Category: Blog

Introducing a Quick Guide to LSC Funding & Regulatory Advocacy

Posted on by Kate Muñoz

 

Introducing a Quick Guide to LSC Funding & Regulatory Advocacy

 Read the Quick Guide 

Despite restrictions on lobbying, advocates at Legal Services Corporation (LSC)-funded organizations can participate in regulatory advocacy. Whether responding to a request for comment or providing information to agencies about the impact of agency practices on client communities, LSC-funded advocates can and should work with federal and state agencies on behalf of the marginalized communities they serve.

Even using LSC-funds, advocates may inform government agencies about the challenges client communities face and the impact of the rules government agencies issue on client communities.  LSC regulations permit advocacy with agencies, using LSC funds, regarding “agency practices” and the needs of client communities. LSC-funded organizations using non-LSC funds can respond to notices of proposed rulemakings and written requests for information, even making specific recommendations and stating support or opposition to the rule, if consistent with the request for comment. The hard do nots are limited and clear: do not solicit requests for testimony or analysis; do not solicit requests for participation in a negotiated rulemaking; do not attempt to influence a rulemaking or state what an agency should or should not do outside of the scope of a written request or request for comment.

CRREA Project Recommendations

Our general recommendations for LSC-funded entities largely mirror those we would give to any advocate:

  • Check what the comment asks for in deciding what you want to answer, and make clear how your information is responsive to the request. Even aside from LSC-restrictions, the agency only has to consider information that is responsive to its request.
  • Lead with facts, examples, and information rather than opinions or arguments. These are more likely to be persuasive, as well as more likely to be within the LSC regulations.
  • Tie your comments to the individual clients and specific client communities you work with. Their needs, their experiences, and their concerns should guide your comment. Be concrete. Who is affected and how? What is the scope of the impact? How many people are affected?

We’ll be talking more about these questions and other regulatory advocacy strategies at the National Consumer Law Center’s upcoming  Consumer Rights Litigation Conference this November 9-20. Registration is open until November 5.

As always, LSC-funded programs and their executive directors will want to make decisions about whether and how to engage in regulatory advocacy on the basis of all the facts and circumstances. Christopher Buerger at National Legal Aid and Defenders was an invaluable partner in creating this resource and stands ready to consult further about the details of compliance with LSC regulations. Please reach out to him if you want help in deciding whether your particular course of regulatory advocacy is within the parameters of the LSC regulations or not.

We also thank Carla Sanchez-Adams, Lorray Brown, Salena Copeland, Jane Flanagan, and Rebecca Holland for their review and guidance.

Sarah and Diane

 

CRREA Project Is Recruiting for Law Student Interns

Posted on by Kate Muñoz

 

CRREA Project Is Recruiting for Law Student Interns

Download our Recruitment Flyer 

CRREA Project is seeking interns for the Spring 2021 semester.  Will you help us get the word out?

CRREA Project has relied on law student interns since the day we launched this site.  Law students draft our regulatory advocacy materials, they conduct research that informs our reports on CFPB, and they gather input and feedback about CRREA Project materials by interviewing and engaging with all types of experts and stakeholders.  The contributions made by law students to CRREA Project cannot be overstated.

Internship Experience

We do our best to make the experience enjoyable and valuable for our students.   We endeavor to offer students flexibility to work on what they are passionate about.  We can tailor the experience to what a student needs most given their stage in law school and their career path.  Whether a student needs to leave this internship with a writing sample, a few professional contacts, or more subject matter expertise in a particular area, we work with students on their professional development goals.

The internship is fully remote, and the work schedule is determined by the student’s availability.  We have worked successfully with students in a range of time zones.

Qualifications and Preference Criteria

CRREA Project is seeking law student candidates with: (1) demonstrated interest or experience in public policy and government and (2) experience with plain language writing for a mass audience. 

We prefer to work with students who can obtain academic credit or a stipend through their law school for this experience, and who are generally available for 10+ hours per week.

How to Apply

Students should send a cover letter and resume to diane@crreaproject.org and kate@crreaproject.org.  Applicants are encouraged to apply by November 6.

Questions or Suggestions

Contact Us with any questions, and also let us know if you have any suggestions about law schools we can contact who may have particular interest in supporting their students to intern with CRREA Project.

