A Congressional Insider's Guide to Influencing Disability Policy
Effective Strategies for Interacting with Policy-Makers
This guide was supported by a generous grant
from the Joseph P. Kennedy Jr. Foundation and additional support
from: the Public Welfare Foundation; the Peter L. Buttenwieser Fund
of the Tides Foundation; Mr. and Mrs. Justin Dart; Fenmore R. Seton;
the American Occupational Therapy Association, Inc.; the Bernard
L. Schwartz Foundation, Inc.; Glaxo Wellcome, Inc.; Josiah Macy
Jr. Foundation; Kaleidoscope; American Speech-Language-Hearing Association;
the Nancy Lurie Marks Family Foundation; the Philanthropic Collaborative,
Inc. and the Ada G. Halbreich Revocable Trust.
TABLE OF CONTENTS
ABOUT THE AUTHOR
Robert “Bobby” Silverstein, J.D., is the Director of the Center for the Study and Advancement of Disability Policy (CSADP). Mr. Silverstein has over 25 years of experience providing policy analysis, research and technical assistance to policy-makers and negotiating and drafting public policy at the federal, state and local levels. At CSADP, Mr. Silverstein gives keynote speeches; conducts advocacy training; assists disability groups, federal, state and local officials in drafting disability policy and conducts action-oriented research. His areas of focus include civil rights, education, work incentives, workforce investment and welfare reform from a disability perspective.
From 1987 to 1997, Mr. Silverstein was the principal advisor to Senator Tom Harkin (D-Iowa), who served as chair of the Senate Subcommittee on Disability Policy (1987-1995), ranking member of the subcommittee (1995-1997) and lead member on disability policy issues on the Committee on Labor and Human Resources (1997). In this capacity, Silverstein played a central role in all important disability policy legislation produced between 1987 and 1997, including the landmark Americans with Disabilities Act, 15 other pieces of legislation and numerous disability-related amendments to other bills concerning, health, civil rights, education and job training.
From 1985 to 1987, Silverstein served as counsel to the Subcommittee on Select Education, Committee on Education and Labor of the U.S. House of Representatives. The subcommittee was chaired by Congressman Pat Williams (D- Montana). Silverstein’s responsibilities were similar to those undertaken during his Senate tenure. Among the bills Silverstein was responsible for was P.L. 99-457, which added early intervention programs for infants and toddlers with disabilities to the Individuals with Disabilities Education Act. This program is landmark because of its family-centered focus and its interagency orientation.
Silverstein has won respect from Republicans as well as Democrats, leaders of the disability community and representatives from state and local governments and the business community for his commitment to developing bipartisan consensus legislation that is based on sound research.
Between 1978 and 1985, Silverstein was a principal in the law firm of Long and Silverstein, P.C. The firm’s focus included conducting public policy research and analysis and providing technical assistance and training to policy-makers. Projects included directing and serving as the principal investigator of a congressionally mandated policy study and researching and drafting policies, regulations, manuals and handbooks for states and local agencies concerning implementation of various pieces of federal legislation.
In 1978, Silverstein worked for the Office of Civil Rights, Department of Health, Education and Welfare, where he drafted policy interpretations concerning three civil rights statutes: Section 504 of the Rehabilitation Act of 1973 (disability), Title VI of the Civil Rights Act of 1964 (race and national origin) and Title IX of the Education Amendments of 1972 (gender).
Between 1975-1978, Silverstein worked at the National Lawyers Committee for Civil Rights under Law as director and principal investigator of a congressionally mandated study of Title I of the Elementary and Secondary Education Act. This multi-billion dollar program provides compensatory education for educationally disadvantaged children residing in low-income areas. In this capacity, he conducted policy research and prepared six comprehensive policy analyses of the Title I legal framework. At the request of the chairs and ranking members of the House and Senate education subcommittees, Silverstein drafted bills and report language used for reauthorizing Title I. In addition, he was invited as an expert witness to testify at subcommittee hearings regarding the findings, conclusions and recommendations of the research study.
Mr. Silverstein received a B.S. in Economics from the Wharton School
of Finance and Commerce, University of Pennsylvania, and his J.D.
from Georgetown University Law Center.
As a congressional committee staffer for 13 years (1985-1997), I witnessed the enactment of over 20 bills related to disability policy. The bills included:
These historic pieces of legislation were the result of effective interaction with policy-makers (elected and appointed officials and their staff) by persons with disabilities, family members, advocates and national, state and local disability organizations. (See A Congressional Insider's Guide to Influencing Disability Policy: Effective Strategies for Interacting with Policy-Makers" by Robert Silverstein, 1999.)
Effective interaction did not occur by happenstance. Each piece of legislation described above resulted from the efforts of a broad-based organized coalition working in conjunction with policy-makers. The efforts of the coalition were guided by a strategic plan.
