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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

An Elegant Balancing Act: Lawyers as Legislators

Not a few persons trained as lawyers have found themselves called to make law as well as interpret it, and they bring a special perspective to the legislative process.  The role of legislator also poses some unique challenges for lawyers, especially where Minnesota encourages legislators to have a career outside politics.

Lawyers have had a long and storied history as legislators—from Aaron Burr and John Quincy Adams to Marco Rubio and Elizabeth Warren—not to mention Abraham Lincoln, Richard Nixon, Bill and Hillary Clinton, and Barack Obama. In the just-concluded 113th Congress, more senators listed law as their profession than any other occupation; in the House, it came in third. Two of the most diametrically opposed figures in that chamber in recent years are lawyers—Keith Ellison and the recently retired Michele Bachmann, both of whom \rose through the ranks of the Minnesota Legislature. Closer to home, many of the highest-profile Minnesota legislators have been lawyers, from Wendell Anderson to Tim Pawlenty.

This session, 26 of the 201 legislators at the Minnesota State Capitol list law as their profession. While that number has dropped in the past decade, it’s still a healthy representation, compared with 32 business owners, 24 teachers, 9 farmers, and 4 accountants.

What accounts for so many lawyers in the legislature? Is there some magical bond that links the two professions (other than a healthy ego, a requisite for both)? It’s simple, says Bryan Lake, a lobbyist for the Minnesota State Bar Association and himself a lawyer: “Legislators make laws, and lawyers argue about laws.” So the two can easily go hand in hand. Which raises the next question: Is there something about lawyers that make them better legislators than, say, accountants or farmers or business owners?

Advantage–Lawyers

One former legislator thinks so. “Lawyers or law is the best training for being a legislator outside of actually being a legislator,” says Fritz Knaak, who served for nine years as a Republican in the Senate. Most other lawyers demur, saying that there’s nothing inherently better (or worse) about lawyer-legislators compared with legislators from other walks of life. Nonetheless, a clear consensus emerges that legal training brings with it some distinct advantages, especially for new legislators first setting foot in the Capitol.

“When you’re drafting statutes all day, you really need some lawyers,” says Kathleen Blatz, a Republican legislator from 1979 to 1994, who went on to become the chief justice of the Minnesota Supreme Court before stepping down in 2006. “Because of my legal training, I had an added dimension; you look at things through a different prism.”

Lawyer-legislators can hit the ground running at the Capitol in one particularly important respect: the ability to understand legislative language—no small feat given the dense verbiage. “The lawyers at the Capitol are enormously helpful, especially on technical issues,” says Lake. “They’re worth their weight in gold.

“A lot of the work I do deals with very technical legal bills, for example, transfer on death deeds. Most legislators don’t understand what that means; lawyers can usually at least remember the real property class they took in law school.” Such technical bills grow into the kind of low-profile, unsexy statutes that most of the public isn’t aware of—and doesn’t understand either—ask the average homeowner how much of that fine print they read and comprehended at closing. They nonetheless can make people’s lives easier (or harder) in very concrete ways that affect their daily lives.

“Secondary benefits” can also accrue, says Sen. Scott Newman (R–Hutchinson), who served in the House in the early 2000s, left for six years, and then was elected to the Senate in 2010. Though Newman no longer practices law, he has had decades-long and varied careers as a lawyer. “In my case, I was involved in criminal defense and was a civil trial specialist; [I] was also an administrative law judge, so with my skill set, I had some understanding of civil law and rulemaking.” The latter is an area that is little understood, he says.

But it can be important. Sen. Torrey Westrom (R–Elbow Lake), also cites his knowledge of rulemaking as a distinct advantage; an 18-year legislative veteran, he wryly refers to administrative law as a “fourth branch of government.” Even if the statute is carefully written, he says, “once you pass something, then the rules can go in directions [maybe you] don’t like.”

He cites a rulemaking bill from two sessions ago, which was set to be expedited. In this case, he says, the bill was “sold to the body as noncontroversial, but many of us were concerned about giving more rulemaking authority to government agencies. Rules affect everyone’s life, with fines and penalties and orders.” Westrom prevailed upon his peers to make sure the bill didn’t move through the process without a more careful review.

