In June, hours before the 5 p.m. filing deadline, Keith Ellison submitted papers to Minnesota’s secretary of state announcing his intention to run for attorney general. Since then, the six-term congressman from Minnesota’s most liberal district has taken the talking points he honed over a decade in Washington to family restaurants in Crookston and farms in Holdingford, promising to stop predatory lending practices and fight for the rights of workers.

Small-town Minnesota might seem like a step down from Washington, where Ellison’s name regularly pops up on MSNBC and CNN, and where he is a leader in the national debate about single-payer health care and a $15 minimum wage. But in Donald Trump’s Washington, where the partisan blood wars on Capitol Hill have ground the federal legislative machinery to a halt, his decision is less career suicide and more common sense.

Over the last year and a half, state attorneys general have fought Trump’s worst excesses in the courts, and they’ve stood in for a Department of Justice that has long since abrogated its duty to safeguard the public. If he wins the state’s August 14 Democratic primary, Ellison, along with the other liberal candidates vying for state attorney general seats this fall, can be expected to expand that role further still—into areas like antitrust enforcement and financial regulation, which regulators have ignored for decades. “When this moment in history is written, there’s got to be a chapter on state attorneys general, standing up for immigrants, standing up for students,” he told me in July. “It’s why I want to be a part of it.”


Since Trump’s inauguration, the 22 Democratic state attorneys general have sued his administration on everything from enacting the Muslim travel ban and reversing auto mileage standards to building a border wall and ending net neutrality. California alone has sued the Trump administration 38 times. And, unlike Democrats in Congress, they’ve fought and won. Courts have frozen the administration’s plan to end protections for undocumented immigrants who came to the country as children. They’ve stopped the departments of Labor, Health and Human Services, and the Treasury from denying women free birth control under the Affordable Care Act. They’ve forced the Environmental Protection Agency to control smog pollution that travels across states.

This form of prosecutorial activism is far from new. In 1979, Robert Abrams took office as attorney general of New York and transformed the position from a low-key counsel to the governor into a political powerhouse confident enough to confront Ronald Reagan’s deregulatory schemes. Abrams forged a reputation as a consumer advocate. He went after corporations to clean up toxic waste sites such as Love Canal in upstate New York. (This led Congress to establish Superfund legislation to facilitate environmental restoration of polluted areas, paid for by the responsible parties.) He forced manufacturers to return millions of dollars after they conspired to fix prices for retailers, and got insurance companies to reimburse customers for reneging on discounts.

Significantly, he worked with attorneys general in other states on investigations and litigation, drafting lawyers from their offices onto cases that blanketed entire industries with scrutiny. These coalitions continued even after Abrams left office: In 1998, 46 state attorneys general landed the $206 billion settlement against four leading tobacco companies, the largest corporate penalty in history.

Trump ends DACA protections

September 5, 2017


Number of days attorneys general waited to challenge his decision:

1


Number of months before a federal judge blocked Trump’s move:

4


Number of people who would have been eligible for deportation if the attorneys general had failed:

800,000


Source: The New York Times

Abrams’s approach has relevance today. Since Trump’s election, some liberal Democrats have argued that the party should return to its traditional monopoly-busting stances. But it is in fact state officials, and not federal legislators, who are best positioned to lead on this issue. Antitrust enforcement originated in the states in the nineteenth century, when progressive populists demanded an end to the power of the railroad trusts. With versions of the state laws that followed still on the books, some attorneys general have begun to make tentative moves to force divestitures and contest mergers. Last year, California Attorney General Xavier Becerra blocked a merger between Valero Energy Partners and two petroleum terminals in northern California. “The outer limits haven’t been tested,” said Zephyr Teachout, a law professor at Fordham University who is running for the New York attorney general seat vacated by Eric Schneiderman in May. “People are waking up to corporate consolidation, often with hopelessness. It’s critical that attorneys general lead the fight.”

Trust busting isn’t the only arena where attorneys general elected this fall could leave their mark. (Though it may be the highest-profile: Teachout, for example, has vowed that if elected, she will strongly consider filing to block the merger between Sprint and T-Mobile, which would reduce national cell phone carriers from four to three, if the federal government fails to act.) New York also has the Martin Act, a securities law that Eliot Spitzer, when he was attorney general from 1999 to 2006, used to protect the integrity of financial markets and eliminate systemic fraud. States can prosecute environmental crimes or take down shady financial operators ripping off seniors and veterans. Virtually everywhere federal enforcement has withered, states can provide a substitute.

Part of their power lies in their efficiency: Attorneys general can act quickly, without having to navigate the bureaucracy, infighting, and red tape on Capitol Hill. In 2015, for example, Ellison introduced a bill that would have made it illegal for a company to agree not to hire someone who’d previously been employed at a competitor. Three years later, it still hasn’t gotten out of committee. “When was I going to get a hearing on that?” Ellison said. By contrast, it took state attorneys general just three days this summer to extract similar concessions from the fast food industry. In July, after eleven attorneys general announced an investigation into hiring practices, Washington state Attorney General Bob Ferguson brokered a deal with seven companies to remove such clauses from their contracts with franchise owners.

This fall, Democrats are going after Republican-held attorney general seats: in Ohio, backing Steve Dettelbach, the former U.S. attorney for Ohio’s Northern District (and a law school classmate of Barack Obama); in Nevada, with Aaron Ford, a young, black state senator; and in Colorado, with Phil Weiser, former dean of the University of Colorado Law School. Even in Alabama, Democrat Joseph Siegelman, the son of the state’s last Democratic governor, has a chance at an upset.

If elected, they could make up a new center of legal power in this country, building alliances across states and pooling resources. Someone like Ellison (or Teachout, though she has a much more daunting path to the Democratic nomination in New York) could exert a leftward pull on the law nationally. A conservative Supreme Court stands ready to construct a fortress around oligarchs and multinationals. States may be the only territory left for a new vision based on corporate accountability, freedom for workers, and justice for all. That courage to take on powerful interests, to write a new American story, can be contagious. Liberals often believe politics flows from Washington. But sometimes it comes from Crookston.