June 17, 2021

Podcast: A Conversation with Attorney General Tom Miller

Eyes on Washington Podcast Series - Conversations with State Attorneys General

In this episode of our Public Policy & Regulation Group's "Conversations with State Attorneys General" podcast series, attorney Stephen Cobb talks with Iowa Attorney General Tom Miller about how he came to be the longest serving state attorney general and how he has seen the role of state AGs change over time. They also spent time discussing multistate actions, how they've become a tool for state AGs and the factors that have led to their proliferation in recent years. Additionally, Attorney General Miller shares what it is like, as state AGs, to work with the federal government on national issues. He shares insight about priorities in the Biden Administration that will likely align with areas of focus for state AGs in the coming years.


Podcast Transcript

Stephen Cobb: Welcome back to another installment of Holland & Knight's, Eyes on Washington podcast, this is the State Attorneys General, edition. My name is Stephen Cobb. I'm a former deputy attorney general of the Commonwealth of Virginia and now a partner at Holland & Knight's Washington, D.C. office in their public policy & regulation team and co-head of our State AGs practice. With me today is the dean of state attorneys generals, the esteemed attorney general of the great state of Iowa, Attorney General Tom Miller. General Miller, thanks so much for joining us today.

Tom Miller: Thanks for having me.

Stephen Cobb: You hold a unique position amongst state attorneys generals in that you are the longest serving state attorney general in the country across party, if I'm not mistaken, you have served for some part of the last five decades. Am I getting that correct? '70s, '80s, '90s, 2000s, teens and '20s.

Tom Miller: You've got that correct.

 

Stephen Cobb and Tom Miller on Zoom

 

Path to the Iowa AG's Office

Stephen Cobb: One of the things I found very interesting amongst state attorneys generals and the role they play now, both as regulators and as leaders on policy, they are really the tip of the spear in many issues. And that's the tune of tens of billions of dollars in regulatory fines and settlements. There are multistates that are leading on policy issues across various industries, but that hasn't always been the case. And that's something that I think has really matured over the last 10 or 20 years. Can you talk a little bit maybe about kind of your history, how you came into the office and how you've seen the role of State AGs change over time?

Tom Miller: Well, it's a long time ago now that I came into the office, it was 1979 following the 1978 election. And, you know, I was inspired for public service by three people. One was my father. My father worked in the Dubuque County courthouse. And I knew what he did and what he stood for and a lot of his colleagues. You know, that had a major impact on my life. Then I was influenced by the election of President Kennedy. Like many people in my generation, the idealism of John F. Kennedy was, you know, had a huge effect on our lives and what we wanted to do with our lives. And then John Culver was my mentor. John was a congressman and a senator from Iowa. And I worked for him and learned things from him, including learning a lot about integrity and how important that was, as I did with my father. So you know, I wanted to be in politics. And first of all, I wanted to be in Congress like my mentor, John Culver. But I went to law school thinking that law school and a legal career and a political career, you know, meshed quite well. It certainly has for me. And then the office of attorney general of Iowa came up and I sort of redirected my attention towards that. I had to run twice to win. I ran in '74 and lost and then ran in '78 and won. I'm really thankful that I came in this direction, the office of attorney general is just an absolutely wonderful job, I think.

Brief History of Key Multistate Actions

Stephen Cobb: Do you remember what the big issue was when you were running in '78, as to what area of legal enforcement or area of concern for the attorney general's office that you were that you were running on back at the time?

Tom Miller: Well, the overriding issue I think was my opponent, in the sense that I ran on the premise to professionalize the office. My opponent was outspoken, and had a wonderful sense of humor, by the way, and was a good guy, but had let the office sort of get into a situation where it wasn't as professional as it should have been and didn't sort of hone in on the law as it should have. So that was my major theme. You know, I did run on consumer protection. Consumer protection was a big issue for me, ran on a farm division, having a farm division to do for farmers what consumer protection does for consumers. So those were the issues. And my opponent had sort of had also clashed a lot with Governor Ray, who was also a Republican and extremely, extremely well regarded. They didn't always get along very well. I think that sort of accrued to my benefit. I always thought that, Governor Ray secretly voted for me, I don't know whether that is, and I never put them on the spot. Over time, he and I became great friends. He's an incredible guy and has had an enormous influence on me and was a friend for a long time, recently passed away, unfortunately. So I mean, those were the issues then. But, you know, for your purposes, what happened pretty quickly in 1979 was the first multistate. And what we've done in multistates has been very significant, I think, and it started rather innocently enough, there was a marketing case against General Motors and they ran these commercials about this great Oldsmobile they had. And it was great because they had this souped up engine. What turned out the engine was a rather common Chevy engine with was nothing souped up about it. So a number of states sued, and I think it may have been even their sort of initiatives to as it was being resolved as it should be, to have us come together and do it together rather than have 25 or 15 or 30 separate settlements. So we did that and then that worked. And then as we did other cases, for most states, there was a real imbalance. If you were challenging a national corporation an imbalance in the sense that they had a lot more assets. They had a lot more resources, litigation in particular than we had. So, you know, we'd been together on the Chevy Oldsmobile case. So we decided to work together and pool our resources. And what we found was that not only was there a benefit in the resource question, it was difficult for companies to face 15 lawsuits of a similar nature that we created sort of a new dynamic that gave more power and authority to the attorney generals who had been alone, sort of in a weakened position. And so consumer protection developed a multistate effort starting in '79 and of course, continuing to today.

