Cozen O’Connor: 2016 Presidential Prognostications & Insights: The Democratic Race Winds Down

2016 Presidential Prognostications & Insights: The Democratic Race Winds Down

Mark, Howard and Blake discuss the state of the Democratic race. Also, Bernie Nash and Lori Kalani, co-chairs of Cozen O'Connor's State AG practice, discuss the State AG races.

Call Transcript:

Blake:

Thank you very much. Welcome everyone to the 8th call in our Cozen O'Connor Public Strategies series on the 2015 elections. As always, I'm joined by my colleagues Mark Alderman, the CEO of Cozen O'Connor Public Strategies and Howard Schweitzer the managing partner of Cozen O'Connor Public Strategies. Mark, Howard, welcome back.

 

Mark:

Thanks.

 

Blake:

Interesting call today. We're going to spend a healthy amount of time, which we always do, talking about the presidential election, but then we're going to pivot. We're going to pivot to state races, which we have talked about some. Certainly, we've examined the Senate. We've taken a look at governors races. Today, we're going to look at state AG races. We're going to be joined by the Co-Chairs of our State Attorneys General Practice, Lori Kalani and Bernie Nash. Looking forward to that as well.

 

 

Mark and Howard, let's get right to it. I say it as I begin everyone of these calls, this is not a dull race. For the first time I think in a few sessions, the Democrats are making it, not a dull race.

 

Mark:

It's our turn.

 

Blake:

It's our turn Mark. I'm going to start with you.

 

Howard:

I'm just going to sit back and relax.

 

Blake:

Yeah, you're just going to hang out Howard? You should, absolutely relax a little bit. We'll get to you. We'll get to you.

 

Howard:

All right.

 

Blake:

Mark, I want to talk about Bernie Sanders. I want to talk about the events in Nevada and what we're being to see, at least from my vantage point, which is the Sanders campaign that at least optically is not winding down. I want to get your general reactions to the events in Nevada. What significance do you give to any of that?

 

 

For our listeners, this was state convention picking delegates and there was disruption inside the event with some pretty nasty public commentary after the fact, including to the head of the Democratic party in Nevada, death threats and other hateful language on Twitter and whether or not there was a relationship between that and the Sanders campaign. That's context and background but Mark, I want to start with Bernie and just get your general reactions to Nevada.

 

Mark:

Well Blake, Nevada was no fun for the Democrats. It looked bad and it was covered wall-to-wall as everything is in the modern world. However, having said all of that, I think it's very important to remember that we have had on our side forty some contests. We have had disruption in one state. Tip O'Neill of course said all politics is local, so was what happened in Nevada to a great degree. There was no love between the Sanders and Clinton supporters in Nevada. That hasn't happened elsewhere and it certainly won't as we play out the primary season.

 

 

I see that as an outlier. I don't think that portends for Philadelphia.

 

Blake:

I want to get that. I want to certainly get to the Democratic National Convention. We're seeing with Bernie, a desire to amplify his rhetoric, a focus on seeing this all the way through but also not really letting up. Not letting up on Hillary Clinton. Not letting up on the Democratic party in terms of his argument that this is a corrupt process, that it has been unfair to him and that in some form or fashion, his voters have been denied some opportunity.

 

 

What do you make of that Mark? Is it theatrics? Is it Bernie just managing his base or is it something more severe?

 

Mark:

I think it's theatrics, I think it's Bernie managing his base. I think that it is mostly the last few weeks of a long and contested primary season. Deja vu all over again. We saw this in 2008 with then Senator Obama and then Senator Clinton. I think what will matter is what happens next. I don't think that what happens between now and California is that consequential. I think because on the other side there has been a lot less commotion, that the attention has turned to our side.

 

 

It's going to be legacy time for Bernie in a couple weeks. If he fights this through California and then does what Hillary did 8 years ago, which is withdraw and endorse, then all of the hard feelings are going to be forgotten. If he doesn't, and he might not, then we're going to have to see how far that goes. He does not want to be remembered as the man who gave America President Trump. He has said that again and again and again, as recently as yesterday. I think we're going to see this whole thing calming way down, once we clear California.

 

Blake:

Howard yes?

 

Howard:

I want in on this. I think you're probably right at the end of the day that as things settle down, he doesn't want to see President Trump. It's fundamentally not the democratic party that Bernie has moved and spoken to and gotten votes from in this election season. It's independents. Mark you know better than any of us that, whoever wins the independents wins this election, especially this election in November. Hillary has crushed Bernie among Democrats and Bernie has crushed her among independents.

 

 

Hillary has got to find a way at the end of the day, to get those people. They’re independents, they're not going to pull the lever because-

 

Blake:

Yeah okay, let me come back to that because I want to talk about whether or not we got cause for concern. We got a new Wall Street Journal NBC news poll out. I know you guys are going to tell me I give no credence to the polling but here are a couple of stats that I do think matter. The first of which is, 66% of Bernie Sanders supporters say they will vote for Hillary.

