Executive Director's Report

A Persistent Challenge

The ABA Must Adroitly Tackle the Question of When to Take Positions on Public Policy

Posted Jun 24, 2006 1:52 AM CDT
By Robert A. Stein

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As many of you know, after 12 years as executive director and chief operating officer of the American Bar Association, I have decided to relinquish the helm at the end of this bar year to embark on new adventures. I have en joyed the privilege of serving our members and the profession, and have greatly valued this column as a means to highlight the important work of the association. Because I will be stepping down at the end of Au gust, in my three remaining columns I would like to com ment on some of the challenges facing the association as well as some of our accomplishments.

One of the most difficult challenges for the ABA is rooted in the tension between our role as a membership organization and our role as the national representative of the legal profession. This is the same challenge other member ship organizations face, and central to this challenge for the ABA is the classic dilemma of when to take positions on public policy issues.

The ABA currently has more than 1,000 adopted positions on matters of public policy. These policy positions deal with a range of issues, from the effective administration of justice (e.g., support for increased federal judicial compensation and for increased funding for the Legal Services Corp.) to recommendations for enactment or revision of statutes in areas as diverse as intellectual property, criminal law and taxation. While no member of the association is likely to agree with all the adopted positions, most members would be supportive of the association’s having taken positions on most of these matters. The House of Delegates, the ABA’s policy-making body, consists of more than 500 delegates representing lawyers in each of the states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam and the Northern Mariana Islands, as well as various entities within the association. Reports recommending the adoption of policy positions are submitted by ABA sections, committees, affiliated organizations, state and local bar associations, and individual ABA members for consideration by the House during its annual or midyear meeting. The House debates and votes on each policy recommendation or, in certain instances, it may vote to not take a position on an issue if it believes the issue is not germane to the association’s purposes.

In deciding whether to take a position on a public policy issue, the ABA leadership must determine whether the issue involves legal or constitutional policy on which the ABA would have unique expertise. If the issue does not require the special expertise of the legal profession, the ABA should avoid taking a policy position on it. Of course, what one member believes is a legal question may, to another, be a purely political question to be avoided.

Weighing In on Capitol Hill

It is important that the ABA speak out on matters affecting the legal profession and the administration of justice. Members of Congress and other public officials need to hear the considered opinion of the bar on these matters. The association lobbies on well over 100 issues before each Congress. And Congress listens. The ABA has been on the prevailing side of enacted legislation on which it has lobbied 85 percent of the time over the last three Congresses.

But the tensions remain. In my view, ABA members and leaders need to be sensitive to these concerns. To members who may disagree with a particular policy position, I say, “Please recognize the need for us to provide leadership on these issues, even in those cases where the ABA’s position is inconsistent with your own. Reflect, instead, on the hundreds of programs, activities and positions of the ABA that you enthusiastically support.”

And to those who are advancing policy positions, I say, “Please recognize the dilemma that may be created for members who disagree, and exercise care in advancing resolutions only where the ABA can truly make a difference, so that we do not unnecessarily offend members.” It is, after all, the great size of our membership that allows us to speak credibly for the profession.

In this way we can successfully meet this challenge and be an effective advocate for improving the administration of justice, while continuing to grow as the largest voluntary professional membership organization in the world.

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