Insiders Talk: Winning with Lobbyists, Professional Edition

The "Client's Bible"

Robert L Guyer

• Publisher: Engineering THE LAW, Inc.
• Year: 2018
• ISBN:
  9780967724249
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Advocacy
• Index: Politics & International Relations

Insiders Talk: Winning with Lobbyists, Professional Edition (Manual 5) equips lobbyist-employers and in-house government affairs managers (clients) with tools for selecting the right contract lobbyist(s), negotiating and managing market-appropriate fees, working more effectively together, and successfully managing their government affairs programs.The addition of How to Successfully Lobby State Legislatures (Manual 3)will further produce clients who can also evaluate the effectiveness of their lobbying campaigns. The Professional Edition synthesizes the views of dozens of consumers of lobbying services, contract lobbyists, lawmakers, staff, and political consultants. Clients using it will better understand the context of lawmaking, formulate and articulate reasonable expectations of their contractors, evaluate and improve their and their lobbyists' job performance, and get better returns on their investments of financial and political capital. Contract lobbyists can use the Professional Edition to develop better clients, thereby making their engagements more fruitful and less client-stressful. Although referring to my Lobby School seminar, Florida contract lobbyist David R. Custin's observation broadly applies to upgrading client quality: "... if all of my present, past, and future clients took your course it would make me a more effective lobbyist and make my job 100x's simpler. Thanks again for the great course."

Washington, D.C. contract lobbyist Ron Phillips says it best, "I seeInsiders Talk leading to a generation of clients able to get more out of themselves, their lobbyists, and advocacy investments."

Best for graduate and law students, attorneys, lobbyist-employers, in-house legislative managers, and contract lobbyists.

Chapter 1

Overview of Lobbying

Lobbying Defined

Lobbying may be defined as, “trying to influence or gain goodwill.”3 One seeks to influence and gain goodwill in order to sell. You sell to your boss, your lover, and to anyone else who can give you what you want. This book is about selling laws. Lobbying is legislative sales.

Reasons to Lobby

Lobbying is driven mostly by self-interest. James Madison considered economic self-interest to be the most powerful political motivator.4 His views may be summarized as self-interest is the engine of government, a theme which runs throughout this book. Groups advancing self-interests in Madison’s day were called factions; today we call them special-interest groups or simply special interests. Special interests try to achieve nine goals:

1-4. Gain better laws, protect favorable laws, repeal unfavorable laws, and stop adverse bills;

5. Instruct the Governor and courts as to the state’s public policy;

6. Affect state executive agencies’ rulemaking and enforcement;

7. Build lawmaking momentum among states;

8. Build lawmaking momentum to affect Congress; and

9. Fill holes in Federal law.

Gain better laws, protect favorable laws, repeal unfavorable laws, and stop adverse bills. Using general bills and the proposed state budget, the legislature creates laws regulating individuals and businesses. For all practical purposes, the legislature can do anything it wants to do, either for you or to you, good or ill.

Instruct the Governor and courts as to the state’s public policy. The state constitution authorizes the legislature by means of statute to assign to the executive, that is, the Governor, and judicial branches broad guiding principles of statutory interpretation and application.

Affect executive agencies’ rulemaking and enforcement. The Governor’s executive agencies are constitutionally required to implement faithfully laws enacted by the legislature. The legislature directs them by enacting or repealing agency authority and by budget appropriations. However, in practice, legislative authority over agencies may be much less significant than the constitution suggests. See Chapter 18, Lobbying Legislators, section “The Budget.”

Build lawmaking momentum among states. States fall into genres of interest; that is, they have similar policy views on a particular topic. When I lobbied environmental bills, California, Florida, Massachusetts, Minnesota, and New Jersey were the “cutting edge” of environmental regulation. Their executive agencies had informal collaborations on policy initiatives for legislative and agency action, thereby creating a momentum for states in this genre to implement similar laws.

Build lawmaking momentum to affect Congress. Favorable state action is an incentive for states’ federal delegations to support similar lawmaking in Congress. Persuading enough states to adopt your law becomes an upward pressure for Congress to adopt a national law on your topic.

Fill holes in Federal law. States plug “holes” in already existing federal regulations. For example, federal regulations may not affect activities below a certain size, dollar amount, number of employees, and the like, thereby leaving states free to regulate these activities—in effect, to plug holes in the regulatory framework.

Who May Lobby

“Everybody” is the answer. The First Amendment to the United States Constitution states, “Congress shall make no law . . . abridging the right of the people to . . . petition the government for a redress of grievances.” This means the U.S. system of government is designed to allow the people to lobby resulting in a procedurally transparent system. Limits to political transparency are discussed later herein.

Further, for the health of the United States, the Founders expected the people to keep their eyes on their rulers. Thomas Jefferson said, “If once the people become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions.”5

The legislative branch is so accessible that W. Allen Moore said, “Do not hire a professional lobbyist unless all else fails. A great deal of money is wasted on lobbyists to open doors that are already open. Senators and their staffs like to help the ‘little guy’ with a good cause.”6 While legislatures are open to everyone, lawmakers’ supporters, voters, and constituents are especially welcome.

However, in exchange for government benefits—especially tax benefits—organizations may choose to accept limitations on their right to lobby, or they may voluntarily surrender advocacy opportunities altogether. States also may limit certain individuals from lobbying. These persons typically include recently retired legislators, certain felons, and persons banned from the legislature for bad conduct.

Why You Need to Know Lobbying’s Ethics Laws

Violations of lobbying related ethics laws can have awful legal, political, and reputational consequences for you, your principal, and your lobbyist. Even an innocent failure can harm you, especially if your opponents seek to discredit you. To illustrate, a Lobby School participant, an employee of a large utility, told his class, he was instructed by his management to testify on behalf of his employer on a bill before the Colorado House of Representatives. While making his presentation, an opponent pointed out to the chair he was not registered as a lobbyist. The chair interrupted his testimony asking, “Are you registered as a lobbyist pursuant to the rules of the state of Colorado?” He responded, “No, I didn’t know I had to register when speaking on behalf of my employer.” The chair said, “Please sit down, sir; you likely are in violation of Colorado law.” Although not prosecuted legally, he and his principal were humiliated, their reputations were compromised, and legislators became less likely to trust them. Surprisingly, although his employer had many contract lobbyists working for it, nobody told him of the state’s ethics law, and the damage was done.

When You Need to Register as a Lobbyist

An attempt to influence government directly or indirectly, orally or in writing, may be statutorily defined as lobbying. However, although you are lobbying you won’t need to register as a lobbyist until reaching the statutory threshold. Money is the most common, but not the only, trigger. When your principal—that is, the entity on whose behalf you are working on a bill—spends money, including hiring a contract lobby­ist, or pays you to influence lawmakers, there is a good chance both you and your principal must register.

Do not presume because your lobbyist is registered, you or your principal doesn’t need to register. As a general principle, you are better off registering as a lobbyist than not registering. This is because your ability to contribute to your lobbying project is severely curtailed by being unregistered. For example, you may be legally barred from even talking to lawmakers or staff. However, by being a registered lobbyist, you can fully participate in moving your bill into law. As a registered lobbyist, you enhance your capital reputation for seriousness, credibility, a...