Stephen Cobb

Welcome to the fourth season of State AG Pulse. In this season, we’re diving into the state and federal political landscape and the run-up to the 2024  general election. We’re talking with our colleagues at Cozen Public Strategies to uncover information and insights to help business leaders make better decisions.

Chris Allen

Hello, and welcome to this week’s episode of State AG Pulse season four. This is episode eight and the final regular episode of this season. So for those of you who have tuned in to the whole season, thanks for listening. For those of you who are tuning in for the first time, welcome.

My name is Chris Allen. I am a partner in the State Attorneys General Group at Cozen O’Connor. And today I am excited to be joined by Ketan Bhirud. Ketan is a fellow partner here in the State AG practice, with an extensive background as a former Deputy AG in the Nevada AGs office. Ketan, thanks for joining us today.

Ketan Bhirud

Thanks for having me, Chris.

Chris Allen

And Ketan is a new voice for the podcast, not to the practice, but our other colleague joining us is not a new voice. Emily Yu, Associate in the State AG practice, formerly of the Arkansas Solicitor General’s office. How are you, Emily?

Emily Yu

I’m doing well, thanks for having me back, Chris.

Chris Allen

Great. So in today’s episode, we’re going to take a look at our, the remaining four primaries that we have not discussed yet on this podcast. That’ll be West Virginia, Utah, Missouri, and Vermont. And then we’re going to lead from that into a discussion on something I think is a fascinating topic and really relevant for the business listeners in our offices, which is the role that AGs have played as advocates and influencers when it comes to federal regulation in the country and how they are interacting with the administrative state on a federal level and in their own states.

So, let’s kick it off with a race that we may be a little late, but better late than never. West Virginia had their open seat primary on May the 14th. Current AG Patrick Morrisey, is running for governor and secured the Republican nomination. But Ketan, let me turn to you. What can you tell us about the candidates that emerged from that election, in terms of replacing General Morrisey?

Ketan Bhirud

Yeah, we have JB McCuskey on the Republican side and Teresa Toriseva on the Democrat side, and they have a few similarities. They were both born and raised in West Virginia, with McCuskey from Harrison County and Toriseva from Marshall County, so not too far away. They both graduated from West Virginia College of Law, so both West Virginians. Taking a little bit different career paths, Toriseva hasn’t held any elected office yet, most of her practice has been in private practice more as a plaintiff’s attorney. She has served as a Special Assistant Attorney General, helping out the AGs office a few times.

McCuskey, while having I think, worked some in private practice, worked at the Department of Defense and has had elected positions. He was a member of the West Virginia House of Delegates and a state auditor. McCuskey, as we mentioned, lifelong Republican. His campaign’s focusing really on conservative values and trying to distinguish himself as the conservative in the race. And his key campaign issues are from his website he says, energy and coal, not surprising. I doubt anybody in West Virginia is running without saying energy and coal is either their top issue or one of their top issues. The Second Amendment, community and safety, and then government transparency and ending corruption.

On Toriseva’s side, some similar issues. She’s also running saying she’s very supportive of the energy and coal industry. She’s also, and we’ll talk about this a little bit later, making second amendments, and she would not term it as the life issue, but a reproductive rights issue for portion of her campaign. She’s focusing on consumer protection with McCuskey, at least from his website has not highlighted. And then also crime transparency, communities, just like McCuskey.

And so just real briefly, not surprising, they’re both talking about energy and coal. They both recognize the importance of the coal industry to West Virginia’s economy. McCuskey’s focus is a little bit different, he’s focused on what he’s saying is fighting the federal policies that harm the coal industry and promoting energy independent. Toriseva, with somebody, a democrat of the same party, someone of the same party, a Democrat in the president’s office is talking less about that and more on working cooperatively with the energy industry.

And then in terms of the Second Amendment, I think West Virginia is in place now where you probably need to say your pro Second Amendment, be pro guns, and both of them are. And then the other issue where they differ a bit is on the issue of life and reproductive rights. Toriseva says that she’s pro-choice and that she pairs that up with her pro Second Amendment. She terms it as an individual, she discusses it as an individual right and lumps them both together. And then McCuskey on the other hand says he’s proudly pro-life and committed to defending the rights of the unborn. So, a little bit of similarities, a little bit of differences between the two of them.

