Lawyers in Politics

Volume 2 • Issue 1 • November/December 2015
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Politics Outside of Office

The lawyer-lobbyist

Newly released data provides strong evidence that lawyers are no longer as dominant as they once were in many sectors of elected U.S. political office (see “Declining Dominance: Lawyers in the U.S. Congress”). Similarly, there is increasing evidence that, far from forming the next generation of elected officials, law students and newly minted lawyers are shunning political office due to the perceived high costs and low rewards (see “Running for—or from—Office?”).

At the same time, however, the declining number of lawyers running for office, whether at the local, state, or federal level, may not necessarily mean that lawyers no longer play key roles in the wider apparatuses of political action in the United States. As a case in point, a recent front-page article in the New York Times outlined the critical role four federal lawyers—the CIA’s general counsel, the National Security Council’s legal adviser, the Joint Chiefs of Staff’s legal adviser, and the Pentagon’s general counsel—played in the covert action that resulted in the killing of Osama bin Laden. Neither elected nor well known, those four lawyers had a hugely consequential impact on the U.S. political system.

Lawyers abound throughout local, state, and federal politics in positions and roles outside of directly elected office.

Those four lawyers are not alone. Lawyers abound throughout local, state, and federal politics in positions and roles outside of directly elected office. Sometimes they are lawyers in the traditional sense, acting as a general counsel of an agency or a lawyer for a local township. Other times they work as policy analysts in think tanks, examining issues ranging from criminal justice reform to access to justice issues to international law. And, perhaps most notably, visibly, and (sometimes) controversially, lawyers act as lobbyists, advocating political actors on their clients’ behalf.

In those regards, this article examines a particular subset of lawyers engaged in politics outside of elected office—the lawyer-lobbyist. Who are lawyer-lobbyists? What skills are required? How has the role changed? Where is it going in the future? Below we explore these and other questions regarding the role of the lawyer-lobbyist.

Lobbying in America

Lobbying has long been a part of the U.S. political system. Indeed, the Constitution guarantees a place for lobbying in the U.S. political system, with core provisions protecting freedom of speech, freedom of association, and the right to petition one’s government. Alexis de Tocqueville celebrated this distinct feature noting, “Americans of all ages, of all stations in life, and all types of dispositions are forever forming associations. [Americans] have not only formed them in commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive.” De Tocqueville was describing what he saw as the distinct American tendency to organize around issues of common interest or concern, itself born from the absence of Europe’s aristocratic and paternalistic society that made it unnecessary to “combine in order to act.” De Tocqueville observed that the “art of association” was essential to facilitate meaningful collective action and citizen education. “In democratic countries,” he wrote, “knowledge of how to combine is the mother of all other forms of knowledge; on its progress depends that of all others.”

Lobbying is a fundamental, if controversial, part of America’s participatory democracy.

Fast-forward to today and lobbying remains a fundamental, if controversial, part of America’s participatory democracy. On the one hand, lobbying has produced many social goods. For instance, lobbying efforts have helped produce clearer air and safer cars. Writing for the Washington Lawyer, Julia Reynolds observes, “Many initially unpopular laws now recognized as good and beneficial were enacted in part owing to lobbying pressure, such as civil rights legislation. Furthermore, lobbyists able to marshal detailed information and arguments about difficult text in a bill offer an invaluable service to Congress.” Lobbying is also critical to helping elected politicians understand complex issues, ranging from health care to the Internet, particularly, as the Atlantic points out, “as the federal government across all its branches has experienced a deterioration in its ability to acquire, process, and analyze information.”

On the other hand, lobbying has not been without controversy. For example, the Jack Abramoff scandal shed a light on the potentially unsavory aspects of lobbying, where money can be a direct pathway to access, influence, and power. The scandal also reflected the close and historic linkages between lawyers and lobbying—Abramoff was, after all, a partner at a major Am Law 100 firm.