Thanks for your help!

Diane and Kate

Introducing the Regulatory Advocacy Glossary

Posted on by Kate Muñoz

 

Introducing the Regulatory Advocacy Glossary;

Examples of Acronyms in Action 

You may find the glossary useful if you have questions about the nuts and bolts of setting up a meeting with an agency. Or the difference between an NPRM and ANPRM. Or what all these acronyms even stand for!

As we’ve developed the resources on this site, we’ve received questions about some of the terms we use to describe regulatory advocacy. We’ve created a glossary  to explain what we mean (and we link to it on the Quick Guide to Regulatory Advocacy). 

You may find the glossary useful if you have questions about the nuts and bolts of setting up a meeting with an agency. Or the difference between an NPRM and  ANPRM. Or what all these acronyms even stand for!

This glossary is a living document. As we identify new terms that need clarification, we’ll be working to add them. Please reach out if you think of something you’d like to see added to the glossary or you see something we’ve gotten wrong.

Why Should I Care About SBREFA?

The glossary explains why SBREFA (Small Business Regulatory Enforcement Fairness Act) shows up in the pre-rule stage along with the more familiar RFI (request for information) or ANPRM (advanced notice of proposed rulemaking). The Small Business Regulatory Enforcement Fairness Act (SBREFA) requires the Consumer Financial Protection Bureau (CFPB), the Environmental Protection Agency (EPA), and the Occupational Health and Safety Administration (OSHA) to take certain steps before issuing a rule that is likely to have a significant impact on a substantial number of small businesses.  Those steps include preparing materials about the proposal and reviewing those materials with a panel of small business representatives. After the panel review, a report on the panel’s recommendations is made public. The panel report must be made public, usually in conjunction with the release of the proposal.

These three agencies differ in what they make public when, but all three have mechanisms that allow for some public review of the agencies’ thinking at this pre-rule stage. Engagement at the pre-rule stage is particularly powerful and can help shape the proposal. Advocates can engage during the SBREFA process even if they don’t represent small businesses, whether by reviewing SBREFA panel materials, listening to the SBREFA panel meetings, or asking questions of the agency about the SBREFA process and opportunities for public engagement. The panel report can provide a particularly clear roadmap to likely business opposition to the rule.

An Example:  Do You Care About Financial Inclusion?  Comment by December 14th!

Right now, the Consumer Financial Protection Bureau (CFPB) is preparing for a SBREFA panel later this month  on its implementation of Section 1071 of the Dodd-Frank Act. It has published both the outline of the proposed rule it is providing to the SBREFA panel and a  high-level summary of that outline, along with other materials. Anyone can review them and comment on them. The National Community Reinvestment Coalition (NCRC) has already published an initial summary of the outline, headlined, “ A Step in the Right Direction, But Improvements Needed.”

This rulemaking has particular significance for our historical moment. Small business development can buffer Black and Brown communities against discrimination and serve to build wealth in the face of centuries of financial exclusion, but only if credit is available on non-discriminatory terms. Entrepreneurs of color are often discouraged from even applying for a loan. One study on the Paycheck Protection Program, using matched-pair testers, found that none of the tested banks encouraged any of the Black female testers to apply for a Paycheck Protection Program loan.\

Section 1071 of the Dodd-Frank Act: Making Visible Racial and Gender Discrimination in Small Business Lending

Section 1071 of the Dodd-Frank Act was meant to make visible the discrimination against small business owners based on gender or race. Section 1071 requires financial institutions to collect data on application for credit from women-owned, minority-owned, and small businesses. It also requires annual reporting to the CFPB. This data would let us see where and how discrimination is occurring. Data would help us fashion a remedy and hold discriminatory actors to account.   

The outline contains proposals the CFPB is considering to implement Section 1071, many of which could significantly impact its efficacy in protecting business owners from racial or gender discrimination. For instance, while the definition of a covered lender under 1071 is relatively broad and inclusive, the CFPB is considering exempting financial institutions “from any collection and reporting requirements based on either or both a size-based and/or activity-based threshold.” Should we be concerned about predatory behaviors by smaller lenders? What evidence do you have either way to raise to the CFPB?  

The comments submitted on the outline, as well as comments from the small business representatives at the panel, will form part of the rulemaking record.  They will influence what rule the CFPB proposes.

