Goals for the Class

INTRODUCTION AND COURSE OVERVIEW. WHAT IS LOBBYING? WHAT DOES A LOBBYIST DO? WHO DO LOBBYISTS REPRESENT?

Goals for the class

How you advocate the government to take action
How lobbyists are regulated
Expansion of strategic thinking
Consider attempting to change the law as opposed to finding ways for your client to cope with it

What is lobbying?

An advocate who can articulate your case to a policymaker
Very similar to a lawyer
In DC, a lot of people are both lobbyists and lawyers
Morrison…Lawyers represent individuals or small groups of people in a proceeding; whereas, lobbyists attempt to effectuate policies affecting large numbers of people
Lobbyists are dealing with policy for everybody
In some areas of the law, sound advocacy for a client can come only through a change in the law
Hard to distinguish between lawyers and lobbyists
In a marginal way, lobbyists may even manage to influence judges
In some ways, lobbyists act as “mouthpieces” for interest groups
A lot of lobbying is not done by lobbyists, but rather through direct lobbying by interested citizens supported lobbyists
Statutory definition…Lobbyist Disclosure Act
If you attempt to influence legislation, executive action, government policies, or government contracts… “lobbyist”
A bit narrow…attempting to identify people who are substantially involved in “lobbying”

What do lobbyists do?

Direct advocacy
Relatively small percentage of time spent here
Sometimes if other things are done correctly, direct lobbying is not needed…
Grassroots advocacy
Getting someone to call an elected official with regards to a given issue
Lobbyists spend a lot of time coordinating and implementing grassroots activism
Influencing the public or segments of the public
Creating awareness of their views within the public
Some may argue this is manipulative, but in reality people are just putting forth and assuring their position
In many ways, lobbyists serve to inform the public

What is the value of lobbyists?

Good
Provide significantly in-depth info
This level of research provides education to congressional staffs
Good side of pressure…lobbyists facilitate
Morrison…lobbyists grease the wheels
Inertia is your enemy unless you are a lobbyist interested in maintaining the status quo
Amplify constituency
Drafting legislation
Aids in the legislative process
Fundraising
The lobbyist also acts to educate the client with regards to the issue at hand, policy implications, and policy effects (both potential and actual)
Bad
Bad side of putting on pressure…
Pressure forces decision making
Amplifying constituency may also prove negative
Money
Important point
Only people with money can employ lobbyists
Money can be achieved for a group by numerous small contributors or a smaller amount of large contributors
We must take into account that different types of people have different amounts of discretionary funds at their disposal
Drafting legislation
Compromises the legislative process
Fundraising

Morrison and Burns articles

Saints or sinners…judging lobbying is not really an issue of moral right or wrong
Instead, we must look at lobbyists as protectors of our 1st right
However, there are ways in which lobbyists can act more saint-like or more sinner-like
Special interests…
Often used as a pejoratively in public discourse
This should not be the case because the term represents a wide-range of things
Burns…special interests only prevail half the time
.500 batting average isn’t so bad
she argues that gains from lobbying are made the margins, when it is going to be a close call
Burns
Drastic change based on the circumstances

Who do lobbyists represent?

Associations
From the Chamber of Commerce to non-profit organizations
NGOs
Foreign countries/governments
Lobbyists help foreign governments understand the inner workings of the American political system
An example of someone who does not have a lobbyist
Some groups may not have direct lobbyists, but they do have other options

LEGAL HISTORY, CONSTITUTIONAL BASIS AND ROLE IN A DEMOCRACY OF LOBBYING – THE “PROS AND CONS”

Aside: if you are a lobbyist that is a lawyer, people will assume you know the applicable law (even if you do not)

Allard…

In times of political gridlock, lobbyists are sometimes the only ones who can bridge the gap between factions and achieve some kind of political progress.

Historical/constitutional foundations of lobbying

Stems from the historical right to petition government and seek redress for grievances
Starting all the way back with the Magna Carta in Great Britain
The Bill of Rights and lobbying…1st Amendment
Not just the right to petition government
Cannot provide this narrow of a reading
It is really a bundle of rights….freedom of expression; political rights
Rights beyond the right to petition…Freedom of speech; freedom to peacefully assemble; freedom of the press
Critical parts as the right to influence government
Early on there we not so many hired lobbyists, as we think of them today
Not until the 50s, 60s, and 70s that lobbyists become prevalent in Washington
Not a coincidence that the rise in lobbyists comes with the rise in complexity of economic issues, etc.
Right to political associations
NAACP v. Alabama
People have a right to associate politically with one another without the government inferring with that
Disclosing the names of those involved in a political movement could be a “chilling” tactic of the government
This is an important right for lobbyists because a lot of what lobbyists do is coalition building
The release of the names of people involved may constrain their ability to freely engage in political association
Courts are very protective in 1st cases involving freedom of speech and also lobbying/right to petition
However, Courts are not that protective when it comes to forcing retained lobbyists to disclose names
Lobbying in other countries
The structure of the American government is particularly conducive to lobbying
This is not the case elsewhere
In Europe, the representative governments do not have the same influence in producing legislation

