So You Want to Be a Lobbyist?

by Barry M. Aarons

So you want to be a lobbyist? Well, there are a few things you should know before you run out to the legislature. First of all, lobbying is not an adversarial activity. Forget all that stuff about adversarial process that you learned in law school. If you try to effect a win/lose result in the legislature…you’ll ultimately lose. Guaranteed!

Second, you know all those briefs that you write where it appears you should charge by the pound? You won’t ever use those mounds of paper at the legislature. As I used to tell my associates, if you can’t put it on one sheet of paper, it is useless. That’s not to say that legislators don’t want to have in-depth information. Rather, legislators simply don’t have time to read all the paper they get. So…say what you need to say on one sheet of paper only. One sheet.

Third, remember that old adage not to say anything in three one-syllable words when four five-syllable words will suffice? Well, that also doesn’t work in the legislature. Speak clearly and simply. It is important to remember that when testifying before a legislative committee you are technically allowed only five minutes and if you are confusing or boring the committee, the chair may simply cut you off.

Further, don’t rely on your short appearance before a committee to win the day. You, first, should visit with each member of the committee before the hearing to acquaint them with your views. But be brief and to the point—each legislator you see has a dozen other people waiting to see them, a committee in process, floor action pending, three calls holding, a secretary hovering and another member hanging outside his office door. There is no such thing as a leisurely meeting with a legislator.

And be in fairly good shape. One of the best ways to visit with a legislator is when he or she is running across the mall, up the stairs or out the door. Take any opportunity that you can get. And, don’t be insulted when your secretary calls for an appointment and is told point blank, "This legislator doesn’t make appointments while we are in session." You can believe it. You have to catch the legislature roaming the halls to visit with members.

Protocol

The legislative process is one where members and lobbyists "mix it up." If you are used to the formal process of the courtroom this will be a dramatic departure for you. I recently spoke with a judge who, after listening to several legislators throwing barbs at the courts and each other, was indignant at their attitude and manners. That’s how they operate down there. While the legislative process is formal, there is no such thing as ex parte communications or rules of evidence. It’s an open process where as far as date, information and opinion counts, almost anything goes, with the occasional veiled insult or stinging jibe given and taken with equal relish. So thicken up that skin if you are going to mix it up with the folk down on W. Washington St.

Backgrounding Yourself

Now then, if you still think this lobbying business is a great idea, you need to do some homework so that you can feel comfortable. Your reading assignment is as follows: First, read Madison’s Federalist 10. There, Madison discusses in just a few pages the bias from which all interest group activities follow. And, that’s just what you’ll be dealing with—interest groups. Some very special, and some not so special, but interest groups nonetheless.

Book number two is The Seven Habits of Highly Effective People by Stephen Covey. This is especially important reading for those this who rejected my earlier comment about the legislature not being an adversarial process. This book has at its epicenter the whole concept of the win/win desired outcome. Read it, study it, get used to it. If after reading it you reject the concept or you are just too competitive to think that anybody but you can or should "win," then go back to your regular practice of law and forget lobbying.

Lastly, I recommend Alvin and Heidi Toffler’s The Third Wave. If you don’t believe that we are in the third wave of history (I’m not going to tell you what the first two were—you need to read the book, you really do!) then look around your law office, count the number of steno pads and typewriters and pieces of carbon paper and divide that sum by the number of computers in the office. There will probably be a lot of zeros between the decimal point and the first integer. This is a new age.

As a 20-year-old page in 1971, I watched legislators mark up bills with highlighters and red pencils and dictate letters to stenographers on the floor of the House. Today, they have laptop computers, individual offices and staffs that comb the Internet for bits and pieces of information. If you can’t enter the technology of the ’90s and beyond, stay where you are.

OK, so now you have read—or reread—these three books and agreed to retool your lawyerly ways to accommodate the legislative process. You are ready to go to the next step. How does this system work? The best way to explain it (no book about how a bill becomes a law does this process justice) is through anecdotes.

Commitments

You will hear lobbyists complain that legislators today won’t make commitments, and when they do they will break them without notice. That is a grossly overstated description. Legislators are more cautious today about giving their commitments because the water in their fishbowl has become a lot clearer. And, there are more people sitting outside the fishbowl taking copious notes. So, when a legislator makes a commitment, it is not taken lightly. So what happens if something happens after a legislator makes a commitment and they want out.

