October 2009
Article I of ACTEC’s bylaws affirms that it is one of ACTEC’s purposes “[t]o improve and reform probate, trust and tax laws, procedures and professional responsibility.” An important ACTEC activity in pursuit of that purpose is the preparation and submission to government decision-makers of analysis regarding subjects within ACTEC’s expertise.
On October 14, 1996, the Board of Regents approved a Statement of Policy on Governmental Relations, reproduced in Exhibit A. The gist of the Statement of Policy was to affirm ACTEC’s commitment to law improvement, expressed in its bylaws, and to establish a dichotomy between social, economic, or political objectives (“political objectives”) and evaluation of how any particular measure serves political objectives and affects the simplicity and stability of tax administration (“technical” issues). The policy holds that ACTEC’s expertise extends to technical issues but does not extend to political objectives. Accordingly, the policy permits and encourages ACTEC comment on technical issues but forbids comment in the name of ACTEC on political objectives.
On March 9, 2009, after a year-and-a-half study of ACTEC’s governmental relations policy by a task force formed for that purpose, the Board of Regents reaffirmed the 1996 policy as appropriate to today’s legal and professional environment. In reinforcement and elaboration of ACTEC’s policy, an illustrative selection of principles applicable to government submissions is reproduced in Exhibit B.
Most of the work on ACTEC government submissions will be done by ACTEC’s various committees. Before being submitted to the government, a proposed submission must be reviewed by the Washington Affairs Committee and approved by the ACTEC President upon the recommendation of the Washington Affairs Committee. The Washington Affairs Committee will be represented for this purpose by one or more of its members designated by its chair. The current members of the Washington Affairs Committee are Ron Aucutt (chair), Ed Beckwith, Ellen Harrison, and Beth Kaufman. The President may also conclude that a particular submission should be reviewed and approved by the Board of Regents or by the Executive Committee acting on behalf of the Board of Regents.
To encourage the consideration of factors that are important in ensuring compliance with the Policy on Governmental Relations and ensuring the quality and effectiveness of government submissions, the form reproduced in Exhibit C should be used for seeking approval to submit comments to the government. That form, for example, in items 12 and 13, specifically asks for identification and discussion of the improvements in the law the submission will encourage, the reasons the submission will not be “political,” and the “political” objectives the submission assumes.
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EXHIBIT A
STATEMENT OF POLICY ON GOVERNMENTAL RELATIONS
(Approved by the Board of Regents on October 14, 1996)
This Statement of Policy describes the circumstances under which the American College of Trust and Estate Counsel (the “College”) should or should not seek to influence the enactment and modification of statutory law, the promulgation and modification of regulations and rulings of administrative bodies and the making of judicial decisions. For convenience, this Statement of Policy refers collectively to all such laws, regulations, rulings and decisions as “rules of law.”
A. Governing Principles
1. The College possesses a high degree of technical expertise in its areas of professional interest. Consistent with a statement of purpose of the College in Article I of its by-laws, the College should make this expertise available “[t]o improve and reform probate, trust and tax laws, procedures and professional responsibility. . . .”
2. The expertise of the College does not extend to the social, economic or political objectives (“political objectives”) of rules of law. Therefore the College should avoid commenting about any such objectives.
B. Subsidiary Principles
The Governing Principles establish a distinction between technical expertise and political objectives. Maintenance of the distinction will require a
1. The College may comment about how best to achieve a political objective but shall not comment about whether the College approves or disapproves of any political objective.
a. Political objectives are established by legislators and reflected in legislation. The purpose of the regulations and rulings of administrative bodies and the decisions of courts is to implement or interpret such legislation, not to establish independent political objectives. To the extent that the College believes that any such regulation, ruling, or decision reflects a political objective which does not have a basis in a statute or in the legislative history of a statute, the College may comment on the lack of legislative basis for such political objective.
b. The College generally will not comment about tax rates. However, a question about tax rates need not relate solely to political objectives. As an example, rates of income tax that apply to trusts affect (i) the extent to which taxpayers use trusts to defer imposition of income tax and (ii) the extent to which complex rules (such as the “throwback rules”) are necessary. These aspects of rates have implications for complexity and, therefore, are nonpolitical aspects that are appropriate subjects for College comment.
c. A comment is not classified as a comment about a political objective solely because the comment may benefit or disadvantage persons who may or may not be Fellows or clients of Fellows of the College.
d. Examples
(1) The College will not address the political question of whether the transfer tax system should favor any particular type of property (for example, family farms or other family businesses) relative to any other type of property. Similarly, the College will not address the political question of whether the transfer tax system should apply without regard to the nature of the property that is transferred.