 

 

Contextually, 88% of Hillary supporters said they'll vote for Bernie. 2008, the number at this stage in the game, 60% of Hillary supporters voting for Obama right? Basically, the same number. Let's start there. Does any of that, if you're analyzing this from a context of the Clinton campaign, give you any pause?

 

Mark:

Absolutely. Absolutely, as it gave the Obama campaign pause at this same point in 2008. Howard is absolutely right. The election is always decided by independents. It's actually decided by independents who are 10%, 15%, 20% of the electorate in 8, 9, 10 states. That is where the battle ground will be and that is where Hillary should be concerned and I'm sure is. That's not because of the bad things Bernie is saying about her today. If that's still happening come the convention in the fall, that is going to hurt in that critical independents space.

 

Blake:

She is under water among Sanders supporters. Her favorable, unfavorable among Sanders supporters is 38, 41. She's got a challenge.

 

Mark:

She's under water nationally.

 

Blake:

Well, if we're talking about consolidating a coalition that brings in the independent Bernie voter, because Howard, we're going to come back to whether or not there's an avenue for Trump to poach some of those Bernie voters. Mark, you made the declaration here. You talked about it in some thoughtful commentary in US News and World Report which you can find on our website, about Bernie not wanting his legacy to be electing Trump. Be that as it may, his supporters are going to have a choice to make Howard.

 

 

What I keep coming back to and what I keep thinking about it, in this particular dynamic is the enthusiasm gap between Bernie Sanders supporters looking to Hillary versus Hillary supporters looking to Bernie Sanders. There's a gap there Howard and Sanders supporters just do not appear to be as enthusiastic. Now, we will all take comfort, Democrats will in the 2008 statistic, that you can still win handily a general election if in Memorial Day weekend, your opponents supporters are still not that fired up about you.

 

 

Of all the negatives and because of all the other challenges that you've talked about with Hillary, is there something more that we really need to be thinking about here?

 

Howard:

First and foremost is this point about the independents. I don't know off hand what number in 2008 represented independents as far as the 60% is concerned, but my guess is it's a lot different than it looks today and there in lines the rub. People want change. People vote for change. Find me a voter who says, "I'm going to vote for the status quo." That's Hillary's problem. I think there are millions and millions and millions of people, tens of millions of people who are going to pull the lever for her because they've rationalized that she isn't going to run the country into the ground and they're concerned about other people running their country into the ground.

 

 

One of my friends says, "You always want to run to something and not from something." She hasn't articulated a vision at this point of what people should run to. She's only articulating a vision of what people should run from and that's what has to happen to get this where it needs to be for her.

 

Blake:

Is that right Mark? Do you agree that this is about a run to election? Certainly, we continue to hear that this is going to be a vote against election and the votes count the same, whatever your motivations is into the polling place.

 

Mark:

I think what Howard said is largely right, but not entirely. It's largely right, in the sense that she needs to do exactly what Howard said, she needs to give people a reason to run to her because she needs turnout. Most elections are very different than this elections is going to be. Most elections have a persuasion piece and a turnout piece. First you convince somebody to be for you, then you convince them to come to the polls.

 

 

This is going to be much more about turnout. I think that the people who are for Trump are going to come out to vote. Every single person for Trump is going to come out to vote. I don't think that's as true on our side. I think that Secretary Clinton's challenge is to motivate her voters enough that each and every one of them comes out to vote and that is the running to point that Howard makes.

 

 

Although having said all of that, a lot of Trump's voters are voting against Hillary and a lot of her voters are voting against Trump. I just think that is a heavier proportion than in past election.

 

Blake:

I want to talk about California because it really ... It's not where the Democrats finish up. They finish up in the District of Colombia but it is the biggest prize left on the map and it's where Bernie Sanders is really making his final efforts. I wanted to get both of your perspectives on the magnitude of California in the context of it being the largest piece of the Democratic Delegate pie.

 

 

Also for all intent and purposes, like I said, we will talk about the District of Columbia, but really it being at the very end. What does that result need to look like for Hillary Clinton? It's not going to matter in terms of delegates because she's going to wrap this thing up earlier that night, probably in New Jersey when those polls close but from a symbolic point of view Mark, what does California need to look like?

 

Mark:

She needs to win. It would be really good for her to win. I think she will. It would be really bad for her not to because it would symbolically seal the season with a lost. It would symbolically leave Bernie on the pedestal that a lot of people have put him on. She should win. I think she will win but it would be really good for her to win that. One of things that's happening, just as a footnote, to California, to date Bernie Sanders has bought $400,000 dollars of air time which is invisible.

