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The Political Process: Why bars must be involved

By Susan Evans Grabe

Imagine this scenario: At the beginning of your state’s legislative session, a bill to dramatically change the way judges are selected was introduced. The measure would dramatically change the way judges are selected, as well as politicize the judicial selection process.

The Oregon State Bar successfully derailed just such a proposal by convincing the state’s legislative leaders to substantially modify the measure and turn it into a study to determine the feasibility of creating a judicial selection commission. We succeeded because close relationships had been formed with legislators during the interim. These relationships enabled the bar’s "experts" to provide background information on Oregon’s judicial selection process and convince legislators that even if there were problems, there were better ways to fix them.

The experience above underscores the essential lesson in today’s political world: In order to influence the political process, your bar association must have an effective lobbying program.

One need not be a futurist to realize that the new millennium will bring many changes to the world that lawyers, judges and bar leaders know today. The legal profession is experiencing rapid transformation in its business practices. Society’s demographics seemingly change overnight. Client expectations are in constant shift. Technology is advancing at lightning speed. The lines between the three branches of government continue to blur. The judicial selection process has become further politicized. And do-it-yourselfers are encroaching into the lawyer’s traditional practice areas.

Against this backdrop, we can expect the defining issues for the legal profession and the judicial system--such as multidisciplinary practice, new judgeships and indigent defense funding--to be played out in the legislative arena. Bar leaders, no doubt, will continue to be called on to shape the future of the profession, the condition of the legal system and the role of bar associations. But whether advocating for adequate judicial resources or campaigning against attacks on judicial independence, bar leaders can expect that they will need to handle these challenges in that political arena.

In this new and rapidly changing environment, bars and bar programs must be leaner, quicker and more responsive than ever before. A state bar competes with many well-financed lobby groups. Most bars do not have a political action committee, so they are viewed as operating at a financial and political disadvantage. However, the lack of money and the perceived lack of political clout can give bars the opportunity to be viewed in a different light in the legislature. They can be seen as the best source of information on legal issues and the justice system and unfettered by special interests and narrow agendas. Bars can advance suggestions and arguments on the basis of merit instead of self-serving, narrow special interests.

Governmental relations professionals predict that an effective governmental relations (GR) program will become a top priority for more bars as high-stakes policy-making becomes more partisan and more combative. A strong and effective GR program does three things: 1) It influences the decision-making process; 2) builds and maintains relationships; and 3) serves as a source of legal information and expertise to assist the legislature in shaping new laws.

Influencing the decision-making process

It is important for bar associations to have a regular and continuing presence in the state legislature through qualified and competent professionals. Whether the bar should hire a lobbyist as a staff person, employ an independent lobbyist on a contract basis or combine these two approaches depends on a number of factors, including the size of the bar; whether it is a state or local bar and mandatory or voluntary; resources available; and the nature of the legislative issues facing the bar.

There are advantages and disadvantages to using a contract lobbyist versus a combination of internal staff and a contract lobbyist. The biggest advantage of an "in-house" staff person is the ability to focus more fully on the legislative matters of special interest to bars. In-house staff is also under the complete control of the bar’s executive director. However, since bar associations are typically unable to pay comparable salaries to retain top level people, there tends to be more turnover in staff positions.

The advantages of "out-house" counsel include access to other clients and PACs, piggyback contact with other committees and well-developed leadership connections at the statehouse. Fees can be negotiated session by session or issue by issue. The disadvantages to using out-house counsel include lack of control by the executive director and the bar, failure to give bar priorities 100 percent of effort at the capitol (due to other client needs); and potential conflicts with other clients.

The Oregon State Bar has chosen to use a combination of the in-house and out-house approaches, which allows us to take advantage of the strengths of both methods. The advent of term limits in Oregon has increased the number of new legislators, staff and lobbyists with which the bar must coordinate. The ever-evolving political process in Oregon has also made the business of making policy decisions more of an insider’s game.

Using a contract lobbyist’s services allows us to maximize our ability to gather information, participate in more networking opportunities and solicit independent political advice. This combined effort can exponentially increase the bar’s political leverage when it is most needed. This leverage came into play, for example, in the closing hours of our last legislative session when decisions were made about judicial department funding, new pilot projects and a heavily revamped family court system.

The biggest downside of combining the approach of in-house and out-house GR staff is the cost of maintaining both internal staff and a contract person, and the difficulty in clearly outlining the respective duties.

Issues management

Once your bar has determined the appropriate model to influence the process, it is important to create a system to manage issues as they arise. In Oregon, we have discovered that the best way to avoid problems is to have a committee of the Board of Governors, which provides guidance and oversight from top to bottom. This issues-management structure establishes guidelines and procedures for the contract lobbyist, the staff and the bar members involved in the process. The guidelines also provide for procedures for when the board, sections and committees can sponsor their own legislative proposals or take positions on existing legislation.