The purpose of this guide is to describe the critical characteristics, roles and functions of organized coalitions and the strategic steps necessary to bring about change in public policy.
The approaches suggested in this Guide reflect the best practices used in enacting the ADA, IDEA, the Rehabilitation Act and other disability-related legislation. The principles outlined in this guide are generally consistent with much of the research conducted by John W. Kingdon in Agendas, Alternatives and Public Policies (Harper Collins College Publishers, 1995); the experience of the Advocacy Institute (Building a Coalition Washington, D.C., 1995); and the descriptions of the policy-making process by Walter J. Oleszek in Congressional Procedures and the Policy Process (CQ Press, 1996).
I hope this Guide serves as a resource for those interested in affecting public policy that fosters the independence, inclusion and empowerment of persons with disabilities and their families.
Every day, elected officials are faced with a myriad of legislative decisions. Pressure on their time is intense. To determine which issues should get their attention, elected officials ask such questions as:
Staff must make recommendations to help elected officials select a course of action on issues and, once a course of action is decided, help implement the decisions.
Policy-makers (elected and appointed officials and staffs) rely on many people to help them make and implement their decisions. Some of these advisors include others in government (appointed officials in the Administration, other elected officials and staff) as well as persons outside government, including interest groups, experts, academics and constituents.
Stakeholders (such as interest groups, experts, academics and constituents) can become more effective in influencing public policy by carefully preparing for interactions with policy-makers. Effectively influencing policy-makers requires an understanding of their needs, the major factors affecting policy-makers’ decisions, the various change agent roles of persons within and outside government and the various opportunities for interactions and strategies for affecting change.
Two points are critically important. First, a disability policy change agent’s ultimate goal is to develop a long-term advisory relationship with key policy-makers so that when important decisions are made, the policy-makers rely on this individual for advice, counsel and support.
Second, disability policy change agents must understand their own strengths and limitations and carry out only those functions and roles for which they are qualified. Some people are experts on the content of policy; others understand first hand the impact of policy on people; still others understand the politics of the situation; and a select few are leaders who can carry out all roles. A change agent does not have to perform each and every role to make a difference. In fact, change agents lose their credibility when they try to perform roles that do not match their experience and capabilities.
Those interested in effecting change in disability policy must understand and respond to the needs of policy-makers, including elected officials and their staffs.
THE NEEDS OF ELECTED OFFICIALS
Role of elected officials. Most elected officials are generalists; they rarely delve into the details of a given policy area. Elected officials are more likely to set a general direction and leave details to staffers.
Why elected officials get involved. There are personal and political reasons why elected officials become involved in a given policy issue.
Personal reasons include:
Political reasons why elected officials get involved in a given policy issue include:
THE NEEDS OF STAFFS
Staffs’ relationship to elected officials. Staffs
work for and are accountable to elected officials. The primary function
of staff is to promote and protect their boss. Staff often take
criticism so that the elected official gets the credit. Staffs’
power stems from the power of the elected official for whom they
work. For example, staff directors of committees derive their power
from the fact that they work directly for the chairs of committees.
Since elected officials usually set the general direction for policies
and leave the content to staffs, the staffs rely on and consult
with academics, bureaucrats, interest groups and other staff.
Responsibilities of committee staff. Committee staffs have the greatest potential impact on shaping public policy for two reasons. First, committee staffers can devote full attention to one particular issue and, second, they have ready access to key elected officials on the committee.
Responsibilities of committee staffs include proposing priorities for the agenda, drafting legislation (with assistance of Legislative Counsel), negotiating details of agreements among interested parties, arranging hearings and identifying and securing witnesses, writing substantive components of speeches and preparing briefing materials.Since committee staffs do the most comprehensive preparation on issues, their primary “modus operandi” is to fulfill their responsibilities by “borrowing” ideas from reports, studies, surveys and recommendations from sources such as the executive branch, interest groups and academics.
Staff responses to proposals by stakeholders. In general, there are three categories of responses staffs make to suggestions by interest groups. Some staffers accept without question proposals developed by interest groups with whom they are closely aligned. Staffers then try to advance the proposal with other committee staff who are considering the pending legislation. Other staffers are somewhat more selective and advance only proposals in which there appears to be a broad-based consensus among stakeholders, but do not question the merits of the proposal. Still other staffers question the merits of all proposals, including those with broad-based support, to ascertain whether they accomplish agreed upon policy objectives or have unintended consequences.
Staff needs. To work effectively with staffers, it is important for stakeholders to understand staff responsibilities and typical responses to proposals (described above) and to understand and help meet staffs’ personal, substantive and logistical needs.
