Election Lawyers

Volume 8 • Issue 2 • January/February 2022
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Speaking Out on Election Integrity

A general counsel and law firm chair weigh in

David Wilkins, faculty director of the Harvard Law School Center on the Legal Profession, recently sat down with Lucy Fato, executive vice president, general counsel, and global head of communications and government affairs at AIG, and Brad Karp, chairman of Paul, Weiss, on the role of lawyers at companies and law firms in serving broader issues of public and social justice.

David Wilkins: As you both know, this issue of The Practice focuses on election lawyers. In April of last year, you both spearheaded a statement signed by dozens of general counsel and more than 60 law firm leaders denouncing efforts to restrict voting rights. Could you talk about that statement—both what it said and the process of putting the statement together?

“Lawyers have a duty to try to protect the rule of law. Lawyers have a duty to try to safeguard our democracy,” says Brad Karp.

Brad Karp: It’s hard to imagine a more important issue in our society than safeguarding our democracy and protecting the rule of law. We had just come off of the cataclysmic 2020 election cycle, and we all saw a number of state legislatures engaged in pernicious efforts to try to restrict the right to vote, especially among the most vulnerable communities in those states.

So, it struck me that we needed to speak out. Lawyers have a duty to try to protect the rule of law. Lawyers have a duty to try to safeguard our democracy. I feel our voices are one of our best resources. It’s one thing for law firm leaders to speak out, but to have corporations, through their general counsels, make an emphatic stand in support of the rule of law and in support of safeguarding our democracy—I thought that was going to be a very important and amplifying step.

Our statement followed on the heels of a number of CEOs, myself included, working with Jeff Sonnenfeld at Yale to explain why the right to vote is essential to our democracy. For me, having general counsel of these and other companies speak out made a lot of sense. Lucy is one of the most respected general counsel of a public company in our country, and a very good friend, so it made sense for Lucy and me to work together.

Lucy Fato: I was working on a statement for AIG’s CEO, and I said to myself, “Maybe I should run this by Brad Karp and see what he thinks because I’m sure he’s already focused on this issue!” I sent it to Brad, and he immediately wrote me back and said, “I am actually working on something for law firms, but I like some of your language better. Maybe we can combine ours and yours—and then get more general counsel on board.” Between Brad and myself we were able to get a number of general counsel to sign on to the statement with the law firms. If you look at the statements from Jeff’s group and some CEOs and our statement, there are a lot of similarities in them because Brad, of course, had a hand in all of them.

Wilkins: Were there challenges because, as you both know, this is a very politicized issue? The reaction of the Georgia legislature to the Coca-Cola and Delta Air Lines’ statements was harsh. Was there pushback and how did you manage those issues?

Karp: In the law firm community, I frequently come up with a statement that we are comfortable signing. It then goes through a collective editing process among my peers and some adjectives and adverbs get deleted. And some of the more pointed language also gets watered down.

“Do you strive for inclusivity and try to get as many firms to sign on or do you try to make a stronger pronouncement that will limit the number of signatories to those who are really committed to the issue?” asks Karp.

The process here was interesting. When you’re talking about broad principles, like protecting the rule of law and safeguarding democracy, that’s easy. Everyone will sign up for that and be supportive. When you begin to focus on individual state actions, it becomes more complicated. Because this began with Georgia and there are a number of significant AmLaw 100 law firms that have offices there or represent Georgia-based companies, it becomes more of a political thicket.

One of the choices you need to make is whether you strive for inclusivity and try to get as many firms to sign on or do you try to make a stronger pronouncement that will limit the number of signatories to those who are really committed to the issue? That’s always a balancing act, not just on voting rights but concerning all social justice issues.

In this case, we tried to come up with a more generic statement that firms would be willing to sign. And then when it came time to deploy firm resources to deal with specific state issues and restrictions, a number of law firms dropped out because they don’t want to be publicly associated with voting rights battles in their own home state.

Wilkins: Lucy, I wonder if we might take a step back and ask how and why these types of public policy and communication issues end up on your desk—whether around voting rights, social justice issues, or any other public policy or social issue of the day? Indeed, in addition to being the general counsel, you are also the global head of communications and government affairs. How do these roles work together, and are they ever in tension?

“Our CEO decided that it made sense to realign the communications function under me in order to ensure that we looked at everything through a legal and regulatory lens,” says Lucy Fato.

