in depth

Getting Past "Gridlock"

By Richard Sine

Getting your views heard in Washington is more important than ever, thanks to a government that is eager to transform industries and confront individual companies for perceived wrongdoing. But navigating Congress today is more difficult than ever, thanks to intensified partisanship and close vote margins. The good news is that there are ways to influence today's Washington—even if they aren't immediately obvious.

DON'T FEAR BIG, BAD GRIDLOCK

Capital Thinking: The new Congress will likely be more closely divided than it is today. Many commentators are predicting "gridlock" in Congress as a result. How can an organization hope to make progress on its agenda under these circumstances?

Trent Lott:

A closely divided Congress does not mean gridlock. One of the most productive periods I think John and I have worked in was when Clinton was president and we had Republicans in control of the House and the Senate. But progress in that kind of environment will take leadership. Part of it will depend on the president. And hopefully, the Republicans and the Democrats will have a little better line of communication than they appear to have now.

Some of the issues that need to be taken up next year are not normally that partisan, like the transportation bill. This is an issue that historically gets members to come together, and I don't know why Congress hasn't focused on infrastructure as the best jobs creator. And everyone knows we need a national energy policy. There will be a window of about six months next year where they can get some things done before you get into the next election cycle.

The fact is, bipartisan support has long been the fastest path to success in Washington, and we have a lot of experience working on bipartisan solutions. And while I wouldn't wish for it, a closely divided Congress actually gives us an opportunity to be more helpful. It will strengthen the hand of those in the center—some of the Blue Dogs that John has worked with, and some of the moderate Republicans that I have worked with.

John Breaux:

If the Congress is split, it will make it even more important that people who have issues before the Congress become involved early on to make sure their opinions are considered. Because what happens is not going to be very predictable.

Getting things done in that environment will require bridge-building in Congress, of course, but also among businesses and organizations that want to advocate their interests. If you have one person shouting in a door, it's difficult to be heard. But if you have an organization or a coalition of similarly minded groups, whatever the issue is, they have the potential to generate a lot more influence on the Congress itself. And Congress actually listens to numbers.

If you get people in the same room with you, talking things out, you find that many times they have more things in common than disagreements. Then you can form a coalition with people you didn't expect to be on the same side.

Trent Lott:

While in the Senate, I used to do a lot of work in the defense area. My father was a shipyard worker, a member of the pipefitters union, so I had a certain degree of comfort with labor, which was a bit unusual for a Republican leader. On defense bills, I would reach out to the boilermakers and other unions to try and get them to become part of a coalition and pass legislation. That's the kind of bridge-building that you have to be thinking about.

WHY YOU'VE GOT TO FOLLOW THROUGH

Capital Thinking: Patton Boggs Chairman Thomas Hale Boggs, Jr. has said that in the wake of the financial crisis of 2008, all roads lead to Washington, D.C., because it's now the "capital of capital." New laws such as the health reform bill and the financial reform bill seem to be rewriting the rules for business. How can businesses adapt to this new reality?

John Breaux:

I think that many businesses and organizations think that the job is done when the bill is finished. In most cases, it's just begun. A one-sentence piece of legislation can turn into a hundred-page set of rules and regulations that dramatically and drastically changes the intent of the Congress. So you really have to be diligent in following through after the legislation is passed.

Capital Thinking: Health care and financial services are two of those areas where Congress passed massive bills but key details are still being worked out.

John Breaux:

Yes, there will be rule-writing periods, studies, and public comments, and industries need to know about all of this and to be involved. Even if you can say you got what you wanted in the bill, there will be 20 other organizations trying to undo what you thought you got by trying to influence the writing of the regulations.

Capital Thinking: So shaping regulation is another way that organ-izations can further their agendas. Can you also do it through litigation? Those hundreds of pages of regulations are sometimes followed by almost as many lawsuits over their implementation.

John Breaux:

This is part of the reason behind the merger between our public policy firm and Patton Boggs. It seems to me that a firm [such as Patton Boggs] that is involved in the legislative process is naturally the best type of operation to be involved in any resulting litigation. That firm knows and understands the intent of the Congress in passing it. They were involved in amendments and policy decisions that set up what the law was intended to do. Therefore, if litigation occurs based on a law that Congress passed, there is no better organization to help interpret the law in the court system than the organization that helped pass the law in the first place.

STAY VIGILANT TO SUCCEED

Capital Thinking: The coming debate over comprehensive tax reform seems likely to be just as contentious as those over health care and financial services.

Trent Lott:

We need overall corporate tax reform. America has the highest corporate taxes in the world. I also get asked a lot about the estate tax. A lot of wealthy and middle-income families and small businessmen want to know what the estate tax policy will be. And the expiring tax cuts touch a lot of small businesspeople.

Reforming taxes won't be easy, because every tax cut you put in place, you need an offset—you've got to pay for it. But that's another reason why you have to be vigilant about what's going on in Washington. There may be a bill that you think doesn't really affect you. But it may require an offset in an area that really does matter to you. And that's another thing that this merger allows us to do, because Patton Boggs has the size that allows us to really track what's happening.

Capital Thinking: It sounds like some very important decisions are being made without a lot of very public deliberation.

John Breaux:

Look at the case of telecommunications. We were both heavily involved in shaping the 1996 telecom act, and now Congress is considering another overhaul. What I think is important for the industries this time is that they shouldn't let the regulators write the law. We have seen some indications that regulators are going to go forward with rules and regulations, making new policy that Congress has not yet adopted. And this is an area that Congress has to be very engaged in; otherwise the regulators will do it for them. Whether it's about Internet policy, rural access or whatever, Congress should make the policy, not the regulators.

Capital Thinking: Paying close attention to Washington also seems to be more important for companies seeking to avoid serious liability exposure.

John Breaux:

Absolutely. These days, Congress is often the tip of the spear for clients facing massive liability claims. The first testimony given, and the first documents produced, will often be to Congress, not to a plaintiff in a lawsuit. Think of the Gulf oil spill and the Toyota sudden-acceleration claims, where executives have testified and companies have produced documents to many committees but the lawsuits are still just getting off the ground. The evidence that a company gives in a congressional or government investigation can set the tone and cast the die for the company's liability exposure before the litigation process even gets underway. That's why it's important to have a single law firm coordinate both the response to congressional (or other government) inquiries and the litigation that's dealt with on a slower track.

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