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April 02, 2013 Articles

Beyond the Courtroom: Part II

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

This article is the second in a two-part series. Part I ran in the Winter 2013 issue of Children's Rights Litigation.

To get things done in the legislature, you have to have a good relationship with a legislator. Legislators are people, and people like to do business with and help those they know and like. A legislator is more likely to listen to what someone has to say if the legislator knows the person and, more particularly, is more likely to help that person than someone the legislator does not know. So you should get to know your legislator.

The first step in getting to know your legislator is to find out who your legislator is. You can find a list of legislators from all 50 states on the website State and Local Government on the Net. This website will in turn link you to each state's legislative websites. There you can find the name of the legislator in your district, contact information, and a list of the committees on which the legislator serves, and you can read the legislator's biography. Almost all state websites also have bill-tracking software that you can use to follow legislation.

Bear in mind there are two different kinds of legislators: senators and representatives (except in Nebraska, which is unicameral). The main difference is that senators represent larger districts and run every four years, while representatives represent somewhat smaller districts and are up for reelection every two years. Consequently, representatives are more accessible because they're always running for reelection, and in most states their districts are smaller.

Once you have identified your legislator, you should try to have a face-to-face meeting. You can initiate contact by simply placing a phone call to meet at the legislator's local office. Because 17 percent of all legislators went to law school, the odds are good that you will find your legislator at his or her law office in his or her hometown. If not, then you may need to do some more networking. Oftentimes a nonprofit board member will have a personal relationship with the legislator, and you can ask that person to make an introduction for you. If you do not have a contact, look through the legislator's list of campaign donors or reelection committee members. With any luck, you will find someone whom you know  and who can get you in to see the legislator. Your local or state bar association may be another resource. Ask a staff member who works with the legislative issues to assist you in making contact with your legislator.

Another way is to attend a public event where the legislator will be present. Check the newspaper or ask the local chamber of commerce for community events to see where the legislator may be. If you do meet the legislator at a social occasion, you should probably not do much more than introduce yourself, shake hands, and mention that you would like to speak with the legislator when he or she has the time to discuss important legislation to protect the best interests of children. (Human trafficking is likely to be a hot issue in most state capitols this year, so you can use that as a starting point to talk about almost anything promoting children's rights.) Then you can follow up with a phone call to the legislator's office to set up an appointment and mention that you saw the legislator and he said to call the office to make an appointment.

If you cannot meet with the legislator you can almost always meet with the legislator's aide or staff person, or with a legislative committee attorney or analyst. A meeting with a legislator's aide or a staffer who has the ear of the chair of the committee your bill has been assigned to is an invaluable resource because the committee members rely heavily on professional staff for information. Other sources to check are former legislators who often have good relationships with sitting legislators and are usually happy to make introductions for you.

If nothing else, you can make a "cold call" to the legislator. Unlike contacting a judge, contacting a legislator is not subject to ethical rules against ex parte contact. Some legislators have their home phone numbers listed in the phone book, and you can call them directly at home. Be very prepared if you try this. Oftentimes the legislator will personally answer the phone. Legislators are used to receiving a lot of "nut calls" on their home phones. (You may wonder why they simply do not have an unlisted number. Those who publicly list their numbers sincerely believe that personal accessibility is important). Your phone call may be answered by the legislator or a spouse or one of his or her children. One of the authors of this article, whose father was a state senator for 18 years, has a large amount of personal experience screening these home telephone calls and advises against calling the legislator's personal cell number even if someone gives you that number. Such calls can be very annoying, and you should be careful about calling. Whatever you do, do not abuse these calling privileges.

In preparation for your meeting, you should research your legislator. Check the website for the legislator's biography. Do a Google search. Find out what the legislator has done recently. You'll find all kinds of information concerning hobbies and other outside activities. Review the legislator's campaign literature. In Washington State, each legislator has a website with his or her state capitol and local district office address and phone number, a list of committees the legislator serves on, bills he or she has sponsored, a photo, and biography—a wealth of useful information.

