Brian M. Conley Suffolk University, Boston The Language of Lobbying: Assessing the Impact of Lobbyist-Proposed Language on the Formulation of State Environmental Policy Brian M. Conley Suffolk University, Boston

Introduction Title: Assessing the Impact of Lobbyist-Proposed Language on the Formulation of State Environmental Policy Topic: My topic is State-Level Lobbying and Its Impact on Environment Policy. Specific Policy: I’m looking at specific policy area: Electronic Waste or co-called E-Waste.

Introduction The power and influence of lobbying, particularly at the federal level has been widely reported on. Congress: According to the Center for Responsive Politics, nearly 15,000 registered lobbyists spent more than 3 billion dollars in 2008 attempting to influence Congress. States: Scholars have noted a similar trend in the states, where both the number and importance of lobbying has increased sharply since the late 1980s (Mooney 1991; Gray and Lowery 1995; Nownes and Freeman 1998; Alexander 2002; Rosenthal 2001).

Introduction Measurement Problem: Despite the growth of lobbying at state and national levels, as well as a corresponding expansion of scholarly interest, it has been difficult to demonstrate how lobbying influences legislative outcomes.

Introduction Research Question: How do lobbyists influence legislative outcomes, and thus win in competition with other interest groups? If influencing legislative outcomes is central to the task of lobbying, and success often entails one interest group winning over another, how such influence, and thus success is achieved, remains a subject of considerable uncertainty.

Introduction My Argument: It is my argument that looking at the role of lobbyist-proposed legislative language offers one way of measuring “influence” and thus examining the conditions under which lobbying enables one interest group to win in contests with other interests. But before preceding, I want to give you an overview of lobbying as an issue…

Introductory Literature Review: Lobbying Literature: The scholarly literature is, for the most part, defined by two distinct approaches: 1) Exchange Theory 2) Persuasion Theory

Exchange and Persuasion theories: Exchange Theory: According to exchange theories of interest group advocacy, lobbying involves a form of barter or trade between lobbyists and legislators (Denzau and Munger 1986). LB Contributions LG Roll-Call Votes

Exchange and Persuasion theories: Persuasion Theory: Lobbyists, in the persuasion view, either influence or gain access to legislators by strategically providing lawmakers with information that is at once favorable to the lobbyists’ position, but may also be helpful to the legislator for the purposes of either passing legislation or grappling with the uncertainties of reelection. LB LG Information Critique of the Literature: Each approach captures important aspects of the lobbying process. Yet both has struggled to account analytically for how influence actually occurs

Exchange and Persuasion theories: Exchange Theory: Limitations: Evidence Mixed, Contract? Problems with “vote-buying:” Contributions and votes can be tracked. LB Contributions LG Roll-Call Votes Influence: But is difficult to determine if the money shaped the LG’s vote. Contract: How the “contract” implied in exchange relations is enforced, given the illegality of direct payoffs for votes is unclear.

Exchange and Persuasion theories: Persuasion Theory: Limitations The importance of various forms of “persuasion” has also been difficult to define and thus track. Information plays a critical role in lobbying: It helps LGs to appear productive, knowledgeable and responsive. LB LG Information LB have an opportunity, and thus an incentive to mislead LG. Influence: But LG are privy to information from many sources. Given LG cannot trust the information, and LB target allies, how much persuasion is going on?

Exchange and Persuasion theories: Analytical Limits of Current Interpretations: There is, then, a core analytical weakness in the lobbying literature. Challenges of Operationalization: But what evidence either approach has produced of actual “influence” on the part of lobbyists over legislators is circumstantial at best. The problem, in many ways, is one of operationalization, or the challenge of identifying some working element of the lobbying process capable of being examined for the purposes of measuring influence.

Study Language: Lobbyist-Proposed Language: Ultimate Form of Persuasion To address this weakness in the literature, I propose examining what might be described as the ultimate form of persuasion: lobbyist-proposed legislative language. Advantages of Language: There are clear advantages to studying lobbyist-proposed legislative language: 1) Methodological Advantages: Language an be Tracked 2) Explanatory Advantages: Language helps to identify the Conditions under which lobbying is “successful.”

Study Language: Lobbyist-Proposed Language: Explanatory Advantages: What does Language do? It provides lobbyists a means of overcoming several of the barriers common to persuasive lobbying. Language Works: Language works because it: 1) Communicates to legislators a general desire to work with rather than against filed legislation. 2) provides legislators a cost-effective way, in terms of time and resources to respond to lobbyist’s ideas.

Exchange and Persuasion theories: Persuasion Theory: Explanatory Advantages: Why Language Works: Influence: Language helps to reduce LGs uncertainty about LB’s information as well as makes it less costly for LG’s to be productive, knowledgeable and responsive. LB LG Language

A Study of Language: Lobbyist-Proposed Language: Ultimate Form of Persuasion Hypothesis: Accordingly, it is our contention that lobbyists who provide legislators with language are more likely to influence legislators and thus win in competition with other interest groups.