Federalist No. 10

Madison is concerned with factors, and in particular keeping the majority factions in check
Difference between a republic and a democracy
The turmoil of a pure democracy
So many factions would cause chaos amidst groups fighting each other
Fear of the oppression of the majority
Did Madison anticipate a two-party system?
Madison seems to be accepting a premise… “factions are bad”
A system of self-government must exist so as to counter the negatives created by factions
Institutions have to be set up to contain the pernicious nature of factions, so as to harness them for good
What is the state of factions today?
Far more prevalent, pervasive (due to our greater degree of interconnection)…but what is the effect of this?
In order to get things done in Congress, you have to accommodate a lot of factions
In this way, you are hard pressed to get anything near a “pure product” through

Judicial review of lobbying law

Not a lot of case law
Strict scrutiny standard
Lobbying cannot be restricted
However, there are things that can be done to regulate lobbyists…possible routes…
Prohibition of contingent fees or success fees
The thought behind this is that contingent fees, all or nothing arrangements, put too much pressure on people to do the wrong thing
However, there are ways to get around this
Regulation of gifts and political contributions
Lobbying cannot be taxed
It would be an undue financial burden
However, it is okay to deny a deduction for lobbying activity (as if it were a normal business expense)…but it is not okay to tax lobbying activity
The government interest in regulating has to outweigh the impact on lobbying
Governmental interests of regulating lobbying
Avoiding corruption or the appearance of corruption
Transparency creates a collective sense of confidence that people know that there is not a slew of backroom deals going on
Beyond the public, disclosure benefits the members
Disclosures make known who lobbyists represent and from this one can garner a better idea of what the lobbyist is about
Furthermore, disclosure provides information to the media
People always find ways to get around lobbying regulations, then the regulations are readjusted, then beat again…its cyclical (like most other legal phenomena)
Take away
Lobbying cannot be restricted by Congress, but some lobbying practices may be restricted.
Congress can’t stop you from expressing yourself; however, Congress can regulate the practices you employ to express yourself.

POLICY MAKING PROCESS

What we want to focus on is each point where a lobbyist could speed up (if for) or slow down (if against) potential legislation
Your biggest enemy in failing to pass something is inertia

Idea

Starting point
Idea for policy/legislation could come from a lobbyist
You can converse with staff members, etc.
Advocating for a given client
Doing to research before pen is put to paper
Lobbyists have at times written bills (very rare), but more often consult with regards to the writing of bills
Legislation is rarely written by members or staff
Lobbyists generally sends a memo to a given legislative counsel
Legislative counsels create a draft bill and send it back to the lobbyists and also shop it around
Lobbyists remain in the loop in terms of consultation
The consultation may go on briefly or for years
Beyond this back-and-forth, you want to go get co-sponsors
Bi-partisan co-sponsors are particularly helpful
The objective is to develop a constituency with as many co-sponsors (other members, other Ss if you’re an S; other Hs if you’re an H) as you can
A bill being dropped with a significant number of co-sponsors (and diversity of ideologies) gives the bill a more serious tone

Introduction of a bill

“Drop it in the hopper” or electronic delivery
A serious, attention-getting bill will get a statement on the floor along with the coordination of the press

Referral to committee

As an L (lobbyist), you can try to work the referral of the bill
However, Ls do not have much sway here
Most times nothing happens when a bill goes to committee
Further referral goes to subcommittee
Sometimes a bill that ordinarily would go to subcommittee is not referred because the chairman fears what would happen
Lobbyist have some influence here
Bills can be referred to multiple committees
This multiplies the complexities of the process
Two parallel processes of the path converge and have to meet again
Hearings
Good time for Ls to influence
With regards to witnesses, what they say, and what questions members ask

Mark-up

Session were the bill is debated and talked about
L are important here
You can attempt to influence the members, provide data, discuss points

Chairman’s mark

Vote in committee and if author is lucky to bill will make it out of committee

Calendar

Bill sits here until the leadership wants it to move
Ls may have some influence in getting the bill moving

Rules Committee

Adopts a rule to consider the bill
Members in the H place procedural votes with regards to amending, etc. of the bill
Using majority and minority members follow suit
Whether it will be open or closed to amendments, debate, etc.
No completely open rules in the past two years
Some modified open rules
Controlled by the majority leadership
Potential for Ls to influence
Amendments could occur at this stage in the process
The most junior member in the S could really slow down a bill in hopes to kill it or try to reach more of a consensus
Filibuster
Not available to the H
S is much more difficult and different from the H
S needs unanimous consent; H needs majority
However, S agree to time limits in lieu of rules
Any S could really hold up anything
An important thing a L can do is persuade a friendly Senator to put a (“secret”) hold on a bill
Cloture
A vote to end debate

House votes/Senate votes

H passes
S passes

Conference Committee

Conference does not have to occur if S takes up an H bill or if H takes up and S bill
This is protocol for all bills except appropriations bills

H votes/S votes

Conference report
Effectively the new law
Compromise made between the H and S
Conference report is arguably the most important piece of legislative history for lawyers
Opportunity here for Ls to persuade

