Lori:

Welcome back everyone to this week’s episode of State AG Pulse. Last week, we had the great pleasure of being joined by Frankie Sue Del Papa from Nevada, former AG from many years ago, and Betty Montgomery, the former AG from Ohio. We talked about all kinds of things. We heard great stories. We talked about the political trends in their respective states. We covered the state of play as we approach what, I can’t believe, is already the halfway point through this election cycle. We chatted about bipartisanship, and lack of bipartisanship. And had a chance to talk about some of the great women candidates, and some of the great women in office. So, we had a great episode. And if you missed it, you should tune into that one as well. Today, though, I’m really excited to be joined by two of my law partners, Ann-Marie Luciano and Maria Colsey Heard, who are joining me to talk about the DC AG race. Hello, Maria.

Maria:

Hi, Lori. So happy to see you. Another group of great women this week.

Lori:

I know, we’re on a roll. Hey, Ann-Marie.

Ann-Marie:

Hi, happy to be here.

Lori:

Well, great. Let’s get started.

Lori:

We have a lot to talk about here. And I think today we’re going to cover a little history of the DC AG’s office. We’ll introduce our listeners to the candidates who are running. Obviously, the DC primary election is on June 21st, but early voting in-person has already started. So, we’re well off to the races here. And we’ll also talk about our thoughts on the candidates, and on the office in general. With that, I just want to remind everybody that I think if I was giving you a quiz, I’d say how many state AGs are elected? And I told you that, I think in the first episode, it’s 44. If you had asked me that 3 or 4 elections ago, I would’ve said it’s 43 because DC was not always an elected office. And I think that matters for this discussion because we’ve really seen a lot of change there.

Maria:

That’s absolutely right Lori. The AG’s office used to be called the Office of Corporation Counsel. And in some form, it has existed all the way back to the 1890s. And even in 2004, when Corporation Counsel changed its name to the Attorney General of the District of Columbia, all that time, this position was an appointed one. That’s a really long time for there to be a particular dynamic between the District’s leadership, the mayor, and the City Council, and the chief legal officer for the District.

Maria:

So Lori, can you imagine the change that came in 2010 when, during the general election, the District’s voters overwhelmingly decided that they wanted to have a say in who the attorney general was for the District of Columbia. 75% of voters said, yes, we want to be able to elect our attorney general. So, that first election was set for 2014. And when it was looming, for a number of reasons, some members of the City Council, maybe they got nervous, maybe they got concerned about the AG’s powers, how was this going to work, they tried to push the election off to 2018. Do you remember that?

Lori:

I remember that. I remember that clearly. Yeah.

Maria:

Yeah. There was a lot of news coverage about it. You had some of the Council wanting to push it off. You had some of the Council getting angry saying, this is an embarrassment. We need to have this election. And you ended up having one of the candidates suing the Council to make the election go forward. In the end there was an election, as we know, but the attempt to delay that election really indicates how difficult it is for people to adapt to change. So, we have the election. Karl Racine wins, becomes the first elected attorney general for the District. Sworn in January 2015. And he has to contend with this dynamic. Not only does he have to create a plan for his office, how is he going to address the issues that face the consumers? That face businesses? He has to figure out, how am I going to work in parallel with the mayor, with City Council? And there have been, as we know Lori, I know you and Ann-Marie I know you’ve read the press reports like I have about the clashes over turf, and the clashes over policy

Lori:

And the attempts to limit the power of the AG’s office.

Maria:

Absolutely. What I will say, and it’d be interesting to hear what you think, but I think that General Racine, over his tenure, very much focused on making his office independent, and carving out independent powers for the AG’s office, creating what I think is a very world-class consumer protection division, for example, and as he tried to work in parallel with the office. And it’s going to be very interesting to see how the second elected attorney general continues the building of the office, and the office’s powers. And I think it’s really, really interesting. And I’d just love to hear your thoughts on, on the three candidates that we have, and how they’re going to navigate all of this.

Lori:

So, Brian Schwalb, I think he has been practicing law about 30 years, but he’s certainly a Washingtonian. He told me that his daughters are the fourth generation Washingtonians. So, that would make him a third generation Washingtonian. He is the partner-in-charge at Venable, which is a large DC law firm, as everyone knows. And I think it’s interesting because I asked Brian what they were drinking in the water over at Venable because Karl Racine, the current AG, was also the partner-in-charge at Venable.

