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Invited Commentaries

The Importance of Lobbying to Advance Health and Science Policy

Willson, Peters D. MPPM

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doi: 10.1097/ACM.0000000000003036
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Abstract

Government funding and regulations have a significant effect on academic medicine’s intertwined missions of education, research, and patient care. For example, according to analysis by the Association of American Medical Colleges: (1) Federal Medicare graduate medical education (GME) payments are the largest single source of financial support for GME nationwide.1 (2) Only 5% of all nonfederal, short-term general teaching hospitals account for 22% of all Medicare-financed inpatient days of care and 26% of all federal/state Medicaid-financed inpatient days of care across all such hospitals.2 (3) Medical schools and teaching hospitals are responsible for implementing more than half of all extramural research grant funding from the National Institutes of Health.2 Consequently, those in academic medicine must engage with those who develop these policies, including through lobbying. Understanding what lobbying is and what is required to make its practice both legal and effective is essential.

I have worked in government relations, including lobbying, since 1973, and I often have encountered negative impressions of lobbying. Outside my professional circle, mention of my work can elicit expressions of dismay about back-room dealing and insider influence. On a number of occasions, I have heard the question, “How can a nice guy like you be a lobbyist?” The following quote from a National Bureau of Economic Research working paper illustrates how many people see lobbying:

Many voters view such spending with suspicion, and the popular press frequently cites it as prima facie evidence of the power of “pressure groups, each promoting its own special interests, [to] prevent elected politicians from adopting policies that are in the interest of the electorate as a whole” . . . 3

Even my father, when asked by his friends what I did in Washington, DC, found it easier to say that I worked for the Federal Bureau of Investigation than to say that I was a lobbyist. Perhaps he would have felt differently had he seen my career as I do: Lobbying fulfills a constitutionally protected right that the first U.S. Congress considered essential to the successful functioning of the nation’s new system of government. Congress saw it as so essential that it included “the right to petition the Government for a redress of grievances” in the First Amendment to the Constitution:

Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.4 [italics added for emphasis]

Our right to lobby is clearly stated—We have the freedom to bring to policymakers’ attention issues we believe warrant government action.

The concept of a right to petition the government (legislative, executive, and judicial branches) originated in 1215 in Article 61 of the Magna Carta,5 the foundation of Western legal systems’ protection of individual rights and due process. Long before he became the fourth president, James Madison included a right to petition the government in his draft of the Bill of Rights, which Congress passed in 1789.6

Overview of Lobbying Regulations

The interpretation and regulation of this right to petition the government have become the subject of complex federal, state, and local policies. For example, at the federal level, Section 501(c)(3) of the Internal Revenue Code7 imposes restrictions on a tax-exempt charitable entity’s “direct” lobbying and on its “indirect” or “grassroots” lobbying. Direct lobbying involves an individual lobbying a public official on a specific legislative issue. Indirect lobbying involves an individual or entity encouraging other individuals to lobby a public official. The Lobbying Disclosure Act of 1995,8 however, only requires that lobbyists report to Congress their direct lobbying activities.

The Internal Revenue Code permits 501(c)(3) tax-exempt charitable entities to lobby public officials, provided the lobbying does not amount to either an undefined “substantial” amount of the entity’s activities or exceed financial limits on expenditures for both direct and indirect lobbying. Failure to comply can lead to penalties up to and including the revocation of the entity’s tax-exempt status. The Lobbying Disclosure Act establishes a different set of criteria for determining the amount of lobbying that triggers individuals to have to register as lobbyists. And it imposes a different penalty for failure to comply—a civil penalty up to $200,000 or imprisonment up to 5 years, or both.9

Each state also regulates state-level lobbying, separate from federal restrictions. Neither federal nor state regulations supersede each other, however, nor do individual states’ lobbying restrictions supersede those of a neighboring state. That means that a hospital or a faculty practice plan that serves patients from multiple states may need to lobby policymakers in each state’s capital and thus comply with each state’s rules.

