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
o 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
o 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
o 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
o 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
o 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
o Relatively small percentage of time spent here
o Sometimes if other things are done correctly, direct lobbying is not needed…
 Grassroots advocacy
o Getting someone to call an elected official with regards to a given issue
o Lobbyists spend a lot of time coordinating and implementing grassroots
activism
 Influencing the public or segments of the public
o Creating awareness of their views within the public
o Some may argue this is manipulative, but in reality people are just putting
forth and assuring their position
o In many ways, lobbyists serve to inform the public
What is the value of lobbyists?
 Good
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o Provide significantly in-depth info
 This level of research provides education to congressional staffs
o 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
o Amplify constituency
o Drafting legislation
 Aids in the legislative process
o Fundraising
o 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
o Bad side of putting on pressure…
 Pressure forces decision making
o Amplifying constituency may also prove negative
o 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
o Drafting legislation
 Compromises the legislative process
o Fundraising
Morrison and Burns articles
 Saints or sinners…judging lobbying is not really an issue of moral right or wrong
o 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 sinnerlike
 Special interests…
o Often used as a pejoratively in public discourse
 This should not be the case because the term represents a wide-range
of things
o 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
o Drastic change based on the circumstances
Who do lobbyists represent?
 Associations
o From the Chamber of Commerce to non-profit organizations
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NGOs
Foreign countries/governments
o Lobbyists help foreign governments understand the inner workings of the
American political system
An example of someone who does not have a lobbyist
o 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”
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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
o Starting all the way back with the Magna Carta in Great Britain
 The Bill of Rights and lobbying…1st Amendment
o Not just the right to petition government
 Cannot provide this narrow of a reading
o 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
o Not a coincidence that the rise in lobbyists comes with the rise in complexity
of economic issues, etc.
 Right to political associations
o 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
o However, Courts are not that protective when it comes to forcing retained
lobbyists to disclose names
 Lobbying in other countries
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o The structure of the American government is particularly conducive to
lobbying
o 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
o 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?
o 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?
o 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
o 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
o 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
o It would be an undue financial burden
o 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
o Avoiding corruption or the appearance of corruption
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o Transparency creates a collective sense of confidence that people know that
there is not a slew of backroom deals going on
o 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
o 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
o 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
o 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
o 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
o Bi-partisan co-sponsors are particularly helpful
o 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
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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
o However, Ls do not have much sway here
 Most times nothing happens when a bill goes to committee
 Further referral goes to subcommittee
o 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
o This multiplies the complexities of the process
 Two parallel processes of the path converge and have to meet again
 Hearings
o 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
o 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
o Members in the H place procedural votes with regards to amending, etc. of
the bill
 Using majority and minority members follow suit
o 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
o Filibuster
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 Not available to the H
o 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
o 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
o This is protocol for all bills except appropriations bills
H votes/S votes
 Conference report
o Effectively the new law
o 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
o 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
o chance for override
 Room for influence here
o Lobby for or against P’s veto
REFER TO FLOW CHART ON BACK OF SYLLABUS IN FOLDER
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Aside: State of the Union
o 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
o Especially in wartime
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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
o And appropriations committee members can be lobbied
 Another instance of lobbying Congress to influence the executive
Office of Management and Budget
o 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
o agency wants to promulgate a regulation/rule
o 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
o a rule can be influenced or even held back
There are many routes (some backdoor) for influencing the regulatory system
o Lobbying agencies directly
o Getting members to write letters
o Getting members to hold hearings
o Members of affected districts will probably listen most fervently
o 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
o 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
o they do not want to fail to do what the congress put
forth
 not binding, but has value
 colloquy
o a member will discuss the bill’s language on the floor
o 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
o A lot of lobbying here
o Big policy implications
 Confirmation hearings
o Lobby Senators to ask particular questions
o Put nominee on the spot
 Hold up nominations until the question is answered
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COMPONENTS OF A LOBBYING CAMPAIGN
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[22-29]
Components of a lobbying campaign (direct lobbying, building public support, grassroots lobbying, media, pollsters, policy/legal/economic analyses)
Digression
 A former US Senator is banned from lobbying anybody in the Congress for two
years
o 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
o 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”
o 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?
o 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
o What, where, and how you say something can get you in trouble
Birnbaum article
 Setting the stage
o 9/11 had a devastating impact on US travel
 tightening of visas
 fear
o coming into and going out of two big recessions
 Disney employee starts the lobbying efforts
o 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
o The only way you could get new money is to take it away from somebody else
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Here, not a whole lot of fighting the 9/11 sentiment, they tried to go around it
o Not a particularly good move
Tom Ridge
o 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
o 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?
o Competition in one arena and cooperation in another
 I.e., strange bedfellows
o 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
o “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
o Putting together a coalition
 Start with a meeting
 Money
 Deeper pockets pay more
o Coalition building is about as important as anything
o Who does the coalition need to talk to?
 Members; the public; the press
 Both from the right and the left
o What do you use as talking points?
 Polling; academic studies; validators
o What if you don’t win?
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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.
o There is always more work and you will get more if you do
your job well.
o This is without even mentioning ethics.
o Overall…
 You bring in your team, then you find out the team against you. Then,
you have to start analyzing the political considerations of the situation.
Thereafter, look at potential vehicles (members) to get your issue
through.
 Identify constituencies that care (about the industries that are part
of the team)
o Determine who is for and also who is against
o E.g., who is the Senator for the constituency where Disneyland
is located? What committees are they on?
 Important: You never get a member to champion
for you for just a good idea. You have to appeal to
him through the appeal of the idea to his
constituency.
 Then, attempt to mobilize the supporting constituencies
o Remember: your enemy is inertia
o …Now that you know what you want to do and have the vehicles to achieve your
goals…what are your tools?
 (1) Lobbyist…most important tool in a campaign
 Usually have both Republican and Democrat orientated lobbyists
o With a broad coalition you have to talk to a broad array of
members
 It is really important to get the right lobbyist for the right job
o You should be suited to the job you are called to do in order to
be persuasive
 Determine who visits whom
 On ideological grounds or whether someone
already has a relationship with a given
member or staff aid
o Whether it’s a personal relationship or a
business relationship
 Business relationship… “we (the
company we are representing)
have 2,000 workers in your
district”
o Most times you are talking to staff
 In reality, you only want to head for a member with
something significant
 Grassroots activism
o Activate the constituents
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o Members want to please constituents, so if they are getting
pressure from constituents you have swayed, they are more
likely to vote in your vote
o Important, but sometimes overplayed
 “astroturf”
o Members may be more inclined to ignore mass emails
generated by lobbyists
 You want to get people to generate original messages
 Grasstops activism
o Motivate local or city officials to talk to their federal officer
 They often have influence with fed officials
 (2) Communications (the media)
 Press
o Educating reporters who cover a given issue
o Educating editorial boards for traditional editorials, which are
good on cut-and-dry legislative issues
o Casting your issue the way you want it
 Appeal to editorial boards
o Social media
 Intertwined with grassroots activism
o Advertisements
 TV; newspapers, etc; internet
 Targeted at certain districts
o Press releases
 For new studies, bills/amendments introduced for our
coalition
 Important to develop relationships with the reporters
 …What are you trying to achieve with influencing the press?
o Changing the narrative of an issue and casting it in your
light
o (3) Political Action Committees (PACs)…donations
 Acts as a vehicle allowing for corporate (or union) political
contributions for candidates/officials campaigns
 Allows you to make contributions to candidates and elected officials
you are seeking to influence
 Good and bad things
 What’s right?
o One form of free speech is expressing your favoring of
an official vis-à-vis political donations
 Money is one way of associating yourself with a
candidate and a cause
 Also, this shaping of the decision maker allows
you to shape decisions
 It is much easier to convince someone
with a similar ideology to you to buy
your policy preferences
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What’s wrong?
o Potential for corruption
 Limitations on contributions and bribery laws strive to eliminate the
existence (or at least apparent existence) of corruption
 A corporation’s PAC is not technically a corporation’s money, but
in effect it is
 Employees are “strongly urged” to contribute to the
corporation’s or union’s PAC
o This a get around to limitations on federal giving
 If you are lobbyist, why would you want to be a contributor to an
elected official?