Since Oregon is a mandatory bar, our legislative guidelines incorporate the holding of the Keller v. State Bar of California ruling and its progeny. A board position on legislation usually focuses on policy issues that affect the entire membership. Bar priority legislation usually relates to bar governance and membership issues, but it also can include major public policy and political issues. These include amendments to the Bar Act (the collection of statutes creating the Oregon State Bar); bills that regulate the legal profession or related public protections; bills that improve the function of the courts, judicial efficacy and efficiency; and bills that have a major impact on the practice of law. Developing guidelines and a procedure ahead of time ensures that your contract lobbyist, staff and bar experts do not go out on a limb that might at some point be cut off. The Board of Governors’ committee also provides oversight to section and committee legislative activities.

The key to successfully developing a process that works within the legislative arena is to balance the need for structure and process with the flexibility that is required when making those sweaty-palm judgment calls. For example, in Oregon we were faced with a last-minute late night decision on whether money for a courthouse program to facilitate pro se family law cases--a bar priority--could be exchanged for something even more important, money for the court system overall. As is often the case, half a loaf is better than none, so our GR staff (called "public affairs," in Oregon) worked to find money for the court system and to salvage the courthouse facilitation program as a pilot project with no funding.

One way to achieve such a balance is to create a list of 10 to 15 public policy priorities framed in a general way that the committee and the entire Board of Governors can endorse. In Oregon, this list of conceptual priorities is shaped by the board of governors’ public affairs committee at the beginning of the legislative session. It is periodically reviewed to ensure that new issues or developments are taken into consideration. This process enables the lobbyist and staff to do what needs to be done late at night, in a split second, based on their best judgment.

The selection of your lobbying staff also is important. Building flexibility into the process, and the perception of fairness (from the standpoint of bar volunteers) is necessary. This means that communicating timetables and guidelines, and training and coordination of volunteers are essential. If you fail to communicate with your members or do not involve them in issues that they care about, you risk negative fallout. Ultimately, such feedback will discourage member involvement and create a negative backlash for your program. This is especially true in bars such as Oregon, where bar membership is mandatory.

Building and maintaining relationships

The success of your GR program depends on access to the people who control the issues. It is important to determine ahead of time which individuals and groups in the legislature will be interested in your issues. If you don’t have a relationship with those people, you need to establish one. It is also important to confer with the opposition, prepare to meet their arguments head on and find areas of agreement. Developing and maintaining a relationship can be as simple as making a phone call or guest introduction at any social, legal or political event.

In Oregon, we have a strong legislative committee system, whereby the committee chair and the leadership of each house controls such issues as bill assignment and disposition. Therefore, it is critical that contact is made not only with the legislative member but also with key legislative staff.

A legal information source

Bars act as a resource for the profession and the legislature. It is important to be perceived as a reliable source of information about the regulatory aspects of the legal profession and judicial system issues, as well as other substantive areas of the law in which members have special expertise.

In Oregon, the bar’s GR efforts are divided between major public policy issues, which are lobbied by our public affairs director and the contract lobbyist, and the law improvement positions, which are advocated by sections and committees. As public affairs attorney, I handle section and committee law improvement issues. Law improvement is more technical in nature and relates specifically to the substantive area of law.

In some cases, routine law improvement issues may be left entirely to volunteers, which may be a good way to cover a few more bases. Bar volunteers can be a wonderful resource if trained, coordinated and armed with current information. Coordination of volunteers is labor intensive, but worth the effort. On the other hand, it is important to be ready to pick up the pieces if volunteers are unprepared or unsupervised.

Technology has made it easier to inform members and volunteers about the status of issues in the legislature. Most successful lobbying programs have either a key contact system of volunteer experts or a more sophisticated grassroots system that can be activated with a legislative alert at a moment’s notice. Depending on the size of the bar and the resources available, your bar may choose such options as the grassroots system (for which software is available) or articles in your bar journal or newsletters, which go to a limited audience. Or you can rely on the old-fashioned telephone call to activate key contacts or inform your governing board of important last-minute developments.

Remember that communication with your members and board is crucial. Don’t forget to coordinate your communication and GR efforts internally with other departments within the bar, such as the communications/public relations department or executive office. Failure to do so puts you at risk of diluting your message, or worse, contradicting yourself.

The legislative process is not like a judicial proceeding and it is not adversarial in nature--even though it may seem like it at times. Rather, it is a process of effective relationships: influencing them, building and maintaining them and informing them. Effective relationships translate into an effective political voice, which, in turn, strengthens your bar’s ability to influence public policy and assist your state’s system of justice and legal services. That’s why a strong governmental relations program is essential for bars that do not want to be ignored by policy makers.

The author is the public affairs attorney with the Oregon State Bar. She is chair of the National Association of Bar Executives’ Section of Governmental Relations.