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January 31, 2013 Articles

Beyond the Courtroom: Part I

By Michael R. Smalz, Robert M. Murphy, and Jane L. Habegger

This article is part one of a two-part series concluding in the spring issue of Children's Rights Litigation committee newsletter.

Legislative advocacy is an important—but often overlooked—tool for children's rights attorneys and advocates to establish, defend, and expand children's rights. An attorney's traditional role is to provide legal advice and representation to individual clients or client groups. Systemic changes can sometimes be achieved through constitutional, civil rights, and class-action litigation. But most attorneys litigate, not legislate. They enforce the law, but do not make the law.

However, children's rights attorneys and other advocates for the legal rights of disadvantaged and vulnerable populations should expand their horizons to address issues of public policy and engage in legislative advocacy. Advocates may seek to defend, expand, or otherwise enhance important legal rights, remedies, enforcement tools, and adequate funding for programs and services for low-income children and families, runaways, abused and neglected children, children aging out of foster care, and children traumatized by violence. On some issues, legislative advocacy—i.e., lobbying—is the most effective approach to address systemic problems and barriers facing disadvantaged youth. New legislation and budget appropriations can have a considerable impact on children's legal rights and supportive services.

What Is Legislative Advocacy?
Legislative advocacy involves efforts to influence the introduction, modification, or enactment of legislation. It includes direct lobbying of legislators and Congress people, testifying before legislative committees, establishing relationships with key legislators, working with coalitions and grassroots networks, media advocacy and strategic communications, and drafting proposed statutory language and ballot initiatives. Legislative advocacy may also encompass less direct types of advocacy including educating legislators on issues, monitoring legislation and committee votes, building legislative networks, and participating in stakeholder groups convened by legislators to review or develop comprehensive legislation.

When one thinks of legislative advocacy, what first pops into mind is directly contacting a legislator to share your views on an issue or to ask the legislator to support or oppose specific legislation. Advocates usually target their local legislators and certain key legislators—such as committee chairs, the House speaker, the Senate president, or legislators known to have a particular expertise or reputation on certain issues.

Advocates and citizens can communicate with legislators in various ways.  A phone call, a letter, or an email to a legislator is especially easy to do and requires relatively little investment of time and resources.  But meeting with a legislator can be more effective than an isolated letter or a phone call. Furthermore, advocates can establish a relationship with key legislators by regularly meeting or communicating with the legislator and promptly responding to legislators' requests for information.

Nonprofit organizations and legal services programs that are subject to lobbying restrictions can still freely educate and provide relevant information to legislators. Since legislators must consider a huge number of bills covering a wide range of diverse topics, they cannot be an expert on every issue (or even on most issues). They frequently look to attorneys, lobbyists, trade associations, special-interests groups, nonprofits, and other experts for research, knowledge, and information on issues.

For example, in Ohio, legislators turn to the state legal aid support center (the Ohio legal aid state support center—then known as the Ohio State Legal Services Association—is now the Ohio Poverty Law Center) for input on drafting the state's child support guidelines because of legal aid practitioners' expertise and experience in representing low-income families and children in child-support matters. As a result, Ohio's statutory child-support guidelines include a self-support reserve for low-income obligors, the exclusion of means-tested public benefits from the child support computation formula, and a quick and simple administrative procedure for requesting and obtaining a modification of existing child-support orders.

Another level of legislative advocacy involves helping others to get involved in lobbying efforts.  This includes sending out legislative alerts, notifying nonprofit agencies and community organizations of newly introduced and pending bills, tracking and reporting on the progress of legislation, and teaching other potential advocates the mechanics of lobbying and the laws governing lobbying by nonprofit agencies.

The Legislative Process
There is some variation in the legislative process from state to state. The duration and frequency of legislative sessions, committee structures, and the applicable mechanisms for exercising a gubernatorial veto vary widely from one state to another. However, the major steps in the legislative process in state legislatures (and in Congress) are very similar.

An idea for a new law or a change in existing law may originate with a member of the legislature, a state administrative agency, the governor, a special-interest group, or a private citizen. State legislation may also be proposed as a result of federal statutory mandates, significant court decisions or state attorney general opinions, or recommendations made by study committees or task forces.

A legislator must sponsor a bill in order for it to be drafted and moved forward. Legislators often work with advocates to craft or refine the statutory language that will be included in legislation or to draft amendments to a bill that has already been introduced. This is most likely to happen when advocates already have an existing relationship with a legislator.

A bill is a document by which a member of the legislature (or Congress) proposes to enact a new law or amend or repeal an existing law. The term "bill" is used to refer to the document from the time it is drafted and delivered to the legislator until it is considered and approved by the full legislature. After passing the legislature, a bill may become an "act," and it must be presented to the governor for acceptance or rejection. If the governor accepts or fails to veto the bill or act, it becomes a "law."