Chris Allen

Yeah, and I’m glad you highlighted that because it is going to be interesting. West Virginia has been, it’s been an outlier state, a state that is I think, deeply red in a lot of respects, but every once in a while we’ll send a Democrat to Washington or swing Democrat to the Governor’s mansion. And I think that’s, we’re going to get into this a little bit later, but Teresa, when you talk about JB, whichever one of them wins, I could see them become, them weighing in on these state challenges or maybe not challenges, but at least making sure West Virginia’s voice is heard as the country continues to undergo an energy transition, because we have seen AGs be some of the, maybe not the last, but among the last politicians in the US that are willing to cross party lines, are really more engaged in bipartisan advocacy when it comes to issues really important to the citizens of their states.

So let’s turn to the Utah AG’s race and West Virginia is a state that sometimes likes to do things a little differently, like every once in a while they’ll send a Democrat to Congress or elect one governor. Utah I don’t think is going to be a state that’s going to elect somebody who doesn’t have an R by their name, but it’s interesting in that they had both a convention and they’re going to have a primary, which is set for June 25th. And so those running in the primary included Derek Brown, who’s a former Chair of the Utah Republican Party. Frank Mylar, who worked at the Attorney General’s office before starting his own law firm. Rachel George Terry, who is the current Director of the Utah Division of State Risk Management, and also had some history with the Utah League of Cities and Towns, and also worked in the AG’s office. And so you have a variety of candidates here coming into this with a significant background in what it takes to make policy, but also how Utah works, how Utah politics work. Some of them have seen it from inside the AG’s office, some of them like Derek Brown, from legislature.

It’s going to be interesting, at the convention, I think there was some thought that Derek Brown, given his profile in the state, might carry it, but instead he was defeated and Mylar and Terry proceeded. But of course, Brown had already collected signatures and so you’re actually going to have three Republicans on the ballot. And so looking at this race, Ketan, you’ve had Sean Reyes there for a long time, he has been a very influential leader among his colleagues on traditional conservative issues, also on tech issues. And I think whichever of these candidates gets into office, I don’t think you’re going to see a significant sea change in how Utah does its business or its profile among its fellow Republican AGs.

Ketan Bhirud

My answer here is probably, it’ll save us time because it’s pretty short. I don’t anticipate any significant changes in, at least at a larger level in how that office operates. Now, each candidate, each AG when they come into office, is an individual, they each have different priorities. And so Sean Reyes and assuming Derek Brown wins, Derek Brown could agree on every issue in the world, but they would probably, even if they did, still care at different levels about each of those issues. And so while I think we probably won’t see any big sea changes in terms of the policy direction of that office, the importance of individual policies could wax or wane, depending on who comes into that office. And it’s something important for companies to keep an eye on because depending on what industry they’re in and whether they’re in investigation or they’re potentially being investigated by the Utah AG’s office, they may have a more favorable or less favorable environment after this election. Like I said, I don’t expect it to shift from one end of the spectrum to the other, but even moving along that spectrum can be helpful at times.

Emily Yu

I would say I would agree with what Ketan said, that if there are any big differences in how the office continues to work when the next AG is sworn in, I think it would be a matter of the new AG’s personal style and working style. While substantively there may not be any big or substantial changes in policy positions, the way the office operates on a day-to-day basis may change significantly depending on the new AG’s working style, whoever it is.

Chris Allen

Those are both great points. I guess I should have mentioned before, there are going to be non-Republican candidates on the Utah ballot. You have Rudy Bautista, who is a former criminal defense attorney who has the Democrat nod. Again, being Utah, you have a libertarian, Andrew McCullough, who is a First Amendment advocate, and then Michelle Quist with the United Utah Party. So, I don’t know whether any of them will necessarily act as a spoiler or not. I think the favorites are still the Republican candidates, but I don’t feel comfortable looking at the results at the convention where Mylar got fewer than 60% of the vote to Terry’s 40%, but then with Brown and his ground game, being able to collect all those signatures. It’s a hard state to handicap and I don’t think I’m going to try on this podcast. I don’t know if either of you are brave enough to do it.