 

Maggie McKinley, a Climenko Fellow at Harvard Law School and lobbying expert, offers context to this dual-sided picture: “Lobbying has never been incredibly popular, but it has been a respected means of social change. Now lobbying is synonymous with rent seeking and corruption, and citizens cannot see themselves looking to government for solutions to social problems. That stigmatization deprives us of one of the primary channels of government engagement.”

Who are the lobbyists?

In 2014, six of the top ten lobbying firms ranked by total income were law firms.

According to the government watchdog, the Center for Responsive Politics, in 2014 $3.24 billion was spent on lobbying in Washington D.C., with a total of 11,181 registered lobbyists—almost 26 lobbyists per member of Congress. Many of those fees went to law firms, and many of those lobbyists are lawyers. More specifically, a large percentage of the lobbyists working in Washington D.C. in particular are lawyers working out of “government relations” practices within law firms. As Table 1 demonstrates, six of the top ten lobbying firms ranked by total income in 2014 were law firms.

To put that in perspective, as well as to demonstrate how incredibly important lobbying is to law firms, in 2014 Akin Gump’s total income from its lobbying practice accounted for over $35 million in total income. It is important to note that even the so-called K Street government relations firms are staffed by former lawyers. For instance, the Podesta Group, the third-ranked lobbying firm by revenue in 2014, was founded and is run by a law graduate. Similarly, the founder, president, and CEO of Van Scoyoc Associates, the fifth-ranked firm by income in 2014, is a trained lawyer. In this context it is worth remembering that while there are strict prohibitions against the unauthorized practice of law, there are little or no regulations with respect to the qualifications required to becoming a registered lobbyist.

Table1

Source: Center for Responsive Politics

It is important to note that many law firms operate their government relations practices as subsidiaries of the law firm due to regulatory rules, including prohibitions against sharing legal fees with nonlawyers. Additionally, for a long time law firms have grappled with how to recruit, integrate, and retain lawyer-lobbyists. For example, since most lobbyists are paid on a fixed-fee basis, this method is obviously not consistent with the hourly billing rate protocol used by most law firms.

As emblematic of the close relationship between lawyers and lobbying, Bhargavi Zaveri, a lawyer and scholar who has examined lobbying in the United States and other jurisdictions, writes, “Most major law firms feature a lobbying practice in their marketing material, and are registered as lobbyists with the U.S. federal government.” She goes on to note that the website of Skadden Arps, for example, makes clear that “attorneys at Skadden have long­standing relationships with representatives from the U.S. government, including the executive branch agencies that comprise CFIUS—a critical element to a successful outcome.”

Zaveri also observes that law firms customarily employ former government officials, who are themselves often lawyers, in their government relations practices. For instance, the Washington D.C. office of Sidley Austin says on its website, “Many of our lawyers possess an invaluable perspective garnered from years of experience in prior government service. Dozens of D.C. lawyers have held high-level positions at the Justice Department, other federal departments and agencies, the White House, and on Capitol Hill.” According to Zaveri, there is even evidence that suggests that “lobbying law firms are so entrenched in the law and policymaking processes that a party change in Congress often changes the hiring patterns of such law firms. The revolving door between the government and private industry forms the foundation of a thriving lobbying industry in the U.S.” Picking up on that point, Sarah Kellogg from the Washington Lawyer notes that the 2006 midterm elections that switched congressional party control from the Republicans to the Democrats reverberated through the law firm lobbying world.

The shake-up sent a shockwave through Washington’s law firms with public policy [practices]. Firms and their clients—many of which are corporations friendly with the Republican majority—were left to calculate how the rise of the Democrats in Congress, and the diminishing influence of Republicans, would affect their operations for good or ill. For some firms a change in power would have little impact on their work. They were well stocked with associates and partners of both parties, and easily meeting their quotas for both rainmakers and worker bees. For others the Democratic-Republican shuffle on Capitol Hill required immediate action—a hiring spree, heavy on the Democrats, please.

