As Miller leaves office today at the end of a 40-year career, that’s all changed. State attorneys general have become de facto national regulators, reshaping the way business is done by pharmaceutical, tech and mortgage companies, among many others industries. They have also become prime antagonists of successive presidential administrations, disrupting or derailing major policies in areas such as health and the environment.
Miller is not responsible for all of these changes, but he’s been a fulcrum in terms of efforts to nationalize legislation and bring together AGs from various states to work powerfully as a group. The Democrat is the longest-serving attorney general in American history. “He and I didn’t agree on politics, we don’t agree on politics, we’re not going to agree on politics — but we found the areas where we did have agreement,” says Lawrence Wasden, a Republican who left office yesterday as Idaho’s attorney general. “He’s my best friend in the AG world.”
Miller understood early on that many of the challenges faced by Iowa consumers, and state residents in general, were being driven by forces well outside the state’s borders. As the economy nationalized, he realized that legal remedies would have to become national, too. As early as 1985, he wrote, “Interstate and multistate frauds cannot be effectively stopped by any one state.”
It started with a case against General Motors for overhyping an Oldsmobile engine in a 1977 advertisement. But the concept really took off with a massive case against the tobacco industry back in 1998, when state AGs banded together to force cigarette makers to pay for health costs associated with their products — and pay big. The settlement called for them to pony up $246 billion over the next 25 years.
AGs got it done when action in Congress got blocked. What’s more, they changed the rules in terms of how cigarette companies could do business, for example by banning marketing to children. Cigarette sales dropped by 21 percent in the first few years after the settlement was reached.
Miller played a leading role in that case, as well as other national cases involving Microsoft, mortgage lenders and opioid manufacturers and distributors. Miller is the opposite of flashy, but even his opponents recognize how canny he can be. Wasden recalls a negotiation session during which a tobacco company CEO got so mad that he started spitting, his fingers turning white gripping the table. Miller was able to calm him down and make the conversation productive.
“This is going to be a big change in the way multistate cases work, because Tom Miller is the first stop,” says James Tierney, who runs a program on state AGs at Harvard Law School. “Every corporation comes to Des Moines to find out how serious an issue is. Now there’s no one to talk to, with the balkanization of the American political structure.”
Increasing Partisanship
When Miller took office, there were no partisan AG organizations. As recently as six years ago, those organizations maintained an informal agreement not to go after incumbents of the other party. Once the Republican Attorneys General Association (RAGA) voted to end that policy in 2017, Democrats quickly followed suit. RAGA spent more than $2.5 million last year in the effort to unseat Miller. AG actions have become increasingly partisan, with Republicans suing the Biden administration routinely, following hundreds of Democratic lawsuits against the Trump administration.
Miller mostly had to demure. In 2019, he agreed to get permission from GOP Gov. Kim Reynolds any time he brought an out-of-state lawsuit, in order to prevent the Legislature from clipping his wings even closer. “This means that generally I will not be suing the Trump administration,” Miller said.
In a sense, that deal showed where things were heading. During last year’s campaign, Reynolds said she’d prefer to have her “own” state AG. Miller lost to Republican county prosecutor Brenna Bird in November by 20,000 votes. “He fell victim to the fact that he was sort of a moderate Democrat in an increasingly polarized state,” says Dennis Goldford, a political scientist at Drake University. “Over the last decade, Iowa’s become a red state.”
Miller, who is 78, might have been AG even longer. He was the Democratic nominee for AG back in 1974, but lost. He bypassed the 1990 election to run unsuccessfully for governor, but staged a comeback as AG in 1994.
Iowa has a tradition of keeping its public officials in office a long, long time. Terry Branstad broke the record as the nation’s longest-serving governor back in 2015. Charles Grassley just won an eighth term in the U.S. Senate, which makes him that body’s senior member in the new Congress. They’re both Republicans. Neither Miller nor Michael Fitzgerald, the nation’s longest-serving state treasurer, were able to win re-election as Democrats in November.
“The benefits that Iowa has received, compared to Kansas or Arkansas or Nebraska — states with comparable populations and politics — was astounding because of Tom Miller,” Tierney says.
Just before the new year, Miller spoke with Governing about his career. Edited excerpts follow:
Governing: Your career helps tell the story of how the role of attorney general has changed in the last half-century. Back when you first took office, there might be four or five multistate lawsuits a year, and now there might be 40 or 50. How hard was it to get AGs to change their mindset and learn to think and act collaboratively?
Miller: It evolved sort of naturally. The GM case was almost by happenstance. They were advertising a souped-up Oldsmobile that had a Chevy engine in it. And a number of states investigated and were prepared to litigate and a settlement occurred. Partly, GM may have seen that a settlement with a group of states makes more sense. And that got people's attention.
And then what really got people's attention was that, if we did it as a group, we had more resources and more leverage. All individual states face the prospect of just being out-resourced by a large corporation, but when we bound together we were stronger. There also was the idea that individual lawsuits from individual states became troublesome for a company, so it gave us some leverage in that way. This developed in the consumer area and then in antitrust, where we gradually became stronger. And then the tobacco case came along. There never was and never will be a case like tobacco.
Governing: Why does that case stand out?
Miller: We accomplished enormous good for our citizens. The most significant was probably the number of lives at stake. That made it very significant. And, up to that point, there was an invincibility to the tobacco industry — they never paid a dime in settlement or judgment before our case. There were billions of dollars at stake.
Governing: Often when there’s massive wrongdoing, people are hungry for criminal charges to be brought. Explain why these civil settlements are so important.
Miller: The civil cases do have enormous benefits. One is changing the behavior and the other is recovering money for restitution or, in the case of opioids, remedying the nuisance, including helping people considerably through treatment and prevention. The criminal cases really have a different role, in terms of deterrence. With opioids, there probably should have been more criminal prosecutions, although I think that they should have been done at the federal level.
Governing: Can you talk about where you’ve been able to collaborate with the feds, when it comes to civil enforcement and making these settlements stick, in a sense?
Miller: The two classic cases were Microsoft and bank mortgages. We just had such a close and constructive and beneficial, for the public, relationship with the Department of Justice. With Microsoft, it was a great example of the federal government working with the states on a totally bipartisan basis. We had about 21 or 22 states and a significant number of Republican states — including New York, where at the time Dennis Vacco was the Republican AG. To some extent, we had to work together. Microsoft was more powerful than the feds, than Justice or the states at that point. They were just incredibly powerful.
Governing: Personal relationships are important and you’ve been able to work with lots of AGs, as you say, from the other party. But everything has become more partisan. How much harder is it now to collaborate?
Miller: Well, let's look at what's happened recently. Opioids has been just an extraordinary bipartisan effort. All states have been involved in that, in one way or another. And we had an initial executive committee of four states — two Democrats, two Republicans, and one of them was Ken Paxton of Texas. So on opioids, it's been a great example of bipartisanship. The other big case is the antitrust case against Google and, again, just extraordinarily bipartisan work.
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