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What
is Legislative Lawyering
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Legislative lawyering: The discipline of combining knowledge of political realities with a thorough understanding of legal issues -- to develop legislation that effectively meets one's goals and still has a realistic chance of passage, or to stop or modify legislation that is antithetical to one's goals. In the " Five Circles Theory ," a legislative lawyer has a role different from the strategist (who "runs the overall show" in getting a bill passed or halted) and different from the lobbyist (who engages in the daily effort of garnering votes from Members of Congress). She or he is the individual responsible for developing the content of the proposed legislation, or the content of amendments that may stop or effectively alter proposed legislation. The legislative lawyer must be well versed in both politics and law in order to craft the content of legislation effectively.
There is not a significant number of self-identified legislative lawyers working on the national scene. Moreover, lawyers in Washington who work on legislation tend to fall into one of two other groups. One group is composed of lawyers who are lobbyists. These lawyers are often in major law firms representing large clients and they tend to engage in strategic and lobbying work: i.e., they make the case for their client to Congressional staffers, they count and gather votes, and they often write some memos and proposed language. These lawyers usually do not themselves engage in intensive legal analysis of various bill provisions. Indeed, they are more likely to view themselves as lobbyists rather than traditional lawyers. The second group is composed of litigation lawyers who view themselves primarily as traditional lawyers and not as lobbyists. Indeed, they often are amazed by and/or recoil from the political scene. These lawyers are called in for consultation, and sometimes extensive work, on a bill that is within their area of expertise. But the strategists and lobbyists working on a particular bill sometimes discount the advice (or demands) of the litigation lawyer for specific content in the bill because they perceive the lawyer as naive about the attendant political realities -- or because the lawyer may resist accepting and working with such realities. In such circumstances, the strategist will take whatever information is useful from the litigation lawyer and simply move on. The evolution of a legislative lawyer I stumbled onto the concept of the "legislative lawyer" by playing such a role for the disability community from 1988-1990 in the development of the Americans with Disabilities Act (ADA). The concept I stumbled onto was a lawyer who could combine a rigorous knowledge of the law with a sophisticated understanding of legislative politics, and whose advice would thus be accepted by strategists, lobbyists, and Congressional staff. I didn't apply for the job of "legislative lawyer" on the ADA; I was handed the job by the strategist for the disability community. I had already been working as a lawyer for the AIDS community for about a year, had a good sense of the legislative political landscape, and had already engaged in a number of activities (such as designing creative second-degree amendments) that I now term legislative lawyering. But my work on the ADA took me to a different level. In preparation for work on the bill, I read every case that had been decided under Section 504 of the Rehabilitation Act of 1973 (about 200 cases in total) -- the legal model I knew we would be using for the ADA. I then proceeded, over the next two years, to talk to lawyers around the country who wanted changes in the new law from Section 504 to make sure I understood their particular legal concerns. During the course of these two years, I drafted different pieces of language to address particular concerns; I learned about the political realities that weighed against the demands and needs of the litigation lawyers; and I engaged in negotiations with representatives of the business community, the Bush Administration, and staff people for both Democratic and Republican Congressional Members. Sometimes I prevailed in getting the original language desired by the litigation lawyers accepted; sometimes I negotiated compromise language with the opposing party (or parties) which gave the litigation lawyers most of what they wanted, but still accommodated the political concerns; and sometimes I just lost the fight completely. Refining the legislative lawyer's role My experience working on the ADA taught me two things. First, many lobbyists, even if they happen to be lawyers, do not engage in extensive legal analysis when they work on a bill. For example, such individuals are not likely to read thirty cases to decide how a particular legislative provision should be drafted -- even if those cases might be directly relevant to how the provision should be drafted to achieve their goals or directly relevant to how that provision might later be interpreted by the courts. The decision not to read thirty cases is not because lobbyists are lazy. To the contrary, these individuals are some of the hardest-working people I have met. But there is no way these people can do their essential jobs -- that of gaining intelligence on the Hill, going to coalition meetings, working with the grassroots and media people, persuading staff people of the merits of their positions -- and still have time to read thirty cases that may be relevant to a particular legislative provision. The same is true for most staff people. Second, the lawyers who do have the time and the background to read and assimilate the thirty cases relevant to a legislative provision often have no idea about the realities of the legislative process -- and when they are informed of those realities, are often unwilling to accept and work with those realities. For example, based on his or her reading of the relevant thirty cases, a litigation lawyer may insist that a particular provision, which currently reads "ABC," must be redrafted to read "XYZ." The lobbyist or strategist, knowing "XYZ" will alienate a key Senator and undermine the possibility of passage of the overall bill, attempts to explain this political reality to the litigation lawyer -- only to meet with adamant insistence that "XYZ" is essential and only "XYZ" will work. In many cases of this kind, the strategist will ultimately tell the litigation lawyer: "we tried really hard but we just couldn't get XYZ" and the provision will remain "ABC." The fact that the provision in question could have been redrafted to read "DEF" -- which would have met the political concern of the key Senator and still have achieved 85% of what the litigation lawyer was seeking -- is sometimes never even floated as a possibility. The reason? A person who is almost as knowledgeable as the litigation lawyer about the law, and almost as knowledgeable as the strategist on the political realities, is often the best type of person to come up with "DEF." That's the person I call a "legislative lawyer." There is a final piece that contributes to my concept of a "legislative lawyer." In 1991, I came to Georgetown University Law Center as a Visiting Professor. One of the courses I taught was Legislation, a course that focuses almost exclusively on the principles and theories of statutory interpretation. Teaching that class made clear to me that the individuals who shape laws in Congress, and the judges (and clerks) who interpret these laws, often have little understanding of the rules and realities governing each other's worlds. A legislative lawyer may help bridge that gap by advancing an understanding of the rules of statutory interpretation on the part of Congressional staff and advocates, and by heightening the understanding of the realities of Congress on the part of litigation lawyers and courts. Teaching legislative lawyering at the Clinic My goals in establishing, directing, and teaching in a Federal Legislation Clinic are thus manifold. I want to teach my students how to combine a rigorous knowledge of the law (including the rules of statutory interpretation, the law concerning a specific policy issue, and a keen appreciation of text) with a sophisticated understanding of political realities. I want to give students the field experience that will allow them to see how such a combination can result in the development of creative and sophisticated legal solutions to difficult problems. In addition, I want to convey to my students the intellectual joy and stimulation I experience in engaging in this form of lawyering. Second, I want to create an understanding in the general Washington community -- the advocacy community, the Congressional community, and the Executive branch -- regarding what type of lawyer a "legislative lawyer" is and why such lawyers are a critical component of any successful advocacy effort. The way the Federal Legislation Clinic attempts to achieve these goals is by serving as legislative lawyers to public-interest organizational clients that have legislative objectives in Congress. The clients provide the expertise in strategy, lobbying, grassroots, and media; the Clinic students and staff provide the legislative lawyering services. The students receive legislative lawyering training; other advocacy groups with whom the clients work in coalition are exposed to the concept of legislative lawyering; and the clients, the coalition, Congressional staff and Members receive the benefits of the legislative lawyering work. Revised June 26, 2003 (ML) |
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