(2) If the political objective of a rule of law is to favor a particular type of property (for example, family farms or other family businesses), the College may comment about how best to accomplish the political objective.
(3) If the political objective of a rule of state law is to permit a surviving spouse to claim a portion of the property of a deceased spouse, the College may comment about how the definition of the pool of property against which the claim can be made (as for example, whether it includes certain assets, such as lifetime gifts and trust estates of revocable trusts) can affect accomplishment of the political objective.
(4) The possibility that a taxpayer can transfer property during life at a value (for transfer tax purposes) lower than the value (for transfer tax purposes) at which, if the taxpayer were to die, the taxpayer could transfer that property at death presents both (i) a political question of whether the system should favor lifetime transfers and, assuming that it should, (ii) a technical question of whether the system is designed best to accomplish the political objective. The College may comment about whether a rule of law effectively promotes the political objective.
(5) Views about treatment of unrealized appreciation at death and about the use of gifts to remove property from the transfer tax base can have technical, as well as political, aspects. The technical aspects are appropriate subjects for College comment.
2. The College may comment about how a rule of law affects tax administration, including how it simplifies or complicates the law, and how it affects stability of dispositive instruments and certainty of result.
C. Corollary Principles
1. A Fellow who is engaged, or knows of an engagement by the Fellow’s firm, to influence a government decision on an issue should not participate in preparing any College comment or other position with respect to the issue.
2. A Fellow should not permit the interest of a client to cause the Fellow to support or oppose within the College a proposal that otherwise the Fellow would not support or oppose within the College.
3. According to ABA Model Rule of Professional Conduct 6.4, “[W]hen the lawyer knows that the interests of a client may be materially benefited by a decision [of an organization involved in reform of the law] in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.”
4. The present policy of the College with respect to amicus curiae briefs is appropriate, but the College should amend it to state explicitly that the participation of any Fellow as counsel for any litigant shall not affect (i) whether the College shall, or shall not, seek to participate as amicus or (ii) the position of the College if it chooses to participate.
5. The College should strive for a high degree of quality (including without limitation, thoughtful and measured deliberation) in all comments.
6. Generally, the College should conserve its resources by limiting its comments to subjects about which it can make a significant technical contribution.
7. The College should create a simple mechanism to facilitate determination of whether proposed comments comply with the Statement of Policy.
EXHIBIT B
PRINCIPLES APPLICABLE TO GOVERNMENT SUBMISSIONS
The following principles reinforce and elaborate the Statement of Policy on Governmental Relations approved by the Board of Regents on October 14, 1996:
1. ACTEC’s mission appropriately includes contributing to law improvement.
2. ACTEC’s mission also includes education of our friends in government service, of our colleagues and counterparts in other organizations and professions, and of the public.
3. ACTEC’s Fellows are very experienced with comprehensive compliance with rules and therefore are highly qualified to comment on improvement of those rules.
4. ACTEC makes the most of the experience and qualifications of its Fellows by developing and enforcing procedures (including procedures used in the selection of Fellows, committee chairs, state chairs, Regents, officers, and other leaders) to ensure that its “official” views are formulated with objectivity, imagination, and practical common sense.
5. It is most consistent with the ACTEC’s mission and culture to join a public policy debate only when we have something of serious value to say, not every time there is anything to say, and not necessarily when the self-interest of Fellows or clients is most at stake.
6. There is little point in expressing a view if no one will consider it or take it seriously, and the intrinsic and obvious punch, candor, thoughtfulness, balance, and credibility of a view can increase its likelihood of being taken seriously.
With regard particularly to making submissions in cooperation with other organizations:
7. No organization, including ACTEC, has a monopoly on imagination and good judgment, and the wisdom residing in similar organizations should be sought out, listened to, and respected.
8. Joining with other commentators might increase the likelihood of a view being taken seriously, if it does not weaken punch, candor, thoughtfulness, balance, or credibility.
9. If the Fellows of ACTEC are uniquely qualified to comment on law improvement (including knowing when to comment on law improvement), then ACTEC should not permit its views to be diluted by the influence of volunteers in organizations that do not reflect the stature, safeguards, or simple gravitas and common sense of ACTEC and its Fellows as a whole.
10. To protect the punch, candor, thoughtfulness, balance, and credibility of its views, ACTEC should not join with other organizations unless the selectivity, objectivity, imagination, and common sense of ACTEC Fellows are respected and preserved.
11. It is appropriate to take account of specific requests from government policy-makers. If a request for input is made in a context that apparently anticipates a joint response, a joint response should be seriously considered.
12. Compromises will be necessary to reconcile or blend similar views that differ in details, but ACTEC does not delegate its approval to other organizations.
EXHIBIT C