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September/October 2009

The  Lobbyist

By Jim Grace and Luke Ledbetter

Lobby, vb.1. To talk with a legislator, sometimes in a luxurious setting, in an attempt to influence the legislator’s vote <she routinely lobbies for tort reform in the state legislature>… 2. To support or oppose (a measure) by working to influence a legislator’s vote <the organization lobbied the bill through the Senate>. 3. To try to influence (a decision-maker) <the lawyer lobbied the judge for a favorable ruling>. — lobbying,n.lobbyist,n. Black’s Law Dictionary 956 (8th Ed. 2004).

One of the most common questions we are asked when we tell people that we are lobbyists is: “What exactly do you do all day?” There always seems to be a certain sense of deflation and disappointment when we explain that we don’t engage in an unending procession of golf and five-star restaurants — Black’s Law Dictionary’s “luxurious setting” notwithstanding (although we will cop to an otherwise inexplicable drop in our handicaps).

Our favorite explanation is that offered by the six-year-old daughterof one of the authorswho, when asked what her daddy does for a living, responded matter of factly: “Daddy talks to people.” That’s fairly close to the mark. Our jobs as lobbyists are in many ways nothing more than talking about (and listening to) the needs, aspirations and limitations of the legislators, our clients and other interested parties and stakeholders, and reconciling that with what ispolitically possible.

But that really doesn’t give most lawyers any real context or understanding. Instead, the best comparison we can make is to trial lawyers. Litigators, like lobbyists, succeed by effectively arguing and convincing judges and juries to understand and adopt their clients’ arguments. In the lobbying arena then, the members of the legislature and the governor are proxies for the judge and the jury and the bills that they pass (or don’t pass) are the verdicts. Trial lawyers can even appreciate how the intense preparation for and single-minded focus given to a multi-month trial is akin to the preparation and focus that lobbyists give the 140 daysthat the Legislature is in session in Austin every two years.

In fact, the similarities even go beyond these facile comparisons. Those who have tried cases for any period of time will recognize some of the inviolable rules and tricks of the trade to which all lobbyists adhere and utilize. Below we explore some of those similarities.

1. NEVER lie to a member of the legislature.

Just as every trial lawyer knows that he cannot fudge the applicability of the case law, and that a jury intuitively knows if he is trying to bend the facts, so too is a lobbyist’s number one rule never to mislead a legislator or staffer. Your credibility is all you have and if you lose it, it’s gone for good. And just as in the trial world, you would think this would be screamingly obvious. Yet time and again, we’ve seen lobbyists exile themselves to the lobbying equivalent of Siberia by distorting the facts or breaking their word. Our litigator friends frequently remark that the trial bar is a small community. Well, the legislative world is even smaller. Once you lose your reputation, you can never regain it.

2. Preparation. Preparation. Preparation.

A good litigator knows the facts and the law better than anyone else in the courtroom. Lobbying is no different. Know your issue better than absolutely anyone else. Think of every conceivable question someone could ask and make sure you have an answer for it. Think of every spin that your opposition is going to use and have a persuasive counterpoint.

3. Know what you don’t know and be willing to admit it.

This is really a corollary of the first two rules. When you are juggling multiple clients and following multiple bills, no matter how much you prepare, there is no way that you can know the answer to every single question that a legislator or staffer asks, especially when you are working on energy, telecommunications or other complicated and technical issues. When you’re stumped, admit it. A legislator or staffer would much rather wait for you to find the answer than listen to you tap dance around the inquiry, or worse —provide inaccurate or incomplete information just so you can save face by not admitting you don’t know an answer.

4. There are some things you can’t control.

A good litigator knows that regardless of how strong an objection is, or how on point a jury instruction is, the judge may still rule against it. During this past legislative session, hundreds of bills failed because of the intense partisan debate over the voter identification bill. Furthermore, last session, a bill we were pushing failed because the representative who was carrying it was feuding with a senator on an entirely unrelated issue in a different industry. So the senator held our bill hostage in his committee for most of the session, delaying it long enough so that when he released it, there was not sufficient time to get it passed. Next session, there will be some other unforeseen hurdle.

Moreover, these events are layered onto a system that, by its very nature is designed to hinder legislation. Consider that of the 7,525 bills filed in the just-completed legislative session, only 1,424 reached the Governor’s desk and became law, and a large portion of these were uncontroversial local bills, like the creation of municipal utility districts (“MUDs”) or re-naming highways. While a .190 batting average won’t get you very far in baseball, it is reality in the Texas Legislature.

So, just as a good litigator prepares for unfavorable rulings and creates alternative strategies, similarly, lobbyists prepare for legislative hijinks. One method is to create multiple vehicles for legislation you need to pass, like filing the same bill in both the Senate and the House and preparing amendments to similar legislation. Many of the bills that died on the House floor during the voter identification debate passed nonetheless because they either had a companion in the Senate or were amended to other bills. The flip side to this coin is that when you are trying to stop a bad idea, you need to be ready to kill it repeatedly. Sometimes bills seem to have a greater will to live than Freddy Krueger or Jason Voorhees. They just won’t die.

