By Bonnie Stern Wasser, Esq.
www.bswasserlaw.com
bonnie@bswasserlaw.com
Board Member, IPS
June 2014

The Executive Committee of the International Section (IPS) has formalized a process to follow when the Washington State Bar Association Legislative Liaison requests that our Section comment on proposed legislation.  As your legislative liaison, I along with Chair, Jonathan Lloyd, attended a workshop held earlier in the year put on by Kathryn Leathers, the WSBA Legislative Liaison.  The Section procedures and relevant information are posted here on the Legislative Advocacy pages of the Global Gavel.

IPS is a diverse membership with attorneys practicing in many different specialties.  Your Executive Committee may not have the expertise to decide whether to support, oppose or abstain on a piece of legislation.  Therefore, we may need the general membership to share your expertise with the Executive Committee and membership. In addition, we want the process for commenting to be transparent to the members.  Following is some general information about how WSBA members may be involved in legislative advocacy, as well as information about how you can be an effective advocate for change in your individual capacity outside of WSBA activities.

WSBA Legislative Analysis

Governing Rules

The rules that govern WSBA related legislative activity include the WSBA Bylaws, the state Public Disclosure Commission that regulates lobbying activities (are you acting as a lobbyist?), WSBA’s Legislation and Court Rule Comment Policy, and Washington Supreme Court General Rule GR 12.1(c).

When WSBA sections are asked to review and potentially comment on legislative proposals, the key policies and procedures that must be followed, as outlined in the WSBA’s Legislation and Court Rule Comment Policy, provide that:

  1. Only a section’s Executive Committee (“governing body”) may take a position on legislation on behalf of the section;
  2. The first question the Executive Committee must answer is whether the proposal meets GR 12 (that is, does the proposal “relate to or affect the practice of law or administration of justice”).  At least 75% of the Executive Committee must agree that the proposal meets GR 12 – if that threshold is not met, no further action can be taken.  If the Executive Committee is not sure whether a proposal meets GR 12, it can ask for an opinion from the WSBA’s General Counsel (Jean McElroy);
  3. Once the Executive Committee has met the GR 12 threshold, the Executive Committee may then consider whether it wants to take a position or otherwise provide input to the Legislature on the proposal.  We are not required to take a position simply because we have been asked to review a proposal.  And, again, at least 75% of the Executive Committee must agree on any position or comments (see the next section for more specifics on positions); and
  4. Once a position has been taken, the Executive Committee (or its legislative liaison(s)) must work with the WSBA’s Legislative Liaison to communicate that position to the Legislature.

We must be able to explain the Section’s legislative process and defend the position taken.  Note that WSBA is not a political action committee and does not give money to any political candidates or parties, nor can the Sections.  The WSBA is nonpartisan, and all of its activities, including those in the legislative arena, are meant to further its mission of protecting the public and serving all of its members.

Section Participation in Legislative Review

Legislative sessions are short (60 or 105 days) and hundreds, sometimes thousands, of bills are introduced each year.  Although our Section has not typically received a large number of bills to review in any given session, we are often asked to analyze and comment on legislation under very short (sometimes less than a week) deadlines.  The fast-paced nature of the legislative process makes our work of carefully reviewing often complex legislation extremely challenging.

Each section should have a legislative liaison who acts as the section’s point person for working with the WSBA’s Legislative Office.  (I have been that person in recent years for IPS.  We are always looking for an additional volunteer or two to assist with this process.)  The WSBA’s Legislative Liaison, Kathryn Leathers, is a full-time WSBA employee who is a registered lobbyist.  Kathryn works with and represents all twenty-eight WSBA sections and the Board of Governors in the legislative arena.  Some sections with frequent requests for bill comments have full subcommittees for legislative affairs.  WSBA generally tracks just Washington state bills (click HERE).  For a list of bills being monitored, click HERE.

Periodically, the Section may receive a request from the WSBA’s Legislative Office to review proposed legislation.  How this bill is brought to our attention starts with an initial review of the bill by Kathryn Leathers, WSBA Legislative Liaison – Kathryn reviews every bill that is introduced each session and makes section “referral decisions” if she thinks that a bill may be of interest to WSBA sections.  Sometimes she refers the same bill to multiple sections because the subject matter crosses multiple practice areas. Then Gwen Lloyd, WSBA Legislative Assistant, emails the referrals to legislative liaisons and chairs of relevant sections.  (Although the Legislative Office may refer bills to us before session begins, most referrals will be sent to us during the regular legislative session.  Session begins each year in January and lasts 60 days in even-­numbered years and 105 days in odd-numbered years.)  The IPS has received on average zero to three bill referrals per year in recent years.  The Section Chair mails the bill to the Executive Committee for review.  The Section should have a point person (usually the Section legislative liaison, the Chair, or someone familiar with the topic or with special expertise) to communicate with Kathryn and Gwen, with other stakeholders and/or with the legislature.