We decided to work together and pool our resources. And what we found was that not only was there a benefit in the resource question, it was difficult for companies to face 15 lawsuits of a similar nature. We created sort of a new dynamic that gave more power and authority to the attorney generals who had previously been alone.

In the mid '80s when President Reagan and his antitrust enforcers went to a pretty restrictive view of the antitrust law, the state stepped in and tried to maintain a more rigorous kind of activity and prosecution. Out of that grew, the multistate on antitrust, where we worked together on a lot of different antitrust cases, much like in consumer. So leading into tobacco, there was this background of very successful multistate work in antitrust and consumers, which was sort of the forerunner, the foundation for the tobacco case. Also, I'd point out that we don't sort of as a group or individuals say, OK, we're going to deal in policy, we're going to create these policies. The policy decisions and policy activities grow out of enforcement activities and particularly in the large cases and when there is a violation, there has to be a remedy. And for some of these cases, the remedy has to be pretty comprehensive, which involves policy or it's not going to be successful. So, you know, I think, you know, there is a real distinction among attorney generals in terms of, you know, dealing with policy and other public officials, because there's sort of this blend of enforcement and policy as a result, a necessary part of enforcement. And also there are some policy things we do based on the core responsibilities we have in the criminal law area. You know, we would propose legislation based on our experience in the consumer areas, the same thing. So, I mean, maybe it's a sort of a meaningless distinction, but I don't think we engage in pure policy. It's a hybrid of other activities that sort of leads to that.

Factors Leading to the Growth of Multistates

Stephen Cobb: There's a couple of things there that I'd like to unpack a little bit more, putting on my adjunct professor hat. For the last couple of years I've taught a course on state attorney generals at William and Mary Law School, and when we talk about multistates and how they've changed over time, I've often asked the students to kind of rank the factors that they think have gone into the proliferation of multistate actions. And for those listeners who don't know, that's when numerous state attorneys generals worked together as a team and as you alluded to, file multiple lawsuits or work together through the course of an investigation or litigation. But I see several in my mind, I see several factors that have led to those being more and more widely used. Some things as simple as the technology we have now makes it a lot easier to collaborate than it did in the early '80s: the ability to share briefs via email and get people on a Zoom like we're doing now, change in economic factors where you have companies that are working in so many more different states now than you did where economies were more localized at the time. To your earlier point, the increased professionalism in state AG offices and really filling a regulatory void, like you pointed out in the in the '80s. And of course, success breeds success, and so when you look at factors like the success state AGs had in tobacco, there's opportunities there. How do you see kind of this confluence of factors leading to the growth of multistates? And do you attribute any one of those of having more impact than another?

Tom Miller: I think, you know, you touched on a number of them that had an impact. You know, my friend Jim Tierney, who you probably had some contact with in terms of your course.

Stephen Cobb: I largely borrowed his syllabus, so yes.

Tom Miller: Well, you had good material, then. He's the great master on these. I mean, he talks about the economy over time, shifting from, you know, largely a local economy to a national economy. So large corporations operating in many states increase their market share and their activity. So, I think that's a factor. Probably one of the big factors that led us to do this. Another factor was the resource question. You know, it's a classic example of you can do some things together that you couldn't do alone. That was a big factor. You know, the ability to communicate and technology certainly helped and aided it, but I think those two factors were more significant. And also, you know, don't forget or at least I argue that there was really a vibrant multistate activity in consumer and antitrust in the '80s.

