Ch. 19 - Process Matters: From Lobbying to Law
Cole Ettingoff, MPH; Hannah Gordon, MD, MPH
Effective advocacy requires knowing how political decisions that impact emergency medicine are made and who makes them. The process of developing laws and federal rules can be lengthy and complex, but a basic understanding of the process can significantly increase your effectiveness.
The pathway from a bill to a law can be tortuous and will vary federally, state-by-state, and issue-by-issue.
Why It Matters to EM and ME
Perhaps more than any other specialty, emergency medicine is impacted by decisions made in the political arena. From funding and other resources to social determinants of health and access to alternative methods of care, the emergency department is the front line of where many legal, regulatory, and policy changes take effect. As physicians who see so many societal problems up-close every day, emergency medicine physicians have – since the founding of the specialty – had a strong interest in public policy.1 Advocacy work can be exhausting. Busy physicians have limited time and energy to make an impact. In a world where social media and other technologies make it easier than ever to amplify your voice, it becomes important to speak clearly and to the right audience. In doing so, you can maximize your impact and effectiveness.
So, what does that mean? To start, effective advocacy requires understanding the root of the issue you care about, what you want to change, and who has the power to change it.
How We Got to This Point
You have probably heard the term “federal government” used to describe the national level government based in Washington, D.C. But why is it federal and why does that matter? The federal government represents a federation of states.
While the strength of the national government has grown significantly since our nation’s founding, it is important to remember that unlike some countries, the States in the United States are not mere administrative divisions of the national government. While they relinquish certain powers to the federal government via the Constitution, they retain many powers. National advocacy campaigns are often targeted towards the federal government, but many issues that impact patients the most are governed at the state level. It is worth noting that the relationship between state and local units of government like cities, counties, towns, or parishes varies significantly by state and even within a state. Your state constitution likely has a section on home rule that elaborates on the specifics.
Current State of the Issue
So how does this federal system impact health policy? The powers of the federal government at times can be quite limited. For example, the federal government does not license physicians, license hospitals, directly provide social services such as homeless shelters, or make laws governing issues such as domestic violence or access to care. Instead, the federal government sets policy through extensive funding coupled with detailed implementation rules. The large national health insurance plans, like Medicare and Medicaid, with their large rules for funding, often become de facto requirements nationally. Between Medicare, Medicaid, Tricare (health insurance for the military and their families), Federal Employees Health Benefits Program, veterans’ programs, the Indian Health Service, the Bureau of Prisons, and more, there is no denying the federal government has huge financial influence on the health industry. That is before even considering funding for research, the approval and regulation of devices and medications, controls on the import of materials, and so many other areas the federal government controls.
You likely know that the United States is not, in fact, a democracy. While some state or local governments have varying elements of direct citizen decision-making, nearly all government decisions are made by elected representatives of the populace or individuals appointed by them. When advocating, it is your responsibility to identify the relevant decision-makers and their priorities.
For major legislation, this can be fairly straightforward. At the federal level, legislation needs to pass both chambers of Congress and be signed by the president. Since the members of Congress are elected, they are often quite willing, if not eager, to talk to local experts. While elected officials ultimately decide how they will vote on legislation or what legislation they will sponsor, many of the details are decided by staff. Many physicians have found that simply by emailing their Congressional office and asking to speak with a staff member about an issue, they are able to talk directly with the individual who is leading the efforts on a piece of legislation. At the state and local level, elected officials may or may not employ support staff depending upon resources, but the same principle applies. In the next chapter, you can learn more about how to craft that message, but even the best message is lost if you have not reached the right decision-maker.
Congressional staffing in both the House of Representatives and the Senate comes in two forms: personal staff and committee staff. Personal staff work directly for a single member of Congress either in their Washington, D.C., office or their office in their home district. Some staff in both offices will be dedicated to constituent services like arranging tours of the White House or troubleshooting federal benefits applications. Those staff may be quickest to respond to emails but often have little role in developing legislation. For that, you want to speak with the legislative staff, generally based in Washington, though many spend time in the district office. The legislative team generally has titles like legislative assistant, legislative correspondent, or legislative counsel and are led by a legislative director or assistant chief of staff. These staff have areas of responsibility that correspond to the member of Congress’ committee assignments or areas of interest. This model allows for legislative staff to develop expertise in their area of focus, although junior legislative staff turnover quickly with an average tenure of only a little over a year and a half.2 This short tenure and often broad topic area means staff are often eager to learn from field experts from their members’ district. For serious advocates with long-term advocacy goals, forming relationships with these staffers can prove very helpful, particularly as they become more senior staffers or move to committee work.
Committee staff focus exclusively on the jurisdiction of their respective committee. Legislation must be sponsored by one or more members of Congress, but significant amendments can–and often do–happen in committee. Committee staff are tasked with writing committee reports, identifying experts to provide testimony before the committee, and working with personal staff to further a member’s legislative goals. With a few exceptions, committee staff are partisan with parallel majority and minority party staff for each committee. While the average tenure of junior committee staff is still short, under three years, staff are often far more specialized than in personal offices.3 With specific areas of jurisdiction, committee staff may have executive branch contacts interested in collaborating on legislation or advising on the status of implementation.