So there are the arcana, which can be bewildering, if not outright intimidating, to nonlawyers. Then there’s the big picture—as in the U.S. Constitution. As often as it’s invoked as a rhetorical club in political arguments, a thorough knowledge of it takes study, and it can be easy for nonlawyers to overlook numerous issues. Lawyers have a bit of an advantage here, having been required to take constitutional law, notes former Sen. Ellen Anderson, a St. Paul DFLer who served from 1993-2011. That knowledge—like that which lawyers summon from their memories of real property class—can help identify major problems: “to see if something just doesn’t fly” Anderson says, (Knowing the Constitution can also save time, notes Lake. “You’ll hear discussions at the Capitol where legislators are suggesting possible measures—‘Why don’t we do this or that?’ If a lawyer is around, they can say. ‘That’s a great idea but it’s unconstitutional.’ If no one’s around to say that, the whole idea can mushroom and go on for days.”)

Intangible Benefits

So lawyers enter the legislature with a leg up on the process. But legal training also provides other, less tangible, benefits. For one thing, says Knaak, the notorious rigors of law school help develop the sheer stamina required to be a legislator—“the drudgery, as often as not, of having to go through proposed statutes. [As a lawyer,] you’re used to reading and correcting.”

Developing that kind of endurance can also help legislators stay committed to bills that may take years to shepherd through the process, says Sen. Bobby Joe Champion (DFL–Minneapolis). He carried the expungement bill that was passed last session, but he knows almost all successful legislation is the result of something “people have been working on for years,” he says. He was gratified to see expungement pass on his watch, of course, but he knows he owes the bill’s success to many—“Even though I think I’m fabulous, I know I’m not that fabulous,” he says with a self-deprecating laugh.

Legal training also helps with critical thinking. “That’s really important,” says Rep. Carly Melin (DFL–Hibbing). “Lawyers are used to interpreting.” It’s an automatic consideration, she says, for lawyers to ask themselves how a statute will be interpreted by a court and by attorneys. “It’s helpful to have the real-world experience on how statutes will be interpreted in a court of law,” as well as help suss out possible unintended consequences.

Advocate & Adversary

Making the leap from lawyer to legislator can also be a relatively easy transition. If lawyers’ remit is to zealously represent their clients, legislators often must zealously represent their cause; as Champion puts it, “You have to be willing to speak truth to power, to put an opinion on the table.”

“Persuasion is rewarding,” says Westrom. “A lot of legislation is working one on one with other legislators, or making a compelling floor speech to a body that often may have their minds made up going into the chamber”—and a succinct, focused, persuasive argument can help change minds, he says.

Newman takes a nuanced view of those roles, distinguishing between the advocate role of a lawyer and that of a legislator. “My role as legislator is to enact laws that benefit the public in general,” he says, and he has no desire to be an attack dog in presentation. “But I will say that when I get into committee and am asking questions of someone testifying, I do know when my question is not being answered.” At that point, he says, he will, “in effect, go into cross examination mode, and push until I get an answer to my question.” (He is quick to point out, however, that’s a last resort—“you usually get more information by being nice.”)

The flip side of advocacy, however, is knowing when and how to negotiate, “soft skills” any lawyer worth his or her salt has developed. “It’s great to be able to debate,” says Ellen Anderson, “but that alone isn’t enough; you’re not going to pass bills until you learn what other people’s concerns are. You can’t be adversarial to be successful. You have to find compromise and build coalition.”

If anything, she continues, “I think the law tends to be more about winners and losers. Politics is more about trying to find a win/win. You can’t make everyone happy all the time, but you can try to serve multiple purposes and interests, so it’s not a zero-sum game—it’s one of the goals of good public policy.”

And perhaps paradoxically, a law practice can provide invaluable experience for how to find common ground with adversaries. That’s because, at least with a certain kind of practice, lawyers have dealt with a wide range of cases, and all kinds of people. That breadth of experience can give them insight into a wider range of issues—and the people who grapple with them—than are encountered by other professions with a more restricted clientele. Knaak has worked in a fairly small practice, and, he says, “I saw it all. Lawyers are on the front line” of whatever issues are bubbling up in society.

