To speak or not to speak? This is not usually a question for lawyers, but when it comes to government relations, lobbying, and bar associations, this question often can stop the conversation cold.
How does an association express a position on an issue upon which the membership is divided? That question becomes more challenging if the association is a mandatory one. As a past president of the State Bar of Wisconsin, a mandatory bar association, I can tell you that Keller is not an absolute bar to lobbying. Keller outlines the areas in which an association may lobby using mandatory dues dollars. More specifically, Keller says that lobbying activities related to regulating the legal profession or improving the delivery of legal services are permissible activities for a mandatory bar association. The question for bar associations should not be whether to speak, but how to do so within the guidelines of Keller.
Recently, many bar leaders took the time to participate in the ABA lobbying event, ABA Day in Washington, which was held April 18-19. Bar leaders from around the country joined in an action-packed, two-day program of panel presentations and visits with legislators. ABA leaders and staff also made the rounds. However, all politics is local, so hearing from constituents was the focus of the two-day blitz. State and local bar leaders seized the opportunity to connect with legislators on the important issues and help their representatives understand what it means to people back in the home state.
Although the event was a great success, each year, there are bar leaders who question whether their association can or should participate in this important event or any other lobbying or legislative activity. Below are some of the most frequently asked questions and some answers to help you decide whether to participate in the future.
Q: We’re a mandatory bar association. We’re not permitted to lobby, are we?
A: Under Keller, the association should first determine whether the issue on which it wants to lobby is political or ideological. If not, it is not subject to the Keller restrictions. If the activity is political or ideological, the next question is whether the activity relates to the regulation of the practice of law or improving the delivery of legal services. If the activity falls into this category, even if the issue is political or ideological, members can be “compelled” to support the activity, meaning that dues dollars may be used for this activity. If the activity is not related to the regulation of the practice of law or improving the delivery of legal services, then members must be given a way to withhold their dues from that activity.
The Keller analysis may seem overwhelming, but it is necessary. Following the Keller requirements will allow an association to have a voice on important issues, such as judicial independence and funding for legal services, while respecting the rights and views of its members.
Q: We meet with staff of our legislators when they are in the home district. Visits in Washington aren’t really necessary, are they?
A: After jumping the Keller hurdle, some associations suggest that they don’t participate in the ABA program because they already work with their legislators back in the home district. Those contacts are great, and in fact, enhance the effectiveness of the association’s participation in the ABA program. The process of advocacy is strengthened with frequent, regular contacts.
But there have been many instances in which information shared in the district did not reach the Washington staff for the representative, and hence the representative did not follow through on the issue discussed back in the district. Congressional support is really based on close working relationships. These are developed by visiting the representative in the district and in Washington.
Q: What if we don’t want to lobby on all of the ABA issues?
A: You will know your association and your legislators best. The ABA listing of issues is focused on those central to the legal system. The ABA issue listing provides a framework on issues that need attention and generally have widespread support. However, you don’t have to lobby on all of the ABA issues.
Whether you participated this year or not, it is vitally important for you and your association to monitor the legislative process and be ready to act. There are many issues that are important to the legal system, and as lawyers and bar leaders, we can help educate and advocate for the resources that will help this legal system survive and thrive. If you participated this past April, I hope you will share your thoughts and experiences with other bar leaders. If you did not participate, I hope you will consider joining the discussion next year. We need all of your voices.
—By Michelle A. Behnke
Michelle A. Behnke is chair of the ABA Standing Committee on Bar Activities and Services.
FOR MORE INFORMATION
To learn more about legislative issues affecting the legal profession and ways you can help, visit the ABA Governmental Affairs Office at www.abanet.org/poladv/. BL