We would be remiss if we did not mention political parties. While parties are good indicators of where an elected official stands on an issue and a key source of funding and support for them, resist the urge to only speak to officials from the same party as you. If your elected official is from the other party, it may be particularly important for you to ensure your perspective is heard. Even elected officials with significant party leadership roles such as a majority or minority leader in the House or Senate are unlikely to be interested in your thoughts unless you are one of their constituents. Even though both major parties publish official party platforms, even a cursory reading of these platform demonstrates they are guidelines and not often specfiic on issues that may be of interest to you as an advocate.4
It is well worth the time to figure out who the key decision-makers are and build relationships with them.
Otto von Bismark is often credited with the famous phrase “laws are like sausages; it is better not to see them being made.”5 While sausage making is beyond the scope of this chapter, lawmaking can certainly be messy.
Much of that mess occurs before a law is even proposed. Formally, any member of Congress can write and propose legislation, with their staff generally doing the writing. Informally, a messy game of political wrangling often decides what legislation will be put forth, who will put it forward, and what will make it on the agenda to be considered. In reality, being in the majority party, seniority in that party, committee assignment and leadership position, and national stature matter significantly in determining if proposed legislation will be given real consideration.
Once written and proposed by a member of Congress, other members may “co-sponsor” the legislation. That is to say, they attach their name as a public sign of support. It is reasonable to assume a member co-sponsoring legislation will vote in favor of that legislation and more co-sponsors can suggest a piece of legislation is gaining momentum. Bipartisan co-sponsorship is often necessary to achieve the momentum necessary for passage.
Once proposed, a bill is assigned to a committee in the chamber originally proposed. Coordinated bills can be presented simultaneously in the House and Senate and deliberated by committees on both sides of Capitol Hill. Once in committee, it is largely at the discretion of committee leadership, in consultation with party leadership, when and if that bill is discussed and voted upon. If not brought for a vote by the end of the two-year congressional session, the bill “dies” in committee (note: Congressional sessions are numbered. For example, the 118th Congress will meet from January 2023 to January 2025).
Alternatively, a bill that is timely or politically advantageous can be fast-tracked for hearings. Hearings are a chance for members of Congress to hear from experts. While at times devolving into political showmanship, testimony before Congress can be impactful to the legislative process and can even influence the national conversation.
If passed in committee, a bill is brought to a vote before the full House or Senate after passing through the rules committee, a political gatekeeper of bills run by the majority party. Assuming passage, a bill must be approved by the other chamber before being sent to the president to sign into law or veto. In the event of a veto, the bill can be voted upon again in Congress where a two-thirds majority in both chambers can override the president’s veto.
The final bill signed into law can differ significantly from the original proposal. Amendments can be proposed in both committees or the full chamber, though party leaders may discourage amendments. If the two chambers pass a bill that is similar or if a bill is amended in one chamber but not another, a temporary conference committee including representatives of both chambers and generally both parties is appointed to work out the differences and propose a final version for a vote in both chambers.
The work of elected officials at the federal, state, and local matters. Many organizations rally their members to write to or call their elected representatives, and the impact of that contact cannot be denied. Particularly at the local and state level, a single call or letter can make a real difference in the passage of a bill.6 When advocating at the federal level, coalition building makes it possible to have like-minded citizens from around the country contacting their elected officials. Many offices will not read messages from or accept meetings with members of the public who are not in their constituency, so having teammates with broad geographic backgrounds amplifies your effort. That geographic need leads us to our final thought: Elected officials serve the interests of those who elect them, so often, before you can convince elected officials, you need to convince the people they represent.
WHAT’S THE ASK?
Finding the right decision-maker(s) is important to engaging in meaningful advocacy.
Legislative staff, particularly specialized staff, are often happy to meet with physician advocates to discuss a specific issue or piece of legislation.
It is important to contact the offices of elected officials who represent where you live; meaning issues with members across the nation can reach more elected officials.
The pathway from a bill to a law can be tortuous and will vary federally, state-by-state, and issue-by-issue.
- American College of Emergency Physicians. Making Every Moment County: 50 Years of Going to Extremes. https://www.acep.org/who-we-are/50Years/. Accessed June 5, 2022.
- Congressional Research Service. Staff Tenure in Selected Positions in House Member Offices, 2006-2016. CRS R44682. 2016. https://sgp.fas.org/crs/misc/R44682.pdf. Accessed June 5, 2022.
- Congressional Research Service. Staff Tenure in Selected Positions in House Committees, 2006-2016. CRS R44683. 2016. https://sgp.fas.org/crs/misc/R44683.pdf. Accessed June 5, 2022.
- Democratic National Committee. Party Platform: The 2020 Democratic Party Platform. https://democrats.org/where-we-stand/party-platform/. Accessed June 5, 2022.
- Laws are Like Sausages. Better Not to See Them Being Made: Who said it first? Otto von Bismarck? John Godfrey Saxe? Claudius O. Johnson?. Md Med. 2015;15(4):30.
- American Civil Liberties Union. Writing your Elected Representatives. https://www.aclu.org/writing-your-elected-representatives#:~:text=Letters%20and%20faxes%20are%20an,take%20the%20time%20to%20write. Accessed June 6, 2022.