By the same token, as he’s dealt firsthand with problems his clients have faced, Knaak has found that his practice has been “a fairly rich source of ideas for legislation.”

Similarly, Rep. Debra Hillstrom (DFL–Brooklyn Center), who works as a prosecutor in the Anoka County Attorney’s Office, drafts legislation in areas that she deals with in her “day job”—and even changes laws she’s previously passed. Hillstrom, who entered law school after she had been elected to the legislature, carried a statute on financial exploitation of vulnerable adults. “Then I became a lawyer, and started applying it,” she says. “I was able to see what we got right the first time, and what needs to be addressed.”

In fact, she discovered that defendants were able to avoid paying restitution if the victim—often someone frail and elderly—passed away before trial. She first took the issue to her boss, and, with his blessing, then carried a new bill so that the family of the victim could recover restitution if the victim died before the legal process was completed.

Pitfalls for Lawyers

But if lawyers can navigate the sometimes byzantine byways of the legislature more easily in some respects, their legal experience can also trip them up if they’re not careful. While any citizen-legislator is likely to come up against a conflict of interest at some point—a business owner making law on a sector she’s involved in, or that affects a company she does business with, for example—lawyers’ special obligations under the Rules of Professional Conduct can compound such problems when they do arise. Conflicts of interest arise very seldom, say both Knaak and Newman, but when they do, the response is simple: “You just have to stand up and recuse yourself.”

As a prosecutor, Hillstrom doesn’t face the same possibility of conflict of interests, but even she is always careful. “I represent the public, but I’m always really clear about who I’m representing when I speak—whether I’m speaking as a prosecutor or as a legislator.” When she brought up the restitution issue she had discovered in the course of her job, her fellow legislators could have decided to have someone else carry it—“and that would have been OK,” she says. “Disclosure is the most important piece.”

Lawyer legislators may face a more subtle obstacle: their image in popular culture. Carly Melin has found herself fighting a perception that lawyers aren’t “average middle-class people,” she says (although, as Torrey Westrom points out, everyone’s glad to have one around when they need one). That can be a disadvantage in a political campaign, when it’s important for people to feel they can connect with you, she says.

(That perception has even spilled into Capitol chambers, according to an apocryphal story, which has former longtime Sen. Bob Lessard (Independent–International Falls), a well-known outdoorsman, wearing a tongue-in-cheek badge declaring “I am not a lawyer”; some lawyer-legislators allegedly countered with badges proclaiming “I am not a fishing guide.”)

But perhaps the toughest problem lawyer-legislators face is simply keeping up a law practice. Blatz, one of nine kids, recalls how her father, Jerome Blatz, also a legislator, practiced law while he was in the legislature. But the session was shorter, she notes, and held only every other year. She went to law school after being elected, and counts herself lucky that she was able to practice law while also working as a legislator. Popham Haik, the law firm she chose, was willing to accommodate her legislative schedule, perhaps because Wayne Popham had himself been a legislator. But even though she served in the legislature a generation after her father, “times were different,” she notes, and even then, it was a delicate balancing act.

Minnesota’s treasured principle of valuing citizen-legislators is reinforced by measures that can help lawyers maintain a practice, including a law that requires employers to allow time off to serve in the legislature, says Hillstrom. Nonetheless, she counts herself lucky that she has some flexibility in her office; during the session she charges cases via telecommuting.

Many lawyers don’t have that luxury, however.  “Some jobs you can sort of turn off and turn on, go on leave. It’s hard to do that when you’re representing clients. And when your clients need you, they need you,” Anderson says.

Knaak maintained a practice while at the legislature, and is glad he did it. Still, he says, “the year I decided not to run for election, billings quadrupled. Not doubled—quadrupled.”

And Newman, after keeping up his practice while serving two terms in the House, decided to retire from practice in 2010, when he was elected to the Senate. “I had been working Monday through Thursday at the legislature, then squeezing in my practice on Friday through Sunday. I felt like I could do a bad job at both, or a good job at one.”

