Rethinking Legislative Advocacy by State Library Associations
The unprecedented number and nature of legislative attacks on libraries and librarians during the 2023 session should be a wake-up call to state library associations. It is time to review and reconsider our sector's approach to legislative advocacy.
The legislative process is often viewed as a series of steps: introduction of a bill, committee review, amendments, floor debate, voting, moving between chambers, and finally, passage or failure of the proposed legislation. However, this oversimplifies the process and does not account for the nuances and complexities of policymaking.
There are in fact several more steps beyond committee hearings and floor votes that are critical to effective legislative advocacy. As a sector, we must broaden the scope of legislative advocacy to include pre-legislative preparation and post-legislative actions, including potential judicial challenges. Expanding our perspectives beyond the legislature should improve our advocacy work if we understand the interconnectedness of legislative, executive, and judicial actions in policy advocacy and act accordingly.
Pre-Legislative Advocacy During Intersession
The pre-legislative or intersession period, when legislatures are not in session, provides library leaders a valuable opportunity to lay the groundwork for their policy goals. During the intersession, advocates should work on identifying issues, framing policy proposals, and garnering support before legislation is (re)introduced. This includes research, stakeholder engagement, and building a coalition of supportive groups and stakeholders.
Consider the landscape of the upcoming 2024 legislative session very carefully. What bills or legislative concepts could be introduced based on 2023? This includes bills that failed in your state and will be reintroduced or bills that are inspired by success from other states. The intersession period is critical to gathering data, case studies, and other evidence supporting your policy goals. This evidence can be used to persuade legislators and the public about the importance of your position. Likewise, the intersession period is a good time for training and capacity-building activities for your legislative, intellectual freedom, and outreach committees.
In many states, the session itself is an incredibly compressed and deadline-driven time. The intersession should be used to re-engage legislative allies and plan ahead for 2024. Library leaders should use the intersession period to build or initiate relationships with legislators, legislative staff, and other stakeholders. This is a critical time to develop or refine your legislative strategy. Your committees should be meeting to refine your policy goals, research potential legislative solutions, analyze the political landscape, and plan your tactics for the upcoming session.
In the 2023-2024 intersession, it is vitally important for state library associations to strengthen their network of allies. This could involve coordinating strategies, sharing resources, or conducting joint advocacy activities. State library leaders must use this unique intercession period to engage with a broader range of stakeholders across civil society, civil rights, civil liberties, education, the public sector workforce, and groups representing racial and sexual or gender minorities.
The intersession period is not only important for policy preparation, but it is also a unique time to engage local and statewide media outlets about your issues. Media relations is a crucial but often overlooked aspect of legislative advocacy. If bad, onerous, or potentially unconstitutional legislation is passed in 2023, library stakeholders need to describe to local media why the legislation is harmful or onerous. In many states, misinformation and even disinformation have been behind legislative proposals. In other states, the image and reputation of libraries, schools, educators, and librarians are under attack. Journalists, editors, and opinion makers need to hear from our professional stakeholders directly for us to begin to change the landscape. You may need to reestablish your organization as a reliable source of information.
Because of the unprecedented nature of legislative proposals in 2023, there has been a dramatic rise in the number of stories about libraries and librarians nationwide. Unfortunately, many of these have been in response to legislation that would undermine, diminish, or otherwise harm our sector. Media relations during this intersession should be a core part of your advocacy strategy. Just as with legislators, state library association leaders should work to build relationships with key local and statewide media. Journalists covering the Capitol are always looking for compelling stories. Legislative advocates should anticipate and cultivate new stories, case studies, or relevant data to make their issues more relatable and interesting.
Enhancing Advocacy During the Legislative Session
When the legislature is in session, the first step on the journey for any proposed bill is to be assigned to a committee. The committee to which a bill is referred can have a significant impact on our legislative advocacy as well as the form the law takes if it is passed. Committees of jurisdiction, or standing committees, are ideally composed of legislators who have a specific interest or expertise in the subject matter of the bills they review. In functional legislatures, committees of jurisdiction review proposed language, conduct hearings about proposed legislation, make amendments, and decide whether to advance the bill to the full legislative body. Unfortunately, in many state legislatures, committees like Judiciary and Education are populated by fewer and fewer lawyers and educators, respectively. It falls on library advocates to not only be library subject specialists but also to rapidly become competent in matters of public policy outside our normal purview.
