It’s election year! (You probably noticed.) Now that the primaries are all but over and the GOP presidential candidate has been (barring unexpected events) determined, the fun is about to really begin.
So as the public interest in the race starts to climb, lawyers may find themselves asked (in particular by friends and family who fall into that middle-of-the-political-spectrum undecided group that determines the outcome of every election) to shed some light on the issues of the day. People think we know something about this stuff.
And we do. That’s we should all see ourselves as part-time pro bono civics instructors.
Lawyers have a unique perspective on how our political system really works. Often, you’ll be able to spot an oblique request for help from these folks when they complain about political advertising. They know those ads are full of half-truths at best, and flat-out falsehoods at worst. And the news coverage most people expose themselves to does a miserable job of getting to the real issues that politicians, and elections-related litigation, are fighting over. I think a lot of those undecided voters suspect this is the case, but rather than spending untold hours doing research to decide whom to vote for, they seek information from someone that they are sure understands how the political gears fit together and can explain it briefly and clearly without propagandizing for one side or the other.
Politics=law (and vice versa)
The study of law is (strict legal formalism aside) the study of the history of politics, in the broad sense of that word. Despite the media’s preference for covering it like a sporting event or a “reality show,” politics is nothing more than making, enforcing, and administering laws, with elections determining who gets to show up to do that. The fact that political campaigns are more off-putting to most people than a root canal is a failure of both the media and of our educational system.
And the legal profession. Lawyers are really the only people with both the education to understand the law part of politics and and the skills to objectively describe both sides of an argument. That’s probably why people ask us what we think—they have an inkling that we can answer a question about, say, the court challenge to the Patient Protection and Affordable Care Act, a/k/a “Obamacare.”
Consider how many smart, responsible people who love America have no real idea what the Commerce Clause is, much less how this litigation relates to the Clause’s legal history. Sure, there are a lot of fans of Nina Totenberg and Jeffrey Toobin out there, but they’re in the distinct minority, in particular among undecided voters. You can help these folks out! You can explain to them, briefly and dispassionately, about the arc of the Clause’s history from the preindustrial period through today, and how the Clause has been at the center of intense political and legal controversy all that time.
And those complaints you’ll hear about political ads allow you a great opportunity to educate people about the Citizens United case. I’ve asked people if they think that the Founding Fathers believed that organizations should be able to spend money on political advertising. The response to this is usually a “yes.” Then I point out that the ads they are seeing and hearing, particulary the really nasty ones that they hate, are a direct result of Citizens United, which held that organizations can spend as much as they want, any way they want. At that point I often get a more, well, mixed reaction. Note that in my description I haven’t taken a side on the issue, but I have helped this person to frame her thinking about it. And that might lead to a closer examination of the issue, and where the candidates stand on it.
You may not want to engage people at all for fear of alienating potential clients or referral sources. And not all lawyers even follow politics. I get that.
But aren’t we supposed to ask not what our country can do for us, but what we can do for our country? It seems to me we can at least do this much.