Personally, staff need help facing the constant pressures from their bosses, other elected officials, other staffs and stakeholders/interest groups.
On substantive issues, staffers need help gaining additional knowledge and insight about the subject matter. This requires a clear understanding of current law and ability to articulate the nature of problems and policy alternatives. Staffers also need help getting access to reports, studies and surveys. Staffers seek assistance in sorting out:
Logistically (primarily resulting from time pressures), staffers need help performing various roles and meeting responsibilities such as preparing talking points, speeches, language for bills and amendments and drafting report language, floor statements, colloquies, “Dear Colleague” letters; developing broad-based, bipartisan coalitions; securing co-sponsors; visiting elected officials to garner support or minimize opposition; activating grassroots and obtaining favorable press for the elected official.
FACTORS AFFECTING POLICY-MAKERS’ KEY DECISIONS
A number of major factors affect the decisions elected officials and their staffs make in the course of fulfilling their policy-making responsibilities.
Merits/contents of the proposal. Certainly, the merits/contents of a proposal are critical—the proposal must be well thought out and include appropriate rationales.
Framing the issue. It is important to frame an issue in a manner that takes into consideration the predilections of the policy-maker and is therefore more likely to elicit a positive response. This means developing different messages for different policy-makers. This does not mean, however, deviating from your underlying set of principles.
Timing of the proposal. Timing is always a critical factor in any determination. Interacting with a policy-maker at the earliest possible stage in the decision-making process is critical, as is follow-up until the decision has been made.
Reality check. Proposals must recognize the various “realities” which affect its acceptance. Political realities include the degree to which the proposal conforms to policy-makers’ personal interests as well as the nature and degree of support/opposition that may ensue once a decision is made. Logistical realities include recognition of the amount of time required to carry out the proposal.
The form of the message. Time is one of the most sacred of all commodities for elected officials and staffs. Thus, the form in which issues, policy alternatives and supporting data are presented is critical. Materials must be presented so that staffs and elected officials can easily translate the contents into the types of materials they can use, such as “talking points,” memoranda, statutory provisions, report language and floor statements.
Who delivers the message. The person delivering the message often determines whether or not the message is heard and acted on in a favorable manner. Policy-makers (elected officials and their staffs) rely on other elected officials and staffs, academics, consultants, interest groups and others to provide ideas and supporting information. The number of ideas and documentation of positions is sometimes overwhelming. Thus, policy-makers develop and then depend on relationships with others to help them sort through the clutter. As explained previously, the ultimate goal of any person interested in getting involved in changing public policy is to develop a long-term trust relationship with key policy-makers so that when important decisions are made, the policy-makers rely on this individual for advice, counsel and support.
As explained in Chapter 2, most policy-makers are generalists and therefore must rely on others to help guide them on whether to support or oppose a given proposal. Policy-makers seek advice from many people, including other elected and appointed officials within government who have a specialized expertise in a given subject area.
THE IMPACT OF ELECTED OFFICIALS ON OTHER ELECTED OFFICIALS
The merits of a particular proposal are obviously key in determining whether particular elected officials will support/oppose a bill or amendment. The elected official who sponsors a bill (or offers an amendment, speaks for or against an amendment/bill, makes a motion to table), however, is often the key factor as to whether other elected officials vote for or against the amendment/bill, particularly when the issues are controversial. In other words, on controversial issues, there is a heavy reliance on other elected officials who may have more specialized expertise or hold a particular position (e.g., majority or minority leader, chairman or ranking of committee of jurisdiction or an “expert” on disability policy).
Thus, stakeholders who want to affect a particular policy outcome must target their attention on these key specialists/opinion leaders within government as well as a particular elected official.
ELECTED OFFICIALS’ AND THEIR STAFFS’ RELIANCE ON THE EXECUTIVE AGENCIES OR DEPARTMENTS
In the area of disability policy, the position advocated by the executive agency or department is often given great weight by policy-makers of both parties in the Legislative branch. Even when there is disagreement between the Executive branch and policy-makers in the Legislative branch, policy-makers (particularly staff) still rely on the experts in the Executive branch to provide “technical assistance” to develop specific language for inclusion in bills.
ELECTED OFFICIALS’ RELATIONSHIPS WITH STAFF
Loyalty to staff is often a key factor guiding an elected official’s decision about a proposal, particularly when the staffer has longevity and a proven track record. The Member is often too busy to know the “ins and outs” of every issue. A good staffer informs the elected official about the substance as well as the political “lay of the land” of an issue. An action memorandum prepared by a staffer describes how other key elected officials are likely to vote, the position of key interest groups with whom the official is closely aligned, responses by constituents in the form of letters, faxes and phone calls and whether these communications include comments by any leaders. Based on this information, the staffers make a recommendation. In those situations where a member is extremely loyal to a staffer, interest groups that ignore the staffer risk their goal.
