Originally in the News & Observer
September 1, 2021
When large health care and drug companies agreed to pay out billions of dollars to settle nationwide opioid lawsuits this summer, North Carolina Attorney General Josh Stein was one of a small number of people at the table, taking a lead role in the negotiations.
Johnson & Johnson and other companies agreed to pay out $26.2 billion in that settlement, on the heels of other big opioid settlements including Purdue Pharma and the consulting firm McKinsey. All told, North Carolina will get close to $1 billion from those deals, much of it required to be used combating the opioid epidemic.
In addition to his work leading some of those negotiations, Stein also struck out on his own to sue the e-cigarette company Juul over accusations of marketing to children. Unlike in the opioid cases, no other states joined that lawsuit, but Stein won a favorable settlement. Juul agreed to pay North Carolina $40 million and change its advertising strategies. Now other state leaders have been coming to him for advice on how to launch similar lawsuits of their own, Stein said in a recent interview.
“They were seeking strategic advice about how do they think they could best advance their chances to get a resolution like North Carolina achieved,” Stein said.
In addition to all the money for the state budget, the settlements in those lawsuits have also started earning him national attention. In June the New York Times wrote an article highlighting North Carolina’s first-in-the-nation challenge against Juul over teen vaping. A separate Times story in July, on Johnson & Johnson and drug distributors’ $26 billion settlement over the opioid epidemic, referenced Stein’s role in making it happen.
In 2019, Stein also took a lead role in a national fight against robocall companies, earning headlines in places like the Washington Post. And earlier this year he oversaw a high-profile settlement with Duke Energy in which the company reversed course and agreed to reduce what it will charge customers for cleaning up coal ash pollution — an estimated $1.1 billion in costs that will now be paid for by the company’s shareholders instead of local residents.
“What I love about this job is that it gives me the opportunity to work on really deep-seated, complex issues that have a real impact on people’s lives,” Stein said.
But as he raises his national profile in his second term as attorney general, North Carolina’s Republican-led legislature is hoping to curtail him.
Looming on the horizon is 2024, when the governor’s office will be open. Democratic Gov. Roy Cooper — who was attorney general before Stein — is term limited and can’t run again. And in North Carolina, every attorney general since 1975 has later run for governor. There’s a joke in politics that the acronym AG really means “aspiring governor.”
Stein, however, said it’s far too early to commit to anything and that’s he just focused on doing the job he has.
“2024 is a political eternity from now,” he said.
CRACKDOWN ON AG’S POWERS
Tucked into this year’s state budget bill is a proposal that would give Republican legislative leaders veto power over legal settlements that involve challenges to a state law or part of the state constitution — allowing them to override the attorney general or individual state agencies on details the lawmakers oppose, even if they aren’t a party in the lawsuit.
A separate provision, also in the budget, would stop Stein from being able to involve North Carolina in political legal battles without permission from Republican politicians. That wouldn’t restrict his ability to take on cases like the opioid lawsuits, but it would take away his ability to make decisions on legal issues that wouldn’t make money for North Carolina.
Republican Sen. Danny Britt, a Lumberton attorney who chairs the Senate Judiciary Committee, specifically mentioned his displeasure that Stein had signed his name on a brief supporting a lawsuit against a new GOP-backed overhaul of election laws in Georgia.
“We don’t see that as a good use of resources,” Britt said in an interview.
This year’s proposed budget would also cut $3 million from Stein’s office, the continuation of a $10 million cut lawmakers approved in 2017 just months after Stein was sworn in. Republican Senate leader Phil Berger explained those cuts, The N&O reported, by saying he was unhappy with Stein for doing “whatever he thinks is appropriate.”
Stein had just filed a legal brief opposing Republican President Donald Trump, over an order banning people from multiple Muslim-majority countries from traveling to the United States. He would continue fighting the Trump administration in court over the next few years, on issues like immigration and the environment. And just last week Stein put North Carolina in a leading role among two dozen states, asking Democratic President Joe Biden to undo federal housing rules Trump had put into place.
So after those budget cuts did not convince Stein to end his political advocacy — something all state attorneys general, on both sides of the aisle, get involved in — the legislature is now proposing that Stein should not be able to do it at all, unless Republican politicians give him permission first.
“Even if no other state does it that way, our job is to make sure that our resources are spent the best way possible,” Britt said. “And I don’t think that our resources are well-spent out of state, fighting lawsuits that don’t impact our citizens.”
