Getting mad isn’t enough

The art of translating ideas into consequences: How politics
drives the process that sets policy

By Kim Ross

As electoral waves of unbridled anti-government sentiment are somewhat unevenly expressed against incumbents in both primaries, many physicians are likely to wave at the parade (or angry mobs), if not grab pitchforks and torches and join the procession. Physician frustration, broadly speaking, has reached a tipping point. The medical societies who have dared to conduct surveys of their member physicians have found unprecedented white-hot anger, cynicism, and a pessimism that runs as high as 8-to-1. But where are physicians putting all this righteous, and to some extent misdirected, anger?

The art of politics, if that’s not an oxymoron, is channeling motivated
voters into constructive results rather than merely a short-run tantrum that unhorses or simply antagonizes an incumbent. The end game isn’t the political assassination of an office holder. It is winning or leveraging an election so that the survivor/winner supports your well-reasoned ideas over your adversaries’ equally reasoned ideas, out of conviction or fear. Either motivation works. After all, why engage in these often unsavory and disingenuous public affairs if your ideas don’t have consequences?

In these times of incumbent rejection and unfocused resentment of all things governmental, a story often resurfaces as told by a longtime Capitol press corps reporter. It seems this reporter was attending a post-election interview with a newly elected governor who had just won back his former position from the same incumbent who, four years previously, had unseated him. The reporter asked the governor-elect in a post-victory press conference, “What will be your top priorities this session?” The governor-elect stared for a moment, then asked, “What?” The consensus interpretation from the journalists in the room was that his agenda was avenging a previous defeat at the hands of the soon-to-be ex-incumbent. There was no other agenda, although there were plenty of well-heeled supporters of the challenger who had their own ideas already drafted in bill form.

Legislative ideas, after all, arrive at their destinations from a political process. They aren’t all that often born spontaneously from civic-minded public servants. They are turtles on fence posts. Someone put them there. Legislators, especially part-time state legislators, do not have the time or capacity to grasp every nuance of the more than 6,000 bills that are filed every session, nor, realistically, the 1,000 or so that pass their desks on the House or Senate floor and that are voted for or against. Ideally and by their preference, they rely on guidance from local, credible sources who are also supporters. Lobbyists either direct that local traffic to the politician or inject their clients’ opinions in its absence.

It should thus follow that if politics drives the process that sets public policy, how do physicians master the art of politics? What follows is a brief guide to the principles of political engagement, and how medicine’s ideas can have real-world consequences. It is in three parts—the basics of electoral engagement, how to be an advocate during the legislative process, and what constitutes effective policy development within the confines of a political process.

Part 1

Electoral engagement: The basics

In politics, relationships are as important, if not more so, than issues, and as a corollary, elected officials can trace many of their most valuable relationships back to their earliest electoral experiences. Running for office, then hanging on to it, is not for the timid or those plagued by self-doubt. A politician rarely forgets or overlooks those who were there during that first, seminal election, or their first near-death experience during a re-election.

Who gets to cut in line at a legislator’s office? The physicians who have stayed out of the electoral process and never contributed or worked in the incumbent’s campaign, or his local optometrist and longtime finance chair? What does one suppose is the predisposition of that legislator on expanded scope of practice for optometrists? Since most legislators didn’t go to medical school, where do you suppose they go to get some sense on how to vote on these complex and intensely political matters?

There are three types of grassroots relationships, as opposed to the time-honored lobbyist relationships of those who regularly haunt the halls, bars, and anterooms in Austin and Washington, D.C., and direct client support to those lawmakers. All have relative value, in descending order:

• Organic: These relationships are of a more natural order, preceded their political careers, and are by definition relatively close: family members, classmates, physician-patient relationships, neighbors, or other community-based relationships involving regular interaction. When managed methodically and ethically, they are by far the most influential during legislative cycles.
• Home grown: These are relationships acquired during an election cycle. Physicians who engaged in all the basics of volunteer political action (not just making a contribution, however important this emphatically is) during a campaign: signing letters or ads; hosting events; block walking; traveling with the candidate; and any in-kind public, sustained gesture. They are the most numerous relationships and in most cases neutralize even the largest contributors’ efforts at bullying your legislator.
• Artificial turf: These are the en masse responses rallied from your medical organization where volume, in addition to personal contact, count. These are letters and e-mails. Some legislators are notorious for hiding behind perceived local doctor ambivalence. Lobbyists frequently hear from the uncommitted legislator, “I haven’t heard from my docs on this,” implying a lack of political interest among physicians and the politician’s proportionate disinterest in supporting the position, especially if the other side is pounding his or her office with mail and calls.