Conclusion

We hope this detour has helped make clear some of the power regulatory advocacy has for racial and economic justice.  The glossary is just one of our tools to help with making your regulatory advocacy easier and more effective.  Please check out all our regulatory advocacy tools and let us know what you think.

 

– Sarah and Diane

Taking Stock at CRREA Project

Posted on by Kate Muñoz

 

Taking Stock at CRREA Project

Whether you have just found us, or you have been with us since the beginning, we invite you to take stock with us of all of our regulatory advocacy materials.  Let us know how we can improve, and what you think we should do next!

With the release of the Regulatory Advocacy Quick Guide, our one page mapping tool for regulatory advocacy, we wanted to stop a minute and take stock of our first three months at CRREA Project and to share our upcoming plans.

Regulatory Advocacy Materials

Under Regulatory Advocacy Materials, we now have up:

Taken together, these materials walk you through how to engage in everything from commenting on a rule to developing a multi-pronged regulatory advocacy strategy focusing on the issues core to you and your community.  They are also, as far as we know, unique in their focus on practical tips geared to busy people.  Both Decoding the Unified Agenda: A Guide for Advocates and Decoding the Unified Agenda: A Guide for Advocates are focused on helping you translate what you know into the language of regulators.

We’ve also got a few short videos (40 seconds to just over two minutes) up on a You Tube channel of Diane earnestly explaining our core philosophy at CRREA Project.  Simply by telling our stories, conveying to regulators what we already know, we have great untapped power to change the rules that do so much to shape the possibilities in our lives and in our communities.  Some of you may have seen them on Twitter or watched them in a training.    

We expect we’ll have a longer guide on effective commenting up in the next few weeks, and there are other materials in the pipeline.  With any of these materials, we encourage you to use them, share them, and let us know how we can improve.  Our goal is to help you do more effective advocacy on behalf of racial and economic justice; we can only do that if you let us know what works and what doesn’t.  If you have been a fan of our work, consider signing up for our newsletter, using the application on our blog.

We’ve done a few trainings so far and are looking forward to our three-session extravaganza at the NCLC Consumer Rights and Litigation conference this November.  With NCLC, we are hosting a session on why and how to do regulatory advocacy, a Q&A on regulatory advocacy with former CFPB officials, and a strategy summit on economic justice regulatory advocacy.

CFPB Specific Materials

The website also has CFPB specific materials, including a  list of every regulatory action the CFPB has taken since the beginning of COVID, updated through September 15, and our rating as to whether the regulatory action was consumer-protective or advanced fair lending.  We’re in the middle of a  blog series now that is exploring the question of what the Dodd-Frank Act said about centering the voices of marginalized communities at the CFPB, what the CFPB did, and what more we can do to make sure the voices of marginalized communities are centered at the CFPB.  If we want racial justice, we have to listen to what marginalized communities have to say, and we have to act on that information. 

The need to listen to and act on the experiences and views of marginalized communities was apparent in the wake of the subprime foreclosure crisis and the Great Recession when the Dodd-Frank Act was passed.  The disparate impact of COVID-19 on Black and Brown communities, as well as Native American and immigrant communities, in terms of health, mortality, and financial well-being, has only made the need for the CFPB to center the voices of marginalized communities more evident and more pressing.

Kate and I are very grateful that we’ve been able to work so closely with Sarah Brandon, Travis Doyle, and Nikka Pascador.  Each of them has offered amazing contributions and helped us re-imagine this work.  We also couldn’t have done it without all the people who’ve been so generous with their time in reviewing materials and encouraging us.  Thank you.  We’re looking forward to seeing what the coming months bring.

 

Diane and Kate

Introducing a Quick Guide to Regulatory Advocacy

Posted on by Kate Muñoz

 

Introducing a Quick Guide to Regulatory Advocacy

Read the Quick Guide

What should advocates consider when developing a regulatory advocacy strategy? How can advocates maximize their impact?  Does it matter where a rule is in its life cycle, from pre-rule to proposed rule to final rule?  Our new quick guide to regulatory advocacy helps you map out your approach and choose the tools best suited to where you are in the process and what your goals are.