For issues that do not make “front page” news, staff recommendations are often followed. With controversial issues, elected officials are more apt to make independent judgments, balancing their own understanding of the issue with the positions of key individuals whom they trust and respect (including other elected officials and others with whom they have personal relationships).
PERSONAL OFFICE STAFF INTERACTING WITH COMMITTEE STAFF
Personal office staff working for elected officials usually have responsibility for a myriad of policy areas. As a result, it is unlikely for personal staffers to be expert in any particular area. Thus, there is a reliance on committee or subcommittee staff for recommendations. The greater the trust relationship among staff, the smoother the sailing for a piece of legislation. Trust is developed through various strategies, including constant briefings and status reports, notification of key meetings, “intelligence” about what major groups (with whom the member is closely aligned) think about the bill and the ability to resolve controversies.
This dynamic between personal and committee staff poses a dilemma
for interest groups. If an interest group convinces personal staff
to pursue an agenda item that is contrary to or has been rejected
by committee staff, the interest groups may be risking their relationship
with committee staff. It is often advisable for the interest groups
to give committee staff a “heads-up” that they are in
contact with personal staff. Interest groups have nothing to lose
by such a disclosure because the committee staff are certain to
find out anyway.
In addition to relying on persons inside government, policy-makers rely heavily on persons outside of government as well, including constituents, experts, academics, interest groups and lobbyists. Policy-makers develop and then depend on relationships with others to help them sort through the avalanche of information they receive. When elected officials cast an unexpected vote (i.e., contrary to the vote of their party, leadership, committee chair or the recommendations of staff), it may well be because the elected official responded to the recommendations of an individual with whom they have a close personal relationship. Elected officials do not always follow these persons’ advice. There are times when disagreements occur on a given issue or vote.
CHARACTERISTICS OF PEOPLE OUTSIDE GOVERNMENT WHO MAKE A DIFFERENCE
Policy-makers tend to rely on others who have certain characteristics:
An official hearing is a critical component of the legislative process. At the most basic level, hearings provide an official and permanent record of the views of key players on a given subject matter (where no legislation is currently pending), pending bills or implementation of existing legislation (oversight). These key players include appointed officials of the Executive branch, elected officials of the Legislative branch, academics and interest groups. Since testimony is included in Congress’ permanent record, those invited to testify in hearings must prepare carefully.
A hearing can serve several purposes. One purpose is to gain the attention of elected officials and staff, particularly those on or working for the committee holding the hearing. As a result of the hearing, a Member or staffer who previously had not focused on an issue might decide to get more involved. Similarly, a Member might decide to co-sponsor a bill, agree to speak out on the issue, direct staff to follow the legislation more closely or to get more input from constituents.
Another purpose of a hearing is to gain the attention of key officials in the Executive branch. Whether or not a representative of the Executive Agency or Department is asked to testify, the Executive Agency or Department will usually have representatives at the hearing to take extensive notes. Often, a witness demanding legislative action can get the Executive branch to take an administrative action that may achieve the same objective. By pressing an issue, witnesses may force the Executive branch to take action.
A hearing can also serve as a tool to gain the support and enthusiasm of the grassroots. A hearing may also serve the purpose of getting the issue on the radar screen of the media, which may in turn increase an issue’s visibility for the general public and indirectly influence the elected officials and staff.
Still another purpose of a hearing is to ascertain whether a bill is “ready” to move to the next stage in the legislative process—review by the committee or subcommittee in a “mark- up” session. A “mark-up” session is where elected officials of the committee or subcommittee have the opportunity to amend the bill before it goes to the House or Senate floor. Based on the hearing, elected officials and their staffs as well as elected officials of the Executive branch and interest groups can determine, among other things, whether the content of a pending bill needs major revisions or simply fine-tuning , the political “lay of the land” in terms of the degree of partisanship or support, the magnitude of support/ opposition by interest groups (identifies major camps) and areas where consensus may be possible.
Testimony from hearings is also used by committee staff as background for writing a committee report, which clarifies and explains the intent of language included in a bill. Testimony may also be quoted in floor statements by elected officials and for inclusion in memos distributed to other staff.
SELECTION OF WITNESSES
Committee staff often offer interest groups an opportunity to suggest possible witness categories (e.g., persons with disabilities, family members, elected officials, attorneys) or to recommend specific witnesses. Suggestions made should be based on a group’s strategic plan, the message the group wants the elected officials and staff to hear and which witnesses are most likely to influence the elected officials.
