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There is a considerable difference between making the law and applying it. Making the law is not about reaching a favorable result based on a particular set of facts. It is, instead, about
making the case for why a certain word or concept is worthwhile and socially acceptable as compared to the alternatives.
Clearly, we, as lawyers, can make this case, whether in
support or opposition to a bill, and make it quite effectively by, among other things, keeping in mind some of the following.
Understand the Issue
Things rarely go as
smoothly as you would expect. It is amazing where opposition to a bill can come from and the form it can take. The only way to prepare for this is to understand the issue as thoroughly as
possible, minimize unintended consequences, and listen to the concerns of potential detractors.
Similarly, when you have concerns with a pending bill, you should operate on the
assumption that a good deal of thought has gone into it. This is not to suggest that any amount of thought can make a bad bill good, but it does generally mean that a superficial analysis
and a generalized argument in opposition will neither be appreciated nor persuasive - no matter the source.
Understand the Process
There is an art to passing or killing a
bill. A thorough understanding of the process is as important, if not more so, than any substantive knowledge or argument you can advance. This means that you need to know what everyone's
role is, how things really get done, what is doable, where the bridges and bottlenecks are in the process, and, most important, when to speak and when to keep quiet.
Understand Your Role
An advocate's role at the Legislature is not to dictate or degrade, but to educate and persuade. No one likes an outsider who acts like a know-it-all, is
long-winded, or tries to talk over everyone's head. Your task is to establish your credibility and make your case in the limited time you have, keeping in mind that, by and large, the
legislative arena is based on relationships and a general desire to find workable solutions among competing interests. More than any other group, we, as lawyers, need to play carefully to
our strengths without putting people off. Remember that while the people you run in to may not be legally trained, they generally have good contacts, subject matter expertise, and years
of built-up institutional memory.
Know Your Opponents
Your most important audience will not be with legislators, allies, or government officials. It will be with the
opponents of your bill. If you can work out a solution with them, there is very little that you can't accomplish on the Hill. If you can't, then it will be important that you understand
their position and give them credit where it is due as you take your case forward.
Find Allies
It's hard to overstate how important this is. Anytime you can combine your
lobbying strength and contacts with the right ally, it can do nothing but help your cause. In doing this, however, you can never expect someone else to carry your water. Still, the more
momentum you can create, the better.
Be Creative
One of the most enjoyable aspects of the legislative process is the ability to change the law to make way for a good
idea. There really is no limit to what you can do as along as it is constitutional, financially feasible, and sellable.
Be Diplomatic
Finality is not one of the
objectives or strengths of the legislative process. You can kill a bill this year only to have it back for as long as there is one legislative sponsor willing to give it life. You have to
be careful in what you do and say because it can always come back to haunt you. After all, in politics, you never know when this session's friend will be next session's enemy and vice
versa.
Be Concise
Legislators are constantly bombarded with information. They just don't have the time or propensity to listen to long, complicated arguments - no matter
how well reasoned they might be. They need to know whom you represent, the bill number, the sponsor, the location of the bill, your position, and why - all in 60 seconds or less. If they
want to know more from you, they will ask. This requires a great deal of preparation and clear thinking. The same goes for written materials. They must be concise and on point. You will
almost always get extra time to make your case if you have a solution to propose, especially if you've worked it out with the other side.
Get to the Right People
For
every issue, there is a group of players made up of agency officials, legislators, and stakeholders. Find one and they can generally lead you to the rest. Find none and they may very well
combine against you, irrespective of the merits of your idea.
Keep the Big Picture in Mind
The Legislature is a very fluid environment that starts with a lot of posturing
and generally ends up with things falling within a certain range of reasonableness. Getting too caught up in a particular moment or issue can cause long-term damage to relationships,
reputations, and interests. While there are definitely times to fall-on-one's-sword, it is critically important to know when and, more important, how.
How a bill is drafted can be
just as important as how it is advocated, especially since we all have to live with the finished product. Here are some things to keep in mind.
Different Process
The process for passing a bill is different than the process for drafting it. It is equally important to understand both.
Legislative Drafting Manual
Before drafting
legislation, familiarize yourself with the Legislative Drafting Manual available on the web at www.le.utah.gov. The Manual is written by the Office of Legislative Research and General
Counsel ("Legislative Research") and is the authoritative guide to drafting legislation in Utah.