CRREA Project Recommendations

No matter what your goals are or where you are in the rulemaking process, we have a few recommendations:

  • Because agencies are required to consider evidence and weigh the costs and benefits of their rules carefully, lead with facts and information, rather than opinions or arguments.
  • While it is not always necessary to reference the law, tying in the agency’s statutory mandate can be very powerful, whether the statute that created the agency (like the Dodd Frank Act and the CFPB) or a statute that delegates legislative authority for a specific rule.
  • Finally, ask questions. You might illuminate what additional information from you an agency would find valuable or use an isolated observation to prompt the agency to conduct further investigation into a potential pattern.

This quick guide to regulatory advocacy follows the lifecycle of a rule to illustrate the full menu of opportunities to engage and work with an agency. Geared to the federal level, it is designed to help advocates map out their goals and intentionally use tools that will best influence regulators at each stage of a rulemaking.

Regulatory Advocacy in the Pre-Rule Stage

The pre-rule stage is a particularly powerful place to engage. By engaging at the pre-rule state, community groups and advocates can help set the agency’s agenda. For example, an agency may put out a request for information (RFI) to gather more information about an issue before issuing a notice of proposed rulemaking (NPRM). Comments on an RFI shape how a rule is eventually drafted and whom it protects. The impact at the RFI stage can be even greater than at the proposed rule stage because the agency can still choose to propose or not propose anything it wants. At the pre-rule stage, the agency is not yet constrained to stick to a “logical outgrowth” of what it has proposed in finalizing the rule.

We can see how significant an RFI can be in terms of setting the agenda with the Consumer Financial Protection Bureau’s current RFI on the Equal Credit Opportunity Act (ECOA). In ten short questions, the CFPB is raising fundamental questions about the future of fair lending. The CFPB asks about the treatment of disparate impact under ECOA, for example, as well as the relevance of the Supreme Court’s Bostock decision to the fair lending protections afforded LGBTQ people. These are questions of wide-reaching importance and are wide open for comment. What we tell the CFPB now will help determine whether and what rulemaking the agency proposes in the future. Our comments now help determine what we get to comment on in the future. The comments may also shape the agency’s approach to supervision and enforcement. (If you want to comment, the deadline is December 1. We have a How to Comment checklist you can use.)

Even before an agency puts out an RFI, though, advocates can reach out to the agency to discuss issues of importance to the advocate and the community she serves. This could be a statute that has been passed but not yet implemented (like the regulation of Property Assessed Clean Energy lenders under the Truth-in-Lending Act) or a concern about implementation of existing regulations. This could be a question about research the agency is doing. For example, the CFPB noted in a blog that it was looking into the “Black-White gap in student loan defaults.” Advocates working on racial equity or student lending might want to inquire what the agency’s research shows and how it plans to address the gap. Arranging a meeting or submitting a letter can draw the agency’s attention to and help frame its understanding of an issue.  With sustained and coordinated effort, pre-rule stage advocacy can move an issue onto an agency’s regulatory agenda.

Thanks for Feedback

We thank Carla Sanchez-Adams, Linda Jun, Sarah Lamdan, Marissa Jackson-Sow, and Kelly Cochran for their invaluable input and feedback on this guide. We know you will have questions or may want to know more about some of the terms, so we’ve created a  glossary to go along with it. We’ll have more to say on that soon. In the meantime, we hope this framework is useful for your advocacy—please let us know your thoughts!

Sarah and Diane

 

Congressional Review Act

Posted on by Kate Muñoz

 

“The Congressional Review Act: The Basics”  

Read the Quick Guide 

We’ve received questions about how a new Congress and president could use the Congressional Review Act to overturn some of the previous administration’s rules.

 

CRA Basics PDF

 

As Election Day 2020 approaches, we’ve received questions from regulatory advocates about how a new Congress and president could use the Congressional Review Act (CRA) to overturn some of the previous administration’s rules, whether regulatory or deregulatory. There’s good reason to be wondering about this: the CRA’s “lookback” provision may well put rules published now within the next Congress’s reach to overturn using the fast-track procedures available under the CRA. To help answer some of these questions, we’ve developed, “The Congressional Review Act: The Basics.” It covers some of the most challenging issues in the CRA, including:

  • When its fast-track procedures can be used;
  • How far back the CRA can reach; and
  • What rules can be overturned. 

We also touch on different tactical uses of the CRA, such as an omnibus use of the CRA and how it can prevent substantially similar rulemakings in the future. 