Fato: To set the context, AIG is a global insurance company in a highly regulated industry. We’re regulated in every state in the United States and every country where we do business. When COVID happened, as an insurance company, we got inundated with questions from many stakeholders, including clients, regulators, shareholders, and rating agencies: “What is going on? What does this mean? Does insurance cover this? Are there pandemic solutions? What are small businesses going to do? How does property casualty insurance work in this context?” At the same time, we started getting questions from our employees: “What does this mean for work? How will we work remotely?” A lot of people were concerned with whether it was going to be a truly catastrophic event for the insurance industry. In this context, our CEO decided that it made sense to realign the communications function under me in order to ensure that we looked at everything through a legal and regulatory lens and also to make sure we were consistent in how we talked to our regulators and what we were saying to our employees and our other stakeholders. We knew that communicating around the pandemic was going to be critical and we had to take a holistic approach to those communications.

There has also been a significant amount of litigation across the industry regarding “business interruption” and other insurance policies and if they cover lost revenue or other consequences of mandatory shutdowns.

So, all these issues—communications and legal—became more interrelated. That’s how I ended up with communications: the pandemic just brought enormous focus from so many constituents, and we wanted to be very consistent in how we spoke about the issues.

Wilkins: I wonder, Lucy, if you could talk a little bit about how the corporate landscape is changing, requiring the blending of these two roles for you. There’s intensifying pressure for companies, whose purpose used to be just to turn a profit, to make statements or commit to social issues, like voting rights. Could you talk a little bit about that and why your role is integral?

“People want to talk more about questions of values and purpose,” says Fato.

Fato: I would go back to the pandemic. In the early days, there was a view that there wasn’t sufficient leadership or clear guidance coming from governments. Employees and other stakeholders were scared and trying to figure out what it all meant. So, they turned to their employers and their CEOs as their leaders and asked basic things like: “How are you going to help us? What does this mean?” As such, we began putting out guidance and statements around topics that corporate leadership never used to address.

And then, all of a sudden, a whole set of social and public policy issues, like social justice and voting rights, came to the forefront. And in many ways, employees, stakeholders, the media, and others had become accustomed to looking to CEOs for guidance. As an example, as soon as January 6th occurred, I got inundated with notes from employees. “Are we going to say something about this? Are we going to do something about this?”

For a CEO today, their role goes beyond, “This is our business and these are our financial results.” All stakeholders—whether they are your employees, your clients, your regulators, your rating agencies—are looking for so much more. It’s part of the broader focus on ESG. Everybody wants to know now, “What are you doing about environmental issues? What are you doing about social issues? Let’s relook at all of your governance practices.”

Lawyers are getting more involved because all these things raise a lot of legal issues. And anytime a CEO is going to make a statement, you want it to be vetted by the general counsel. I would add to that, and this is especially true for younger generations, before employees join a company, they want to understand, “What’s the organization’s purpose?” It’s not just about making money, and it’s not just about saying nice, flowery things. People now take for granted that you’re a company that’s going to make money and do well. If you can’t even get that right, how are you going to get the other things right? In many constituencies, people want to talk more about questions of values and purpose.

“We all knew the responsibilities for companies were moving away from just financial performance in the last decade,” says Fato.

This is also true for large institutional shareholders. They want to know the ESG strategy—and it’s not just on climate change. We are still getting asked about January 6th. At AIG, we’re one of the companies that froze our PAC contributions after January 6th, and we’ve left them frozen. (See “Sustainable Commitments?” for more on corporate policies toward political contributions after January 6th.) We have not made any political contributions since January of last year, and we’re thinking long and hard about what to do with our political stance and contributions going forward. The public asks of us, “Well, you made a lot of statements back then. What are you actually doing? Are you really following what you said?”

A lot of companies have also made statements around diversity, equity, and inclusion. But that’s not enough. People are coming back and saying, “Well, what exactly did you do? Show me the statistics.” Our regulators are demanding more information, and that’s a very powerful voice in a highly regulated industry like insurance. If your regulator is saying, “We’re going to hold you accountable for what you said around diversity targets,” you better have a real strategy behind it.

We all knew the responsibilities for companies were moving away from just financial performance in the last decade. But it’s really accelerated since COVID and in the wake of events like January 6th.

Wilkins: One of the things you said so eloquently was that it’s not just enough to make statements. But it’s maybe a little more complicated from a company’s point of view, or a general counsel’s point of view, how you do that. And I wonder how you think about that next phase after the statement has been issued and signed?