Committee staffs often consider the following factors in selecting witnesses:
There are rules governing the number of witnesses selected by the majority and the minority parties. In many cases, the majority party selects most of the witnesses on a panel, with the minority reserving the right to select at least one witness. In the area of disability policy, the selection of witnesses is often done jointly by both parties.
While hearings are almost always exciting to the witnesses, they are usually mundane and routine to the elected officials and staff who regularly participate in them.
Written testimony usually is submitted to the committee 24 to 48 hours before the hearing. It is rarely, if ever, read in advance by elected officials. At best, it is scanned by elected officials at the hearing. Written testimony is reviewed by staff to prepare questions for the elected officials to ask at the hearing.
Oral testimony provides an excellent opportunity to “educate” elected officials about the critical issues before the committee. However, the opportunity will be lost unless the witness’ testimony is compelling and to the point. Oral testimony can be boring, especially when witnesses read their written testimony.
It is not unusual for elected officials of the committee to be distracted while witnesses testify. On-the-spot briefings for elected officials by staffers can add to the distractions.
It is also important to recognize that it is the exception rather than the rule for all elected officials of the committee or subcommittee to be present at a hearing. In fact, it is often the case that the chair and ranking member of the committee or subcommittee are the only officials present at a hearing. This is because most elected officials have other pressing business. They often rely on staff to attend the hearing and inform them if any major issues were raised.
In addition, most hearings are well planned and “orchestrated” with few surprises. Witnesses are often “coached” by staff. Questions are often prepared in advance and shared with “friendly” witnesses. Sometimes “friendly” witnesses suggest that elected officials ask particular questions, thereby providing more time for the witness to make key points. Questioning also provides elected officials with an opportunity to “ambush” a hostile witness.
GETTING READY FOR A HEARING
As explained above, committee staff often work with interest groups to prepare for a hearing. There are several important steps in getting ready for a hearing.
Step 1: Overall plan. The first step is to draft a memorandum that includes an overall hearing plan, starting with an articulation of the purposes the hearing should accomplish. This memo may be prepared by committee or subcommittee staff, by members of the organized coalition—or both—working in tandem. As explained above, purposes of the hearing may include putting other elected officials on notice that a bill is moving, attempting to get an issue on the radar screen, sending a message to other elected officials and to the Executive branch that an issue is important or organizing grassroots support/opposition.
The plan should also include a statement of the problems that need addressing and the messages, themes and principles that should be communicated at the hearing, taking into consideration the various audiences that must be “educated.” These points must be simple, yet compelling. The plan must take into consideration the realities that elected officials are generalists, not specialists (like their staffs), and at the hearing, elected officials must be engaged, captivated and stimulated.
The plan must also anticipate the points that are likely to be made by one’s opposition. The plan should be consistent with a strategic plan developed by an organized coalition of groups.
Step 2: Sharing the plan and coordinating testimony. The second step is to share the hearing plan memo with all “friendly” witnesses. Outlines of testimony by these witnesses should be coordinated to ensure that all key points are made.
Step 3: Understanding each witness’ unique role. The third step applies to those who have been selected to testify. Witnesses must understand how and why they were selected to testify and the role each witness is expected to play at the hearing. Witnesses must also understand what to expect at the hearing (see above). Witnesses should be informed when written testimony must be submitted, the page limits (if any) and rules for attachments (many committees do not permit the attachment of documents that are generally available to the public such as studies, particularly if they are lengthy).
Step 4: Share draft testimony with committee staff and members of the organized coalition. The fourth step is to share draft testimony with appropriate committee staff (who share your views on an issue) to help ensure that the message is likely to impact the elected officials. Drafts should also be shared with designated members of the organized coalition.
Step 5: Revise testimony based on input from appropriate committee or subcommittee staff and representatives from the organized coalition.
GUIDELINES FOR WRITTEN TESTIMONY
Written testimony should be consistent with the overall hearing plan described above. Set out below are some additional guidelines. Witnesses should:
GUIDELINES FOR ORAL TESTIMONY
Oral testimony provides a special opportunity to affect the hearts and souls of elected officials as well as their minds. Compelling oral testimony can create a powerful, lasting impression. As in the case of written testimony, oral testimony should be consistent with the overall hearing plan described above. Never exceed the time limit prescribed for your oral testimony. Set out below are some additional guidelines.
OFFICIAL WRITTEN RECOMMENDATIONS FOR PENDING MATTERS
Most organizations are not offered the opportunity to testify at a hearing. As a result, they must orally communicate their concerns and recommendations to staff or, more often, state their opinions in formal written recommendations. These recommendations are often used by staff to develop bill/report language. Frequently, staff will write a memo to summarize how their recommendations for policy to be included in a bill reflect those made by key groups.
As a general rule, the greater the consensus in the recommendations, particularly across groups that are not traditionally aligned, the greater the chance of the recommendations being reflected in the bill/report language.