 

 

It's the same thing as saying, he's not going to be on television in California. Despite the extraordinary fundraising machine he built, he is out of money. He is firing staff. He is not going to be on TV. His campaign is not yet winding down rhetorically but it is limping to California on the money and staff front.

 

Howard:

He might win.

 

Mark:

Now it might not matter. That's right. It might not matter. Just as Trump did no television and had no staff and won everything in sight.

 

Blake:

Yeah right. It's funny, I was just going to let all of our listeners know from the money game you're talking about and being out of money. Cash on hand last report, Hillary had $30 million in the bank, Bernie had $5 million in the bank. It's funny, when you lay those numbers against Trump, it looks quite different because he doesn't have a whole lot of money yet either. Howard, I do want to get your thoughts and reactions to California.

 

 

Mark makes a very interesting point about ending with a loss. How much do you think that hurts Hillary Clinton going into Convention season if California didn't break her way and conversely if it's a big victory, does that put any wind in her sale?

 

Howard:

This race hasn't been about math for the last 60 days. As you both said, it's not about delegates. That's done. It is about the narrative though. Win, lose or draw, they have got to take a page from the Republican's book quite frankly and craft a narrative about bringing the party together. That is what's missing here. Love him or hate him, Reince Priebus did a masterful job of orchestrating the "unification of the Republican Party" perception wise. There's no question that Lindsay Graham feels the same way about Donald Trump today as he did two months ago but to John Q. citizen it doesn't necessarily look like that.

 

 

Hopefully, for Hillary's sake, Debbie Wasserman Schultz who thus far, I don't think has particularly distinguished herself as far as being the puppeteer in the background. They’ve got to be working on this in the big way.

 

Blake:

It's a nice segue to the convention and what all this looks like but before we get there. It may be too much inside baseball, I think I know what you're going to tell me but I'm going to ask you anyway. Bernie Sanders has come out. He has endorsed Debbie Wasserman Schultz's opponent in this race. What significance do you attach to that?

 

Mark:

A couple of things. First the preface and then the point. We know Debbie, we know her well. She is a friend and I'm a fan. However, having said that, she has plainly been partisan. She has been for Hillary from the first and that has leaked into her handling of the DNC and Bernie has a point that this system was set up for Hillary to win. Set up by Debbie for Hillary. It did not change the result. Let's be very clear about that.

 

 

However, he's mad and I get it. He's mad at Debbie about that more than at Hillary. Debbie is going to win her race. Bernie endorsing her opponent is symbolic again and it raised a little money for the other guy but Hillary won that district by 60 points. 60 points she won that district. Debbie will win her race but I completely concur with Howard, Reince Priebus, whatever his name is, he did it. He managed not to be partisan and to pull together and our chairwoman has yet to accomplish that.

 

Howard:

Mark, she is your friend, actually bona fide friend and you sound like she's your friend. We've all been in these rooms. Politics is theatrics. It requires a deft touch. It requires gaming out every little action and every spoken word and every moment. This Nevada thing, with throwing chairs and all the mayhem ... You don't go on CNN the next day, without speaking to Bernie and trash the guy. That's not how you bring a party together.

 

Blake:

You're talking about what Debbie did?

 

Howard:

Debbie Wasserman Schultz did.

 

Mark:

100% agree. Notwithstanding friendship, that was wrong. That was exactly backwards of what she should be doing.

 

Howard:

It required a delicate touch that they better find it in the next 30 days or then they're in real trouble.

 

Blake:

Okay, so as we pivot to our convention in Philadelphia. Mark, I want to touch on a couple of things that we've seen, one of which is Bernie Sanders coming out and saying, "We're going to have a messy convention." Now, what he means by messy is we're going to have a convention that's full with vigorous debate, is how he characterized messy.

 

 

Then we saw that the platform committee has ... First of all, the allocations were made and Bernie for 5 members of the platform committee. Hillary got 6 and then Debbie Wasserman Schultz got 4. They've named their platform committee members. What do you make of that dynamic?

 

Mark:

This is deep inside baseball but to Howard's point, that the Democrats, we better get it together over the next six weeks or however many are left until our convention. That was, I think and I hope, the beginning of coming together. Ordinarily, and this is exactly what was happening until Friday, Debbie as the Chairwoman would have appointed that committee. The party would have accepted her appointment. What happened instead is that the Clinton campaign intervened, negotiated a compromise that gave Bernie his recognition that Senator Sanders said he was very satisfied with and completely endorsed.

 

 

Hillary fundamentally replaced Debbie in picking that committee. I think that is the template for what's going to happen with the party from here on in. She, post-California, will be the nominee presumptive and otherwise and she is going to run that convention and she is going to make sure that in the platform committee selection, which again is deep inside baseball and all the rest of the run up to the convention, that if Debbie isn't doing her job, Hillary is going to do it for her.

 

Howard:

Can I just make an observation?

