Dana Nessel, Michigan’s brash attorney general, plows through Lansing

[This article has been updated to note that strategist TJ Bucholz's firm worked for Dana Nessel's Democratic opponent in 2018]

Michigan Attorney General Dana Nessel last read Margaret Atwood’s novel “The Handmaid’s Tale” as a senior at the University of Michigan. The book’s misogynist dystopia is now close to reality, she told a room of nodding, pink-clad women at a Planned Parenthood conference in Lansing on Tuesday.

If modern politics become more like the novel, she said, she’ll go down kicking and screaming.

“Quiet’s not really my thing.”

Since taking office in January, the Democrat, who first made a splash in 2017 by citing the benefits of electing an AG without a penis, has come out swinging in an effort to turn her liberal politics into policy. She’s systematically reversed the state’s legal posture on abortion, the environment and LGBTQ rights set by her conservative predecessor Bill Schuette; joined other states in challenging Trump administration policies; thrown shade at the lawmaking skills of state Republicans, and, for good measure, taken on the Catholic church.

At the Planned Parenthood event, Nessel listed several cases she’s joined protecting abortion rights at the federal and state level, and promised this: If Roe v Wade — the 1973 U.S. Supreme Court establishing a right to abortion — is overturned, “I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy.”

Political observers say such remarks underscore Nessel’s commitment as the state’s top lawyer to implementing progressive policies, decorum be damned. Though she lauds former Democratic Attorney General Frank Kelley, she eschews his generation’s carefully measured legal declarations; preferring the unapologetic partisan activism that is becoming the norm among many attorneys general, both Democratic and Republican, across the nation.    

“Dana Nessel isn’t for everybody, and that’s okay by her,” said TJ Bucholz, a Democratic strategist and president of Lansing-based Vanguard Public Affairs. “Not everyone likes her style. And it’s not that her style’s wrong, it’s just different. It’s different than any attorney general we’ve ever had.”

In an email to Bridge, Nessel characterizes her mission as not much different  from Kelley’s work decades ago: “My goal is to re-establish this office as the People's Attorney, aggressively protecting people’s rights, pocketbooks, health, welfare and safety,” she wrote.  

Nessel’s aggressive stance on a number of issues, including abortion, is also an example of the wide-ranging power state attorneys general have begun to leverage in recent decades to advance political priorities, experts say. Nessel’s rapid-fire changes may cause whiplash after 16 years of Republican control of the office, but experts note that state attorneys general of both parties have increasingly used their position for partisan advocacy.

Promises made

Nessel, a former prosecutor and defense attorney, campaigned on issues important to the Democratic party’s left wing such as shutting down the Enbridge Line 5 pipeline under the Straits of Mackinac, fighting for LGBTQ and immigrant civil rights and legalizing recreational marijuana. She was vocal from the outset about reversing Schuette policies and fighting the Trump administration, displaying a brashness that endeared her to progressives.

She’s brought that same rhetorical candor into office, said Bucholz, whose firm represented Nessel's 2018 Democratic opponent, Pat Miles.

“Politics are partisan,” he said. “I think she is more partisan than the governor, let’s say. I think she’s willing to take on someone who has the polar opposite view than she does.”

At a cannabis industry event in Lansing in March, Nessel took a jab at Democratic rival Miles (“Whatever happened to that guy? No one cares”) and joked that a state Medical Marihuana Licensing Board member might want to seek a new job euthanizing puppies. On Twitter, she’s told Senate Majority Leader Mike Shirkey and fellow Republicans to “pass better laws” if they don’t want them reversed, and called a conservative Detroit News columnist a “hate monger.”

Since taking office, Nessel has signed on to 27 federal cases or policy requests with mostly Democratic attorneys general to support left-leaning environmental, women’s health, immigration and education policy priorities and more. She’s released a legal opinion that deemed a Republican-passed plan to build a tunnel for Line 5 unconstitutional, and reached a legal settlement that requires any agency that contracts with the state to allow same-sex adoptions.  

“She’s taken a pretty aggressive posture in reversing what her predecessor did,” said Paul Nolette, a professor of political science at Marquette University who studies how state attorneys general influence policy.

Nessel created an elder abuse task force and auto insurance fraud unit, and units to investigate hate crimes and wrongful convictions, while eliminating 11 positions she described as "political appointments" by Schuette. But she has also continued three investigations started under Schuette into Michigan State University, the Catholic Church and the Flint water crisis.

“I am committed to be as action-oriented as I possibly can be on a number of fronts,” Nessel said. “I am working hard to restore the integrity of the office and commitment to the people that was epitomized by long-time Attorney General Frank Kelley.”