The format for making recommendations should take the staff’s needs into consideration. It is helpful to staff if recommendations are organized by issue. Since staff organize discussions by issue, whenever possible start discussing each issue on a new page.
For each issue, it is helpful to:
EVENTS, SITE VISITS, SPEECHES
Often a critical strategy for getting elected officials to focus on an issue is to arrange for them to visit a program, attend an event or give a speech. It is critical that these opportunities not be wasted. Participation in your event must be planned ahead of time so that the elected official leaves with a predetermined set of “ahas.” In other words, there must be a plan developed that describes:
The background of the elected official should guide the selection of the most appropriate spokespersons. Personal stories and experiences shared with elected officials at the event must be tied directly to the policy objectives.
Because schedules are extremely tight, securing the presence of elected officials at events is no small accomplishment. Thus, stakeholders must devise a plan or strategy for convincing elected officials or their staff to attend the event.
Some helpful pointers for getting an elected official to say “yes” to attending an event include:
PRE-ARRANGED MEETINGS WITH ELECTED OFFICIALS AND STAFF
Securing a meeting with an elected official. Securing meetings with elected officials is often a critical strategy for getting officials to focus on and understand an issue. Scheduling a meeting with elected officials, however, is no small accomplishment because their schedules are extremely busy. Thus, stakeholders must devise a plan or strategy for convincing elected officials or their staffs to meet with their group. Strategies may include such things as getting someone the official knows to personally request the meeting or by appealing to the official’s self-interest by offering visibility through a picture in a widely circulated newsletter.
Securing a meeting with staff. Many organizations, disappointed when they cannot meet with their elected officials, forego meeting with staff. Meetings with staff may differ in purpose from meetings with elected officials, but they are as critical. Staff meetings are usually more substantive in nature. Remember, the staff advises the elected official on your issue, and the advice provided is often decisive.
Getting ready for a meeting with elected officials. It is always important to schedule a planning meeting well in advance of the meeting with the elected official to ensure that the stakeholders agree to a pre-determined set of goals and objectives. In other words, stakeholders must be careful not to squander the opportunity to personalize an issue.
Guidelines for the meeting. The meeting with elected officials should reflect and carry out the decisions made at the planning meeting. Set out are some pointers that reflect these deliberations. The same pointers apply to meetings with staff, although it is appropriate to get into a more detailed substantive discussion with staff than with elected officials.
Follow-up and debriefing. It is critical that attendees follow up with a short letter to the elected official and the staffer summarizing what occurred at the meeting, including commitments made by the group and the elected official. It is also critical that the group share information they learned at the meeting with others who are working on the same issue, particularly representatives of major coalitions.
CORRESPONDENCE, FAX, E-MAIL, TELEPHONE CALLS
Letters, faxes, e-mails and telephone calls are useful tactics to get an issue on policy-makers’ radar screens when the tactics complement tactics used by other groups. These communications play a role in how an elected official votes.
Most elected officials (at least at the federal level) do not read the letters; usually staff provides tallies of the numbers of constituents supporting/opposing a particular bill/amendment/issue.
Members of the public rarely speak directly to elected officials unless the individual has excellent connections. It is more likely that a stakeholder will speak with staff. If a stakeholder contacts staff by telephone, the stakeholder should find out the staff person’s position (e.g., intern, legislative correspondence, legislative assistant). Interns and legislative correspondents may know the elected official’s position on an issue, but not much more. Stakeholders should try to speak with legislative assistants who are more conversant on policy issues.
Communications that include a compelling personal story that is directly related to a pending policy issue are more likely to make an impression on staffers and be brought to the attention of an elected official. Set out below are pointers for oral and written communications such as letters, phone calls, faxes and e-mails.
In addition to the various scheduled meetings and formal requests for responses from elected officials, unscheduled meetings play a key role in the policy-making process. Cornering an elected official in the hall before a key event often provides the last chance to influence a decision, e.g., encourage the official to vote the “right” way on an amendment or make a statement for/against an amendment.
Such a meeting must be brief and to the point. If possible, it is critical that the spokesperson be an individual with whom the elected official has developed a long-standing trust relationship. The individual’s credibility to the elected official is key.
The spokesperson should:
The various forms of formal and informal interaction described in previous chapters between policy-makers and other stakeholders (including bureaucrats and interest groups) provide critical input at each stage in the policy-making process. Key elected officials and staff, however, rely on informal “off-the-record” interactions with a select few to help them make key decisions at “critical stages” in the policy process. “Critical stages” include:
The “off-the-record” input differs from the other forms of interactions in one critical way—policy-makers are asking for “technical assistance” to help them craft a policy that will make it through the political process. This input may or may not match the official position of the organization the spokesperson represents. By accepting “off the record” advice, policy-makers “take the heat” and “get the credit,” while those people who provide the advice may never be recognized. It is appropriate in this scenario; the “advisors” are later free to express concerns, even opposition, to the policy once it is made public.
