Gavel And Medical Stethoscope

What Should Academics Know About Lobbying Law?

This post was originally published on AM Rounds on January 14, 2020.

By Holly Fernandez Lynch, Alison Bateman-House, and Suzanne M. Rivera

Academics sometimes get a bad rap for being stuck in their ivory towers. But many academics realize that their expertise can be useful to policymakers and aim to make it widely available through a variety of avenues. We write op-eds, publish in policy-oriented journals, send letters to elected officials, write amicus briefs, submit comments on proposed regulations, serve on advisory committees, and offer testimony. At the current political moment, these types of public engagement and advocacy activities are particularly salient for academics doing work relevant to health and science policy, topics at the top of the national agenda.

In a recent article in Academic Medicine, we describe how academics can engage in advocacy without running afoul of legal restrictions on lobbying. Here are the top 10 things you need to know.

1. What counts as lobbying? “Lobbying” is a legal term of art, and it means different things in different laws, regulations, and policies. For example, the Federal Lobbying Disclosure Act governs contacts with legislative or executive branch officials on behalf of a client for compensation. Federal tax laws applicable to non-profits govern attempts to influence legislation. And restrictions imposed by public funders cover attempts to influence legislation and funding decisions.

2. Are there exceptions? Lobbying laws typically grant specific exemptions for a number of activities that would otherwise constitute lobbying – and these exemptions are highly relevant to academics. For example, lobbying restrictions applicable to non-profits like universities don’t apply to nonpartisan analysis or research that doesn’t include a direct call to action by the general public. They also don’t apply to communication with policymakers about broad social issues that don’t address a specific legislative proposal.

3. How is lobbying regulated? There are 3 broad approaches to regulating lobbying activities – disclosure, restriction, and prohibition. Lobbying disclosure laws don’t restrict or prohibit lobbying but require registration and reporting. Federal tax laws also don’t prohibit lobbying but require it to be limited for entities to retain their non-profit status. Public funding rules are typically the strictest, imposing an absolute bar on the use of funds for lobbying activities; private funders often have similar rules.

4. What if I’m acting in my own capacity? The lobbying rules applicable to non-profit entities don’t apply to academics acting in their individual capacities without institutional resources. These individuals may provide their institutional affiliations in the course of any advocacy activity solely for identification purposes, so long as they make sure not to imply that their opinions represent institutional positions.

5. What if I’m using my institution’s resources? When academic advocacy does use institutional resources, it can avoid tax law consequences for the institution by staying within the confines of a relevant exemption.

6. What if I’m at a public institution? Academics at public institutions must be particularly careful about lobbying due to restrictions on how public funds may be used, but the exemptions apply to them too.

7. What if I lobby through a professional association? When academics engage in advocacy through relevant professional associations, they must still consider restrictions on the use of their home institution’s resources relevant to tax-exempt status and restrictions on the use of public funding.

8. When am I totally safe? Academics don’t need to worry about lobbying when they are providing invited testimony to a legislative body, serving on government advisory committees, participating in notice-and-comment rulemaking, or filing amicus briefs. These activities all fall clearly within the bounds of what’s permissible.

9. What if I need help? Lobbying rules can be highly nuanced. If you have any questions, it’s always a good idea to connect with your institution’s government affairs or general counsel’s office.

10. What can my institution do for me? Your institution can often help your message be heard. It can offer training on engaging with policymakers and facilitate coordinated messaging. Sometimes, it may be helpful to start your advocacy in-house, encouraging your institution to develop and implement certain policies on campus and to advance certain positions in its outward-facing efforts.

In our article, we provide a number of specific examples to highlight these points and the opportunities that exist for academic advocacy. Overall, despite some legal constraints, academics have substantial leeway to contribute to evidence-based health and science policy, beyond academic publications and conferences. We call on our colleagues to use this leeway and their expertise to advance the public good, and we call on institutions of higher education to help us do so.

H. Fernandez Lynch is the John Russell Dickson, MD Presidential Assistant Professor of Medical Ethics, Department of Medical Ethics and Health Policy, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania.

A. Bateman-House is assistant professor, Division of Medical Ethics, New York University Langone Medical Center, New York, New York.

S.M. Rivera is vice president for research, Office of Research and Technology Management, and associate professor, Department of Bioethics, Case Western Reserve University School of Medicine, Cleveland, Ohio.

Further Reading

Fernandez Lynch H, Bateman-House A, Rivera SM. Academic advocacy: Opportunities to influence health and science policy under U.S. lobbying law. Acad Med. 2020;95:44-51.

Holly Fernandez Lynch

Holly Fernandez Lynch

Holly Fernandez Lynch, JD, MBE, is the John Russell Dickson, MD Presidential Assistant Professor of Medical Ethics in the Department of Medical Ethics and Health Policy at Penn’s Perelman School of Medicine. She is also the Assistant Faculty Director of Online Education, helping to lead the university’s first online master’s degree, the Master of Health Care Innovation, and other online offerings.

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