When you do meet with your legislator, you should have your talking points prepared. Know what bill you wish to speak about, why the bill is important to the state, and why it is important to the legislator's district. The legislator will probably listen attentively until you finish your presentation. Do not take too much of the legislator's time; you should be prepared to make your point within 5 to 10 minutes. Be sure you have a fact sheet of some kind containing your contact information to leave with the legislator.

Meeting with a Legislator During the Legislative Session
This can be difficult but not impossible. Legislators are extremely busy and often will have several paid lobbyists camped out in their reception area waiting to see them. Do not be intimidated by the fact that you are not a professional lobbyist. When you arrive at the office, be sure to mention that you are a constituent. Some legislators have a standing policy of giving priority to meeting with constituents over meeting with lobbyists. Sometimes it is good to have another person along when you meet with the legislator. Never take a crowd—a group of two or three total persons is ideal. Unless the legislator is president pro tem of the Senate or Speaker of the House, he or she probably has a small office without much room anyway.

When you meet with your legislator, be absolutely open and honest. It is similar to speaking in court, and as you would never mislead or misstate facts to a judge, you should not do so with your legislator. You need to be remembered as a trustworthy reliable source.

If you are successful in working with your legislator, send a thank-you letter for helping on legislation. If your organization has an annual event, arrange for complimentary tickets or buy tickets for the legislator and his or her spouse to attend. Also consider honoring the legislator with an award such as "legislator of the year."

Testifying at a Legislative Committee Hearing
Legislative hearings are conducted fairly informally. They are not judicial proceedings. Anyone can testify. You do not need formal training. However, preparation is key in order to be effective.

Before the committee hearing. Generally, if you are testifying on a bill or issues and represent only yourself, you will not be required to register as a lobbyist. In the state of Washington, the Public Disclosure Commission provides the requirements for who needs to register as a lobbyist.

Prepare your remarks. Time is limited in the committee hearing, so be brief and direct. You usually do not have to provide written testimony, but the better practice is to provide written testimony or some written statement to accompany your oral testimony. Lengthy testimony should not be read at committee hearings. Committee staff will distribute copies of written testimony to members of the committee if you bring a sufficient number—one for each member and several for the committee staff. When you testify, you should summarize your written testimony. Do not read it.

Avoid duplication. If other persons will be offering similar testimony at the hearing, try to coordinate your testimony and avoid duplication. Well-organized, succinct testimony is the most effective.

At the committee hearing.

  • Be punctual. Oftentimes there is only one public hearing at which testimony is taken on a particular bill in Washington State.
  • Locate the sign-up sheet near the entrance of the hearing room and write your name, address, and whether you favor or oppose the bill.
  • Check to see if copies of proposed amendments or substitute bills are available.
  • Give your written materials to the committee staff for distribution to members.

Conduct of the committee hearing. Be present at the beginning of the hearing. The committee chair may depart from the order of bills shown on the agenda, so you cannot count on your bill going last, even if it appears last on the agenda. The chair will open the hearing on a particular bill. Generally, opening remarks will be made by the bill's sponsor, if the sponsor is present, and the committee staff will summarize the bill for members. Sometimes, however, the chair will ask for testimony from proponents and opponents immediately.

Most committee hearings are limited to two hours and may have a number of bills pending. The chair will attempt to provide each person an opportunity to testify. It may be necessary, however, to restrict testimony so that everyone is given an opportunity to express his or her opinions. You may be called to testify with others to save time.

Your testimony.

