How Do You Influence a Broken Government? Lawsuits
WHY YOU SHOULD CARE
Because lobbying now is about briefs as much as backslapping.
By Daniel Malloy
The turning point for Angelo Amador came when he watched President Barack Obama’s State of the Union address in 2014. In the face of a Congress unwilling to act on his agenda, Obama said, “I’ve got a pen and I’ve got a phone” to get things done. Amador knew the National Restaurant Association needed to deploy its own pens and phones on a more aggressive legal strategy. The eventual result was January’s birth of an in-house litigation center for the influential Washington trade association.
Courts are fast becoming the chief battleground for federal policy, thanks to a broken Congress and an executive branch continually stretching the limits of its power. Lobby groups are increasingly creating permanent legal arms to keep up. Amador, executive director of the Restaurant Law Center, followed a model set by the U.S. Chamber of Commerce — the granddaddy of business lobbying — the National Federation of Independent Business and the Retail Industry Leaders Association. “This is a trend that is going to continue,” Amador says. “Because the moment that we started appearing in the press … the phones started ringing” with other industry groups asking for tips.
When a new administration [comes in and does] not start providing answers, the courts have to step in and provide the answers.
Angelo Amador, executive director, Restaurant Law Center
Amit Narang, regulatory policy advocate for the nonprofit Public Citizen, which often opposes industry groups in court, says he’s noticed businesses have become more litigious in recent years, which makes fiscal sense, win or lose. “You’re buying, essentially, through a legal challenge, multiple years of regulatory delay that saves those businesses and members of trade associations compliance costs,” Narang says.
But the legal playing field has rotated 180 degrees in Donald Trump’s Washington. The new administration is hell-bent on dismantling Obama’s regulations, from requiring investment advisers to put clients’ interests above their own to restricting emissions from power plants to expanding overtime for hourly employees. The left is lawyering up in response, with groups such as the American Civil Liberties Union and the Sierra Club’s Environmental Law Program seeing fundraising surges. “The courts are the only refuge we have right now,” says Pat Gallagher, legal director for the Sierra Club. “Congress is paralyzed, and the executive branch is a complete loss.”
The Sierra Club’s in-house law center is fighting the administration on a number of fronts and has won court victories against Environmental Protection Agency and Department of the Interior plans to delay new limits on methane emissions from oil and gas wells. Gallagher predicts far more litigation under Trump than under Obama or George W. Bush — the new administration, he says, is not following the law very well in pressing its agenda. “They’re doing this in the most kind of slipshod, hasty, messy way imaginable,” he says.
A slipshod administration causes problems for industry groups too. Amador at the National Restaurant Association laments that several top posts at the Department of Labor — a crucial agency for restaurant owners — don’t even have nominees, much less confirmed appointees. It leaves some Obama-era regulations in limbo. “When you have a new administration coming in and they do not start providing answers, the courts have to step in and provide the answers,” Amador says.
Regardless of who’s in the White House, lobbying now comes with a legalistic approach. In the traditional rulemaking process, an agency issues a proposed rule, the public (i.e., lobbyists and pressure groups) provides feedback, then the agency puts out a final regulation. For major rules, there’s now an almost certain Step Four: the lawsuit. So comments on a proposed rule are written with one eye on the court case to come — raising arguments to be used later.
Cases vary widely depending on who is hearing them, and the ideological makeup of courts often reflects regional differences. The U.S. District Court for the Northern District of California sided with the Sierra Club against the EPA on methane, and some of the strongest court decisions against the Trump administration’s travel ban targeting certain majority-Muslim countries also came from out West — including the 9th Circuit Court of Appeals, which carries a liberal reputation. Amador says federal courts are a mixed bag depending on which judge you draw. At the state level, “in places like New York, where state judges are chosen in partisan elections, it is harder to win a case when public opinion goes against you,” he adds.
In one New York case, Amador recalls winning by losing. The restaurant association challenged Gov. Andrew Cuomo’s decision to raise the minimum wage for fast-food workers in New York City by administrative action in 2015. It lost in court, but after the case sparked fairness questions among the public, the Legislature ended up raising the minimum for everyone — leveling the playing field for restaurants.
On big fights — such as long-delayed rules about how websites must comply with the Americans with Disabilities Act — industry groups now coordinate their legal strategies to avoid repetitive briefs. The onslaught can be overwhelming to groups like Public Citizen, Narang says, which has limited resources for court fights and often struggles to prove legal standing on behalf of citizens who would benefit from regulations.
While business groups are always fighting for their bottom lines, they also crave certainty. In a glass-paneled meeting room in the association’s posh offices in downtown Washington, Amador explains how litigation went from “afterthought” to an integral part of the lobbying strategy. Lasting, bipartisan policy in Congress is increasingly hard to come by, and regulations are based on the whims of each administration. Like them or not, judges at least provide precedents that outlast presidents.