Trying to juggle a law practice and lawmaking can take its toll personally as well, says Knaak, wreaking havoc on marriages and families. (Both Ellen Anderson and Kathleen Blatz had children while they were in the legislature. They both managed to make it work, but Anderson remembers pushing strollers through the halls of the Capitol during late-night sessions. “Pretty much everyone at the Capitol got to know my son,” she laughs.) More seriously, however, combining two jobs that aren’t known for family-friendly working conditions can be more than many want to take on.

Knaak thinks those difficulties have contributed to the drop in the number of lawyers serving in the legislature: “The demands are just too great,” he says bluntly. Nonetheless, the profession continues to be well-represented at the Capitol. What, then, continues to draw them into a job that offers long hours on evenings and weekends, low pay, and certain criticism?

As with most life decisions, it’s a complex mix of motivations, says Blatz. “People are genuinely inspired to serve,” she says, “and there’s nothing more deeply cool than representing your town in the legislature.”

Personal goals—ambition, if you will, plays a role. Intellectual curiosity is another attraction. “I love the law, and serving in the legislature was an interesting thing to do,” says Blatz. “It was a fun thing to do.” Similarly, while Anderson says she saw her job as a legislator as a natural extension of her work as an advocate, “I also enjoy the intellectual side of it. It’s super-interesting.”

Caught the Bug?

For those lawyers not ready to run for office, there’s good news: Numerous opportunities exist for lawyers to be involved in public policy. Many staff positions at the Capitol may require people with legal training, says Anderson, to do the legal analysis on potential legislation. Lobbying is another avenue, which Anderson describes as “like being an advocate for clients, only you’re not in the courtroom.”

But if you get elected, warns Knaak, watch out: It can be addicting. “It’s malarial. Once you get that bug … all of a sudden you realize the country may not be going to hell, but it would be much, much better if you were in charge. You can be in remission, spend years out of office. Then the day will come, and your fever hits 103, and boom, you’ve gotta run for office.”


Minnesota Lawyer-Legislators – 2015

(listed alphabetically)

Rep. Susan Allen (DFL–Minneapolis)(District 62B) 

Rep. Jon Applebaum (DFL–Minnetonka)(District 44B) 

Rep. Joseph Atkins (DFL–Inver Grove Heights)(District 52B) 

Sen. Bobby Joe Champion (DFL–Minneapolis)(District 59) 

Sen. Richard J. Cohen (DFL–St. Paul)(District 64) 

Sen. Michelle Fischbach (R–Paynesville)(District 13)

Sen. Melisa Franzen (DFL–Edina (District 49) 

Rep. Mike Freiberg (DFL–Golden Valley) (District 45B) 

Rep. Debra Hilstrom (DFL–Brooklyn Center)(District 40B) 

Rep Melissa Hortman (DFL–Brooklyn Park)(District 36B) 

Sen. Ronald Steven Latz (DFL–St. Louis Park)(District 46) 

Rep. John Lesch (DFL–St. Paul)(District 66B) 

Rep. Tina Liebling (DFL–Rochester)(District 26A) 

Rep. Carly Melin (DFL–Hibbing)(District 6A) 

Rep. Joe Mullery (DFL–Minneapolis)(District 59A) 

Sen. Scott J. Newman (R–Hutchinson)(District 18) 

Sen. Julianne E. Ortman (R–Minneapolis)(District 47) 

Rep. Joyce Peppin (R–Rogers)(District 34A) 

Rep. Dave Pinto (DFL–St. Paul)(District 64B) 

Rep. Dennis Smith (R–Maple Grove)(District 34B) 

Rep. Paul Thissen (DFL–Minneapolis)(District 61B) 

Sen. David A. Thompson (R–Lakeville)(District 58) 

Rep. Jean D. Wagenius (DFL–Minneapolis)(District 63B) 

Sen. Torrey Westrom (R–Elbow Lake)(District 12) 

Sen. Charles W. Wiger Sr. (DFL–Maplewood)(District 43) 

Rep. Ryan Winkler (DFL–Golden Valley)(District 46A)


 

Judy Arginteanu is a freelance journalist. She previously covered Minnesota courts for the St. Paul Pioneer Press.

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