August 2018 update: Bill Schuette wins Republican nod for Michigan governor
No one plays a more important role protecting consumers than the state attorney general. Under Bill Schuette, however, Michigan has one of the weakest consumer protection programs in the nation. This failure is a betrayal of Michigan’s legacy, forged under consumer champion and former attorney general Frank Kelley. More important, it’s a betrayal of victims. Reform must start now.
A forthcoming, multi-author study in the Harvard Journal of Legislation documents this failure. The study examined public enforcement of state consumer protection acts ‒ the most important weapon attorneys general wield to protect consumers from unfair and deceptive dealings. Using extensive freedom-of-information-act requests submitted to every attorney general in the nation, the study gathered all actions resolved in 2014. The result is a first-ever snapshot that allows comparisons among states.
Mark Totten is on the faculty at the Michigan State University College of Law. He was the Democratic nominee for Michigan Attorney General in 2014. In 2016, he received the Frank J. Kelley Consumer Advocacy Award from the Consumer Law Section of the State Bar of Michigan.
Considering volume of cases, relief obtained for consumers, and leadership in large multistate lawsuits, Michigan landed in the bottom one-third. This result is shocking given Michigan is one of the 10 most populous states. Iowa and Vermont, both small states, far out-performed Michigan. And Republican-led states like Texas and Florida had strong enforcement programs that made Michigan’s weakness even more glaring.
Was 2014 an outlier? Unlikely, at least according to the attorney general’s press releases.
Since taking office in 2011, Schuette has announced about 40 civil cases dealing with consumer protection. Of these, about 30 were large multistate cases, the vast majority of which other states led and Michigan collected a check. The widely publicized $18.5 million settlement with Target Corporation this past May over a 2013 data breach, for example, followed an investigation led by the attorneys general of Connecticut and Illinois. Moreover, settlements Schuette announced in 2014 for $105 million against AT&T and $90 million against T-Mobile for placing unauthorized charges on consumers’ accounts (“cramming”) were also led by others.
Maybe Schuette has concealed his big wins? Doubtful. Attorneys general tend to chest-thump and Schuette is no exception.
Enforcement always requires choosing priorities. It seems, for example, that Schuette has targeted charitable solicitation fraud, for which his office was recently recognized. That work is important. Under no metric, however, is Michigan’s current effort at consumer protection acceptable.
Michigan’s next attorney general will have to prioritize consumer protection, especially given the impending demise of federal enforcement under President Trump. In the meantime, three reforms would bring badly needed accountability to this office.
First, the legislature must demand disclosure of all money spent to elect the attorney general. Full disclosure is imperative for any officeholder, but especially attorneys general who bear the high ethical responsibility of conducting investigations and enforcing the law. Schuette’s willingness to accept dark money is no secret. As a result, voters have no means to determine whether Schuette is accepting checks from the very individuals and businesses he should target for investigation.
Second, the legislature should require full accounting of how the attorney general resolves consumer complaints. At present, it’s a black hole. Schuette annually reports the number and type of complaints, and an overall dollar figure in consumer recoveries, but that information says little about whether he properly handles complaints. He may have done nothing to help most victims who contact his office. The attorney general must be transparent, while protecting consumers’ personal information.
Third, the media must ask tough questions. Many of the most impressive-sounding cases, with eye-popping payouts, are large multistate lawsuits where Schuette did almost nothing. Report these cases, but also report his role. We don’t hold award banquets for parents who feed their children, and neither should we give the attorney general substantial credit for scribbling his name on a settlement.
Victims of consumer fraud and unfair dealings deserve an advocate in the Michigan Attorney General— the “People’s Lawyer.” These measures are first steps toward long-term reform.