While much of the spotlight is on campaigns for governor and U.S. Senate in Wisconsin, there are big stakes in the attorney general’s race as well. The candidates diverge widely on several topics, including abortion law. Incumbent Democratic Attorney General Josh Kaul has pledged not to enforce the state’s 1849 law banning abortion. He’s even sued to block the law. Republican challenger, Fond du Lac prosecutor Eric Toney has said he would enforce the ban and direct resources to local district attorneys’ offices to prosecute violations.
To find out what else you need to know about the attorney general’s race before casting a ballot, WUWM spoke with Marquette political science professor Paul Nolette.
Can you start out by explaining a bit about what the attorney general's office does?
“There’s a lot of things that the [attorney general's] office does, both in the civil and criminal legal context,” says Nolette. Wisconsin’s attorney general runs the Department of Justice, which does many things, from running investigations and crime labs to criminal and civil appellate litigation. They issue guidance on laws and join national lawsuits. “And also, they take a lot of actions to enforce state laws,” says Nolette. “So, against individuals, corporations here in the state [on topics] that might have to do with consumer protection issues, environmental issues, other types of legal questions like that.”
Additionally, attorney generals, especially in the last few years, have taken on a much more national role as well, he says. “So, one part of their job that tends to get a lot of attention is joining multistate lawsuits against the federal government, getting involved in federal court cases, as friends of the court. [“amicus briefs”], and really having an impact across a wide range of policy, both on the national and state level.” So state attorneys general today are quite active, says Nolette, and it's become a very important position.
The attorney general's office is a partisan post, but some efforts at the DOJ remain constant regardless of whether the person heading it as a Republican or Democrat. Can you describe some of those things?
“There are a number of things that are widely bipartisan [or] are relatively non-partisan,” says Nolette. “That involves some criminal law issues. One of [Attorney General] Kaul’s priorities, in fact, over the last four years has been to work through the backlog in sexual assault kits. And so, he's introduced a number of policies related to that. And he’s also worked on issues like robocall enforcement, you know, trying to cut down on robocalls, which Republicans and Democrats alike, don't like.” There are a number of consumer protection type issues that, regardless of whether there's a Republican or a Democrat in office, will continue to get done on a relatively bipartisan basis.
So how does partisanship play a role in the attorney general's office?
“One critical aspect of the [attorney general's] office is that they have a lot of discretion about the issues that they prioritize. This tends to be a big difference between Republicans and Democrats across the country, in terms of how they use their office, what sort of policies they really emphasize during their term in office,” says Nolette. “We've seen that Josh Kaul has prioritized a number of environmental issues during his time in office.” These issues include litigating Clean Air and Clean Water Act violations, setting admissions standards, regulating PFAS “forever” chemicals. When President Donald Trump was in office, Kaul pushed against several of the Trump administration’s efforts to deregulate in a number of those areas.
Nolette says environmental issues tend to be somewhat de-emphasized when there's a Republican attorney general in office and re-emphasized when a Democratic attorney general takes office.
“Abortion is certainly going to be a very important issue, already is during this campaign for the midterm elections. And Republicans and Democrats, of course, take a very different view on it,” says Nolette. “Abortion generally, but also looking at how an [attorney general] might enforce the old abortion statute that's on the books.” Nolette says when it comes to suing, or being allied with the federal government, it makes a big difference whether there's a Democrat or Republican in office.
Now, for instance, with the Biden Administration, Kaul and other Democratic attorneys general are no longer suing the federal government, but are, in fact, sometimes participating in these lawsuits as an ally of the federal government.
How did Kaul’s administration differ from his predecessor’s, Republican Attorney General Brad Schimel? And how does that give an insight on likely positions of Kaul’s Republican challenger, Eric Toney?
“Schimel was a leader amongst Republican [attorney generals] in pushing back against a number of Obama era regulatory policies on the environment as well as the Affordable Care Act,” says Nolette. “Josh Kaul withdrew from a number of those cases that Schimel had been involved in. And during the Trump administration, after Kaul took office, in 2019, has been really quite aggressive in suing the federal government to try to roll back the Trump era standards.”
Nolette says that in this upcoming race, whether you see a Democrat or a Republican in office, Kaul or Toney, in this following year, it's going to make a big difference on amicus briefs, as well as these specific issues like healthcare and the environment.
Are there big ways that Toney and Kaul differ on prosecutions and policing? For instance, on qualified immunity for police officers or dealing with racial disparities and systemic inequities in the criminal justice system?
Nolette says Eric Toney is making criminal law issues a centerpiece of the campaign. “But this is actually an area where I think [the two candidates] largely differ less than they might on other issues, including civil law issues,” he says. “Josh Kaul has made a big deal out of the fact that he supports law enforcement, more resources going into law enforcement. He's emphasized the sexual assault test kit issue, trying to modernize that system and improve it.”
"I think that there are some differences, certainly at least rhetorically, when it comes to seeking to address inequities within the criminal justice system," says Nolette. "But policy-wise, I think there's actually less daylight between the two than the campaign might make it seem."
Nolette says the issues that aren't necessarily getting as much attention in this particular race: the environment, health care, immigration, a number of other issues, are where you're going to see a bigger difference between the two.
And what about the attorney general's role in prosecuting voting laws?
“This is one area in the broader criminal law space where I do think that there is a real difference between the two candidates,” says Nolette. “Toney has emphasized strict enforcement of anti-voting fraud laws and has indicated that he would use his office to take a more aggressive stance on these issues.” Nolette says that Josh Kaul has responded by saying that a lot of this is bluster that it's really feeding into conservative conspiracy theories about stolen elections and such that don't have any real basis in reality. “Kaul points out that instances of voter fraud is extremely rare across the hundreds of thousands of votes that are legally cast across the state,” says Nolette.
Nolette says this is an area where there's a big rhetorical difference, but also one which would bleed into actual policy differences depending on who wins the race.
What do you think is at stake in this attorney general's race in 2022?
“A whole lot,” says Nolette. “Essentially, think about any issue that you might care about, whether it is abortion, the environment, health care, immigration, crime, all of these issues are relevant to the [attorney general's] office.” Nolette says even though it might not be as high profile as of a race as the governor's race, or the U.S. Senate race, “don't sleep on the [attorney general's] race, because this will make a big, big difference here in the state on a number of policy grounds.”
