April 15, 2019

How You Can Develop Policy

There are only three ways that an entity within the ABA can make policy or offer comments or input to government agencies.  First, submission can be made on behalf of the Association as a whole under the procedures for reports and recommendations.  Second, a submission can be made on behalf of a Section under the blanket authority procedure.  Third, a submission that constitutes “technical comments” as described below may be made an behalf of a Section or committee under the technical comments procedure.  All three of these procedures are described below.  Committees may not make submissions to government entities without complying with one of these procedures.  Comments of individual members of sections may not be submitted to a governmental agency using the letterhead of an ABA entity or referencing an ABA entity’s involvement.

PROCEDURES FOR REPORTS AND RECOMMENDATIONS

As leaders of the Section, it is important to understand the process by which the ABA formulates positions on important national, legislative and professional issues.  There are specific procedures that must be followed in order to make ABA policy or Section policy.

The process of getting the Association or the Section to take a position involves a commitment of time and effort from the proponents.  It should be reserved for important legal or professional matters. 

Policy matters are pursued by the Association or Section as a matter of civic duty.  The application must disclose any material interest in the subject matter of the policy on the part of any member of a section committee which initiated the proposal and of the section council which approved the submission of the request by reason of specific employment or representation of clients.

Many policy initiatives begin with the committees.  On occasion, the Section will take on a policy initiative that began with one of the leaders.  If approached about such an initiative, you should provide your best judgment as to whether it makes sense to pursue and determine if you can assemble a group within your committee to take on the project.

The process described below is for developing policy for the Association.  There is a similar process for developing policy for the Section alone, which is described in the next section of this manual.

Step 1:  Discuss the proposed policy position at the Committee level.  As Committee leaders, you are knowledgeable about important issues that arise in your area of expertise.  You should be proactive in this area.  You are in a position to identify important issues coming up for consideration - in an international forum, in Congress, at the Executive Branch, etc.  Some issues just require monitoring, but some would benefit from ABA action.  Where the latter is the case, there are mechanisms for your Committee to suggest that the Section or the ABA as a whole take a position.  Solicit reactions from others knowledgeable in the field, if that would be helpful. 

Step 2:  Contact your Council Committee Liaison.  Once you have identified an issue that you would like to propose the Section or Association take a position on, first get in touch with your Council Committee Liaison.  The role of your Liaison is to act as a sounding board and facilitator.  The Council Committee Liaison has been through the ABA policy-making process and is familiar with the workings of the Section’s deliberative body, the Council.  The Liaison can help you assess in advance the likely reaction of the Council to your proposal and whether it makes sense to pursue the policy-making process. The Liaison can help to assure that you follow procedures that increase the prospects that your proposal will be considered in a timely and efficient manner, and that you prepare the documentation that will be required in a manner most likely to be approved.

Step 3:  Assemble a group to draft a recommendation and report for submission to the Section’s Council. The mechanism starts with assembling a group to draft a recommendation and a report that includes people with expertise in the field and some divergence of view.  You should try to include in the group representatives from all relevant ABA entities to ensure smooth passage by the ABA House of Delegates and avoid opposition from other Sections.  The recommendation is in the form of a resolution and should be very short (no more than 1-2 pages) and to the point.  The recommendation should state what you want done---e.g., that the Association (or the Section) recommends that the U.S. Congress adopt legislation restricting fast-track procedures for consideration of international trade agreements.  The accompanying report should provide the relevant legal background and fully state in a concise manner the reasons why the recommendation should be adopted.  Because the report is usually the document to persuade the relevant body to take the relevant action, it needs to be a thorough and professional product (but no more than fifteen pages long).  Keep your Division Chair in the loop during the drafting process and aim to have your Liaison’s comments included in the draft documents before going forward to the next step of the process.

Step 4:  Submit to the Policy Officer for review prior to inclusion in Council Agenda Book.  The recommendation and report along with a Council Summary (an outline of the information required for this summary is included elsewhere in this Leadership Manual – see p. 69) must then be reviewed and approved for form and style by the Section’s Policy Officer before it will be placed on the Council agenda or distributed in the Council agenda book prior to its meetings.  The Council meets three or four times per year---at the ABA annual meeting (in August), at the Section’s two seasonal meetings (typically in April and October), and before the ABA Mid-winter meeting (typically in February).  See FY 2005-2006 Council meeting schedule on page 14.  Although the Council can act by mail ballot in between meetings, this is a cumbersome process that the Council discourages and reserves only for time critical matters. 