"No!" shouts the violated lobbyist, "Their word should be their bond! How dare they break their commitment to me. You can’t trust anybody anymore, they don’t deserve to be in the legislature!" OK, hold on, that kind of righteous indignation doesn’t do anyone any good. The fact is, letting a legislator out of a commitment is not that terrible a thing. Case in point:

In 1985, I was lobbying a bill through the House that ultimately would become a proposed constitutional amendment on deregulation of telecommunications. The process was moving along quite well. The House Majority Whip at the time was Representative Joe Lane of Willcox, who served on the prime committee to which the bill was assigned. He committed to support the bill and to vote for it in committee. The weekend before the committee was to vote on the bill, Joe went home to Willcox, to visit the folks. BANG! The folks back home beat him up one side of the head and down the other over his support for the bill. It seems that rural Arizonans had come to believe that deregulated phones could mean higher prices and less service for their territories.

So, on the Sunday night before the vote a beaten and bruised Joe Lane called me at home. After relaying to me the situation he asked to be released from his commitment on the bill. However, he added a couple significant caveats to that request. First, he offered not to vote against the bill. Sometimes the bladder just happens to press when a critical vote is up and when the bladder presses… Second, Joe offered to help us get the bill to the floor. So, what was I supposed to say? In committee you simply need a majority of those members there and voting to prevail, so a "not present" vote is a lot better than a "nay" vote. Plus, when a member of leadership tells you he’ll help you get the bill to the floor if he just doesn’t have to vote for it—well, frankly that is a good deal! So, I released him from his vote and wound up getting the bill through the House and to the ballot. Joe wasn’t betraying anyone—he was employing a classic win/win strategy. He philosophically supported the bill but at that same time wanted to support the desire of his constituents. He neither betrayed his philosophy nor his constituents.

While relating the last anecdote I said that Joe Lane, "…committed to support the bill and to vote for it in committee." Why do you suppose I added the part about voting for it, after he said he supported it? Because what you ask for is largely going to determine the answer you get.

Two associates and I were doing a crash last-minute lobbying job on a bill that would have allowed, for the first time, large corporations with big motor vehicle fleets to register those entire fleets at the same time. There were some sound reasons for the legislation but the bill still was experiencing some rough sailing.

The day before the bill was to come up for a vote in committee, the three of us divided up the 15 committee members and went out looking for eight solid no questions asked "yes" votes. We gathered together shortly before the meeting to review our list of votes. We came to a particular member’s name and I asked the associate who had talked to her if she’d vote for our bill. He said, "She said she had no problems with the bill." I responded, "But did she say she’d vote for it?" "No," he replied, "…but she said she had no problem with it." I sent him back to ask the specific question that turned out to be yes, that she would vote for it.

I have heard of countless cases where legislators said they had no problem with a bill and then went and voted against it. When confronted with the apparent contradiction, they calmly replied that they said they had no problem but didn’t say they’d vote for it. The answer you get is in direct response to the question you ask. If you want a legislator to commit to voting for a bill, then you have to ask them if they will vote for that bill. Now, that may seem sophomoric to some, but it is incredible how this little slip of specificity can destroy your entire legislative program.

There is no sense of playing coy and cute with requests for commitment. If you want a vote, ask for one. You can always be coy when you are explaining the bill. When commitment time comes, be direct.

Dogma vs. Compromise

Which brings to mind the old adage, "Be careful that the words you speak are sweet, for one day you may have to eat them." The other way of saying that is be careful not to be unyieldingly dogmatic, and never say never. A case in point:

For those of you old enough to remember, the mid-’70s were a time when the oil crisis reached dire proportions. Not only were gas lines and skyrocketing prices at the pump the norm, but the impact of high fuel and energy prices on homes and businesses was devastating. With each upward spiral in fuel prices, the electric generation companies felt the need to push consumer prices up to meet their rising costs. That meant that regulated utilities had to go the Arizona Corporation Commission (ACC) to petition price increases.

The resulting rate cases saw picketing from seniors groups, wailing from consumer activists and the creation of the new regulatory concept of consumer advocate offices. Since consumer activists have never seen a baby that they can’t throw out with the bathwater, consumer advocate offices were extended in concept to include all public service companies and actually had the influence to make that declaration stick. Then they started to lose ground. So in the mid-’80s, while I was in the employ of a public service company, we met with a pragmatic, thoughtful chairperson of the House Government Operations Committee to discuss our options. That pragmatic thoughtful chairperson was Jane Hull, our current governor. The decision that came from those sessions was that we could continue to oppose creation of a consumer advocate office and ultimately we’d find our dead bodies in their wake, or we could sit down with her and some consumer advocate types and craft a consumer advocate office that would meet their needs and yet be an organization that we could work with.

That was how the state’s Residential Utility Consumer Office (RUCO) was established. We dropped the dogmatic declarations and engaged in creating a workable entity. Soon after RUCO’s creation, the pickets at rate hearing disappeared, the rhetoric died down and, of course, we now had someone tangible to blame when we didn’t get what we wanted from the ACC.