Ann-Marie:

Venable, the AG pipeline, perhaps.

Lori:

Yes. Yeah, that could be their new tagline, the AG pipeline.

Lori:

So Brian is a great guy. I found it really interesting that he’s in the Fair Election program, which frankly I had never… Probably because there’s only been one or two AG elections, one AG in DC, but I didn’t even know that there was a Fair Election program in DC. And it’s interesting, he can only accept $200 contributions. And for every contribution he accepts from a DC resident, the DC government will match that five to one. So, I’m a lawyer and don’t have great math skills. But I think that would mean if he can have a DC resident write him a check for $200, that’s the equivalent of $1200. And he doesn’t take any PAC money, any corporate money. He can take out-of-state individual money, but the DC government will not match that.

Ann-Marie:

Correct. And the other candidate who is also participating in the same matching program is Ryan Jones. And somewhat controversially, Bruce Spiva is not participating in the program. The competition seems to be the status between Bruce and Brian who, interestingly enough, were law school classmates, Harvard Law School class of ’92. Also, classmates with someone, you may have heard his name, Barack Obama, who graduated in ’91. Bruce likes to say his first president was Obama, before he was everyone else’s, as president of the Harvard Law Review.

Lori:

That’s awesome. Well, Bruce is also in a law firm. I say that because the candidates come from all different backgrounds. I think this race is really going to come down to Brian Schwalb versus Bruce. And so, I find that interesting because you’re going to have Karl Racine who, I don’t know if we mentioned, has said he’s not running again. So, he did not have a term limit issue. He just chose not to run again in this 2022 election. I think if I’m right, that it’s going to be Brian Schwalb or Bruce that wins the election, then the next AG’s going to have a very similar background to Karl Racine coming out of a big law firm.

Ann-Marie:

Yes, absolutely. And unlike in many situations where the AG candidate has a big law background, assumptions can be made about business friendly experience representing and defending companies, and not doing any plaintiff’s work, here we have somewhat of a difference. With Bruce Spiva, he has previously worked at his own law firm doing public interest law. He’s done consumer rights law, antitrust. And then at Perkins, he was known for his work on voting rights litigation, redistricting litigation, and other public interest matters. And so, he uses that background at Perkins to highlight the fact that when he comes into office his priorities are focused on consumer protection. He’s received an endorsement from a labor union, from the Sierra Club. So, despite his corporate law background, he does have some progressive support. And he is planning on focusing on consumer protection issues. He has said that his main priorities, if he were to be elected, would be on housing justice, and ensuring what he views as the importance in the District of securing safe and affordable housing; criminal justice reform; a consumer protection focus a lot on seniors and the effect, particularly in the District, on seniors with respect to their property and predatory lending. And also, he’s been a big advocate of DC’s statehood. He’s served on boards relating to DC statehood, for DC Vote and Statehood, Yes. And he also has expressed interest in continuing Racine’s pursuit of antitrust litigation. And, as we all know, Racine has been very popular for his focus and aggressive tactics to pursue antitrust claims against big business, especially the tech industry.

Maria:

I noticed looking at the candidates’ statements about what their priorities are, all of them are focused on affordable housing and tenant issues; approaching it, maybe, in slightly different ways, but it’s a big priority for all three of them it seems.

Lori:

Yes. We’ve heard that from all the candidates; on the landlord tenant laws, and making sure that landlords aren’t using constructive eviction essentially to get their tenants out – because the landlord tenant laws are so strong in DC – and making sure that the slumlords out there are taking care of the people and giving them what they’re paying for with respect to housing.

Maria:

I remember many years ago when I clerked at DC Superior Court and every judge had to take a turn at Landlord Tenant Court, and it was a packed house every week. And you had landlords there, and residents who didn’t have attorneys, and had to try to fight for their right to stay in their homes. It probably has gotten worse and worse with, Lori as you mentioned, predatory lending and other issues. And access to counsel while you’re at Landlord Tenant Court, and your ability to just protect your rights, is very important. Housing costs continue to rise. And so, I can understand why the candidates are focused on that.