Ketan Bhirud

I would say Derek Brown’s very likely to prevail in this race, that would be my prediction.

Emily Yu

The only thing I would add as someone who had a prior life in the campaign world is, the way these conventions and caucuses and firehouse primaries, all of these in-person election events work are so different from how actual primary or an actual general election where everybody is welcome to come to the polls work that I just don’t think what we saw happen at the convention is a great indicator for how the actual election will go in June or in November.

Chris Allen

I agree with that point, and I don’t disagree with either of y’all, so you’re braver than I am, but what else is new?

Let’s turn now from Utah to Missouri. In Missouri, you have a primary not for a while yet, coming up on August 6th. And in that you’re going to see Andrew Bailey who is the incumbent attorney general, facing off in the primary against Will Scharf. So General Bailey, he’s been attorney general for several years now. He is a combat veteran, a former state prosecutor, he’s undertaken several issues in Missouri. Criminal justice has been a big one, making sure that people of Missouri are served. Also, he’s been a leader on a lot of conservative causes, signing amicus briefs, leading challenges against the regulations coming out of the Obama Administration, but he has drawn a challenger. And Ketan, you want to talk about Will Scharf, the challenger?

Ketan Bhirud

Yeah, so Will Scharf is somebody who’s well-known to people in Republican circles and conservative lawyer circles for a long time. He formerly worked for Eric Greitens, and he’s been around for a long time. So Will is and presents himself as a constitutional attorney, a former violent crimes prosecutor and a conservative activist. Very smart guy, graduated from Princeton University and then went to Harvard Law School, where he was president of the Federalist Society. He’s clerked for two conservative federal appeals court judges. And so his bonafides in the Republican Party and in the conservative world would be pretty hard to question.

And in terms of his professional experience, what he plays up and what he’s most known for is he’s now one of Donald Trump’s personal attorneys involved in defending President Trump. He’s had some key victories for him, including at the United States Supreme Court with the law firm that he is working at. He was active in the confirmations of Justice Barrett, Brett Kavanaugh and Amy Coney Barrett, and after that he was a violent crimes prosecutor at the US Attorney’s office for some time. And so I think he’s really trying to position himself very much as a conservative fighter for Missouri when he, on his website, his campaign issues, he lists fighting for President Trump, illegal immigration on the border, fighting corruption in Jefferson City, combating violent crime and things like that. And so he’s a formidable challenger for an incumbent of the same party, more often than we see.

Chris Allen

Yeah, it’s going to be a really interesting race down there in August. I know that things are pretty close, regardless of who prevails, you’re going to have somebody who I don’t think their conservative bonafides are really questioned. It’s just again, the kind of approach they’re going to take, in terms of Missouri issues.

We’ve talked about three states where we, I think the general consensus as a Republican is going to prevail. Although again, I should add in Missouri, you do have a Democrat running, Elad Gross, that is the only Democrat who’s registered there. So, whoever wins between General Bailey and Will Scharf is going to face Elad Gross in the general. I think you can probably forecast a Republican is going to win that race, but again, we will see what happens in the fall.

Turning now to Vermont, Emily, General Clark, the only attorney general left in the nation who has to unfortunately go through this process every two years instead of four. What can you tell us about Charity’s race?

Emily Yu

Well, there are two other candidates running in the general election. You have a Republican candidate, Brooke Paige, and I was just doing some research into Mr. Paige and it looks like he’s on the ballot for four separate offices this election.

Chris Allen

Friends up in Vermont like to do things a little differently. I believe that Mr. Paige has stood in elections at least eight years, perhaps more. So you’re talking about a perennial candidate there. Again, he is running with an R next to his name. I think General Clark also has somebody from the Progressive Party, Elijah Bergman running up there. I think General Clark replaced TJ Donovan, who replaced Bill Sorrell. You have a string of Democrat AGs who I think have done a really good job building their profile, especially as consumer advocates up in Vermont. In fact, General Clark, while we’re on that subject, recently, a bit of a tango with the governor over some legislation that she felt very strongly about. Right, Emily?

Emily Yu

Yes, so just a couple days ago here, AG Clark put forth a very detailed statement making her case against the governor’s veto of the Vermont Data Privacy Act, which she was very much in support of. And if and when she is reelected, I can envision her trying to advance similar legislation again. Not sure if the result will be any different, so long as she’s working with a Republican governor up in Vermont, but.