All of this raises the question of why is there such a close link between lobbying and lawyering? Of course, some of it has to do with the revolving door of politics and the raw numbers of lawyers in Congress—while there may be a declining dominance of lawyers in the U.S. Congress, 40 percent are still lawyers. Given the importance of networks and access to lobbying, there is a natural tendency for former politicians to become lobbyists. Given that many of them are lawyers, that unsurprisingly produces a high number of lawyer-politicians turned lawyer-lobbyists.

But there are also more nuanced reasons that lawyering and lobbying have close connections—reasons having to do with the sorts of skills needed to be a good lawyer and therein a good lobbyist. Edward Newberry, a partner in Squire Patton Boggs, one of Washington D.C.’s top law firms engaged in lobbying, sees two advantages for lobbyists with legal training. In an interview in the Washington Lawyer, he noted, “One is . . . oftentimes lobbying questions are decided by procedural issues, and the lobbyist that knows the procedure and knows how to use the procedure to his or her advantage has an edge over everyone else. It’s the same for a lawyer. Legal education teaches you about the importance of procedure and how to use procedure. Second is a systematic approach, which legal education teaches you for resolving clients’ issues. The systematic approach works very well in lobbying.”

As emblematic of the relationship between lawyers and lobbying, law schools, including Boston University School of Law, Harvard Law School, and Georgetown Law Center, have career resources dedicate for students thinking about careers in lobbying.

Indeed, many law schools now offer courses specifically in lobbying. Boston University School of Law, for example, offers a course entitled Law and the Lobby. The course description notes that “lobbying is fundamental to our participatory democracy” and that the class will “explore the legal, business, and public policy aspects of lobbying. The course begins with a history of lobbying focused on its legal foundation, regulation, and resulting litigation. Next the business of lobbying is explored, including the size, structure, strategy, and economics of the industry. Finally we consider the impact of recent events on the future of lobbying.” As emblematic of the close relationship between lawyers and lobbying, law schools, including Boston University School of Law, Harvard Law School, and Georgetown Law Center, have career resources dedicate for students thinking about careers in lobbying. Harvard Law School’s lobbying website, for example, provides information about the “day-to-day activities” of a lobbyist, the “major practice settings,” and the “core skills required,” including communication, interpersonal skills, and the ability to work in a fast-paced environment.

Is lobbying lawyering?

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Barry D. Rhoads

If lawyers are often lobbyists, is lobbying the same as lawyering? Barry D. Rhoads, the co-chairman of Cassidy & Associates, one of D.C.’s most profitable government relations firms, thinks there are strong substantive linkages. He notes that his progression from lawyer to lobbyist was organic—there was no definitive moment that “being a lawyer” transformed into “being a lobbyist.” When he first started out more than 25 years ago, Rhoads admits he had no preconceptions about lobbying. More than that, he never really considered what he did as lobbying—he did not even have to register with any regulators. “I never really considered what I was doing was anything other than practicing law—using my legal skills, tactics, and thought processes to achieve a desired result for a client.” Recalling his first meetings with a community group relating to a pending base closure—Rhoads was involved in the Department of Defense Base Closure and Realignment Commission—he notes, “I treated this representation just like any other legal matter. At that time, there were few lawyers in the rural areas where these military bases were located, so the clients were just impressed to have anyone come and represent them.” Summing up, he says, “I’ve been practicing law every day quite frankly. That’s why I think I’m good at what I do—because of my legal background.”

“I never really considered what I was doing was anything other than practicing law—using my legal skills, tactics, and thought processes to achieve a desired result for a client,” says Barry Rhoads.

Rhoads is not alone in this view. In an interview with the Washington Lawyer, Newberry notes that many D.C. lawyers work part-time as lobbyists. “The roles of lawyer and lobbyist are somewhat alike. In many respects, the jobs are very similar, but simply play out in different forums. A lawyer representing a client in court on traditional legal matters is seeking to solve problems for his or her client in that forum, while a lobbyist is seeking to solve problems for his or her client in Congress or the executive branch rather than the courts.”