Ann-Marie:

Also, Maria, they have also emphasized that in particular because of the pandemic, this post-pandemic environment has created a real issue with scarcity. We’ve seen the end of a lot of help that tenants received. And so, now more and more tenants are facing eviction because of the lack of that help and protection. In addition, we’ve seen the increase in prices of homes, which we all are familiar with. And Schwalb in particular has mentioned that there has been a problem with predators going to homes where people have been living for decades and decades – homes that were always undervalued. And with changing times and the cleanup of the Anacostia River, these homes are now worth a lot more, therefore the property tax assessments are higher. Therefore, there’s a pressure for these folks to move. And that’s creating more and more housing issues for DC residents. So, I think it’s going to be a primary focus of any of the candidates should they be elected. And then, they’ve all said as much.

Maria:

It seems like all three candidates are very much focused on local issues, issues that impact DC residents. Do you think it’s going to stay that way once who whoever gets elected? Or do you think they’ll start to focus on some national issues, the way that General Racine worked together with other AGs in states across the country to focus on national issues?

Lori:

I just had this conversation with one of the candidates just this week, and the candidate was talking about all of the things that were local issues that were going to be top priority. And I suggested, maybe I’m a little biased, but I said I think you have a lot of work to do on the local issues. And you have a lot of things that you want to accomplish should you be elected. To some degree, the national issues are going to get resolved by one of the other AGs, or a multi-state investigation. We see this all the time. And before, frankly, before the AG was elected in the District of Columbia, all of the big multistates that were brought against companies, and where AGs wanted significant change to a business practice – and they ultimately got that change – DC was always a part of that multi-state. We didn’t really know who the DC AG was because it was a very quiet office. But the point I was making was that DC residents received the benefit of that work, and of those multistate settlements, or if there was a payment, DC received some share of that payment. But it was just a quieter office. I was trying to make the point that you don’t have to do a whole lot as an AG necessarily – if you’re not serving on an executive committee where you’re doing the lion’s share of the work – to get the benefit of a settlement with a national company, or even multiple companies in a particular industry. But I think that fell with a bang. I think that really Karl Racine has really set a standard for that office. And it is the District of Columbia. And he’s brought some very big cases, not only against companies, but against the Trump administration. And I think it’s going to be really difficult for somebody to come into that office now, and turn it down a notch.

Maria:

It is very interesting, isn’t it? Because DC, it is a city, that it is a locality, there are local issues, there’s local residents. But it is also the seat of the federal government. And so, much happens here. I often say national news is our local news.

Lori:

Right.

Maria:

They blend together and it is hard to separate the two out, and only focus on one and not the other.

Ann-Marie:

And you can see in all the candidates’ platforms, the emphasis that they all make on ensuring that the voters understand that they will emphasize DC local issues over national issues. One could read into that, whether that is a reaction to the perceived concern that maybe a very powerful, active DC office that doesn’t necessarily have to be involved in national multistates actively to get the benefit of them, whether that has been to the detriment of local issues that’s something that folks are debating. But, certainly, each of the candidates has expressed the importance of focusing on issues related to DC specifically, especially because of the increase in crime, and the very contentious debate between the mayor’s office, and the DC AG’s office about how best to address that.

Lori:

That’s no different than where we see in a lot of states, an AG that doesn’t get along with their governor, or is a different party. We’ve seen different party between the AG and the governor where they work together rather well. And then we’ve seen the exact opposite. So, that’s what this tension reminds me of. And, to Maria’s point, it was just a very new office, and their first go at it to some extent. There was jockeying for your position.

Maria:

Absolutely. It’s a lot of creating what the office is going to be. The legislation that created the office can only go so far. You have to see it day-to-day in operation to figure out what the parameters are, and the way you’re going to work. And each of these candidates has said, I mean, Brian Schwalb has said, I want to establish a constructive working relationship with the mayor, and the city council, while also continuing to use the word independence. He understands he wants his office to be independent. And Bruce Spiva, again, has and knows that part of his job is going to be supporting the administration, but also keeping them in check, and making sure that the law gets followed. Same thing with Ryan Jones. He used the phrase in an interview: checks and balances. The AG is a check and balance on the mayor and the city council. So, I think they all want to work constructively, but also recognize what their duties are.

