Crafting a piece of legislation is an art form. While most legislative bodies have staff specialists who can write a bill so as to “fit in” with existing laws, many advocacy organizations are turning to hired guns to help. Legislative staff who work for the political leaders may be reluctant to tackle a controversial issue without input from their bosses or may not have the technical knowledge to address the concerns of an advocacy group. At best, reliance on legislative staff to “get it right” could require time consuming consultation and negotiation. The advantage of drafting the bill outside the legislative staff is that the experts in the organization can frame the issue to the organization’s needs.
That’s why the title of the Washington Post article, “In Trump era, lobbyists boldly take credit for writing a bill to protect their industry,” seems misleading. Writing bills was a standard procedure for lobbyists long before “the Trump era.” Author Kimberly Kindy notes, “It isn’t unusual for industry stakeholders to draft legislation. But in this case, lobbyists were able to rapidly shepherd their bill to House passage with minimal input from the public or even members of Congress.” Wait! Is it the lobbyists’ fault that the legislators were negligent in their duties?
Sneaking language into a bill has nothing to do with President Trump or legislative drafting by “lobbyists.” The fact is that lobbying has changed over the past decade from glad-handing to technical assistance. An article in “Roll Call” this week highlights the decline of former legislators going into the lobbying business. More former members moved to teaching, helping other candidates, or enjoying retirement than to the infamous “K Street.” Unnoted in the article is the fact today’s lobbyist is more like an adjunct staffer than like a sales rep.
Two contemporary examples from Ohio illustrate the distinction between writing a bill and engaging in the legislative process. SB 157 is currently under consideration in the Ohio Senate. The purpose is to regulate the resale of utilities by landlords, manufactured home park operators, and condominium associations. This practice of owners shifting their utility charges to their residents is currently unregulated. SB 157 is the fifth attempt in three years to regulate the practice. While it is widely believed that utility-reselling industry lobbyists brought the bill to Senator Kevin Bacon, his willingness to engage in dialogue with a wide range of interests speaks volumes about the wisdom of the legislative process. Several interested party meetings brought proponents and opponents together to debate the issues behind closed doors. And several public hearings have enabled the parties to put their testimony on the record for the public and the media to examine.
A contrasting example illustrates the same point, that open debate can expose private interests sneaking into the legislative process. Earlier this session, a single state representative drafted an amendment to the State Budget bill that would bar cities from enacting local lead poisoning ordinances. Rep. Derek Merrin, who is a real estate investor in the Toledo area, seems to have been trying to nullify Toledo’s Lead Safe Housing ordinance. Inartfully drafted legislative language raised all kinds of unanticipated consequences. Would the Ohio EPA be barred from regulating lead poisoning in water supplies? Concerted efforts of public health advocates and local municipalities successfully removed the provision from the budget bill. Again, robust legislative engagement was able to overcome ineptly drafted, self-interested legislative language.
That is the real point of the Washington Post article. Good legislative process compensates for self-interested proposals that may not be in the public interest. The fact that Republicans in the U.S. House and Senate have been skillful in using their narrow majority and high level of party discipline to stifle debate is the problem. Their willingness to go away from “regular order” culminated in the failure of the Senate to repeal and/or replace the ACA.
New York governor and one-time presidential candidate Alfred E. Smith observed, “The cure for the evils of democracy is more democracy.” The upcoming debate over tax reform could provide an interesting case study. Democrats may have found some ways to open up the process. Politico notes that Congressional Democratic leaders are balking at supplying votes for a debt limit increase unless Democrats are permitted to have a voice in tax reform.
Despite the risk of short-term legislative chicanery, nonprofit advocates can take a cue from lobbyists. Drafting a legislative solution to a social problem is a great way to take some control over the legislative process. Having a bill in the public arena can frame an issue and rally supporters. The proliferation of for-profit and nonprofit public interest law firms means that even small nonprofits can find legislative drafting expertise. Keep in mind the need to be careful when using tax-exempt dollars to promote legislation, but don’t be afraid to act. Many nonprofit advocates are skilled at the process of nonprofit lobbying and others can learn.