 

Blake:

No.

 

Howard:

If you want to know why this election is where it is, because it's so much more interesting to talk about Donald Trump than Hillary Clinton, Bernie Sanders and Debbie Wasserman Schultz picking a platform committee.

 

Mark:

Agreed. It's more interesting and more dangerous.

 

Blake:

Here we go. Now to the fun stuff-

 

Mark:

Probably ... No, I'm not going to say it.

 

Blake:

We'll get to that, we'll get to that. My last question about the convention, I mean a couple of interesting things. We've got protesters are lining up. They're securing their permits in Philadelphia. We're going to have Bernie protests in Philadelphia. The super delegate piece of this Mark, they have been with Hillary from the very beginning. Any traction in the super delegate universe that you see Bernie Sanders gaining between now and when we gabble in.

 

Mark:

None.

 

Blake:

None.

 

Mark:

Two things about the super delegates. They were designed to be for Hillary and they are and will be right through the convention and other than symbolically where Bernie has a point that it's not the most democratic of processes, the super delegates are irrelevant. Hillary is going to come to the convention with enough pledge delegates to win. She won. She got 3 million more votes, 300 more delegates, she got all the pledge delegates she needed to win. The super delegates are a bad symbol as Bernie and I frankly see it but they aren't picking the nominee and they are not moving to Bernie.

 

Blake:

That only leaves us with the Vice Presidential selection as the last thing the convention will evolve. We speculated on VP talk, I don't think we necessarily have to do that today but I wanted to get your reaction to something that we have talked about before. The comment that Senator Harry Reid made in which he said, "Hell no to any Democratic senator in a state with a Republican governor joining the ticket. Howard, what do you make of that?

 

Howard:

I think he would be crazy to say anything other than that.

 

Blake:

That puts Sherrod Brown, Elizabeth Warren and Cory Booker and off limits to Harry Reid.

 

Mark:

Correct. If Harry Reid was picking the Vice President, that's correct. A couple things about Harry Reid. Number one, we need his successor to be a Democrat. Bernie and Lori know her and they may something about that a later. I hope he's focused on Nevada, all politics being local and not losing his seat. Number two, he's actually not choosing the Vice President, Secretary Clinton is. Number 3 and I'm sorry to be inside baseball again, but there are very different laws in those 3 states.

 

 

Yes in each state were Elizabeth Warren or Sharrod Brown or Cory Booker to be elected Vice President of the United States, a Republican governor would appoint the successor. However, in Massachusetts, there would be a special election in 90 days. That was a law written when Ted Kennedy died, so Barack Obama would have his Democratic vote on healthcare actually. The Republic will survive 90 days with a Republican from Massachusetts.

 

Howard:

Why would you take the risk? All else being equal, if you think picking Elizabeth Warren, puts Hillary over the goal line that-

 

Mark:

That's why you would take the risk.

 

Howard:

History has shown that it won't and doesn't, so why take the risk?

 

Mark:

History has shown that Donald Trump won't be the nominee of the Republican Party except he is. I would take a 90 day risk for Elizabeth Warren. She's my candidate but I'm with Harry Reid. I don't get to pick. Elizabeth Warren is also Howard's favorite but not for Vice President.

 

Blake:

Howard, let's pivot to Trump. Since the last time we did a call, he's up 7 points nationally. NBC News Wall Street Journal polls shows that, among Republicans he's up 86 to 6. That is a 7% surge as well. Big name Republican financiers have now come on board; Foster Friess, Sheldon Adelson. Is Trump consolidating his party?

 

 

Howard: I think the parties consolidating Trump more than Trump's consolidating the party.

 

I could tell you that it's national polling that it's state specific polling, I could tell you that it's registered voters not likely voters. I could tell you that he's going to say something next week that's going to alienate a whole bunch of people but I told you all that in January, so what’s the point of telling you that? He's clearly doing better from a polling perspective, I'm not paying much attention to math today but undeniably he's in a better position today then he was a couple of weeks ago.

 

 

On the unification or consolidation point my view is that the Republican Party again to what I was saying earlier about gaming this all out, made the judgment that they need to give their House and Senate candidate some cover to not have to run away from Trump and that this is air cover. Donald Trump didn't come to Washington last week and suddenly win over people who despised him before, that's not how this works. The Republican Party decided they need air cover for their down ballot candidates and that's why they've gotten closer.

 

Blake:

He is doing some things that are more conventional, right? He released a list of 11 judges that he would consider for the Supreme Court. Certainly in an attempt to remind conservatives that he would put conservative jurists on the bench. He got the endorsement of the NRA, which I know you shrug at. Even still, this is not necessarily ...

 

 

Mark:

He says that teachers should have guns in classrooms so of course he got the endorsement of the NRA.

