LAWS AND GUIDELINES REGARDING YOUR INVOLVEMENT IN SHAPING HEALTH POLICY

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1 LAWS AND GUIDELINES REGARDING YOUR INVOLVEMENT IN SHAPING HEALTH POLICY It has generally been accepted that educating federal decision makers is not lobbying, but. Rather, a safe harbor of permissible activity under federal law. A half-step between educating and lobbying is advocacy, which might be expressed as general support for a cause without seeking a specific policy outcome or decision. However, neither education nor advocacy has been defined in law in the context of describing permissible activity. Educating typically implies the communication of facts, data, reports, studies, program descriptions, budget information, effects on population, and other information without making a specific recommendation on a piece of pending legislation, appropriations, regulation, or policy decision. From a federal perspective, this conveyance of factual information is considered acceptable in all circumstances. However, state administrative policies may bar any contact with federal officials, even though, from the standpoint of federal laws, educational activities are always permitted. Lobbying has been defined in law. Lobbying laws define permissible communications with members of Congress and key federal officials. Advocacy is a gray area that can imply support for a generalized policy such as clean air without recommending a particular standard in law or regulation. Lobbying entails opposing or recommending a specific policy, law, or standard. So for example, advocacy can support immunization as an effective means of controlling disease, but recommending an increase in population coverage to a specific percentage level or funding the budget at a specific level would be considered lobbying. Advocating strengthening the public health infrastructure is a vague goal and may not be considered lobbying, but recommending a particular budget for a public health program would be considered lobbying. By walking this line between advocating and lobbying, individuals may be able to conduct much of the communication needed to affect a decision without crossing the line that defines lobbying. Communicating how programs operate and serve the public, the history of the program budget, and the unmet need may all be viewed as educating, as long as a specific recommendation is not advanced on a pending decision, such as passing legislation or an appropriation bill. Basic educational information can build an important foundation of support to help a decision maker better understand a program or agency without actually lobbying for the program. State and local public health workers can often be effective by educating or advocating without lobbying. Public health workers who run these programs know them best and are in the best position to advocate for them. Unfortunately, policies often restrict public heath workers from engaging in actual lobbying. Understanding allowable communications with officials may involve the distinction that all lobbying is advocacy, but not all advocacy is lobbying, and education typically is not considered either advocacy or lobbying. To be clear, the preceding guidance on

2 education and advocacy is not legal advice and is not addressed in statute. But it has been a commonly understood practice among organizations engaged in advocacy. Basic advocacy guidelines If you are a state or local health department employee, there are likely to be restrictions on whom you may contact in government and what you are allowed to say. Here are some general guidelines. First, check with your supervisor about whether there is an office policy, state or local administrative rule or law, or other executive order that establishes what types of communication you may have with state or federal officials. You may be barred from having any contact at all, or you may be allowed to provide educational materials, but not allowed to lobby in the strict sense of the term. You may be allowed to lobby on your own time as a private citizen or member of a professional organization. Second, federal laws allow anyone to lobby federal officials, but individuals may not use federal funds to do so. This means you cannot use federal funds to pay travel costs if the sole purpose of the travel is a lobbying meeting. If your position is 100 percent federally funded, you cannot lobby on official time. Federal funds cannot be used to develop lobbying materials. However, there is no restriction on educating with federal funds. Communicating with federal officials to conduct official business, such as the administration of grants and contracts, is exempted from the restrictions on lobbying. Third, federal law requires that individuals who spend more than 20 percent of their time lobbying on behalf of an organization register with the Congress as lobbyists. Organizations that hire lobbyists must also register with Congress. Typically, such organizations must report the name of the hired lobbyist on a Lobbying Disclosure Form when they apply for and receive federal funds in the way of grants, contracts, and cooperative agreements. However, individuals are not required to register as lobbyists if they are educating. Ultimately, federal lobbying law defines all legal communication with decision makers under one of two categories: 1. Communication, activity, and contact that is legally defined as lobbying 2. Communication, activity, and contact that is not legally defied as lobbying Communication, activity, and contact is either one or the other never both. If the action is considered lobbying under federal lobbying law, the act and the person may be required to register with Congress. The Lobbying Disclosure Act of 1995 does provide for one restricted population that cannot legally engage in unrestricted lobbying without consequences: An organization described in section 501 (c)(4) of the Internal Revenue Code of 1986 which engages in lobbying activities shall not be eligible for the receipt of Federal funds constituting an award, grant, contract, loan, or any other form (Public Law , Section 18).

