Increasing the number of lawyer-legislators begins with an understanding of campaign finance regulation.

• Author: Ferguson, Cleveland, III

[Picture your favorite comedian at the local improv.]

[Spotlight to center in 5,4,3,2,1. Spotlight on.]

Have you heard the one about the politician and the cow?

A politician was campaigning in a rural area.

Outside a ramshackle house, he saw a young man milking a cow. He approached the man, ready to make his pitch for a vote.

Just as he was getting started, an old man called from inside the house. "Luke, get in the house. And who is that guy you're talking to?"

"Says he's a politician, Pop," Luke said.

"In that case, you'd better bring the cow inside with you." (1)

How about the one about the lawyer?

Q: What do you call a lawyer gone bad?

A: Your honor.

Q: What do you call a judge gone bad?

A: Senator. (2)

[Fade to black. Spotlight off. Houselights up.]

**********

Over the years, the idea of being a politician or dealing with one has, for some, become an unpleasant concept in American popular culture. These attempts at humor typify an unsettling view of some politicians and lawyers. It can make a lawyer say, "Why bother?" or "I'll leave the legislative stuff to the Bar." Despite the premise behind these sentiments, a return of the lawyer-legislator is vital to the political process. Legislatures are weighing some of the most far-reaching, ideologically driven policy choices affecting modern government--from budget shortfalls and immigration policy to health care and education crises to widening trade gaps and homeland security concerns. (3)

While neither the quality of lawyering nor the process of making law is monolithic, among the aims of virtually every law school is to train its students to develop independent (and ethical) professional judgment through some process consisting of legal writing, common law synthesis, statutory interpretation, policy analysis, and clinical skills-training through rigorous conditions. (4) All of these skills serve clients, courts, and reduce overall transaction costs to society. Common law synthesis, for example, not only leads to an understanding of the law on behalf of the paying client, but also, as an officer of the court, will aid the lawyer in assisting the understanding of judges in how the law should be applied. Statutory interpretation will aid the attorney in drafting agreements in a manner that will result in fewer negotiations ending in unnecessary litigation as opposed to consummated deals, because the drafter will be in a position to understand what the law is and how the prescriptions, proscriptions, and prohibitions contained in legislative language affect business relationships.

The understanding of policy as reflected through regulation, executive order, or other official declaration empowers the advocate to more accurately predict how the practical effects of choices made in government affect the constituents they represent before they occur. Daily application of this skill-set is in part what persuades many to believe the juris doctor is the most diversified of all post-secondary degrees. (5) While that proposition may be debatable, the process of study in law suggests the lawyer-legislator is uniquely qualified to digest the many perspectives behind competing positions, articulate both the main and counter arguments, and persuade others to enact legislation for the benefit of society with effective, achievable harmony than any other profession. (6) That said, the number of lawyer-legislators is in decline and at a time where relying on the Bar and its committees and sections may have only limited effect on legislative advocacy. (7)

Decline in Lawyer- Legislators

In the 1970s, lawyers comprised approximately 25 percent of all state legislatures in the United States. (8) Today, the number has been reduced to about 15 percent. (9) Individually, some state legislatures have seen even starker declines. For example, more than half the lawyer-legislators in Indiana's General Assembly left or resigned by 2002. (10) By the same time the Arkansas Legislature was down to 14 percent; Wisconsin and Maryland legislators were at 11 percent; and Idaho had been reduced to seven percent. (11) According to the National Conference of State Legislatures (NCSL), these numbers are still declining.

It can be fairly stated that lawyers were the primary social architects of this nation. (12) Of the 55 delegates who attended the U. S. Constitutional Convention, a.k.a., "the Founding Fathers," 35 were lawyers or had legal training. (13) These politicians generally enjoy an esteemed place in American history both as icons in their respective states as well as for establishing the framework for this country. (14) With more than 100 million voters turning out for the 2004 election cycle, the public appears to be reenergized in participating in the election process in greater numbers than the recent past. As more people vote, lawyers should continue to give them more choices by becoming candidates.

Some Reasons for the Decline

Today, about one in five members of the Florida Legislature make his or her living as lawyers or has graduated from law school. (15) Other lawyers have offered any number of reasons why they do not run for elective office: "You can't make any money in elective office." (16) "Campaign finance rules keep changing." (17) "Dealing with the press is too much of a burden." (18) "Negative campaign advertisements don't make the process worth it." (19) "It takes too much money to run for office." "The public does not care one way or the other." (20)

While these may reflect key concerns for deciding whether to run, once the commitment is made, the prospective lawyer-legislator should learn the rules for doing so.

Some commentators suggest hiring an attorney and an accountant as the candidate's first act, as campaign finance violations are among the most unnecessary mistakes a campaign makes. (21) It is also helpful to understand the policies undergirding these rules so the system of campaign finance reform becomes less innocuous and more familiar in terms of organizing a campaign in a manner that does not neglect the potential supporter in the process. Therefore, the scope of this article will focus on the objection of money used in the election process, the basic rationale of campaign finance rules, the public disclosure requirements, some practical tips to deal with the rules, and end with an exhortation to lawyers to run in greater numbers for political office.

Campaign Finance and the Influence of Money

Whether one decides to be a candidate on federal or state (and in some cases municipal) level, it does take a significant amount of money to run for office. (22) For this reason, some have described money as the "mother's milk of U. S. politics." (23) Others have suggested that money is speech in an election and, therefore, cannot be regulated. (24) Left unregulated, however, can lead to money being used improperly in and for campaigns. Such abuses have led to any number of campaign finance exploitation. Election scandals from Boss Tweed's Tammany Hall to Watergate, (25) fuel sound bites such as the famous statement attributed to Mark Twain, "I think I can say, and say with pride, that we have legislatures that bring higher prices than any in the world." (26) Those sentiments also served...