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Adminstrative Advocacy 101

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Overview

What is Administrative Advocacy?
Difference Between Legislative and Administrative Advocacy
Why is it important?
Federal Opportunities for Engagement
New Proposed Regulations for Title IX
Writing and Submitting a Public Comment

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What is Administrative Advocacy?

“Part Two” to legislative advocacy
Influence the ways that laws are implemented and enforced

Demand adherence to existing laws
Exists at the Federal, state and local levels

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Legislative advocacy involves trying to influence which proposed pieces of legislation do or do not become laws. However, having laws on the books is only half the process. While legislators get to determine what the language of the law is, a variety of different agencies and individuals decide the details of how those laws are implemented and enforced, and get to fill in any ambiguities that may exist. Administrative advocacy involves identifying who the people making these decisions are and influencing that process. For example: as part of a legislative advocacy campaign against state funding for CPCs, you might try to influence legislators to vote no on a budget that provided funds for CPCs. As part of an administrative advocacy campaign, after that budget with the funding had passed, you might try to influence employees at the Department of Public Health who have some discretion over which organizations get those funds and what the requirements are to apply for funding. Additionally, sometimes there are laws on the books that routinely don’t get enforced, or get enforced in ways that harm particular communities disproportionately. Administrative advocacy could involve demanding a change in implementation. Opportunities for administrative advocacy exist at the federal, state and local levels.

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Difference Between Legislative and Administrative Advocacy

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	Legislative	Administrative
Timeframe:	Before a bill is passed	After a bill becomes law
Who:	Legislators and their staff	Administrative employees, board members, and appointees
How:	Meetings, testimony, memos, talking points, information sharing	Meetings, memos, information sharing, public comments on proposed rules and regulations, testimony
Goals:	Favorable legislation	Favorable regulations, rules, bulletins, FAQs, Executive Orders, guidance, informal assurances

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Why is it important?

Negative Legislation - Damage control & harm reduction

Positive Legislation - Prevent inaction/ineffective implementation and enforcement

Expands opportunities to influence state governance without counting against lobbying limits

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If you’re dealing with the implementation of harmful legislation, administrative advocacy allows you to impact the way in which the law is executed so you can minimize its negative impact. To do this, you identify which areas of the text of the legislation allow for administrative discretion, and press the relevant decision makers to use this discretion in the least harmful way. For legislation that could potentially have a positive impact, administrative advocacy provides an opportunity to make sure that its impact isn’t blunted in the execution. This could mean making sure relevant communities are included, assessing whether the law is having a discriminatory impact as executed, or otherwise ensuring that it fulfils its intended purpose in a meaningful way. For example, programs intended to increase access to reproductive healthcare may use gender specific language, or exclude people who are not cisgender women. Through administrative advocacy, you could pressure the agencies in charge of the program to use inclusive language and adopt policies that address the needs of trans people and people who exist outside the binary. And finally, if you work at a 501c(3) organization, you can use administrative advocacy as a way to influence government action without counting against your lobbying limits.

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Federal: What is the Administrative Branch?

“Fourth Branch” of the Federal government
Implements and enforces federal laws
Often headed by political appointees and staffed by nonpartisan employees

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We know from middle school that the federal government has three branches - legislative, executive and judicial. But as laws and government functions have gotten more complicated over time, the executive branch and the legislative branch have delegated some of their responsibilities and authority to create a “fourth branch,” which takes up much of the work of implementing laws. This includes agencies that you hear about in the news, like the CDC, Department of Education, Department of Justice, Department of Homeland Security - basically any government entity you hear described as an acronym. For the majority of agencies, the acting president gets to appoint the agency head and other major roles with senate approval. The remainder of the employees at these agencies are regular employees who retain their jobs even when the presidential administration changes.

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Federal: What do Federal Agencies do?

Use specialized knowledge to implement and enforce laws

Gap filling through rules and regulations

Gap filling through guidance and other documents

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Congress is empowered to make laws under the Constitution, but they are not the ones who are responsible for seeing those laws through to execution. For example, if Congress passes a law requiring power plants to use the most effective technology available to filter their emissions, the legislators themselves aren’t the ones who identify what that technology is and what exactly individual plants must do to comply with the law. Delegation of power to agencies allows people with specialized knowledge and expertise to take the text of the law and implement it on the ground - continuing with the power plant example, the EPA may be empowered to dictate what the specific technological requirements are and create a monitoring and enforcement regime to make sure plants are in compliance. This is especially important for agencies that deal with technical and precise subject matter that legislators are unlikely to be educated about.

Because laws are only so long and contain a limited amount of detail, agencies often need to fill in specifics or gaps in order to implement them. To do this, they draft rules and regulations. For these to become effective, agencies must adhere to a set of procedural rules that allow for review and input from stakeholders, the public, and other agencies. In addition to the these rules and regulations, agencies also issue guidance, letters, memos, or other documents outlining their policies for the implementation of specific legislation. Each of these levels offers an opportunity to assert influence as an advocate.

