The Supreme Court may gut the Affordable Care Act in a case called Texas v. California brought on behalf of the attorneys general in 18 states. All of them are Republicans, and all but one were elected. Publicly traded corporations and their trade associations spent money in most of these elections through the Republican Attorneys General Association (RAGA).
One of the unusual things about the United States is that we elect offices that in other nations would be appointed positions, from state supreme court justices to dogcatcher. As the Brennan Center and many others have noted, including former Supreme Court Justice Sandra Day O’Connor, the fact that we elect judges in 39 states creates all sorts of problems. But less attention is usually paid to the fact that attorneys general are elected in 43 states and the District of Columbia.
On the positive side, electing these offices means a corrupt or ineffective attorney general can be voted out. However, electing a state’s chief law enforcement officer allows for all of the troubles of money in politics to infect races for attorney general, from conflicts of interest to the perception that justice is for sale to the highest bidder. And unlike federal races, where corporate contributions to candidates are banned, in roughly half of the states, corporations can give money directly to candidates for state office.
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Many corporations are repeat players in litigation, hence their interest in who sits on the bench in state courts, as well as who is manning the state’s head legal office as attorney general. Consequently, corporate donors are found giving to candidates for statewide office, including incumbent attorneys general. As the Atlantic reported back in 2014, the U.S. Chamber of Commerce, a corporate trade association, spent heavily to keep Democrats from becoming attorneys general in several states. In 2016, the Washington Post similarly noted the high spending in attorney general elections by RAGA, which has many corporate and corporate trade association donors, as well as dark money donors.
A new report by the Center for Political Accountability called Conflicted Consequences teases out the political spending of corporations that is often seemingly at odds with official corporate positions. It also provides an overview of how corporate political spending has expanded in the decade after Citizens United, and it contains some of the first analysis of corporate political spending in the 2018 election.
The report notes that “Between 2009 and 2018, six large, partisan state oriented 527 committees — Democratic and Republican — [including RAGA] cumulatively raised $1.3 billion. Taking full advantage of the Supreme Court’s Citizens United decision, they more than tripled their fundraising per election cycle, taking in $385.5 million for the 2018 election cycle, up from less than $122 million in the 2008 election cycle.”
One of the areas that the report explores is corporate funding of state attorney general races. RAGA’s 2018 corporate donors included Anthem, Fresenius Medical Care, and Pfizer, and its corporate trade association givers included the U.S. Chamber of Commerce and the Pharmaceutical Research and Manufacturers of America (PhARMA). RAGA then gave money in 2018 to 13 of the 18 Republican attorneys general suing to overturn the Affordable Care Act, also known as Obamacare. Of the other five attorneys general suing, four had elections in later years (the one from Tennessee is not elected).
You may have never heard of RAGA, but it a big player in state elections and is often pivotal in who has funding to make a successful run for attorney general. According to FollowTheMoney.org, RAGA was the third biggest donor to the Republican candidate who became the attorney general of Mississippi in 2019, and the second biggest donor to the candidate who was reelected in Texas in 2018. That same year it was the largest donor to the incumbent attorney general of Alabama, who won reelection, and the largest donor to the winner in South Dakota. So far in 2020, RAGA is the largest donor to the Republican incumbent attorney general of Utah running for reelection. All of these attorneys general are parties to the Texas v. California suit attacking Obamacare.
As Conflicted Consequences sums up, “Public companies and their trade associations have contributed generously to the Republican Attorneys General Association, which supported the election of the attorneys general who brought suit to strike down the Affordable Care Act.”
And according to FollowTheMoney.org, the AGs who brought this case often have donations directly from corporate coffers. For example, the sixth largest donor to the incumbent attorney general in North Dakota’s was BSNF Railway, and in Kansas the fifth largest donor to the incumbent was AT&T. Similarly, in Missouri the incumbent’s fourth biggest funder so far is Anheuser-Busch, and in South Carolina the third largest donor to the incumbent in 2018 was Duke Energy. And in Georgia, the second largest donor to the incumbent, who won reelection in 2018, was United Health Group.
It’s an empirical question why these AGs are acting the way they are in attacking Obamacare in federal court. Some of them, like Texas’s Ken Paxton, are clearly true believers who ran for office to fight the health care law. However, one reason to worry about the litigation posture of these attorneys general is they seem out of step with their own state’s approach to Obamacare.
For example, of the 18 states involved in the suit, 8 of them have chosen to expand Medicaid: Arkansas, Arizona, Indiana, Louisiana, Missouri, Nebraska, Utah and West Virginia. The most recent is Missouri, where voters approved a ballot measure on August 4 to add the Medicaid expansion to the state’s constitution.
If the lawsuit is successful, all of Obamacare could go away, including the Medicaid expansion that 38 states and the District of Columbia have adopted.
Every time Obamacare has been challenged at the Supreme Court in a way that would make the entire law unravel, Chief Justice John Roberts has sided with the more liberal justices to uphold the law. This could happen again in Texas v. California, especially since the optics of throwing 20 million people off of health insurance during a pandemic are particularly grim. But it might not. And like much else that happens in politics, there’s a follow-the-money story to who gets elected state attorney general and who is empowered to litigate such suits all the way up to the Supreme Court.
The views expressed are the author’s own and not necessarily those of the Brennan Center.