 

Blake:

I think if you look at the evolution on a position but we're not going to endorse-

 

Mark:

Donald Trump has proven at every stage of this process, since he came down that escalator and called Mexicans rapists and drug dealers, he has proven to be far more formidable than anyone had expected. He is doing a far more formidable job of pulling together the Republican Party behind him than I for one expected he would be able to do.

 

 

 

Blake: He is not again without continued without rhetorical challenge, Mark. It may feel like a little inside baseball but it's a tax on Bob Gates being one, flip-flopping on the China care of height being another saying he'd meet with Kim Jong-un, and his refusal to release his tax returns.

 

Then we've got new stuff about Vince Foster. You all wrote a very compelling op-ed in Fortune about his unpredictability and I wonder, Howard, as you reflect on that op-ed and as you reflect on Trump continuing to be Trump, are we going to continue to give pause in any of these rhetorical flourishes from the Donald or are we just going to keep marching forward?

 

Howard:

There are going to be plenty of people that are capable of being picked off that are potential supporters of his because he's going to continue to say things that people don't like hearing. I want to go back to the taxes, but we all know he will say and do things over the course of the next 6 months that make some people happy and makes other people very upset. I think there are some political forces out there. The potential for a  quote, unquote 3rd party run. I think we actually already have a 3rd party ticket out there the Libertarian ticket.

 

Mark:

Gary Johnson, Bill Weld 10 percent in a foxhole.

 

Howard:

Right, both former governors that have a very appealing platform to a lot of the people that have supported or are thinking about supporting Donald Trump. They just don't know who these guy are yet. By the way also to people who are thinking about and supporting Bernie Sanders, to independent voters. I think there is that Libertarian stream running through the electorate that could pick some of these guys off. On the taxes, this isn't about charitable giving or effective tax rate or any of that rah-rah.

 

 

If there's one thing, one thing and only one thing that's so wrapped up in Donald Trump’s persona that he's worried about I think is, "How much am I worth?", because from day one the fundamental pillar of his campaign was "I'm a rich guy who's been super successful." That’s what’s in those tax returns, that's why he's not releasing them. That's something if the pressure builds enough and he's actually got to put these things out, that could be something that takes one if the legs off the stool.

 

Blake:

Mark, any reaction to that?

 

Mark:

I agree. I think that he knows what's in there, we don't. He would have them out there in a heartbeat if they showed he's actually worth 10 billion dollars. The fact that they aren't out there means there's something that he doesn't want the American people to see. I don't know what it is but I'm with Howard, if it has to do with how much he's, that's a problem for him. What is remarkable if I may, and I know we're wrapping up, this is the first of our eight calls where we talked more about Democrats than Republicans.

 

 

When we talk about Republicans, all we talk about Donald Trump and that’s the way it's going to be right through Election Day. This is Trump's election to win or lose not because he's far ahead, which is often meant when someone says that, but every single day is about him. He's either going to get enough people to the polls to pull the lever for him or he's going to get enough people to the polls to pull the lever for Hillary. Her challenge is to crack into the debate, it's always all about him. He is a genius at controlling the news cycle and I don't see that changing.

 

Howard:

Mark, one of our listeners texted me and wants me to call you out about your false statements about Donald Trump but we don't have time for that so I'll hold them until the next time.

 

Mark:

Let’s do our 9th call.

 

Blake:

That’s exactly right, we are winding down, I want to invite a minute...

 

Mark:

He didn't say all teachers should have guns, just some teachers should have guns.

 

Howard:

Police in schools, not armed teachers or staff.

 

Mark:

That is not what the man said. Some teachers, direct quote.

 

Blake:

Howard, as we wrap up this segment of our call before I invite Bernie Nash and Lori Kalani to join us to talk about State AG races, I did want to round out one thing. I know we're not giving a lot of credence to the polls at this point but we have seen Trump surging ahead nationally despite all of his rhetoric. I know that you're going to tell me the polls don't matter this earlier, but I think trends matter and we're seeing a trend for Trump. Do you think that trend is going to continue through the summer?

 

Howard:

I do, back to what I said earlier "Who wants the status quo?" I think there are some counter balancing forces out there like President Obama's approval rating that matter a lot. Opinion of him is going up maybe because of who's out there running for President of the United States but people fundamentally always want change and people are frustrated with the fact that, no matter who is in power in Washington things don't change. I think that's going to continue to be a very attractive element out there for Donald Trump and people are going to continue to gravitate to him and Hillary's got her hands full.

 

Blake:

It will be interesting, we're headed off to Memorial Day weekend and then we will be back and we will wrap up the primary season and see what happens. It's an exciting time. We're going to pivot now in our call. Howard, Mark, thank you again.

 

 

We are going to pivot now to talk about State AG races. I did want to remind our listeners number one if you have any questions, presidential or otherwise you can e-mail them at presidentialanalysis@cozen.com.