3 However, even the 501 (c)(4) groups proscribed by this section are able to communicate with covered officials in compliance with the 20 percent rule. Thus, all constituencies are legally allowed to communicate with their representatives in government in a legally definable way. The 20 Percent Rule Explicitly stated, under the 20 percent rule, public health officials may be allowed all types of communications and contacts with covered officials at the federal level, despite being funded in part by monies from the federal government to support public health activities. They just cannot use federal funds for lobbying activities. This means that they cannot use federal grant funds to travel for lobbying purposes or the portion of their salary paid for by federal funds to engage in lobbying. If state policies or laws prohibit contact with the Congressional delegation, public health officials may be permitted to meet with and lobby the delegation as members of a professional organization and not on behalf of the state or local health department. Operating well within the constraints of the law, public health officials can effectively shape and positively address the nation s public health policy issues. The Lobbying Disclosure Act of 1995 Definitions Understanding the terminology of the law is the foundation for its application. For the purpose of defining lobbying, the germane law is 2 U.S.C. 1602, entitled the Lobbying Disclosure Act of 1995, and referred to in this discussion as the Act. This act was signed into law by President Clinton on December 19, 1995, and enacted on January 1, (For 501(c)(3) organizations, the germane law is the 1976 lobbying law.) Several terms referenced in the Act help clarify the umbrella term lobbying. Critical among them: Covered official: The Act defines covered officials as members of Congress and all legislative (as opposed to administrative) staff, cabinet secretaries, executive branch political appointees, and other high-level executive branch officials. Lobbyist: The Act defines a lobbyist as any individual who is employed or retained by a client for financial or other compensation for services that include more than one lobbying contact, other than an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a six-month period. (For associations with public officials employed by states or receiving federal funding, the 20 percent rule is arguably the most important exception to the definition(s) of lobbying.) Lobbying activity: The Act defines lobbying activity as any action taken in support of a lobbying contact, including planning and preparation, research intended for use during the contact, and coordination with other lobbyists. Lobbying contact: The Act defines lobbying contact as any oral or written communication to a covered legislative or executive branch official regarding the following matters: The formulation, modification, or adoption of federal legislation, including legislative proposals, or of executive branch policies, including rules, regulations, and executive orders The administration or execution of a federal program or policy

4 The nomination or confirmation of any person who requires Senate confirmation The Law in Real Terms The real effect of the Lobbying Disclosure Act (or Act) has been to increase the number of persons filing as registered lobbyists, increase public transparency with regard to the quantity and direction of lobbying, and as a collateral effect, to foster a perception of the Act as an obstruction to those unfamiliar with the law and its statutory limitations. As the Act itself states: Nothing in this Act shall be construed to prohibit, or to authorize any court to prohibit, lobby activities or lobbying contacts by any person or entity, regardless of whether such person or entity is in compliance with the requirement of this Act (PL , Section 8 [b]). However, the Act does, in real terms, restrict the legal boundaries of what public health officials are permitted to do. The restrictive aspect of the Act with regard to public health officials is contained in 18 U.S.C This section prevents the use of federal funds for lobbying purposes, as defined by law. The statute reads: No part of the money appropriated by any enactment of Congress shall be used directly or indirectly to pay for influence in any manner a Member of Congress. Similar law is stated in Title 31, U.S. Code, Section 1352, entitled Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions, which generally prohibits recipients of federal grants and cooperative agreements from using federal (appropriated) funds for lobbying the executive or legislative branches in connection with a specific grant or cooperative agreement. Section 1352 also requires that each person who requests or receives a grant or cooperative agreement must disclose lobbying undertaken with non-federal (non-appropriated) funds. Thus, the law has established that federal dollars cannot be directly used for activities defined as a lobbying contact, which include communications on formulation, modification, or adoption of federal legislation, including legislative proposals, or of executive branch policies, including rules, regulations, and executive orders. This law is generally applicable to state employees whose agencies or programs are the recipients of federal grants, with certain exceptions. Public health officials retain wide latitudes in which they can communicate, and in certain cases, strongly advocate, their positions on federal policies. For example, recall that organizations or individuals are only considered lobbyists when 20 percent or more of their compensated time is spent on lobbying activities (Public Law , Section 3 [10]). Thus, if no one person in an organization spends more than 19 percent of her or his time on lobbying activities, the requirement to register as a lobbyist is not triggered. In a typical situation involving a public health association, the purpose of understanding the 20 percent rule is a matter of whether an organization or an individual has to register as a lobbyist with the Congress, and it may then also have bearing on the organization s tax status. Typically, in order to maintain a 501(c)(3) status, an organization cannot use more than 20 percent of its budget on lobbying or political activity such as campaigning.

5 Questions to ask regarding Administrative Policies In many cases, the biggest boundaries faced by state health department employees are the Administrative policies implemented by the governor s office and state agency leaders. The following is a list of potential questions that state health department employees should ask when trying to work within administrative policies. What is the administration s policy on interaction with legislators? Can I proactively advocate and educate? Typically, the governor s administration changes every four to eight years. However, the perception of a state employee s role may not be questioned when an administration change occurs. For example, twenty years ago a governor told his cabinet secretaries that their employees were not allowed to make contact with any state or federal legislators. Twenty years later, no state health employees have sought to update the rule. Thus, they are still following this mandate, passing up opportunities to educate decision makers by participating in forum or organized trips to Washington, D.C. Can partners really help influence state and federal legislators? The simple answer is yes. Partners can be anyone you work with collectively to achieve a common goal. Partners are fellow agencies, outside organizations, individuals, and even legislators. Partners may perform tasks, such as advocacy, that administrative rules prohibit health department employees from doing. It is critical to develop a trusting relationship with your partners, as they become the face of the issue you are ultimately supporting. Trust also allows you to eliminate any differences of opinion and to work together in a collaborative manner. Partners can help by providing the following: Access to personal testimony on how a public health program has affected individuals and their family life A grass-roots advocacy network to contact and influence both state and federal decision makers Information provided directly to decision makers through letters, events, telephone calls, and personal meetings An opportunity to facilitate a meeting, roundtable, or conference where decision makers can be exposed to your expertise Does it matter when a health policy initiative is launched? Timing is very important. It is self-defeating to announce a health campaign that will save many lives but cost the state more money during the same week it is announced that the state is in a financial crisis. However, announcing a campaign that will save state funds would be most appropriate at precisely this time. Funding will always be an issue. Departments need to set internal priorities, so during a financial crisis; partners are not confused or discouraged by internal conflicts.

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