Once at least 75% of the Executive Committee agrees that the bill meets GR 12 (“relate to or affect the practice of law or administration of justice”), then the Executive Committee can consider what, if any, position it wants to take.  (If the 75% threshold is not met, the Executive Committee should advise Gwen that the Section takes “no position”.)

Possible positions are: “support”, “concerns”, “oppose as drafted”, “oppose” or “no position”.  Again, at least 75% of the Executive Committee must agree on any position.  More details on positions the Section can take regarding a proposed bill are below:

  1. Support: i) The position meets GR 12.1; ii) The bill is of sufficient importance to warrant comment/input; and iii) the Executive Committee supports the bill.  The Executive Committee may want to send someone to testify for significant proposals.  The person need not serve on the committee but is a Section member with special expertise.
  2. Concerns: i) The bill meets GR12.1; ii) The bill is of sufficient importance to warrant comment/input; but iii) implementation of the policy is problematic.  The Executive Committee (with the help of members with special expertise, if needed,) will probably want to draft a letter to the sponsor and House or Senate Committee chair detailing concerns and ideas for fixing the bills.  The IPS may want to send someone to testify.
  3. Opposed as Drafted: (Use sparingly): i) The bill meets GR12.1; ii) The bill is of sufficient importance to warrant comment/input; iii) the IPS has concerns that the execution of the proposal or the policy change is so significant that the Executive Committee agrees that expressing concerns is not enough; and iv) the Committee assumes the concerns can be fixed.  In this case, the Section cannot be neutral.  We would need to follow up with documentation or testimony and suggest the fix needed.
  4. Oppose: (Use of “Opposed as Drafted” cannot be used): i) The bill meets GR12.1; ii) the bill is of sufficient importance that it warrants comment/input; iii) the concerns are that the execution of the proposal and/or the proposed policy change itself are so significant that the Executive Committee agrees that merely expressing concerns is insufficient; and iv) This assumes that the concerns cannot be fixed.  In that case, the Section would follow up with a letter to the sponsor and committee chair detailing opposition.  Someone will need to testify.
  5. No Position: 1) The Executive Committee cannot reach 75% agreement that the bill meets GR12.1, or it meets GR12.1 but it is not sufficiently important to warrant comment or input; or ii) 75% cannot make a decision on a position to take.  No further action is required, but WSBA will still monitor the bill for amendments.

If “no position” is taken, the Section will not be notified of future hearings about the particular bill (unless the bill is amended, which may change the bill so significantly that it may warrant re-­review).

The Section may desire to provide comments to the Legislature even though it is not taking a position on a proposal.  In all cases, Kathryn will work with the Section’s legislative liaison to submit comments to the appropriate legislators.  Kathryn may also be able to testify on the Section’s behalf unless the Section raises concerns or expresses opposition to a proposal that requires the knowledge of an expert in this area of law.

Gwen and Kathryn monitor bills for amendments.  If there are any, the Section may be contacted requesting whether the amendments would impact the Section’s position.  In that case, the Executive Committee may need to go through the process above again.

Kathryn is always willing to meet with the Executive Committee or attend a Section meeting to further discuss the legislative process and the WSBA’s policies and procedures.

Other resources

Other resources include: Section VII of the WSBA ByLaws Open Meetings Policy, Article XIV of the WSBA Bylaws Records Disclosure and Retention, and Washington Supreme Court Rules: ELCs, APRs, GRs, ELPOCs, RPCs.  Lobbyists must register with the Public Disclosure Commission.

The WSBA website has a good discussion about WSBA’s involvement with the legislative process.  WSBA Legislative Affairs staff include Kathryn Leathers, Legislative Liaison, 360-­259-­2044, kathrynL@wsba.org, and Gwen Lloyd, Legislative Assistant, 360-­943-­9977, gwenl@wsba.org.

Supreme Court Rule GR 12

One of WSBA’s purposes in the State Bar Act is to “serve as a state-­wide voice to the public and the branches of government on matters relating to these purposes and the activities of the association.”  WSBA authorized activities include (among many others):

  1. “Monitor, report on, and advise public officials about matters of interest to the bar”; and
  2. “Maintain a legislative presence to inform members of new and proposed laws and to inform public officials about bar positions and concerns.”

GR 12(c) prohibits WSBA from:

  1. Taking positions on issues concerning the politics or social positions of foreign nations;
  2. Taking positions on political or social issues which do not relate to or affect the practice of law or the administration of justice; and
  3. Supporting or opposing in an election, candidates for public office.

The comments to GR 12 elaborate on some of these issues.  For example, “political and social issues” are addressed by Keller v. State Bar of California where the Washington Supreme Court likened a mandatory bar to a union “must pay to work” membership.  Therefore, members have a right not to require the Bar to require them to take their political position, as that would infringe on the First Amendment.  The Keller deduction for bar dues that you see on your annual statement is because of political activity.

The comment to GR 12 also discusses the difference between the “administration of justice” and “justice.”  The administration of justice deals with how justice is administered, whereas justice activities are about promotion of justice.  The WSBA Board of Governors (BOG) may take a broader view of what is the administration of justice.