In the next part we’ll review how to apply these relationships in legislative battle.

Part 2

Doctors as policy advocates: How hard could it be?

To the extent physicians and their advocacy organizations have invested in the political process during successive election cycles, they will have accumulated the kind of political capital that has currency before and during a legislative session. That will be the time to expend that capital, but it should be spent judiciously, not murdering a bill that was already committing suicide or trying to persuade the unpersuadable. Whether the contact with their legislator is in their crowded Capitol office during the biennial melee or the more quiet environs in their district, there are certain rules of engagement and guiding principles to those conversations.

How legislators think

This isn’t an oxymoron. Every legislator runs legislation that has local backing or political muscle behind it through a rational calculus that measures the difference between the electoral risks of taking sides as compared to the personal or ideological beliefs of the legislator. For some issues, the legislator will bend to the ideological side, willing to take political risk because of personal conviction. At the other end of the spectrum, the legislator may see the vote as potentially career-ending, or at a minimum calling in heavy artillery on his or her own position in the next election, by violating partisan doctrines that guarantee a primary opponent or by offending local constituencies capable of organizing a grassroots offensive.

Calling on a legislator—really just showing up—is vital, if for no other reason that if absent, you forfeit your interest and influence to the other side. But, it isn’t a social call. Longtime University of Texas football coach Darrell K. Royal famously said about his aversion to the forward pass, “three things can happen to you and two of them are bad.” It can be also said of legislator contact or public testimony: the legislator may agree, disagree, or simply not respond. Your words have consequences, but epiphanies are virtually nonexistent. I’ve never seen the Red Sea part or a blinding light hit a legislator after giving it our best shot, causing him to fall to his knees and dramatically proclaim, “I see the light! All this time you were right and we were wrong. I am born again, and this time, I’m on your side.” Physicians making those House and Senate calls will need some guidance from their lobby or their peers who enjoy an organic or home-grown relationship to assess their legislator’s disposition so as to know what to expect and how to temper their conversations. This prior assessment is crucial to assuring a productive contact and minimizing the possibility of a grenade going off in someone’s lap.

To make things more linear in this chaotic world, here’s a simple typological guide to your legislator’s possible position before the vote.

• Kamikazes: Whether for your issue or against, conversation is at best symbolic if not futile. Their disposition implies a risk-irrelevant stance to the point of self immolation. Though they may wrap their views in some rhetorical or partisan device, what they are really saying is they are intractable. If they are for you, one invokes the “strike oil, stop drilling” rule. Say thank you and ask what they are hearing about your issue. For those against, say thank you and offer the vague hope there may be other issues where hearts and minds might otherwise converge. No reason to share your playbook with the other team.
• Ambivalents: Here is where all legislative traction is acquired and change is realized. These are legislators, often a substantial plurality of the Legislature, who by definition are on the proverbial fence. There are two kinds of ambivalents: moral and political.

The moral ambivalents are high-centered because they have not heard a sufficiently persuasive argument from either side. This is very lucrative ground, where an evidence-based policy and well-reasoned arguments have immense consequence. It is also a rare circumstance. One can infer from the morally ambivalent that the legislator does indeed want to do the “right” thing, has disregarded ideological, political, or partisan pressures, and considers the issue sufficiently relevant to everyday life to spend precious time studying the merits of the issue.

The political ambivalents are uncommitted because they are simply indifferent to the policy consequences and more interested in the political risk of taking sides. This is by far the largest ongoing plurality in any debate preceding legislative action. The more intense the party, local, and lobby pressure, the more a political ambivalent will be inclined to wait the issue out, hoping for a forced compromise (no one willingly gives ground—it is usually achieved at gunpoint) or for the arcane twists and turns in the legislative process to kill the bill before it reaches his or her desk. This is a trickier encounter since the legislator will be reluctant to admit having political fears without incurring certain liabilities, including an implied quid-pro-quo transaction or one that explicitly ties a vote to promised support. It regrettably happens on rare occasion in the privacy of an office or local venue, and it is also a criminal offense. Physician conversations in these circumstances are no different than the policy debate with the morally ambivalent legislator—succinct, well-reasoned, evidence-based arguments.