Ann-Marie:

And then, in that regard about if any of them were to be elected, how their relationship would play out they’ve all, as you said, expressed the desire to reset the relationship and start anew, and turn down the temperature, as Bruce has said. But in the case of Bruce Spiva, one of the concerns that has been expressed by some voters is because of his successful challenge of the candidacy of Kenyan McDuffie, which for the listeners who may not be aware Kenyan McDuffie was the front runner, name recognition, definitely seen as the most likely candidate to win the office. He was challenged by Bruce, and the DC Board of Elections agreed that he did not meet the requirement for AG eligibility of having at least 5 of the past 10 years spent in active legal practice. And then, that went to the DC Court of Appeals that agreed with the DC Election Board’s determination. So, he was removed from the ballot. There’s been some rumors about whether he’s going to be a write-in candidate. But there certainly is a view that that was a divisive move, whether it was technically legal, but it was a divisive move. And therefore, the voters and supporters of McDuffie, are they more likely now to switch over to Brian, or to Ryan Jones? Or are they likely to support Bruce? And then, if Bruce were elected, how would his relationship be with the mayor, and the DC Council after the DC Council supported their fellow Council member in defending the challenge? So, that will be remain to be seen about how this plays out with respect to the relationship with the DC Council’s office and the mayor.

Lori:

Did either one of you come to this podcast with the answer to: “What is Karl Racine going to do next?”

Ann-Marie:

Much speculation.

Maria:

I hope he takes a nice long vacation. I hope he does that. He deserves it.

Lori:

He deserves it. He’s been busy. That’s certainly for sure. Let’s talk a little bit about, ’cause I’d love to get your opinion on the approach, not to the mayor’s office, or not to the Council, but the approach that each of these candidates, knowing what we know about them, will take with our clients and with other members of the business community. It always strikes me how different backgrounds sort of set the stage for an AG, and how they approach their job. It seems like a few months go by where the AG is getting their feet wet, or they’re going through budget cycle. And then, they land on the ground. And now, it’s time to have these meetings. And if you have an AG who was a state legislator, which we know many of them were, they’re very comfortable having these conversations with the business community, understanding who the stakeholders are, what the atmosphere is in that particular jurisdiction. But then, you have some AGs that were, let’s say, judges. I remember I was talking to an AG who had been a judge, and it was very evident to me that just having the conversation was less of a comfort zone for this AG. And usually my experience has been with, and including with Karl, that when you have an AG that came from big law as one of you said, that they’re comfortable in that environment, having conversations, and getting to know people, and establishing a dialogue early, even knowing that there may be some adversarial enforcement actions ahead, maybe sooner rather than later. But Brian and Bruce’s personalities are different. And I just wonder how they will be, coming into the office. And if they will have that policy of open door, willing to talk to companies, willing to have a dialogue.

Maria:

We would hope so, right Lori? It seems having an open door policy doesn’t mean that you necessarily agree in the end, doesn’t mean that you are showing any kind of weakness in your position. It means you’re willing to listen. It actually, to me, is a show of confidence and strength to open that door, and good ideas can come from all over the place. Our partner, Bernie Nash, isn’t here and he likes to say that all the time, good ideas come from many different places. And there can be partnerships that end up being forged, and facts that help you achieve what you want to achieve. There’s always synergies that you may not know about.

Ann-Marie:

And I also think that because this is a Democratic primary race versus a general election race in a purple state that we have the dynamic where none of the candidates have indicated anything overtly how they would interact with the business community. And, in fact, they’ve somewhat expressed the opposite when they talk about how they would aggressively pursue developers, and the lending industry, financial industry, and others. So, once elected, it’ll be interesting to see how that changes, whether they do actually have a listening tour to listen to not just staff, which Bruce said he would meet with staff, and understand what they see as the important issues for him to address or change, but also would they be willing to meet with the business community, and talk about the issues the business community sees, about public-private partnerships, about opportunities to work together. Or would they view their role more as a trial lawyer, and view it as a litigation role where they’re looking to see who their target is, and being aggressive to pursue their target. So, it’ll be interesting to see.

