Clients routinely inquire about engaging the Congress to resolve regulatory gray areas or disputes with a federal agency. I’ve had this talk hundreds of times now and I usually respond the same way, over and over again, “are you sure that is what you want to do?“. While most disputes with the federal government can be resolved administratively, there are times that you or your company could use a legislative strategy to discuss the problem.
Engaging on the Hill is not like traditional courtroom litigation or lawyering. There are a lot more rules – written and lore – that may or may not be followed by the Members of Congress or staff. It is can also be extremely time-consuming and, most assuredly, the costs will add up over time. And even with the best thought out legislative strategy, there is no guarantee of success. Your strategy must change throughout the process or you will surely lose. A lot of patience will also serve you well.
A great majority of legislative advocacy is done quietly and without much fanfare. However, every now and then an issue, or scandal, will be a hot news item. Both scenarios, each with its own numerous variations or subcategories of action items, can lead to a Congressional hearing. Most of our clients wish they could appear before a Congressional Committee to have their views aired out. While that would be ideal, the system is set up, much like the free market, and each issue competes with others. Only a very few ever reach the Committee hearing stage.
Testifying before a Congressional Committee can be an exciting opportunity for a witness. More than just a few eventual pages of legislative history, it is where the law and, yes, public policy or politics intersect. It is your time to become a footnote in history, albeit an important one that can lead to some rather extraordinary things. Shaping future laws is a rewarding process, one that should be undertaken with the seriousness it deserves. In some cases, it can also be a whole lot of fun.
If you’ve been subpoenaed, or if you or your agency or group is the subject of a contentious hearing, then the matter can become a downright nerve-wracking, intimidating process. Always seek legal counsel. Never go at it alone. Preferably seek the advice of a lawyer who also happens to have the right Capitol Hill experience. Everything you say becomes part of the official record and, depending on the particular Committee rules, you may or may not have the opportunity to amend any of it.
Here are some more considerations and thoughts about the hearing process that I’ve shared with clients through the years:
- Give yourself plenty of time to prepare written testimony and then summarize it for a well-written and concise opening statement. If C-Span or media is present, or if the Committee webcasts the proceedings, what you say will be in the public domain before you leave that room. You want to sound your best because most people will never read your prepared statement.
- Committee staff work is one of the most grueling in this town. There are multiple constituencies to deal with including Leadership, Committee Members, interest groups outside the Hill, and even the media. They can be your ally. Work with them and help them prepare.
- This one is obvious, and should be a given: never lie or embellish. This is not Hollywood or make-believe, it is serious business. Lying to Congress is a felony. If your written or oral remarks are materially false, fictitious, or fraudulent, you’ve broken the law. Run away, fast, from any lawyer or lobbyist who tells you to say what you will, it is tough to prove.
- In the weeks leading up to a hearing, if you have that much time, work with counsel to develop a list of tough questions that you think could be asked during a hearing. Have answers ready for each. There is no need to memorize it, unless it makes sense to do so. However, you need to know the valley as well as the peaks of your issue.
- Be judicious with humor. As a general rule, I counsel against it. Yet there are situations where humor, if it comes across naturally, can help defuse a tense or uncertain moment. Generally though, avoid it.
- Remember that everyone on that Committee dais, from the Members to the Staff, have an agenda. Members represent varied interests that may sound alien to you. That is the nature of our process and it is what makes it stronger. Your contributions are important to that discussion, so stick with what you know. The Members have been briefed ahead of time and know why you are there. If you do not know the answer, say so and offer to send them an answer after the hearing.
- And, if you can, enjoy it. While it may seem routine for those of us who have done it or help folks prepare for it, it is a unique chance to shape laws, regulations, and the public discourse.