Please check it out, and let us know what you think!

 

Nikka and Diane

Introducing “How to Comment” Quick Guide

Posted on by Kate Muñoz

 

Introducing “How to Comment” Quick Guide  

Read the Quick Guide

How to Comment is a one-page guide to the basics of influencing the process and rules you care about by submitting a formal comment.

 

How to Comment PDF

 

Federal agencies issue thousands of rules every year, and these affect our lives in even more ways. Luckily for those who want to have a say in rulemaking, agencies are required by law to consider suggestions and concerns you may have about many kinds of rules. This happens through a process called “notice and comment” rulemaking. How to Comment is a one-page guide to the basics of influencing the process and rules you care about by submitting a formal comment. It covers: 

  • How to find a rule to comment on;
  • What to pay attention to when reading a proposed rule;
  • What to put in your comment; and
  • How to submit your comment.

We hope this will be useful in your advocacy. Please check it out, and let us know what you think!

 

Nikka and Diane

Working With Cost-Benefit Analysis

Posted on by Kate Muñoz

 

Introducing “Working with Cost-Benefit Analysis as an Advocate”

Read the Report

Using the language of cost-benefit analysis to explain how people are harmed by unjust policies makes it more likely that your argument will be heard, understood, and judged credible and relevant by regulators.

If you care about the rules agencies issue that governs everything from worker safety to clean air to payday lending, you’ve probably encountered the idea of cost-benefit analysis. Whether you want to comment on an agency’s proposed rulemaking, meet with congressional staff to discuss the impact of a rule on your community, or otherwise influence the regulatory agenda, you can maximize your impact if you reframe your arguments and strategies in the language of cost-benefit analysis.

As an advocate, you have a competitive advantage when it comes to cost-benefit analysis. You know how regulations play out in real life and how one rule interacts with a host of other laws, regulations, and local social and economic practices. All of this is relevant to determining what the costs and benefits of any given regulation are, and all of it is information regulators often can’t get without your engagement. With the right framing, you can turn your intimate knowledge of your community into a compelling point for the agency to consider.

So where do you begin? How should you frame your arguments? What strategies will make your input effective?

To make this process more accessible for advocates, we’ve drafted Working with Cost-Benefit Analysis as an Advocate, a guide which outlines the main components of cost-benefit analysis and highlights strategies advocates can use when engaging in regulatory advocacy. Working with Cost-Benefit Analysis as an Advocate covers:

  1. Requirements for Agencies: The main points of Executive Order 12,866, which sets forth the basic requirements for cost-benefit analysis for most federal agencies, and some information about how regulatory agencies not governed by EO 12866 may approach cost-benefit analysis.
  2. Common Alternative Approaches for Regulations: A list to help anticipate, address, or support other routes for the agency to take.
  3. Common Considerations in Cost-Benefit Analysis: Definitions and examples of concepts that are frequently used in cost-benefit analysis.
  4. Strategies to Make Cost-Benefit Analysis Work for Advocates: A range of ideas for identifying and sharing relevant and helpful information.

Working with Cost-Benefit Analysis as an Advocate is 7 pages long, written in simple language with examples, and is designed to be accessible for any advocate interested in shaping the rules agencies issue.

Check it out and let us know what you think!

Travis, Diane, and Kate

Decoding The Unified Agenda

Posted on by Kate Muñoz

Introducing “Decoding the Unified Agenda:  A Guide for Advocates”

Read the Report

Decoding the Unified Agenda will help you to decide whether to commit resources and engage with the rulemaking process.

If you’re trying to track what rulemaking federal agencies are doing, you’ll want to familiarize yourself with the Unified Agenda. Twice a year, the federal government publishes the Unified Agenda, which provides an update on all the rulemaking planned for the next six months across the federal government. If you want to understand or influence the rulemaking process, from the Department of Agriculture to the Surface Transportation Board and all the agencies in between, the Unified Agenda provides essential information on what agencies are doing.

But we know from personal experience that reading the Unified Agenda can sometimes be a baffling experience.

What does it mean when an agency says something is in a pre-rule stage? And how can you tell an essential initiative from one that is just a formality?