 You cannot buy a vote
 The money is used to build a relationship, gain face time
o Get to go to the fundraiser, etc.
o (4) Generating data/studies
 Some have their own in-house think tanks
 Others have affiliated specialized institutes
 short, punchy items are key to present to staff members
 info has to be accurate
 don’t fiddle with the numbers for any reason
For the next few classes, we will focus on these different components in different
classes
o …Components of a lobbying campaign: direct lobbying, building public
support, grass-roots lobbying, media, pollsters, policy/legal/economic
analysis…
GRASS-ROOTS AND BUILDING COALITIONS
[29-35]
GRASS-ROOTS
 What is it all about?
o Identifying and motivating constituencies and pushing them in the right
direction
 Effective GR is the most effective form of advocacy when done right
 Three kinds of GR
o (1) real, genuine GR from the roots
o (2) elicited grass roots movement
 lobbyists, etc. detect energy, sees potential, and directs it toward
lawmaking.
o (3) Astroturf
 Not a whole lot of organic feeling/motivation.
 Lobbyists turn to education in order fuel sentiment
 Often does not work
 Effective means of GR advocacy are those that evince commitment
 Easiest constituency to mobilize is the old
 E-mail
o People argue that it makes members more accountable
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Interesting assessment…
o The more low-tech the more effective the lobby
 (1) GR face-to-face contact…real constituents
 E.g., the extreme persuasiveness of marching in farmers
 (2) grass-tops face-to-face contact
 (3) individualized snail mail
 (4) individualized email
 ....way down…social media (old school v. new school)
 cannot be ignored though
The message is just as important as the delivery
o Be careful with boilerplate messages
 Messages should have real content
GR is very effective when you have a policy maker who has not decided yet
You have to worry about overwhelming your targets with GR advocacy
o Your advocacy may just become “noise” and may get ignored
o If your point has been acknowledged and a member has asked you to stop,
listen and stop (or at least take your foot off the gas)
 May be really important for your relationship on the next issue
Social media
o Both effective and ineffective…contradictory
o Young staff like to use social media to “take the temperature”
 Facebook, twitter, blogs, etc.
 You have to play to this a little bit
o It is important to know who are the bloggers that the staffers read and the
press on the issue follow
o A lot of the members have blogs
 That nobody reads
o Staffers do not really have blogs anymore because they can get in trouble
Beyond tech advances in media…two principles remain the same
o (1) a good message
o (2) authenticity
Always be aware of who you are mobilizing
One interesting tactic…
o Target a member who is in trouble politically (in terms of getting reelecting) and keep the leadership of their party in the loop
 Has the potential to make the member a hero in his constituency
Important questions to ask…who’s up? And, who’s in trouble?
Old school ways to reach out to the GR?
o Direct mail
 Could be successful if properly targeted
 Particularly effective with older voters
 Can be very sophisticated
 Who does it go to?
 What does it look like?
 How to relate with the person?
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 …very similar to marketing
 unlike email, you have to at least see the mail you receive
 you have to read the mail to some extent
 older people read their mail
 especially mail dealing with Social Security or Medicare
 many times older people know the congressman, especially if he is
from the district
 older people are disproportionately effected by GR
 also, single issue voters are disproportionately effected by GR
 the trick is to identify them and either mobilize them or keep
them out of the discussion, depending on what side of the
debate they are on
o Phone banking
 Could be successful if properly targeted
 Categories: age, income, ethnic group, subscriptions, etc.
 You can draw distinctions from such little things as beer
drinkers v. wine drinkers
o This process can actually be pretty reliable
o Political pollsters and commercial marketing people
have intertwined over the years
 Its all about figuring out how to target people
and appeal to them in order to get their
vote/mobilize them
 And then to the extent you can, you
want to control the message that they
deliver
o Individualized messages are
better than boilerplates, but
boilerplates are better than
nothing
 Aside: when in doubt,
mention jobs
o Communicate with little, local newspapers
 Often owned in great bunches by a handful of companies
 Soon as you get in with one editorial board, you can get access
to numerous little, local newspapers
 Find out the political leanings or key issues with the
newspaper/editorial board in order to get in with them
 Letters to the editor in the small papers…influencing/helping/writing
for these people can be really helpful
 Decent chance people will know the author…huge for
credibility
New school ways to reach out to the GR?
o Facebook, twitter, blogs
 Does “liking” something on Facebook evince great commitment?
o Email
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 Similar to mass mail spamming
o Viral videos
 Usually attempt to include humor
 Hard to figure out why videos go viral
BUILDING COALITIONS
Legal entities for brining people together and organizing their efforts
 Trade associations
o Companies in a line of business
 Membership organizations
o not companies/businesses
 …Both get preferential treatment under the tax code
o both get the same kind of tax benefits
Building coalitions to affect policy…
 What’s the issue?
 Who cares?
o Diverse coalition…many people care
 Some issues may have interested groups with competing interests
 Coalitions are needed in order to create mass movements to push
issues
 No matter how right you are on the law, you need supporters
o It is important to get partners
 A lot of coalition building comes through old-fashioned networking
 Coalitions allow for the pooling of financial and moral capital
 You sometimes can use coalition members to find someone who has
standing to sue or someone who has different injuries for which they
could sue
o Narrow coalition…not many people care
 Can still give you strength if you have more resources
 Could have a good deal of money
 May have people who really care about the issue
 May have footprints in many different districts
o Trade associations
 Permanent coalitions
 A type of narrow coalition
 In trade associations
 Sub-coalitions
o …all those were positive…what about some negatives…
 different weighing of issues
 have to watch you back
 strange bedfellows
 make sure compromises do not hurt you or your industry
o …the basic idea of building a coalition is simple…
 more resources
16
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

financial
political
o influence; sway
 human
o human resources
key: you want to focus on the issues on which the coalition
members agree, at least until the end
Building coalitions within Congress
 Figuring out who will be for or against a side of an issue
 Playing “match maker”
 Talk to staff
 What member would want to lead this coalition?
 Who on the committee is with us and who is against us?
 Key: Get outside coalition to communicate with inside coalition
 Ad hoc coalitions
o Most coalitions are loosely organized, unincorporated, non-legal entities
(no underlying legal vehicle)
 However, some associations are formerly organized
o Why formerly organize?
 Protect against liability
o Anti-trust issues
 Can share information, but cannot try to fix prices
 Can, by and large, organize your legislative strategy problemfree
 Some industries are more sensitive to others when it comes to antitrust issues
UTILIZING MEDIA IN PUBLIC POLICY CAMPAIGNS
[35-38]
LUKE POPOVICH – GUEST SPEAKER
Earned media (v. paid media)…
 Media relations
 Not paid media, advertising, etc.
 “paid media” … advocacy advertising
Two big recent examples
 (1) Getting CEO on the local news program
o make sense for the program and for your client
o building up talking points for your client
 working with the program host
 finding out questions he is likely to ask
o negotiation
17


some tough questions; some question you want
to be asked
 host does not want to develop a reputation for being unfair
o briefing CEO on what he will say
o “merchandizing the interview”
 sending out the interview to their members, staffers, etc.
 get issues out there
 show CEO is doing his job
(2) Getting a regulatory agency on the defensive
o leaking a proposed rule to a reporter
 the interest of a reporter in the story will depend on external
circumstances and issues that are “hot”
 put your story where there is a natural interest
 the good thing about wire reporting agencies (e.g., the Associated
Press) is that local newspapers will pick these stories up
o getting an issue out there can put the agency on the defensive
o …you can create very significant advantage out of nothing
 there’s always a second or third play if you thinking down the road
with regards to how you can use a product
 there is a great advantage to having a media component in any
lobbying campaign
o earning your freebie…credibility
 Will a respectable agency pick up your story?
 If they do, this can give your story legs.
o You will seldom ever get a homerun with free media
 Gain credibility; risk misquoting
 No credibility; no misquoting
 …credibility is key
A day in the life
 More often than not you are “reacting” to something, rather than being
“proactive”
o Most of the time you are reacting to bad news
 You are not trying to sell a product
o Relying on a team of people, you cannot just do it yourself
o You can explore hypotheticals in preparation for possible future situations
o Every in the organization should be on the same page
o He believes that you should always “be in the coverage”
 Even if its not going to be the best coverage
 You must have a structure that allows you to meet headlines, etc.
