'There's just more politics today': Derek Schmidt's gubernatorial bid and a flurry of lawsuits underscore new era

Andrew Bahl
Topeka Capital-Journal
Kansas Attorney General Derek Schmidt is touting his decade in office as part of a campaign for governor. Experts say his tenure underscores a new, and increasingly political, era for attorneys general.

When Carla Stovall Steckline attended an orientation for newly elected attorneys general in 1996, she didn't think much about making a small joke invoking the ongoing presidential race.

Native son Bob Dole was squaring off with President Bill Clinton, and when it came time for Steckline to introduce herself, she said she hailed from Kansas, "home of the next president of the United States."

No one said anything at the time, but Steckline later learned her remark, which came during a meeting at a National Association of Attorneys General conference, was out-of-bounds.

"That was just such a lesson for me," said Steckline, who served from 1995 to 2003. "That's not a place where you talk partisan politics in a group setting. I think that it's different now."

After 25 years, the landscape for the state's top legal and law enforcement official has changed dramatically.

Attorney General Derek Schmidt has made his penchant for joining lawsuits challenging actions by the Biden or Obama administrations a core part of his burgeoning 2022 bid for the governor's mansion.

Kansas joined at least 14 multistate lawsuits challenging actions by the Obama administration, ranging from prairie chickens to the Affordable Care Act, all of which were spearheaded by Republican colleagues. Schmidt has signed onto at least three similar lawsuits since Biden was sworn in in January.

More:Attorney General Derek Schmidt joins legal fight over COVID-19 relief restrictions

For comparison, Steckline's eight years in office saw only one lawsuit against Clinton's administration: a bipartisan suit challenging an Environmental Protection Agency decision about nuclear waste.

After her administration, the state didn't join a multistate lawsuit challenging federal action until Schmidt took office in 2011.

Former Kansas attorneys general and experts note this as a sign of how the office has changed — and the political platform it has gained.

"I don't think it'll be like it was when I was attorney general for a long, long time," said Robert Stephan, the longest-serving attorney general in Kansas history. "There's just more politics today than there was, there isn't as much agreement. The Republican and Democratic AGs now take different sides. That is all there is to it."

The U.S. Supreme Court on Thursday rejected a third attempt to strike down the Affordable Care Act, with Kansas one of the states involved in the lawsuit.

Schmidt active in suits ranging from Obamacare to environment

In a statement, Schmidt spokesman John Milburn argued the cases were a way of delivering results for taxpayers and have resulted in some federal actions being halted or overturned.

"The attorney general files lawsuits when it is in our state's interest to do so," Milburn said. "Sometimes, it strengthens our legal position to join with other states in a filing."

Schmidt has echoed that rhetoric as part of his campaign, arguing he has been a check on Democratic presidents' efforts to increase regulations on farmers and ranchers, as well as other actions he deemed to be infringing on Kansans' constitutional rights.

"When the Obama-Biden administration overreached, I took them to court and won," Schmidt said during a video announcing his candidacy in March.

The record of most of those cases was a mixed bag. Most of the cases filed during the Obama administration were ultimately dropped after President Donald Trump took office.

A 2015 case challenging Obama-era limits on Midwest coal plants was successful, after the U.S. Supreme Court ruled the EPA didn't consider the economic costs of the regulation before its implementation.

Meanwhile, an effort to strike down the Affordable Care Act, which Kansas was a part of, failed Thursday after the U.S. Supreme Court upheld the landmark health care law on a 7-2 vote. It is one of several unsuccessful attempts to overturn the law that Schmidt has taken part in.

Steckline noted one or two states will take the lead on a multistate case, something Kansas has done on only a few occasions under Schmidt's tenure.

For other participating states, a deputy will often be assigned to handle any duties stemming from the case, including participating in conference calls with other parties.

"Generally speaking, it's not a big use of resources for most of the offices," she said.

States also will frequently file or sign onto briefs supporting lawsuits, basically an acknowledgment that they endorse a given position but stopping short of actually joining the case as a party.

Schmidt filed 56 briefs in support of other lawsuits between 2011 and 2013 alone. That pattern has continued through 2021 — his office last month led a coalition of 17 other attorneys general in supporting South Dakota's legal bid to allow Fourth of July fireworks at Mount Rushmore, an effort that has proven unsuccessful thus far.

Multistate suits underscore changing political dynamic, experts say

The trend of attorneys general taking increasing aggressive stances on political matters started well before Schmidt took office in 2011, said Paul Nolette, a professor of political science at Marquette University in Wisconsin and an expert on how state attorneys general have used their office.

Nolette pointed to how attorneys general from both parties used sweeping settlements with tobacco companies during the 1990s to expand their political platform — a move that transformed how politicians used the office, he said.