The purpose of the “off the record” input is twofold: first, to help the policy-makers “fine tune” the policy, modifying it during the policy-making process, and second, to vet a policy. The elected officials and the staff need the input of people who work on the issue on a day-to-day basis, who understand the significance of the choice of one set of words over a second set, and who understand the nuances and the unintended consequences of certain policies. The second purpose of the input is to vet a policy, i.e., to get a sense of whether or not the policy will be accepted by the major stakeholders in the field.
Because of the critical nature of this input, only a select few
are asked to perform these roles. These are the individuals with
whom the elected official and staff have built relationships over
the years. If the wrong people are selected and/or advice is not
solid, the ramifications are severe. For example, after months of
discussions with representatives of interest groups, an elected
official introduces a bill that he/she expects will be well received
by the grassroots. If the staff received bad advice from the interest
groups’ leaders and the grassroots reject the policies included
in the bill, all parties are left in disarray and the prospects
for favorable action are diminished. Furthermore, bad advice may
damage future opportunities for action.
.... by Richard E. Petty, IL Net Director
This guide describes highly effective techniques for influencing public policy, many of which constitute lobbying. Centers for independent living may engage in lobbying. They are, however, required to follow federal and state laws and regulations governing nonprofit lobbying activities. There are also certain prohibitions and specific requirements related to the use of federal funds in lobbying. Statewide independent living councils (SILCs) that have established themselves as nonprofit organizations are also covered under these same laws and regulations. There may be additional state prohibitions and requirements related to lobbying which apply to statewide independent living councils.
Centers and SILCs are encouraged to secure the advice of a competent legal professional. Appendix B of this book contains Frequently Asked Questions on Lobbying. Below is a listing of several excellent publications on the topic.
PUBLICATIONS ON NONPROFIT LOBBYING
... by Bob Michaels, Laurel Richards, Cynthia Dresden and Dawn Heinsohn
This FAQ addresses lobbying questions which have been raised during our training programs, technical assistance calls, and consultant work. It was originally developed in May 1997. We have just revised it in response to amendments made to OMB Circular A-122.
In developing this FAQ, a study was conducted of pertinent regulations of the Internal Revenue Service and the Department of Education, and then the answers were reviewed with an attorney specializing in lobbying issues and with John Nelson, chief of Independent Living Branch of Rehabilitation Services Administration and other officials of the Department of Education. We hope you find this FAQ useful, and we welcome any recommendations for improving it that you care to offer.
1. Are centers for independent living allowed to lobby?
Yes, CILs may lobby; however, the types of lobbying activities that are permissible vary, depending on whether they are supported with federal or non-federal funds. In addition, a CIL's lobbying activities may be further limited by Internal Revenue Service regulations applicable to nonprofit organizations.
2. What statutes or regulations do centers need to follow with regard to lobbying?
While requirements contained in these three documents will be covered in the remainder of this FAQ, there may be other federal, state, or local laws or regulations which affect the lobbying activities of a center. Center staff should contact agencies in their states which regulate activities of nonprofits and request provisions related to lobbying activities.
It is imperative that center staff have a thorough understanding of these laws and regulations whenever issues of compliance are raised--andalways get a second opinion.
3. I have been told that centers which receive Title VII funds are restricted from lobbying. Is this true?
Except as described in #5 below, CILs that receive Title VII funds are restricted from using Title VII as well as other federal funds to engage in lobbying activities. However, as stated above, centers may use nonfederal funds to engage in lobbying activities.
4. What lobbying activities may not be supported with federal funds?
Briefly, lobbying activities which cannot be supported with federal funds include:
It is important to note that activities that may not be supported by a center's federal funds may be supported by its nonfederal funds.
5. What lobbying activities may be supported with federal funds?
Non-restricted lobbying activities (that is, those lobbying activities which can be supported with federal funds) include:
6. Will we jeopardize our center's 501(c)(3) status if we lobby?
There are really two questions which must be answered: Is the activity under consideration really lobbying and does lobbying constitute a substantial portion of what the center does, under IRS rules.
Question One: Are the center's activities lobbying or something else?
Direct lobbying is defined in the Internal Revenue Code (IRC) and regulations as "Any attempt to influence any legislation through communication with any member or employee of a legislative body or with any government official or employee who may participate in the formulation of the legislation."
This includes such obvious activities as contact with a legislator about a specific piece of legislation, advocating for increases in funding in the budget, opposing a candidate for appointive office, and encouraging the general public to support or reject an initiative, referendum, or board measure.