 He likes a “retail approach” rather than a “wholesale approach”
o Cultivate relationships with reporters important to your issues, rather than
spamming numerous reporters
 Always remember to give the Members you are influencing or trying to influence
some cover
o Maintain relationships for the future
18
Lobbyists and media relations people
 Requesting for media relations people to attempt to file stories in particularly
important areas with regards to politics
 Generally lobbyists are more politically correct when attacking “opponents” in order
to maintain relationships
 Media goals are often subordinated to lobbying objectives
o The ultimate goal is to create a political atmosphere where you can
succeed
 Four types of people
o Lobbyists
 More politically correct
o media relations people
 a little less politically correct
o higher up, opinionated media relations people
 can be troublemaking because they may attack too strongly
o gender counsel
 risk averse, not usually fans of media campaigns
 would rather say less
 You do not want to alienate constituencies via media
Positive Ads
 Costly
 Must be run continuously year after year
The Internet and Social Media
 He is not as captivated by social media as some of his younger peers
 Social media is good for grassroots movements, more particularly building
constituencies
o Grassroots movements have many members
 Some directly related to client and some more tangentially so
 Remember: strange bedfellows
 Internet has been most influential by providing a robust website that you can
drive the media to
o Makes your job much easier
o Do not constantly have to reprise an argument or the details
 Certain (beat) reporters/bloggers are important to keep in touch with because
they are so influential
o Important to maintain these relationships
 Develop a report and an understanding of how they think
Crisis Communication
 What do you do when the horrible thing happens?
o Issues of tone/support and practicality
o Make sure to use a credible figure in your responses
19
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
Put this credible figure on as many programs as you can as
quickly as you can
 While the issue is still at the forefront
 A few days later the situation will be tougher to deal with as
the print media will become central form of media covering the
issue and it is usually tougher and digs deeper than the
broadcast media
o Generally say as little as you can
o Questions are generally… “Help us understand what’s going on”
o International comparison with a given situation
What about a major piece of bad news that did not randomly happen?
o Something like a large plant will shut down and large number of people will
lose their jobs
 Some notice was had
o Strategy…Think about the news media. Provide a way for them to get
the story, but do so in controlled way.
 “blocking and tackling”
 …there is a sense of professional courtesy in DC when it comes to
information and trading information
Media Relations and Lobbying Working Together to his Advantage
 government affairs and media relations people may be able to produce a simple
message that could turn out to be very compelling
CONGRESSIONAL AND EXECUTIVE BRANCH ADVOCACY
[38-43]
Legislative lobbying in Congress (Federal)
 Could be working with a short term deadline for a vote or a many years long project
 Client comes in to you with a problem
o Can you solve the problem legislatively?
o And if so, what are your goals?
 You have to give an assessment of the situation and manage expectations
o You do not want to overpromise
o Err towards underpromising
 But not so much as to get them to think they do not need you
o Clients need to understand the intricacies of the situation and the manner in
which you plan to achieve the goal
 Who can solve the problem? … Members of Congress
o How?
 By how they vote
 By changing how a bill is marked up
o Think…which committee would have jurisdiction over my problem?
 Often times it will be more than one
 Look to who is on the right committees (identify target members)
 Look to members from states related to your client
 Experience is key…
20
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

The longer you’re around the better understanding you will
have over how people will vote
o Network is important
o What to do with target members?
 Strive to get members who will champion your issue
 The more senior, more influential the better
 The best champions may sometimes be politically weak and
someone who the leadership wants to help
o Could provide this member with some pull when facing
a tough election
o Generally dealing with important regional issues
Cultivating members…
o Do preparation before picking up phone or sending emails
 Know as much about your topic as you can
 Have to know about the members district or state
 How the member has voted on issues of this kind in the past
 Important to know members’ personal story and how it could be useful
to the issue you are pushing
 Could be helpful to tap into what the member is about by going
through staff or past staff
 Importance of a network again
 Understand the member’s political needs and fears
 Know the Member’s’ coalition who really helped get him elected
 The Member will not want to offend them
 Also, really want to know what sort of person this is
 What was his occupation before serving, etc.
 Important to also know a Member’s staff
 They are harder to know
You’ve identified your target, you’ve studied up, so now your going to go talk to
your target…
o Bring something for them to read
 Not too long though
 About a page
o These people are really busy
 Be able to sum up your issue/argument in one or two sentences
o Most times you have a staff, rather than a member, meeting
o Handing over the materials may be the gist of the meeting
 If a staffer wants more, follow up with more info later
o The easiest way to get on the good side of staff and thus have a better chance
of influencing the member is to help the staff understand the issues
o Tell the truth…CRITICAL
 Even the truth that does not support your case
 Save your reputation
 Present the facts your way and counter possible problems before
someone else brings them up
21

o Do not be up front about how voting on an issue will win or lose the member
votes
 Implicate this notion though
 Never make explicit political promises or threats
o Never mention money
 Never reference how much you have given to a particular member
o Best rationale…
 This means jobs for the district
 Or, this is morally right
 But, you better always have a policy rationale…KEY
o Basic things
 Schedule in as far as advanced as possible…important
 Accommodate them in all things
 Time and location
 Never schedule members to meet you…you meet them
o Your client could be an asset at meetings
 Put some thought into this though
 Who are you bringing?
 What are their politics?
 Sometimes its better if they stay home
 May be better off brining someone other than the CEO
 CEOs often forget that we are supplicants in this setting
 Clients often don’t care if they ruin relationships
 You have to make sure to maintain relationships long-term
o This will be better for immediate and future clients
o Cultivate schedulers
 Really valuable thing
 For the same reason, chiefs of staff
o Staff
 Clients often do not want to mess with the staff
 It is almost always a bad idea to bypass the staff
 Especially when the staff isn’t buying your argument
o Could mean bad with relations with both the member
and the staff
o Understand who’s who?
 The relevant committees
 The important interest groups/coalitions
 Know the resources that each player brings
 What are their motivations?
o How strong the feelings on a given issue are for a
particular client
What if you don’t have the resources for a lobbying job?
o Be frank with the client about this
o What do you do?
 Bring someone else in
 Old-fashioned coalition building
22

Find other people/coalitions to lobby on your behalf
o Makes you appear to be the quarterback of your team
o Broadens your reach
Executive Branch Lobbying
 More difficult to lobby than Congress
 This is because…
o The agencies are as used to being lobbied as frequently
 Officials may not be accustomed to being lobbied and may feel
uncomfortable
 Not so much for political appointees, more so the case for
career employees
o There may only be limited discretion
 May not be a statutory or regulatory option for the official to pursue
o Real policy or legal concerns
 Legal concerns…may be real agency rules limiting, regulating, or
prohibiting lobbying
 Now, with these presidential administration, there are restrictions and
disclosure requirements regarding the lobbying of administrative
officials
 Lobbying the executive branch is more substantive-based then the proceduralbased lobbying of the Hill
o The executive branch officials will be looking for more info because they
generally have a great deal of expertise in their field
o It is much harder to make political arguments to the executive branch officials
because many are lifetime employees
Q & A with Paul Brown (Prime Policy)
 The best campaigns have political, policy, and legal aspects
 The Senate is always more important because of the disproportionate influence of its
minority
 Dream coalitions for a lobbyist…
o When you appeal to the constituents enough so that they make phone calls to
their members
o Timing and circumstance are very key as well
 Jobs arguments are generally the most compelling arguments to make
 A big issue in growing a lobbying firms is avoiding conflicting interests in attaining
new clients
 It is very important to develop relationships in lobbying
 Lobbyists can be generalists or experts
o Generalists act more like strategic advisors
REGULATION OF LOBBYING

[43-54]
Moving into the regulatory/legal realm, from the practitioner realm
23
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Lobbying has not been long-since regulated
o Generally driven by voluntary participation at-first
This has changed in the last 20/25 years
It used to be a “who cares” test
o Now there are some real consequences (both legal and of perception) of
registering as a “lobbyists”
Why regulate lobbyists?
o The possibility of corruption
 The speech itself could be corrupting
 What is the distinction between a lobbyist lobbying and a client
lobbying? … IMPORTANT
 The notion that there is such a frequency of interaction
between the policy makers and the Members
 There is more potential for, or at least the appearance of
such potential, the corruption of lobbyists because
lobbyists’ jobs depend on furthering their clients’ interests
o We want to dispose of disfavorable perceptions of
lobbyists as corrupt so that the public does not lose
complete faith in lobbyists
 Assuming this distinction, how do you regulate lobbyists?
 (1) Restrictions
o Limiting gifts
o Employment of past Members
 Post-employment restrictions
o Limit access to Members
 Problematic
 Members would not want to talk to
certain groups because it would be
public
o E.g., a representative for some
negatively perceived
organization would rarely get
there voice heard
 It becomes a political game and would have a
chilling effect
o Restrict campaign contributions/fundraising
 some states regulate campaign contributions
from lobbyists
 bundling
 people who physically raise money and
those who receive credit for raising
money (the latter category is very
subjective)
o Regulations on the way lobbyists are paid
24
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
Many states prohibit contingency fees for
lobbyists
 Most federal lobbyists won’t take
contingency fee cases even though they
are not explicitly illegal
Given the frequency and consistency with
which lobbyists meet with Members, there
would be too much pressure put on these
kinds of relationships


(2) Disclosure
o Transparency regulations
 Will the public see this information?
 Can you provide adequate disclosure?