It appears from several reports across the library ecosystem that in 2023, the conventions and precedents about which committee of jurisdiction should receive which legislative proposal were often ignored or irregularly applied. In reviewing the 2023 list of legislation state-by-state, library leaders should take note of which bills were assigned outside of their expected committees. There are breadcrumbs and signposts for preparing your 2024 legislative strategy. When a bill is referred to the wrong committee – that is, a committee that does not typically handle that subject matter – legislative advocates could face several potential problems. When a bill is assigned away from a relevant committee, library advocates may not have access to familiar allies. Legislators and staff on the wrong committee may not have the knowledge or interest to understand and evaluate the bill fully. The committee may be prioritizing a bill for purely political reasons. Hearings in these highly contentious settings may be abbreviated or even moot.
Working with Legislative Staff About Your Issues
Engaging with legislative committee staff is a common and important part of legislative advocacy at all levels of government, including at the state level. Staff members often have a significant influence on the legislative process. When bills are assigned outside the normal committee jurisdiction, it is even more important to consider approaching staff as well as legislators to make your argument. Because many legislative proposals in 2023 were heard in unusual committees, staff may have been outside of their professional comfort and expertise. Legislative advocates should anticipate providing a new level of technical assistance to committee staff about 2024 proposals.
Committee staff generally work closely with legislators by providing them with research and analysis and helping them make informed decisions about bills and other legislative matters. Staff members often have specialized knowledge of the committee's area of jurisdiction and play a key role in drafting legislation, suggesting amendments, and preparing committee reports.
Engaging with committee staff can be an effective way for advocates to influence the legislative process. Advocates can provide staff with information about their issue, identify problems with proposed legislation, suggest amendments, and generally make their case. Committee staff can also influence the views of legislators and the potential paths forward for legislation. Library leaders should always approach legislative staff with honesty and accuracy and be timely in their communications with staff.
Looking at the 2023 Witness List and Testimony
As we prepare for 2024, it is important for library leaders to broaden their relationships and coalitions. A key place to learn about what other organizations and stakeholders care about your issues is by reviewing committee witness lists and testimony. The 2023 legislative cycle saw many new coalitions about library issues develop nationwide. In several states, these coalitions came together spontaneously in the hearing rooms when library stakeholders met people and organizations with a strong interest or expertise in a topic. The need for the long-term viability of our legislative advocacy strategy should compel us to move beyond accidental coalitions and collaborations, however.
The intersession period is a key time to build intentional new relationships and coalitions. The witness list is a critical source of potential allies. If a potential ally seems like a good fit, learning more about them and their positions is important. This could involve reviewing their testimony, researching their organization, or even contacting them directly for a conversation. Library advocates should keep their existing allies informed about other individuals or groups who are becoming involved in your issue.
Consider the Conference Committees
When any bill moves through the legislature, it can be amended. When an amendment happens in one but not both chambers, the bill may need to go through a conference committee or reconciliation process. If the bill cannot be stopped entirely, advocates might need to focus on removing or mitigating the most problematic provisions removed or mitigated in a conference committee or reconciliation process. Significant changes can be made to a bill in a conference committee. This is often the last chance to stop, amend, or water down a bad bill.
Each legislative body has its own rules about how conference committees work. Library advocates need to understand these rules thoroughly, so they know when and how they can influence the process. This might involve reviewing the legislative rules, speaking to legislative staff, or consulting with other experienced advocates. Library advocates should aim to influence the conference committee members through direct lobbying, including organizing direct actions to contact conferees.
If there are substantial differences between the House and Senate versions of the bill, advocates should emphasize these differences in their communications with the conference committee. Likewise, media outreach and public engagement should focus on the fact that more problematic provisions of a bill were not approved by both chambers and should be removed from the final bill. In the lead-up to a conference, library advocates should coordinate their efforts with other groups or individuals who oppose the bill. Advocates should use digital tools to engage constituents to contact the conference committee members and express their opposition to the bill. This can be especially effective if the constituents are from the legislators' own districts.
Preparing for a Veto Campaign
Traditional library advocacy training has not focused on helping state library associations prepare for veto campaigns. In 2023, several bad bills for libraries, education, civil rights, and civil liberties were only stopped by a governor’s veto power. In 2024, our sector needs to anticipate veto campaigns in its legislative strategy. As a bill moves through the legislature, there are times when it may seem unstoppable. In those cases, a veto campaign should not be sudden or unexpected. It is vitally important for library advocates to understand and engage with their governor's office in the lead-up to this crucial final stage before enactment.
The governor is the ultimate decision-maker in whether to sign or veto a bill, so any veto campaign should include efforts to communicate directly with them. The Chief of Staff oversees the Governor's executive office and is a key advisor in the Governor's office. They have significant influence the Governor's decisions and can act as a conduit to the Governor. The Legislative Director or Liaison generally handles the Governor's relationship with the legislature and often reviews and provides recommendations on all legislation that reaches the Governor's desk. Likewise, various policy advisors inform the Governor's office on specific topics. Legal Counsel provides legal insights, including reviewing legislation for constitutional or legal issues. If the bill has potential legal problems, engaging with the Executive Office legal counsel is important. Finally, the communications staff manages the Governor's communication strategy and will frame the veto message.