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Robert Crowe

In a recent interview with The Practice, Robert Crowe, a partner of Nelson Mullins Riley & Scarborough and the co-chair of the firm’s government relations practice, implies that there is difference between being a lawyer and being a lobbyist. Asked to reflect on the evolution of his legal career, Crowe notes that while he has been practicing law for more than 42 years, it was only for the first 20 or so—before he turned to governmental relations—that he considered himself “a real lawyer.” Crowe started out his legal career in a traditional way, going to law school and then working on mergers and acquisitions, corporate law, and real estate work. After he became involved in political campaigns, however, he realized that he had a passion for politics and the political process. Finding himself spending more time inside D.C.’s Beltway, he decided he liked advising candidates and elected officials and discovered that his corporate and tax clients also valued and appreciated his knowledge of political leaders and the legislative process—so much so that they retained him to address their concerns on issues relating to the Internal Revenue Code. “My world involves a lot of politics because I have always loved politics,” says Crowe. “I always got involved in politics, believed in the system, and raised money to support political campaigns for candidates and causes I supported. So it was an easy transition for me. I’m in D.C. every week that Congress is in session. Whenever Congress is here, I’m here.”

“Lobbying is a field where you don’t have to be a lawyer to do well,” says Robert Crowe.

Crowe notes that this career progression transformed him from a “real lawyer” to a registered lobbyist. He views his role as a lobbyist distinct from his identity as an attorney, describing his lobbyist role as an advocate, a policy adviser, and a counselor. While he acknowledges that some of the skills he gained as a lawyer have direct application in his day-to-day work, at the end of the day, being a lobbyist requires additional expertise. “Lobbying is a field where you don’t have to be a lawyer to do well,” Crowe says. For instance, clients and elected officials expect more specialized knowledge and expertise in a number of substantive areas. This is, in part, because elected officials are demanding much clearer rationales in order to justify their votes to their constituencies; hard data and statistics rule the day. As a case in point, Crowe notes that in recent years there has been an influx of lobbyists with Ph.D.’s and other advanced degrees in the social and technical sciences—in short, nonlawyers.

Nonlawyers lobbyists are responding to this new demand. Indeed, it is no longer just law schools that are providing career advice in lobbying and other sorts of policy work. Johns Hopkins Medical School, for one, recently created a Professional Development Office geared toward networking its graduates with policy jobs, including lobbying. Donna Vogel, the director of the office, noted in a press release announcing the office, “From a practical standpoint, just having the appellation ‘Ph.D.’ can carry clout in the policy world. If you want to have a seat at the table where policy decisions are made, you need standing. A Ph.D. or other advanced degree makes people take you seriously.” A recent analysis by the Atlantic corroborates this notion. Because of budget cuts, congressional staff and research services are depressed while the level of information has increased drastically. Expert lobbyists have therefore stepped in. “If you talk to lobbyists, you’ll quickly learn,” the Atlantic notes, “that a good part of what they do is help their allies with the nitty-gritty of developing and then passing policy. Some of that involves generating ideas, and some of that involves actually writing the legislation. Congressional offices rarely have the time or resources to generate their own policies—and certainly not on complex issues like derivatives.” What this means for the lawyer’s role as lobbyist remains to be seen.

Lobbying for the future

What should we make of all this? It is clear that insofar as lobbying remains a powerful force in American politics, the lawyer-lobbyist will continue to be in high demand and exert large influences. At the same time, just as we have seen a decline in the number of lawyers in Congress and across elected office, as well as young lawyers running from—not for—office, lawyers should expect to face increased competition in the political realm from nonlawyer experts.

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Lawyers in Politics Volume 2 • Issue 1 • November/December 2015

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