By Chris Micheli
Negotiating bills and amendments in the California Legislature is an important skill for lobbyists to have as they work in the legislative process. Many advocates spend their time supporting or opposing bills on policy or fiscal grounds and do not engage in negotiating bill language for any number of reasons.
For example, it may be due to their client being philosophically opposed to a measure. In that case, there is no need to propose any amendments to the bill. In other instances, however, a client’s position may be opposed, unless amended. In that case, the lobbyist will need to draft amendments or have someone who can do so.
When seeking amendments to a bill, some lobbyists simply describe verbally or in writing the amendment or amendments that their client desires, without providing specific language changes. Other advocates draft bill language so that they can provide the bill author or staff, or even fellow lobbyists (such as the bill’s sponsor), with proposed amendments to the bill for their consideration. Then the discussion among the parties will likely turn from talking about amendments in concept to reviewing actual changes to the existing bill language.
When reviewing proposed bill amendments, it is important to understand the general rules of statutory construction and to be aware of how Legislative Counsel normally drafts bill language and the terminology that their office utilizes in drafting statutory language. There are obvious differences in statutes that contain the words “shall” versus “may.” In other instances, amendments may be technical in nature, or substantive, based upon the proposed changes.
In addition, there is an art to negotiating bills, like negotiating in general. For example, are both sides trying to achieve success so that it is a win-win outcome for all parties? Or is one party more aggressive and then the negotiation is likely to create a win-lose outcome?
What type of approach will you take in negotiations? Will you be passive or aggressive? Will you make requests or demands? Are you in a position of strength or weakness? Is the bill important or not very consequential? There are many questions such as these, as well as a host of factors, that may influence what position someone takes in negotiating bills and amendments.
The most common negotiating approach in the legislative process seems to be: “ask for more and settle for less”. In other words, if your client wants to increase a tax credit from 5% to 7% at a minimum, the bill is likely to be introduced with a 10% rate. This is a common tactic to introduce a bill asking for a higher percentage knowing that, through the legislative process and the ensuing negotiations over the bill, you will likely end up at a lower rate than you originally asked for at the end of the process.
Another critical component in successful bill negotiations is to fully understand the area of law being addressed by the bill. That enables you to appreciate the key nuances that may be required as you negotiate the bill’s provisions and the exact statutory provisions that are being added, amended or repealed. Obviously, you will have to know your client’s best interests and what is essentially their “best and final offer” as you begin negotiations.
More successful lobbyists are ones who negotiate a bill’s provisions because they know and understand the existing law, what the actual impact of the bill will be, as well as the politics, the players and the different interests in a subject. It is more difficult to negotiate when someone does not know and understand the current state of the law and the implications of proposed bill language.
In other instances, lobbyists have an expert from their client work on the bill language and be actively involved in the negotiations due to that person’s level of knowledge, experience and expertise in an area of the law. Just a word or two that changes could have a significant or even detrimental impact on an individual business or an entire industry. As a result, the person who is negotiating must understand those potential impacts.
Chris Micheli is a Principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He serves as an Adjunct Professor at McGeorge School of Law in its Capital Lawyering Program.