She’s done exactly what she said she’d do, said Bucholz, the Democratic strategist, and she’s well-positioned to make significant change because unlike the governor, her work doesn’t rely on the Republican-led legislature.

“She’s going to come off as very progressive because she is,” he said. “And that’s the cool part of being attorney general. You can transform the office into what you want it to be.”

John Truscott, president of Lansing-based public relations firm Truscott Rossman and longtime spokesman for former GOP Gov. John Engler, said Nessel’s short tenure so far has “absolutely” proven her to be more activist than previous Michigan attorneys general.

“There are several high-profile (cases) that have led a lot of people to question the direction of the office,” Truscott said, adding that it’s still early in her term and also acknowledging there have been times when Nessel has collaborated with Republicans. Nessel joined with Republican leaders for instance on criminal justice reforms (an area of early bipartisan agreement in Lansing this term) such as civil asset forfeiture, and a review of the state’s jail and prison systems.

But Truscott contends Nessel crosses a line when she, for instance, vows to refuse to enforce future abortion laws. “She’s wandering too far into being a policy-maker and setting or changing policy,” he said. “Which is not her job.”

James Tierney, a former Maine Attorney General who writes about the power of state attorneys general, said that while Nessel has the ability and the right to influence policy as attorney general, her advocacy doesn’t necessarily change the bulk of the office’s work defending the state in the legal system.

“Naturally there’s going to be a difference (in policy choices between attorneys general), it’s nothing surprising. Elections have consequences,” Tierney said. “The vast majority of the office goes to work every day and doesn’t pay attention to it, nor should they.”

Multiple experts said Nessel and her predecessor Schuette do share some qualities. Both are comfortable using the power of the office to confront divisive topics and are vocal about the issues they care about, said Barry Rabe, a professor of public policy at the University of Michigan and director of the school’s Center for Local, State and Urban Policy.

Among other positions, Schuette defended the state’s ban on gay marriage, fought transgender bathroom standards and joined nine suits opposing the Affordable Care Act (bucking a fellow Republican, then-Gov. Rick Snyder, who supported Medicaid expansion in Michigan.)

Nessel said she differs from Schuette in that she is as “personally involved in the decision-making process in our department as much as possible.”

“I understand this is a culture change in our department because my predecessor chose not to take an active role in most cases,” she said.

Schuette could not be reached for comment.

Weaponizing the resources of the state attorney general’s office is “consistent with the pattern we’re increasingly seeing in multiple states,” Rabe said. For example, Republican attorneys general successfully fought the Obama-era Clean Power Plan through lawsuits and Democratic lawmakers in California added millions of dollars to the attorney general’s budget for suing the Trump administration.

Rabe added that Nessel’s comfortability with Twitter tiffs is also not surprising: “The attorney general is out front on a lot of issues, is visible … It’s part of the modern era of attorney general.”

Attorneys general find their voice

The era of activist attorneys generals is considered to have taken hold in the late 1990s, when nearly every state AG banded together to win a multi-billion-dollar lawsuit against the country’s major tobacco companies.

That suit, Nolette said, was the “big bang” of contemporary attorney general activism.

“Ever since that time, it has seemed as if every year they’re trying newer and newer strategies to get involved in national politics,” Nolette said.

In the early 2000s, the number of suits brought against the federal government by state attorneys general began rising. Bipartisan suits were swapped for partisan ones brought by coalitions of attorneys general from the same party. Now, it’s more commonplace than ever — state attorneys general have brought more suits against the Trump administration in his first two years in office than they did for all eight years of the Obama presidency.

Attorneys general’s suits were once limited to mostly environmental or consumer issues, Nolette said. Indeed, Frank Kelley, the nation’s longest-serving state attorney general before retiring in 1999, built his legacy on a keen devotion to guarding consumer rights. Today, state attorneys general are as likely to dive into every area of policy in their roles as “lawyers for the people.”

While the attorney general’s role is to represent the state in legal matters, the law is flexible enough that it’s up to individual attorneys general to decide how they see the office, Nolette said. “You can really define your role in the way you think is appropriate.”

As Nessel wrapped up her speech before the audience of Planned Parenthood devotées Tuesday, she reflected on the suits she’s joined in just over three months and pledged to keep pushing for abortion rights — even, she said mournfully, if Roe v Wade is overturned.

The fight, she said, must reach other branches of government: Ideal policy will come from electing Democrats to the state House and Senate, U.S. Senate, presidency and through those victories, the U.S. Supreme Court.

“This could not be a more important and serious time in the history of our nation and the history of our state,” Nessel said. “Let’s resist. Let’s continue to fight back together.”