Implications of Perceptions of Lobbying Today

In this issue, Lynch and colleagues do readers a service by explaining what federal restrictions and opportunities exist for lobbying by anyone associated with a tax-exempt charitable entity, academic researcher or otherwise.10 (Almost all U.S. medical schools and the large majority of teaching hospitals are tax exempt.) Barry and Karin, in their article cited by Lynch and colleagues, provide additional clarification on this subject as well as a useful history of state and federal regulations related to lobbying.11 An article by Johnson catalogues an extensive list of issues involving lobbying, which are subject to regulation.12

The efforts of Lynch and colleagues to educate the academic medicine community about the regulations and opportunities for lobbying help bridge a cultural gap I perceive between academic medicine and politics. Science is built on rigorous, peer-reviewed analysis and evidence-based decision making, which stands in sharp contrast to perceptions of lobbying as the practice of insider dealing, emotion-driven decision making, and the influence of money. The gulf between these attitudes can foster a disdain among some members of the academic medicine community, which leads to their reluctance to participate in lobbying, however necessary it may be for the future of their discipline. Nonetheless, Lynch and colleagues argue that academic researchers’ knowledge, experience, analytical rigor, and insight can lead to sounder health and science policy. In clarifying what lobbying laws do and do not permit, they are encouraging academics who may be hesitant to participate in lobbying because they do not fully understand the relevant regulations.

Effective Advocacy

Lynch and colleagues’ fundamental purpose is to encourage not just legally permissible but effective lobbying. What constitutes effective advocacy then? A key consideration is whether and how individuals and corporate entities coordinate lobbying efforts. Lynch and colleagues promote lobbying by individual academics, which is understandable given the decades of opinion research that has found that individual physicians have a high degree of credibility among the public. In a 2014 analysis of public opinion about physicians, Blendon and colleagues13 observed that, while public opinion of the leaders of the medical community had been declining for decades, public trust in individual physicians’ ethics and integrity remained high. Effectively used, such credibility can be a significant asset to lobbying efforts. I remember vividly an occasion when a senior aide to the late Senator John Chafee (R-RI), widely respected in both political parties for his knowledge and influence on health policy, told an audience that, no matter the health policy issue and how well informed he was about it, the Senator always tried to communicate with one specific physician whose insights he wanted before voting.

Coordinating Lobbying Activities

Despite this anecdote and the important role individuals play in influencing health and science policy, I have come to recognize several reasons why coordinated lobbying between individual academics and their affiliated institutions can be effective. First, such coordination avoids the risk of individual academics and their institution’s government relations team unwittingly stumbling over each other, which can lead to confusion on the part of policymakers about who is lobbying and for what. This confusion can reduce the chances for successful lobbying. Indeed, most institutions have policies related to lobbying by staff and faculty, reflecting the need for coordination to ensure both legal compliance and effectiveness. Government relations professionals representing institutions with myriad interests and needs find that one of their biggest challenges can be discouraging “freelance lobbying” to avoid irritating members of Congress or their aides who then complain about receiving conflicting messages. On a number of occasions, I have heard that a hospital’s government relations representative had been asked by a congressional aide or member of Congress, “Don’t you talk to each other?” after the aide or member of Congress was lobbied separately by both the hospital and individuals associated with it on different policy issues

Second, failure to coordinate can become self-defeating when an individual academic and an institution knowingly compete for the same resources, whether they be policymakers’ time and attention or their commitment to take specific actions. Most members of Congress and their aides want to help constituents, but individuals or institutions seen as overreaching, regardless of whether that perception is accurate or not, may jeopardize the effectiveness of their lobbying efforts.

Third, precisely because an individual academic’s lobbying activities may or may not be considered part of the lobbying for which a tax-exempt institution is legally accountable, it is critical for both the academic’s efforts and the institution’s efforts to be coordinated. It is unlikely that an individual academic will be an expert in lobbying regulations and compliance; in contrast, teaching hospitals and medical schools retain government relations professionals whose responsibilities include maintaining up-to-date information on lobbying regulations.