  • Begin by introducing yourself to the chair and committee members and stating your purpose. For example, "Mr. or Madam Chair and members of the committee, I am Jane Nakamura from Olympia. I am here representing myself. I support this bill because. . . ."
  • In your opening remarks, state whether you are representing other citizens or a separate group.
  • Be brief, and be sure your remarks are clear. Avoid being too technical, and do not repeat previously made remarks.
  • Be prepared for questions and comments from committee members. Don't answer a question if you are not sure of the answer. Tell the members you will send a written answer to the committee later, and then follow through.
  • Restrict yourself to your testimony. Clapping, cheering, and booing are not allowed in a committee hearing.
  • Speak from your experience.
  • If applicable, speak from your clients' experience.
  • Present only accurate facts or data, and never make up any facts or stories.

After the committee hearing. After one or more committee hearings, bills are voted on during the executive session of the committee hearing. Sometimes these are combined on the same agenda with the public hearing. No public testimony is taken during executive session. Listen carefully to hear if any amendments are offered and whether they are adopted or not. Also listen to hear if any of the members voting against the bill ask for a minority report. A vote against the bill does not automatically mean that a minority report is filed.

In Washington State, to be viable, all bills must be adopted not only by a majority of the policy committee members but also by the "Rules Committee" before reaching the floor and all members of the Senate or House of Representatives. Some bills may have to pass through the Ways and Means Committee in addition to the policy committee if the fiscal impact is significant. As you can see, there are a number of steps in the legislative process!

Grassroots Lobbying and Coalitions
Some "special interest" groups have more political clout than other groups. Advocates for children and poor people generally have fewer resources and less political influence than business associations, industry trade groups, large corporations, or large mass-membership organizations. Therefore, advocates for children and advocates for low-income people often work together in broader coalitions of low-income advocates, social-service providers, nonprofit agencies, churches, and community organizations. These groups and organizations in turn try to mobilize their members, supporters, and allies to support or oppose key legislation.

For example, in Ohio, advocates for low-income consumers, the elderly, and rural residents joined with the Communication Workers union to oppose a telephone deregulation bill that weakens consumer protections and authorizes the major telephone carriers in the state to terminate basic landline local phone service for Ohio consumers. The new coalition has staged two well-publicized press conferences, generated op-ed columns and newsletter articles, drafted talking points, conducted polling, met with newspaper editorial boards, provided extensive testimony on the legislation, and bombarded legislators with phone calls and letters. Each of the coalition's member groups has contributed its own perspective and expertise concerning various aspects and harmful effects of the legislation.

Although the two biggest coalition members—the American Association of Retired Persons and the Communication Workers—have the ability to generate massive phone calls and letters to legislators—other coalition members such as legal aid attorneys and community organizations have provided much of the relevant research, information, and testimony used to generate the negative grassroots responses. The combined efforts of the coalition members have at least temporarily stalled passage of this anti-consumer legislation.

Moreover, coalitions may evolve and grow over time. A major example in Ohio is the recent enactment of a so-called differential response law in Ohio. Under a "differential response" approach in child-welfare cases, Children Services agencies screen and access reports of child abuse and neglect and assign those cases to one of two tracks—an "alternative response" track focused on providing voluntary services to at-risk families and the traditional "investigative" approach leading to the filing of a child abuse and neglect complaint in juvenile court. Low- to moderate-risk cases are normally assigned to the "alternative response" track, and higher-risk cases are assigned to the "investigative track."

The genesis of "differential response" in Ohio lies with an Ohio Supreme Court subcommittee that was considering possible improvements to the way the state's child-welfare system handles child abuse, neglect, and dependency cases. The subcommittee developed a pilot project and laid the groundwork for implementing "differential response" statewide in Ohio by engaging with a wide range of stakeholder groups including juvenile court judges, prosecutors, defense attorneys, legal aid programs, Children Services agencies, county commissioners, educators, medical providers, and mental health agencies. Members of the subcommittee—themselves representing various stakeholders in the child welfare system—met with associations of judges, attorneys, and other stakeholders; conducted numerous focus groups; and organized a series of stakeholder meetings with key legislators. As a result, by the time legislation was introduced implementing "differential response" statewide, the key stakeholder groups were either on board supporting the legislation or had decided to take a neutral position.