Step 5:  Attend the Council meeting where your policy recommendation will be discussed.  When the Council considers a recommendation and report, the proponents are expected to appear at the meeting to review the recommendation and answer questions or concerns of Council members.  The Council agenda is always very full, so that it is important for presentations to be limited to the time period allotted for discussion including reserving times for questions.  To improve the Council’s deliberative process, the Council requires proponents to have done sufficient consultation with other interested parties (e.g., relevant government agencies, other professional associations) to be able to identify if there is likely to be significant opposition to the recommendation, and if so, to arrange for an opponent of the recommendation to appear at the Council meeting and voice the other side of the matter.  The Council will then vote on the matter; a majority wins.

Step 6:  Submission to the ABA House of Delegates.  Once the Council has adopted a recommendation and report, the position adopted is not yet either ABA or even Section policy.  For a recommendation to become ABA policy, the ABA House of Delegates must approve it.  The House of Delegates is a large, legislative-like body consisting of delegates from all 27 ABA Sections as well as from state bar associations in all 50 states.  It has several hundred members.

At the House of Delegates the Section offers the recommendation as approved by the Council.  The recommendation is presented by one of the Section’s two delegates to the House, both of whom are traditionally former Chairs of the Section.  The Section has extensive experience in presenting recommendations to the House of Delegates, and our delegates make a point of learning about potential opposition within the House, and trying to accommodate concerns or defeat the opposition. 

If the House of Delegates adopts the recommendation, it becomes ABA policy.  The report, which accompanies the recommendation, is not deemed ABA policy.  It is a kind of legislative history for the recommendation.

Step 7:  Implement the recommendation.  The Section is committed to implementing ABA-approved recommendations that it drafts or co-sponsors.  The initiating committee or group should devise a plan for having the ABA undertake steps to implement the policy adopted by the ABA.  Implementation steps could include, among others, letters from the Section Chair or the President of the ABA to the U.S. government, Congress or foreign governmental authorities; “op-ed” pieces for relevant media; a press conference; Congressional testimony (if hearings are contemplated on the issue); CLE programming; or publication of the recommendation in The International Lawyer or other publications.

Some Words on Timing

Plan Well in Advance. If you want the ABA to adopt your recommendation, you must plan well in advance.  Typically, the Section Council will consider a recommendation one meeting before the House of Delegates---for example, the Council will approve a recommendation at a spring meeting in April which will then be presented to the House of Delegates at the Annual Meeting in August.  There is an emergency procedure that can present a matter before the House of Delegates, but its use generally is reserved for unforeseeable emergencies.


COUNCIL SUMMARY

  1. Brief summary of the proposed resolution.
  2. Goals to be accomplished by the proposal.
  3. Provide a description of any related current ABA policies and how they relate to this policy recommendation.
  4. Please identify which Section Committees have reviewed this recommendation and their response(s).
  5. U.S. and other Government views: Identify positions or views of the U.S. government entities, other government and international institutions.
  6. Opposing Views: Provide a good faith description of controversial aspects of the proposal and potential opposing views.  Who will present opposing views to Council?
  7. Intended Implementation: Describe how the proposal would accomplish its goals, and what steps are intended to implement the proposal if it is adopted.

Blanket Authority Procedure

Sometimes time does not permit the luxury of seeking the House of Delegates approval or a matter is not deemed sufficiently important or is considered too specialized to be submitted there.  In such cases, the ABA provides a mechanism called blanket authority.  Any Section of the ABA may present a policy statement on matters within its primary or special expertise and jurisdiction to a federal, state, or municipal legislative body, governmental agency, court (with respect to procedural rules only), interstate governmental body, or international governmental body.  Generally, Sections are not permitted to take positions on their own; some check is thought necessary.  The blanket authority process is that check.

Blanket authority is typically used to submit comments, prepared testimony or position papers on behalf of a Section.  It is not necessary to prepare a recommendation and report, as is required for policy matters to be considered by the House of Delegates.  There are specified documents which must be completed.  A list of these documents and some additional details are provided on p. 73 of this manual. 

Once the Section’s Council approves material to be submitted, it is then sent to all other ABA Sections with a request for blanket authority.  A short period is provided for objections from other Sections.  If no objections are received, the report and recommendations may be presented as the position of the Section.  But a written caveat must appear on the document stating that it represents the position of the Section, but not the position of the Association.

