Raleigh every week the legislature is in session. The seven counties he represents are overwhelmingly Republican.

Stein comes from Chapel Hill, in the more liberal Democratic part of the state. He’s the son of Adam Stein, a noted civil rights attorney who worked on the landmark 1971 U.S. Supreme Court decision in Swann v. Charlotte-Mecklenburg Board of Education, which unanimously upheld busing programs for racial integration of public schools. He was born in Washington, D.C., but grew up in Chapel Hill.

But Davis said he and Stein both were aware of the ravages of the opioid crisis throughout the state. Conservative Republicans, Davis said, did not want to include more regulations and more money for treatment facilities — things that Stein and the Democrats, and Davis, to some extent — wanted in the bill.

“I got opposition in conservative circles,” Davis said. “We lived to fight another day.” He said if opioid lawsuits get settled and there’s money available, perhaps there’s a chance for more regulations.

Davis said he wouldn’t be surprised if Stein ran for governor, and possibly higher office someday. “I’ve told him I didn’t vote for him for attorney general,” Davis said. “But on this [opioid] issue and a lot of other issues, Josh and his staff have done a good job.”

Stein links his work on the Facebook investigation and other nationwide issues as just extra efforts to protect North Carolinians.

“There have been conversations among attorneys general about these companies for years,” he said, mentioning Facebook and Google, which is also the target of a 50-state attorneys general investigation. Stein co-chairs the AG’s consumer committee, which looks into consumer-related issues such as those raised in the Facebook and Google cases.

E.S. “Buck” Newton, the Republican attorney general candidate whom Stein beat in 2016 in that nearly 50-50 race, says Stein is too “activist” in the national cases. As for investigating Facebook, Newton said there are a lot of “mixed opinions” in North Carolina about the social media platform and alleged that Stein is more interested in “his own profile” than “what the people of North Carolina think.”

Voter ID Law

Nothing rankles Stein’s critics more than his decision not to defend the state at the U.S. Supreme Court in 2017 over a voter ID law.

Shortly after taking office in January 2017, Stein and newly elected Democratic Gov. Roy Cooper asked the high court to dismiss the case, forcing the legislature to hire its own attorneys to defend the statute. The law would have required voters to present certain forms of identification at the polls. The Supreme Court refused to reinstate the law, which already had been struck down by a federal appeals court that said it unfairly singled out African Americans.

More recently, the voter ID law has been revived by the legislature, which in December overrode Cooper’s veto of the new bill. Another lawsuit has been filed, but the courts so far have ruled that the law can take effect in 2020, while the new lawsuits are pending.

Stein is opposed to any effort that “impedes voters’ access to the polls,” his spokeswoman said, but added that he would defend the new state law.

North Carolina state Sen. Warren Daniel, another Republican, said Stein “let his personal political beliefs” get in the way of defending the state on issues like voter ID. “He’s politicizing the office by joining the state in these multistate lawsuits to attack the president.”

But Stein sees his actions in some of those lawsuits, such as the one to prevent dissolution of some of the Obama-era Affordable Care Act provisions, as a natural progression of his fight against opioids.

“Without a way to pay for health care, a person cannot access health care,” he said in the interview. “Defending the Affordable Care Act … is fundamental to me.”

In a state where everyone in politics seems to know everyone else, regardless of party, Daniel recalled playing on the legislature’s basketball team with Stein, whom he describes as a pretty good guard with “the right range of aggressiveness” at the position on a team that beat South Carolina’s legislators in an interstate game.

And when Daniel needed help on a family request, Stein obliged.

It was Daniel’s mother-in-law, Mary Lou Avery Furr, who sought the help. Furr is descended from Waightstill Avery, who was named North Carolina's first attorney general around 1776. A ceremony conducted by the local chapter of the Sons of the American Revolution marking Avery’s grave was planned for July last year, and Lydia Furr asked her husband to corral Stein, the 50th AG, into speaking. Despite being “somewhat conflicted as a member of the opposite party,” Daniel asked Stein to speak.

“He did a good job,” Daniel conceded, and, maybe more importantly, “My mother-in-law was happy.”