Part 3

The legislative process: Insights into the flow and logic inside the skunkworks

The Texas Legislature is constitutionally limited to convening every two years for 140 consecutive days, part of a series of post-reconstruction reforms intended to limit the governmental excesses imposed on the locals after the Civil War by Yankees, carpetbaggers, “radical Republicans,” and ardent unionists. Modern observers wryly suggest the legislators at the 1875 constitutional convention made a transposition error and meant to limit the Legislature to meeting “every 140 years for 2 days.”

The governor can summon lawmakers to Austin for special sessions that are limited to 30 days and subject only to legislative items listed in the governor’s call. These are understandably rare and invariably unpleasant episodes since at least half of these part-time legislators, if not most of them, are being dragged back to Austin to deal with an issue that couldn’t be resolved in the first 140 days.

Physicians who wade into this swamp without an interpreter are likely to get frustrated, lost, or both. It is an arcane, insider process with elaborate rules and procedures. It is sufficiently complex that even the most skilled lobbyists often retain highly specialized wizards and gremlins, usually former staffers, who are experts in navigating the wilderness of rules and procedures. Within that context, the process of making law is quite rational and predictable, given a few hints and insights.

Every high school civics text has a flow chart entitled “how a bill becomes law.” It is a truthful representation, but as is often the case in politics, it is not accurate. This brief discussion should be entitled, “why most bills will never become law,” and is intended to outline the logic of the process more than its byzantine features.

Every aspect of the state constitution governing the legislative process, the enabling statutes, and the minutiae of the House and Senate rules are designed around type I error avoidance: the acceptance of a false positive—better no law than a bad law. While in the swamp, one should never assign to coincidence or stupidity, however tempting, what can be fully explained by conspiracy. There is a floating plurality of legislators who on any given politically volatile issue would prefer not to vote on it. The system favors lobbying toward that bias, and politicians use the process to hold bills hostage and hopefully inspire negotiated deals that limit their exposure to controversial votes. (See ideology vs. ambivalence above.)

Consider some of the more common choke points and impediments to bill-passing. Bills go to a committee, and then in most cases to a subcommittee. The bills as filed are read aloud as a formality known as “first reading,” then are sent to a committee at the discretion of the Speaker. Since the Speaker appoints those committees, a bill referred to a committee with a majority of hostiles didn’t wind up there by accident. (See “turtles on fence posts” rule.)

Each bill then requires a hearing, the scheduling of which is entirely at the discretion of the chair. Contentious bills that rise to the level of political ambiguity are very likely to be held hostage, often at the request of the committee members, to see if a compromise can be compelled.

Each bill also requires a fiscal note. The comptroller staff guesstimates if the legislation requires state revenues. If your legislation comes back with a zillion-dollar fiscal note when the more probable revenue impact is at worst neutral, one should assume the fiscal note is really a poison pill.

The House has a third gatekeeper, the Calendars Committee, which filters all bills coming from full committees (assuming they escaped their subcommittees) and schedules them for floor debate. Proceedings of the Calendars Committee are hardly transparent. Committee members are allowed to “tag” bills they don’t like, an informal means of delaying their consideration. If pended bills were pebbles in a boat, the boat would be taking on water and nearly capsized by the end of the 140-day session.

Amendments to legislation have to be germane to the caption, or topic of the bill, unlike in the U.S. Congress, where lawmakers can pile on Medicare reforms to Department of Defense bills. There are elaborate “layout” rules requiring several days of incubation pre-floor debate so presumably legislators can see what’s coming and prepare.

The Senate has its own version of a third gatekeeper, called euphemistically the “two-thirds rule,” which in effect means that all bills pending Senate floor debate require two-thirds of a quorum (19 to 21 out of 31). Sometimes a senator or two can be persuaded to “walk,” or “vote with their feet,” meaning they are not on the floor when the bill is recognized for a suspension vote, dropping the absolute threshold needed. But that is another story.

More on the Senate two-thirds rule: Senate rules state that all bills are brought up in their regular calendar order. As bills come of out of Senate committees, they pile up on the calendar. The presiding officer of the Senate, usually the lieutenant governor, never recognizes that batting order. The first bill is called the “blocker,” for obvious reasons. So, to take up a bill out of regular calendar order requires a suspension of that Senate rule—a motion to take up and consider the bill out of regular calendar order. Rules suspensions require a two-thirds vote. If you’re still following this, the net relevance is that any legislation in the Senate can be blocked by just one-third of its members—11 votes—with one extraordinarily rare exception we experienced last cycle. Add to this the fact that state senators serve four-year terms, and you’ll see that since they sit for two sessions before they are up for re-election, a mid-term senator has more discretion than a two-year-term House member, and can be more aggressive in exploiting the two-thirds barrier.