Most state legislators have a legislative service commission or a similar nonpartisan agency that provides drafting services to legislators. The staff person assigned to draft a bill will either draft the original statutory language or review and refine any language proposed by the sponsoring legislator. The staff person will also research any pertinent constitutional issues, establish definitions and rules of construction applicable to the proposed statutory changes search for any potentially conflicting statutes, and track and revise any relevant cross-references to and from other statutes.

Although the staff person drafting the bill for the sponsoring legislator may be highly trained and experienced, any bill draft can contain errors or fail to meet the specific objectives of the legislator and advocates. Therefore, advocates should carefully review any draft legislation to ensure that it actually accomplishes their objectives and does not create any unintended consequences. Even where advocates initially drafted the legislation, the legislative service commission staff person will likely make changes to the originally proposed statutory language.  Those changes may primarily address technical matters, but sometimes the changes are more substantial.

When bills are formally introduced, they are assigned a bill number and referred to one or more committees. Most of the work done on a bill after it is introduced is done in committee.  Committee chairs usually decide which bills will receive the most attention. Committees may hold a hearing on a bill, propose and adopt amendments, and vote to approve or reject a bill.  Advocates can review the text or analyses of a bill, or track the progress of a bill, by going to the state legislative website. An excellent example is the Ohio General Assembly's website.

Most bills assigned to a committee receive at least one hearing—a hearing for "sponsor testimony" at which the legislator who introduced the bill provides testimony describing the bill's purpose and major provisions. However, if the committee chair is opposed to the bill or views it as a low priority, the bill may not receive any further committee hearings.

The committee chair may decide that a bill is very complex and would require too much time and effort for initial consideration by the full committee. The chair may then designate a few members of the committee to serve on a subcommittee to consider the bill while the full committee goes ahead with other business. The subcommittee may then hold its own hearings and vote to oppose, amend, or reject the bill. After the subcommittee has finished its deliberations, it will forward its recommendation (and possibly additional findings) to the full committee. The full committee may accept the subcommittee's recommendation—by approving or rejecting the bill—or hold further hearings on the bill.

If a bill is to move forward in a committee, it will usually receive multiple hearings with opportunities for proponent, opponent, and "interested party" testimony. When the committee completes its deliberations, it will vote to either approve the bill—with or without amendments—or reject the bill. The committee then "reports" the bill to the full membership of the House or Senate for possible floor action.

Bills that are reported out of committee are usually placed on the House or Senate calendar for floor debate and action. If the bill is not placed on the calendar within a reasonable period of time, then it is likely that no floor action will be taken on the bill. Legislators who support or oppose a bill are given a chance to speak about the bill during the floor debate. In addition, amendments may be proposed and voted on during the floor debate. When the debate concludes, a vote is taken to either approve or defeat the bill.

When a bill is passed by the first house—either the House or Senate in most state legislatures and Congress—it is forwarded to the second house where it undergoes the same process of introduction, referral to committee, committee hearings, and floor action. The second house may pass the measure without change, amendment, indefinitely postpone it, or defeat it just as it would do with bills originating in that house. (Sometimes identical companion bills will be introduced in both the House and the Senate. If both bills pass their respective houses, it is likely that one of the two bills will then become the primary legislative vehicle for the other house to consider and move toward final passage.)

If the House and Senate pass different versions of a bill, a conference committee is usually formed to reconcile the differences in the two versions of the bill. House and Senate leaders will appoint the members of the conference committee. The conference committee will then consider and approve amendments to the bill if the amendments relate to the original matters of difference between the two houses. If and when the conference committee resolves the differences between the two versions of the bill, the committee issues a conference committee report including an amended or substitute bill. When the conference committee report is submitted to the House and Senate, the members of each house must then vote on whether to agree to the conference report.  If both houses approve the conference committee report, the bill then goes to the governor for his signature.

The governor may sign or veto the new act or bill. If it is a budget-appropriations measure, in many states the governor can strike out certain line items while signing the act or bill. If the governor vetoes the act or bill or exercises his "line-item veto" powers, the legislature may then vote to override the governor's veto or any line-item vetoes by the required supermajority in each house. There is usually a lag time (90 days in Ohio) between the date of the governor's signature and the effective date of the new law.

Multi-Forum Advocacy
Even most attorneys who engage in legislative advocacy tend to draw a sharp distinction between litigation and legislative advocacy. Attorneys may represent a client in either forum, but are less likely to pursue a multipronged strategy aimed at achieving a client's goals through a combination of litigation, legislative advocacy, and other strategies. However, in some cases a multipronged approach can be highly effective.