 

 

The other thing is I've mentioned several times on the calls op-eds and other press commentary from Mark and Howard, you can find that at copublicstrategies.com or at our law firm page cozen.com and get a sense of what these guys have really been talking about all election season so I would strongly encourage you to go and read that.

 

 

We're going to set Trump and  Sanders and Clinton aside and get into the states. I want to welcome Bernie Nash and Lori Kalani they co-chair Cozen O’Connor’s nationally recognized State AG practice. Bernie, Lori, welcome to the circus.

 

Bernie:

Thank you very much, a pleasure to join your service.

 

Blake:

I think this is a really exciting topic and I'm glad that we're getting to it now in the election season because as you all know well and I'll let you set the stage for us, Attorneys General are a dynamic political actor in the state landscape, they are also political players who rise to Governor, to Senate, to many other compelling offices around the country. We've got a number of exciting races on the map today which we'll get to. Bernie, I just want to take a step back and let you set the stage for our listeners. Tell me a little bit about the AG landscape today and what are you paying attention to as we look ahead to November.

 

Bernie:

Well sure, Blake. Looking at the landscape today when I think it's a good context today there are 27 Republican AGs and 23 Democratic AGs. In the 2014 election cycle, 31 AG seats were up for grabs so to speak. The Republicans picked up 3 additional seats which they didn't have before, Arkansas, Nevada and Tennessee albeit that wasn't through an election that was through appointment by the Tennessee Supreme Court. That gave the Republicans 27/23 majority.

 

 

In 2015 the off-year cycle 3 AG seats were up, Kentucky, Louisiana, and Mississippi and the balance they stayed the same. Kentucky and Mississippi states Democrats, Louisiana stayed Republican albeit the incumbent Republican lost to a primary challenger. Going into this race and into this election cycle there are 10 seats up, 6 held by Democrats, 4 held by Republicans. I would say of those 10 races, 3 are competitive and different dynamics is going to impact those 3 races. I think the other 7 are pretty predictable with the incumbents for winning.

 

Blake:

I want to come back to talking about both the safe seats and the competitive seats. Lori I want to pivot to you and offer a commentary you can tell me whether you agree. It seems to me over the course of the last decade or so but maybe a little bit longer there has just been a lot more political light on AGs. We've seen the evolution of the Republican AGs association and the Democratic AGs association.

 

 

Third party interest groups are starting to take an interest in AGs. I wonder from your perspective, you've been in this space and seeing ... As you've been through a lot of elections with a lot of AGs. What’s going on in the AG landscape, why are we beginning to see so much money come into AG races? How do you think of the evolving RAGA/DAGA landscape in terms of how it's impacting AG behavior?

 

Lori:

Sure. We saw this starting in 1999 when RAGA was formed and DAGA was spurred out of RAGA a few years later in 2002. I think that there’s a couple of factors here, one is the perceived and perhaps the reality of the gridlock in Washington. Nothing gets done in Washington, Congress doesn't do much, people can't get things done so more is happening at the state level. As more people are focusing on the states, obviously more attention is being focused on the state AGs and as more state AGs have gone onto higher office, more people are seeing that as a stepping stone and more money is pouring into those races.

 

 

I don't think that we've seen the end of that. I think, more and more each year we're seeing the in the elections, the money that’s pouring in is increasing with each election. Just to give you an example, in 2012 there were 10 seats that Bernie said up for grabs, that outside spending groups spent about 8 million dollars to influence those state AG races. That was just outside spending. In 2014 the Arizona AG who went on to win received 5 million dollars in outside support for his campaign. I think the weight of the spending is about 3-1 with the Republicans spending a bit more. I think they started their organization a few years before DAGA.

 

Blake:

That’s a fairly sizable advance. Bernie, I'm wondering if there is a just that the Republicans got a head start, is there something about the Republican Party and AGs that is triggering a greater influx of money when compared to the Democrats? Any thoughts or comments there?

 

Bernie:

I think it has with policy and the perception, if not the reality, of business funding. A large number of large companies as well as wealthy donors who are otherwise in the political system realizing how important it is to the economy to have more business friendly AGs. I'm not saying at all that Democrats are not business friendly  a lot of this has to do with perception and a lot of this had to do with maybe just a handful of Democrats. Perception becomes reality so the notion of the business community and large and wealthy Republican donors is we really now have to focus our attention and our span on AG races.

 

 

We'll have fewer Democratic AG unfairly going after business. I think the Republicans are more focused, I don't want to say more driven, they're more focused and more disciplined in terms of how they amalgamate with each other and how they attend the meetings. Therefore, you get a larger turnout of those interested in the AG community because if you go to a RAGA meeting you find a large number if not almost all Republican AGs attending those meetings. If you go to a DAGA meeting you get a poor turnout. I think that it can be boiled down to perception of business friendly AGs.