 Today, there are not that many restrictions on lobbyists,
but plenty of disclosure/registration requirements
o Restrictions cannot really exist as they would violate
First Amendment rights barring a compelling
government interest that is narrowly tailored
Who is a “lobbyist”?
 Paid by a third party to influence policy
o Directly…personal contact with members, staff,
executive branch
o Meet regularly?
o Compensation/expenditure thresholds
o Also, think about the expenditures for smaller groups in
trying to comply with a given law
o What about intent?
 Hard to prove
o Distinction between rank and file civil servants and
the real policymakers
 Lobbying law defines lobbyists in this arena as
those contacting political appointees
o Time threshold
 This is what the real law does
 You have to make more than one
lobbying contact with a covered official
(people on the Hill, politically oriented
executive appointees)
 Over any three month period, you
engage in “lobbying activities” for more
than 20% of your time
 This should narrow the pool to “professional
lobbyists”
 It gets people who do day-in-day-out
lobbying
25
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

The down side is you get people who
game the system
You need to be careful because you do not want everyone
registered as a lobbyist
Seemingly innocuous decisions here could have significant
impacts on public policy
Writing these laws is not a very simple thing
LOBBYING REGISTRATION AND REPORTING REQUIREMENTS
(A) Federal Lobbying Disclosure Act of 1995
 Firms and other organizations employing lobbyists (in-house or employee-lobbyists),
and outside lobbyists (outside or consultants), who accept compensation for lobbying
on behalf of others must register and file periodic reports with Congress.
 The LDA applies to persons who lobby the Congress and/or the Executive branch.
 Key definitions
o “Lobbyist”
 (1) an individual who makes more than one “lobbying contact;” and
 an individual, not an entity
 more the one lobbying contact for that client
 (2) whose “lobbying activities” constitute at least 20% of his or her
service time working for a particular client/employer in a three month
period.
 20% or more of your time for that client
 apply this definition of “lobbyist” in all circumstances
 Exception for lobbyists or lobbying firms receiving no more than
$3,000 in compensation from a client for lobbying in the quarterly
period, and for organizations with in-house employee-lobbyists
who spend no more than $11,500 for lobbying activities in a
calendar quarter.
 Client-specific designation.
o “Covered official”
 Congress
 Members of Congress and all Congressional staff members
(also includes elected officers of the Congress, e.g., the Clerk
of the House, Parliamentarian of Senate, etc.)
o Everyone on the Hill
 Executive Branch
 the President and Vice President; employees of the Executive
Office of the President (White House, Office of Management
& Budget, US Trade Rep’s Office, CIA, etc.); other federal
“political appointees” (persons holding positions listed in the
U.S. Government’s “PLUM” book); certain senior Public
Health Service officials; and members of the armed services
serving at grade 0-7 or above.
26
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
o Every serving in a political position for the Executive
Branch
 Probably not career officials
o “Lobbying contact”
 (i) an oral, written or electronic communication,
 (ii) with a “covered” Executive branch or Congressional official,
 (iii) made on behalf of a client/employer,
 (iv) with regard to the formulation, modification or adoption of
federal legislation, federal (Executive branch) rules or actions, federal
programs or contracts, or the nomination or confirmation of a person
subject to confirmation by the Senate.
 Very broad
 Important notes
 Regarding…means you have the intent to influence
 Monitoring…you may just be talking about something
o Not lobbying
o “Lobbying activity”
 Lobbying contacts, as well as activities undertaken in support of or
in furtherance of such contacts. This would include: preparation
and planning activities; research and other background work intended
for use in lobbying contacts; and coordination with the lobbying
contacts and activities of others.
Registration
o required within 45 days of the earlier of the following:
 (i) the date the lobbyist is employed or retained by a client to be a
lobbyist; or
 (ii) the date the lobbyist in fact makes a lobbying contact for a client.
o Organizations that employ in-house lobbyists register on behalf of those
employees. Thus, a corporation that employs one or more in-house lobbyists
would file a single registration statement, listing the names of the employee(s)
who meet the definition of a lobbyist. A lobbying firm (an entity or a selfemployed individual who lobbies for outside clients) files a registration
statement for each client it represents as a lobbyist, listing on each registration
statement the names of its partners, principals or employees within the firm
who are lobbying for that client.
 Corporations/employers must be sure to register themselves as
registrants
The LDA exempts a number of communications from the definition of “lobbying
contact”:
o a request for a meeting, a request for the status of an action, or any other
similar administrative request, if the request does not include an attempt to
influence a covered executive branch official or a covered legislative branch
official;
o a communication “made by a public official acting in the public official’s
official capacity;”
27
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o contacts with officials by news organizations where the purpose is to gather
and disseminate news and information to the public;“
o grassroots lobbying,” by which appeals are made to the general public to
contact Members of Congress or the executive branch on certain issues;
o communications “made in a speech, article, publication, or other material”
distributed directly to the public or to the mass media;
o testimony before any committee or subcommittee of the Congress;
o information provided in writing in response to a request by an official for
“specific information;”
o information provided in response to a notice in the Federal Register or similar
publication “soliciting communications from the public and directed to the
agency official. ... to receive such communications”;
o communications made in participation in various government or other legal
proceedings, e.g., contacts made with officials of agencies in judicial
proceedings, or other criminal or law enforcement proceedings (this
exemption applies only to contacts about particular cases or parties, not to
lobbying on overall policy);
o filings or proceedings that the government must by statute or regulation
maintain on a confidential basis;
o participation in administrative agency adjudications, such as those conducted
under the Administrative Procedure Act;
o comments filed in public proceedings or “made on the record in a public
proceeding;”
o petitions for agency action made in writing “and required to be a matter of
public record pursuant to established agency procedures;”
o contacts made in the course of participation in advisory committees whose
proceedings are conducted under the Federal Advisory Committee Act;
o circumstances where the application of the law would undermine some other
legal objective or impose a hardship on another type of organization. For
example, churches or conventions and associations of churches are exempt, as
are religious orders. Disclosure is not mandated for individuals whose
communications are protected under the Whistleblower Protection Act of
1989, the Inspector General Act of 1978 or some other provision of law
designed to protect such communication for similar purposes; and
o communications made by individuals with covered officials on matters
involving their own “benefits, employment, or other personal matters,” and
their communications may encompass the formulation or adoption of “private
legislation” if conducted with their own elected representatives.
o Snapshot
 Submitting comments…exempted
 However, you cannot turn around and go talk to a member
 Grassroots lobbying…exempted
 Testimony…exempted
 …proceedings on the record and situations in which you are
responding in writing are generally exempt
Quarterly Disclosure Reports and Semiannual Contribution Reports
28

o Quarterly lobbying disclosure reports
 describe a registrant’s lobbying activities for the quarter, including
 (i) the issues lobbied on,
o name of bill, regulatory matter, etc.
o identify subjects you were interested in
 (ii) the Houses of Congress and federal agencies contacted by
registrant’s in-house lobbyists, and
o Category of Congress (don’t have to list members)
 (iii) the names of registrant’s in-house lobbyists who engaged
in the lobbying activities.
o List lobbyists and issues within a given subject matter
category
 A registrant that is a lobbying firm must provide a “good faith
estimate” of the income received from each client for lobbying
activities during the period, and a registrant that employs in-house
lobbyists must provide a “good faith estimate” of the total amount
spent on lobbying activities during the quarter.
 The registrant files, not the lobbyist
o Semiannual Contribution Reports
 Registrants and each of their in-house lobbyists must report any
 (1) campaign contributions of $200 or more to federal
candidates, Leadership PACs and party committees;
 (ii) payments for the cost of an event honoring a
Congressional/Executive branch official
 (iii) payments to entities designated by or established, financed,
maintained or controlled by an Congressional or Executive
branch official;
 (iv) payments to entities named for a Congressional official, or
given in recognition of a Congressional official; and
 (v) donations to presidential libraries and inaugural
committees.
 IMPORTANTLY, must certify the organization and each
lobbyist’s compliance with Congressional Gift & Travel Rules.
 Filed by both the organization and each employee-lobbyist
 Two separate reports
 Lobbyists also have to report donations by PACs over which they have
control (oversight)
 Certification of congressional ethics gift rules by both the organization
and each employee-lobbyist…IMPORTANT
The key part of this analysis is figuring out whether you are a “lobbyist”
(2) Obama Administration Restrictions Applicable to Lobbyists
 Per guidance issued by OMB and the Treasury, federal officials are required to report
their contacts with lobbyists regarding Stimulus Act and TARP funds. In addition,
any written views submitted by a lobbyist relating to Stimulus or TARP funds must
be posted on the agency’s web-site within 3 business days. Certain communications
29
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
are specifically excluded from these requirements. In addition, the Obama
Administration has banned lobbyists from serving on federal advisory committees.
lobbyists cannot serve on advisory committees – panels agencies set up
somebody else on the company would have to serve on the advisory panel
ANTI-CORRUPTION LAWS; LIMITATIONS ON NON-CORRUPT GIFTS AND
TRAVEL
[54-61]
Webster’s retainer
 Hired by the very bank he is trying to get reauthorized
 After his retainer has diminished, he goes back to the bank and asks to get his retainer
refreshed (so he doesn’t flip sides)
 At the time, this wasn’t illegal
o Many public officials had similar arrangements
 American political culture is not pristine
o Often times we codify activities or require the disclosure of certain activities
that may be considered illegal elsewhere
Why is corruption such a bad thing?