Given the variety of methods with which legislators can dispose of potential legislation, it’s quite an achievement when a bill you’ve supported survives the gauntlet and lands on the governor’s desk to be signed into law. The process is designed to kill bills, not to pass them, but with the right strategy, personal relationships, and a strong, well-prepared grassroots campaign, you can win the day.

In 2003, when the Legislature was consumed by the prospect of a $10 billion budgetary shortfall and the angst of the bloodiest redistricting battle in recent memory, TAFP and the rest of organized medicine succeeded in passing landmark tort reform legislation that stabilized the medical liability marketplace and put an end to skyrocketing malpractice premiums.

This coming January, the Legislature will convene in Austin facing many of the same challenges: an $18 billion shortfall in a redistricting year, plus the sunset of some major agencies including the Texas Department of Insurance and the Texas Department of Transportation. Even so, by nurturing your relationships, building coalitions, understanding the process, and making your voice heard, you can translate great ideas into meaningful consequences for the benefit of your patients and your practices.

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Your advocacy encounter checklist

Remember, during a session, you may be talking with policy staff in lieu of your legislator.

1. Prepare. Rehearse your issue talking points with your lobbyists. They are professionals and spend a lot of time in that swamp. Get a profile of your legislator, especially if you don’t have an organic or homegrown relationship in tow.
2. Don’t cuss the alligator before you cross the swamp. Never, ever, threaten, show anger, or imply you’d like to remove a favorite appendage without the benefit of anesthesia. The legislative process assures many opportunities for instant karma payback, with no fingerprints or smoking guns.
3. It’s not personal. The venal, mercenary, bottom-feeding, yellow-page-advertising, ambulance-chasing personal injury lawyer’s vote is as good as the white-gloved, afternoon-tea, gated-community debutante’s. Make no assumptions about where your support may come from, or indulge in personal opinions about any legislator’s life philosophies or lifestyles. Sam Rayburn said it more succinctly, but we can’t print it.
4. No ad hominem attacks on the other side. You may reference the canine ancestry of a rival profession only to find the legislator’s spouse or family member belongs to that tribe. Besides, it is non-persuasive and bad form, especially from a respected member of your learned profession.
5. Don’t negotiate. The more clever of the ambivalents, in seeking to distract or find a way out, may ask for a trade or a downgrade of your request. Refer them back to your lobby.
6. Address legislators by the titles they’ve earned. Nicknames like bubba, big guy, or cutie, even their given names, are off-limits unless you enjoy that kind of intimate, organic relationship. Even then, it’s best in the presence of others to say “senator, representative, or mister/madam chair.” Your lobby can help you with protocol.
7. Treat staff with the same deference. They are the filter to the boss, and have no problem filtering your points. See also point No. 1 about doing your homework—they have personal physicians, friends who are physicians, and quite possibly good friends working against you.
8. Argue from evidence, not beliefs. While avoiding jargon and acronyms, cite the scientific evidence in a cause-and-effect linkage that ties the policy to the desired or undesired consequence. Your position may involve three wise men and a virgin, and the other side may be agents of Satan, but that is in most cases an insufficient argument. Everyone likes to invoke a deity when backed into a legislative life-or-death corner. The ambivalents want probable outcomes.
9. Take the debate to the exam-room level. Tell a story using real or redacted cases of the consequences of action and inaction.
10. Stay inside your knowledge. If you don’t know, just say you’ll check and get back. Don’t chase hypothetical questions.
11. Report back. It’s okay to take notes, and vital you compare what you heard, thought you heard, and didn’t hear to your advocates. Your intel will fit into a complex pattern across 181 votes, and provides valuable insights into your opponents’ strategy, progress against you, and the predisposition of your legislative contacts. And, drop a note to thank whomever you met with to memorialize the contact with them, but present that fairly. This gives you one more chance to reinforce your points.

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Kim Ross is a public affairs consultant specializing in health care policy and political strategy. He is the former vice president for public policy of the Texas Medical Association, and he regularly advises state and national office holders, corporations in the health care industry, and physician associations across the country.