Working With the Sponsor
Selecting a sponsor is the single most
important decision you can make. Consideration should be given to the willingness of the sponsor to actively advocate the bill, the sponsor's relative political power, and the sponsor's
general understanding of the underlying issues. The sponsor's job will be to lead the bill through the process as you continue to do all of the leg work in educating legislators and
responding to detractors.
Working With Legislative Research
Once you have a sponsor, the sponsor will open a bill file with Legislative Research. The bill file will then
be assigned to a drafting attorney. The attorney will work with the sponsor and anyone else approved by the sponsor to see drafts or be part of the drafting process - make sure you've
been approved.
Legislative staff members are capable and professional. They know the process, have subject matter expertise, and can be very helpful - especially as you work with
the sponsor and come to appreciate the unique role of and extreme pressures placed on nonpartisan staff.
The drafting attorney is required to put a constitutional note on a bill
before it is introduced. Usually, the note says the bill doesn't have any obvious constitutional concerns. Sometimes, the note opines otherwise. If you disagree with a note, you should
direct your concerns to the drafting attorney, remembering that this is the one area of legislation that falls outside of the political process and into the professional judgment of those
who serve as legal counsel to the Legislature. In any event, you should not overreact to a constitutional note. They are rarely, if ever, the deciding factor in a bill's success or
failure. Instead, they serve as an important avenue of communication between the Legislature and its lawyers.
Fiscal Note
Money is the root of all evil because it is also
the root of everything else - including legislation. After a bill is drafted and approved by the sponsor, it is sent to the Legislative Fiscal Analyst's Office for a fiscal note that
describes how much the bill will cost state government and the private sector if passed. Just about any fiscal note, in the current environment, can kill a bill - a critical fact that
needs to be taken into account in drafting and lobbying.
Grafting Into the Law
The most difficult aspect of drafting legislation is to make sure that what you are adding
to the law is consistent with what is already there. You must realize that drafting legislation is not like drafting a stand-alone contract. You must figure out where your idea fits into
the existing statutory framework and how to make everything work together. Special care should be taken when offering an amendment to a pending bill inasmuch as amendments are generally
drafted with much greater haste and perhaps less overall thought than the bill itself.
Precision Drafting
You must choose your battles wisely in the legislative arena.
The last thing you want is for your opponents to be able to attack the language of your bill rather than its merits. The best way to counter this is by drafting your bill as narrowly and
as precisely as possible.
Avoid Legalese
In the end, it doesn't do you a lot of good if you are the only person who knows what was "intended" by some highly
technical and convoluted language in a bill. After all, if the language is ever challenged, there is no telling what a court may rule. If you are dealing with a complex area of the law,
it is better to have a good definition section and to liberally break concepts down into subsections.
Intent Language
The general rule is that intent language should be
avoided because well-drafted legislation should speak for itself. Even so, a couple of exceptions to this rule have developed over the years.
The first is intent language in the
general appropriations bill. This intent language is commonly used and is very important because its gives executive branch agencies specific directions on what is expected of them in
operating the agency with the money appropriated. This kind of intent language essentially has the full force of law in the eyes of the state agency to which it applies.
The second
is intent language read on the floor of the House or Senate and "spread on the Journal." This language is generally the product of competing interests that have reached a
compromise and want to memorialize certain aspects of that compromise in the record of the Legislature - more, perhaps, to keep each side honest than to use in future litigation.
The third is intent language in the form of an uncodified section of the bill itself. This is a new development that gives a sponsor the ability to express the intent behind a bill
without that language actually becoming part of the Code. This can be helpful in trying to educate possible opponents of what is really intended. It can also become a distraction or
lightning rod if not done right.
Common Drafting Conventions
The Legislative Drafting Manual explains all of the common drafting conventions. At a minimum, you should
have a good understanding of:
- the different parts of a bill; e.g., long title, short title, sections affected, uncodified sections, notes, etc.
- the words used to explain what is happening to the sections included in a bill and their significance; e.g., enact, amend, renumber and amend, repeal, repeal and re-enact
- how subsections operate on the same and different levels
- the precise use and meaning of common drafting words; e.g., "shall," "may," "may not," "or," "and," "including," etc.
- how the code is organized into titles, chapters, parts, subparts, sections and subsection.
Lastly, lobbying, like other practice areas, has its own unique set of pitfalls and challenges. It never hurts to engage or associate with someone who knows the ropes, can size things up,
and hit the ground running.
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