Stakeholder Process

The process we used in connection with RUCO’s creation is called "stake- holder management." We utilized this process to identify which groups held a clear stake in our issue (hence the name "stakeholder management"). We then tried to identify—just based on our perceptions—what their stance was on the issue. Perception is frequently more important than fact, so our perceptions were critical to this evaluation.

The next part is a little more tricky. For each stake you need to figure out what their cooperative potential and competitive threat is. This is done regardless of what we perceive their position is on our issue. If someone is opposed to our position, then we are trying to determine what could happen or be done to turn them into supporters—in other words, we determine their potential for cooperation.

That is essentially what Jane Hull was doing with us. The consumer advocate office was coming whether we supported it or not—so—what could be done in the construction of that entity that could address our cooperative potential. Making us part of the crafting of the consumer advocate office was critical to her success and important to our participation.

Warning: The other side of the coin, the competitive threat, is just as imperative. Sometimes you will sense or perceive that a stakeholder group supports or is neutral on an issue of significance to you. But just as you can uncover the cooperative potential of an opponent, likewise you can be surprised by the competitive threat of a supporter.

For example, I share a painful reminder of the competitive threat at work. During that same debate over telephone deregulation in 1985, a smaller, independent phone company executive had originally opposed our bill. We painstakingly worked with him and migrated him to a qualified position of neutrality. Given that commitment, we acceded to his request to testify on the bill. That is not to say that we actually could have stopped him, but testifying was part of the negotiations we had with him. So up in front of the committee came this articulate, dapper small-business owner who started his testimony, "Ladies and gentlemen, my company’s official position on this bill is that we are neutral and do not oppose its passage nor will we lobby for its enactment…" Well had he stopped there we would have been happy. But he didn’t stop there. Quite the contrary, he proceeded to give a protracted testimonial that opened with "…but let me tell you about the severe problems this bill creates and the service problems and increased costs that we are convinced will follow should it be passed." We were cleaning up the debris of that competitive threat exercise for weeks afterwards, and if we hadn’t released Joe Lane from his vote in exchange for his assistance in getting the bill to the floor…well you can see the interaction of forces in the legislative process.

So, just how long do you have to create a "stakeholder" matrix of all the stakeholders and sub-stakeholders? How much time do you get to identify their perceived positions on your issues? What’s the time frame available to uncover cooperative potential or ferret out competitive threat? Well, that actually depends on how much time you have.

While working on the governor’s staff on the issue of alternative fuels a couple of years ago, we had several months to prepare, roll out and implement a comprehensive stakeholder management strategy. And, it was brilliantly conceived and efficiently carried out. Then when it all fell apart later in the legislative session, we had to do it all over again overnight—literally overnight. And when the final decisions came at the end of the process we had a few hours to make one more cut at it. Oh, we had lots of help—you usually do. But my point is that the process is still the process regardless of how much time you have. The more time and effort you put into the process the more success you are likely to enjoy. However, the process still works even when you only get a few minutes to implement it.

I remember being in a committee hearing when the county home rule issue was debated. I made the mistake of suggesting in my testimony before the committee that we could probably work out some language to a sticky point that was under consideration. The chair of the committee then said, "Okay, then why don’t you get the folks interested in this point together in the back of the hearing room and work out some language before this meeting is over!"

At that moment it was 9:55 a.m. The committee needed to adjourn by 11:00 a.m. for floor action. I had 65 minutes to create, work out and implement a stakeholder management plan and strategy. And, while that might not be the norm, it nonetheless still does happen. And, yes, we did get some language that was included and broke a huge stumbling block in getting the bill passed. We identified the stake holders (four minutes), figured out with each what their position was (eight minutes), stood in the back of that room and talked over cooperative potential and competitive threat (15 minutes), then worked out language and wrote the amendment (15 minutes) and still had time for casual conversation before coming back to the committee. But, overcome we did, and that particular resolution was passed and placed on the general election ballot the following election.

Conclusion

After 27 years in and around the Arizona Legislature, I probably have volumes more anecdotes to demonstrate my contentions about stakeholder management and the lobbying process. But, this is certain—you will not find a more creative exercise in government than the legislative process. And, despite its foibles, the legislative process still is as incredibly open and easily accessible as any other branch of government. So, if you answered my first question in the affirmative and in fact you want to be a lobbyist, then you can look forward to a very fruitful and exciting set of experiences ahead of you that someday you will recount with a satisfied smile.

Barry M. Aarons is a partner in The OAS Group, a public policy, political advocacy and association management firm in Phoenix.