 We don’t want our legislatures to be voting for personal gain
 It gives a minority an unfair advantage in the system
 Part of representative democracy is that our representatives have a fiduciary
duty to their constituents
 The people on top will stay on top because they have the money to keep them there
 It drives prices up because every transaction has an additional cost
 It results in the misallocation of resources
o Ks get awarded not for the best bid or even the best purpose
o Government ends up awarding contracts to people who should not receive
them and investing in projects that should not be invested in
 Harms the moral feelings of the populace – may result in political disengagement
ANTI-CORRUPTION LAWS
(A) Bribery
 To violate the bribery law, there must be a quid pro quo – a specific intent to give or
receive something of value in exchange for an official act. Thus, giving something of
value to a government official just because he or she is a government official or to
curry favor with that official does not, in and of itself, violate the bribery law because
there is no specific exchange of something of value for an official act. (It could
violate the anti-gratuity law, however, see Sec. B below).
 Elements
o (1) a public official (including a person selected to be a public official);
 “Public official” = Members of Congress, officers, employees and
other persons acting for or on behalf of the U.S. Government or the
District of Columbia, including persons nominated or appointed to be
30

public officials. May include persons who are not per se federal
employees but have power to allocate and expend federal funds under
grant programs.
o (2) a thing of value (monetary or otherwise);
o (3) an offer or promise to the public official, or a request by the public
official, is made for the thing of value
o (4) for the benefit of the public official or some other person or entity (e.g., a
campaign committee, a charity or other third-party);
 Bribery law is not just limited to giving things to the public official
 It could be giving things to the official’s charity, etc.
o (5) the thing of value is given or promised, or requested or received, in return
for influencing the performance of an official act; and
o (6) there is a corrupt intent (a wrongful design to acquire some pecuniary or
other advantage).
“Official act” = any decision or action in any question, matter, cause, suit,
proceeding or controversy, which may at any time be pending, or which may by law
be brought before any public official, in such official’s capacity, or in such official’s
place of trust or profit.
(B) Anti-Gratuity
 Something of value given to a public official “because or in recognition of” an action
taken by the public official – a past or future act (given as a reward, like “tipping”).
 No quid pro quo requirement. Bribery requires a specific intent to give something of
value in exchange for an official act, i.e., it is necessary to demonstrate that the
benefit was given to induce the official to undertake a specific act. But for a violation
of the anti-gratuity law, it is only necessary to tie the gift to an official act – it need
not have induced the public official to have undertaken the act; it only needs to be
“for or because of an official act performed or to be performed.”
 Unlike bribery, to violate anti-gratuity, the “thing of value” must be for the
benefit of the public official, not some third person or entity. For example, a
campaign contribution to a public official’s campaign committee would not cause the
official to violate the anti-gratuity law unless the candidate converted the campaign
funds to personal use, but a campaign contribution could violate the bribery law
because the bribery law includes payments to third-parties, such as a campaign
committee.
Sun-Diamond
 We are dealing with illegal gratuities here
 An ordinary reading of the IG statute points to the fact that the prosecution must
connect the IG with the official acts performed for receipt of the IG
 To build these cases you have to find an official act that you can tie to a
particular gift
(C) Honest Leadership & Open Gov’t Act
 Federal lobbyists and firms/organizations registered/required to be registered under
the Lobby Disclosure Act (“LDA”) may not knowingly make a prohibited gift or
31
provide travel to a Member of Congress or congressional employee. In addition to
civil penalties, a person who “knowingly and corruptly” fails to comply with this
prohibition is subject to criminal penalties.
Brewster
 Donations were going into his campaign committee
 Brewster was using the money for personal use
 Jury instructions
o TJ failed to make the distinction between bribery and IG clear to the jury
o Why is this case so important?
 It was dealing with campaign finance
 Historically, American campaigns have been funded
privately and to put down the axe here may subject many
officials to legal violations
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This area of the law is very difficult to police
It has gotten worse over the years
o Candidates have to raise more money
o More information about members is disclosed because of information
technology advances, etc.
Public confidence in members’ decisions has thus decreased
As a lobbyist, the way you steer away for this kinds of problems is through
careful useful of language, strategic giving so as not to appear to be corrupt
Susman article
 What’s wrong with legal gifts?
o Reciprocity principle
 Reciprocal behavior is not necessarily corrupt, but it has the potential
to be corruptive
o The appearance of corruption, even if no corruption itself is occurring
 For these reasons, gift rules are being adopted at the federal, state, and local
levels
o General elements
 Gift limits
 Disclosure requirements
LIMITATIONS ON NON-CORRUPT GIFTS TO FEDERAL OFFICIAL
(A) United States Congress (Senate and House have separate rules, but they are almost
identical and therefore treated collectively for purposes of this outline)
 Gifts from lobbyists
o No Member, officer or employee of Congress may accept any gift from a
lobbyist or an organization or firm that employs or retains a lobbyist. This
ban prohibits Members and staff from accepting most meals, tickets and other
gifts from lobbyists and their employers. However, exceptions to the ban
enable Members of Congress and congressional staff to accept free attendance
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to certain events that are held in group settings and satisfy certain conditions.
These exceptions are summarized below.
 If you are a lobbyist, you are subject to a general ban of giving
gifts
 “lobbyists” as defined above
Gifts from non-lobbyists
o Gifts from non-lobbyists are permissible but limited as follows: Members of
Congress and staff may accept a gift with a fair market value below $50,
provided that the cumulative value of all gifts from any one source does not
exceed $100 in any calendar year. A gift worth less than $10 is not counted in
a source’s annual cumulative limit. A “source” includes all of the employees
of an employer. House and Senate guidance warns against using nonlobbyists as surrogates to circumvent the gift ban.
 Non-lobbyists can give fairly nominal gifts
The term “gift” is defined broadly to include any gratuity, favor, discount, form of
entertainment, hospitality, loan, forbearance, service, training, transportation, meal,
lodging or any other item having monetary value.
o You cannot work around the rule by having a third party give to a public
official
A gift to a family member of a Member or Congress or Congressional employee is
treated as a gift to the Member or Congressional employee, if it is given with the
consent or with the knowledge of the Member or employee, or if the gift is given
solely because of the official position of the Member or employee.
o you cannot give to a public official by giving to a third party affiliated
with the public official
Exceptions (in order for the ban to apply, the gift has to be given in relation to
their official position)
o Gifts from relatives
o Lawful political contributions
o A gift given out of personal friendship.
 Factors for considering whether a gift is based on personal friendship
include
 the history of the relationship between the individuals (e.g.,
does the relationship pre-date the time the Member of
Congress/staffer was on the Hill),
 whether are gifts going both ways or only one way (i.e. to the
Congressional official), and
 whether the donor is personally paying for the gift or is seeking
either business reimbursement or a tax deduction for the
expense of the gift.
 Gifts from any person to a Member or staffer that fall within the
exception for gifts based on personal friendship cannot, without the
written approval of the appropriate Congressional Ethics Committee,
exceed $250 in a calendar year;
 Even if a friendship, you are limited to $250
 Is there a general personal relationship?
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o “The Reception Exception”
 Free attendance at receptions and continental breakfasts (limited to
appetizers, refreshments) where no meal is provided (must be food that
can be eaten with a toothpick); must be a non-meal.
 No meal
 …Group gatherings exception…you cannot insulate public officials
from hearing what the public needs and wants; the member must not
benefit personally (except for the mean or nominal entertainment)…
o “Widely Attended Event Exception”
 Free attendance at a “widely attended event” (including a meal
and entertainment given to all attendees as an integral part of the
event).
 An event is widely attended if
 there is a reasonable expectation that at least twenty-five (25)
people who are not employed by Congress (not predominantly
from one firm or company) will attend and if the event is open
to members throughout a profession or industry or those in
attendance represent a range of persons interested in an issue.