Lori:

Yeah, you reminded me of something Anne-Marie. When Karl got in office, he actually established a committee. And I don’t remember the exact name of the committee, but it was the Office of Attorney General, let’s just call it the Law Firm Committee. That’s not exactly what it was called. I just don’t recall at the moment. But, essentially, I was on that committee. And there were lawyers from several firms throughout DC who would come into the office, and talk about some of the challenges that the office was facing, whether it was pro bono needs, or bringing in interns, and making sure that there was a constant flow of students getting an experience in the District. But I thought that was a great idea that he had put that together. And I think it met quarterly and it didn’t take a whole lot of time, but it really was an opportunity for all of these law firms to get in the room with the AG’s office and have a conversation. I mean, it probably wasn’t helpful for businesses, but I think that it was helpful for information-sharing to some degree.

Ann-Marie:

And I remember you involved in that committee and you and I talking about it, and how our firm could help with pro bono work, because I think it was a smart move, as you said. He needed to staff up that office. He needed to have a good pipeline of attorneys. We know he’s been successful in that. We’ve all worked with the staff. Smart, diligent, very focused, aggressive. And I mean that aggressive as a compliment. Staff who are very determined. So, he’s really built up that staff and it was smart, I think, of him to reach out to law firms, and to solicit their help ’cause obviously the DC AG’s office doesn’t have unlimited resources. And I think it speaks volumes to him about his confidence, as you would say Maria, that he was willing to reach out to his prior colleagues to solicit feedback and support.

Lori:

Yeah. And you brought up a great point when you talked about the listening tour. I mean, one quick way, one efficient way may be to have somewhat of a listening tour of groups even come in just to meet people, to meet people in the business community with whom this new elected official will have to deal.

Maria:

And the business community is part of the community. There are the crossovers there when you are concerned about housing, and people’s economic ability to stay in their homes. That has to do with jobs. It has to do with security of income. When you talk about reducing juvenile violence, which is one of the things Ryan Jones wants to do, that has again to do with safety and security, and economic justice. And you need the business community involved to achieve those goals.

Lori:

Well, I learned, and I’m sure I knew this and forgot, but the AG’s office in DC has jurisdiction over juveniles. And, obviously because it’s DC and not a state, the federal government has the jurisdiction over adults; prosecuting adult crimes. And so, there’s a lot of work there to do on juveniles. And I think there’s a lot of public-private partnerships that not just law firms, but our clients and businesses around the country would love to explore with the DC office, as well as other offices.

Ann-Marie:

Absolutely. One of the opportunities that’s been discussed is with respect to the housing shortage, whether or not, now that there may be a lack of the need for commercial properties, so, the space may not be needed for office space, especially for those industries that can work remotely, whether or not the business industry can convert, and work with the city, and the DC AG’s office to convert those buildings to either residential use, or to like a healthcare setting, technology. So, that’s something that the mayor has talked about as well, and the candidates have discussed ways in which they can increase the opportunities for folks to live in the city. And also punish, and investigate, and find out who are those developers who receive city funds to develop, and who have not followed through on their promises to the residents of the District. So, that’s something that we may see the DC AG’s office pursue as well.

Lori:

Kick up the enforcement there, yeah. Also, on wage theft. I’ve heard a lot about wage theft when I’ve heard the DC candidates speak. Well, it should be interesting. And we’re going to know pretty soon exactly who the next DC AG will be. And then, hopefully at some point, we’ll all know where Karl’s going to go and if we’ll all get to work with him in the future. So, I think that’s about it for DC. I think we’ve pretty much covered everything. So, Maria, Anne-Marie, thank you for joining me. It was fun.

Ann-Marie:

Thank you for having us.

Lori:

Always a pleasure.

Maria:

It’s been great. Thank you, Lori.

Lori:

I hope our listeners will join us next week, where we’re going to be talking about Maryland and the open seat race there. Brian Frosh is stepping down. He’s been in politics for 35 years. He’s been a great AG in the state of Maryland. We will come to you with information on what this means for the deep blue state of Maryland. We look forward to talking to you next week. You have been listening to State AG Pulse brought to you by Cozen O’Connor’s State AG Group. Research for this podcast was provided by our associates, Ryan Bottegal, Hannah Cornett, Gianna Puccinelli, and Keturah Taylor, as well as our policy analyst, Elizabeth Hill Hodish. If you enjoyed this week’s episode, please leave us a five star rating and review. That will help our visibility and will allow other listeners to learn about the podcast. And, of course, please tune in again next week.