Working with coalitions can be frustrating and time-consuming, and not all coalitions are effective or successful. Effective coalitions usually follow rules similar to the ones given below:

  1. Have a clear purpose. More formal coalitions also usually have a title, such as the "Ohioans Protecting Consumer Freedom" coalition that formed to oppose the Ohio telephone deregulation bill.
  2. Lay down the ground rules. Having officers may be helpful. There should be regular scheduled meetings or an agreement as to who can call meetings, organize conference calls, or call press conferences. More formal coalitions may also set forth ground rules as to how meetings will be conducted.
  3. Communicate. Maintain regular communication among members of the coalition through listservers, email updates, mailings, and shared documents. Meetings, teleconferences, webinars, and newsletters can also be used to share information, ideas, and strategies.
  4. Set realistic goals. Don't set goals or expectations too high. In addition, try to set an immediate goal such as persuading certain influential legislators to take a favorable position or obtaining certain concessions from the bill's proponents.
  5. Share the work. Everybody in the coalition should do something. At the same time, coalitions should respect the time and resources of their members and should not demand too great a commitment of time or resources from individual members.
  6. Be diverse. Different interest groups may have different, but compatible, concerns and reasons for supporting or opposing certain legislation. They may also have different areas of expertise and sources of information. A coalition is a loose legislative network, not a rigid, top-down organization.

Some coalitions are larger and more formal than other coalitions. However, even smaller and more informal coalitions should strive to follow these rules when possible.

Best Practices
Advocates for Ohio's Future is a very broad-based coalition that works to maintain vital services—health, human services, and early child care and education—at a level that maintains people's basic needs and protects the state's most vulnerable populations. The organization has developed a summary of helpful lobbying dos and don'ts that stress the importance of having positive discussions with legislators and building a foundation for future support even though you may not win a legislator's support for your immediate issue.

Do . . .

  • know the legislator's name and district
  • get to know the legislator's staff, keeping them informed
  • know the name, number, and status of your bill
  • dress appropriately and maintain courtesy
  • shake hands and maintain eye contact
  • make an appointment if possible
  • expect the legislator to be friendly
  • expect the legislator to be busy and frequently interrupted
  • commend the legislator for actions you approve
  • inform the legislator of other interest groups that support your bill
  • meet individual legislators in groups of no more than two or three
  • present your views firmly and without apology
  • present clear, concise, focused arguments that support your bill
  • end your contact with legislators on a positive note and thank them for their time
  • send any requested or follow-up information after the visit  
  • share results of the meeting with your allies
  • ask questions when in doubt

Do not . . .

  • allow the legislator to move the discussion away from your issue
  • be drawn into a discussion of other issues
  • take a threatening, condescending, or confrontational tone with legislators
  • surprise or embarrass a legislator
  • misrepresent any information about your bill or support for it
  • threaten to defeat legislators in future elections
  • be drawn into ideological (or theological) arguments
  • overwhelm the legislator with lengthy materials
  • answer questions if you do not have sufficient information
  • give a knee-jerk response to negative, unfriendly comments

Many children's rights lawyers limit their advocacy to the courtroom and administrative agencies. They represent children in child-welfare and domestic-relations cases, serve as guardians ad litem, serve on bar association committees, and sometimes bring impact litigation to effect systemic changes. However, some goals can be achieved, or can be achieved more effectively, only through legislation. Legislative advocacy can be an important tool for expanding children's rights and ensuring adequate funding for vital youth programs and services. Lawyers can make an important contribution to effective legislative advocacy for children's rights by providing research and information, communicating with legislators, and advising nonprofit agencies and grassroots coalitions.

Keywords: litigation, children's rights, legislative advocacy, coalition, lobbying, legislation, bill, public hearing, testifying, grassroots

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 – April 2, 2013