Stephen Cobb: Now, do you see state AGs having a larger bully pulpit now than they did in previous decades? I see, when we have a vice president who's a former state attorney general, we have two or three serving in the cabinet. Countless others who've served as governors and senators, it seems perhaps there's been no greater time for state AGs to be in the limelight, where if a state attorney general calls a press conference to say that they have an issue with something, more and more people are listening. Have you found that to be true?

Tom Miller: I think that's true. And there has been, again, a rich variety of factors that have evolved there. You know, including, you alluded to, I think, success in some litigation in the tobacco case and in particular in other another multistates. You know, I think the emergence of the rule of law as a more and more important foundation of our country added to that. I think, you know, obviously I'm terribly biased on this, but I think the quality of the attorney generals over the last few decades added to that. I've had just wonderful colleagues over that time that have been extremely talented. And I think that's added to it. I think another factor that works in our favor is that, while certainly there's partisan activity that AGs engage in, particularly vis a vis the national administration, state attorney generals are more bipartisan than any other elected officials in the country. We work together on so many different things, particularly multistates and across party lines, that I think that has aided in our credibility.

State attorney generals are more bipartisan than any other elected officials in the country. We work together on so many different things, particularly multistates and across party lines, that I think that has aided in our credibility.

Also another factor that I think about is that the AGs are furthest away of what I'd call 'raw politics' than other elected officials, legislators, governors, sort of the political strength and the political dynamics are really strong, that we're obviously not totally protected, but a little bit protected because we're law enforcement people, because we're rule of law people. So I think all those factors have given us some more credibility and some more stage. But you still have the situation where statewide elected officials, you know, don't immediately attain a lot of status, not like governors and senators and members of Congress. But, that's changed in a positive way, I think, over time.

National Scale Issues: Working with the Federal Government

Stephen Cobb: Now, taking this opportunity to look back in the last year, what were some of the issues that you face both in Iowa and kind of on a national scale, that was of particular importance to your office?

Tom Miller: I mean, all of us went through just a terrible COVID season. Nobody could see this coming or anticipate either how bad it would be or how long it would be. So, I think that's affected a lot of things. And for us, at least initially, price gouging, some scams concerning the various remedies and treatments was a big issue and continues to be somewhat of an issue that our consumer people have worked really hard on, on those issues with some success. And then, you know, we've seen the emergence of the technology cases, the antitrust cases against Google and Facebook that are incredibly important cases, difficult, time consuming, challenging, but very important cases. You know, again, and I underline the bipartisanship. I think in one case, Facebook, I think we have 49 states. And in Google, it's also, I think 49 or something like that. Vast majority Democrats, vast majority of Republicans. And on both cases, we work very well with the federal government, with the Trump Administration and Attorney General Bill Barr in Google. That was a good relationship, one where we supported each other, worked together, shared resources, and also on Facebook, we worked and continue to work very closely with the FTC. So I think those are two of the big issues.

Stephen Cobb: When you're partnering up with the federal government on those things, how do you decide to the extent that you can comment on who's taking the lead on what issues and what part within that litigation, whether it be state AGs or whether it be your federal counterparts?

Tom Miller: That's an interesting dynamic and sometimes a challenging one. Sometimes it flows very well. And it does depend somewhat on the individuals involved. You know, we had a massive case concerning mortgage fraud and the ability of people to stay in their homes during the financial meltdown in 2007, 2008 and 2009 and to some extent, following. Tom Perrelli, the associate attorney general and classmate and fellow editor of the Harvard Law Review of President Obama was the lead federal person and he was terrific to work with. You know, he reached out to the States. We worked as well as we could with him. And, you know, it's a little bit of a case where one person can make a huge difference. Tom's work was facilitated what we did in so many ways and I as leader of the state group, tried to respond in the same way. But, you know, I think the whole idea is for both sides to understand what's at stake and that we can do something that would be very significant if we work together and make it work. And, you know, I'll mention Attorney General Bill Barr on Google. I mentioned him before. You know, he was very good to work with on the Google case. We met with him at least twice in person and had very good discussions, helpful discussions. So, you know, I think the good relationship should be the rule and the difficult one, the exception. The things that lead towards a more difficult relationship I think are further in the past, the sort of competition, the suspicion. I think those have all been reduced. And, of course, you know, there used to be a thinking that you probably never ran into this, but thinking that the federal government was bigger and more important and smarter than these little old states that the feds were better. And, you know, in the cases I've been involved in, that really hasn't been a factor, particularly with Tom Perrelli.

Stephen Cobb: Well, with a new administration comes new priorities. And you've already mentioned the continuing antitrust cases. Are there other areas that you look to the Biden Administration and say these are likely going to be areas or priorities where state AGs are going to really have the opportunity to share priorities and work shoulder to shoulder with a new administration?