Chris Allen

Well, you never know. And it’s interesting that in Vermont you have an AG pressing a data privacy bill, and I think we’ve seen that across the entire country because AGs are really the tip of the spear. They are the national leaders on data privacy in the absence of federal data privacy regulation legislation, which appeared might be going somewhere in this Congress and I think it’s safe to say it’s not anymore.

But that leads us into the second part of our discussion, which is, AGs played I think over the last two decades, an increasingly important role as balancers of federalism in our system. And we were talking a few minutes ago about West Virginia, and I think as you pointed out, Ketan, whether it’s Toriseva or whether it’s McCuskey, either the Democrat or the Republican who prevails there, energy issues are going to be extremely important to West Virginia. And AGs advocating for the interest of their states and the issues important to the citizens of their states has been one of the last areas of bipartisanship you’ve really seen in recent times in the country.

And so Ketan, you were a former Deputy in Nevada. Emily, you worked in the Solicitor General’s office in Arkansas. So both of y’all had front row seats to AGs advocating, especially at the federal level to make sure their interests of the states and citizens were heard. So can you talk a little bit about what you’ve seen and your experiences in this area? Ketan, you want to go first?

Ketan Bhirud

Sure. So I’ll start with the most bipartisan aspect of the federalism attorney generals challenging the US government is that both Democrats and Republicans tend to take opposite positions on this issue depending on whether or not the president is of the same party as them. And so right now with President Biden, you see Republicans… As a Republican, we are a party of state right, and limited federal government, but we are maybe a little bit more vociferous about that than we were during the previous administration. Whereas with the Democrats right now, you’re seeing them line up to support federal initiatives. And as someone who worked at the Department of Homeland Security managing litigation over a lot of our immigration portfolio, I would say that they were not as supportive as some of the President Trump’s federal government programs and policies. And so you see quite a bit of a change here depending on that.

So even the energy issue with West Virginia right now, you’re seeing a lot of activity from Democrats defending federal regulations and policies against the state led challenges from the Republicans, or seeking to expand protections at the state level. So for example, a lot of actions with Rob Bonta, he’s supporting the EPA’s greenhouse gas emission standards, leading that effort, Democrat AGs are supporting the CFBP’s rules to detect and deter corporate offenders on these issues.

And then on the other side of the aisle, you’re seeing Republicans pushing back against us what they may see as federal overreach. And so you have Ken Paxton’s leading a 19-state coalition, challenging the Federal Energy Regulations Commission’s rules that he claims that are forcing green energy transitions on states. Alabama AG Steven Marshalls leading a 19-state against California and others over energy policy regulation, [inaudible ] on their state authority. And you have in Nebraska, AG Mike Hilgers is leading a multi-state coalition in lawsuits to stop the electrical vehicle mandates imposed by the Biden Administration and California truck owners and operators. So you’re seeing a lot of affirmative litigation from the Republicans right now and more support letters from the Democrats. And if President Trump wins, I think that we’ll see a difference in tactics.

Chris Allen

Emily, Emily, do you think part of this, you’ve seen it from the inside writing amicus brief, writing comment letters to federal agencies. Is part of this a function of just, we do so much governing now, not by congressional act, but by administrative regulation, and that opens the door for challenges, whether you’re talking about arbitrary and capriciousness or now you have the major questions doctrine, since a case that West Virginia AG Morrisey prevailed on against the EPA. Do you think that’s one of the things that’s really motivating this?

Emily Yu

I really do think so. I think AGs offices, while many of them have the powers to participate in the state legislative processes, it seems not sure if it’s as of late or I’ve just been more tuned in recently, that AGs are trying to affect federal rulemaking and even lawmaking by bringing these lawsuits, and less frequently filing comment letters. But I really do feel like there has been an uptick in lawsuits and not just commenting, which racking it up just one level of how aggressive AGs have been, especially Republican AGs in challenging Biden Administration actions. And to tie it back to some of the examples that Ketan mentioned earlier with recent sign-on letter efforts that a lot of Republican AGs have participated in, I think the three Republican states, current Republican AG states that we discussed earlier, West Virginia, Utah, and Missouri. These are all great examples of states that have led and we can see a lot more potential for new AGs coming into office in these states to lead on sign-on efforts.