The “practice of law” is also discussed in the comment to GR 12.  It could be narrowly or broadly interpreted.  For example, tort reform affects ability to practice law and also impacts how the courts run effectively.  “Law improvement activities” deal with how the area of law is practiced.

Being an advocate for change

I remember way back in law school when we were taught to be advocates, we were taught trial advocacy skills and how to write persuasive briefs.  No one talked about legislative change.  It wasn’t until I became involved in advocacy committees as a member of the American Immigration Lawyers Association that I realized how much I enjoyed the legislative advocacy process.  Whether you are an extrovert or an introvert, there are many ways to advocate for change.  Although we all know the power of the purse in this country, there are countless examples of how individuals worked together to affect change.  In my own area of immigration law, the two biggest new immigration benefits achieved in decades occurred just recently: advocacy by the would-­be DREAM Act youth to get Deferred Action for Childhood Arrival status from the Administration (because Congress never did pass the DREAM Act), and marriage equality for LGBT families, including immigration benefits, thanks in part to federal and state court and legislative advocacy by many people.

Here is a good list of advocacy action items for attorneys, our clients, and your family, friends and colleagues with a general interest in civic engagement or a passion for a particular topic (remember, this is not on behalf of WSBA except as described above):

  1. Write letters or emails to your representatives asking them to propose a law, oppose or support a bill.  Be sure to tell your story and how you and others would be affected. (Snail mail letters can take longer to get to Congress due to security issues.)  Many associations even draft bills.
  2. Call your representative – the message should be short and to the point.  “Please support (or oppose) XYZ bill because….”  Legislators definitely track the number and quality of the calls (and emails).
  3. Write an opinion piece for your local newspaper.
  4. Write a letter to the editor in response to someone else’s article supporting or opposing the main contention.  These should be short.
  5. Tell your compelling personal story to a reporter.  Reporters need a “hook,”and that is usually a human interest story.  (If involving a client story, first discuss with the client and get the client’s written release because of confidential attorney-­client privilege issues.)
  6. Attend Town Halls and other community meetings where your legislator may appear and sign up or get in line to speak.
  7. Attend public hearings held by legislators and see if you can sign up to testify.  Be sure to submit a statement in writing that backs up your oral testimony.
  8. VOTE!
  9. Join and/or contribute money to organizations that support your values/issues.  Work with other organizations to do the same (e.g., grassroots organizing, coalition building, etc.)  (Pay attention to lobbying rules!)
  10. Study the issue.  Learn the other side’s point of view and be able to rebut those arguments.
  11. Don’t forget other media: blog about issues, social media, TV, radio.  Attorneys are particularly suited to explain beyond mere rhetoric how laws affect our clients, but don’t speak in legalese unless presenting to a bar group.
  12. Work on a campaign or otherwise support or vote for candidates who support your values/issues.  Help get out the vote.
  13. When laws or regulations are published for public comment (as required by most agencies to implement a law passed by the legislature), send in your comments!  This is a very specific and useful way to impact our laws.  (E.g., see the Federal Register, which has notice and comment periods.)  Especially for lawyers, this is an excellent way to make your voice heard.  When interim or final rules are published, agencies often discuss in the preliminary section the comments they received, even if they chose not to incorporate the ideas in those comments.)
  14. You have the right to speak with your legislator in person!  It may be rather bureaucratic to get an appointment, but it’s worth a try. Ask for your legislator’s “scheduler.”  You may have better luck going with an organized group of people with similar interests.  You can meet with legislators when they are in session in Olympia or D.C., or while they are back in their home districts.  Prepare before you go. Develop a list of talking points.  Have your position statement ready, along with your “ask” – “please support/oppose XYZ bill.”  Tell your story; leave a “leave behind” document; follow up with a “thank you” after the meeting, and if you agreed to follow up on a point, be sure to follow up.
  15. If you are not yet a U.S. citizen, work toward naturalization so that you can vote.
  16. As a lawyer, work with groups you support who file amicus briefs in court cases affecting public policy.

In Washington State, find your legislator HERE.
To find your member of Congress, check HERE.
The U.S. Capitol switchboard number is: (202) 224-­3121.

For further information on tracking Washington State bills, whether for the Section, your law firm or clients, or for your personal interests, see the following sites.  You can create an account that tracks specific bills or topics:

WA State Legislature – Detailed Legislative Reports
WA State Legislature – Home
WA State Legislative Web Services

If you are interested in tracking federal bills, the following are good resources:

Track bills in the Congress (GovTrack).  You can even track bills in Congress that affect Washington State.
Open Congress
Thomas – Library of Congress – Congressional Record
Bill Search
U.S. Senate  (You can also watch videos of floor and committee hearings.)
Senate daily digest
U.S. House of Representatives  (You can also watch videos of floor and committee hearings.)

Track federal agency regulations in the Federal Register (news, notices, proposed rules, final rules, Presidential documents).