For example, in 1999, the Association for Children for Enforcement of Support (ACES) filed a mandamus action in the Ohio Court of Appeals, challenging the state's failure to properly distribute collected child-support monies in compliance with federal IV-D requirements. This refers to Title IV-D of the Social Security Act located at 42 U.S.C. Sections 651, et seq., which contains the relevant federal child support statutes including various federal mandates on states that condition the receipt of IV-D federal funds for state and local child support enforcement agencies). Federal child-support statutes and rules required child-support payments to be distributed to so-called former-assistance families before the state could recoup any child support monies as reimbursement for welfare-cash-assistance benefits that had previously been paid to those families during the time they were on public assistance. The Ohio Department of Job and Family Services (ODJFS) refused to change its policy to comply with the federal requirements, and ACES then filed suit against ODJFS.

Shortly after filing suit, ACES launched a massive media advocacy campaign—triggering a series of front-page articles in the Columbus Dispatch and extensive statewide news coverage—and a vigorous grassroots lobbying effort. On a single day, over 600 ACES members and supporters called the governor's office to demand a change in policy. Both the media campaign and the lobbying efforts focused on the theme that many hardworking, but still poor, mothers who had climbed off the welfare rolls and were struggling to support their children—and their children were suffering because of the state's failure to change its policy and its disregard of federal law.

As a result, the governor and ODJFS not only quickly capitulated and agreed to change its policy, but also the governor quickly pushed legislation through the state legislature changing the pertinent statutes, and requiring local child support enforcement agencies (CSEAs) to review all IV-D child support case files retroactive to September 1, 1997, and refund to former assistance families any child-support monies recouped by the state as welfare. This result was far more favorable than the likely outcome of the mandamus case and culminated in the refund of nearly $20 million in previously collected child support monies to poor families in Ohio. Over the years, additional millions of dollars have been transferred to former assistance families in Ohio as a result of the statutory and policy changes triggered by ACES litigation and legislative advocacy.

The lesson to be learned from this experience is that multiple forms of advocacy (multi-forum advocacy) can be more effective than pursuing a narrow litigation strategy. Children's rights attorneys and their clients should be creative and strategic in planning a multipronged strategy to achieve a client's goals. It is especially important to consider utilizing multiple forms of advocacy where the client is a group or nonprofit organization seeking to effectuate systemic changes that will impact a large number of people and change government policy.

Oftentimes groups in opposition will settle a lawsuit and agree to cosponsor progressive/remedial legislation. They are sometimes worried that an activist judge may come up with a more radical solution and feel more comfortable in negotiating agreed-to language in legislation. If this happens, you usually get support from both sides of the aisle. This happened in Nevada when a lawsuit was settled in exchange for a new landlord-tenant act.

Of course, there are potential pitfalls in pursuing a multi-forum advocacy. Legislators could decide to postpone consideration of any remedial legislation in order to await the outcome of litigation, or the court may defer to the legislature to implement any systemic changes. The important thing is to consider the potential benefits and pitfalls of multi-forum advocacy, and to decide on an appropriate course of action after weighing the pros and cons of alternative strategies.

Writing Letters and Emails
Writing letters in your own words can be an efficient and effective way to influence state legislators or members of Congress. Legislators want to hear from their constituents. They depend on letters and other communications from their constituents to educate themselves about what is happening in their district and what legislation is most important to their constituents.  The legislator or his or her staff person reads every letter. Since state legislators and Congress usually receive only a handful of letters on most issues, each letter carries real power.

In writing a letter to a state legislator, you or your client should consider the following letter-writing tips:

  1. Be Personal. A personal letter receives greater attention than a preprinted card or letter. Share a personal story if possible. A story about your or your client's personal experience makes your letter more powerful. Explain how the issue or legislation affects your clients or client population.
  2. Make a Request Clearly and Concisely. Make a direct request, e.g., urging the legislator to support or oppose a bill, to propose an amendment, or to increase funding for a specific program or service.
  3. Give Information Supporting Your Position. Provide supporting facts to make the issue more concrete and understandable for the legislator.
  4. Keep Your Letter to One Issue. A letter focused on one topic has greater impact than a letter with a laundry list of issues.
  5. Keep Your Letter Short and to the Point. Be concise. One-page letters are ideal. Letters over two pages are less likely to be read by legislators.
  6. Be Polite and Respectful. Address the legislator as "Senator _______," "Representative _____   ," or "The Honorable _______."  The tone of the letter should be respectful.  Nasty or combative letters are not an effective means of communication. Don't communicate threats or promises.
  7. Organize Your Letter. The opening part should explain who you are and clearly state your position or request. The second part should give information supporting your position or request. The final part should be a brief summary and should repeat your request.
  8. Follow Up.  Call or have your client call the legislator's office and ask to speak to the legislator or the legislator's aide, mention your letter, and try to get an answer to your request that the legislator take a position on your issue.

Keywords: litigation, children's rights, legislative advocacy, multi-forum advocacy, governor's office, lobbying

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Michael R. Smalz, Robert M. Murphy, and Jane L. Habegger – January 31, 2013