A state like West Virginia, naturally poised to lead on energy issues. Utah having so much of the state be federal lands, that is both a position that the AG can really work to their advantage and speak from authority on fighting federal overreach on federal lands issues and other federal overreach issues, but also a message that resonates with voters in that state. As we know, AGs are always thinking what they may need to court voters for the future about. And with Missouri politics there being further to the right than we’ve seen in the past, that’s going to be a position from which any AG current or future can lead, as AG Bailey has with signing on and joining a lot of multi-state efforts to legislate by commenting and suing.

Ketan Bhirud

I’d agree with Emily that the lawsuits are a whole different level than the comment letters. They tend to be a lot more effective because if the states win, they can get a policy halted or changed or have a different effect. Whereas the comment letters, who knows what effect they have. I would say from my personal experience when I was at the Department of Homeland Security, if I had 26 Democrat AGs send me a letter, I could look at it or not look at it and throw it right in the trash. But if I had two, three, four, five, six of them suing me in six different jurisdictions, that caused a whole lot more headache. Obviously I’m joking about throwing it in the trash without reading it, but I’m exaggerating for effect about how much of a difference there can be when you’re facing a lawsuit and when you get a mean letter.

Chris Allen

Yeah, yes, we heard you. It’s not, we didn’t disregard you or didn’t disregard the APA, the Administrative Procedures Act, but we still think this is the better idea.

I think you guys are both… It’s really a fascinating thing in the time that I’ve been in this space to watch, because I remember when this really, it was, you had some AGs taking these kinds of actions during the Bush Administration, but it was really in the Obama Administration where you hit a lot of legislative gridlock, especially when the Republicans took control of the Congress where the Obama Administration, rightly or wrongly decided they were going do things by administrative fiat and executive order.

And then you had Republican AGs, I think Greg Abbott was one of the leaders of this deciding, no, the states have federal rights. They have special standing, established, ironically by Democrat states suing the EPA [inaudible ] EPA and we’re going to use that. And they bring their lawsuits and then they tally it up, and then I think the Democrats saw that as a challenge. And so as soon as Donald Trump got into office, you saw the Democrats actually keeping a running tally of how many lawsuits they had filed against him. And then now the Republicans under not just big states like Texas or Florida, but like you said, you have Kansas, you have Missouri, you have Iowa. All the states are sharing the burden now of taking the action to try and halt administrative actions by the Biden Administration. Regardless of who wins in this year, Donald Trump or Joe Biden, I just don’t see this as a trend that’s going to stop.

Ketan Bhirud

Yeah, Greg Abbott’s quote, if you remember it was like, I go into the office, I sue the federal government and I go home.

Chris Allen

That’s right.

Ketan Bhirud

Which I thought-

Chris Allen

I do remember that.

Ketan Bhirud

From when he was attorney general and now he’s been governor for a long time. So clearly it was pretty effective.

Chris Allen

[inaudible ] during some of those challenges. So it worked out well for him as well.

Ketan Bhirud

Yeah, and I think, I don’t know if anybody from any Democrat AG has as pithy or funny a quote as Greg Abbott, but there were definitely some that took that mantra to heart and copied it.

Chris Allen

I think I have to… Angela Paxton, Kim Paxton’s wife’s song, I’m a pistol packing mama and my husband sues Obama, might edge Governor Abbot’s quote, but not by a whole lot.

So this is interesting though, because the issues we’re talking about, immigration, energy, the environment, other things we haven’t even talked about, the CFPB, things that they’re doing in the SEC in terms of corporate disclosures or ESG, these are all issues that not only AGs are taking interest in, but also they directly impact the business community, in some cases, they are make or break for the business community. So thinking about it from our client’s perspectives, what kind of considerations should they be keeping in mind when you become aware that the federal government is anticipating a rulemaking or an executive order, and how can we effectively, in your opinion, position our clients with AGs in order to maximize this trend of AGs is actually advocating on one side or the other?

