COVER STORY

The Advocates

By Richard Sine

A funny thing happened in Washington last year: Even as the political rhetoric vilifying lobbyists reached new heights, and recession-shocked businesses and organizations slashed their budgets in virtually every other area, spending on lobbying actually increased.

“Lobbying appears recession-proof,” said Sheila Krumholz, executive director of the Center for Responsive Politics, in a release announcing the spending data. “Even when companies are scaling back other operations, many view lobbying as a critical tool in protecting their future interests, particularly when Congress is preparing to take action on issues that could seriously affect their bottom lines.”

Any lobbyist seeking to sell his profession could not have said it better. In 2009, a newly activist federal government, facing financial crisis, recession and a supposed mandate for change, sought to change the rules for much of the American economy. No business could afford to sit this one out. Their voices had to be heard, and in most cases they found that the best way to get heard was by hiring advocates (or lobbyists). In fact, 2009 may become known as the year that having an advocate in Washington went from being “nice to have” to an absolute must.

And it wasn’t just businesses.

Unions, professional associations and a wide variety of political interest groups also joined the fray. “Lobbyists are usually caricatured as hired guns for ‘special interests,’ blocking Ma-and-Pa legislation to benefit big corporations,” Patton Boggs partner Nick Allard wrote in a guest column in a recent issue of Newsweek. “In truth, all Americans have lobbyists working for them in some capacity. Among the organizations that spent the most on lobbying in 2009 are the decidedly people-oriented AARP ($15 million) and the American Cancer Society ($3 million). Teachers, firemen, police officers, soldiers, entrepreneurs, doctors, nurses, kids—they all have lobbyists.”

Herein lies the contradiction: Even as attacking lobbyists remains Washington’s favorite bloodsport, the demand for professional advocacy continues to surge. The rarely discussed reason for that demand: Government officials often find lobbyists to be tremendously helpful. The best lobbyists, it turns out, earn their considerable influence through a combination of expertise and political savvy.

In the current political environment, few inside Washington are eager to acknowledge the value of lobbyists in keeping the government moving. But occasionally a little light shines through—even if accompanied by sarcastic humor. “[L]obbyists are like Baathists in Baghdad,” New York Times columnist Matt Bai recently acknowledged. “If you send them all home, there aren’t enough people left who know anything about running a government.”

A HELPING HAND

When the federal government makes policy, the stakes are high and the issues can be maddeningly complex. Even agency

heads will admit that under such circumstances, they could use a little help. Just ask Kevin Martin, former chair of the Federal Communications Commission.

Even with a budget of several hundred million and a staff of about 2,000, the FCC was not fully equipped to “understand the impact of its rules on all companies, on their services and on consumers,” says Martin, now co-chair of Patton Boggs’ Technology and Communications practice. That’s why he frequently met with advocates “to understand what they wanted and how that fit in with the broader goals of the agency and the direction the agency was taking.”

As FCC chairman from 2005 until 2009, Martin helped to create a regulatory environment that encouraged infrastructure investment and broadband competition, leading to greater coverage and lower prices for Americans. While many critics of lobbying may see corporate and public interests as always opposed, Martin’s experience at the FCC shows that they can be intertwined.

“At the FCC or any agency making complex public policy decisions, you want to understand the impact on consumers directly but also on the companies that are providing those services to consumers,” Martin says. “You want to create an environment where companies can compete so consumers can benefit from the innovations those companies provide.”

As Martin makes clear, good advocacy is all about making the right case to the right people at the right time. And that requires an intimate knowledge of an agency and its interplay with Congress and the administration. Who are the key agency staffers working on the issue? Which members of Congress, or administration officials, also care about the issue? Which of them might be enlisted to help plead the case, and how should they do so? And given the processes and schedules by which the agency works, when should the case be made to have the biggest impact?

At the FCC, Martin was unimpressed with advocates who were willing to take any line of reasoning—no matter how inconsistent—to support their case. The best advocates understood “the process and the history of the agency in dealing with similar issues,” Martin says, and strove to find common ground between their client and the agency. “One of the most important roles of advocates is making sure you’re framing the issue in the way that gives you the greatest likelihood of success, but also fits in with the government’s or agency’s overall regulatory direction.”

A bridge to Main Street

While the public may perceive lobbyists as consummate insiders, they actually provide a bridge between Main Street and Washington, says tax and financial services attorney Rosemary Becchi. Becchi frequently worked with lobbyists as tax counsel on the majority staff of the U.S. Senate Finance Committee, and at the Office of Chief Counsel at the Internal Revenue Service, before joining Patton Boggs as a partner in February. “I actually enjoyed working with lobbyists and corporate people,” Becchi says. “You got a sense of what was really going on, rather than having to try to figure it out.”

Becchi knows the abstract realms of the tax code well. But when it came down to understanding how a change in that code might actually impact a given business or industry, she sometimes needed some help. “Often, what is perceived as helpful isn’t really helpful,” she explains. In areas such as the stimulus or small business assistance, Becchi says, policy decisions shouldn’t be made in a vacuum.

