Forty-four state attorneys general have announced a sweeping antitrust lawsuit against 19 generic drug makers for price fixing. Billions of dollars are at stake. Led by Connecticut and two career Assistant Attorneys General — Mike Cole and Joe Nielsen — they have put together an impressive case. Forty-four states worked together on a nonpartisan basis, and remarkably nothing leaked to the press during the investigation stage.
Instead of looking at the details of this mammoth case (if you are interested, please see the press release (“Attorney General Tong Leads 44-State Coalition In Antitrust Lawsuit…”) I, instead, would like to draw your attention to the state attorneys general who signed on as co-plaintiffs: a bipartisan collection of state attorneys general undertaking a professional effort authorized by federal antitrust law.
Are offices of the state attorney general, like so many government institutions and agencies in our country, captured and defined by the partisan politics of the age?
If you ask the political reporters who so often call me with this same question, the answer for them — often predetermined by editorial considerations — is always a resounding “yes.” If you ask the Republican and Democratic Attorneys General Associations (respectively known as RAGA and DAGA), the answer is always “we sure hope so” because their funding models depend on it; that is how they raise money for campaigns.
Like most such matters, the answer is not a simple yes or no, but rather a complicated one.
All attorneys general belong to a political party and generally reflect the beliefs that underpin the party’s core values. In other words, the Democratic AGs are real Democrats, and the Republican AGs are real Republicans, and their offices reflect those values on many issues. When issues arise that are as polarizing as President Trump, abortion, and immigration, the state AGs reflect the national divisions. That is what we call “democracy.”
All state attorneys general are law enforcement officials. This means that when egregious violations of the law are brought to their attention, state attorneys general are perfectly able and willing to put aside philosophical differences, roll up their sleeves and work together to enforce the law. Even a cursory look at the websites of the National Association of Attorneys General (NAAG) and the Conference of Western Attorneys General (CWAG) should make clear that state AG's work together cooperatively on many issues, including public advocacy on issues such as funding for legal services for the poor.
The appropriate and not often asked question is whether partisanship has precluded state attorneys general from different parties from coming together on an issue or law enforcement matter. At least for today, contact the 19 generic drug manufacturers who just got sued and see what they have to say.