Fourth, because a teaching hospital or medical school simply has many more resources to be able to advance lobbying effectively, it can be more productive for individual academics to persuade their institution to make their individual lobbying priorities those of the institution. They then would benefit from the institution’s lobbying expertise and resources.

Fifth, individual academics whose lobbying is successful may need to continue engaging with federal policymakers, working with the executive branch to implement legislative decisions. During the peak years of “earmarks” between fiscal year (FY) 1994 and FY2005, the volume of earmarked funding in the annual Labor, Health and Human Services, and Education appropriations bill alone increased from 5 earmarks valued at $2.4 million to more than 3,000 earmarks valued at nearly $1.2 billion.14 In enacting earmarks, Congress would write into federal law that a specific amount of funding must be awarded to a specific recipient for a specific purpose, rather than leave the allocation of the funds up to the administering agency. Even successful lobbyists were sometimes surprised that no matter how detailed the specifications were, an earmark’s enactment did not relieve the recipients of having to comply with grant application requirements entailing hundreds of pages of detailed reporting on a short deadline. Coordination with an institution can help to ensure that individual academics have access to the necessary resources and the lobbying knowledge to comply with enacted earmarks.

Conclusions

Three additional observations are worth noting. First, it is beyond the scope of this Invited Commentary to describe, much less to critique, the complex and symbiotic relationship between the public and private sectors, which undergirds scientific discovery overall and biomedical research specifically. Second, it is equally outside the purpose of this piece to represent the full extent and variety of government regulations related to lobbying. Third, in many respects, the arguments made by Lynch and colleagues are relevant to any individual who seeks to lobby, not just academic researchers who devote their careers to advancing academic medicine.

In conclusion, whether one’s interest is understanding how government policies are critical to the nation’s medical research enterprise or what effective lobbying entails, it is important to know the following: The exercise of our constitutionally protected right to lobby is fundamental to how our system of government is set up. Multiple regulations govern that right, requiring compliance by those who participate in the process. In addition to this regulatory compliance, however, there are many other considerations, such as the coordination of individual and institutional lobbying activities, that can affect the outcomes of lobbying efforts.

Acknowledgments:

The author wishes to thank his colleagues Heather Alarcon, JD, Karen Fisher, JD, and Atul Grover, MD, PhD, for their review of early drafts of this Invited Commentary.

References

1. Association of American Medical Colleges. Medicare Payments for Graduate Medical Education: What Every Medical Student, Resident, and Advisor Needs to Know. 2019.Washington, DC: Association of American Medical Colleges.
2. Association of American Medical Colleges. Teaching hospital characteristics. 2019. https://www.aamc.org/system/files/2019-07/2019teachinghospitalcharacteristics.pdf. Accessed September 30, 2019.
3. de Figueiredo JM, Silverman BS. Academic earmarks and the returns to lobbying. J Law Econ. 2006;29:597–625.
4. US Const amend I.
5. Magna Carta § 61.
6. Shestokas DJ. US Constitution’s First Amendment: Right to Petition for Redress of Grievances. July 1, 2013. http://www.shestokas.com/constitution-educational-series/us-constitutions-first-amendment-right-to-petition-for-redress-of-grievances. Accessed September 24, 2019.
7. IRC § 501(c)(3) (2018).
8. Lobbying Disclosure Act of 1995, 2 USC § 1601 (2007).
9. United States Senate. Lobbying Disclosure Act: PENALTIES. [2 USC 1606]. Current through April 1, 2019. https://www.senate.gov/legislative/Lobbying/Lobby_Disclosure_Act/7_Penalties.htm. Accessed September 24, 2019.
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11. Barry K, Karin M. Law clinics and lobbying restrictions. U Colo L Rev. 2013;84:985–1068.
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13. Blendon RJ, Benson JM, Hero JO. Public trust in physicians—U.S. medicine in international perspective. N Engl J Med. 2014;371:1570–1572.
14. Congressional Research Service. Earmarks in Appropriations Acts: FY1994, FY1996, FY1998, FY2000, FY2002, FY2004, FY2005. January 26, 2006. https://fas.org/sgp/crs/misc/m012606.pdf. Accessed September 24, 2019.
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