Fato: Having people like Brad and firms like Paul, Weiss, which does a great job in terms of not just making the statement but backing it up with resources, and then making that available for others to join in and help, is enormously important. At AIG, we have a very large pro bono program, and we have lawyers all over the U.S. and globally involved in the program. For instance, during the last election, a lot of our lawyers were staffing voter protection hotlines, answering questions like, “How do I vote? Where do I vote?” or helping seniors figure out their voting plans. AIG has a history of this type of work, but I do think we’ve ramped it up in the last couple of years.

“We’ve always been known as a law firm that is deeply engaged in our community, in the public interest world, and in fighting for justice and fighting to protect the rule of law,” says Karp.

I feel fortunate to work at a company that’s always had leadership that has supported this kind of activity. Our CEO is very interested in being part of these discussions and is not afraid to take a stand on something. You’re never going to make everybody happy. No matter what you’re going to do, you’re going to upset somebody or disappoint somebody. Even if you’re just silent, there will be people who are disappointed. And you just have to stay true to yourself and what you think your responsibility is as a large global company with a platform. I would note that we have to be selective too. When you make a statement, you have to do so authentically. Once it’s not authentic, then I think you really start to lose the audience.

Wilkins: Maintaining momentum is really difficult, a I can imagine this is true on an issue like voting rights, which is so consequential, but also, that we think about only periodically. How do you maintain the momentum in your organizations, particularly as lawyers?

Karp: Lucy mentioned it. We’ve always been known as a law firm that is deeply engaged in our community, in the public interest world, and in fighting for justice and fighting to protect the rule of law. So many of the partners and associates who join our firm are attracted because of our history and our legacy. And David, I know that you, Ben Heineman, and Bill Lee wrote that seminal piece about a decade ago, “Lawyers as Professionals and as Citizens.” I think that pretty eloquently captured the responsibilities that lawyers ought to have. But the reality is that relatively few lawyers actually discharge those responsibilities throughout their professional career. That has to change, and we take those responsibilities seriously.

I also think carefully about my role as the chair of Paul, Weiss, both within our firm and as part of the broader community. We have to step up and take public stands on issues of significance. And I recognize that I’m able to give other leaders some cover and protection, especially around controversial issues.

“Sometimes you antagonize a client. But that is a relatively small price to pay for doing what you believe is right,” says Karp.

We’re seeing that in connection with reproductive rights right now. That is a third rail issue for some corporations and law firms. But it’s a fundamental issue; it’s hard to imagine nearly 50 years after Roe v. Wade, we’re still engaged in a public debate about whether a woman is entitled to control her body and have reproductive freedom. But at Paul, Weiss, we’ll take a public position. We’ll fight in the Supreme Court. We’ll work with the Center for Reproductive Rights in battleground states. And by doing so, other firms that might otherwise stay on the sidelines can line up behind us and we’ll take the bullet if necessary. As a firm, we are comfortable with that. Wherever we see an injustice, people look to us to take a stand and lead. Sometimes you antagonize a client. But that is a relatively small price to pay for doing what you believe is right. It’s not all about making the most money you can. It’s about making a difference wherever you can.

Fato: I can attest to the fact that Brad is definitely viewed as someone who’s willing to step up and take the lead. That is leadership. Someone needs to lead, and Brad has taken that on in the legal community, both with other law firms and with general counsel. And people follow good leaders.

Wilkins: I agree! That actually leads me to something I wanted to ask Brad about, particularly around legal teams for the protection of voting rights. Can you talk a little bit about how that’s worked and what’s come of it?

Karp: We have been organizing agile legal teams that parachute into particular states and deal with particular issues. Over the course of the last few months, we’ve done a whole range of activities, including trying cases in certain states. Recently, we had a team of lawyers successfully defeat an effort by the North Carolina legislature to impose voter ID restrictions, which were aimed, the court found, at limiting the ability of Black communities to vote in upcoming elections. We successfully concluded a three-week trial in North Carolina. We’ve been reviewing proposed legislation in several states, providing white papers, and trying to activate business communities and thought leaders to speak out against specific state legislation that would erode election integrity and restrict access to the polls.

“People should be working to make voting easier, not harder,” says Fato.