 

Blake:

Lori, you made the very good and interesting point about why coming to AGs because of gridlock in Washington, the other thing I'm noticing is that AGs are involved with some really big issues. We have seen from the national mortgage settlement to a variety of other things. Some of it is 50 state stuff, some of it is more partisan like the Affordable Care Act. AGs are stepping out on a much bigger political stage and I wonder do you think there is any correlation between the influx of money and the engagement to the ability for an AG to take a stand on what is now a national issue and do you think a trend like that continues?

 

Lori:

I do think a trend like that continues. I think there's power in numbers. Oftentimes as you said some of these issues tend to cut more political, certainly when there’s a case being brought against a particular administration. Generally, that tends to be more political sometimes you'll see an AG or two of the opposite party join in on those suits but it tends to be more political. On the consumer protection for example, those tend to be non-partisan.

 

 

When you're talking about 50 states like you said on the national mortgage settlement or when it was tobacco several years earlier, those are very large national issues and I think that emboldens the group and they have a stage. There is a stage and a pulpit for them to speak, I think that coupled with the money and the higher office going forward there is a national audience.

 

Blake:

Speak and act, right. They have enforcement powers and a variety of other things which make that office particularly dynamic.

 

Bernie:

If I could interject, I would add that the Republican AGs truly believe that there is a significant amount of federal overreach trampling on states' rights.

 

Blake:

We hear that theme a lot, yup.

 

Bernie:

It's less political/partisan then one might believe. They do believe in the rule of law and it's messy to follow the rule of law because very little gets done, they are not willing to tolerate federal over reach which tramples on stats' rights. You're seeing a lot of perceived partisan litigation because the Republicans are saying we live in  a rule of law, this is not constitution permitted, yada, yada, yada and we're suing. Strength in numbers as Lori said the 27 sue or 25 it's a lot easier than 3.

 

Blake:

Well it's interesting because we have certainly seen a variety of issues, we've seen them on immigration, we've seen it over clean power. AGs really invoking those states' rights issues. That certainly has that thing and I think you would agree certainly in the context of this administration we have seen a growth in that activity among Republican AGs.

 

 

I want to pivot to the races themselves, and talk about the landscape. Bernie you set the stage for us at the beginning of our segment here but I want to come back to it we've got 10 races, 10 AG races happening in November, I thought you might just offer some general commentary about those and then we'll drive our attention to the contested races.

 

Bernie:

I'll do the easy part and we'll let our co-chair of the practice, Lori, do the important part.

 

Blake:

Very nimble of you.

 

Lori:

Very nimble.

 

Bernie:

10 races, of the 10, 5 incumbents are running. 3 Republicans, 2 Democrats, each of the incumbents will win. Montana attorney general Tim Fox, Oregon attorney general Ellen Rosenblum, Utah attorney general Sean Reyes. I think he's running his 4th race in 2 years because of special elections, appointed by the Governor, it's unbelievable. He will win, then he won’t have to run again for another 4 years. Washington attorney general Bob Ferguson who just grew a libertarian opponent in his race, no Republican, and West Virginia attorney general  Patrick Morrisey a Republican.

 

 

2 open seats, one held by a Republican, one held by a Democrat. Indiana, the Republican state there is a convention by which the Republican candidate will be picked that hasn't happened yet but my prediction is whoever that candidate will and I suspect who it will be, will win in Indiana. Then there’s Vermont which TJ Donovan is running for Bill Sorrell's seat. General Sorrells is retiring after 19 years of AG. My prediction is that TJ will win Vermont. I'll let Lori tell who's going to win Missouri, North Carolina and Pennsylvania.

 

Lori:

That was very nice of you Bernie, thank you. I'll do that quickly. North Carolina they've held their primary Josh Stein as the Democrat. He's worked in the AG's office, he's been a State Senator. Running against him is Buck Newton who is the current State Senator and former Wilson county Republican share. I think that that one is up in the air, Josh Stein has raised a lot of money and was far ahead in the polls.

 

 

I think that given the HB2 controversy. That's really shaking things up and I don't claim to know all the state politics going on. I think that what’s going on with the Feds coming in and the lawsuit going on, will really effect that race. The current attorney general, general Roy Cooper is running to unseat the current Governor, McCory, and obviously that will have the down ticket effect as will the presidential race.

 

Blake:

I was going to say as for the presidential. So you have a nice intersection of all the political dynamics come to play in a really interesting AG's race.

 

Bernie:

I agree with Lori's prognostication.

 

Lori:

Yes, okay. That's North Carolina, Pennsylvania as you and Mark and Howard are all familiar with. Josh Shapiro, they held their primary April 26th. Josh Shapiro in now the nominee on the Democratic side. Current Montgomery County commissioner and former state representative and on the Republican side is John Rafferty. We know them both, very great guys. It's my understanding that Josh Shapiro has out raised, at least to date has more money in the bank than Rafferty. I think there, that might just come down to money and also the presidential race, I can't tell you what's going to happen there given the presidential politics. Then the last state is Missouri who has not held there primary yet.