The changes would represent a substantial shift in power, and Stein’s office previously told The N&O that if it did become law, it would appear to be unconstitutional.
NC LAWSUITS, SETTLEMENTS
GOP lawmakers have been pushing to give themselves more power over legal settlements ever since the N.C. State Board of Elections settled a lawsuit extending the deadline for mail-in ballots in the 2020 elections. The elections board’s Democratic and Republican members all voted to approve the settlement, but Republican lawmakers called it collusion with liberals to help them in the election.
The proposal is “an example of legislative leadership trying to seize executive branch power,” said Democratic Rep. Rachel Hunt of Charlotte, during a legislative committee debate on the issue in May.
But Republican Rep. Allen McNeill of Asheboro said if it passes and the legislature does later refuse to sign off on a settlement, the case would simply go to trial where evidence and witnesses could be heard.
“If we don’t agree to the settlement, it’s going to go on up the chain to the judge,” he said.
The other provision targeting Stein in the budget would ban the attorney general from getting involved in any legal matter that wouldn’t make money for North Carolina, unless he first gets permission from the Council Of State. The Council of State, which currently has a GOP majority, is made up of 10 elected leaders like the governor, lieutenant governor, attorney general and agriculture commissioner.
The new rule, if passed, would stop Stein not only from filing lawsuits himself, but also adding his name to someone else’s brief to show support.
It’s unclear if any state has ever taken such a sweeping step to restrict the attorney general’s authority.
Republican lawmakers in Iowa did pass a similarly worded bill in 2019 trying to take power away from the Democratic attorney general there. But the state’s Republican governor vetoed it, citing bipartisan opposition from attorneys general all around the nation who have long had wide latitude to get involved in political lawsuits.
Stein said he hasn’t asked Cooper to veto North Carolina’s budget this year if those provisions make it into the final version, but they have talked about it.
“We live in a hyper politicized world, so it doesn’t surprise me,” Stein said, adding that Cooper is “very much aware of the unnecessary provisions that try to limit my authority. There are other provisions that try to unnecessarily limit his authority.”
A related provision in the budget would also give the Council of State power to override Cooper on emergency orders — something Republicans proposed after Cooper used those orders to mandate masks, close businesses and set other statewide rules for the COVID-19 pandemic.
PARTISAN VS BIPARTISAN WORK
Stein said on issues like the opioid lawsuits, or an ongoing antitrust case against Google that he’s also taking a lead role in, there is a concerted effort to get bipartisan teams leading the negotiations. For example, when Johnson & Johnson came to the table to negotiate what turned into its $26 billion settlement, the two attorneys general representing the dozens of states involved were Stein and Tennessee Attorney General Herbert Slattery, a Republican.
“It takes the issue of partisanship off the table, for all the other states who are not actively involved,” Stein said. “It just gives them more comfort that whatever ultimate negotiated result is achieved, it’s not going to create problems for them.”
But bipartisanship can go out the window when the fights get more political.
A group of Republican attorneys general, led by Texas’ Ken Paxton, sued in 2018 to get the Supreme Court to throw out the Affordable Care Act. Stein and other Democratic attorneys general filed their own briefs for the other side, and eventually the Supreme Court upheld the ACA, more commonly known as Obamacare, in a 7-2 vote.
It’s not the only partisan political fight Stein has involved North Carolina in. He sued Trump multiple times and is now using other legal tools to urge Biden to undo some of Trump’s policies on the environment, housing and more.
GOP lawmakers want it to end.
During a recent interview, Britt waved a folder that he said contained budget requests from Stein’s office for eight additional lawyers to handle criminal appeals cases. He said if Stein really needs the help, he should quit “dealing with the election laws in Georgia or in California or any other state.”
But even as Britt and Stein are fighting over issues like that, they’ve also worked together on bills they say will add needed reforms to the criminal justice system. Britt is the main GOP backer of criminal justice changes at the legislature, and Stein leads the N.C. Department of Justice.
Stein also co-chaired a task force Cooper set up to issue recommendations on criminal justice after last year’s Black Lives Matter protests, and credited GOP lawmakers with acting on reforms both before and after that.
“There’s a lot of overlap there,” he said. “They were the ones who took the lead on Raise the Age and some expunction initiatives, all of which I supported. And there’s some current bills over there now to bring some additional reforms to the criminal justice process.”