When engaging with Executive Office staff, having a well-prepared case for a veto is important. That cannot happen at the last moment of your legislative campaign. If a veto feels likely or even inevitable, library leaders should dedicate resources and people to focus on the governor’s office pre-need. This could include framing legal arguments against the bill, policy arguments about negative implications for the state, and political arguments if the bill is unpopular among everyday voters. Being able to present a clear, compelling case can increase the chances of a successful veto campaign.
Post-legislative advocacy is a crucial part of the policy-making process, and it is often neglected in traditional library advocacy discussions. Even if both chambers did not approve more problematic provisions of a bill. In the current political climate, state library association leaders need to anticipate being involved in implementation and rules-making and carefully considering pathways to relief in the courts. Any post-legislative advocacy aims to mitigate the impact of a bad bill on the profession, the institutions, and the people you serve.
Implementation Advocacy (Rules)
After a bill is passed, there is often a substantial amount of discretion left to executive branch agencies to determine how to implement and enforce the law. This process can significantly influence the ultimate impact of the legislation. Once a bill is enacted into law, the work of ensuring its proper implementation begins. Not every law requires a rule. However, when the specifics of a law’s application are determined by rules or regulations, library advocates must participate in this rule-making process. Your State Library Association is the only expert on the work of librarians in public libraries and school libraries. In a rules or regulations process, the state library association provides comments, data, and other input to shape how the law is implemented. This process may involve public hearings by administrative agencies and consultations with stakeholders.
Participation in the rule-making process allows advocates to shape how the law is implemented in practice. Most rule-making processes include an opportunity for public comments. Library advocates should craft written comments providing their views on the proposed rules, including any concerns or suggestions for improvement. They can also encourage their supporters or constituents to submit comments. Some agencies hold public hearings or meetings as part of the rule-making process. Advocates can attend these events to voice their views, learn about the views of others, and engage with the agency officials responsible for the rules. If library advocates do not get involved, they risk allowing others to shape the rules in ways that may not align with our sector’s interests.
In certain cases, state library association leaders may decide to challenge a law or its implementation in court. In the 2022 and 2023 legislative cycles, library associations in Missouri and Arkansas are taking legislative advocacy to their end by arguing that new laws are unconstitutional and being applied in a way that violates individuals' rights. Legal challenges like this are a powerful tool for affecting policy, but they can also be risky, time-consuming, and expensive. Going to court to block the enforcement of a law or overturn provisions requires the direct involvement of qualified legal counsel who understands the complexities of constitutional and administrative law.
The timing of judicial action against a bill depends on several factors. These factors can include the bill's specifics, the likelihood of immediate harm once the bill is enacted, the specific laws and procedures in that jurisdiction, and the overall strategy of the advocates. Generally, a party or parties with standing can challenge a law either before it takes effect (pre-enforcement) or after it has been enforced. A pre-enforcement legal challenge can be appropriate if it is clear that the law, once enacted, will cause immediate and significant harm and that harm cannot be adequately remedied after the fact. A pre-enforcement challenge can seek a preliminary injunction, which is a court order that prevents the law from taking effect until the court has had a chance to consider the case fully.
A post-enforcement challenge can be appropriate if the harm caused by the law is not immediate or unclear or if there are strategic reasons to wait and build a stronger factual record of the law's true impact. A post-enforcement challenge can seek a permanent injunction, a court order that permanently prevents the law from being enforced.
Each approach has pros and cons; the best approach depends on the situation's specifics. A pre-enforcement challenge can prevent harm from occurring in the first place, but it might be harder to demonstrate the harm before it happens. A post-enforcement challenge can provide a stronger factual record of the harm, but it means that some harm will already have occurred.
A legal challenge is always a complex process and is not guaranteed to succeed. It requires tremendous courage for a state library association to begin the process. The membership may not be of one mind about the law. Consensus-building takes time, and working under the pressures that a pre-enforcement action requires may not make for good professional conversations. Given the breadth and scope of legislation in 2023, state library association leaders have a good reason to begin internal discussions about what types of legislation could prompt their legal actions. Unfortunately, there are enough salient examples of new laws that could harm the profession, our institutions, and, most importantly, the people we serve. Take the time during the 2023 intersession to convene these strategic conversations.
EveryLibrary stands ready to help state library associations with their 2024 legislative advocacy. We do more than monitor bills. We provide the digital outreach tools that support effective coalitions along with the seasoned advising and consulting you need to oppose problems and advance opportunities. Please reach out to our executive director, John Chrastka, to set up a call.