 

Blake:

Right they hold a late primary.

 

Lori:

They hold a late primary in August, that's right Blake. They have two Democrats running, that would be Teresa Hensley who's a prosecutor there. Then the state auditor I believe Jake Zimmerman. On the Republican side it's Josh Howley who's a law professor and Curt Schaefer who's a State Senator. A few months ago I probably could have told you who I thought was going to win each of those primaries, but I can't tell you today. I think that there's a lot going on as well there in Missouri. Those are 3 states where I cannot tell you with any certainty who's going to win the election and I don't know if Bernie disagrees with that.

 

Bernie:

I'd agree with that. I always agree with Lori anyways. I will confidently say that you are going to see tens of millions of dollars in all three stages. Tens of millions which would be unprecedented for AG down ballot races.

 

Blake:

Right and Bernie it's an excellent point and I'm glad you brought it up. As we look both ahead to November and that expectation of that influx of cash but also, them looking beyond. What are your thoughts, are we going to continue to see money just continued to flow into AG's races? Any end in sight to the influx of capital into these races?

 

Lori:

I don't think that there's an end in sight in fact, I think that the Democratic DSCC and the organizations in Washington, those donors have not really played in the AGs race and it think they will at some point. As these AGs go onto higher offices as they've been doing that will be a recognition that this is a feeder system and that more people will actually will start to play in these races and more money will feed in.

 

Blake:

We're seeing that obviously. You all touched on North Carolina Attorney General Roy Cooper running for governor. California Attorney General Kamala Harris running for the United States Senate. Indiana Attorney General Greg Zeller ran for congress, he was unsuccessful in his primary but to underscore your point Lori, there is at least a perception of aspiration among attorney generals whether it's aspiring governor or something else.

 

Bernie:

Missouri Attorney general Chris Koster has 7.2 million dollars in his bank.

 

Lori:

The former Attorney General of Nevada running for Harry Reid's seat.

 

Blake:

It's funny Mark, had talked about that on the call and the dynamics of that race. You've got current and former AGs aspiring to higher offices in some dynamic races that you all highlighted.

 

Bernie:

If I could interject, right now, today there are 6 governors who are former AGs and 8 United States senators were former AGs. Aspiring governor thing it was fun to say and everyone doesn't win but many run and many win.

 

Blake:

I think you would both agree, Democrat or Republican in that office gives you a pretty extraordinary platform in order to both effectuate change in your state but also to raise your profile. It's both a powerful and a potent political office I think.

 

Lori:

That's exactly right I think you make change without ever having to vote in your state. You're the chief legal enforcer for the state enforcement officer. I think it's probably one of the most powerful if not the most powerful position in the state.

 

Blake:

Bernie, I'm going to give you the last word. For people that are looking for state AG news, I wonder if you talk just a little bit about the state AG report and how they might be able to come into contact with that content.

 

Bernie:

Happy to. Lori and I, each week on Thursday, we try to get it out by 5PM, sometimes we fail,  but every Thursday, we call it a blog it's called the state AG report where we don't editorialize, we truly just act like reporters. We report what we consider to be the important news from the states where AGs have done important events. Open investigations, filed lawsuits, won and lost a lawsuit, signed a letter to the congress or an amicus brief. Those in our audience who are interested, they can subscribe by sending us an e-mail and we'd be happy to put them to the list. They would get those aren’t opinions about what the important AG events were. I don't know the blog site.

 

Lori:

You can go to the website I don't have it on me.

 

Blake:

Just go to cozen.com and you can find it. That’s great. Well look this has been fun. I think state AG races are worth watching for everybody on the call who is certainly connected with that universe. That is not something that will surprise you coming from me but for folks who may not have been thinking about state AG races in the context of this cycle certainly some really dynamic ones. As I like to do Bernie, give someone the last word, I'm going to give it to you.

 

Bernie:

Thank you very much for the opportunity.

 

Blake:

That's great. Well thanks to everyone for listening to our call today. Thanks to Mark, Howard, Bernie and Lori, I appreciate it and we'll talk to you next week. Thanks.

 

 


Related Attorneys

Mark L. Alderman

Member

malderman@cozen.com

(202) 912-4846

Lori Kalani

Co-Chair, State Attorneys General

lkalani@cozen.com

(202) 471-3407

Bernard Nash

Co-Chair, State Attorneys General

bnash@cozen.com

(202) 471-3406

Blake S. Rutherford

Member

brutherford@cozen.com

(202) 463-2536

Howard Schweitzer

Member

hschweitzer@cozen.com

(202) 912-4855


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