While getting a law passed sounds flashier in news bulletins, much of the advocacy work associations must do centers on regulations. A look at why regulatory advocacy matters and some best practices around it.
Understanding the role of federal regulatory advocacy in your members’ industries and enhancing engagement efforts with federal agencies can significantly advance your strategic government relations objectives over the long term. While Congress enacted only 344 laws between 2019 and 2020, agencies completed 5,838 rulemakings during that same time, making agencies approximately 17 times more active than Congress. Since each regulation carries the force of law, the regulatory arena arguably affects professions and businesses more than any other.
After a law is enacted, it is typically implemented by developing regulations that outline what impacted communities must do to comply with the law. Regulatory advocacy targets the development of regulations through a process known as rulemaking, which provides opportunities for the public to submit written comments. While any individual member can comment on a rulemaking notice, there is power in numbers, so your role as an association representing a large community of constituents can often hold more weight than the comment of any one individual.
Your association should care about regulatory advocacy and rulemaking because the federal government is required to read and respond to all feedback it receives. That means your association can submit a written comment detailing why you support or oppose a proposed policy, offer recommendations to revise the proposal, or recommend a new proposal altogether that better matches the needs of your constituents. The federal agency must review and respond to your comment in writing in the final rule it later issues.
Regulators will remember you and your organization if you are helpful and provide useful information before they are in a position to decide the fate of your regulations.
Due to the technical detail involved in regulatory notices, in my role at the American Occupational Therapy Association (AOTA), I identify and consult with expert members who advise me regarding the real-life impact of a healthcare policy so I can make the most effective arguments in our comment letters. Certain federal regulations, including those developed by the Center for Medicare and Medicaid Services (CMS), affect the day-to-day operation of our members’ businesses more than most legislative enactments. Thus, a close reading of agency proposed and final rules and consultation with association experts is necessary to deliver skilled regulatory advocacy.
One strategy that worked for my team involved engaging the agency early with pre-rule concerns, providing a potential solution and evidence to support it. If there is a CMS policy that we know requires change, we have successfully arranged a meeting with agency officials, even in the absence of rulemaking. Early engagement can bring the agency’s attention to an issue that is within their authority to correct without rulemaking and help frame understanding. With sustained and coordinated effort, pre-rule stage advocacy can also move an issue onto an agency’s regulatory agenda for formal rulemaking when needed.
To make your advocacy more fruitful, I asked several association regulatory advocates to share techniques they have found successful in their government relations efforts.
“When submitting comments on a proposed rule or other government action, be as specific as possible with your recommendations,” said Mark Ames, director of government relations at the American Industrial Hygiene Association. “Rather than saying that your organization urges the Department of Labor to do more or less of something, cite the specific text of the draft regulation you want changed and propose alternative wording. Along with the specific changes, provide a rationale for why the agency should adopt your recommendations and what could happen if your recommendations aren’t adopted, using as much data as possible.”
Meetings with agency officials, whether in-person or via Zoom, are also effective in building long term relationships with the agency. Most federal agency staff I work with are not political appointees and remain employed by the agency regardless of the White House administration. In contrast to congressional relationships that can be altered by the outcome of an election, these regulatory relationships are built and maintained over many years.
“Establish and build authentic, professional connections with regulatory staff not only within your specific discipline but across different functionalities,” said Marcia Howard, Ph.D., CAE, vice president of regulatory and scientific affairs at the Consumer Healthcare Products Association. “Doing so will help ensure you have the relationships in place when you need to discuss various regulatory activities impacting your members’ and/or organization’s areas of interest.”
Many organizations don’t prioritize this type of relationship-building, because they may think that if a certain regulator isn’t involved in their issues now, why bother? But regulators will remember you and your organization if you are helpful and provide useful information before they are in a position to decide the fate of your regulations. Be sure to invite member experts to attend these meetings periodically and train them well in advance. The real-life examples and realities your members bring to meetings about the impact of a policy, both negative and positive, are invaluable.
“In my early days of working with regulatory agencies, I hosted an annual event to engage regulators about the work of the association I was with at the time but found issue-oriented advocacy to be more effective,” said Kristin Hellquist, MS, CAE, director of advocacy and practice affairs at the American Society for Dermatologic Surgery Association.
John Boling, director of government relations at the International Institute of Building Enclosure Consultants, uses the annual appropriations process to nurture relationships with agency personnel his association works with.
“While there are always areas where we think a federal program can be improved, if the agency is doing a good job, I will say so and give an example, if possible, in our comments on their department’s annual budget request to the House Appropriations Committee,” Boling said. “Typically, agency officials only hear from Congress when there is a problem, so telling them a program is being run well will not go unnoticed by the agency."
Finally, it can be critical to build coalitions to accomplish a regulatory change, depending on your industry. At AOTA, members have been confronting threats of Medicare reimbursement cuts over the last few years. To advocate against these cuts, we work together with a large coalition of national health care associations similarly impacted. Multiple voices with a similar message on a rule are often more effective than one voice alone. This sustained, long-view advocacy with federal agencies can serve your association membership with real returns on investment for decades to come.