President

(1) Signs
L may try to have some influence at the signing ceremony (which are rare as is)
Signing statements are viewed more importantly by some than others
(2) Returns veto
chance for override
Room for influence here
Lobby for or against P’s veto

REFER TO FLOW CHART ON BACK OF SYLLABUS IN FOLDER

Aside: State of the Union
Lobbyists will try and get the P to say certain things

Lobbying the administration (post-passing legislation)

P has the power of the executive order
The P has extraordinary power
Especially in wartime
Lobbying the executive branch is often still congressional lobbing because it is more influential for a member of Congress to attempt to persuade the administration
Appropriations committees can influence the agencies
And appropriations committee members can be lobbied
Another instance of lobbying Congress to influence the executive
Office of Management and Budget
Makes announcement about what a new law’s empirical effects may be
You can try to lobby them, but in a limited way
Rulemaking process
agency wants to promulgate a regulation/rule
the first thing the agency does is offer an opportunity to comment
if you are a L, you can ask a member to write a letter on your behalf
a rule can be influenced or even held back
There are many routes (some backdoor) for influencing the regulatory system
Lobbying agencies directly
Getting members to write letters
Getting members to hold hearings
Members of affected districts will probably listen most fervently
There is a lot of congressional input into regulatory decisions

Going back to the legislative process

a report on the bill is written after members come out of committee
report language
report has language in it with regards to how Congress sees the agency dealing with the bill
clearing up intent
getting the agency to do what you want
they do not want to fail to do what the congress put forth
not binding, but has value
colloquy
a member will discuss the bill’s language on the floor
a lot of nitpicking on the language of the bill
clearing up intent
getting the agency to do what you want
they do not want to fail to do what the congress put forth
Presidential appointments and confirmations
A lot of lobbying here
Big policy implications
Confirmation hearings
Lobby Senators to ask particular questions
Put nominee on the spot
Hold up nominations until the question is answered

COMPONENTS OF A LOBBYING CAMPAIGN[22-29]

Components of a lobbying campaign (direct lobbying, building public support, grass-roots lobbying, media, pollsters, policy/legal/economic analyses)

Digression

A former US Senator is banned from lobbying anybody in the Congress for two years
The key question to ask is “what is lobbying?”
Lobbying…a communication intended to influence a fed official
What is a communication intended to influence fed official?
They may become strategic advisors
Former members can talk to one another, they just cannot communicate with the intent of influencing
They may simply be attempting to obtain information from a current senator
Numerous attempts at obtaining info may be construed as more than just regular “communication”
Interpretation and/or recollection of a conversation may differ in great degree between two people
Look at the obvious, how it could appear
For instance, take into account a former senator may be getting funded by a lobbying firm
What does it mean to not be able to lobby?
This post-employment restriction is broader than the Lobbying Disclosure Act
Former Senators can become lobbyists, but cannot lobby
Political activity is a very regulated activity now
What, where, and how you say something can get you in trouble

Birnbaum article

Setting the stage
9/11 had a devastating impact on US travel
tightening of visas
fear
coming into and going out of two big recessions
Disney employee starts the lobbying efforts
Big idea is to get US gov’t to pay for international advertising campaign
Really big Ask
The Ask is not received, but a more permanent lobbying faction is created
Lobbying efforts are not always completely successful and often take several years
Managing a coalition is very difficult because there is so many competing interests
It is hard to get new money out of Congress
The only way you could get new money is to take it away from somebody else
Here, not a whole lot of fighting the 9/11 sentiment, they tried to go around it
Not a particularly good move
Tom Ridge
Acts as a validator
Particularly important if pushing a counterintuitive or unattractive idea to the people you are trying to sell to
Funding your own study, even if completely legit, undermines it somewhat

Coalitions

Here, who is in this travel coalition?
Hotels
Airlines
Travel agents
Rental car agencies
Amusement parks
Restaurants
Counties and cities
Especially those with travel destinations
Labor unions may apply to all of the above factions?
In many cases the unions will not work out with these issues because industries generally have adversarial relationships with organized labor
Has changed a bit over the years?
Competition in one arena and cooperation in another
I.e., strange bedfellows
Who (members, other executives, etc.) wants what we want? Whose objectives overlap with our objectives? Whose are at odds? Who is persuadable?
Sometimes you find strange bedfellows
Everything revolves around competing interests
“if you ever want to run for President, you’re going to have run through Iowa, and it doesn’t help to lose the Iowa caucuses.”
Political leverage…members often do not vote against IA on issues that their state has no real interest in
E.g., ethanol tax credits
Putting together a coalition
Start with a meeting
Money
Deeper pockets pay more
Coalition building is about as important as anything
Who does the coalition need to talk to?
Members; the public; the press
Both from the right and the left
What do you use as talking points?
Polling; academic studies; validators
What if you don’t win?
Often times, restart and try to get further the next campaign around
“You never want to achieve all your clients goals…”
Doesn’t really make sense.
There is always more work and you will get more if you do your job well.
This is without even mentioning ethics.
Overall…
You bring in your team, then you find out the team against you.