Tom Miller: Oh, there's a long list. There's a great list. Let me mention a few departments and people on the list to start with. Two former attorney generals, Richard Cordray, the former attorney general of Ohio, is at the point of student loans, which is a very challenging issue and the states have been involved in that in a big way for a long time. That's so important for the students and for the economy in a lot of ways that's something that if we could deal with successfully, would be an enormous real reform, as I call it, and real help to Americans. You know, I believe that maybe the way to do it is through income reduction of principle based on income, on people's income. That would be very difficult to implement. It's sort of it's the law now, but it just doesn't happen. It just isn't implemented. It's one on one transactions like that are very difficult to do. But if we could figure out a way to do it and we started to talk to Rich about it, some great things can be done. And Milgrom, the former attorney general of New Jersey, is the nominee to be head of the Drug Enforcement Administration, the DEA. We've talked a little bit already and there's a lot of things we can do together. But, you know, there's climate change that I think that we can do a lot with the administration on that. In Iowa, of course, we take great pride, in the enormous amount of wind energy that we have in Iowa, more than 40 percent in recent years of electricity is generated through wind energy. And Mid-American, our largest of the you know, we have two major public utilities in America and the larger and when they get finished with their current round of wind implementation, they'll have the capacity anyway to do 100 percent generation by wind. So I think there's a lot we can do with climate change and other areas in the environment and consumer protection. You know, I'm a consumer protection guy, and I think that we really can do things sort of what I'm thinking about is a consumer protection SWAT team, where we and the feds and everybody else that's a player here work together to deal with the really bad problems as quickly as we can and also deal with the intractable problems as best we can. I think there's a lot to do there. Civil rights is an area as well. So there's just a big, big list of areas where we can work with the Biden Administration, they send us the signals, including the president himself, of course, that they really want to do that. And they're sincere about saying that, especially the president.

Sort of what I'm thinking about is a consumer protection SWAT team, where we and the feds and everybody else that's a player here work together to deal with the really bad problems as quickly as we can and also deal with the intractable problems as best we can.

Future of Consumer Protection

Stephen Cobb: Well, that leads perfectly into my kind of next area of inquiry. When you talk about yourself being a consumer protection guy, there's been some pretty high profile consumer protection pieces with state AGs recently that has moved beyond just the alleged bad actor, but to those that allegedly supported, consultants, PR firms. And I'm curious to see, it is area of focus that I have not seen before in the consumer protection space. And I'm wondering if you can kind of comment, this is a new area with the breadth of consumer protection law and kind of really where that line is between alleged bad actor and those who have alleged to have supported them, even though they might not know A from B, so to speak.

Tom Miller: That's a good question. You know, first of all, I'd say I think I think those kinds of cases are going to be pretty limited and should be pretty limited. And to some extent, there's sort of a natural outgrowth of what we've already been doing in the sense that if there's, you know, very serious harm being done, that's at least, you know, fairly apparent in the country, and opioids, of course, is the great example that Purdue Pharma pled guilty in 2007 in federal court in Virginia and, you know, paid a fine of five, six or seven hundred thousand, people pled guilty. The allegations were clear that the public, including the consultants, you know, knew that that some bad things were happening here. And combine that with, you know, involvement in deception that they can know about. So I think if a company is a consultant or any public relations firm, whatever, you know, they don't have to check the safety of all the products they do ads about. But, you know, if there's a public awareness of some pretty severe consequences, it's a pretty questionable activities going on, you know, they should ask themselves whether they should be doing this. Certainly in the case of opioids, the answer was no, that they shouldn't be. So, you know, I think this is something limited, but also something that the professionals in America should stop and think about in those cases, in those situations that I describe.

Stephen Cobb: It's a very interesting area and I, as I mentioned, I couldn't think of a situation where that's happened before, you know, trying to create a hypothetical and it was you if company A creates and sells a widget but hires Company B to promote it and Company C to consult on it, what duty do they have to look at the safety or efficacy of the widget? The question and focus, I think, is going to be an interesting one for AGs and the private sector to evaluate in the year ahead.

Tom Miller: Yeah, I think generally they don't, but if there's some danger signals, particularly severe harm and, you know, as they go through with their client, there's questionable activities. In those kinds of situations, they should have to ask themselves about their involvement and what's happening. But generally, you know, that's not the case.