We’ve drafted Decoding the Unified Agenda to answer those questions and others, hoping that it will help make your advocacy easier and more effective. Decoding the Unified Agenda will help you to decide whether to commit resources and engage with the rulemaking process. It covers the following topics and “how-tos:”

  1. Identifying Important Issues: How to spot rules in the Unified Agenda that implicate significant matters of policy.
  2. Assessing Your Potential Strategic Contribution: How to determine whether you have access to information, stories, or other data relevant to the potential rulemaking.
  3. Making Your Plans: How to establish the amount of time you have to gather and provide information to the agency.
  4. Pushing Your Agenda: How to move forward if a rulemaking related to your campaign is absent or stalled.

Decoding the Unified Agenda provides a straightforward account of how to figure out what an agency is doing using the Unified Agenda and how to use it to plan your advocacy. Decoding the Unified Agenda is written in plain, simple language, with lots of examples, and headers. At just over 11 pages, we think you should be able to find what you need quickly.

Please check it out, and let us know what you think!

Kate, Nikka, and Diane

Why Do Regulatory Advocacy? For Legal Services Attorneys and Others

Posted on by Kate Muñoz

Why Do Regulatory Advocacy?  

For legal services attorneys and others

If you’re a legal services attorney, as I was for many years, you’ve got more pressing client needs than you can meet.  Your days are full, and there is always another client waiting.  You probably got into the job because you felt a calling, although some days it can be hard to see if you are making a difference.  Injustice abounds, and your tools can feel limited.  This can be true for all kinds of grassroots organizers, social service providers, and advocates—the world is crying out for change and our time and energy is limited.

And, right now, that cry for change and those pressing client needs are more pressing than ever.  COVID-19 has laid bare in the most stark and chilling terms the life-destroying impact that generations of racism, racial inequality, and poverty have had.  African Americans, Latinos, and Native Americans are all dying at vastly disproportional rates.  We’ve seen violent suppression by the state of legitimate calls to address centuries of oppression.  There is a renewed urgency to our collective work for racial and economic justice.

So, why?  Why do regulatory advocacy?  Rules take forever to get written, and, at the federal level, we are facing an administration bent on removing regulatory protections.  The President’s tweets, if not the agencies’ agendas, indicate implacable hostility to fair housing and fair lending, at least as those terms have been commonly understood. 

Here’s why.  Regulatory advocacy allows us to tap into power.  The work of implementing and maintaining legislative victories happens in the regulatory agencies.  Regulatory agencies set the rules for who can live in public housing, the terms on which hungry children and their families can get food stamps or public assistance, and who can apply for asylum and how.  To take the specific core building blocks of economic justice and access to credit, one agency, the Consumer Financial Protection Bureau controls  the rules about how credit reporting is done, what happens when you can’t pay your mortgage or payday loan, and the terms on which that mortgage or payday loan are made, including whether and how a lender can discriminate against you.  Regulatory advocacy, quite simply, lets us help set the framework in which all the rest of our work and advocacy for justice and equity takes place.

Regulatory advocacy also leverages what we know and do well.   Regulatory agencies are required by law to ask us—all of us—what we think the impacts of their proposed regulations will be and what better approaches to solving the problem exist.  Anyone who works representing legal-services clients will know intimately the impact of laws and regulations on their clients and client communities.  And that detailed, specific, concrete knowledge is exactly what regulators most often struggle to get and are required to consider—if we give it to them.

And here’s why, too.  Remember how I earlier mentioned the racial disparities in death rates from COVID-19?  We only know that because a lot of people did a lot of regulatory advocacy.  Early on, in the pandemic, demographic data collection was spotty.  It wasn’t until June 4 that the U.S. Department of Health and Human Services required reporting of demographic data along with COVID-19 test results.  Advocates pressed the government at the county, state, and federal level to collect and release demographic data.  And they were successful.  Having those numbers out there in the public has changed the narrative and enabled further advocacy to address systemic imbalances.

There are always avenues for regulatory advocacy and always a need for regulatory advocacy. If we don’t do the regulatory advocacy, other people will, and the stories they tell will not be the ones we would tell, and the results they get will not reflect the actual lived experiences of our communities. 

In the coming weeks, we’ll be rolling out on this website a range of documents to try to help support your work in regulatory advocacy.  We hope you’ll subscribe to receive our work and let us know what works for you and what doesn’t.