State Bar of California California Bar Journal
Home Page Official Publication of the State Bar of California March2009
MCLE Self-Study
You Need to Know
Trials Digest
Contact CBJ

Fewer lawyer-lawmakers: Does it make a difference?

By Diane Curtis
Staff Writer

(Click to Enlarge)

During seven of State Treasurer Bill Lockyer’s 25 years in the California legislature, he spent two, three or five nights a week going to classes at McGeorge School of Law. The career politician, who was an assemblyman, senator (including Senate President Pro Tem) and attorney general before being elected treasurer, decided to write legislation by day, get a legal education by night (“I didn’t sleep,” he says) and ultimately join the State Bar, mostly because it was a promise he had made to his mother. But it had not gone unnoticed by Lockyer that the many lawyers in the legislature had significant influence and often held leadership posts.

In 1971, almost half of the state’s lawmakers — 58 of 120 — were lawyers, but the numbers have been steadily declining, hitting what is believed to be an all-time low in the current session: 21 attorneys active in the State Bar — 15 in the 80-member Assembly and six in the 40-member Senate. That’s a drop from 48 percent to 18 percent. In addition, one legislator has a license to practice in Hawaii and three others have law degrees but no licenses.

Even by the time Lockyer — who chaired the Senate Judiciary Committee for a decade — became Senate President Pro Tem in 1994, he noticed the dwindling numbers and the difficulty of filling the Judiciary Committee with practicing attorneys, which was a loss, he says.

“There’s a skill set of being able to identify and parse issues, some language skill and negotiation practice and expertise that are useful,” Lockyer says, adding that he believes his legal background made him a better legislator.

Former Republican Senator Dick Ackerman, who is an attorney at Nossaman LLP in Orange County, agrees that legal training is very useful in the legislature, especially regarding analyzing issues and language, whether they have to do with insurance, health or crime. Otherwise, lawmakers must rely too much on staff for analysis, he says.

“I think it definitely matters if there are lawyers in the legislature,” concurs State Bar President Holly Fujie. “Lawyers understand how laws are interpreted by the courts and by lawyers and how a single word in a statute can make an enormous difference in the way that it is interpreted. Lawyers can anticipate problems with statutory language and help to avoid them. When lawyers draft statutory language, they are aware of terms of art and of usage and can make the language clearer.”

Assemblymember Dave Jones, D-Sacramento, a lawyer and former chair of the Assembly Judiciary Committee, says the declining number of lawyers in the legislature “has had a big impact on the legislature’s support for and understanding of the judicial branch and the civil and criminal justice systems.” That lack of understanding has led to inadequate resources for the courts, he said. Jones has been a leader in introducing bills to help unclog court logjams and improve efficiency by adding court interpreters and judges, increasing legal services and overhauling the conservatorship program. In earlier legislatures, he says, when there were more lawyers, there was an immediate understanding of the need to provide adequate funding for the judicial branch. “It’s a lot harder now,” he says.

Assembly Judiciary Committee Chairman Mike Feuer agrees that the “paucity of lawyers in the legislature has some important consequences.” A number of lawmakers, he says, voted against bonds for court construction because of the Supreme Court’s decision supporting gay marriage. “In general, that approach reflects a lack of understanding about how important the independence of the judiciary is,” Feuer says. He, too, believes lawyers have a better idea of how to construct a bill so that its purpose is clear and stands up to scrutiny.

There are varying opinions on the reason for the decline in the number of lawyers.

Fujie thinks it has to do with term limits. “Before term limits, a lawyer would forego his/her career path as a practicing lawyer because there was a true career path in the legislature — you progressed up the ranks in committees and in leadership,” she says. “Now, because of term limits, your career path in the legislature is only as long as the number of allowed terms in the Assembly or the Senate — not very long.” Even the best politicians have to constantly be thinking of their next move and whether or not another effective politico will also be running, a common occurrence as the six-year limit in the Assembly and the eight-year limit in the Senate roll around for a number of politicians at the same time. “It’s not a very secure career,” Fujie says.

Bruce Cain, a political scientist who was director of UC-Berkeley’s Institute of Governmental Studies before he went to Washington to head UC’s Washington Center, thinks the professionalization of the legislature had something to do with the decline in the number of lawyer-legislators. After the legislature went full-time in 1966, the legislature saw an increase in members who work in other fields, such as trade union officials and teachers, whose full-time jobs had previously prevented them from running for office, Cain says. Lawyers had been able to work part-time and also parlay their political jobs “into professional credit or value — getting more clients, more visibility, becoming a rainmaker for their particular firms.”

When political jobs came with a full-time, if modest, salary, more people could run. “The professionalization of the legislature took away some of the advantage for lawyers,” Cain says, as did tougher conflict-of-interest rules that grew through the ’70s, ’80s and ’90s and prevented lawmakers from cashing in on their status and doing such things as representing clients before state agencies or boards.

Cain says he doesn’t know if the number of lawyers in the legislature makes it a more or less effective body. “There’s no question that lawyers bring with them some drafting skills and sometimes some bargaining skills that have always been very valuable for legislatures,” he says. “If the question is how many lawyers do you need in the bunch to be able to do that, I don’t know if we as political scientists have any answers for you.” The problems the legislature faces currently have more to do with political incentives, in the form of threats from caucuses to stay in line, the need for more money from interest groups to run for office and partisanship in both parties. “Legal skills are valuable to have in the legislature, but even a lawyer is going to be subject to those pressures if they want to stay in office,” Cain says.

Dan Walters, political columnist for the Sacramento Bee who has covered the Capitol for 34 years, also says it’s difficult to determine what effect a lack of lawyers has on a legislature producing what he says is a decline in the quality of legislation. “It’s hard to separate out cause and effect,” he says, adding that term limits may have as much of an effect as anything. But Walters notes that lawyers are not always on the side of doing what’s in the best interest of California citizens. Walters did an exposé in the ’70s of a handful of attorneys who used their district offices as their law offices, including, in some cases, having their district staff also work as their law office staff.

Still, lawyers see the benefits their brethren bring to state government. Lockyer, Fujie, Ackerman and Feuer lament the lack of lawyers to translate and refine concepts both verbally and in legislation, something that Lockyer said was routinely done in the past. And Feuer says legislative leaders sought him out to help mediate a dispute over environmental legislation. “Had I not been a lawyer, I would never have been asked,” he says.

Lockyer notes that with term limits, the legislature isn’t going to produce its own lawyers, as it did when he was both going to law school and working as, first an assemblyman, then a senator. “I’m the last person in history to do that because no one serves in the legislature that long anymore.”

Contact Us Site Map Notices Privacy Policy
© 2024 The State Bar of California