Direct lobbying does not include activities such aseducating decision makers about issues of importance to people with disabilities, administrative lobbying, surveying candidates for office, attending public hearings, or even testifying if requested by a legislative committee in writing. Nonpartisan analysis and self-defense lobbying also qualify as exceptions under IRS rules.
A communication (with the general public or any segment thereof) will be treated as grass roots lobbying if, and only if, the communication (1) refers to specific legislation, (2) reflects a view on such legislation, and (3) encourages the recipient to take action with respect to such legislation (for instance, through a "call to action").
Question Two: Is lobbying a substantial part of what the center does?
Centers can either elect to comply with IRC Section 501(h), which requires filing papers with the IRS and reporting annually on lobbying activities, or elect not to file under the law. Compliance with the law allows 501(c)(3) corporations to expend as much as 20 percent of their funds for lobbying activities depending on the size of the organization. Those choosing not to file may only spend an amount which is not "substantial." One court ruled that devoting more than five percent of an organization's resources to lobbying activities was substantial.
So, why doesn't everyone file under IRC 501(h)? Because most organizations haven't learned about it yet. The guidelines are far more generous, yet record-keeping demands for day-to-day lobbying activities are virtually the same.
7. How does lobbying differ from advocacy?
In the regulations for Title VII of the Rehab Act, advocacy is
defined as "pleading an individual's cause or speaking or writing
in support of an individual. . . . Advocacy may be on behalf of
a single individual . . . a group or class of individuals . . .
or oneself." Note that in this context, "pleading"
is a legal term meaning "a formal statement setting forth the
defense of a case" (Random House Dictionary). Advocacy, then,
is action taken to convince others of the rightness of your cause
and of their need to join you in supporting this cause. Lobbying
is a subset of advocacy in that it is a set of activities that plead
a cause and set forth the defense of a case in order to influence
the voting of legislators. In
8. Where can our center get more information about compliance with the Internal Revenue Code?
You can always try the IRS itself, but most of its information is not written for people other than certified public accountants. One excellent source of information we've found has been written by Greg Colvin, an attorney who specializes in this area. You can contact Greg at Silk, Adler, and Colvin 415.421.7555 to inquire about resource materials he has developed regarding lobbying and the tax code. Other sources include Independent Sector (1828 L, N.W., 1200, Washington, D.C., 20036, 202.223.8100); Alliance for Justice (2000 P St., N.W., Suite 712, Washington, D.C. 20036, 202.822.6070); and Chronicle of Philanthropy (1255 23rd Street, N.W., Suite 700, Washington, D.C., 20037, 202.466.1200).
9. How does the Lobbying Disclosure Act of 1995 affect centers?
In most cases, it doesn't. Centers which attempt to influence Congress or top federal executive branch officials may be required to register, to report their areas of interest, and to specify the amount of money spent on lobbying activities. A center is required to register under the Act only if: 1) an individual employed or retained by the center makes more than one contact and spends 20 percent or more of his or her time providing lobbying activities for the center during a six month period; and 2) the center's total expenses in connection with lobbying activities exceed $20,000 in a six month period.
10. How may I obtain copies of the documents identified in this FAQ?
The documents referred to in this FAQ are available through the Government Printing Office or from your auditor or congressman. In addition, many codes, regulations, and legislation can be downloaded electronically from the Internet.
As you know, advocacy is one of the core services of a center, essential to achieving the mission of promoting independent living opportunities for persons with disabilities. This said, among questions most often heard by IL NET trainers and technical assistants are what constitutes advocacy and what distinguishes it from lobbying? This FAQ is intended to provide the basics. If you need more information, be sure to contact an attorney or your grantor agency.
This fact sheet was prepared by Bob Michaels with assistance from Laurel Richards, Cynthia Dresden, and Dawn Heinsohn. We extend our appreciation to Greg Colvin, John Nelson of the Independent Living Branch, RSA, Sergio Kapfer, Department of Education General Attorney, Division of Educational Equity and Research, and Susan Winchell, Department of Education Ethics Counsel Staff for agreeing to review these responses.
Substantial support for development of this publication was provided by the Rehabilitation Services Administration, U.S. Department of Education. No official endorsement of the Department of Education should be inferred.
The IL NET is a collaborative project of Independent Living Research Utilization (ILRU) and the National Council on Independent Living (NCIL), with funding from the Rehabilitation Services Administration.
ILRU is a program of The Institute for Rehabilitation and Research (TIRR), a nationally recognized, freestanding medical rehabilitation facility for persons with physical and cognitive disabilities. TIRR is part of TIRR Systems, which is a not-for-profit corporation dedicated to providing a continuum of services to individuals with disabilities.
Last Modified: 03-23-05