Blanket authority time tables are still time consuming given that Council approval is required.  In addition, there are time periods for review by other Sections, which are ten business days in the case of normal blanket authority which is reduced to two business days with expedited blanket authority. 

All policy statements which become effective through blanket authority (normal or expedited) have a "shelf life" which should be taken into account in considering whether to use this policymaking procedure in lieu of the recommendation and report procedure.

The Section’s Chair and Staff Director periodically received requests for blanket authority from other sections.  These are typically forwarded to the leadership of the relevant Section committee(s) for quick review and recommendation as to whether the Section should object to the request.  Objections will only be made on the basis of concerns relevant to international law or practice.  Typically, objections are resolved between the proposing and opposing Section so that the material can be submitted, but that is not always the case.

Technical Comments

In August 2004, the House of Delegates adopted a new procedure which provides that the blanket authority procedure described above is not applicable when a Section submits technical comments to a government executive branch or independent agency.  Technical comments are defined as comments that are narrowly-focused within a particular Section’s primary or special expertise and jurisdiction, and are being submitted in response to a time-limited solicitation for comments.  The new procedure is intended to provide a quicker route for the submission of this sort of narrow, technical comments than blanket authority in part by limiting review only to those ABA entities that have either a jurisdictional or expressed interest in the agency or subject matter of the comments. 

The ABA Board of Governors is authorized to grant to a Section the authority to submit technical comments on an ongoing basis to a specified governmental agency on specified subject matters over a three-year period.  More than one Section may be granted such authority with respect to a specified governmental agency on a specified subject matter, and two or more Sections may jointly seek such authority.  Two or more Sections may request to file technical comments jointly.

A Section seeking authority to submit technical comments to a specified governmental agency on a specified subject(s) must submit an application to the Board of Governors, with copies to each Section and ABA standing committee which may have an interest in the agencies and/or subject matter areas. Each of these entities will be invited to notify the applying Section and the Board of Governors whether it opposes the request or whether it would like to be a reviewing entity for any or all technical comments submitted pursuant to a grant of authority to the applying section.  Reviewing entities are given the opportunity to express opposition to any proposed submission under very short timetables of two business days for comment periods of 30 days or less and five business days otherwise. 

In principle, the new procedure provides for submission of technical comments by a Section or “an entity within a Section”, and thus contemplates for the first time submissions by Section committees that do not reflect the views of the Section.  The comments nonetheless must be accompanied by a certification, signed by the Section Chair, that the comments have been reviewed and approved by the Section leadership as technical comments within the section’s primary or special expertise and jurisdiction. The comments must contain a disclaimer that specifically states the comments do not represent the policy of the Association or, when appropriate, the views of the Section.

Link to Sample Report with Recommendation

Sample Report and Recommendation

Blanket Authority Template

The blanket authority process is designed to allow entities of the Association to present statements within their particular jurisdictions to appropriate government agencies while providing prior notice to other sections, divisions, and officers.  The normal procedure requires distribution of the application at least ten (10) days before the proposed submission deadline.  The expedited procedure requires distribution of the application not less than two (2) working days prior to the proposed submission date.  The expedited procedure should be used only in those circumstances where it is not possible to distribute and submit the application within the full ten (10) days before the submission date. 

Statement of Position

The position developed shall not be in conflict with Association policy.  The section must state that the position is a presentation only on behalf of the section.  The following disclaimer is required in the first paragraph of each blanket authority statement:

“The views expressed herein are presented on behalf of the Section of International Law.  They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the Association.”

Contents of Blanket Authority Requests

Each request for blanket authority must contain the information stated below:

  1. A clear statement of the proposed policy position to be taken;
  2. All communications to be addressed including but not limited to reports or resolutions, prepared testimony, exhibits, and a letter of transmittal;
  3. The proposed date of presentation and the name of the government body to which the statement will be presented;
  4. The deadline date by which objections must be received;
  5. The date of the Council Meeting at which the statement was adopted if the bylaws of the proposing sections require all statements or views to be so authorized;
  6. An explanation of the section’s reason for requesting blanket authority;
  7. Any material interest in the subject matter of the blanket authority request on the part of any member of a section committee which initiated the request and of the section council which approved the request; and
  8. The names and addresses of all recipients of the proposed statement.