Those deals, which involved 46 states, represent the largest civil settlement in U.S. history and prompted fundamental changes in how tobacco products were marketed.

"Before that, AGs were just seen as this, for the most part, rinky-dink state agency that did a few things and represented the state in legal affairs but had very little national profile or did anything really on national politics," Nolette said.

Former Kansas Attorney General Robert Stephan, pictured here in 2009, noted the landscape for attorneys general has become more overtly political, with separate organizations formed for Republican and Democrat officeholders.

At some point, Stephan said, this turned the landscape into a more overtly partisan one. He noted that fracturing between parties became more apparent in the 2000s, and it prompted the creation of separate Republican- and Democrat-aligned groups of attorneys general.

Multistate lawsuits challenging federal actions accelerated in the later years of the Obama administration and exploded under the Trump administration. Groups of largely Democratic attorneys general filed more multistate lawsuits against the federal government under Trump than there were during the Obama and Bush years combined.

Several high-profile challenges to actions by the Biden administration have already been filed, including the decision to halt construction on the Keystone XL pipeline. This signals that Republican AGs are likely to follow the path of their liberal counterparts moving forward.

"They see this as a relatively low-cost way of getting attention and building a portfolio that they can use for their voters in a partisan primary," Nolette said.

‘I don't see that backfiring on him’

Schmidt's most controversial action was likely in November, when he filed a brief from a Texas lawsuit seeking to overturn the presidential election results in four key swing states as part of a series of efforts from Trump and his allies to overturn his defeat.

The Texas case was the most brazen of Trump's legal challenges, as it would have involved another state asking the U.S. Supreme Court to hear a challenge to the results in Georgia, Pennsylvania, Wisconsin and Michigan. The upshot would have been swinging the presidential race to Trump. 

In a statement, Schmidt said, “these are important and potentially recurring constitutional questions that need an answer.” He did, however, acknowledge the high court's decision not to address the matter a week after the lawsuit was filed, saying, “It is time to put this election behind us."

More:2022 speculation begins amid election suit controversy

It wasn't the first time Schmidt has waded into similar issues. He also signed onto a brief supporting an effort from Pennsylvania Republicans to toss mail ballots that arrived after Election Day.

"I think that was the right legal decision," Schmidt said in a March interview. "I think Pennsylvania in particular did not follow federal law. ... We stood up for what I think the law requires and will go forward."

His office said in the November statement that his office received "thousands" of calls and messages asking Schmidt to join the case and back Trump.

Emails to Schmidt's office, obtained via the Kansas Open Records Act, show more than 80 messages urging him to join the Texas lawsuit, with most of them appearing to be a form email from an unnamed advocacy group.

Still, Nolette noted the move put Schmidt on relatively safe ground, given how popular Trump is with voters in Kansas.

"It's in the Republican mainstream," he said. "The vast majority of Republican voters agreed with those efforts. So I don't see that backfiring on him."

Can Schmidt buck national struggles of AGs running for higher office?

Schmidt's bid for the governor's mansion belies a reality for top cops seeking higher office: They often fall short.

An attorney general has only risen to the governorship twice in state history, the most recent being John Anderson's 1961 victory. Steckline was the last attorney general to even consider a run but backed off her 2002 campaign, citing a declining interest in political life.

Steckline said the track record was fairly typical nationally, noting that when she was in charge of the NAAG in the early 2000s, there was a joke that the acronym stood for "national association for aspiring governors."

"With an emphasis on aspiring," she said.

But 2022 could buck the trend.

A day after Schmidt announced his gubernatorial campaign, Missouri Attorney General Eric Schmitt announced his run for that state's U.S. Senate seat. Attorneys general in Pennsylvania, Louisiana, Arizona and Arkansas have either announced similar runs or are expected to in the months ahead.

Schmidt faces a formidable foe in former Gov. Jeff Colyer, and much in the race could change over the next 14 months. But there is little doubt that Schmidt's experience in the attorney general's office will continue to be a core part of his appeal to voters, including his work with law enforcement and crime victims.

But the legal challenges, Nolette noted, help make an especially provocative case to voters, although he acknowledged it could create an opportunity for Democrats to attack in a general election.

"It probably will tell us quite a bit in this next election cycle how well that's going to work moving forward," he said.

Whether the evolution of how attorneys general use their office is a good thing, however, remains to be seen, Steckline said. While supporters of a particular political position may think "those actions are admirable, courageous and 100% right," she noted there was still a "worry about the perception."

"If you're hurting the underpinnings of how society looks at the rule of law and justice, and even if you like the outcome at the end of the day, was it really worth having people question 'Is that the way that our laws should be used and interpreted?'" she said. "When the law is used as a means to a political end, I think it crumbles our foundation."