Advice for the Private Sector: Working with a State AG Office

Stephen Cobb: Switching gears kind of completely to a more functional question, which is that for many companies, both large and small dealing with the state AG office is a largely new experience it's not often something that doesn't happen day to day. Unlike litigation, there's not a procedure manual for it. What are some of the things that you think are good rules of thumb, so to speak, in dealing with a state AG office that the private industry should consider?

Tom Miller: That's a good question. You know, I think the most important thing they can do in their interest and it's an enlightened self-interest, obviously, is shoot straight with the AG's office, you know, to think that, you know, they can hire counsel to prolong the litigation and counsel that's the great lawyers and they can escape their responsibility that way. That doesn't work. To sort of, you know, to attack the AG, the office or to get in litigation where you try everything, you attack everything that doesn't work. I think that, you know, assess, you know, what the problems are and what your responsibility is. If there's a solution and almost always there is that makes sense, you should work towards that. Should hire counsel that generally would work toward solution rather than sort of litigation warfare. You know, I've seen that work much better than the high powered litigation that for a while was the natural response of corporate America. But I don't think is anymore. But occasionally it is. You know, there's a remarkable lawyer by the name of Meyer Koplow. Meyer, was the managing partner for a period of time at Wachtell Lipton. And he tried to retire, I don't know if he fully retired from them or not, but he represented one of the tobacco companies, Philip Morris, he represented one of the banks, Bank of America, in the mortgage case. He had this concept of what I call enlightened self-interest for his clients. And that is that there's a lot to be gained by solving the problem at hand and if possible, repairing the relationship that preceded it. And to do that, the company needs to be willing to go a little further than they really have to, but not dramatically. I think that approach is the best approach that I've seen of lawyers that have come into to our offices and into our multistates.

Stephen Cobb: One of the things that I've often preached and feel free to tell me that I'm wrong is that oftentimes if you're working in a highly regulated industry or you have a disruptive business model or you've noticed a trend of state AGs working in your industry or in your field, sometimes it is helpful not to wait for an inquiry, but instead to try and work collaboratively to say this is what we're doing, this is why we believe it's in bounds and we think we're good corporate citizens, do you find that kind of collaboration helpful?

Tom Miller: Yeah, it is it really is helpful. The whole idea of knowing each other to some extent, knowing what they're doing, and particularly if sometimes they're doing some things that are innovative, some things that might look controversial but really aren't to be able to talk through those. And let us know is very helpful. But again, you know, it's a quality conversation. It's straight shooting. Some come in and make these arguments that on their surface, you know, sort of sound good and then you really dig into a little bit and it really was pretty deceptive. I've had major corporations do that, and when I figure out what they were doing, it doesn't advance their cause.

Stephen Cobb: I would not and I would think it's probably more challenging to get another meeting after they've done that the first time.

Tom Miller: That's right.

Closing Thoughts

Stephen Cobb: That's fantastic. General, I want to thank you so much. You've been very generous with your time. But before we close out, I want to give the opportunity for you to highlight anything that your office is working on, initiatives or policy that you'd like to highlight to our listeners. I want to give you the opportunity to sing the praises of your team.

Tom Miller: I think we have a great team in Iowa and just some very talented people that have integrity that work in public interest, the public service is something that's really important to them. So, you know, I feel incredibly blessed to have this group of people in our office, a number of them are leaders among the multistates and other activities in the NAG world and I'm proud of that. What I'd like to close on is what I mentioned before, is my colleagues. You know, I think we have just an incredible group of attorney generals. As I get to know the relatively new ones that came in three years ago, what an impressive group. But the people that have been here have also been very impressive. And, you know, the great relationships that I've had across party lines, has just been incredible, my best friend, personal friend, I think among AGs is Lawrence Wasden, the Idaho AG who happens to be a Republican. And we've had those kinds of relationships. So, you know, I'm a big fan of the state attorney generals. Javier Becerra just left to be the secretary of Health and Human Services. An amazing, amazingly big and complex and challenging job. He was he was a wonderful AG and a wonderful colleague. Tish James has been a great colleague and has contributed enormously to multistates and other activities. So it's a great group in my opinion.

I think we have just an incredible group of attorney generals. As I get to know the relatively new ones that came in three years ago, what an impressive group. But the people that have been here have also been very impressive.

Stephen Cobb: General, thank you so much for your time and sharing your thoughts with us. My name is Stephen Cobb. This has been Holland & Knight's Eyes on Washington podcast series, the state attorneys general edition. Thanks so much and we'll welcome you to our next broadcast.

To hear more about what state attorneys general are prioritizing across the country, listen to the other episodes in this series.

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