Emily Yu

Well, I think businesses would be wise to weigh in on federal rulemaking, of course, on their own, but also with even just the AG elections we discussed today, there’s two open seats. One with a relatively newer AG incumbent, businesses would be wise to get to know these AGs while they’re newer in their offices and get in at the ground level and tell their stories and really lay the groundwork for not if, but when these AGs get involved in challenging federal rulemaking or trying to impact federal lawmaking in our clients’ industries.

Chris Allen

Yeah, I mean, I think, one of the big challenges is just there’s so much rule making now. And so I think one thing that businesses can be doing, and I’ve heard this from some Republican SGs is, tell us if something’s important because we don’t have the resources, we don’t have the eyes and ears, we don’t have the hours in the day to keep track of all of this.

Emily Yu

I can confirm that when I was in the SGs office, I didn’t really have that many hours of the day but also, it’s not really an office that I think your average person off the street or even a very savvy GC of a very large company would think to reach out to. But I think because there’s not a lot of outreach to specifically state SG’s offices, if someone does reach out, that’s going to resonate so much more. And granted, the opportunities and circumstances under which someone might reach out specifically to an SGs office, might want to think about what those would be. But a similar idea to when I was clerking on the eighth circuit, we wouldn’t get a lot of amicus briefs, but when we did get one, we really read them very carefully because it was so pretty unusual to get them in the types of cases we were handling. So, I think businesses and our clients would be well-served to consider all the different routes to influence whether and how extensively an AG’s office gets involved in any given issue, federal or state level.

Ketan Bhirud

I couldn’t agree more, I think sometimes people see the New York AG’s office or the Texas AGs office with their hundreds or thousands of lawyers or whatever it is, but most of the states have much smaller offices and they don’t have the resources to be sifting through the records on all these rules or everything else. So I don’t know that you’re going to get an AG’s office that doesn’t agree with what you’re doing or isn’t already aligned with what you’re trying to accomplish to do something by going through the record and bringing them something useful for them to attack. But if you know you’re aligned with an AG and you have similar interests or with somebody in the office, if you can do the work for them and you can make their job of suing or complaining easier, you’re going to have a much better audience than if you ask them to do the work for them. If you expect the AG’s office to do your work for you, it’s going to go a lot harder. It’s going to be a lot tougher.

Chris Allen

Yeah, absolutely and I think generally speaking, they are receptive, they want to know about these issues. Like you said, Ketan, they may not always agree with you, but it doesn’t hurt to bring it, and in some cases it can help. First of all, I remember seeing a statistic years ago from the National Association of Attorneys General that a given cert petition to the US Supreme Court has something like a .03% chance of being granted but if a State Solicitor General files an amicus brief, that increases to something like 20%. Part of that is a function of the fact that they weigh in only on important issues. But still, I mean, there is another directional there or there as well.

And I think the other thing is, when you deal with State Solicitors General, you’re dealing with really smart people. I mean, two, Andrew Brasher, former SG of Alabama is now on the 11th Circuit. Lee Rudofsky, former Solicitor General in Arkansas is now, I believe US District Judge there.

Ketan Bhirud

We’d also be here all day if you mentioned all, which is, I’m not trying to cut you off, but there’s so many former Solicitor Generals who are currently at federal court judges or state court judges, and even more who were nominated and didn’t make it through that we’d be here all day if we mentioned them. There’s so many.

Chris Allen

So, well, I think this has been a really interesting discussion and this last topic, I think reinforces our first topic because again, it matters who the Attorney General is. It matters what their policy priorities are, and it matters how you engage them and the importance of engaging with them, because they are having a role on impacting federal law that is just increasing, and I don’t see that trend stopping. So, any last words or any final thoughts, Emily, Ketan?

Ketan Bhirud

Nope.

Chris Allen

I’ve really enjoyed talking to y’all today. As always, I really appreciate your insight. I learned something and I hope everybody else who joined us, I hope you enjoyed this too. Thank you for joining us for season four. If you haven’t listened to some of our back episodes, they’re great, and we look forward to seeing you next time, hopefully, for a season five of State AG Pulse. This has been Chris Allen for Ketan Bhirud and Emily Yu. Take care.

Stephen Cobb

You’ve been listening to State Ag Pulse, brought to you by Cozen O’Connor’s State AG Group and the State AG Report.