Home > News > For Democratic governors, it pays to have a Democratic attorney general. Republicans, not so much.
143 views 8 min 0 Comment

For Democratic governors, it pays to have a Democratic attorney general. Republicans, not so much.

Many states split up executive branch power among several elected officials. Here’s what happens when they are not from the same party.

- August 2, 2020

In July, as novel coronavirus cases surged across Louisiana, its Democratic governor, John Bel Edwards, instituted restrictions to slow the spread. Those included mandatory face coverings, limiting bars to offering takeout and delivery only, and capping social gatherings at 50 people or fewer. The state’s Republican attorney general, Jeff Landry, issued a legal opinion in which he described these orders as “likely unconstitutional and unenforceable,” even warning businesses and police that anyone “acting as mask police could face liability if individual civil rights are violated due to the proclamation.”

Something similar happened in Kentucky, where Republican Attorney General Daniel Cameron has filed a motion to block Democratic Gov. Andy Beshear’s virus orders, asking a state circuit court judge to void the rules.

These legal conflicts reveal a crucial — though often ignored — feature of state politics: Many governors are limited by their state’s attorney general.

State AGs are politically powerful and mostly chosen by voters, not the governor.

U.S. presidents enjoy broad appointment power over key posts in the federal government and can handpick officials — including their attorneys general — who are committed to carrying out their agendas. But most governors must contend with independently elected state executives, such as secretaries of state, treasurers — and attorneys general. In addition to their formal duties of carrying out state law, individuals in each of these positions may develop their own policy programs and may advocate with the public and the legislature for particular policies.

Chief among them is the state attorney general. According to political scientist Colin Provost, that position “nearly rivals the governor’s office in terms of power and prestige.” As the state’s chief law enforcement officer, AGs have a wide-ranging set of responsibilities spanning numerous policy areas, including state prosecutions, consumer protection and antitrust enforcement, advising on the legality of state laws and regulations, and defending state laws when challenged, among many others.

State AGs, however, are also political figures. These officers are elected in 43 states. Only in five states are attorneys general appointed by the governor: Alaska, Hawaii, New Hampshire, New Jersey and Wyoming. In two, Maine and Tennessee, the attorney general is selected by the state legislature and state supreme court, respectively. Thus, AGs often have their own electoral and policy ambitions, separate from those of the governor.

What’s happening in Portland could hurt civilian control of the military. Here’s why.

They can steer the direction of state policy, either stymieing the governor’s agenda or working to advance it. If the governor and AG come from the same party, they are likely — especially in a polarized political environment — to hold similar policy views and answer to the same electoral constituencies. That should allow them to work cooperatively to push state policy in their party’s preferred ideological direction. But when they are not from the same party, there’s often friction between them, as AGs try to push policy in their own — often conflicting — directions or work to block many of the governor’s policy proposals.

Democratic governors benefit from having an AG from the same party. Republicans, not so much.

In a new research paper, I examined whether serving alongside elected state executives — state AGs, secretaries of state and state treasurers — of the opposing political party influences a governor’s ability to enact ideological policy change. To do this, I relied on a measure of state policy liberalism developed by political scientists Devin Caughey and Chris Warshaw, which measures how liberal or conservative each state’s policies are.

I found that from 1974 to 2019, Democratic governors saw significantly larger policy shifts in the liberal direction when the state AG was a fellow Democrat than when the AG was a Republican or independent. This dynamic is particularly strong in states with part-time legislatures, where shorter legislative sessions limit the state legislature’s oversight role and the state AG serves as an important intra-branch check on executive overreach. Democratic state treasurers, meanwhile, only led Democratic governors to be slightly more effective in shifting policy in a more liberal direction, while Democratic secretaries of state had virtually no effect.

I also examined interactive effects in the 29 states — excluding Nebraska because of its unicameral legislature — that elect all three positions, thus spreading out executive power the most. The results again underscored the importance, for Democratic governors, of having an AG from the same party. That was less true for Republican governors.

Perhaps unsurprisingly, when a Democratic governor has a team of state executives made up entirely of Republicans, the governor has little effect on bringing about liberal policy change. But when the AG is a Democrat, the governor is able to shift state policy considerably in a liberal direction, even when the secretary of state and treasurer are Republicans. Once again, these effects are most pronounced in states with part-time legislatures.

I did not find this to be the case with Republican governors. My results indicate that Republican governors have been able to shift state policy in a conservative direction even when none of the three state executives are Republicans. Interestingly, when Republican governors have fellow Republicans in the other elected executive positions, policies don’t become any more conservative than when they are not. In fact, when Republican governors serve alongside Republican AGs, state policy shifts are noticeably more moderate.

Here’s the problem with mail-in ballots: They might not be counted.

Why the difference?

These divergent results between Democrats and Republicans probably stem from the differences between Democrats’ and Republicans’ governing philosophies. As political scientists Matt Grossmann and David A. Hopkins have explored, the two parties are asymmetric. Democrats focus much more on delivering concrete government action for their constituencies. Republicans emphasize broader ideological principles rather than specific policy changes. As a result, Democrats stand to disproportionately benefit from having a fellow party member as AG to approve and defend their government actions.

The TMC newsletter has moved! Sign up here to keep receiving our smart analysis.

Nicholas Miras (@nicholasmiras) is a PhD candidate in government and politics at the University of Maryland. He studies American politics and political methodology, with an emphasis on state politics and federal-state relations.