5. Information is the currency of the realm.

Everybody in the Texas Capitol wants to know what’s going on, and everybody wants to be perceived as “in the know.” Perversely, there is a premium on actually being the best informed, since only then can you can determine the status of your bills. As a result, legislators and lobbyists gossip worse than middle schoolers. Of course, you have to be extremely careful in analyzing the information you receive. Just as the CIA listens to thousands of hours of “chatter” in trying to find terrorists, lobbyists absorb vast amounts of uncorroborated information. No doubt, some of it is true. However, most of it is wrong, some of it is misinformed and some of it is outright lies. Worse, sometimes misinformation is distributed solely to manipulate or distract.

6. “Only speak when it improves

the silence.”1

While it’s rare that you see people throwing away money, rarer still is the day at the Capitol when people aren’t almost giddy to give out information they should be holding close. The successful lobbyist carefully considers when and with whom he shares information. Another way of saying this is a maxim that trial advocacy teachers begin drilling into their students from the first day of class: “know when to shut up.”

7. Don’t write it down (and especially don’t put it in an email) unless you are comfortable waking up and seeing it as the headline on the front page of the Houston Chronicle.

8. The “Reply to All” button is not your friend.

Clicking Reply to All is an extremely dangerous practice and should be done rarely. As annoying as it may be, it is safer to create a new email and individually choose who should be a recipient. Again, this may be common sense, but how often is a thought shared in confidence or an ill-considered remark sent to a political opponent because of carelessness. Also, do not forward an email without permission from the sender. There are plenty of occasions when another lobbyist is working for your issue underground, but for political reasons, his client cannot be publicly attached to it.

9. Be prepared to forge strange alliances.

Charles Dudley Warner was correct that “Politics makes strange bedfellows.” Regardless of the partisan or geographic breakdown of districts, we work with anyone willing to achieve our objectives. Also, keep in mind that while the traditional partisan Republican vs. Democrat divide is relevant in the Texas Legislature, of equal importance is the urban vs. suburban vs. rural divide, and the urban and suburban areas are ascendant. Eighty percent of Texans now live in the rough triangle drawn from the Dallas - Fort WorthMetroplex through Austin to San Antonio, over to Houston and back up to theDallas - Fort Worth Metroplex. Indeed, Speaker Joe Straus is the first Speaker from a major metropolitan area in more than 16 years.

10. Compromise when you can; hold firm when you must.

As with settlement discussions in litigation, it is of the utmost importance to be viewed as the party who engaged in good faith negotiations throughout the process. Very few lobbyists have sufficient political capital to make something happen on their own. Moreover, those who do possess such influence rarely use it because they are keenly aware that the exercise of such power always comes at a price later.

11. Never ask members for a vote you know they can’t take back to the district.

First, it won’t happen. Second, you will lose credibility. Only ask members for a vote if you have provided them with a reason that will be genuinely compelling to a constituent. Most members want to be helpful and assist with the legitimate concerns of your client, but at the end of the day they will vote their interest — reelection.

12. Be ever-present at the Capitol during session.

Lobbying is 99 percent doldrums and 1 percent action. You simply can’t afford to miss the fireworks. One Capitol wag observed: “We lobby for free…we get paid to wait.” A corollary of this is to be peripatetic at receptions and fundraisers in the interim. The session is simply too busy to build long-standing relationships while it is in progress. Only through continued hard work in the interim can you understand the personalities of the members, the unique needs of the constituents in their districts, and the issues about which they are passionate.

13. Know the calendar rules better than anyone else.

They are to us what the rules of procedure are to a trial lawyer. Both the House and the Senate have very technical rules regarding the stage of a bill as of a number of deadlines. If the deadline passes, the bill is dead. If you are trying to kill a bill, these deadlines can be your best friend. If you are trying to pass a bill, they can be your worst enemy.

14. Money will never buy you a vote.

It just won’t. Anyone who says otherwise is lying or misinformed. End of story.

15. Treat everyone with respect.

Political fortunes rise and fall very fast and that intern kid answering the phone today could be the representative some day. Furthermore, never decline a meeting request. You may or may not be able to help someone, and people understand that, but refusing to meet with them says, “I wouldn’t help you even if I could.”

16. Legislation (like water) takes the path of least resistance: do everything possible to make a staffer’s life easier.

Most of the staffers are twenty-somethings who work long hours, get paid little, and are almost constantly overwhelmed with keeping their bosses happy. Accordingly, the lobbyist who drafts talking points, writes white papers, or proposes detailed statutory language is significantly improving the likelihood of success.

17. And finally, remember that “[n]o man’s life, liberty, or property are safe while the legislature is in session.”2

Until next time, sine die.

Jim Grace is a partner in the Houston office of Baker Botts L.L.P. and head of the firm’s Texas Government Relations practice. Luke Ledbetter is an associate in the Austin office of Baker Botts L.L.P.


1. Chris Mathews,  Hardball: How Politics Is Played Told By One Who Knows The Game 133 (Touchstone Press 1988).   2. Final Accounting in the Estate of A. B., 1 Tucker 248 (N.Y. Surr. 1866).