Insights on Legislative and Regulatory Processes and Lobbying

Insights on Legislative and Regulatory Processes and Lobbying By Chris Micheli

I have often discussed the legislative and regulatory processes, as well as lobbying in both arenas, and have mentioned that I think there are a number of similarities (and differences, of course) between the processes and lobbying in these two areas. What do I mean? Let’s take a look at a few:

First, in terms of lobbying at its most basic level, there are both similarities and differences between regulatory and legislative lobbying. But my view of the two is:

·       Legislative lobbying is advocating for or against a bill in the legislative branch.

·       Regulatory lobbying is advocating for or against a regulation in the executive branch.

Yes, the processes and players are different, but the general concepts are the same.

Second, there are some interesting parallels between the two processed from my perspective. What are some examples?

Bills in the legislative branch and regulations in the executive branch can both do the same things to the laws in their respective areas: 

• A bill can add a new statute and a rulemaking can add a new regulation.
• A bill can amend an existing statute and a rulemaking can amend an existing regulation.

• A bill can repeal an existing statute and a rulemaking can repeal an existing statute.

In addition, the basis for an emergency regulation (as opposed to a regular rulemaking) is akin to the basis for an urgency clause in a bill. Both are to protect the public health and safety and need to go into immediate effect.

Regulations have effective dates (generally each calendar quarter), while statutes have effective dates (generally January 1, with 4 specified exceptions). Regulations and statutes can also have a delayed operative date.

The formal legislative and regulatory processes both conclude in the same manner: with the ministerial act of filing the chaptered bill or approved regulation with the Secretary of State.

Moreover, both have a notice requirement and an opportunity to comment period. These are two key principles shared by both these forms of lawmaking. The public must be made aware of the respective proposed law changes and be given a chance to provide input to the relevant decision-makers.

While the regulatory process is based on statutes, which are contained in the state’s APA found in the Government Code and OAL regulations, the legislative process has constitutional and statutory procedures, as well as internal rules to govern their process.

An interested parties mailing list exists pursuant to state statute for persons to receive regulatory filings to ensure they get proper notice of proposed rulemaking activities. In this way, the regulated community and other interested persons can be made aware of relevant regulatory changes being proposed.

Likewise, individuals can sign up to receive bill introductions and amendments, as well as other legislative measures, so they get notice of proposed lawmaking. As a result, interested persons can be made aware of proposed statutory changes.

With notice comes an opportunity to participate in the legislative or regulatory processes. In both instances, there may be written and oral comments submitted. There is a minimum 45-day comment period for proposed regulations. This is the main opportunity to comment on proposed regulations.

There is often a formal hearing on the proposed rulemaking and sometimes a 15-day period or two for additional comments. As a result, interested persons can make both oral and written comments in the rulemaking process.

In the legislative process, a bill must be in print for at least 30 days before it can be acted upon. And then bills are set for one or more committee hearings. Interested persons can submit written comments and also participate in the public hearings on legislation. As a result, individuals can make both written and oral comments in the legislative process.

Again, in both processes, the general public and the regulated community have multiple opportunities to express their views on proposed law changes in both the legislative and executive branches of state government. These are just a few of the ways in which there are several similarities between the legislative and regulatory processes. 

Finally, there are also a number of similarities between successful regulatory and legislative lobbying. What are some of these examples? I like to point out the 3 "P"s to be a good legislative and regulatory lobbyist: 

1. People - Do you know the relevant elected officials and their staff in the legislative process,  or the relevant appointed officials and their staff in the rulemaking process?
2. Policy - Do you know and understand the relevant policy area(s) of the proposed rulemaking or legislation?
3. Process - Do you know and understand the applicable rules and procedures for the rulemaking process, and the applicable rules and procedures for the legislative process?

In conclusion, the purpose of this article is to demonstrate some of the similarities (and a few differences) between these two processes of lawmaking in California so that interested persons can learn more about participating in these governmental functions.