We’ve been working very closely with Michael Waldman, president of the Brennan Center for Justice, on state-by-state projects. We’ve been trying to build the congressional record in support of the For the People Act and the Voting Rights Advancement Act. We’ve engaged in a whole range of activities, both on a federal level and on a state-by-state level. But the problem, sadly, is that these restrictions keep cropping up all across the nation. Nineteen states now have either enacted or are in the process of trying to enact voter restriction legislation. So, it really does require the entire private bar, and, frankly, general counsel offices, to speak out and ensure that this insidious legislation doesn’t take hold in advance of the 2022 and 2024 elections. Nothing less than our democracy lies in the balance.

Fato: To follow up on Brad’s point, people should be working to make voting easier, not harder. When you think about the things that we’ve been able to do with technology, and especially during COVID, it’s amazing. People can do everything on their phone. They can buy insurance on their phone. They can submit a claim on their phone. You can buy anything you want from wherever you want on your phone. You can buy a house on the phone! But thus far it seems like we’re not willing to put the resources into making voting easier. People still have to line up around corners to go and vote. Why?

Add to that, how many people have the luxury to go spend a day standing in line? You’ve got people who have jobs where they may get fired. They’re not given a day off, which is why making it a national holiday is so important. This shouldn’t even be a controversial issue, yet it is. And it’s because people are working from a place of fear and discrimination, and worried about losing their place in the world if more people vote. And they may be right—but that’s exactly why they’re trying to suppress the vote.

Wilkins: Brad referenced the piece that Ben, Bill, and I wrote, “Lawyers as Professionals and as Citizens.” And quite frankly, Brad Karp was one of the people we most had in mind when we wrote that piece. But Lucy, I can see why you are also such an exemplar of this, as well. We have a large number of student readers. So, could each of you say your greatest hope, but also something that we have to really be worried about, to our law students about voting rights? I’ll just say, students are often quite skeptical when they hear senior lawyers and companies, and even CEOs, make statements about this.

Karp: Lawyers can make a difference. We are trained to be able to advocate for any cause imaginable. I have seen a movement within the private bar toward a greater willingness to take a stand and to openly advocate to protect the rule of law and safeguard enshrined rights and privileges. This began in earnest under the Trump administration when everything became subject to attack, and increasingly lawyers have been taking the lead. Lawyers have been stepping up on issue after issue and advocating to protect our country, protect our constitution, protect the rule of law, safeguard our democracy.

“Even students who are making choices about where they go to work will have influence,” stresses Fato.

We’re fighting in the courts and we’re winning. We’re advocating in legislatures and we’re winning. Our voices are being heard, and we are making a difference. The problem, and the depressing reality, is that there are so many rights now under attack that were settled by the Supreme Court generations ago. And the notion that we now have to reengage in battles that had previously been won, instead of moving forward and looking to advance justice on different planes and platforms, is depressing. But we’re here for the fight. We’re here for the long run. And when you’re supported by leaders of public corporations like Lucy, it just makes the process so much easier.

Fato: The other thing I would say to young people and students is that they will inherit all of this at some point. It will become their problem if we’re not able to fix it. But even as students who are making choices about where they go to work, they’re going to have influence. One of the reasons we’ve been making statements that we never would’ve thought of making five or 10 years ago is that our employees and our future employees are demanding it. They want to understand where does AIG stand? Because they have choices.

As a senior leader at a large public company, we are listening to that. We hear it. We hear it during the recruiting process. We see it if people leave when we do exit interviews. The younger generations have a lot more power than they think they do. But they need to be active about it. They need to hold us accountable and ask tough questions: “Yeah, you made the statement. What have you done to back it up?” And I think students should feel as empowered to do that just as any regulator or a rating agency or a shareholder should. They should feel empowered.

Wilkins: As somebody who has the privilege of teaching very bright young people every day, one of the great inspirations is their idealism and enthusiasm. But one of the great pleasures of my life is bringing senior leaders with that passion to those students so that they can understand what that passion looks like and what’s possible in our great profession. So, thank you both very much for taking the time.

 


Brad Karp is the chairman of Paul, Weiss, a position he has held since 2008.

Lucy Fato is executive vice president, general counsel, and global head of communications and government affairs at AIG.

David B. Wilkins is the Lester Kissel Professor of Law at Harvard Law School, vice dean for Global Initiatives on the Legal Profession, and faculty director of the Center on the Legal Profession.

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Election Lawyers Volume 8 • Issue 2 • January/February 2022

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