Intervention unnecessary: bar associations taking sides in regulatory actions

AuthorMatthew Reid Krell
Published date01 August 2017
DOIhttp://doi.org/10.1002/pa.1622
Date01 August 2017
ACADEMIC PAPER
Intervention unnecessary: bar associations taking sides in
regulatory actions
Matthew Reid Krell
Department of Political Science, University of
Alabama, Tuscaloosa, Alabama, USA
Correspondence
Matthew Reid Krell, Ph.D. Student,
Department of Political Science, University of
Alabama, Box 870213, Tuscaloosa, Alabama
35401, USA.
Email: mrkrell@ua.edu
Interest groups participate in the political process in a variety of ways. They can lobby the legis-
lature, interact with elected and administrative executive officials, and participate in litigation
either as a litigant or an amicus curiae. But the literature is scarce in exploring how interest groups
behave when their stakeholders dissent. This study explores the actions by one interest group,
the American Bar Association (ABA), in participating in notice and commentrulemaking by
the Department of Labor where the ABA did not represent the legal profession. It finds that
the ABA engaged in astroturfing, and that their efforts were ignored by the Department. This
suggests that astroturfing may not be useful in the notice and comment rulemaking process,
because the agency's unitary status allows them to discern the centralized origin of the com-
ments. This finding is confirmed by comparing the ABA's influence on the Supreme Court in
Boumediene v. Bush, when it did represent the consensus of the legal profession.
1|INTRODUCTION
In 2011, the Department of Labor announced a Notice of Proposed
Rulemakingthat would drastically narrow the legal adviceexception
to the LM20 persuader rule(76 FR 36178). This rule requires
employers to disclose to the Department and the public any person
who communicates with workers regarding a union organizing cam-
paign at a worksite (29 U.S.C. 433[a]). However, there is an exception
for advice that allows attorney advisors to communicate with workers
without any disclosure (29 U.S.C. 433(c); 29 CFR 405; 29 CFR 406).
The Department proposed narrowing the scope of the exemption to
advice related to the legality of proposed employer actions (76 FR
36178).
The American Bar Association (ABA) submitted a comment to the
Department during the public comment period. It opened its comment
by asserting that the ABA is not taking sides in a unionversusman-
agement dispute, but rather is defending the confidential clientlawyer
relationship and urging the Department not to impose an unjustified
and intrusive burden on lawyers and law firms and their clients
(Thompson, 2011). It proceeded to argue that the proposed rule would
force lawyers to violate various rules of professional conduct (Id.) and
organized smaller bar associations to submit comments that, in
essence, said, we agree with the ABA(Harkness, 2011; Raineri,
2011; Roman, 2011).
The mechanisms that interest groups use to participate in govern-
ment policymaking are relatively well understood in their broad strokes
(Piotrowski & Rosenbloom, 2005; Furlong, 2005; O'Connor, 2005;
Hacker, 2005). But thus far, there has been very little interest in
exploring interest group participation across the branches of govern-
ment. Instead, scholars appear to treat the branches of government
as silos disconnected from one another and do not recognize that
interest group behavior in one arena has consequences in other arenas,
not least because organizational stakeholders observe organizational
behavior across government arenas, and can hold an interest group
to account for hypocritical behavior, or behavior that does not repre-
sent a stakeholder consensus. In addition, failing to represent a stake-
holder consensus can force organizations to have to work harder to be
taken seriously and can give the state entity grounds to ignore or dis-
miss organizational concerns.
This case study examines the behavior of a particular interest
group, the ABA, in an administrative forum where it arguably did not
represent a consensus of its members. It finds that the ABA put more
effort into presenting the appearance of consensus in the latter case
and notes that it failed because the agency rejected its arguments.
To put it another way, the ABA worked harder, for less success, in
the case where it had less credibility as the voice of the legal
profession.
This study is important for two reasons: first, it begins the explora-
tion of whether stakeholders can hold organizations accountable when
they act absent a stakeholder consensus; and second, it looks specifi-
cally at how interest groups' behavior changes based on the existence
of stakeholder consensus. The first issue is important because an orga-
nization that is not responsive to its stakeholders lacks the requisite
interest to present a position and claim that it represents stakeholder
Received: 19 July 2016 Accepted: 11 August 2016
DOI: 10.1002/pa.1622
J Public Affairs 2017;17:e1622. Copyright © 2016 John Wiley & Sons, Ltd.wileyonlinelibrary.com/journal/pa 1of7
https://doi.org/10.1002/pa.1622

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