Most of the lobbyists Becchi encountered were highly experienced tax lawyers, so their expertise was a given. Becchi’s favorite advocates combined that with a deep knowledge of their clients’ business and how the tax code affects it. “You have to know the business well enough to understand the impact that various perceived solutions will have. Often what is perceived as the right solution for one business may not be the solution that others support. You need to understand the business well enough to discuss how a business will be impacted by different solutions,” she says.

Lobbyists also helped Becchi understand exactly which organizations favored or opposed any given provision. “Good lobbyists can build coalitions to bring other people to the table that are very useful when trying to get a message across,” she says. “These days, things don’t get done for one constituent. They get done for groups, and someone needs to bring those constituents together.”

The naïve view of Washington is that lobbying is as simple as writing a letter or making a visit to your congressman or senator on an issue—John Q. Public goes to Washington. But the average citizen or business executive “doesn’t always know who he needs to talk to or how to get his message across,” Becchi says. “Lobbyists help do that. They know which committees, which members of Congress are interested in an issue, and they can help you frame the issue to help explain why they should care. Then they can help identify other people who are impacted and build broader support for it.”

A trusted resource

It’s a common misperception that lobbying is simply about getting through the door. What matters, says Jeffrey L. Turner, co-chair of the Public Policy and Regulatory Department at Patton Boggs, is how good you are at helping members and staff understand both the substance and politics of an issue. Policymakers are looking for “a resource to help them sort through issues with someone they trust.”

Why is that important? More than 20,000 bills are introduced in a typical congressional term, and reams of federal regulations are published. For agency and especially congressional staff, the variety of issues quickly becomes overwhelming. “The average member of Congress has maybe six people handling a thousand issues,” says Turner. “There’s too much going on and too few hours in the day to do everything themselves.”

The best lobbyists “become an extension of the staff,” he says. That’s why it’s common for lobbyists to draft suggested language for a bill for staff to consider. Periodically, Turner reads a news story that treats it as a scandal when some of a lobbyist’s language actually makes it into a published bill or regulation. “That’s news?” he asks rhetorically.

A lobbyist who becomes that trusted resource must do more than simply understand the issues, Turner says. He or she must also be honest with the officials he or she lobbies about where support or opposition can be found. And because reputation is paramount, lying to or threatening an official is strictly verboten. When the Supreme Court ended a ban on direct corporate political spending in January, a lawyer suggested to The New York Times that a lobbyist could tell any elected official: “If you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your election.” While an angry executive might consider such a maneuver, no decent lobbyist would do so, says Patton Boggs Chairman Thomas Hale Boggs, Jr.: “If they engaged in that kind of tactic, they wouldn’t be an effective lobbyist for very long.”

That’s not to say that advocates aren’t willing to employ hard-nosed strategy on behalf of their clients. Unlike lobby shops without lawyers, lawyer-lobbying firms (such as Patton Boggs) can take a three-pronged strategy to advocacy. They can advocate with Congress for legislation that supports their cause. They can advocate before an agency for rules that interpret the law in a way that suits their interests. And finally, they can sue (or threaten to sue) in an effort to get the courts to order an agency to interpret the law in the way that supports their interests.

Sound aggressive? Sure, but it can also be effective. And if your organization isn’t doing it, chances are your competitor is.

Lobby for America?

In January, the U.S. Supreme Court overturned bans on political spending by corporations in elections, citing free speech. The dissenting justices feared that the ruling would allow corporate money to swamp elections and corrupt democracy. But some argue that the best way to enhance democracy is not to squelch the voice of corporations, but to amplify the voice of the common man.

“Contrary to conventional wisdom, the solution is more lobbying, not less,” wrote Patton Boggs partner Nick Allard in the February 22 issue of Newsweek. “Instead of trying to limit the use of expert advocacy, we need to find ways to give the less advantaged more access to legislative muscle.” How so? The legal industry offers a useful model, Allard says. “We should set industry goals for the amount of pro-bono work every lobbyist does annually, recognize outstanding contributions, and make this form of public service part of our professional job description—much as it is part of the American Bar Association’s rules of professional conduct for lawyers. This is no pie-in-the-sky idea. Many firms—Patton Boggs included—already do a significant amount of pro-bono public policy work for nonprofits and public interest organizations. We should also empower Main Street Americans by helping them establish lobbying coalitions—groups of individuals united by a common purpose. People are already able to join their legal claims in class actions, and, often to the chagrin of big corporations, use contingency fees to retain lawyers they could not otherwise afford. A similar system could help individuals seeking to put their support behind a policy claim.”

Allard also suggests that colleges provide loan-forgiveness programs to graduates who lobby for underrepresented groups. He even suggests setting up “Lobby for America,” modeled after Teach for America. And, most important, he says, “we should provide all Americans with the access and know-how to use email and social media, because, more and more, we interact with our government online.”

Home | Cover Story | Privacy Policy | Feedback | Subscribe | Past Issues