 Attendance is only permitted if either
o (i) the Member or staffer participates as a speaker or
panel member by presenting information having to do
with Congress, or matters before Congress,
o (ii) performs an ceremonial function appropriate to
position; or
o (iii) attendance otherwise is appropriate to the
performance of the Congressional official’s duties, i.e.,
it is informative or educational for the Member of staff
to attend or furthers the attendee’s performance of
his/her official duties.
 Business-like environment
 At least 25 non-congressional attendees, and they cannot be from
the same organization
 v. reception exception…you can accept a meal (many conditions
come along with being able to do this)
 Throughout the exceptions, we see the attempted avoidance of
exchanges in one-on-one or similarly intimate encounters
o Charity events
 If certain conditions are satisfied, Members and staffers may accept
free attendance to a charity fundraising event from the “sponsor” of
the event.
 Similar to widely attended event, but proceeds must go to a
charity
 Events designed primarily to raise money for charities
 This exception was getting abused, so this exception now faces
greater restriction
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o
o
o
o
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The charity event must not be predominantly of a recreational
nature
 The host of the function cannot pay for travel, but the charity
the event is being held for can pay for travel
Political Fundraising Events
Baseball caps, greeting cards, t-shirts and other items with little intrinsic
value (below $10), except this exception does not allow lobbyists to provide
food or beverages (meal or non-meal) in a one-on-one or small group setting.
Not even a cup of coffees.
 Catch-all
 Does not cover good given by a lobbyist
“Personal hospitality”
 “Personal hospitality” from an individual who is not a lobbyist,
corporation, or some other organization. The visit may not have a
business purpose.
 The "personal hospitality" exception is only available to
individuals
 This exception does not apply to lobbyists
 Lobbyists cannot have a congressional official come into
their home unless the act qualifies under another exception
– maybe the personal relationship exception
Items paid for by the federal, state or local government, or secured by the
government through government contract, as well as gifts from other
Members or employees of the Congress; and
 State colleges can give gifts to congressional officers, but private
institutions cannot
 Less risk of corruption…government entities tend not to
corrupt other government entities
 Other items exempted from the Congressional Gift limitations.
There are numerous other items not referenced here. These include an
exemption for informational materials, such as books, articles,
periodicals, audio or videotapes sent to a Congressional office,
invitations to attend a training session, including any food and
refreshment furnished to all other attendees, if the training is
considered to be in the interest of the House or Senate;
…these exceptions assume that the benefit of these events outweighs the
potential reciprocity
“fact finding” trips allowing for payment of travel for members is no longer a
really relevant exception
Legal defense funds
o If you are a lobbyist or lobbying firm, you cannot contribute to members’
legal defense funds
In sum, you can still give gifts, you just have to make sure it fits into an
exception
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If you make a gift that violates the congressional gift ban, you can be found
civilly liable for simply making the gift, and you can be found criminally liable if
you made the gift with a corrupt motive
(B) Executive Branch
 All federal executive branch officials and employees are generally prohibited from
receiving gifts because of their position from “prohibited sources.” (But there are
important exceptions to this prohibition, see below.)
 “Prohibited sources “ are persons (a person who meets any one of the four
criteria)
o (a) seeking official action by the employee’s agency,
o (b) who do business or seek to do business with the employee’s agency,
o (c) who conduct activities regulated by the employee’s agency, OR
o (d) who have interests that may be substantially affected by the performance
or non-performance of the employee’s official duties.
o An organization could also be a “prohibited source” if a majority of that
organization’s members can be classified as prohibited sources.
 The term gift is broadly defined and includes anything of monetary value, including
discounts, loans, forbearance on payment, and services.
 Excluded from the definition of gift or exempted from the ban:
o modest items of food and refreshment (soft drinks, coffee, donuts).
o anything paid for by the government, secured by the government under
government contract, or accepted by the government in accordance with a
statute, such as office supplies.
o items of little intrinsic value which are intended solely for presentation, such
as trophies.
o Non-monetary gifts with a market value of $20 or less; provided that the total
value of all gifts a federal employee receives from any one source in any
calendar year may not exceed $50; however, pursuant to an Executive Order
issued by President Obama upon taking office, presidential appointees may
not accept any gifts, regardless of their value, from a lobbyist or an
organization that employs or retains a lobbyist.
o A gift that is not made to an Executive branch employee because of that
employee’s position, but rather out of friendship (see Sec. A3 above for
criteria establishing a personal relationship/friendship) or a family
relationship, are permitted.
o Free attendance at an event on the day that Executive branch employee is
speaking or presenting information on behalf of the agency.
o Free attendance at certain widely-attended gatherings, including food,
refreshment and entertainment (ordinarily requires agency approval).
o Gifts given to the President or Vice President, provided the gift does not
involve a bribe or illegal gratuity and the gift is not solicited by the
President/Vice President or otherwise coerced.
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Most people who work in the executive branch agencies are not comfortable with
gifts
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Applies to any “prohibited source”
o Anybody who is a regulated by, does business with, or has interest in that
agency’s action
o “Prohibited source” is pretty board
Gift limit is at $20
o Buy-downs are not allowed (so you can meet the $20 limit)
o Officials can buy the item at fair market value
Annual cap of $50 per source
There are similar group gathering exceptions, but they have to get the approval
of the ethics committees
MONEY IN POLTICS
[62-74]
TYPES OF MONEY; REGULATING MONEY
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Campaign finance
o Campaign contributions and campaign expenditures
o Money that is spent for the purpose of influencing an election
 Campaign finance law is only one form of “political money”
regulation
 Other forms of “political money”
o Money spent on lobbying, think tanks, issue ads (cannot
mention a specific candidate)
Why do we want to regulate campaign contributions and expenditures?
o Purpose of campaign finance regulation…combating corruption (quid
pro quo) or at least the appearance of corruption
 If people believe that the system is corrupt, they lose confidence in the
system and choose not to get involved
Premise in Buckley
o Money is speech in the electoral context
 Thus, money cannot be regulated in the electoral context
o In order to speak publicly on issues, it costs money, and thus when you
limit spending in campaigns, you are limiting the quantity free of speech
 Your ability to speak is correlated with how much money you have
How do you regulate campaign contributions and expenditures?
Buckley (1976)
 First important campaign finance case
o Focuses on “campaign finance”…money that is spent for the purposes of
expressly advocating for the victory or defeat of a candidate
 What did FECA do?
o (1) Limits expenditures
 I say something
 SC holding – unconstitutional
 The idea was to lower the costs of campaigns and the lessen the
importance of money in elections
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Problematic…
o you need more money in order to beat a popular
incumbent
o potential for expensive primaries
o you cannot simply “gag” people
o if you spend $1 mil on behalf of a candidate, there
will still be a predisposition for that candidate, if
elected, to show special preference to that donator
 the distinction between an expenditure and
contribution appears to be false
 In sum…
o SC held that they do not see the quid pro quo or
potential for corruption, so on balance the SC does
not see the government’s interest to be compelling
enough to impose limits on free speech.
o How could you overturn this ruling?
 Make the case that independent expenditures
have the potential for quid pro quo and
corruption
 There is some kind of “winking” and
“nodding”
 Campaign finance reformers should put together
a record of examples proving incorrect the
premise on what the SC rests
o (2) Limits contributions
 Give something to someone else to speak with
 Contribution is a form of expenditure
 Because contributions are considered speech by proxy, the Court
tends to uphold limitations on them with more frequency than they
hold up limitations on expenditures
 SC holding – constitutional
 The SC thinks the distinction between an expenditure and a
contribution is important because “contributions” involved
speech by proxy
 Limitation must be reasonable
 There is a greater risk of corruption or the appearance of
corruption with contributions than with expenditures
o (3) Public financing
 dying concept
 SC holding – constitutional
 If you want public financing, you are subject to regulation
 Its all voluntary, rather than mandated, and therefore its
regulation is constitutional
o (4) Disclosure
 all money one way or the other will be disclosed
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then, journalists will report on this and the public will become more
aware and vote with a greater sense of knowledge
SC holding -- constitutional
 it does not directly regulated freedom of speech
 marginal infringements on First Amendment rights
 FEC has the authority to give exemptions or provide
limitations if people disclosing are likely to be subject to
threats, etc.
 Public benefits outweighs
 Typically disclosure statutes will withstand constitutional
scrutiny because they do not directly regulate free speech
Breyer article
 When the CON tells Congress it can’t do something, it is limiting our right to
self-govern
 Breyer argues that people who expend so much money in elections drown out voices
 Protecting the First Amendment is great, but it also takes away our ability to selfgovern
Campaign Finance Contribution Restrictions and Reporting; Federal Election
Campaign Act of 1971, as amended (FECA).
 FECA regulates the finance of federal elections by prohibiting certain sources from
making campaign contributions, limiting the amount others may contribute and
requiring federal candidates, party committees, PACs and other persons making
campaign expenditures to file disclosure reports.