Focus of Study: E-Waste Legislation Focus of Study: E-Waste Legislation: To test this hypothesis, I look at recent changes at the state laws regulating the disposal of electronic waste, or e-waste that pitted two powerful, and similar interest groups, so-called legacy and non-legacy television manufacturers against each other. State Overview: Currently, nineteen states (19) regulate the disposal of electronic waste, with each state taking a slightly different approach.

Focus of Study: E-Waste Legislation “Producer Responsibility” Laws Many state and environmental leaders have advocated for so-called “producer responsibility” laws that require the manufacturers of electronic equipment to assume the costs of redemption. Return Share Initially, most of these filed legislation was based on the concept of “return-share,” where manufacturing responsibility is determined by the percentage of e-waste made up of a manufactures’ products. That is, they pay proportional to the number of their products that are discarded. Fees and WPS A number of states also proposed or adopted flat, or prorated fees based on the yearly weight of products sold.

E-Waste: State Producer Responsibility Laws, 2010 Electronic Takeback Coalition (http://www.electronicstakeback.com/legislation/state_legislation.htm)

Study of E-Waste Legislation TVs as an Issue: Toxic, but Expensive One major area of disagreement has been whether or not the law should include televisions. TV Lobbying: Market Share TV manufacturers are divided on the issue, with a number of “legacy” manufacturers, or companies that did, but no longer manufacture TVs, arguing for “market” rather than return share provisions in producer responsibility laws. Market Share limits a company’s recycling responsibilities to their current share of national TV sales.

Opposing Market Share Non-legacy manufacturers, on the other hand, as well as lobbyists for newer entrants into the TV market, were less likely to propose language in part because they responded to the inclusion of TVs into e-waste legislation by trying to kill rather than modify the legislation that included TVs.

Goal of Market Share Goal of Market Share: The goal, then, of legacy manufacturers was either to outright replace return share provisions or to amend less specific fee or weight requirements, the implications of which were not always certain, with precise market share language.

Market Share Market Share Language: The precise language, as it appears in the North Carolina law includes some variation on the following: “A television manufacturer's market share is the television manufacturer's prior year's sales of televisions…divided by all manufacturers' prior year's sales for all televisions.” Source of Language: TV Lobby The legacy TV industry’s support for “market share” language is clear from a review of the public testimony that has been made in support either of amending or adopting producer responsibility e-waste legislation.

Research Design: Study of Language Research Design: To measure the comparative impact of a language-based strategy, I conducted a pre and post-test/panel study of filed and finalized e-waste legislation in each of the states (17 in total) that have passed such laws that include TVs since 2003. Specifically, to gauge the before and after effects of a language-based lobbying strategy, I ranked both the filed and finalized legislation from 1 to 5 based on its favorability from a market-share perspective.

Research Design: Study of Language Research Design: To calculate the effect of language, I scored each of the filed and finalized legislation from 1 to 5 based on its similarity with the market share concept, with: 1: representing return share, or the least similar to market share, 5: representing market share, or the most similar. Placeholder bills were scored low at 2, given their uncertainty, while fee and weight of products of sold were scored as either 3 or 4, based on their details of the legislation, since they generally focused on current, or non-legacy manufacturers, but could be retro-active or broadly applicable.

Argument Finding: Significant Impact The results of my analysis show a clear effect of language on the probability of successfully influencing legislation, and thus winning in competition with other interest groups. The panel study produced an obtained t score of -3.19, which is significant at both 95 and 99%. Pattern of Influence: Indeed, what a review of the state e-waste laws suggests is a clear pattern of influence over time on the part of lobbyists for legacy manufacturers to the extent that specific “market-share” language became part of the final legislation in majority of the states in which e-waste has been passed. This was true, despite the coordinated opposition of companies that still make TVs, who launched a similarly professional and sustained campaign to oppose e-waste laws altogether.

Analysis Analysis: Pattern of State Laws Of the 18 states that have enacted e-waste laws since 2004, six states – Hawaii, Maryland, Missouri, Oklahoma, Texas and Virginia – excluded TV’s altogether in their legislation, and four --New Jersey, Maine, Washington and Oregon– initially used return share.

Analysis Power of Market Share: However, another seven states –Connecticut, Illinois, Indiana, North Carolina, Minnesota, Wisconsin and Rhode Island -- based their laws on market share. Indeed, in Illinois, the law was written so that TV manufacturers would be covered by market share policy while most other electronics companies have to abide by return share. Moreover, four states –New Jersey, Maine, Texas and Hawaii– rewrote their e-waste laws just a year or two after enactment to drop return or to include TVs and have used market share language.

Analysis Summary What the evidence suggests, then, is a clear trend toward market share language after Maine, New Jersey and Washington State used versions of return share language in 2004 and 2006. Indeed, the evidence suggests that since 2008, no state except Oregon that has considered Producer Responsibility legislation has used anything but market share language. In total, then, of the 18 states that have enacted e-waste laws: - Four exclude TVs (22%) - Two have return share (11%) - Ten have Market share (55%) The remainder two (11%) have weak take back requirements.