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Federal: Rules and Regulations

Notice and Comment process allows for input from the public

This process can be used for legitimate feedback or as part of a broader strategy
Example of a Proposed Rule

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Newly proposed rules created by agencies are published in the Federal Register, where members of the public and interest groups can review them and submit public comments. These comments can identify issues with the rule, suggest ways to improve them, or can be used strategically to slow down the process. For example, during the Trump administration, many federal agencies used the rulemaking process to exclude trans people from federal programs and protection. Knowing that there was pretty much no way the administration would take constructive criticism that would be favorable to trans people, organizations used the public comment process to flood the agencies with responses and slow them down considerably. With the administration change, there are more opportunities to offer constructive suggestions for improvement. For example, if you follow this link, you can see an example of a proposed rule on the federal register website. This one is from early in 2021, it’s the Biden administrations regulations for the Title Ten program. Title Ten is a federal reproductive healthcare program that distributes federal grant money to healthcare providers, and sets certain guidelines they need to follow in order to qualify for funding. The Trump Administration version was absolutely horrific in RJ terms, so this version was a big improvement. Even with that improvement, SPARK (and almost every other RJ organization) still had criticism and input on the new regulations. If you look to the left of the screen, there’s a toolbar with a speech bubble option, which you could click to submit a public comment, or view the comments left by other people and organizations. The comment period for this regulation is closed, so you can’t leave new comments anymore. Agencies may also hold public hearings as part of their notice and comment rulemaking process, at which individuals and organizations can give testimony on the proposed rule or just be present to show support or opposition.

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Dept. of Education Proposed Title IX Regulations

Title IX is a federal law that prohibits discrimination on the basis of sex in schools or other educational programs that recieve federal funds

This proposed rule is 190 pages long and covers a lot of ground

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Dept. of Education Proposed Title IX Regulations

Explicitly recognizes discrimination on the basis of gender identity, sexual orientation, and sex stereotyes as sex discrimination

Ensures that trans and gender expansive students can participate in sex-segregated activites consistent with their gender identity

NOTE: The Department explicitly states that they will issue separate and more detailed guidance on trans student participation in sports

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Protections for students who are pregnant or parenting, including provisions for lactation

Requires schools to investigate student-on-student harassment that occurs outside of school

Adopts a broader definition of sexual harassment

Like I mentioned before, the regulations are almost 200 pages long and cover a lot of ground, but these are some of the major changes. What we are focusing on in our comment is the explicit inclusion of trans and gender expansive students under the new policy, as it is the most controversial and has been getting the most pushback from conservative groups. Please note that while the proposed regulations suggests that trans students should be allowed to compete on sports teams consistent with their gender identity, the Department of Education explicitly says that because the issue is so complicated, they are planning to issue specific guidance on this at a later date. You are free to talk about this in your comment if you want, but just know that there is more to come in that area. (Pause for questions)

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Useful Resources for Comment Drafting

Detailed breakdown of the proposed regulations can be found at https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm-chart.pdf

Comments range from a few sentences up to many pages - write as much or as little as you would like

Write from personal experience if you feel comfortable doing so

Express straightforward support for the explicit inclusion of sexual orientation and gender identity in anti-discrimination provisions

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I’ll drop this link in the chat before we move on to the instructions for submitting, but if you are interested in a more detailed and technical breakdown of the proposed regulations, the Department of Ed created this chart that breaks it down without you having to read 200 pages of text. We also want to encourage you to share personal stories if you feel comfortable doing so, because a lot of people who oppose the proposed rule just simply don’t know anyone who will be affected by it and it can be really helpful to humanize the issue. Finally, please write about anything in the regulations that you have an opinion on, but we hope that you all take some time in your comment to just say outright that you support including antidiscrimination protections for gender identity and sexual orientation across Title IX because that is getting a lot of pushback and we want to have a unified voice in support of those changes.

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Public Comment Process

Go to https://www.federalregister.gov/documents/2022/07/12/2022-13734/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal
Click “Submit a Formal Comment” in the top right corner
Write your comment
Fill out contact information

For comment category, use “community organization,” “civil rights,” “student,” “teacher,” or another category that you feel describes you

Submit

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Formatting Suggestions

Introduce yourself - who you are and why this matters to you

Note: You will be asked for your name when you submit, so please do your own risk assessment when it comes to what personal identifying information you include

Include top line messaging in your introduction

Ex. “I strongly support the Department of Education’s inclusion of sexual orientation and gender identity in the proposed regulation”

Separate the issues you are commenting on or the points you are making into separate paragraphs or sections with a clear central message

End with a concluding paragraph or statement that restates your sub-points and topline messaging

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These are some formatting suggestions, but your structure will vary depending on how much or little you want to write. An effective comment will have an easy to follow structure, make it clear who is speaking, and make it easy to identify what they are asking the agency to change or keep in the proposed rule. I generally try to map out my main points in the introduction, clearly state which point I am elaborating on in the body of the comment, and then at the end tell them what they just heard summed up in the conclusion. The goal is to make the reader feel smart and leave them with no doubt what your point of view was and why. And just as a digital safety note, please be aware that these comments are posted publicly so just be thoughtful about any personal information you include - for example, saying you are a student in Georgia is probably ok, but saying you are an undergraduate in the sociology department at GSU is more of a risk. Just be sure to do your own risk assessment depending on what other information about yourself you include in your comment. Your lived experience is absolutely expert knowledge that you can use if it’s relevant, but your safety is always more important.