 Lobbyists normally are involved in counseling clients about and/or soliciting and
making campaign contributions. Thus, this outline is limited to the laws and rules
regulating campaign contributions.
 FECA does three things (with regards to hard money contributions…money
given to support candidate directly in a federal election)
o Prohibitions
o Limitations
o Disclosures
 Prohibitions
o Corporations and labor unions. However, a corporation/union may use its
treasury funds to pay the administrative expenses (overhead) for a
“connected” PAC that collects voluntary contributions from eligible persons.
For a corporation, the eligible persons are certain employees, stockholders and
their families; for a labor union, the eligible persons are the union’s members,
certain union employees and their families.
o Federal contractors (but again, as above, a corporation that is a federal
contractor may establish a PAC and make contributions from the PAC’s
voluntary contribution funds).
o Foreign nationals (except that foreign nationals who are lawfully admitted
for permanent residence in the US, i.e., a person with a “green card,” may
contribute to the same extent as a U.S. citizen).
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o All these groups can make PACs though. The PAC is making the
contribution, not them.
Contribution Limits for Individuals: The amount an individual may contribute in
federal elections is limited as follows:
o Up to $2,500 per election to a federal candidate (primary and general
elections are treated as separate elections), so an individual may normally
contribute $5,000 per election cycle to a candidate who participates in both
the primary and general election.
o Up to $30,800 per calendar year to a national party committee (the
Democratic or Republican National Committees and their Senate and House
party campaign committees, e.g., Democratic Senatorial Campaign
Committee and the National Republican Congressional Committee).
 Per calendar year, rather than per election
 most members have an obligation to raise money for a national party
o Up to $10,000 per calendar year to a State party committee’s federal
account (State parties maintain federal accounts for engaging in federal
election activity and helping to elect the party’s federal candidates running in
that State).
o Up to $5,000 per calendar year to any federal PAC.
Political Action Committees
o A political action committee (“PAC”) solicits and collects contributions from
lawful sources and uses those funds for making contributions (and other
campaign expenditures). PACs must register with the FEC and file detailed
financial reports periodically. There are two types of PACs – connected
PACs and non-connected PACs.
 Corporations, labor unions, etc. set up PACs
 Corporate or union money can pay for overhead costs, but no
corporation of union money can go into the account used for making
contributions
 The corporation is limited to soliciting its employees, stockholders,
and family members
 The last two of which are rare
 Non-managerial employees may be solicited in writing only
twice a year
 Unions are limited to soliciting money from members of the union
Connected and Non-connected PACs
o A connected PAC is a PAC that is “connected to” (sponsored by) a
corporation or labor union. (A connected PAC also may be known legally as
a “separate segregated funds,” because the political funds collected by the
PAC must be deposited into an account kept separate and segregated from any
corporate/union funds.)
o A non-connected PAC is a PAC that is not connected to any corporation or
labor organization.
o The difference is as follows. A connected PAC may have its administrative
overhead expenses paid by the corporation/union it is connected to, whereas a
non-connected PAC may not accept any corporate or union funds – even for
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administrative overhead. The non-connected PAC must pay its administrative
expenses from the funds it raises. To off-set the administrative subsidy that
connected PACs receive, federal election law limits who may be solicited for
contributions to a connected PAC. In sum, only a corporation’s stockholders,
managerial employees and their family members may be solicited for
contributions to a corporate connected PAC (in addition, twice annually, a
corporation’s non-managerial employees may be solicited in writing).
Similarly, a union-connected PAC may only solicit its connected union’s
members. No other persons may be solicited for contributions to a connected
PAC. In contrast, a non-connected PAC may solicit any otherwise lawful
source. Thus, this is the trade-off: a connected PAC gets corporate/union
administrative subsidies but has a limited solicitable audience, whereas a
non-connected PAC has an unrestricted solicitable audience, but may not
receive corporate or union administrative support.
 Non-connected PAC…group is usually based around some
ideological cause
Contribution limits for “multi-candidate” PACs
o A multi-candidate “PAC” is a PAC that
 has received contributions from more than fifty (50) contributors,
 has been registered with the FEC for at least six months and
 has made contributions to five or more candidates for federal office.
 The vast majority of PACs qualify as “multi-candidate.”
o A multicandidate PAC is subject to the following contribution limitations:
 Up to $5,000 per federal candidate, per election (i.e., $5,000 for the
primary election and another $5,000 for the general election ($10,000
per election cycle).
 More than individuals
 Up to $15,000 per calendar year to a national party committee (DNC,
RNC and their respective Senate/House congressional party
committees)
 Less than individuals
 PACs are not subject to any overall contribution cap – there is no
limit on how much a PAC may contribute overall to federal
candidates, party committees and PACs, provided it adheres to the
aforementioned specific contribution limits.
Contributions by “non-qualified” PACs, i.e., PACs that do not qualify as
multicandidate” PACs
o Same contribution limits as those applicable to an “individual,” namely,
 up to $2,500 per candidate, per election ($5,000 per election cycle);
 up to $30,800 per calendar year to a national party committee;
 up to $5,000 per calendar year to a PAC (whether multi-candidate or
not).
o However, unlike an individual (and like multi-candidate PACs), an
unqualified PAC is not subject to the $117,000 overall cap on
contributions to all Federal candidates, party committees and PACs
(including the sub-caps).
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Registration and Reporting Requirements Generally
o Federal campaign committees, political party committees (national and
state federal accounts) and PACs are required to register and file
periodic public reports with the FEC.
 Registration Statements must provide the name of the committee’s
“treasurer,” committee address and certain other information.
 Periodic reports listing committee receipts and disbursements.
 Reports are publicly available via the Internet from the FEC, and
several organizations maintain web sites that collect and analyze
campaign finance information.
 What’s listed…who gave them money and how they are spending
their money
o Other persons (e.g., individuals, corporations and unions making
“independent expenditures” or “electioneering communications”) also
must satisfy certain reporting requirements if their payments exceed
certain thresholds.
Restrictions on Soft Money
o Soft money
 Funds raised and spent on political activities that fall outside the
legal purview of federal election law and therefore not generally
subject to FECA’s contribution prohibitions, limitations and
disclosure requirements. (Except for certain IRS filing requirements
and/or applicable state laws.) In this regard, there are various political
activities that impact federal elections but are not regulated by federal
election law.
 However, it is illegal for federal candidates, federal officeholders,
the national party committees, and their agents to solicit, collect,
spend or exercise direction or control over funds that would be
prohibited under federal election law. Thus, a federal candidate
may not ask a corporation or union (which are prohibited from
making contributions) to give money to an organization, even if
that organization is not subject federal election law.
o Snapshot
 Giving aid to a candidate indirectly
 Soft money is not subject to federal laws
 A federal candidate or national party committee cannot raise or use
soft money in federal campaigns
 Super-PACs; State Party Committees; Ideological Causes; Advocacy;
Think Tanks; etc.
 Use their money to engage in largely unregulated activity
 Run by non-candidates
 …There are a range of ways to contribute money politically
outside the making direct campaign contributions
Bundling Rule
o Federal campaign committees, leadership PACs and party committees
(“Reporting Committees”) must file reports disclosing the name(s) of any
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(i) “lobbyist” (person listed under the LDA),
(ii) organization or firm registered under the LDA (LDA registrant), or
(iii) any PAC established or controlled by a lobbyist or LDA registrant
who “bundles” more than $16,000 on behalf of the Reporting
Committee.
o “Bundling” occurs when a lobbyist, LDA registrant or lobbyist/registrant
PAC forwards contributions to, or is “credited” with raising funds by, a
Reporting Committee (i.e., a federal campaign committees, leadership PAC or
party committee).
o Snapshot
 (1) anytime you physically collect checks, you have to report
 the way around this…do not physically collect checks
 (2) campaigns, leadership PACs, and party committees must list the
names of any lobbyists or organizations employing lobbyists that have
raised more than $16,000 over 6 months
 anybody they have credit to
o they do not have to necessarily have to accurate
credits
Independent Expenditures
o There is no limit on the source or amount of payments for “independent
expenditures” and “electioneering communications,” except that foreign
nationals are currently prohibited from making such payments.
o In sum, an “independent expenditure” (“IE”) is a payment for a
communication that expressly advocates the election or defeat of a federal
candidate; and an “electioneering communication” (“EC”) is a payment for
a communication made by broadcast, cable or satellite, that mentions the
name of a federal candidate, 60 days before a general election or 30 days
before a primary election, and airs in the jurisdiction relevant to the
candidate’s election.
o Before 2010, individuals were free (except foreign nationals) to spend
unlimited amounts on both IEs and ECs, but corporations and labor unions
were prohibited from using their treasury funds for such purpose. In early
2010, the Supreme Court rule in Citizens United that corporations (and by
implication labor unions) could not be prohibited from making such
payments. Consequently, subject to certain filing and tax obligations,
corporations and unions may now spend unlimited amounts on IEs and ECs,
and this includes giving funds to other organization established to sponsor
such communications.
FECA Brief Recap
 Individuals
o If you are an individual you can spend as much money as you want on
independent expenditures and electionary communications…no limit
 IE…communication made that expressly advocated the election of
defeat of a particular candidate
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EC…refers to a candidate and must be made within a period 30
days before primary and 60 days before general election and must
be directed at the relevant jurisdiction
 Cannot be coordinated with a candidate or party committee or it
becomes a contribution
o Contributions
 Not as protected as IEs/ECs…contributions are “speech by
proxy”…limitations ecist
Corporations/Labor unions
o IEs and ECs…no limit
 Citizens United
o Contributions…none allowed
o So…Political action committees (PAC) come into play
Money is spent by individuals, corporations, and PACs
Disclosure requirements
o Aside:
 Candidates must disclosE…
 who they got their money from and how they spent their
money
ROLE OF MONEY IN AMERICAN POLITICS
Who is challenging campaign finance restrictions?
 …Republican, conservative Senators and support groups
 Republicans/conservatives argue that this a 1st issue about the ability of people to
express themselves
o Republicans want to limit regulation because they win elections by raising
large amounts of money
 The Republicans have the old boys network
 Democrats/liberals argue that this is a 1st issue about protecting minority voices
against being drowned out in the marketplace of ideas
o Democrats want to expand regulation because they lose elections because they
cannot raise as much money as Republications

As campaign finance becomes a more critical issue, nominees of federal courts will
probably be vetted with regards to there stance on this matter
o Campaign finance is really about politics

Why might you give (raise) a lot of money to a candidate?
o Your person may get elected
 And if you really believe in furthering an ideology the best way is the
get like-minded people elected into office and therefore change the
policy in your likeness
 This is pure political expression
o It gets you a foot in the door (especially lobbyists)
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 It gets you a little bit more prioritized
 This is a reason why lobbyists give or raise money
o Some people just want to feel invested in a candidate and believe
o It is social (particularly for presidential campaigns)
 Wealthy people will pay a lot to host parties/fundraisers
Are lobbyists and non-lobbyists the same?
o Non-lobbyists may not ask for anything (except maybe a picture), but they
will not raise money for another four years
o Non-lobbyists do not have the juice that lobbyists do
You should always make donors aware that they are not receiving benefits for
their donations, but rather that they are building a relationship
o A foot gets in the door
o Its not going to change their views or get them something big
o This is how you have to think about what money will not get you…
But, what does money get you?
o Lobbyists use political contributions as a means to build up their network
 Go to an event and meet a member and perhaps more importantly their
staff
o Unless you have a lot of experience or some important expertise, it is hard
to develop a network without money
o However, you can build relationships without money
 Hard work
 Good with relationships
 Leveraging your clients
 i.e., my client from your district…
o Money is a tool and should not be over-relied on
Lobbyists always feel the pressure to give
o Especially when solicited by campaigns
o However, you do not have to give in order to be a well-received lobbyist
Role of lobbyists in fundraising snapshot
 good way to build relationships
 good marketing
 you have to be careful to show that the money is not buying you anything more than
visibility/face time, etc.
 money will be used as a tactical device from time to time
 you make contributions strategically, like anything else
 big rules
o cannot expense your contributions back to your clients (your employer foots
the bill for you first obviously)
o must come out of your own funds
REPRESENTING CLIENTS BEFORE CONGRESS; AND ETHICAL
CONSIDERATION FOR LAWYER-LOBBYISTS
[74-79]
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Thus far, we have discussed situations where lawyers are representing clients as
lobbyists
So, when do lawyers represent clients as lawyers?
o Oversight/investigative hearings
o Confirmation hearing
 When someone has been nominated for public office and faces a
confirmation hearing with the Senate
Investigative/oversight hearings
o Where Congress decides it just wants to assess how a general law is working, being
carried out by an admin agency, or simply taking a look at any problems
o Thus, they invite people to testify
o Questions to consider here:
 Is my client at risk here?
 What are the potential legal risks?
 What are the potential political risks?
o Typically at hearings someone will be sympathetic to your view
 Whether it be the minority or majority party
o Often requested by subpoenas to produce documents
o Unlike in a judicial proceeding, you do not, as a lawyer, have all the same rights to
appeal to
 Every committee has its own rules that govern its conduct
 Many committees delegate their authority to a chairman
 The lawyer-lobbyist may find it beneficial to take off their attorney hat here
 This depends on whether someone is a target or a fact witness
 It more prove more beneficial just to go to the people that support you
and talk it through with them
o Subpoena (from the congressional committee)
 In the real world, you would write a letter objecting to it
 Thereafter, the parties negotiate what they need
 If there is no agreement, a motion to compel may have to be filed
 In the congressional world, Congress has a very broad mandate
 As long as they can show that something is in the legislative interest in
the committee, they can get the info
o Its pretty hard to combat this
 If you don’t comply, then Congress can cite you for contempt
 Thus, it may be more beneficial to go and engage with the committee
staff
o Often times, committee staffs are understaffed and on a bit of a
“fishing expedition”
o This can help you get the request narrowed
 The staff has no incentive to draft a narrow request
beforehand
o Attorney-client privilege
 Not an absolute; not a given
 Do not assume the AC privilege
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o
o
o
o
o
o
o
o
 Typically, committees will acquiesce, but again this is not a given
Other privileges are again assessed at the committee level
 They are in a stronger position then at a judiciary level
The hearings themselves
 Sometimes counsel ask all the questions
 Sometimes members ask the questions
 Limited to 5 minute time spans (they can do second rounds though)
o You can go through 5 minutes in no time
 The people on your side are an important resource in that they will provide a
lot of information
 Reports are issued after investigative hearings (no one is subject to jail time,
etc.)
 One thing you can do is work with committees on the language
used in the report
o That document is out there forever
 Congressional hearings can be fun
 No constraints of a judicial hearing
 Nice mix of politics and law
Confirmation hearings
 Can go quite smoothly or rather difficultly
 Sometimes people hold the confirmee “hostage” as a political move
The most important thing to tell your client is to tell the truth
 Lying at the hearing, to the staff, etc.
 Sometimes they are under oath at the hearing
 They are all government officials
When your client is subject to a congressional hearing, you might have to consider
what kind of criminal exposure your client might suffer
Attorney-client privilege
 You cannot assume that because you are a lawyer the conversations you
have with your client is privileged
 If your discussion has nothing to do with legal advice, it will not be
privileged
 Also, you have to pay attention to who is in the room when assessing
whether something is privileged
o E.g., most times media personnel doing damage control will be
considered under the direction and part of the legal defense
 We really don’t know when lobbyist-lawyers’ conversations with clients are
privileged
 If you absolutely cannot take a chance, it might just be best to exclude the
non-lawyers on the team
 Or, you could memorialize that the non-lawyers are members of the
legal team
In oversight hearings, reputations can be destroyed
 This could really cost someone’s company at the bottom line
Committees can also do referrals informing the agencies about things that they
should look into further
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
You don’t want to anger these committees. In doing so, you are asking
for trouble…IMPORTANT
 Even though they cant jail or fine you, they can cause quite a
commotion.
 A defiant tone is just unhelpful in all circumstances
Public service
 Back end of public service
o If you go into public service, you will face serious post-employment
restrictions upon departing
o The Executive Branch isn’t so bad, unless you are high up
o House
 Ban on members and senior staff from lobbying in their former office
o Senate
 All members and staff banned from lobbying in their former office
 Front end of public service
o If you go private first as a lobbyist, you may be limited to the public service
you can engage in right away
o The Obama administration is really focused on keeping lobbyists out
 Public image, etc.
o Small decisions now, could become larger decisions later on
Becoming a lobbyist
 Three ways:
o (1) People who are in government first
 most typical path
 you learn the ins and outs of government
 you make relationships
o (2) people who come up through a company or trade association
 you learn about the issues important to the company
o (3) subject matter expert from academia
o right out of college is pretty rare
 it is generally people who did not set out to become lobbyists
 you have to have a passion for politics and policy making
 importance of a dynamic personality
o not a must
 most lobbyists are successful because everyone knows that they
know what they’re talking about
 when working for a firm, part of the job is to get business
 fundraisers are sometimes hired to be lobbyists
 “the revolving door”
o people go from public to private and back to public
o there is not as much concern when you leave the private sector and go to
public
 there is not the same economic interest present
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